248 CMR Board of State Examiners of Plumbers and Gas Fitters 10.00 Uniform State Plumbing Code - Correction 71

Issue: 1334, Date: March 10, 2017

Published by: The Secretary of the Commonwealth, William Francis Galvin, Secretary $15.00

Page

THE GENERAL COURT Acts and Resolves 1

OFFICE OF THE GOVERNOR Executive Order No. 575: Establishing the Black Advisory Commission 3 Revoking and superseding Executive Order No. 362

EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES Administrative Bulletin 17-03: 101 CMR 315.00: Vision Care Services 7

ADMINISTRATIVE PROCEDURES Notices of Public Review of Prospective Regulations 9 Cumulative Table 37 Notice of Expiration of Emergency Regulation - Emergency Regulations - Permanent Regulations 45 Future Effective Date Regulations -

MASSACHUSETTS REGISTER (THE) (ISSN-08963681) is published biweekly for $300.00 per year by the Secretary of the Commonwealth, State House, Boston, MA 02133. Second Class postage is paid at Boston, MA. POSTMASTER: Send address change to: Massachusetts Register, State Bookstore, Room 116, State House, Boston, MA 02133.

Notice of Expiration of Emergency Regulation There are no Notices of Expiration in this Massachusetts Register .-

Emergency Regulations There are no Emergency Regulations in this Massachusetts Register .-

Permanent Regulations

101 CMR Executive Office of Health and Human Services 346.00 Rates for Certain Substance-related and Addictive Disorders Programs 45 Governs the payment rates for certain substance-related and addictive disorders services purchased by a governmental unit. The rates also apply to individuals covered by the Workers' Compensation Act, M.G.L. c. 152.

103 CMR Department of Correction 155.000 Inmate Six-part Folder 47 Establishes rules and regulations for the maintenance of inmate case records and, specifically, the inmate six-part folder. 157.000 Access to and Dissemination of Evaluative Information 49 Establishes guidelines governing the content and use of evaluative information, and governs the inspection, receipt of copies, and challenges to such information. It is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law. 410.00 Sentence Computation 51 Establishes procedures governing the recording, calculation, review and communication of an inmate’s sentence structure in conformance with applicable laws. 471.00 Religious Programs and Services 53 Establishes Departmental guidelines regarding religious programs and services in the institutions of the Department of Correction. It is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law.

916.00 County Correctional Facilities Management Information System 55 Establishes standards for the care and custody of all persons committed to any county correctional facility and provisions for enforcement of such standards. Updates reference to the Department of Criminal Justice Information Services (DCJIS). 917.00 County Correctional Facilities Research 57 Establishes standards for the care and custody of all persons committed to any county correctional facility and provisions for enforcement of such standards. Updates references. 918.00 County Correctional Facilities Inmate Records 59 Establishes standards for the care and custody of all persons committed to any county correctional facility and provisions for enforcement of such standards. Updates references and corrects typographical errors.

130 CMR Division of Medical Assistance 450.000 Administrative and Billing Regulations 61 Replaces the fixed out-of-state PAPE amount with an adjudicated payment per episode of care (APEC) payment method. The APEC payment amount will vary by episode depending largely on the case weights of services within the episode, and an APEC outlier component. Certain outpatient services, such as clinical laboratory services, will continue to be paid separately in accordance with the applicable fee schedule established by EOHHS. Components of the new out-of-state APEC method, as well as the existing out-of-state PAPE method, refer to the in-state methods. Accordingly, ensuring that similar payment calculations are utilized for both instate and out-of-state acute hospitals will allow MassHealth to maintain only one payment methodology in the claims system for acute outpatient hospital services, increasing alignment and decreasing administrative burden.

220 CMR Department of Public Utilities 69.00 Procedures for the Determination and Enforcement of Violations of Safety Codes Pertaining to Pipeline Facilities, Transportation of Natural Gas, and Liquefied Natural Gas Facilities 65 Establishes procedures for determination and enforcement of state and federal pipeline safety standards. The U.S. Department of Transportation’s (USDOT) Pipeline and Hazardous Materials Safety Administration has established comprehensive safety standards. The DPU enforces state codes for intrastate natural gas pipelines and facilities, and federal pipeline safety codes, as an agent of the Secretary of USDOT. Updates statutory and regulatory references, clarifies regulation language, and simplifies terms, including the regulation title. 101.00 Massachusetts Natural Gas Pipeline Safety Code 67 Requires intrastate pipeline facilities to comply with state safety codes and with Code of Federal Regulations, Title 49, Federal Minimum Safety Standards. Removes the requirement that the DPU review and hold a public hearing regarding Federal Minimum Safety Standards amendments, additions, or revisions, as they are publicly noticed by the U. S. Dept. of Transportation’s Pipeline and Hazardous Materials Safety Administration. Revises the business district leak survey interval at 220 CMR 101.06(21)(a) to be consistent with 220 CMR 101.06(21)(b) for outside business districts. 104.00 Design, Operation and Maintenance of Liquefied Petroleum Plants and Related Facilities 69 Provides mandatory safety guidance to operators of Liquefied Petroleum (LP) gas plants. The National Fire Protection Association (NFPA) has developed comprehensive safety codes for the construction and operation of LP plants and related facilities. See NFPA 59: Utility LP – Gas Plant Code. Removes the outdated reference to the 1968 edition of NFPA 59 and refer to the 2004 edition. Also, no longer reiterates individual sections of NFPA 59 within the regulations.

248 CMR Board of State Examiners of Plumbers and Gas Fitters 10.00 Uniform State Plumbing Code - Correction 71

301 CMR Executive Office of Energy and Environmental Affairs 23.00 Review and Approval of Municipal Harbor Plans 73 Establishes a voluntary procedure by which municipalities may obtain approval of Municipal Harbor Plans from the Secretary, in order that such plans may serve to inform and guide state agency actions affecting the implementation of waterway management programs at the local level. increase the flexibility provided to municipalities and businesses by allowing for new and expanded economic development opportunities, while ensuring the protection of current and future marine industrial opportunities. 25.00 Designation of Port Areas 75 Sets forth a procedure for establishing and modifying the boundaries of Designated Port Areas. Increases the flexibility provided to municipalities and businesses by allowing for new and expanded economic development opportunities, while ensuring the protection of current and future marine industrial opportunities.

310 CMR Department of Environmental Protection 7.00 Air Pollution Control 77

(Massachusetts CO 2 Budget Trading Program) Allows any power plant that produces useful thermal energy (steam) to deduct from its compliance

obligation the CO 2 emissions associated with the production of Useful Net Thermal Energy. 9.00 Waterways 79 Explains the requirements for Facilities of Public Accommodation (e.g. restaurants, retail stores, hotels, museums, and transportation facilities) to ensure the rights and benefits of the transient public along the waterfront. Also serves to protect traditional water-dependent marine industrial uses in Designated Port Areas (e.g. commercial fishing, commercial passenger vessel operation, boat repair and maintenance, and other commercial shipping activities) from displacement by nonwater-dependent commercial, residential, and recreational uses.

321 CMR Division of Fisheries and Wildlife 10.00 Massachusetts Endangered Species Act Regulations 81 Provides the list of species of animals and plants protected by the Massachusetts Endangered Species Act (M.G.L. c. 131A). Indexes the State Listed Species that acts as an aid to individuals in locating species on the list of animals and plants.

801 CMR Executive Office for Administration and Finance 3.00 Privacy and Confidentially 83 Sets forth guidance regarding compliance with the Fair Information and Practices Act, M.G.L. c. 66A.

957 CMR Center for Health Information and Analysis 11.00 Registered Provider Organizations Reporting Requirements 85 Governs the reporting requirements for Registered Provider Organizations to submit data and information to the Center.

976 CMR State Finance and Governance Board 2.00 State Finance and Governance Board Regulations Department of Revenue 87 Sets forth procedural rules for the State Finance and Governance Board.

1 H 58 Further Regulating the Compensation of Certain Public Officials. 2/2/2017 This bill was returned by the Governor to the House of Representatives, the branch in which it originated, with his objections thereto, was passed by the House of Representatives on February 2, 2017, and in concurrence by the Senate on February 2, 2017, the objections of the Governor notwithstanding, in the manner prescribed by the Constitution, and therefore has the force of law. 2 H 55 Establishing a Sick Leave Bank for Robert Hackett, an Employee 2/17/2017 of the Department of Revenue.

3 S 20 Establishing a Sick Leave Bank for Lisa Eppy, an Employee of 2/23/2017 the Department of Children and Families

4 H 70 Establishing a Sick Leave Bank for Valencia Hadley, an 3/1/2017 Employee of the Department of Transitional Assistance.

CHARLES D. BAKER KARYN E. POLITO GOVERNOR LIEUTENANT GOVERNOR

"' ':.I> By His Excellency . ~f ""t -.:D:0 r ~ 1 CHARLES D. BAKER , -1 :-~ GOVERNOR

EXECUTIVE ORDER NO.5 7 5

EST ABLISHING THE BLACK ADVISORY COMMISSION

Revoking and Superseding Executive Order No. 362

WHEREAS, it is a priority of this Administration to foster global inclusion and equal opportunity for all who call Massachusetts home irrespective of race, color, age, gender, ethnicity, sexual orientation, gender identity or expression, religion, creed, ancestry, national origin, disability, veteran's status, or socio-economic background;

WHEREAS, the black community in Massachusetts is rich in diversity, and includes persons who identify as African-American, Cape Verde an, Haitian, Jamaican, Somali, Ethiopian, or by reference to a wide range of other ethnicities and national origins;

WHEREAS, the Massachusetts black community represents a unique population that brings traditions, perspectives, and cultures which significantly shape and influence all aspects of the Commonwealth's development and standing;

WHEREAS, the Massachusetts black community has and continues to make outstanding achievements on behalf of the Commonwealth, advancing its economic, educational, social, cultural and technological progress;

@ PRINTED ONTheRECYC I.text£D PAPER of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. WHEREAS, the black community living in Massachusetts has made such contributions despite having faced and fought to overcome the lasting inequities arising from slavery, discrimination and racism;

WHEREAS, those challenges, however, continue to impede economic and social equality for many members of the black community here in the Commonwealth, creating unacceptable disparities in access to educational opportunity, good jobs, and employment and housing stability;

WHEREAS, this Administration recognizes that statewide collaboration with black leaders, experts and other stakeholders will help produce solutions to those challenges, and, accordingly, will advance the interests of the Commonwealth; and

WHEREAS, this Administration re-affirms its commitment to address the critical concerns of the black community and promote its economic prosperity and well-being across Massachusetts.

NOW, THEREFORE, I, Charles D. Baker, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me by the Constitution, Part 2, c. 2, § I, Art. I, do hereby revoke Executive Order No. 362 and order as follows:

Section 1. The Black Advisory Commission is hereby established to advise the Governor and Lieutenant Governor on issues relating to the economic prosperity and well-being of the black community living in Massachusetts.

Section 2. The Commission shall consist of up to thirty-eight (38) members, including a Chair, a Vice-Chair, members representative of the geographical regions of the Commonwealth and, serving in their ex officio capacity, the Secretaries of the Executive Offices of Education, Health and Human Services, Housing and Economic Development, Public Safety and Security, and Labor and Workforce Development, or their designees. Each member, including the Chair and Vice-Chair, shall be appointed by the Governor and shall serve at his pleasure, without compensation, in an advisory capacity for a term of four years.

To achieve this objective, the Commission's members shall first identify up to three priorities to be addressed by the Commission over the course of the next two years. Such topics could include, for purposes of example only, educational opportunities, economic prosperity drivers such as public and private economic development, health care and housing access, public safety, and job training and long term career development. Upon submission of the report required in Section 4 below, the Commission will promptly convene to select up to three priorities for its consideration for the next two-year period.

The Governor's Office of Access, Opportunity and Community Affairs will provide staffing to support the work ofthe Commission, and may ask the executive office secretariats to supply data, reports and other relevant information and assistance.

Section 4. The Commission shall meet at least quarterly each year at the direction of the Chair, including at an annual meeting with the Governor and the Lieutenant Governor. The Commission shall submit a formal written report every two years to the Governor and Lieutenant Governor, summarizing the Commission's work, methodology, findings and recommendations on each of its priorities selected pursuant to Section 1 above, and providing metrics to measure the effect of such recommendations, if implemented, on the lives of members of the black community residing in Massachusetts.

Section 5. The Chair, as needed, may establish subcommittees comprised of members of the Commission and non-members drawn from various groups and organizations committed to issues that are important to the Massachusetts black community or who possess expertise necessary to accomplish the purposes of this Executive Order. All subcommittees shall be chaired by a member of the Commission designated by the Chair. Subcommittees shall meet from time to time, as scheduled by the Chair or the Chair's designee.

Section 6. This Executive Order shall take effect upon execution and shall continue in

Given at the Executive Chamber in Boston this 23rd day of February in the year of our Lord two thousand seventeen and of the Independence of the United States of America two hundred forty-one.

CHARLES D. BAKER GOVERNOR Commonwealth of Massachusetts

WILLIAM FRANCIS GALVIN Secretary of the Commonwealth

GOD SAVE THE COMMONWEALTH OF MASSACHUSETTS

NOTICES OF PUBLIC REVIEW OF PROSPECTIVE REGULATIONS PUBLISHED IN COMPLIANCE WITH M.G.L. c. 30A, §§ 2 AND 3

March 10, 2017

Elementary and Secondary 603 CMR 3.00 Written comments Education, Department of accepted until 3/17/17.

Fisheries and Wildlife, Division of 321 CMR 3.00 3/22/17 @ 12:00 P.M.

Health and Human Services, 101 CMR 351.00 3/17/17 @ 1:30 P.M. Executive Office of Written testimony accepted until 3/17/17 @ 5:00 P.M.

Housing and Community 760 CMR 12.00 & 59.00 3/27/2017: 760 CMR Development, Department of 59.00 @ 1:00 P.M., 760 CMR 12.00 @ 2:30 P.M. Written comments accepted until 4/7/17 @ 5:00 P.M.

Medical Assistance, Division of 130 CMR 408.000 3/17/17 @ 10:00 A.M. Written testimony accepted until 3/17/17 @ 5:00 P.M.

130 CMR 422.000 3/20/17 @ 10:00 A.M. Written testimony accepted until 3/20/17 @ 5:00 P.M.

Mental Health, Department of 104 CMR 32.00 Written comments accepted until 4/10/17 @ 5:00 P.M.

The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State 36 Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. THE COMMONWEALTH OF MASSACHUSETTS Secretary of the Commonwealth - William Francis Galvin

2016 CUMULATIVE TABLE TO THE MASSACHUSETTS REGISTER 1330 - 1334

The cumulative Table lists all regulations and amendments thereto published in the Massachusetts Register during the current year. The Table is published in each Register.

State agencies are listed in the Table as they appear in the Code of Massachusetts Regulations (CMR or Code) in CMR numerical order which is based on the cabinet structure. For example, all Human Service agencies are prefaced by the number “1" and are designated as 101 CMR through 130 CMR.

The Cumulative Tables published in the last issue of previous years will have a listing of all regulations published for that year. These Registers are: April 6, 1976 - 1977 Register: # 88 Date: 1997 Register: # 833 1978 138 1998 859 1979 193 1999 885 1980 241 2000 911 1981 292 2001 937 1982 344 2002 963 1983 396 2003 989 1984 448 2004 1016 1985 500 2005 1042 1986 546 2006 1068 1987 572 2007 1094 1988 598 2008 1120 1989 624 2009 1146 1990 650 2010 1172 1991 676 2011 1198 1992 702 2012 1124 1993 729 2013 1250 1994 755 2014 1276 1995 871 2015 1302 1996 Supp. # 2 807 2016 1329

37 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Effective Issue Date

101 CMR Executive Office of Health and Human Services 20.00 Health Information Exchange ...... 1332 2/10/17 204.00 Rates of Payment to Resident Care Facilities ...... S1331 1/27/17 206.00 Standard Payments to Nursing Facilities - Emergency ...... 1330 12/30/16 305.00 Home Health Services - Emergency ...... 1330 1/1/17 345.00 Temporary Nursing Services ...... S1331 1/27/17 346.00 Rates for Certain Substance-related and Addictive Disorders Programs ...... 1334 3/10/17 357.00 Rates for Money Follows the Person Waiver Services ...... S1331 1/27/17 359.00 Rates for Home and Community Based Services Waivers ...... S1331 1/27/17 414.00 Rates for Family Stabilization Services ...... S1331 1/27/17 421.00 Rates for Adult Housing and Community Support Services ...... 1332 2/10/17 424.00 Rates for Certain Developmental and Support Services - Correction (MA Reg. # 1329) ...... 1333 12/30/16

429.00 Rates for Certain Sexual and Domestic Violence Services ...... S1331 1/27/17

103 CMR Department of Correction 155.00 Inmate Six-part Folder ...... 1334 3/10/17 157.00 Access to and Dissemination of Evaluative Information...... 1334 3/10/17 410.00 Sentence Computation ...... 1334 3/10/17 471.00 Religious Programs and Services ...... 1334 3/10/17 916.00 County Correctional Facilities Management Information System ... 1334 3/10/17 917.00 County Correctional Facilities Research ...... 1334 3/10/17 918.00 County Correctional Facilities Inmate Records ...... 1334 3/10/17

105 CMR Department of Public Health 100.000 Determination of Need...... S1331 1/27/17 123.000 Tanning Facilities ...... 1333 2/24/17 125.000 Licensing of Radiologic Technologists ...... 1333 2/24/17 300.000 Reportable Diseases, Surveillance, and Isolation and Quarantine Requirements ...... S1331 1/27/17

106 CMR Department of Transitional Assistance 362.000 Supplemental Nutrition Assistance Program: Nonfinancial Eligibility Standards ...... 1332 2/10/17 363.000 Supplemental Nutrition Assistance Program: Financial Eligibility Standards ...... 1330 1/13/17 364.000 Supplemental Nutrition Assistance Program: Determining Household Eligibility and Benefit Level ...... 1330 1/13/17 365.000 Supplemental Nutrition Assistance Program: Special Situation Households...... 1330 1/13/17 366.000 Supplemental Nutrition Assistance Program: Additional Certification Functions ...... 1330 1/13/17

38 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Effective Issue Date

114 CMR Department of Health Care Finance and Policy 114.3 50.00 Home Health Services ...... 1330 1/1/17 54.00 Rates for Acquired Brain Injury Waiver and Related Services ..... S1331 1/27/17

120 CMR Parole Boars 100.00 Definitions ...... 1330 1/13/17 101.00 General Provisions ...... 1330 1/13/17 200.00 Parole Eligibility ...... 1330 1/13/17 300.00 Parole Hearings and Decision Making: General Provisions...... 1330 1/13/17 301.00 Initial Parole Release Hearings; Review Hearings ...... 1330 1/13/17 302.00 Rescission of Parole Date ...... 1330 1/13/17 303.00 Revocation of Parole ...... 1330 1/13/17 304.00 Appeal and Reconsideration ...... 1330 1/13/17 400.00 Victim Input and Notification of Parole Hearings and Decisions .... 1330 1/13/17 401.00 Victim Access Hearings...... 1330 1/13/17 500.00 Dissemination of CORI, Evaluative Information, and Intelligence Information ...... 1330 1/13/17 900.00 Executive Clemency: Generally ...... 1330 1/13/17 901.00 Commutation of Sentence - Emergency ...... 1331 1/13/17 - Compliance (MA Reg. # 1331) ...... 1331 1/13/17 902.00 Pardon of Offences - Emergency ...... 1331 1/13/17 - Compliance (MA Reg. # 1331) ...... 1331 1/13/17

130 CMR Division of Medical Assistance 450.000 Administrative and Billing Regulations ...... 1334 3/10/17 630.000 Home- and Community-based Services Waivers ...... 1333 12/2/16

205 CMR Massachusetts Gaming Commission 134.00 Licensing and Registration of Employees, Vendors, Junket Enterprises and Representatives, and Labor Organizations ...... 1331 1/27/17 138.00 Uniform Standards of Accounting Procedures and Internal Controls . 1332 2/10/17 144.00 Approval of Slot Machines and Electronic Gaming Equipment and Testing Laboratories ...... 1332 2/10/17 145.00 Possession of Slot Machines ...... 1332 2/10/17

220 CMR Department of Public Utilities 19.00 Standards of Performance for Emergency Preparation and Restoration of Service for Electric Distribution and Gas Companies ...... 1331 1/27/17 23.00 Competitively Solicited Long-term Contracts for Offshore Wind ... 1330 12/29/16 24.00 Competitively Solicited Long-term Contracts for Clean Energy .... 1330 12/29/16 69.00 Procedures for the Determination and Enforcement of Violations of Safety Codes Pertaining to Pipeline Facilities, Transportation of Natural Gas, and Liquefied Natural Gas Facilities ...... 1334 3/10/17 101.00 Massachusetts Natural Gas Pipeline Safety Code...... 1334 3/10/17 104.00 Design, Operation and Maintenance of Liquefied Petroleum Plants and Related Facilities...... 1337 3/10/17 39 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Effective Issue Date

233 CMR Board of Registration of Chiropractors 2.00 Definitions and Individual Registration Requirements ...... 1333 2/24/17 3.00 Continuing Education Requirements ...... 1333 2/24/17 4.00 Standards of Practice and Professional Conduct ...... 1333 2/24/17 5.00 Chiropractic Facilities ...... 1333 2/24/17

239 CMR Board of Registration in Embalming and Funeral Directing 3.00 Registration Requirements; Standards of Business and Professional Practice ...... S1331 1/27/17 4.00 Pre-need Funeral Contracts and Arrangements ...... S1331 1/27/17 5.00 Continuing Education ...... S1331 1/27/17

247 CMR Board of Registration in Pharmacy 4.00 Personal Registration Renewal; Continuing Education Requirement . 1330 1/13/17

248 CMR Board of State Examiners of Plumbers and Gas Fitters 3.00 General Provisions Governing the Conduct of Plumbing and Gas Fitting Work Performed in the Commonwealth ...... 1331 1/27/17 10.00 Uniform State Plumbing Code ...... 1331 1/27/17 - Correction (MA Reg. # 1331) ...... 1334 1/27/17 11.00 Education and Experience Standards and Requirements for Licensure 1331 1/27/17

249 CMR Board of Registration in Podiatry 2.00 General Provisions...... 1330 1/13/17 3.00 Application and Licensure ...... 1330 1/13/17 4.00 Practice of Podiatric Medicine ...... 1330 1/13/17 5.00 Ethical Standards and Professional Conduct ...... 1330 1/13/17 6.00 Administrative Duties of the Board ...... 1330 1/13/17

250 CMR Board of Registration of Professional Engineers and Land Surveyors 2.00 General Provisions, Board Procedures and Definitions ...... 1332 2/10/17 3.00 The Registration Process ...... 1332 2/10/17 6.00 Land Surveying Procedures and Standards ...... 1332 2/10/17

269 CMR Board of Registration of Massage Therapy 3.00 Individual Licensure ...... 1330 1/13/17 5.00 Code of Professional Ethics & Standards of Ethical Practice ... 1330 1/13/17 6.00 Facility Licensure ...... 1330 1/13/17

301 CMR Executive Office of Energy and Environmental Affairs 22.00 Coastal Facilities Improvement Program ...... 1331 1/27/17 23.00 Review and Approval of Municipal Harbor Plans ...... 1334 3/10/17 25.00 Designation of Port Areas ...... 1334 3/10/17 26.00 Coastal Pollution Remediation Program ...... 1331 1/27/17 28.00 Ocean Management Plan ...... 1331 1/27/17 40 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Effective Issue Date

302 CMR Department of Conservation and Recreation 10.00 Dam Safety...... 1332 2/10/17

310 CMR Department of Environmental Protectiion 7.00 Air Pollution Control ...... 1334 3/10/17 9.00 Waterways ...... 1334 3/10/17 44.00 DEP Selection, Approval and Regulation of Water Pollution Abatement Projects Receiving Financial Assistance from the State Revolving Fund...... S1331 1/27/17 45.00 DEP Selection, Approval and Regulation of Drinking Water Projects Receiving Financial Assistance from the State Revolving Fund.... S1331 1/27/17

313 CMR Division of Water Resources 11.00 Watershed Protection...... 1333 2/24/17

314 CMR Division of Water Pollution Control 5.00 Ground Water Discharge Permit Program - Correction (MA Reg. # 1327 ...... 1330 12/2/16

321 CMR Division of Fisheries and Wildlife 10.00 Massachusetts Endangered Species Act Regulations ...... 1334 3/10/17

333 CMR Pesticide Board 13.00 Standards For Application ...... 1330 1/13/17

350 CMR Department of Conservation and Recreation 11.00 Watershed Protection...... 1333 2/24/17

452 CMR Department of Industrial Accidents 1.00 Adjudicatory Rules of the Industrial Accident Board ...... 1331 1/27/17 3.00 Workers' Compensation Trust Fund ...... 1331 1/27/17 4.00 Vocational Rehabilitation ...... 1331 1/27/17 5.00 Self Insurers ...... 1331 1/27/17 6.00 Utilization Review and Quality Assessment ...... 1331 1/27/17 7.00 Practices by Insurers ...... 1331 1/27/17 8.00 Office of Investigations ...... 1331 1/27/17 9.00 Other Agency Administrative Proceedings ...... 1331 1/27/17

454 CMR Department of Labor Standards 22.00 Deleading and Lead-safe Renovation ...... 1330 1/13/17

41 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Effective Issue Date

520 CMR Department of Public Safety 16.00 Enforcement of Civil Fines for Expired Elevator Certificates - Correction (MA Reg. # 1325) ...... S1331 11/4/16

522 CMR Board of Boiler Rules 10.00 Material Specifications ...... 1333 2/25/17 11.00 Welding Specifications ...... 1333 2/25/17

523 CMR State Athletic Commission 5.00 General Provisions...... 1331 1/27/17 6.00 Licensing and Registration ...... 1331 1/27/17 7.00 Medical Advisory Board ...... 1331 1/27/17 8.00 Identification Cards ...... 1331 1/27/17 9.00 Contracts and Financial Arrangements ...... 1331 1/27/17 10.00 Arranging and Promoting Programs of Unarmed Combat ...... 1331 1/27/17 11.00 Tickets and Admissions ...... 1331 1/27/17 12.00 Facilities, Equipment, and Supplies ...... 1331 1/27/17 13.00 Weight Classes, Weigh-ins, Pre- and Post-fight Physical Examinations, and Medical Conditions ...... 1331 1/27/17 14.00 General Requirements for All Unarmed Combat Contests and Exhibitions...... 1331 1/27/17 15.00 Boxing Contests and Exhibitions ...... 1331 1/27/17 16.00 Mixed Martial Arts Contests and Exhibitions ...... 1331 1/27/17 17.00 Unarmed Combat Contests and Exhibitions Other than Boxing and Mixed Martial Arts ...... 1331 1/27/17 18.00 Special Rules for Female Unarmed Combatants ...... 1331 1/27/17 19.00 Amateur Contests and Exhibitions ...... 1331 1/27/17 20.00 Prohibited Acts; Disciplinary Actions ...... 1331 1/27/17 21.00 Disciplinary Proceedings ...... 1331 1/27/17 22.00 State Championship Program ...... 1331 1/27/17 23.00 Southeast Asian Kickboxing ...... 1331 1/27/17

527 CMR Board of Fire Prevention Regulations 12.00 Massachusetts Electrical Code (Amendments) - Correction (MA Reg. # 1329) ...... S1331 12/30/16

603 CMR Department of Elementary and Secondary Education 3.00 Private Occupational Schools - Emergency ...... 1330 12/30/16

651 CMR Executive Office of Elder Affairs 3.00 Home Care Program ...... 1330 1/13/17 5.00 Elder Abuse Reporting and Protective Services Program ...... 1330 1/13/17 12.00 Certification Procedures and Standards for Assisted Living Residences ...... 1330 1/13/17

42 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Effective Issue Date

760 CMR Department of Housing and Community Development 14.00 Lead Paint Abatement Loan Program ...... 1331 1/27/17 29.00 Community Services Block Grant Program - Correction (MA Reg. # 1329) ...... 1332 12/30/16 47.00 Non-discrimination, Equal Opportunity, and Affirmative Furtherance of Fair Housing Regulations Governing Recipients of Department of Housing and Community Development Financial Assistance...... 1332 2/10/17 64.00 Publicly-assisted Affordable Housing Preservation - Correction (MA Reg. # 1320) ...... 1332 8/26/16

801 CMR Executive Office for Administration and Finance 3.00 Privacy and Confidentially ...... 1334 3/10/17

803 CMR Department of Criminal Justice Information Services 2.00 Criminal Offender Record Information (CORI) ...... 1333 2/24/17 5.00 Criminal Offender Record Information (CORI) - Housing ...... 1333 2/24/17 7.00 Criminal Justice Information System (CJIS) ...... 1333 2/24/17 8.00 Obtaining Criminal Offender Record Information (CORI) for Research Purposes ...... 1333 2/24/17 9.00 Victim Notification Registry (VNR) ...... 1333 2/24/17 10.00 Gun Transaction Recording ...... 1333 2/24/17 11.00 Consumer Reporting Agency (CRA) ...... 1333 2/24/17

830 CMR Department of Revenue 62C.00 State Tax Administration - Compliance (MA Reg. # 1329) ...... 1333 12/5/16 ...... 1333 2/24/17

957 CMR Center for Health Information and Analysis 11.00 Registered Provider Organizations Reporting Requirements ...... 1334 3/10/17

958 CMR Health Policy Commission 3.000 Health Insurance Consumer Protection ...... S1331 1/27/17

976 CMR State Finance and Governance Board 2.00 State Finance and Governance Board Regulations ...... 1334 3/10/17

43 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 160

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 101 CMR 346.00

CHAPTER TITLE: Rates for Certain Substance-related and Addictive Disorders Programs

AGENCY: Executive Office of Health and Human Services

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 101 CMR 346.00 governs the payment rates for certain substance-related and addictive disorders services purchased by a governmental unit. The rates for health care services set forth in 101 CMR 346.00 also apply to individuals covered by the Workers' Compensation Act, M.G.L. c. 152.

REGULATORY AUTHORITY: M.G.L. c. 118E

AGENCY CONTACT: Debby Briggs, MassHealth Publications PHONE: 617-847-3302

ADDRESS: 100 Hancock Street, 6th Floor, Quincy, MA 02171

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Executive Order 145 notifications: 11/18/16 Executive Order 562 approval: 2/8/17

PUBLIC REVIEW - M.G.L. c. 30A sections 2 and/or 3 requires notice of the hearing or comment period, including a small business impact statement, be filed with the Secretary of the Commonwealth, published in appropriate newspapers, and sent to persons to whom specific notice must be given at least 21 days prior to such hearing or comment period.

Date of public hearing or comment period: 12/23/16

For the first five years:

No fiscal effect:

SMALL BUSINESS IMPACT - M.G.L. c. 30A section 5 requires each agency to file an amended small business impact statement with the Secretary of the Commonwealth prior to the adoption of a proposed regulation. If the purpose of this regulation is to set rates for the state, this section does not apply.

Date amended small business impact statement was filed: N/A

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 23 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 3 & 4 3 & 4 901 - 910 901 - 910

02/24/2017 mrs

Table of Contents Page

101 CMR 328.00: CHIROPRACTIC SERVICES 801

Section 328.01: General Provision 801 Section 328.02: General Definitions 801 Section 328.03: General Rate Provision and Rates 802 Section 328.04: Administrative Bulletins 804 Section 328.05: Severability 804

(101 CMR 329.00 AND 330.00: RESERVED) 805

101 CMR 331.00: PRESCRIBED DRUGS 809

Section 331.01: General Provisions 809 Section 331.02: General Definitions 809 Section 331.03: Reporting Requirements 811 Section 331.04: Payment for Prescription Drugs 811 Section 331.05: Payment for Over-the-counter Drugs 812 Section 331.06: Dispensing Fees 812 Section 331.07: Special Provisions 812 Section 331.08: Severability 812

(101 CMR 332.00 AND 333.00: RESERVED) 813

101 CMR 334.00: PROSTHESES, PROSTHETIC DEVICES AND ORTHOTIC DEVICES 820.1

Section 334.01: General Provisions 820.1 Section 334.02: General Definitions 820.1 Section 334.03: Rate Provisions 820.5 Section 334.04: Reporting Requirements 820.26 Section 334.05: Severability of Provisions 820.27

(101 CMR 335.00 AND 336.00: RESERVED) 820.29

101 CMR 337.00: CHRONIC MAINTENANCE DIALYSIS TREATMENTS AND HOME DIALYSIS SUPPLIES 820.31

Section 337.01: General Provisions 820.31 Section 337.02: Definitions 820.31 Section 337.03: Rate(s) Determination 820.32 Section 337.04: Rates for Home Dialysis Supplies 820.33 Section 337.05: Rates for Laboratory Services 820.33 Section 337.06: Rates for Prescribed Drugs 820.33 Section 337.07: Reporting Requirements 820.33 Section 337.08: Bad Debt Settlement 820.33 Section 337.09: Severability 820.34

(101 CMR 338.00 THROUGH 342.00: RESERVED) 820.35

101 CMR 343.00: HOSPICE SERVICES 821

Section 343.01: General Provisions 821 Section 343.02: Definitions 821 Section 343.03: Filing and Reporting Requirements 823 Section 343.04: General Rate Provisions 823 Section 343.05: Severability of Provisions 826.5

(101 CMR 344.00: RESERVED) 827

12/30/16 101 CMR - 3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

Table of Contents Page

101 CMR 345.00: TEMPORARY NURSING SERVICES 851

Section 345.01: General Purpose 851 Section 345.02: Definitions 851 Section 345.03: Rate Provisions 852 Section 345.04: General Rate Provisions 854 Section 345.05: Reporting Requirements 854 Section 345.06: Transfer of Ownership 855 Section 345.07: Severability 855

101 CMR 346.00: RATES FOR CERTAIN SUBSTANCE RELATED AND ADDICTIVE DISORDERS PROGRAMS 901

Section 346.01: General Provisions 901 Section 346.02: Definitions 901 Section 346.03: Filing and Reporting Requirements 906 Section 346.04: Rate Provisions 906 Section 346.05: Severability 909

(101 CMR 347.00: RESERVED) 910.1

101 CMR 348.00: DAY HABILITATION PROGRAM SERVICES 910.3

Section 348.01: General Provisions 910.3 Section 348.02: General Definitions 910.3 Section 348.03: General Rate Provisions 910.4 Section 348.04: Filing and Reporting Requirements 910.6 Section 348.05: Severability 910.7

101 CMR 349.00: RATES FOR EARLY INTERVENTION PROGRAM SERVICES 910.9

Section 349.01: General Provisions 910.9 Section 349.02: Definitions 910.9 Section 349.03: Filing and Reporting Requirements 910.11 Section 349.04: Rate Provisions 910.12 Section 349.05: Administrative Bulletins 910.12 Section 349.06: Severability 910.13

(101 CMR 350.00: RESERVED) 910.15

101 CMR 351.00: ADULT FOSTER CARE 911

Section 351.01: General Provisions 911 Section 351.02: Definitions 911 Section 351.03: General Rate Provisions 912 Section 351.04: Filing and Reporting Requirements 912 Section 351.05: Other Provisions 912

101 CMR 352.00: RATES OF PAYMENT FOR CERTAIN CHILDREN'S BEHAVIORAL HEALTH SERVICES 912.1

Section 352.01: General Provisions 912.1 Section 352.02: General Definitions 912.1 Section 352.03: Rate Provisions 912.3 Section 352.04: Filing and Reporting Requirements 912.5 Section 352.05: Severability 912.5

(101 CMR 353.00 THROUGH 355.00: RESERVED) 912.7

3/10/17 101 CMR - 4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

101 CMR 346.00: RATES FOR CERTAIN SUBSTANCE-RELATED AND ADDICTIVE DISORDERS PROGRAMS

Section

346.01: General Provisions 346.02: Definitions 346.03: Filing and Reporting Requirements 346.04: Rate Provisions 346.05: Severability

346.01: General Provisions

(1) Scope . 101 CMR 346.00 governs the payment rates for certain substance-related and addictive disorders services purchased by a governmental unit. The rates for health care services set forth in 101 CMR 346.00 also apply to individuals covered by the Workers' Compensation Act, M.G.L. c. 152.

(2) Effective Date . 101 CMR 346.00 is effective for services rendered on and after the dates specified in 101 CMR 346.04(4)(a) and (b). The rates for Clinical Case Management, In-home Therapy, Recovery Coaching, and Telephone Recovery are effective pursuant to contracts executed under Department of Public Health procurements.

(3) Disclaimer of Authorization of Services . 101 CMR 346.00 is neither authorization for nor approval of the services for which rates are determined pursuant to 101 CMR 346.00. Governmental units that purchase the services described in 101 CMR 346.00 are responsible for the definition, authorization, and approval of services extended to clients.

(4) Coding Updates and Corrections . EOHHS may publish procedure code updates and corrections in the form of an administrative bulletin. The publication of such updates and corrections will list: (a) codes for which only the code numbers change, with the corresponding cross references between existing and new codes; (b) deleted codes for which there are no corresponding new codes; and (c) codes for entirely new services that require pricing. EOHHS will list these codes and apply individual consideration (I.C.) reimbursement for these codes until appropriate rates can be developed.

(5) Administrative Bulletins . EOHHS may issue administrative bulletins to clarify its policy on substantive provisions of 101 CMR 346.00.

346.02: Definitions

As used in 101 CMR 346.00, unless the context requires otherwise, terms have the meanings ascribed in 101 CMR 346.02.

Acute Treatment Provider (ATP) . An eligible provider of Acute Treatment Services.

Acute Treatment Services (Inpatient) . Those medically managed and/or monitored acute intervention and stabilization services that provide supervised detoxification to individuals in acute withdrawal from alcohol or other drugs and address the biopsychosocial problems associated with alcoholism and other drug addictions requiring a 24-hour supervised inpatient stay.

Approved Program Rate . The rate per service unit approved by EOHHS and filed with the Secretary of the Commonwealth.

Case Consultation . A meeting with a professional of another agency to resolve treatment issues or to exchange other relevant client information. Case consultation may be billed only for face-to-face meetings that are necessary as a result of the inability or inappropriateness of other forms of communication, such as telephone and letter. Such circumstances and services must be documented in the client's record and be available as part of any record audit that the purchasing agency may perform.

3/10/17 101 CMR - 901 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.02: continued

Case Management . Services, as specified by the MassHealth program, that coordinate the substance-related and addictive disorders treatment of pregnant women with other medical and community services that are critical to the needs of the woman and her pregnancy. Case management is billable only for women enrolled in the Day Treatment Program. Service is limited to one hour per week per enrollee, provided in no less than 15-minute increments.

Child Enhancement for Residential Rehabilitation Services . A supplemental rate to reflect the costs of young children who may be accompanying their parents in the program.

Client . An individual that receives substance-related and addictive disorders services purchased by a governmental unit.

Client Resources . Revenue received in cash or in kind from publicly assisted clients to defray all or a portion of the cost of program services. Client resources may include payments made by publicly assisted clients to defray the room and board expense of residential services, clients' food stamps, or payments made by clients according to ability to pay or sliding fee scale.

Clinical Case Management Master's Level . Individualized case management provided as part of a clinical outpatient service that facilitates ongoing engagement in community-based treatment and recovery services; links to community resources such as housing, employment, education, and health care; and facilitates access to mainstream benefits and includes evidence-based models that integrate clinical treatment and case management services.

Clinical Case Management Non-master's Level . Individualized case management provided as part of a clinical outpatient service that facilitates ongoing engagement in community-based treatment and recovery services; links to community resources such as housing, employment, education, and health care; and facilitates access to mainstream benefits.

Clinically Managed Detoxification Services . Medical assessment, intensive counseling, and case management services to clients who are not intoxicated or have been safely withdrawn from alcohol or other drugs or are addicted to a drug that does not require medical withdrawal. These clients require a 24-hour supervised inpatient stay to address the acute emotional, behavioral, or biomedical distress resulting from an individual's use of alcohol or other drugs. This level of service includes four hours of nursing services seven days a week. These services are governed by the Massachusetts Department of Public Health at 105 CMR 164.133(A)(1)(c): Clinically Managed Detoxification .

Cost Report . The document used to report costs and other financial and statistical data. The Uniform Financial Statements and Independent Auditor's Report (UFR) are used when required.

Couple Counseling . Therapeutic counseling provided to a couple whose primary complaint or concern is disruption of their relationship or family due to substance-related and addictive disorders.

Day Treatment . A highly structured day treatment program for substance-related and addictive disorders that meets the service criteria set forth by the Massachusetts Department of Public Health pursuant to 105 CMR 164.231, 164.232(A) through (C) and MassHealth. A Day Treatment Program operates at least 3½ hours a day, five days a week.

Driver Alcohol Education . The program of services, provided through licensed outpatient substance-related and addictive disorders counseling programs, legislated by M.G.L. c. 90, § 24D to first offender drunk drivers adjudicated in Massachusetts courts.

Educational/Motivational Session . A meeting between staff of a Driver Alcohol Education Program and not more than 15 clients. Clients are required to participate in 32 hours of this interactive group programming through 16 two hour groups.

3/10/17 101 CMR - 902 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.02: continued

Enhanced Acute Treatment Services . A program that is medically managed and/or monitored acute intervention and stabilization services, provides supervised detoxification to dually diagnosed individuals in acute withdrawal from alcohol or other drugs, and addresses the mental health needs and biopsychosocial problems associated with alcoholism and other drug addictions requiring a 24-hour supervised inpatient stay.

EOHHS . The Executive Office of Health and Human Services established under M.G.L. c. 6A.

Established Charge . The lowest fee that is charged or accepted as payment by the provider to the general public or any third party payer, other than a governmental unit, for the provision of services. Fees based upon the client's ability to pay, as in the case of a sliding fee scale, and fees subject to EOHHS review and approval are not established charges.

Extraordinary Circumstances/Flex Funding. A method whereby, a purchasing governmental unit may provide resource allocations to a client and/or provider for specific support services in order to address extraordinary circumstances.

Family Counseling . The therapeutic counseling of more than one member of a family at the same time in the same session, where the primary complaint or concern is disruption of the family due to substance-related and addictive disorders.

Family Residential Treatment Service . A structured and comprehensive rehabilitative environment in programs ranging in size from 11 to 16 family units. Such services support a resident's recovery from alcohol and/or other drug problems, support the family's recovery from the effects of substance-related and addictive disorders, and encourage movement toward independence.

Family Sober Living Program . A transitional sober living environment for families recovering from substance-related and addictive disorders that assists and supports families in their recovery to achieve self-sufficiency and independent living. This is achieved through (a) case management services within an alcohol- and drug-free living environment that supports the active search for permanent housing and employment and reinforces recovery; and (b) establishing community-based supports to maintain ongoing goals in the recovery process.

Governmental Unit . The Commonwealth, any board, commission, department, division, or agency of the Commonwealth and any political subdivision of the Commonwealth.

Group Counseling . Therapeutic counseling to an unrelated group of people having a common problem or concern that is associated with substance-related and addictive disorders.

Individual Consideration (I.C) . Payment rates for certain services are designated as individual consideration (I.C.). Where I.C. rates are designated, the purchasing governmental unit will determine the appropriate payment as the actual cost of the item or service as evidenced by invoice, published tuition amount, or other price reasonably obtained by a competitive market for the product or service.

Individual Counseling . A therapeutic meeting between the staff of an Eligible Provider and an individual whose primary complaint or concern is his or her substance-related and addictive disorder or that of a significant other.

Individual Assessment Session . A meeting between a clinician and a client to explore the client's current and past substance-related and addictive disorders, psychosocial history, and motivation for change and to make recommendations for an appropriate level of care for treatment. Full assessment documentation is required.

In-home Therapy. A therapeutic counseling service for substance-related and addictive disorders provided in the home by a clinician. In-home therapy is allowed when specific barriers to accessing services at a clinic site are identified for the client. The need for in-home therapy is reassessed at least every 90 days.

3/10/17 101 CMR - 903 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.02: continued

Jail Diversion . A continuum of services prescribed by the courts as an alternative to jail. The first phase consists of approximately three months in a 24-hour, structured, therapeutic, semi-secure residential setting. Evidence-based treatment services are provided to address resistance to care, co-occurring disorders, criminogenic issues, and prepare individuals to engage in ongoing substance-related and addictive disorders treatment. In the second phase, a case manager is assigned to each client for approximately nine months to assist the client's transition to community treatment and ancillary services.

MassStart . A community-based program designed to keep high-risk youth free of substance abuse and criminal involvement based on the assumption that, while all youth are vulnerable to experimentation with substances, those who lack effective human and social support are especially vulnerable. The program seeks to build resiliency in youth, strengthen families, and make neighborhoods safer for children and their families. Additionally, it aims to decrease individual, peer group, family, and neighborhood risk factors through case management services designed according to the concept of positive youth development. This program is designed to work with youth to improve attachment to adults, attachment to pro-social norms, school performance, and participation in pro-social activities/peer groups.

Medically Monitored Inpatient Detoxification Services . Acute detoxification and related treatment services provided to individuals whose current or potential withdrawal symptoms constitute a risk to the patient's health and well-being and require medical monitoring. These services are governed by the Massachusetts Department of Public Health at 105 CMR 164.133(A)(1)(b): Medically Monitored Inpatient Detoxification Services .

Medical Services Visit . A medical services visit to an opioid treatment program includes medical assessment, medical case management, and dispensing of medication to opiate-addicted individuals who require support of opioid substitution therapy, as noted in the Department of Public Health's standard RFR program description of Opioid Treatment Programs and pursuant to 105 CMR 164.302: Provision of Services - All Opioid Treatment and 164.303: Additional Service Requirements for Opioid Detoxification .

Operating Agency . An individual, group, partnership, corporation, trust, or other legal entity that operates a program.

Opioid Treatment . Medically monitored treatment services for opiate-addicted clients that combines medical and pharmacological interventions with professional counseling, education, and vocational services. Services are offered on both a short-term (detoxification) and long-term (treatment) basis. Any individuals who are addicted to opiate drugs and are medically screened as appropriate are eligible.

P4P Eligible Provider (P4PEP) . A provider that provides a P4P eligible service.

P4P Eligible Service . A substance-related and addictive disorders treatment class of services, such as Transitional Support Services or Acute Treatment Services, that has been identified by the purchasing governmental unit as eligible for participation in a P4P program.

Pay for Performance (P4P) . A value-based purchasing program implemented by a purchasing governmental unit to pay providers to perform activities related to improving the quality of care delivered to clients.

Postpartum Enhancement for Residential Rehabilitation Services . A supplemental rate to cover the additional staffing and other costs necessary to meet the needs of postpartum women and their infants in the program.

Pregnant Enhancement for Residential Rehabilitation Services . A supplemental rate to cover the additional staffing and other costs necessary to meet the needs of pregnant women in the program.

Provider . Any individual, group, partnership, trust, corporation, or other legal entity that offers services for purchase by a governmental unit and that meets the conditions of purchase or licensure that have been or may be adopted by a purchasing governmental unit.

3/10/17 101 CMR - 904 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.02: continued

Psycho-educational Group . An educational group that provides intervention and motivation for individuals who may need substance-related and addictive disorders treatment/intervention services or who are family members of those in need of addiction treatment services.

Publicly Assisted Client . A person who receives program services for which a governmental unit is liable, in whole or in part, under a statutory program of financial assistance.

Purchasing Governmental Unit . A governmental unit that has purchased or is purchasing service units from an eligible provider.

Recovery Coaching . A non-clinical service provided by a trained recovery advocate who provides guidance and coaching for individuals to meet their recovery goals.

Related Party . A person or organization that is associated or affiliated with, has control of, or is controlled by the operating agency or any director, stockholder, partner, or administrator of the operating agency by common ownership or control or in a manner specified in §§ 267(b) and (c) of the Internal Revenue Code of 1954, provided, however, that 10% is the operative factor as set out in §§ 267(b)(2) and (3) and provided further that the definition of "family members" found in § 267(c)(4) of said code includes the following for the purpose of 101 CMR 346.00: (a) husband and wife; (b) natural parent, child, and sibling; (c) adopted child and adoptive parent; (d) stepparent and stepchild; (e) father-in-law, mother-in-law, sister-in-law, brother-in-law, son-in-law, and daughter-in- law; and (f) grandparent and grandchild.

Reporting Year . The operating agency's fiscal year for which costs incurred are reported to the Operational Services Division on the Uniform Financial Statements and Independent Auditor's Report (UFR), normally July 1 st to June 30 th .

Residential Rehabilitation . The program of services defined as organized substance-related and addictive disorders treatment and education services featuring a planned program of care in a 24-hour residential setting. These services are provided to clients who require safe and stable living environments in order to develop their recovery skills. Types of residential rehabilitation services are those designed for adult individuals, adults with their families, adolescents, and driving under the influence second offenders pursuant to the Massachusetts Department of Public Health at 105 CMR 164.000: Licensure of Substance Abuse Treatment Programs .

Second Offender Driver Alcohol Education Residential Rehabilitation . The program of services described in M.G.L. c. 90, § 24 and provided though licensed residential counseling programs to driving under the influence second offenders.

Substance-selated and Addictive Disorders Outpatient Counseling . The services defined by the Massachusetts Department of Public Health at 105 CMR 164.200: Outpatient Services .

Supportive Case Management . A program for individuals and families residing in recovery-focused transitional and permanent housing settings that includes care coordination, recovery support, housing stabilization, and facilitated access to mainstream benefits, especially primary health care. There are seven services for supportive case management: Permanent Adult, Permanent Families, Permanent Young Adults, Transitional Adults, Transitional Families and Transitional Young Adults, and Low Threshold.

Telephone Recovery Support . A telephone support service provided by a counselor who is trained in an evidence-based model of telephone recovery support.

Transitional Support Services . Residential case management services provided to bridge the gap between detoxification and residential rehabilitation and/or community ambulatory aftercare services. This level of service includes four hours of nursing services seven days a week.

3/10/17 101 CMR - 905 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.02: continued

Transitional Support Services with Special Programming for Women . Residential case management services provided to bridge the gap between detoxification and residential rehabilitation and/or community ambulatory aftercare services, and that focus on the unique needs of women; are structured in a smaller residential setting (16 versus 36 beds); and offer more intensive services (more counseling and smaller staff/client ratio).

Treatment for Civilly Committed Persons Add-on . An enhanced level of care that includes transportation, extra medical, psychiatric, recovery specialist care, family counseling, and additional administrative staff for the intake for all civilly committed persons in the Commonwealth. May be purchased in addition to Medically Monitored Detoxification Services, Clinically Managed Detoxification Services, and Transitional Support Services for individuals who have been civilly committed by a district court of the Commonwealth, under M.G.L. c. 123, § 35.

346.03: Filing and Reporting Requirements

(1) Reporting for Annual Review . Unless exempted in 101 CMR 346.03, each operating agency must, on or before the 15 th day of the fifth month after the end of its fiscal year, submit to EOHHS (a) a copy of its Uniform Financial Statement and Independent Auditor's report completed in accordance with the filing requirements of the Operational Services Division, Executive Office for Administration and Finance; and (b) a supplemental program questionnaire, if requested by EOHHS.

(2) Penalties . The purchasing governmental unit may reduce the payment rates by 15% for any provider that fails to submit required information to EOHHS. The purchasing governmental unit will notify the provider in advance of its intention to impose a rate reduction.

(3) General Provisions . (a) Accurate Data . All reports, schedules, additional information, books, and records that are filed or made available to EOHHS must be certified under pains and penalties of perjury as true, correct and accurate by the Executive Director or Chief Financial Officer of the operating agency. (b) Examination of Records . Each operating agency must make available all records relating to its operation and all records relating to a realty service or related party or holding company or any entity in which there may be a common ownership or interrelated directorate upon request of EOHHS for examination. (c) Field Audits . EOHHS may conduct a field audit. EOHHS will make reasonable attempts to schedule an audit at the mutual convenience of both parties.

(4) Additional Information Requested by EOHHS . Each operating agency must file such additional information as EOHHS may require no later than 21 days after the date of mailing of that written request. If EOHHS's request for the additional information and/or documentation is not fully satisfied through the submission of written explanation(s) and/or documentation within 21 days of the mailing of that request, all costs relative to that request will be excluded from rate development by EOHHS.

346.04: Rate Provisions

(1) Services Included in the Rate . The approved rate includes payment for all care and services that are part of the program of services of an eligible provider, as explicitly set forth in the terms of the purchase agreement between the eligible provider and the purchasing governmental unit(s).

(2) Reimbursement as Full Payment . Each eligible provider must, as a condition of acceptance of payment made by any purchasing governmental units for services rendered, accept the approved program rate as full payment and discharge of all obligations for the services rendered. Payment from any other sources will be used to offset the amount of the purchasing governmental unit's obligation for services rendered to the publicly assisted client.

3/10/17 101 CMR - 906 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

(3) Payment Limitations . No purchasing governmental unit may pay less than or more than the approved program rate except as provided in 101 CMR 346.04(2) and (5).

(4) Approved Rates . The approved rate is the lower of the provider's charge or amount accepted as payment from another payer or the rate listed in 101 CMR 346.04. Refer to purchasers' manuals for special coding instructions and limitations on number of units. (a) Rates Effective January 1, 2017 .

Code Rate Description

Inpatient Services H0010 $190.48 Alcohol and/or drug services; subacute detoxification (residential addiction program inpatient) (Clinically Managed Detoxification Services) H0011 $299.91 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (Medically Monitored Inpatient Detoxification Services, Facility with 37 or fewer licensed beds) H0011 $270.37 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (Medically Monitored Inpatient Detoxification Services, Facility with more than 37 licensed beds) H0011-H9 $35.07 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (court ordered) (Treatment for Civilly Committed Persons Add-on)

Residential Services H0018 $133.56 Behavioral health; short-term residential (nonhospital residential treatment program), per diem (Transitional Support Services, includes room and board) H0018-H9 $92.33 Behavioral health; short-term residential (nonhospital residential treatment program), per diem (court ordered) (Second Offender - Driver Alcohol Education Residential, includes room and board) H2034 $100.08 Alcohol and/or drug abuse halfway house services, per diem (Residential Rehabilitation) H0019-HD $25.57 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (court ordered) (Residential Rehabilitation Pregnant Enhancement) H0019-TH $81.70 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (obstetrical treatment/services, prenatal or postpartum) (Residential Rehabilitation Postpartum Enhancement) H0019-HV $40.85 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (Residential Rehabilitation Child Enhancement) H0019-H9 $155.72 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (court ordered) (Jail Diversion-Phase I) H0006-H9 $52.60 Alcohol and/or drug services; case management (court ordered) (Jail Diversion - Phase II, per hour) H0019-HR $168.23 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (family/couple with client present) (Family Sober Living) H0019-HF $254.87 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 11 Families) H0019-HF $238.73 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 12 Families) H0019-HF $225.08 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 13 Families)

3/10/17 101 CMR - 907 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

Code Rate Description (continued)

H0019-HF $213.37 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 14 Families) H0019-HF $203.23 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 15 Families) H0019-HF $194.35 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 16 or More Families) H0047-HR $49.20 Alcohol and/or drug abuse services, not otherwise specified (substance abuse program) (Family Residential 2 nd Partner Enhancement, per diem )

Opioid Treatment Services Medical Services Visit H0020 $10.49 Alcohol and/or drug services; methadone administration and/or service (provision of the drug by a licensed program) (dose only visit)

Counseling H0004-TF $17.41 Behavioral health counseling and therapy, per 15 minutes (opioid individual counseling, intermediate level of care, four units max per day). H0005-HQ $13.81 Alcohol and/or drug services; group counseling by a clinician (opioid group counseling, per 45 minutes, two units max per day). T1006-HR $37.30 Alcohol and/or substance abuse services, family/couple counseling (opioid family/couples counseling, per 30 minutes, two units max per day)

Ambulatory Services Outpatient Counseling 90882-HF $34.51 Environmental intervention for medical management purposes on a psychiatric patient's behalf with agencies, employers, or institutions (substance abuse program) (case consultation, per 30 minutes) H0001 $17.25 Alcohol and/or drug assessment (per 15 minutes) H0004 $17.25 Behavioral health counseling and therapy, per 15 minutes (individual counseling) H0005 $13.81 Alcohol and/or drug services; group counseling by a clinician (per 45 minutes) T1006 $37.30 Alcohol and/or drug abuse services; family/couple counseling (per 30 minutes) H2015-HF $10.19 Comprehensive community support services, per 15 minutes (Telephone Recovery support service by a counselor trained in evidence-based model) H2019-HF $20.23 Therapeutic behavioral services, per 15 minutes (in-home counseling by a clinician) H2027 $3.70 Psychoeducational service, per 15 minutes (Educational and motivational nonclinical group, per client) H0038-HF $13.97 Self-help/peer services, per 15 minutes (Recovery Coaching- Substance-related and addictive disorders service; recovery support service by a recovery advocate trained in Recovery Coaching)

Clinical Case Management H0006-HO $20.38 Alcohol and/or drug services; case management (Clinical Case Management -Master's level- Substance-related and addictive disorders service by master's level clinician that uses an evidenced-based model that integrates clinical and case management services, per 15 minutes) H0006-HN $13.18 Alcohol and/or drug services, case management (Clinical Case Management - Non-master's level- Substance-related and addictive disorders service by non-master's level counselor to engage and link client to treatment and community resources, per 15 minutes) H0001-H9 $17.25 Alcohol and/or drug assessment (court-ordered) (per 15 minutes) H0004-H9 $17.25 Behavioral health counseling and therapy, per 15 minutes (court ordered) (individual counseling)

3/10/17 101 CMR - 908 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

Code Rate Description (continued)

H0005-H9 $4.60 Alcohol and/or drug services; group counseling by a clinician (court-ordered) (per 15 minutes)

Day Treatment H2012-HF $72.79 Behavioral health day treatment, per hour (substance abuse program) (3.5 hours)

Services for Pregnant/Postpartum Clients Inpatient Services H0011-HD $305.55 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (pregnant/parenting women's program) (Medically Monitored Inpatient Detoxification Services, Facility with 37 or fewer licensed beds) H0011-HD $277.30 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (pregnant/parenting women's program) (Medically Monitored Inpatient Detoxification Services, Facility with more than 37 licensed beds)

Outpatient Services H0004-HD $17.25 Behavioral health counseling and therapy, per 15 minutes (pregnant/parenting women's program) (individual counseling) H0005-HD $13.81 Alcohol and/or drug services; group counseling by a clinician (pregnant/parenting women's program) (per 45 minutes) H0006-HD $13.18 Alcohol and/or drug services; case management (pregnant/parenting women's program) (per 15 minutes) T1006-HD $37.30 Alcohol and/or substance abuse services, family/couple counseling (pregnant/parenting women's program) (per 30 minutes)

Day Treatment H1005 $69.01 Prenatal care, at-risk enhanced service package (includes H1001-H1004) (prenatal care, at risk enhanced service, antepartum management, care coordination, education, follow-up home visit) (individual counseling, per hour) H1005-HQ $72.79 Prenatal care, at-risk enhanced service package (includes H1001-H1004) (group setting) (prenatal care, at risk enhanced service, antepartum management, care coordination, education, follow-up home visit, day treatment, per 3.5 hours) H0001-U1 $97.00 Alcohol and/or drug assessment (buprenorphine and naltrexone medical evaluation) H0033 $32.90 Oral medication administration, direct observation (includes observation for first dosage of buprenorphine only) H0033-U2 $10.36 Oral medication administration, direct observation (daily buprenorphine dosing, does not include two-hour observation) 96372 $18.23 Therapeutic, prophylactic, or diagnostic injection (specify substance or drug); subcutaneous or intramuscular (naltrexone) J0571 $0.80 Buprenorphine, oral, 1 mg J0572 $4.34 Buprenorphine/naloxone, oral, less than or equal to 3 mg buprenorphine J0573 $7.76 Buprenorphine/naloxone, oral, greater than 3 mg, but less than or equal to 3.1 to 6 mg J0574 $7.76 Buprenorphine/naloxone, oral, greater than 6 mg, but less than or equal to 10 mg buprenorphine J0575 $15.52 Buprenorphine/naloxone, oral, greater than 10 mg buprenorphine

(b) Rates Effective July 1, 2017 .

Code Rate Description

3/10/17 101 CMR 908.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

Code Rate Description (continued)

H0011 $270.37 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (Medically Monitored Inpatient Detoxification Services, Facility with more than 37 licensed beds) H0011-H9 $35.07 Alcohol and/or drug services; acute detoxification (residential addiction program inpatient) (court ordered) (Treatment for Civilly Committed Persons Add-on)

Residential Services H0018 $133.56 Behavioral health; short-term residential (nonhospital residential treatment program), per diem (Transitional Support Services, includes room and board) H0018-H9 $94.59 Behavioral health; short-term residential (nonhospital residential treatment program), per diem (court ordered) (Second Offender-driver Alcohol Education Residential, includes room and board) H2034 $102.53 Alcohol and/or drug abuse halfway house services, per diem (Residential Rehabilitation) H0019-HD $26.20 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (pregnant/parenting women's program) (Residential Rehabilitation Pregnant Enhancement) H0019-TH $83.70 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (obstetrical treatment/services, prenatal or postpartum) (Residential Rehabilitation Postpartum Enhancement) H0019-HV $41.85 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (Residential Rehabilitation Child Enhancement) H0019-H9 $159.54 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (court ordered) (Jail Diversion - Phase I) H0006-H9 $53.89 Alcohol and/or drug services; case management (court ordered) (Jail Diversion - Phase II, per hour) H0019-HR $172.36 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (family/couple with client present) (Family Sober Living) H0019-HF $261.12 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 11 Families) H0019-HF $244.58 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 12 Families) H0019-HF $230.60 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 13 Families) H0019-HF $218.60 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 14 Families) H0019-HF $208.21 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 15 Families) H0019-HF $199.12 Behavioral health; long-term residential (nonmedical, nonacute care in a residential treatment program where stay is typically longer than 30 days), without room and board, per diem (substance abuse program) (Family Residential Treatment for 16 or More Families)

3/10/17 101 CMR 908.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

Code Rate Description (continued)

H0047-HR $50.41 Alcohol and/or drug abuse services, not otherwise specified (family/couple with client present) (Family Residential 2 nd Partner Enhancement, per diem )

Opioid Treatment Services Medical Services Visit H0020 $10.49 Alcohol and/or drug services; methadone administration and/or service (provision of the drug by a licensed program) (dose only visit)

Counseling H0004-TF $17.41 Behavioral health counseling and therapy, per 15 minutes (opioid individual counseling, intermediate level of care, four units max per day) H0005-HQ $13.81 Alcohol and/or drug services; group counseling by a clinician (group setting) (per 45 minutes, opioid group counseling, two units max per day) T1006-HR $37.30 Alcohol and/or substance abuse services, family/couple counseling (family/couple with client present) (opioid family/couples counseling, per 30 minutes, two units max per day)

Ambulatory Services Outpatient Counseling 90882-HF $34.51 Environmental intervention for medical management purposes on a psychiatric patient's behalf with agencies, employers, or institutions (substance abuse program) (Consultation with another professional or involved party to clarify and coordinate the treatment of an individual receiving substance-related and addictive disorders treatment services, case consultation, per 30 minutes) H0001 $17.25 Alcohol and/or drug assessment (per 15 minutes) H0004 $17.25 Behavioral health counseling and therapy, per 15 minutes (individual counseling) H0005 $13.81 Alcohol and/or drug services; group counseling by a clinician (per 45 minutes) T1006 $37.30 Alcohol and/or substance abuse services; family/couple counseling (per 30 minutes) H2015-HF $10.19 Comprehensive community support services, per 15 minutes (substance abuse program) (Telephone Recovery support service by a counselor trained in evidence-based model) H2019-HF $20.23 Therapeutic behavioral services, per 15 minutes (substance abuse program) (in-home counseling by a clinician) H2027 $3.70 Psychoeducational service, per 15 minutes (Educational and motivational nonclinical group, per client) H0038-HF $13.97 Self-help/peer service, per 15 minutes (substance abuse program) (recovery support service by a recovery advocate trained in Recovery Coaching)

Clinical Case Management H0006-HO $20.38 Alcohol and/or drug services; case management (Substance-related and addictive disorders service by master's level clinician that uses an evidenced-based model that integrates clinical and case management services, per 15 minutes) H0006-HN $13.18 Alcohol and/or drug services; case management (Substance-related and addictive disorders service by non-master's level counselor to engage and link client to treatment and community resources, per 15 minutes) H0001-H9 $17.25 Alcohol and/or drug assessment (court-ordered) (per 15 minutes) H0004-H9 $17.25 Behavioral health counseling and therapy, per 15 minutes (court ordered) (individual counseling) H0005-H9 $4.60 Alcohol and/or drug services; group counseling by a clinician (court-ordered) (per 15 minutes)

Day Treatment H2012-HF $72.79 Behavioral health day treatment (substance abuse program) (3.5 hours)

3/10/17 101 CMR 908.3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

Code Rate Description (continued)

Outpatient Services H0004-HD $17.25 Behavioral health counseling and therapy, per 15 minutes (pregnant/parenting women's program) (individual counseling) H0005-HD $13.81 Alcohol and/or drug services; group counseling by a clinician (pregnant/parenting women's program) (per 45 minutes) H0006-HD $13.18 Alcohol and/or drug services; case management (pregnant/parenting women's program) (per 15 minutes) T1006-HD $37.30 Alcohol and/or substance abuse services; family/couple counseling (pregnant/parenting women's program) (per 30 minutes)

Day Treatment H1005 $69.01 Prenatal care, at-risk enhanced service package (includes H1001-H1004) (prenatal care, at-risk enhanced service, antepartum management, care coordination, education, follow-up home visit, individual counseling, per hour) H1005-HQ $72.79 Prenatal care, at-risk enhanced service package (includes H1001-H1004) (group setting) (prenatal care, at-risk enhanced service, antepartum management, care coordination, education, follow-up home visit, day treatment, per 3.5 hours) H0001-U1 $97.00 Alcohol and/or drug assessment (buprenorphine and naltrexone medical evaluation) H0033 $32.90 Oral medication administration, direct observation (includes observation for first dosage of buprenorphine only) H0033-U2 $10.36 Oral medication administration, direct observation (daily buprenorphine dosing, does not include two-hour observation) 96372 $18.23 Therapeutic, prophylactic, or diagnostic injection (specify substance or drug); subcutaneous or intramuscular (naltrexone) J0571 $0.80 Buprenorphine, oral, 1 mg J0572 $4.34 Buprenorphine/naloxone, oral, less than or equal to 3 mg buprenorphine J0573 $7.76 Buprenorphine/naloxone, oral, greater than 3 mg, but less than or equal to 3.1 to 6 mg J0574 $7.76 Buprenorphine/naloxone, oral, greater than 6 mg, but less than or equal to 10 mg buprenorphine J0575 $15.52 Buprenorphine/naloxone, oral, greater than 10 mg buprenorphine

Supportive Case Management Services

Unit Rate Service

Enrolled Client Day $11.03 Permanent Adult Enrolled Client Day $22.24 Permanent Families Enrolled Client Day $32.16 Permanent Young Adult Enrolled Client Day $13.04 Transitional Adult Enrolled Client Day $26.26 Transitional Families Enrolled Client Day $36.18 Transitional Young Adult Month $2,449 House Manager Add-on Month $3,477 Outreach and Staffing Supports Enrolled Client Day $45.04 Low Threshold N/A I.C. Extraordinary Circumstances /Flex Funding Month $14,895 MassStart Program

3/10/17 101 CMR 908.4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 101 CMR: EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES

346.04: continued

(5) Pay for Performance (P4P) Incentive Payments. Subject to a purchasing governmental unit's determination of the availability of funds, P4P providers receive incentive payments through the Pay for Performance (P4P) Program as defined by the purchasing governmental unit and as follows: (a) Performance Indicators. Each performance indicator is calculated to produce aggregate numbers that will be used to establish baseline information, attainment thresholds and performance benchmarks, relative to the distribution of P4P eligible providers. Performance indicator rates are calculated by dividing the numerator by the denominator for each measure to obtain a percentage. A measure's denominator is the number of clients served by a P4P eligible provider who are eligible for the performance measure and the numerator is the subset of the denominator who meets the measure's specific performance criteria. (b) Payment Eligibility. To be eligible for payment for a performance indicator a P4P eligible provider must 1. be an eligible provider as of a certain date, the date to be established by the purchasing governmental unit on an annual basis; and 2. have a minimum number (minimum to be established by the purchasing governmental unit) of clients who must meet specific performance indicator criteria during the date range for which performance is being measured. (c) Performance Score. For each performance indicator for which the P4P eligible provider is eligible per 101 CMR 346.04(5), P4P eligible providers will earn points for either achieving a benchmark or for improving their performance over their previous year's performance. Points will be awarded to a P4P eligible provider for each indicator, according to the methodologies in 101 CMR 346.04(5)(c). 1. Attainment Points. P4P eligible providers may earn points based on where the P4P eligible provider's performance falls, relative to the attainment threshold and to the benchmark set for each performance indicator. The attainment threshold is set at the median of all P4P eligible providers' performance rates. The benchmark is set at the 75th percentile of all P4P eligible providers' performance rates. P4P eligible providers will receive attainment points between the range of zero and ten for each performance indicator, as noted in 101 CMR 346.04(5)(c). a. If a P4P eligible provider's performance rate is below the attainment threshold, it will receive zero attainment points. b. If a P4P eligible provider's performance rate is greater than or equal to the benchmark it will receive ten attainment points. c. If a P4P eligible provider's performance rate is below the benchmark, but at or above the attainment threshold, the P4P eligible provider will receive anywhere from one to up to but less than ten attainment points, as calculated using the following formula.

P4P Eligible Provider's Attainment Points =

2. Improvement Points. P4P eligible providers may earn improvement points if the P4P eligible provider has demonstrated improvement from its previous year's performance rate. The P4P eligible provider's improvement points will be calculated based on the following formula:

P4P Eligible Provider's Improvement Points =

346.04: continued

3. P4P Eligible Provider Awarded Points. For each performance indicator, the awarded points are the higher of the attainment or improvement points earned by the P4P eligible provider. In no event will the number of points awarded exceed ten for each performance indicator. Each performance indicator's awarded points are then summed across all the indicators a P4P eligible provider is eligible for to determine the total awarded points for a P4P eligible provider.

P4P Eligible Provider's Awarded Points = (Points Awarded Indicator1) + (Points Awarded Indicator 2) + ………(Points Awarded Indicator N)

4. P4P Eligible Provider Potential Points. The total potential points for a P4P eligible provider is determined by multiplying the number of performance indicators the P4P eligible provider is eligible for (see 101 CMR 346.04(5) by the maximum number of points per performance indicator 10.

Potential Points = (Number of Performance Indicators for which a P4P Eligible Provider is Eligible) X 10

5. P4P Eligible Provider Performance Score. The P4P eligible provider's performance score reflects a percentage between 0% and 100%. The P4P eligible provider awarded points is divided by the P4P eligible provider potential points to obtain the P4P eligible provider performance score based on the following formula.

P4P Eligible Provider Performance Score = (P4P Eligible Provider Awarded Points) / (P4P Eligible Provider Potential Points)

(d) Per Client Payment Amount. The per client payment amount is determined as follows. The per client payment amount is determined by dividing the aggregate dollar figure determined by the purchasing governmental unit(s) to be available for incentive payments by the statewide adjusted clients calculated as described below.

Per Client Payment Amount = Aggregate Dollar Amount Available for Incentive Payments Statewide Adjusted Clients

1. Statewide Adjusted Clients. The statewide adjusted clients figure is calculated by summing over all P4P eligible providers, each P4P eligible provider's adjusted clients number.

Statewide Adjusted Clients = (P4PEP 1 Adjusted Clients) + (P4PEP 2 Adjusted Clients) + …… (P4PEP N Adjusted Clients)

2. P4P Eligible Provider Adjusted Clients. Each P4P eligible provider's number of clients served during the measurement period is multiplied by the P4P eligible provider's performance score to derive the "adjusted clients" figure. (e) P4P Eligible Provider Total Performance Indicator Payment Amount. A P4P eligible provider's performance indicator incentive payment is calculated as the product of 1. the P4P eligible provider's performance score calculated as per 101 CMR 346.04(5)(c); 2. the number of P4P eligible provider clients served during the measurement period; and 3. the per member payment amount that is calculated as per 101 CMR 346.04(4).

P4P Eligible Provider Total Performance Indicator Payment Amount = (P4P Eligible Provider Performance Score) x (number of P4P Eligible Provider clients served) x (Per Member Payment Amount)

346.05: Severability

The provisions of 101 CMR 346.00 are severable. If any provision of 101 CMR 346.00 or application of such provision to any eligible provider or fiscal intermediary is held invalid or unconstitutional, such determination will not affect the validity or constitutionality of any remaining provisions of 101 CMR 346.00 or application of such provisions to eligible providers or fiscal intermediaries in circumstances other than those held invalid.

REGULATORY AUTHORITY

101 CMR 346.00: M.G.L. c 118E.

NON-TEXT PAGE

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 155

CHAPTER TITLE: Inmate Six-Part Folder

AGENCY: Department of Correction

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. To establish rules and regulations for the maintenance of inmate case records and, specifically, the inmate six-part folder.

REGULATORY AUTHORITY: M.G.L. c. 124, § 1(f), (g), and (j).

AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Department of Housing and Community Development (LGAC)8/12/2016; Massachusetts Municipal Association 8/12/2016

Date of public hearing or comment period: September 27, 2016

For the first five years:

No fiscal effect: none

Date amended small business impact statement was filed: 02/13/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 14 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 1 - 4 1 - 4 9 & 10 9 & 10 15 & 16 15 & 16 31 - 34.2 31 - 34 02/14/2017 mrs

Table of Contents

Page

(103 CMR 1.00 THROUGH 130.00: RESERVED) 21

103 CMR 131.00: NEWS MEDIA RELATIONS 23

Section 131.01: Purpose 23 Section 131.02: Statutory Authorization 23 Section 131.03: Cancellation 23 Section 131.04: Applicability 23 Section 131.05: Access to Policy 23 Section 131.06: Definitions 23 Section 131.07: News Release Statements 25 Section 131.08: News Media Access to Correctional Institutions 26 Section 131.09: Evaluation of Access Request 27 Section 131.10: On Site Interviews of Inmates in Correctional Institutions 27 Section 131.11: Federal or Other Out-of-State Inmate Interviews 28.1 Section 131.12: Employee Interviews 28.1 Section 131.13: Documentaries 28.1 Section 131.14: Requests for Public Record Information 28.1 Section 131.15: Responsible Staff 28.2 Section 131.16: Annual Review 28.2 Section 131.17: Severability 28.2

(103 CMR 132.00 THROUGH 154.00: RESERVED) 29

103 CMR 155.00: INMATE SIX-PART FOLDER 31

Section 155.01: Purpose 31 Section 155.02: Cancellation 31 Section 155.03: Applicability 31 Section 155.04: Access 31 Section 155.05: Definitions 31 Section 155.06: Six-part Folder 32 Section 155.07: Detainee Record 33 Section 155.08: Preparation and Maintenance 33 Section 155.09: Confidentiality and Accessibility 33 Section 155.10: Auditing of the Six-part Folder 34 Section 155.11: Safeguards Against Loss/Destruction 34 Section 155.12: Outdated Inmate Records 34 Section 155.13: Responsible Staff 34 Section 155.14: Annual Review 34 Section 155.15: Severability 34

(103 CMR 156.00: RESERVED) 35

103 CMR 157.00: ACCESS TO AND DISSEMINATION OF EVALUATIVE INFORMATION 37

Section 157.01: Purpose 37 Section 157.02: Cancellation 37 Section 157.03: Applicability 37 Section 157.04: Access 37 Section 157.05: Definitions 37 Section 157.06: Access to Intelligence Information 38 Section 157.07: Access to Evaluative Information by the Individual 38 Section 157.08: Access to Evaluative Information by Legal Representatives of the Individual 39

3/10/17 103 CMR - 1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents

Page 103 CMR 157.00: ACCESS TO AND DISSEMINATION OF EVALUATIVE INFORMATION (continued)

Section 157.09: Access to Evaluative Information by Third Parties 40 Section 157.10: Access to Evaluative Information by Criminal Justice Agencies 40 Section 157.11: Receipt of a Copy of Evaluative Information by the Individual 40 Section 157.12: Appeal Process 41 Section 157.13: Challenges to the Accuracy or Completeness of Evaluative Information 41 Section 157.14: Time Limits 41 Section 157.15: Responsible Staff 41 Section 157.16: Annual Review Date 41 Section 157.17: Severability 42

(103 CMR 158.00 THROUGH 179.00: RESERVED) 49

103 CMR 180.00: RESEARCH AND EVALUATION 51

Section 180.01: Purpose 51 Section 180.02: Statutory Authorization 51 Section 180.03: Cancellation 51 Section 180.04: Applicability 51 Section 180.05: Access 51 Section 180.06: Definitions 51 Section 180.07: Medical Research 52 Section 180.08: Application to Conduct Outside Social Science Research 52 Section 180.09: Procedure For Obtaining Approval to Conduct Outside Social Science Research 54 Section 180.10: Conduct of the Outside Social Science Research 55 Section 180.11: Follow-up Reports on Outside Social Science Research 55 Section 180.12: Consideration of Other Research Related Requests 56 Section 180.13: Violations of Outside Social Science Research 56 Section 180.14: Department Social Science Research 56 Section 180.15: Responsible Staff 56.1 Section 180.16: Annual Review 56.1 Section 180.17: Severability 56.1

(103 CMR 181.00 THROUGH 402.00: RESERVED) 57

103 CMR 403.00: INMATE PROPERTY 59

Section 403.01: Purpose 59 Section 403.02: Statutory Authorization 59 Section 403.03: Cancellation 59 Section 403.04: Applicability 59 Section 403.05: Access to Regulations 60 Section 403.06: Definitions 60 Section 403.07: Property Storage Area 60 Section 403.08: Appointment and Duties of the Institution Property Officer 60

3/10/17 103 CMR - 2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents Page

103 CMR 403.00: INMATE PROPERTY POLICY (continued)

Section 403.09: Approved Property for Inmates Being Transported 60 Section 403.10: Approved Inmate Property By Security Levels 61 Section 403.11: Additional Property Authorized for Retention by Inmates 66 Section 403.12: Responsibility for Property Retained by Inmates 66 Section 403.13: Incoming Inmate Property 66 Section 403.14: Disposal of Inmate Property 67 Section 403.15: Seized Inmate Property 67 Section 403.16: Long Term Storage of Inmate Property 68 Section 403.17: Transfer or Release of Inmate Property 68 Section 403.18: Property of Escapees or Deceased Inmates 68.1 Section 403.19: Disposal of Unclaimed Inmates Property 68.1 Section 403.20: Liability for Loss, Damage or Destruction of Inmate Property 68.1 Section 403.21: Property Transactions Involving Inmates 68.2 Section 403.22: Time Limits 68.2 Section 403.23: Emergencies 68.2 Section 403.24: Staff Responsibilities 68.2 Section 403.25: Annual Review Date 68.2 Section 403.26: Severability Clause 68.2

(103 CMR 404.00: RESERVED) 69

103 CMR 405.00: INMATE FUNDS 71

Section 405.01: Purpose 71 Section 405.02: Authorization 71 Section 405.03: Cancellation 71 Section 405.04: Applicability 71 Section 405.05: Access 71 Section 405.06: Definitions 72 Section 405.07: Inmate Fund Maintenance 72 Section 405.08: Inmate Wages and Stipends 73 Section 405.09: Mandatory Work Release Deductions 74 Section 405.10: Voluntary Work Release Deductions 75 Section 405.11: Interest Income Earned from Inmate Funds on Deposit 75 Section 405.12: Receipt of Funds Procedure - Inmate Account 75 Section 405.13: Disbursement of Funds - Inmate Account 76 Section 405.14: Additional Internal Control Measures - Disbursements 77 Section 405.15: Disposal of Money Seized as Contraband 78 Section 405.16: Outside Donations to Inmates 78 Section 405.17: Disciplinary Process Sanctioned Reimbursements 78 Section 405.18: Court Assessments and Other Authorized Assessments 78 Section 405.19: Savings Bonds Belonging to Inmates that are Transferred 79 Section 405.20: Money of Escaped or Deceased Inmates 79 Section 405.21: Release of Money Upon Parole or Release from the Department's Custody 79 Section 405.22: Audits of Inmate Account Records 79 Section 405.23: Monthly Reports 79 Section 405.24: Access to Records 80 Section 405.25: Retention of Accounting Records/Source Documents 80 Section 405.26: General Information 80 Section 405.27: Responsible Staff 80 Section 405.28: Annual Review 80 Section 405.29: Severability 80

(103 CMR 406.00 through 409.00: RESERVED) 83

11/19/04 103 CMR - 3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents Page

103 CMR 410.00: SENTENCE COMPUTATION 85

Section 410.01: Purpose 85 Section 410.02: Cancellation 85 Section 410.03: Applicability 85 Section 410.04: Access 85 Section 410.05: Definitions 85 Section 410.06: Determination of Inmate's Status 86 Section 410.07: New Commitments or Admissions 86 Section 410.08: Transfers 87 Section 410.09: Inmates in the Custody of Another Jurisdiction 87 Section 410.10: Additional Data 88 Section 410.11: Forfeiture and Restoration of Good Conduct Credits 88 Section 410.12: Request for Certificates of Discharge or Release 88 Section 410.13: Training 89 Section 410.14: Date Computation Manual 89 Section 410.15: Emergencies 89 Section 410.16: Responsible Staff 89 Section 410.17: Annual Review 89 Section 410.18: Severability 89

103 CMR 411.00: DEDUCTIONS FROM SENTENCE 91

Section 411.01: Purpose 91 Section 411.02: Statutory Authorization 91 Section 411.03: Cancellation 91 Section 411.04: Applicability 91 Section 411.05: Access 91 Section 411.06: Definitions 92 Section 411.07: Eligibility of Inmates to Receive Deductions from Sentence 93 Section 411.08: Programs and Activities 93 Section 411.09: Deductions from Sentence 93 Section 411.10: Procedures for Granting Deductions 93 Section 411.11: Computation 95 Section 411.12: Deduction for Inmates Confined in Facilities Other than State Correctional Facilities 95 Section 411.13: Emergencies 95 Section 411.14: Responsible Staff 96 Section 411.15: Annual Review 96 Section 411.16: Severability 96

103 CMR 412.00 THROUGH 419.00: RESERVED) 105

103 CMR 420.00: CLASSIFICATION 107

Section 420.01: Purpose 107 Section 420.02: Statutory Authorization 107 Section 420.03: Cancellation 107 Section 420.04: Applicability 107 Section 420.05: Access to Regulations 107 Section 420.06: Definitions 107 Section 420.07: Classification System Goals and Objectives 109

3/10/17 103 CMR - 4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents Page

(103 CMR 466.00 THROUGH 470.00: RESERVED) 201

103 CMR 471.00: RELIGIOUS PROGRAMS AND SERVICES 203

Section 471.01: Purpose 203 Section 471.02: Cancellation 203 Section 471.03: Applicability 203 Section 471.04: Access to Regulations 203 Section 471.05: Definitions 203 Section 471.06: Inmate Access to Religious Programs and Services 205 Section 471.07: Supervision of Inmate Religious Programs and Services 206 Section 471.08: Range of Religious Activities and Services 207 Section 471.09: Access of Visiting Clergy 208 Section 471.10: Community Participation in Inmate Religious Activities 208.1 Section 471.11: Access of Volunteer Chaplains 208.1 Section 471.12: Program Assessment and Planning 208.1 Section 471.13: Pre-release Center Application 208.1 Section 471.14: Annual Review Date 208.1 Section 471.15: Severability Clause 208.1 Section 471.16: Emergency 208.2

(103 CMR 472.00 THROUGH 476.00: RESERVED) 209

103 CMR 477.00: AVOCATION PROGRAMS 211

Section 477.01: Purpose 211 Section 477.02: Authorization 211 Section 477.03: Cancellation 211 Section 477.04: Applicability 211 Section 477.05: Access to Policy 211 Section 477.06: Definitions 211 Section 477.07: General Policy 212 Section 477.08: Institution Regulations 212 Section 477.09: Sale of an Avocation or Avocation Materials 213 Section 477.10: General Provisions 213 Section 477.11: Responsible Staff 213 Section 477.12: Review Date 213 Section 477.13: Severability Clause 214

103 CMR 478.00: LIBRARY SERVICES 215

Section 478.01: Purpose 215 Section 478.02: Statutory Authorization 215 Section 478.03: Cancellation 215 Section 478.04: Applicability 215 Section 478.05: Access 215 Section 478.06: Definitions 215 Section 478.07: Staff 216 Section 478.08: Budget 217 Section 478.09: Facilities and Equipment 217 Section 478.10: General Library Services 217 Section 478.11: Legal Services 218 Section 478.12: Operating Procedures 218 Section 478.13: Collection Development 219 Section 478.14: Responsible Staff 219

3/10/17 103 CMR - 9 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents Page

103 CMR 478.00: LIBRARY SERVICES (continued)

Section 478.15: Annual Review 219 Section 478.16: Severability 220

(103 CMR 479.00 through 480.00: RESERVED) 221

103 CMR 481.00: INMATE MAIL 223

Section 481.01: Purpose 223 Section 481.02: Authorization 223 Section 481.03: Cancellation 223 Section 481.04: Applicability 223 Section 481.05: Access to Regulations 223 Section 481.06: Definitions 224 Section 481.07: Institutional Policies 224 Section 481.08: Collection and Distribution of Mail 224 Section 481.09: Amount of Mail 225 Section 481.10: Free Postage for Indigent Inmates 225 Section 481.11: Privileged Mail 225 Section 481.12: Identification and Processing of Privileged Mail 225 Section 481.13: Inspection of Non-Privileged Correspondence and Packages 226 Section 481.14: Reading/Disapproval of Outgoing Non-Privileged Correspondence 226 Section 481.15: Reading/Censoring/Disapproval of Incoming Non- Privileged Correspondence/Publications 227 Section 481.16: Procedural Requirements for Disapproval of Incoming Correspondence/Publications 228 Section 481.17: Procedural Requirements for Disapproval of Outgoing Mail 229 Section 481.18: Return Address on Outgoing Mail 229 Section 481.19: COD Mail Prohibited 229 Section 481.20: Prohibited Correspondence 229 Section 481.21: Prohibition on Inmate-to-Inmate Correspondence 229 Section 481.22: Forwarding Mail 230 Section 481.23: Time Limits 230 Section 481.24: Emergencies 230 Section 481.25: Responsible Staff 230 Section 481.26: Annual Review Date 230 Section 481.27: Severability Clause 230.1

103 CMR 482.00: TELEPHONE ACCESS AND USE 231

Section 482.01: Purpose 231 Section 482.02: Cancellation 231 Section 482.03: Applicability 231 Section 482.04: Access to Regulations 231 Section 482.05: Definitions 231 Section 482.06: Institution Procedures for Inmate Telephone Access and Use 232 Section 482.07: Inmate Telephone Use for Court, Attorney Contact, Consular Officer/Diplomat Contact, Pre-approved Ordained Clergymen, Licensed Psychologist, Social Worker, and/or Mental Health and Human Service Professionals 233 Section 482.08: Telephone Access and Use for Special Status Inmates 233 Section 482.09: Telephone Monitoring 234 Section 482.10: Downloading Recorded Voice Conversations 234 Section 482.11: Responsible Staff 234 Section 482.12: Annual Review Date 234 Section 482.13: Severability Clause 234.1

8/7/09 103 CMR - 10 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents Page

103 CMR 916.00: COUNTY CORRECTIONAL FACILITIES -- MANAGEMENT INFORMATION SYSTEM 307

Section 916.01: Information System Guidelines 307 Section 916.02: Monthly Report of Admissions and Releases 307 Section 916.03: List of Inmates 307

103 CMR 917.00: COUNTY CORRECTIONAL FACILITIES -- RESEARCH 309

Section 917.01: General 309 Section 917.02: Application to Conduct Research 309 Section 917.03: Conduct of Research 309

103 CMR 918.00: COUNTY CORRECTIONAL FACILITIES -- INMATE RECORDS 311

Section 918.01: Case Record Management 311 Section 918.02: Access to Records 311 Section 918.03: Format and Contents of Inmate Case Records 311 Section 918.04: Booking and Intake Information 311 Section 918.05: Mittimus File 312 Section 918.06: Release of Information 312

(103 CMR 919.00: RESERVED) 313

103 CMR 920.00: COUNTY CORRECTIONAL FACILITIES -- PHYSICAL PLANT 315

Section 920.01: General Statement 315 Section 920.02: Building Code Regulations (Required) 315 Section 920.03: Fire Safety Code Regulations (Required) 315 Section 920.04: Facility Perimeter 316 Section 920.05: Intake/Booking and Release Area 316 Section 920.06: Control Center 316 Section 920.07: Cell Design and General Housing Area Requirements 317 Section 920.08: Multiple Occupancy Areas 317 Section 920.09: Special Management/Isolation Cells 318 Section 920.10: Light, Circulation, Temperature, Noise Requirements 318 Section 920.11: Dayrooms, Activity and Exercise Areas 318 Section 920.12: Educational/Vocational and Library Areas 318 Section 920.13: Visiting Area 319 Section 920.14: Kitchen and Dining Areas 319 Section 920.15: Storage and Closet Areas 319 Section 920.16: Administrative and Staff Space 319 Section 920.17: Provisions for Handicapped Persons 319 Section 920.18: Mechanical Equipment Space 319 Section 920.19: Inmate Commissary 320 Section 920.20: Laundry Equipment 320 Section 920.21: Preventive Maintenance Provisions 320

(103 CMR 921.00 through 923.00: RESERVED) 321

3/10/17 103 CMR - 15 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

Table of Contents Page

103 CRM 924.00: COUNTY CORRECTIONAL FACILITIES -- SECURITY AND CONTROL 323

Section 924.01: Physical Security Measures 323 Section 924.02: Security and Control Management 323 Section 924.03: Post Orders 324 Section 924.04: Disorder Management (Required) 324 Section 924.05: Inmate Movement 324 Section 924.06: Searches 325 Section 924.07: Firearms, Ammunition and Chemical Agents (Required) 325 Section 924.08: Disorder Control and Communications Equipment 326 Section 924.09: Use of Force (Required) 327 Section 924.10: Use of Canines 327 Section 924.11: Medical Attention (Required) 328 Section 924.12: Use of Restraint Equipment 328 Section 924.13: Control of Tools, Culinary and Medical Equipment 328 Section 924.14: Control of Keys 329 Section 924.15: Inmate Transportation 329 Section 924.16: Reporting and Inspections 329 Section 924.17: Transportation and Security of Pregnant Inmates 330

(103 CMR 925.00: RESERVED) 331

103 CMR 926.00: COUNTY CORRECTIONAL FACILITIES -- SPECIAL MANAGEMENT INMATES 333

Section 926.01: Requirements 333 Section 926.02: Management and Inspection of Special Management Units 333 Section 926.03: Placement and Review of Inmates in Segregation 334 Section 926.04: Programs and Services for Inmates in Segregation 334

(103 CMR 927.00: RESERVED) 337

103 CMR 928.00: COUNTY CORRECTIONAL FACILITIES -- FOOD SERVICES 339

Section 928.01: Food Service Regulations (Required) 339 Section 928.02: Food Service Administration 339 Section 928.03: Health Protection For Inmates and Staff (Required) 339 Section 928.04: Nutritional Requirements (Required) 339 Section 928.05: Medical Diets (Required) 339 Section 928.06: Religious Diets 340 Section 928.07: Menu Planning 340 Section 928.08: Food Preparation 340 Section 928.09: Serving of Food 340 Section 928.10: Food Storage 340 Section 928.11: Food Service Areas and Equipment 341 Section 928.12: Inspections 341

(103 CMR 929.00 THROUGH 931.00: RESERVED) 343

103 CMR 932.00: COUNTY CORRECTIONAL FACILITIES -- HEALTH CARE SERVICES 345

Section 932.01: Health Policy and Authority 345 Section 932.02: Space and Health Supplies 345 Section 932.03: Health Care Personnel 346 Section 932.04: Health Care Treatment (Required) 346

7/7/14 103 CMR - 16 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

103 CMR 155.00: INMATE SIX-PART FOLDER

Section

155.01: Purpose 155.02: Cancellation 155.03: Applicability 155.04: Access 155.05: Definitions 155.06: Six-part Folder 155.07: Detainee Record 155.08: Preparation and Maintenance 155.09: Confidentiality and Accessibility 155.10: Auditing of the Six-part Folder 155.11: Safeguards Against Loss/Destruction 155.12: Outdated Inmate Records 155.13: Responsible Staff 155.14: Annual Review 155.15: Severability

155.01: Purpose

To establish rules and regulations for the maintenance of inmate case records and, specifically, the inmate six-part folder.

155.02: Cancellation

103 CMR 155.00 cancels all previous Departmental policies, and orders for the maintenance of inmate case records, and, specifically, the inmate six-part folder.

155.03: Applicability

103 CMR 155.00 is applicable to the maintenance of inmate case records, and, specifically, the inmate six-part folder, within the Department of Correction, both at central office and at all institutions.

155.04: Access

103 CMR 155.00 shall be maintained in the Central Policy File of the Department and shall be accessible to all Department employees. 103 CMR 155.00 shall also be maintained in each Superintendent's Central Policy File and in each inmate library.

155.05: Definitions

County Federal Interstate Unit (CFI) . A Unit within the Classification Division responsible for issues related to inmates who are housed in a county, federal or other state jurisdiction, as well as county, federal or other state jurisdiction inmates housed within the Department.

Criminal Justice Information System (CJIS) . Database which offers law enforcement and criminal justice agencies within the state and across the nation secure access 24 hours per day seven days a week to state and interstate criminal history record information, protective orders, missing and wanted person files, driver's license and motor vehicle information, firearms licensing and gun sales transactions, and other critical criminal justice information, via the National Crime Information Center (NCIC) and the National Law Enforcement Telecommunications System (NLETS).

Detainee . A person in custody of the Department of Correction who is not sentenced and is awaiting the outcome of a legal issue.

Detainee Record . A manila folder created to maintain records of detainees.

Index Divider . A spacer that is placed within the positions of the six-part folder to distinguish between sections of documents within each position.

3/10/17 103 CMR - 31 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

155.05: continued

Inmate . For the purposes of 103 CMR 155.00 only, any person serving a sentence under the law or otherwise in the legal custody of the Department of Correction.

Inmate Sentence Listing . The form providing essential inmate sentencing information including the date of imposition of the sentence, any jail credits, effective date of sentence, offense, sentence, sentencing court, and sentencing statute.

Official Version . A statement of the facts upon which the inmate's sentence was based.

Position . One of the six sections which exist in every inmate's six-part folder.

Six-part Folder . An inmate record divided into six categories and the computerized inmate record used by the Department of Correction for the recording and/or filing of documents in accordance with 103 CMR 155.06(3).

155.06: Six-part Folder

(1) Organization . It is the policy of the Department of Correction that each Massachusetts correctional institution shall maintain an inmate record on each inmate within its current population (both sentenced and unsentenced). The sentenced inmate's record shall be a standardized six-part folder containing relevant material related to the inmate's sentencing, CJIS/legal issues, classification, correspondence, discipline and activities, as outlined by 103 CMR 155.00. The six-part folder shall accompany the inmate upon a transfer from one institution to another within the Department of Correction. The six-part folder shall be organized in a manner which will make all data easily accessible for maximum utility, thereby making it an efficient tool for security, classification, investigation, and recording of significant events or correspondence.

(2) Format . The six-part folder shall be divided into six positions. The titles of these positions are as follows: (a) Position I - Sentencing; (b) Position II - Legal/CJIS; (c) Position III - Classification; (d) Position IV - Correspondence; (e) Position V - Disciplinary; and (f) Position VI - Activities.

(3) Content . The specific material described in 103 CMR 155.00 shall be filed in the six-part folder, ordered according to the six-position format, and the material shall include the following: Position I . (a) Sentencing . 103 CMR 155.06(3)(a) shall contain the initial offender face sheet, inmate sentence listing, deduction from sentence (DFS), completed interstate agreement detainer (IAD) paperwork, official version and the inmate appeal form. Position II . (b) CJIS . 103 CMR 155.06(3)(b) shall contain the most recent CJIS, Docket entry sheets, initial CJIS, FBI Report and the inmate's fingerprint card. If the inmate is released, the initial and final release checks/package shall be filed on top, under the position II coversheet. Position III . (c) Classification . 103 CMR 155.06(3)(c) shall contain the inmate's signed personal program plan, inactive visiting card(s), handbook/orientation receipts and general population waivers. Position IV . (d) Correspondence . 103 CMR 155.06(3)(d) shall contain any and all inmate or inmate related co.rrespondence and completed CORI/Evaluative requests. Position V . (e) Disciplinary . 103 CMR 155.06(3)(e) shall contain all original guilty disciplinary packages. Position VI . (f) Activities . 103 CMR 155.06(3)(f) shall contain work/educational release documents and emergency escorted trip requests.

3/10/17 103 CMR - 32 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

155.07: Detainee Record

A detainee record shall be maintained on every detainee. Initial construction of the detainee record shall be performed by Records staff at the institution that receives the detainee. The detainee record shall be a manila folder containing relevant material related to the detainee's confinement within the Department of Correction. The folder shall accompany the detainee upon a transfer from one institution to another within the Department of Correction. Upon release of the detainee, the detainee record shall be maintained at the Department of Correction institution where the detainee was located. Records of released detainees shall be maintained by year of release and by alphabetical order and shall be stored in accordance with the Massachusetts State-wide Record Retention Schedule.

155.08: Preparation and Maintenance

(1) Responsibility . Initial construction of the six-part folder shall be performed by Records staff at the state's committing institutions. The folder shall be transferred whenever the inmate is transferred to another Massachusetts Department of Correction facility. It is the responsibility of the institution and the County Federal Interstate Unit (CFI) Manager or Records Manager/Designee having custody of the inmate to update the six-part folder according to the established format described in 103 CMR 155.07 and 155.08.

(2) Procedure . The creation of a six-part folder shall begin with a tab on the folder. The tab shall be typed and shall contain the inmate's name (last, first, middle initial, his or her commitment number, the number of folders the inmate has ( e.g ., 1 of 2, 2 of 2) and all prior incarcerations. All index dividers shall be labeled in accordance with 103 CMR 155.06(3) and entered into the appropriate positions.

(3) Transfers . The six-part folder shall be made ready and shall accompany the inmate to his or her placement in the newly designated institution. In the case where an inmate is civilly committed to the Massachusetts Treatment Center, his six-part folder shall be immediately forwarded. In the case where an inmate is scheduled to be admitted to an institutional infirmary, Lemuel Shattuck Hospital (LSH) or medical special housing unit in another institution, the inmate's updated case record shall be simultaneously transferred. In the event an inmate is admitted to such medical institution after the transfer, the inmate's updated case record shall be forwarded immediately upon knowledge of the admission. In the case where an inmate is transferred to an out of state or federal jurisdiction, the original mittimus and six-part folder must be forwarded to the County, Federal and Interstate (CFI) Unit. The inmate shall travel with a copy of the original mittimus . All classification materials needed by the receiving jurisdiction will be provided by the CFI Unit. The sending institution is not required to provide any material from the six-part folder to transportation or to the receiving jurisdiction. In the case where an inmate transfers to a county institution, the original six-part folder and mittimus shall be forwarded to the CFI Unit.

(4) Prior Offenders. When an inmate is admitted on a new commitment, but was previously incarcerated in a state correctional institution, the Central Records Unit shall be responsible for retrieving the prior folder(s) and forwarding it to the committing institution. Facilities shall utilize the "copy prior record" feature to copy information from the last computerized inmate record to the current inmate record.

(5) Filing . Any appropriate documents regarding the inmate that need to be filed shall be entered in the appropriate position of the six-part folder. Filing shall be completed promptly and in the appropriate index with the newest material on top. In the event that there is not sufficient room in a position, a second six-part folder shall be created and properly labeled in accordance with 103 CMR 155.08(2). Any forms/letters that are created must be reviewed and approved by the Central Records Manager/Designee prior to being filed in the six-part folder.

155.09: Confidentiality and Accessibility

(1) Responsibility . Each institution shall be responsible for the maintenance of the six-part folders for its population. The six-part folders shall be kept in a central location, in alphabetical order, with adequate room for their storage and with the ability to be secured during non-business hours.

3/10/17 103 CMR - 33 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

155.09: continued

For inmates outside the jurisdiction of Massachusetts, the CFI Unit shall file all appropriate documents, (e.g ., disciplinary reports, classification reports, and progress reports) in the inmate's six-part folder. Upon an inmate's return to the jurisdiction of Massachusetts, CFI shall notify the designated housing institution, as well as forward the six-part folder and mittimus to that institution.

(2) Removal from Institutional Records Department. The six-part folder should not be taken from the records department unless the sign-out log has been completed, indicating where and with whom the six-part folder can be found. The folder must be returned to the record room at the end of the work day on which it was signed out. (a) Institution Staff . Institution staff, authorized by the Superintendent, and other Department staff authorized by the Commissioner, in accordance with 103 DOC 153 and 103 CMR 157.00: Access to and Dissemination of Evaluative Information , are the only persons who may have access to the six-part folder. Access to the six-part folder is only for purposes related to the fulfillment of job functions. Discretion should be used in discussing the content of the six-part folder because of the confidential nature of the material contained therein. (b) Inmates . In accordance with 103 DOC 153: CORI Regulations , inmates may review information about themselves, except as limited by 103 CMR 157.00: Access to and Dissemination of Evaluative Information .

155.10: Auditing of the Six-part Folder

The Records Staff at each institution and the CFI unit shall audit the six-part folder and mittimus upon intake of the inmate into the facility and in accordance with the Deduction From Sentence Schedule.

155.11: Safeguards Against Loss/Destruction

The Records Manager or Designee shall be responsible for the six-part folders and shall ensure their maintenance in a secured area that is safe from unauthorized use, theft, and loss or damage by fire, smoke, and water.

155.12: Outdated Inmate Records

Refer to 103 DOC 156.00: Destruction of Inmate Records .

155.13: Responsible Staff

The Superintendent or designee shall be responsible for implementing 103 CMR 155.00 at each correctional institution. The Commissioner shall be responsible for supervising the overall implementation of 103 CMR 155.00.

155.14: Annual Review

103 CMR 155.00 shall be reviewed at least annually by the Commissioner or designee. The party or parties conducting the review shall develop a memorandum to the Commissioner with a copy to the Central Policy File indicating revisions, additions or deletions which shall be included for the Commissioner's written approval and shall become effective pursuant to applicable law.

155.15: Severability

If any article, section, subsection, sentence, clause or phrase of 103 CMR 155.00 is, for any reason, held to be unconstitutional, contrary to statute, in excess of the authority of the Commissioner, or otherwise inoperative, such decision shall not affect the validity of any other article, section, subsection, sentence, clause or phrase of 103 CMR 155.00.

REGULATORY AUTHORITY

103 CMR 155.00: M.G.L. c. 124, § 1(f), (g), and (j).

3/10/17 103 CMR - 34 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 272

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 157

CHAPTER TITLE: Access to and Dissemination of Evaluative Information

AGENCY: Department of Correction

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. The purpose of 103 CMR 157 is to establish Department of Correction (Department) guidelines governing the content and use of evaluative information, and to govern the inspection, receipt of copies, and challenges to such information. 103 CMR 157 is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law.

REGULATORY AUTHORITY: M.G.L. c. 6, §§ 167-178A; 803 CMR 2.00 et seq., Criminal Offender Record Information (CORI) and 803 CMR 9.00 et seq., Victim Notification AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Department of Housing and Community Development (LGAC)8/12/2016; Massachusetts Municipal Association 8/12/2016

Date of public hearing or comment period: September 27, 2016

For the first five years:

No fiscal effect: none

Date amended small business impact statement was filed: 02/13/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 14 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 37 - 42 37 - 42

02/14/2017 mrs

103 CMR 157.00: ACCESS TO AND DISSEMINATION OF EVALUATIVE INFORMATION

Section

157.01: Purpose 157.02: Cancellation 157.03: Applicability 157.04: Access 157.05: Definitions 157.06: Access to Intelligence Information 157.07: Access to Evaluative Information by the Individual 157.08: Access to Evaluative Information by Legal Representatives of the Individual 157.09: Access to Evaluative Information by Third Parties 157.10: Access to Evaluative Information by Criminal Justice Agencies 157.11: Receipt of a Copy of Evaluative Information by the Individual 157.12: Appeal Process 157.13: Challenges to the Accuracy or Completeness of Evaluative Information 157.14: Time Limits 157.15: Responsible Staff 157.16: Annual Review Date 157.17: Severability

157.01: Purpose

The purpose of 103 CMR 157.00 is to establish Department of Correction (Department) guidelines governing the content and use of evaluative information, and to govern the inspection, receipt of copies, and challenges to such information. 103 CMR 157.00 is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law.

157.02: Cancellation

103 CMR 157.00 cancels all previous Department and institutional policy statements, bulletins, directives, orders, notices, rules and regulations regarding access to and dissemination of evaluative information.

157.03: Applicability

103 CMR 157.00 shall apply to all inmate evaluative information held by the Department in inmate files, and on the Inmate Management System (IMS) database, except the separate medical, mental health and dental records.

157.04: Access

103 CMR 157.00 shall be maintained within the Department's central policy file, in each Superintendent's Central Policy File and in each inmate library and inmate policy manual.

157.05: Definitions

Commissioner . The Commissioner of the Department of Correction.

Criminal Offender Record Information (CORI) . Records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. CORI shall be limited to factual statements about an individual's movement through any one or more of the formal stages of the criminal justice process. CORI shall not include Intelligence Information or Evaluative Information as those terms are defined in 103 CMR 157.05.

Criminal Record Review Board (CRRB) . A statutorily-created board within the Department of Criminal Justice Information Services (DCJIS) that reviews complaints and investigates incidents involving allegations of violations of the laws governing CORI.

3/10/17 103 CMR - 37 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

157.05: continued

Department . The Department of Correction.

Department of Criminal Justice Information Services (DCJIS) . The Massachusetts agency statutorily designated to do the following: provide a public safety information system and network to support data collection, information sharing and interoperability for the Massachusetts criminal justice and law enforcement community; oversee the authorized provision of CORI to the non-criminal justice community; provide support to the CRRB; operate the Firearms Records Bureau; and provide and technically support the Victim Notification Registry for the victims of crime.

Evaluative Information . Records, data, or reports, concerning identifiable individuals charged with crime(s) and compiled by criminal justice agencies, which appraise mental condition, physical condition, extent of social adjustment, rehabilitative progress, etc ., and which are primarily used in connection with bail, pre-trial or post-trial release proceedings, sentencing, correctional, and rehabilitative planning, probation or parole.

Inmate Management System (IMS) . The Department's automated information system that provides processing, storage and retrieval of inmate-related information needed by Department personnel and other authorized users within the criminal

Intelligence Information . Records and data compiled by criminal justice agencies for the purpose of criminal investigation, including reports of informants, investigators or other persons, or any type of surveillance associated with an individual. Intelligence information shall also include records and data compiled by criminal justice agencies for the purpose of investigating a substantial threat of harm to an individual or to the order or security of a correctional institution.

Screening Employee . The central office employee(s) designated by the Commissioner or the institutional employee(s) designated by the Superintendent or Director of that facility to screen six-part folders for evaluative information.

Six-part Folder . The institutional case file of an inmate.

157.06: Access to Intelligence Information

Requests for access to intelligence information by the individual to whom the intelligence information pertains or to the individual's approved, third party representative, shall not be granted.

157.07: Access to Evaluative Information by the Individual

(1) Individuals may request access to their evaluative information in person or by mail. Where practicable, a Massachusetts Department of Correction Application to Review Evaluative Information form shall be used, but failure to use this form by the requesting individual shall not, on its own, prevent access. Current inmates shall direct requests to the screening employee at the correctional institution where such inmate is incarcerated. Former inmates and legal representatives of inmates may submit such requests to the central office screening employee or the appropriate correctional institution.

(2) The screening employee shall review the evaluative information contained in the six-part folder and the IMS database, as applicable, and make a determination regarding review by the individual as follows: (a) Approval for full review of information requested; (b) Approval for partial review of information requested; or (c) Disapproval for review of information requested.

3/10/17 103 CMR - 38 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

157.07: continued

(3) Under no circumstances will the following information be disclosed: (a) Documents prepared by an agency other than the Department, which contain evaluative information. The screening employee shall notify the individual of the existence of such a document and the name of the agency producing the document; (b) Information which would pose a direct and articulable threat of harm to a Department employee, any other person, or the security of a correctional institution; (c) Information which would clearly impair a treatment relationship between a counselor and a client; (d) Information provided to the Department under a clear and justifiable condition of confidentiality; (e) Attorney documents not subject to disclosure in a civil or criminal proceeding; (f) Documents or working papers of the deliberative process of a deciding authority.

(4) The screening employee shall make every effort to disclose all evaluative information which is reasonably segregable from that withheld under 103 CMR 157.07(3).

(5) A Department employee who prepares or compiles a report containing evaluative information may indicate on such report his or her opinion that part or all of its contents should not be disclosed to the individual. The screening employee shall take any such notation into account when determining whether or not to disclose the information.

(6) Within 15 business days of receipt of the request for information, the screening employee shall record his or her determination including the basis for denial of access, if applicable, on the Massachusetts Department of Correction Application to Review Evaluative Information form or written request. This form shall be retained in the individual's six-part folder.

(7) Where full or partial review of evaluative information by the petitioning individual has been approved by the screening employee, access should occur as soon as practicable following the notification of approval. The individual shall be permitted to receive one photocopy of any evaluative information which was approved for release by the screening employee.

(8) To ensure efficiency of operations, the Superintendent may establish guidelines limiting the number of requests an inmate may make for access to his or her evaluative information. Such guidelines shall be subject to approval by the Assistant Deputy Commissioner of Reentry or designee.

(9) Any inmate who is denied access, to all or part of his or her evaluative information, may appeal, in writing, to the DCJIS within 30 days of such denial.

157.08: Access to Evaluative Information by Legal Representatives of the Individual

(1) Legal representatives of an individual may have access to the individual's evaluative information, subject to the restrictions set forth in 103 CMR 157.07(3), provided the individual has given informed written authorization for such access and the legal representative so authorized satisfactorily provides identification to the screening employee. Such legal representatives shall include: (a) The attorney of the individual; (b) An authorized agent of the individual's attorney who is also an attorney; and, (c) A law student or paralegal working under the authorization and supervision of the individual's attorney, provided, that the said law student or paralegal submits written documentation from the attorney indicating that the law student or paralegal is working under the authorization and supervision of the attorney. Law students or paralegals who are presently inmates or parolees, or who have been inmates or parolees within the last five years, shall not be permitted access to evaluative information unless the Superintendent or the Assistant Deputy Commissioner of Reentry approves such access.

3/10/17 103 CMR - 39 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

157.08: continued

(2) A legal representative who wishes to review evaluative information pertaining to a client shall complete the application to review evaluative information. Relevant sections of the application should be completed by the individual to whom the evaluative information pertains, the Department screening employee, and where required, the attorney providing supervision for a law student or paralegal. The original copy of the application shall be retained in the individual's six-part folder.

157.09: Access to Evaluative Information by Third Parties

(1) Access to Evaluative Information by Reintegration, Rehabilitation, or Health Agencies . Agencies or individuals responsible for the reintegration, rehabilitation, or health of an individual, may have access to evaluative information pertaining to the individual where access to such evaluative information is necessary to facilitate such reintegration, rehabilitation, or health. Informed consent for such access by the individual is required unless the individual is unable to give such consent.

(2) Access to Evaluative Information by Members of an Individual's Family . Members of an individual's family may have access to evaluative information pertaining to the individual, subject to the provision set forth in 103 CMR 157.07(3), provided that the individual has given informed consent for such access. In an emergency, where it is appropriate to notify next of kin, and the individual is unable to give his or her informed consent due to a medical or psychiatric disability, such consent shall not be required.

(3) Access to Evaluative Information by Other Agents for the Sole Purpose of Dissemination . Any other person may have access to evaluative information pertaining to the individual, subject to the provision set forth in 103 CMR 157.07(3), provided that the individual has given his or her informed consent for such access; access shall be for the sole purpose of disseminating the evaluative information to the individual where inspection and copying by the individual would cause undue burden. Persons who are presently parolees or inmates, or who have been parolees or inmates within the last five years, shall not be permitted access to evaluative information unless the Superintendent, or the Assistant Deputy Commissioner of Reentry approves such access.

(4) Access to Evaluative Information by Victims of Crime . Pursuant to M.G.L. c. 6, § 178A, a victim of crime, a witness, or a family member of a homicide victim, all as defined in M.G.L. c. 258B, may obtain, upon registration approval, all available CORI of the person accused of or convicted of said crime. All information received pursuant to 803 CMR 9.05: Eligibility for 178A CORI Access is confidential and shall not be shared by the victim, witness, or family member with any other individual or entity, except as provided by law. Criminal justice agencies may also disclose to individuals registered for 178A CORI access such additional information, including, but not limited to, evaluative information as such agencies determine, in their discretion, is reasonably necessary for the security and wellbeing of such persons.

157.10: Access to Evaluative Information by Criminal Justice Agencies

Access to evaluative information by criminal justice agencies shall be subject to the DCJIS regarding access to and dissemination of CORI, 803 CMR 2.00: Criminal Offender Record Information (CORI) . Access to evaluative information shall be limited to that which is necessary for the discharge of the statutory responsibilities of the criminal justice agency.

157.11: Receipt of a Copy of Evaluative Information by the Individual

When the screening employee has determined that the individual may review the evaluative information, that individual shall, upon request, be permitted to receive one photocopy or the IMS screen print of such evaluative information. The Department may impose a charge pursuant to M.G.L. c. 66, § 10(a) and 950 CMR 32.06(1)(a), (c) and (f) for the fulfillment of the request for evaluative information. The same procedures for photocopying or the IMS screen printouts and costs apply where a third party has requested and received access to the evaluative information, pursuant to 103 CMR 157.06 through 157.09.

3/10/17 103 CMR - 40 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

157.12: Appeal Process

(1) Institution . If an individual is dissatisfied with the screening employee's decision regarding the request to review evaluative information pertaining to the individual, the individual may appeal, in writing, to the Superintendent. The Superintendent or a designee shall respond, in writing, to the individual within 15 business days of receipt of appeal.

(2) Central Office . If an individual is dissatisfied with the screening employee's decision regarding the request to review evaluative information pertaining to the individual contained at the central office, the individual may appeal, in writing, to the Assistant Deputy Commissioner of Reentry. The Assistant Deputy Commissioner of Reentry shall respond, in writing, to the individual within 15 business days of receipt of appeal.

157.13: Challenges to the Accuracy or Completeness of Evaluative Information

An individual who believes that the evaluative information pertaining to him or her contained in an institutional file or in the IMS database is inaccurate, incomplete, or improperly maintained or disseminated may, in writing, request the Superintendent of the institution to take remedial action. The Superintendent or a designee shall respond, in writing, to the individual within 15 business days of receipt of request. If it appears to the Superintendent or the designee that the individual's challenge is valid, the Superintendent or designee may take corrective action with regard to the evaluative information contained in the file. If the individual is dissatisfied with the response of the Superintendent or designee, or if the Superintendent or designee has not responded within 15 business days of receipt of request, the individual may, in writing, request review by the Commissioner. The Commissioner or his or her designee shall respond, in writing, to the individual within 15 business days of receipt of request.

157.14: Time Limits

All procedural time limits set forth in 103 CMR 157.00 are directory and may be modified by the Superintendent, the Commissioner, or their designee(s).

157.15: Responsible Staff

(1) The Assistant Deputy Commissioner of Reentry or designee shall be responsible for implementing and monitoring 103 CMR 157.00.

(2) Each Superintendent shall be responsible for the implementation of 103 CMR 157.00 and for the development of any institution policies and procedures as necessary for the efficient administration of 105 CMR 157.00.

157.16: Annual Review Date

103 CMR 157.00 shall be reviewed at least annually by the Commissioner or a designee. The party or parties conducting the review shall develop a memorandum to the Commissioner with a copy to the Central Policy File indicating revisions, additions or deletions which shall be included for the Commissioner's written approval and shall become effective pursuant to applicable law.

3/10/17 103 CMR - 41 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

157.17: Severability

If any article, section, subsection, sentence, clause or phrase of 103 CMR 157.00 is for any reason held to be unconstitutional, contrary to statute, in excess of the authority of the Commissioner or otherwise inoperative, such decision shall not affect the validity of any other article, section, subsection, clause or phrase of 103 CMR 157.00.

REGULATORY AUTHORITY

103 CMR 157.00: M.G.L. c. 6, §§ 167 through 178A; c. 66, § 10; c. 66A, §§ 1 through 3, 803 CMR 2.00: Criminal Offender Record Information (CORI) , 9.00: Victim Notification Registry (VNR) and 950 CMR 32.00: Public Records Access .

(PAGES 43 THROUGH 48 ARE RESERVED FOR FUTURE USE.)

3/10/17 103 CMR - 42 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 273

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 410

CHAPTER TITLE: Sentence Computation

AGENCY: Department of Correction

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. The purpose of 103 CMR 410 is to establish procedures governing the recording, calculation, review and communication of an inmate’s sentence structure in conformance with applicable laws.

REGULATORY AUTHORITY: M.G.L. c. 124, § 1 (c), (g) and (j); M.G.L. c.125, §§ 12 and 14; M.G.L. c.127, §§ 129, 129B, 129C and 129D; and M.G.L. c. 279, § 33A; and Chapter 432 AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Department of Housing and Community Development (LGAC); Massachusetts Municipal Association

Date of public hearing or comment period: September 27, 2016

For the first five years:

No fiscal effect: none

Date amended small business impact statement was filed: 02/13/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 14 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 85 - 90 85 - 90

02/14/2017 mrs

103 CMR 410.00: SENTENCE COMPUTATION

Section

410.01: Purpose 410.02: Cancellation 410.03: Applicability 410.04: Access 410.05: Definitions 410.06: Determination of Inmate's Status 410.07: New Commitments or Admissions 410.08: Transfers 410.09: Inmates in the Custody of Another Jurisdiction 410.10: Additional Data 410.11: Forfeiture and Restoration of Good Conduct Credits 410.12: Request for Certificates of Discharge or Release 410.13: Training 410.14: Date Computation Manual 410.15: Emergencies 410.16: Responsible Staff 410.17: Annual Review 410.18: Severability

410.01: Purpose

The purpose of 103 CMR 410.00 is to establish procedures governing the recording, calculation, review and communication of an inmate's sentence structure in conformance with applicable laws.

410.02: Cancellation

103 CMR 410.00 cancels all previous Department of Correction (Department or DOC) policy statements, bulletins, directives, orders, notices and regulations regarding sentence computation which are inconsistent with 103 CMR 410.00.

410.03: Applicability

103 CMR 410.00 applies to all DOC employees and inmates.

410.04: Access

103 CMR 410.00 shall be maintained within the Central Policy File of the DOC and accessible to all DOC employees. A copy of 103 CMR 410.00 shall also be maintained in each Superintendent's Central Policy File and in each inmate library.

410.05: Definitions

Additional Data . Documents or orders that alter an inmate's original sentence structure including, but not limited to, additional or supplemental sentences, revised or corrected mittimus , jail credit orders or letters, and any documents received as a result of a return from parole, probation, or escape.

Admissions. Inmates committed to the DOC as a result of a court order, the execution of a parole violation warrant, probation violation or as a return from escape.

Central Date Computation Unit (CDCU) . The DOC unit responsible for executing all sentencing orders of the court, formulating the sentence structure, and computing release dates for all inmates in the DOC's jurisdiction throughout his or her incarceration.

Commissioner . The chief executive officer of the DOC.

3/10/17 103 CMR - 85 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

410.05: continued

Commissioner's Designee . An individual or entity assigned by the Commissioner to review and approve inmate releases.

Committing Institution . The state or county institution to which the inmate was originally committed.

County Federal Interstate (CFI) Unit . The Unit within the Classification Division responsible for issues related to inmates who are housed in a county, federal or other state jurisdiction; as well as county, federal or other state jurisdiction inmates housed within the Department.

Deduction from Sentence (DFS) Report . The report generated from the Inmate Management System (IMS) for a specified time period that itemizes the recommendations for the granting of Earned Good Time and includes updated combined release dates.

Deputy Commissioner of Reentry . The DOC's Deputy Commissioner whose duties include, but are not limited to, the management of the Classification Division, Inmate Education and Training Division, Reentry, Program Services Division and the Health Services Division.

Inmate Management System (IMS) . The DOC's automated information system that provides processing, storage and retrieval of inmate related information needed by DOC personnel and other authorized users within the criminal justice system.

Inmate Sentence Listing (ISL) . The form generated from the IMS providing inmate sentencing information and date computation.

Mittimus . The sentencing document(s) issued by the court committing the inmate to incarceration that contains sentence information to include offense, term of imprisonment and any other orders made by the court.

New Commitments . Newly sentenced and committed inmates.

Records Manager . The person responsible for the daily operations of an institutional Records Department.

Release Coordinator . The person responsible for the physical release of an inmate from the institution.

Request to Notify . Written correspondence sent by the Central Date Computation Unit (CDCU) to another jurisdiction advising them that an inmate in their custody is also subject to a Massachusetts sentence(s) and further requesting that the other jurisdiction inform the CDCU when the subject inmate is within a specified time period of completing service of the other jurisdiction's sentence(s).

Superintendent . The chief administrative officer of a correctional institution.

410.06: Determination of Inmate Status

The Booking Department of the committing institution shall review the mittimus to determine the status of the inmate, new commitment, admission or transfer.

410.07: New Commitments or Admissions

CDCU shall review the mittimus to identify the inmate's sentence, offense and sentencing statute and shall determine whether the sentence complies with statutory requirements.

(1) CDCU shall enter relevant data into the IMS Sentence and Offense screens. In the case of a returned parole violator or return from escape, the Parole Return screen or the Escape Return screen shall be utilized to enter relevant release and return dates for computation purposes.

3/10/17 103 CMR - 86 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

410.07: continued

(2) CDCU shall calculate the inmate's dates utilizing the IMS Sentence screen, and ensure by manual calculation that the sentence structure and date computation are accurate.

(3) Any release date computations not calculated correctly in IMS shall have the release dates manually calculated and entered into IMS by CDCU. CDCU will also check the IMS Manual Date Computation check box. The names of all inmates sentenced by a Massachusetts court whose release dates do not calculate correctly in IMS shall also be maintained on a central list by CDCU.

(4) Once the sentence structure and date computation have been reviewed for accuracy, the CDCU employee conducting this review will check the certification box in the sentence screen in IMS. The committing sites will receive via email a notice advising them to print the certified Inmate Sentence Listing (ISL) for both new commitments/admissions and added data on a daily basis by CDCU. The Records Manager or designee shall place the certified ISL in the inmate's institutional six-part folder and issue a copy to the inmate.

410.08: Transfers

Upon an inmate's transfer to another institution, the Records Manager or designee of the receiving institution shall ensure that all of the inmate's mittimuses have been stamped as reviewed by CDCU and that all respective mittimuses are reflected on the ISL. In the event there are any documents which have not been stamped by CDCU or otherwise accounted for, CDCU shall be notified.

410.09: Inmates in the Custody of Another Jurisdiction

CDCU shall track and perform date computation functions for inmates in the custody of another jurisdiction who have concurrent or consecutive Massachusetts sentences to be served.

(1) Concurrent Sentences . (a) CDCU shall obtain the original mittimus ; (b) CDCU shall review the mittimus to confirm the sentence type; (c) CDCU shall obtain a Waiver of Extradition from the DOC's Legal Division or the District Attorney Office where applicable, or forward a waiver of extradition to the inmate for signature; (d) CDCU shall communicate with the committing institution Records Manager to obtain the inmate's commitment number. The Records Manager shall ensure all other booking functions as provided by in 103 DOC 401: Booking and Admission , are completed; (e) CDCU shall enter the sentence and complete date computation in accordance with 103 CMR 410.00. The committing institution Records Manager or designee shall complete the criminal records check in accordance with 103 DOC 417: Criminal History Records Information , update the inmate status in IMS, construct the six-part folder and forward the six-part folder to the County Federal and Interstate (CFI) Unit. CDCU will forward the original mittimus to the CFI Unit to file within the six-part folder; (f) CDCU shall forward a Detainer Letter along with a copy of the mittimus and Waiver of Extradition to the other jurisdiction; (g) Upon receipt of a signed Waiver of Extradition and computation of the Massachusetts sentence(s), CDCU shall provide the ISL for the Massachusetts sentence(s) to the other jurisdiction and to the inmate; (h) The CFI Unit shall conduct a review of earned good time at least annually, and quarterly when the out of state inmate's projected release date is within one year; (i) After this annual review of earned good time, the CFI Unit shall provide a DFS Report to the other jurisdiction and the inmate until the projected release date is within one year; and thereafter upon the CDCU's recalculation of the projected release date; (j) CDCU shall prepare a Certificate of Discharge/Release in accordance with 103 CMR 417.00. Once prepared, the CFI Unit shall notify the other jurisdiction of the release of the inmate's obligation to the Massachusetts concurrent sentence(s) in circumstances when the other jurisdiction's sentence(s) expires after the Massachusetts release;

3/10/17 103 CMR - 87 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

410.09: continued

(k) The CFI Unit shall, on the day of the expiration of the Massachusetts sentence, provide the other jurisdiction with a detainer removal letter reflecting that the inmate's obligation to the Massachusetts sentence(s) have been satisfied, along with a copy of the Certificate of Discharge/Release; (l) For an inmate whose sentence from another jurisdiction is scheduled to expire prior to his or her DOC sentence, CDCU shall perform the actions outlined in 103 CMR 410.09(2)(e) and (f).

(2) Consecutive Sentences . (a) CDCU shall obtain the original mittimus ; (b) CDCU shall review the mittimus to confirm sentence type; (c) CDCU shall forward a Detainer Letter, along with a copy of the mittimus to the other jurisdiction; (d) CDCU shall obtain a Waiver of Extradition from the DOC Legal Division or the District Attorney's Office, if applicable, or forward a Waiver of Extradition to the inmate for signature: (e) CDCU shall obtain the other jurisdiction's release date(s) annually until the projected release date from the other jurisdiction is within one year, and thereafter at least quarterly; (f) CDCU shall notify the DOC's Central Transportation Unit (CTU) of the date that the inmate will be available to the DOC, including the inmate's current location for CTU to make transportation arrangements.

410.10: Additional Data

If additional mittimuses , jail credit or other documents affecting an inmate's sentence are received by the institution following the initial sentencing of an inmate, the Records Manager or designee shall forward the document(s) to the CDCU. If the additional data received may result in a possible upcoming release, the Records Manager or designee shall notify CDCU immediately. Once CDCU receives such documents, it shall process the additional data and forward the additional data, along with an amended certified ISL, to the Records Manager or designee for filing within the six part folder and provide a copy to the inmate.

410.11: Forfeiture and Restoration of Good Conduct Credits

Inmates eligible for statutory good conduct credit (SGT) pursuant to M.G.L. c. 127, § 129 may be subject to forfeitures of such credit in accordance with M.G.L. c. 127, §§ 49, 83C and 129 upon the finding of guilt of a disciplinary infraction. In such circumstances, the disciplinary hearing officer recommends the forfeiture of SGT, and this recommendation is reviewed by the Superintendent, Deputy Commissioner of Clinical Services and Reentry and Commissioner in sequential order, with a denial at any of these levels terminating the process. The Commissioner decides whether SGT is to be forfeited, or whether previously-forfeited SGT may be restored (based on a recommendation of the Superintendent). Commissioner decisions regarding forfeiture or restoration shall be forwarded to the inmate and implemented by CDCU.

410.12: Request for Certificates of Discharge or Release

CDCU shall issue monthly an upcoming release list to each institution for inmates who are releasing within 150 days. The institutional Records Manager or designee shall add the inmates to their Master Facility Upcoming Release List, as well as perform any duties as specified on the CDCU monthly release list. CDCU will monitor all inmates on the institution upcoming release list and award earned good time (EGT). CDCU shall process all inmate Certificates of Discharge/Release. CDCU shall complete a Certificate of Discharge/Release and forward the signed Certificate of Discharge/Release to the respective Superintendent or his or her designee. The Superintendent or designee shall sign the Certificate of Discharge/Release. The physical release of an inmate from the DOC's custody shall be in accordance with applicable DOC procedure by the Release Coordinator.

3/10/17 103 CMR - 88 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

410.13: Training

CDCU shall provide training on date computation and records functions for DOC staff as needed, and provide ongoing training to CDCU staff in accordance with 103 DOC 216: Training and Staff Development . Institution Records Managers shall train Shift Commanders in the role of Release Coordinator. Shift Commanders shall be responsible for inmate releases during non-business hours or in the absence of the Records Manager/Designee.

410.14: Date Computation Manual

A manual of operations for sentence computation shall be maintained by the CDCU and made available for reference by the DOC.

410.15: Emergencies

Whenever in the opinion of the Commissioner, Deputy Commissioner or the Superintendent of a state correctional institution, an emergency exists that requires suspension of all or part of 103 CMR 410.00, such suspension may be authorized, provided that any such suspension, exceeding 48 hours must be authorized by the Commissioner.

410.16: Responsible Staff

(1) The Commissioner or designee shall be responsible for implementing and monitoring 103 CMR 410.00 throughout the DOC.

(2) Each Superintendent or designee shall be responsible for the implementation of 103 CMR 410.00 and for the development of any and all necessary and appropriate institutional procedures.

410.17: Annual Review

103 CMR 410.00 shall be reviewed at least annually by the Commissioner or designee. The party or parties conducting the review shall develop a memorandum to the Commissioner with a copy to the Central Policy File indicating revisions, additions or deletions which shall be included for the Commissioner's written approval and shall become effective pursuant to applicable law.

410.18: Severability

If an article, section, subsection, sentence, clause or phrase of 103 CMR 410.00 is for any reason held to be unconstitutional, contrary to statute, in excess of the authority of the Commissioner or otherwise inoperative, such decision shall not affect the validity of any other article, section, subsection, sentence, clause or phrase of 103 CMR 410.00.

REGULATORY AUTHORITY

103 CMR 410.00: M.G.L. c. 124, § 1 (c), (g) and (j); c. 125, §§ 12 and 14; c.127, §§ 129, 129B, 129C, 129D; and c. 279, § 33A and St. 1993, c. 432.

3/10/17 103 CMR - 89 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

NON-TEXT PAGE

3/10/17 103 CMR - 90 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 274

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 471

CHAPTER TITLE: Religious Programs and Services

AGENCY: Department of Correction

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. The purpose of 103 CMR 471 is to establish Departmental guidelines regarding religious programs and services in the institutions of the Department of Correction. 103 CMR 471 is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law.

REGULATORY AUTHORITY: M.G.L. c. 124, § 1 (c) and (q), and M.G.L. c. 127, §§ 88 through 90

AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Department of Housing and Community Development (LGAC)8/12/2016; Massachusetts Municipal Association 8/12/2016

Date of public hearing or comment period: October 4, 2016

For the first five years:

No fiscal effect: none

Date amended small business impact statement was filed: 02/13/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 14 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 203 - 208 203 - 208.2

02/17/2017 mrs

103 CMR 471.00: RELIGIOUS PROGRAMS AND SERVICES

Section

471.01: Purpose 471.02: Cancellation 471.03: Applicability 471.04: Access to Regulations 471.05: Definitions 471.06: Inmate Access to Religious Programs and Services 471.07: Supervision of Inmate Religious Programs and Services 471.08: Range of Religious Activities and Services 471.09: Access of Visiting Clergy 471.10: Community Participation in Inmate Religious Activities 471.11: Access of Volunteer Chaplains 471.12: Program Assessment and Planning 471.13: Pre-release Center Application 471.14: Annual Review Date 471.15: Severability Clause 471.16: Emergency

471.01: Purpose

The purpose of 103 CMR 471.00 is to establish Departmental guidelines regarding religious programs and services in the institutions of the Department of Correction. 103 CMR 471.00 is not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law.

471.02: Cancellation

103 CMR 471.00 cancels all previous Departmental and institutional policy statements, bulletins, directives, orders, notices, rules or regulations regarding religious programs and services.

471.03: Applicability

103 CMR 471.00 is applicable to all employees and inmates at all state correctional institutions.

471.04: Access to Regulations

103 CMR 471.00 shall be maintained within the Central Policy File of the Department and shall be accessible to all Department employees. A copy shall also be maintained in each Superintendent's Central Policy File and at each inmate library.

471.05: Definitions

Accredited Representative . Clergy authorized by the central or local governing body of a recognized religious group or denomination to represent that group or denomination in performing religious programs and services.

Approved Visiting Area . Areas so designated by the Superintendent or a designee where inmates and their visitors may conduct visits.

Assistant Deputy Commissioner of Reentry . The executive staff person whose duties include, but are not limited to, the management of Classification, Inmate Training and Education, Programs and Reentry Divisions.

Assistant Deputy Commissioner - Northern/Southern Sector . The senior level managers who report to the Deputy Commissioner, Prison Division and are responsible for ensuring policy compliance and standardization of procedures for facilities in each sector, in such areas as staff development, labor management, disorder management, and overall operations.

3/10/17 103 CMR - 203 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.05: continued

Clergy . A person ordained to perform pastoral or sacerdotal functions in a Christian church or the official of a non-Christian church.

Commissioner . Commissioner of the Department of Correction.

Community Religious Volunteer . Any person from the community, 21 years of age or older, and approved via the volunteer application process to assist a chaplain and/or to provide religious programs or services to inmates.

Department . The Department of Correction.

Deputy Commissioner of Clinical Services and Reentry . The executive staff person whose duties include, but are not limited to, the management of Classification, Inmate Training and Education, Health Services, Programs and Reentry Divisions.

Inmate Management System (IMS) . The Department's automated information system that provides processing, storage and retrieval of inmate related information needed by Department personnel and other authorized users within the criminal justice system.

Inmate Religious Services Request Form . The form that shall be used to initiate all inmate requests for religious services or religious items not presently approved. The Inmate Religious Services Request Form is available in all inmate libraries.

Institution Chaplain . A member of a recognized religious group or denomination who is employed by the Department to provide religious programs and pastoral services to inmates.

Ordain . To invest officially with ministerial or priestly authority.

Religious Program . A program which is religious in nature and which serves to provide religious education.

Religious Service . A meeting which is religious in nature and provides an opportunity for worship, fellowship, and/or congregational participation.

Religious Services Handbook . A reference guide for Department administrators and employees which provides general information about a variety of religions and religious practices as well as a list of approved religious practices and property items. The Religious Services Handbook does not confer any rights or remedies to inmates. The Religious Services Handbook shall be maintained in all inmate law libraries.

Religious Services Review Committee . A committee consisting of the Deputy Commissioner of Clinical Services and Reentry, the Assistant Deputy Commissioners of the Northern and Southern Sectors, and the Director of Program Services. The Committee is responsible for meeting regularly to review requests for new religious practices, services or items, and to render their decisions upon these requests.

Shift Commander . The officer who has overall responsibility for the security of the institution and the care and supervision of all inmates and custodial staff during a given tour of duty.

Special Diet Request Form . The form that shall be used to initiate all inmate requests for a special religious diet. The Special Diet Request Form is available in all inmate libraries.

Special Visit . Any type of inmate visit which requires express authorization from the Superintendent or a designee.

Special Visiting Area . Any area of the institution, not usually used for visiting purposes, which may be used for a particular inmate visit with the express authorization of the Superintendent.

3/10/17 103 CMR - 204 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.05: continued

Superintendent . Chief administrative officer of a correctional institution.

Unauthorized Practices . The following religious practices and activities are never authorized: (a) animal sacrifice; (b) language or behaviors that could reasonably be construed as a threat to safety, security, or the orderly running of the institution, ( e.g ., curses); (c) nudity; (d) self-mutilation; (e) use, display, or possession of weapons or what appears to be a weapon ( e.g ., paper sword, toy gun); (f) paramilitary exercises; (g) self-defense training; (h) sexual acts; (i) profanity; (j) consumption of alcohol; (k) ingestion of illegal substances; (l) proselytizing; (m) encryption; and (n) disparagement of other religions.

Visiting Clergy . A clergy person of a recognized religious group or denomination who is granted access to an institution, after consultation with an institution chaplain and with the approval of the Superintendent or a designee for a specified period of time, for the purpose of providing a religious service.

Volunteer Chaplain . A chaplain, approved via the volunteer application process, who provides services on a scheduled basis and who is not compensated by the Department for such services.

471.06: Inmate Access to Religious Programs and Services

(1) General . The rights of inmates to practice their religious beliefs, or to confer with the clergy person of an accredited religious group shall not be abridged, provided that these activities do not threaten the safety, security or orderly running of the institution. Specifically, subject to subsequent provisions of this policy, the following shall apply: (a) No inmate shall be denied the exercise of religious beliefs and the liberty of worship according to the dictates of his or her conscience. (b) No inmate shall be required or expected to attend any religious programs or services, or to adhere to any religious belief. (c) No inmate shall be denied personal contact with accredited representatives of his or her faith. (d) Inmates shall notify the Department of their religious affiliation at the time of their initial booking. Booking staff shall enter the reported religious affiliation in the designated IMS screen. Any inmate who requests to change his or her religious affiliation shall notify the Superintendent's designee in writing. The inmate shall be asked a series of written questions by the Superintendent's designee to determine the inmate's sincerity of belief. Inmates shall be allowed to change their religious affiliation once per year. When there are changes to an inmate's religious affiliation, the designated IMS screen shall be updated by the Superintendent's designee. Inmates may declare only one faith at a time.

(2) Security . No portion of 103 CMR 471.00 shall be interpreted or implemented in such a way as to threaten the security, safety or well-being of the institution, its visitors, volunteers, vendors, inmates, staff or the public.

(3) Limitation of Access . The Superintendent or designee may limit religious programs, practices or services if such would threaten the security, safety or well-being of the institution, its visitors, volunteers, vendors, inmates, staff or the public, and where there are specific facts to substantiate the threat. Superintendents with questions regarding the limitation of religious programs, practices or services should contact the Assistant Deputy Commissioner. All limitations of religious programs, practices and services will be documented via a letter to the Deputy Commissioner of Reentry.

3/10/17 103 CMR - 205 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.06: continued

(4) Cancellation of Programs and Services . The Superintendent or designee shall have the right, without notice, to cancel, postpone, restrict, or limit an inmate's participation in any religious program, practice or service. This action will be exercised only if the religious activity, or the inmate's participation in the activity, could jeopardize the security, safety or well-being of the institution, its visitors, volunteers, vendors, inmates, staff or the public. All cancellations, postponements or restrictions will be documented by the Shift Commander, and written notification and explanation will be given to the Institution Chaplain.

471.07: Supervision of Inmate Religious Programs and Services

(1) General . Inmate services and religious programs shall be planned, supervised and directed, including the approval and training of both lay and clergy volunteers from faiths represented by the inmate population, by Institution Chaplains or by the Superintendent's designee, as appropriate.

(2) Institution Chaplain . The services of an Institution Chaplain shall be made available upon request at all institutions, depending upon need. The Chaplain shall work under the direction of the Director of Program Services or designee, with onsite supervision provided by the Superintendent's designee. The Institution Chaplain shall also develop and maintain relationships with community religious groups and resources for the purpose of making referrals for inmate reentry planning purposes.

(3) Selection and Hiring of Chaplains . Selection and hiring of Chaplains shall be in accordance with 103 DOC 201: Selection and Hiring . The interview panel shall also include the Director of Program Services or designee, and the Director of Treatment or the Superintendent's designee at the institution where the vacancy exists.

(4) Ecclesiastical Endorsement . A Jewish Chaplain shall have the endorsement of a rabbinical chaplaincy commission. A Catholic Chaplain shall have the endorsement of the local Archbishop. A Protestant Chaplain shall have the endorsement of his or her local church and the appropriate ecclesiastical authority. A Muslim Chaplain shall have the endorsement of the Imam of the Muslin Chaplain’s local Masjid.

(5) Duties and Responsibilities . The Institution Chaplain shall have physical access to all areas of the institution and be responsible for: (a) Planning, developing, coordinating and implementing inmate religious programs and services. (b) Completing special activity and program applications for all religious programming with the exception of pure worship services. (c) Establishing schedules, calendars, postings or other methods of informing inmates and staff of existing and planned religious programs and services. Programs shall be planned in conjunction with the Superintendent's designee. (d) Providing supervision to all religious programs including, but not limited to: 1. Recruiting, screening and orienting prospective volunteers for religious programs and services; 2. Utilizing volunteer chaplains; 3. Approval and training of both lay and clergy volunteers from faiths represented by the inmate population. (e) Providing pastoral counseling and guidance to the inmate population. (f) Consulting with and advising professional staff on religious/spiritual issues associated with the inmate population. (g) Submitting an annual budget request to the Superintendent or designee. (h) Working with the Director of Program Services to develop resources and to expand and/or improve religious services. (i) Attending Chaplain meetings and professional training as developed by the Director of Program Services. (j) Attending professional training, seminars, or retreats mandated by the religious group with which the Chaplain is affiliated, approved by the Director of Program Services.

3/10/17 103 CMR - 206 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.07: continued

(k) Assisting inmates in the development of reentry plans to meet their religious and spiritual needs. When specific referrals are made, they shall be documented in the designated IMS reentry screens. (l) Providing direct or indirect religious services for inmates incarcerated at the Institution Chaplain's assigned facility. Once an inmate is transferred or released, the Institution Chaplain shall discontinue services. (m) Developing and implementing family reunification activities to foster community support and strengthen inmate reentry. Obtaining the written authorization of the Superintendent or designee prior to contacting an inmate's family members. (n) Developing and maintaining relationships with community religious groups and resources for the purpose of inmate reentry planning.

471.08: Range of Religious Activities and Services

(1) General Policy . Each institution shall make reasonable efforts to establish and maintain religious activities and services for all inmates who are affiliated, or wish to become affiliated, with recognized religious denominations or groups. Approved religious practice and property items for recognized religious denominations or groups are listed in the Religious Services Handbook.

(2) Clergy Services . The Superintendent, or designee, and the Institution Chaplains, should make reasonable efforts to ensure that an accredited representative of an inmate's religious faith is available to provide formal or informal services to inmates who so request wherever the inmate is confined within the institution.

(3) Religious Groups . Recognized religious groups or denominations are listed in the Religious Services Handbook. An inmate who is affiliated with, and wishes to participate in, a recognized religious group not currently functioning at an institution, should comply with the procedures outlined in 103 CMR 471.09.

(4) Religious Activities . Each religious group is encouraged to plan its own activities, using the appropriate community and institution resources. Religious activities include, but are not limited to: worship, interfaith services, religious instruction, reading and study, religious discussion groups, and pastoral counseling.

(5) Special Religious Diets . (a) Inmates whose religion places restrictions on diets should be permitted access to a special religious diet. However, in limited situations where the institution/Department is not able to meet all aspects of a special religious diet request due to security and/or facility limitations, the institution shall make every effort to provide a reasonable accommodation to the diet request. Requests for special religious diets shall be initiated by interested inmates, using the Special Diet Request Form, which is available in all inmate libraries. The form shall be submitted to the Superintendent's designee. To ensure continuity of an inmate's special religious diet upon transfer to another facility, the information shall be entered into the designated IMS screen. An inmate's abuse of an approved special religious diet may result in his or her removal from a special religious diet. (b) Where religious holidays specify particular dietary requirements ( e.g ., Passover, month of Ramadan), special arrangements should be made so that inmates are able to adhere to their religious beliefs.

(6) Facilities for Services . Adequate space and equipment shall be provided for the conduct and administration of religious programs. Recognized religious denominations or groups shall be provided a place for services. Based on security needs, the size of groups at services may be restricted by the Superintendent or designee.

(7) Scheduling . Institution Chaplains shall post religious program and service schedules in appropriate housing units to keep inmates and staff informed of religious programs and services.

(8) Special Services . Special religious services may be scheduled with visitors and inmates with approval of the Superintendent.

3/10/17 103 CMR - 207 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.08: continued

(9) Religious Publications . Inmates may have access to approved religious books, magazines, and newspapers as set forth in 103 CMR 403.00: Inmate Property , and 481.00: Inmate Mail . Inmates shall not have direct access to the Internet to order religious books.

(10) Inmate Requests for Religious Practices, Programs, Groups or Items Not Currently Approved . An inmate who requests to participate in a religious practice, program or group not currently approved, or who requests to possess a religious item not approved in the Religious Services Handbook or in 103 CMR 403.00: Inmate Property , shall: (a) Submit a written request, using the Inmate Religious Services Request Form to the Superintendent's designee. Inmate Religious Services Request Forms shall be available to all inmates in the inmate library. This process, as set forth herein, shall be the sole means/mechanism by which an inmate may seek a religious practice, program, group or religious item not otherwise approved. (b) The Superintendent's designee shall acknowledge receipt of the request, by providing a dated copy of the completed request form to the inmate. The Superintendent's designee shall forward the request to the Superintendent within ten business days. (c) The Superintendent shall determine whether the request may be reasonably accommodated in light of the institution's available resources and security level, and, based on that determination, shall recommend approval, an alternative, or recommend denial of the request to the Religious Services Review Committee within ten business days. (d) The Religious Services Review Committee shall review the inmate's request, and the Superintendent's recommendation, and then shall approve, modify, or deny the request within 60 business days of receipt. The Religious Services Review Committee has the discretion to extend the time in which to issue a decision, if additional information about the practice, program, group or item is required. The Religious Services Review Committee may also determine that a reasonable alternative will serve to satisfy the request. (e) The Director of Program Services shall provide the Superintendent with written notification of the Religious Services Review Committee's decision. The Superintendent shall ensure that the written notification is provided to the inmate and that the date served is documented. If the request is denied, the notification shall include the reasons for denial. Denied requests shall inform the inmate of his or her right to appeal. (f) An inmate whose request has been denied may appeal to the Commissioner or designee. The original request must accompany the appeal. The appeal must be filed within ten business days from receipt of the Religious Services Review Committee's decision. (g) The Commissioner or designee shall have 30 business days in which to uphold, modify, or overturn the decision of the Religious Services Review Committee and shall inform the inmate, Superintendent and Religious Services Review Committee, in writing, of the final decision on the inmate's request. (h) The appeal mechanisms set forth in 103 CMR 471.08(10) shall be the exclusive administrative remedies by which to appeal from an adverse decision regarding inmate requests for religious practices, programs, groups or items.

471.09: Access of Visiting Clergy

(1) General . Clergy visits shall take place during normal visiting hours. However, under extenuating circumstances, special visits with clergy may be permitted for any reasonable purpose with the authorization of the Superintendent or designee. When special visits are scheduled outside normal circumstances, they shall be scheduled in the IMS Inmate Schedule screen utilizing the activity type of "visit" and a notation of "clergy" in the description field.

(2) Special Visiting Areas . Clergy visits shall normally be held in approved visiting areas. However, if these areas do not provide the degree of privacy that the clergy member deems appropriate for the purpose of the visit, the clergy member may request that a special visiting area be provided, subject to the Superintendent's approval. The Superintendent of the institution or designee may identify any area of the institution as a special visiting area for clergy visits.

(3) Visiting clergy may be permitted to meet with more than one inmate at a time where the following procedure is utilized: (a) Any requests by visiting clergy to meet with more than one inmate at a time shall be referred to an Institution Chaplain.

3/10/17 103 CMR - 208 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.09: continued

(b) The Institution Chaplain shall verify, on a case-by-case basis, the status of the inquiring clergy. If the Institution Chaplain verifies that the visiting clergy is in good standing, he or she shall notify the Director of Treatment or the Superintendent's designee. (c) Upon approval by the Superintendent, visiting clergy may then schedule visits with more than one inmate as allowed, on conditions set forth by the Superintendent.

471.10: Community Participation in Inmate Religious Activities

(1) General . Each institution will actively encourage clergy and other members of community religious organizations to become involved in the inmate religious activities.

(2) Community Religious Volunteers . Any member of the community who is interested in acting as a volunteer in the inmate religious program shall initially be directed to the Institution Chaplain. Each person shall also be reviewed for volunteer status pursuant to 103 CMR 485.00: Volunteers and Volunteer Programs .

471.11: Access of Volunteer Chaplains

Volunteer chaplains’ access shall be limited to the needs of the religious program or activity in which they are participating.

471.12: Program Assessment and Planning

(1) General . Each institution shall monitor its religious programs on an on-going basis and conduct periodic assessments.

(2) Program Monitoring. The Superintendent or a designee shall develop a monitoring system that provides an on-going review of all religious activities and services and be responsible for maintaining all records related to program monitoring. The monitoring system shall include: (a) The estimated number of inmates affiliated with each religious group or denomination. (b) Results of meetings with other institution staff and their suggestions on existing or proposed religious programs and services. (c) Individual program evaluations.

(3) Quarterly and Annual Reports . The information gathered through the monitoring process shall be incorporated into the institution quarterly and annual reports.

471.13: Pre-release Center Application

(1) General . Inmates of pre-release centers should use program related activity time to participate in community religious activities.

(2) Cadre . Superintendents of pre-release centers who have cadre positions shall make special arrangements to meet these inmates’ religious needs in accordance with established Department policy and statutory requirements.

471.14: Annual Review Date

103 CMR 471.00 shall be reviewed at least annually by the Commissioner or a designee. The party or parties conducting the review shall develop a memorandum to the Commissioner with a copy to the Central Policy File indicating revisions, additions or deletions which shall be included for the Commissioner's written approval and shall become effective pursuant to applicable law.

471.15: Severability

If any article, section, subsection, sentence, clause or phrase of 103 CMR 471.00 is for any reason held to be unconstitutional, contrary to statute, in excess of the authority of the Commissioner or otherwise inoperative, such decision will not affect the validity of any other article, section, subsection, sentence, clause, or phrase of 103 CMR 471.00.

3/10/17 103 CMR - 208.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

471.16: Emergency

Whenever, in the opinion of the Commissioner or designee, or the superintendent of a state correctional institution, an emergency exists which requires suspension of all or part of 103 CMR 471.00, the Commissioner or designee or the superintendent may authorize such suspension, provided that any suspension lasting more than 48 hours shall be approved by the Commissioner

REGULATORY AUTHORITY

103 CMR 471.00: 42 U.S.C. §§ 2000cc, et seq .; M.G.L. c. 124, §§ 1(c) and (q) and c. 127, §§ 88 through 90.

3/10/17 103 CMR - 208.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 275

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 916

CHAPTER TITLE: COUNTY CORRECTIONAL FACILITIES MANAGEMENT INFORMATION SYSTEM AGENCY: Department of Correction

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 103 CMR 900.00 through 979.00 establish standards for the care and custody of all persons committed to any county correctional facility and provisions for enforcement of such standards.

REGULATORY AUTHORITY: M.G.L. c. 124, § (1), (c), (d) and (q); c. 127, §§ 1A and 1B.

AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. LGAC notified 8/12/2016, Massachusetts Municipal Association notified 8/12/2016. Public notice published 8/30/2016

Date of public hearing or comment period: September 27, 2016

For the first five years:

No fiscal effect:

Date amended small business impact statement was filed: 2/14/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 21 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 307 & 308 307 & 308

02/21/2017 mrs

103 CMR 916.00: COUNTY CORRECTIONAL FACILITIES -- MANAGEMENT INFORMATION SYSTEM

Section

916.01: Information System Guidelines 916.02: Monthly Report of Admissions and Releases 916.03: List of Inmates

916.01: Information System Guidelines

The Sheriff/facility administrator shall provide guidelines for an organized information system which is part of overall research and decision making. Such guidelines shall include the following:

(1) Written policy and procedure governing: (a) data collection; (b) access to data; (c) retrieval of data; (d) review of data; (e) use of data and relativity to both inmate and management (operational) needs; (f) storage of data; (g) security of information; (h) verification of data; and (i) adherence to Criminal Offender Record Information Statute (CORI) (M.G.L. c. 6, §§ 167 through 172), and in accordance with relevant requirements imposed by regulations of the Department of Criminal Justice Information Services (DCJIS) (803 CMR 2.00: General Information ).

(2) Written policy and procedure providing for an inmate population accounting system which shall include records on the following: (a) inmate admissions; (b) movement of inmates; and, (c) release of inmates.

(3) The Sheriff/facility administrator shall encourage collaboration with criminal justice and service agencies in information gathering, exchange and standardization.

916.02: Monthly Report of Admissions and Releases

The Sheriff/facility administrator shall make a monthly report to the Commissioner of all admissions and releases on a form designated by the Commissioner.

916.03: List of Inmates

The Sheriff/facility administrator of each county correctional facility shall cause to be maintained, consistent with M.G.L. c. 127, § 5, a calendar of all prisoners committed, in which shall be recorded the names of all prisoners, their places of abode, the time, cause and authority of each commitment, and, if they have been committed upon a sentence on conviction of crime, a description of their persons. The calendar of inmates shall further record the time and authority for the release of every prisoner released and the time and manner of the escape of any prisoner who escapes.

REGULATORY AUTHORITY

103 CMR 916.00: M.G.L. c. 124, § (1), (c), (d) and (q); c. 127, §§ 1A and 1B.

3/10/17 103 CMR - 307 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

NON-TEXT PAGE

3/10/17 103 CMR - 308 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 276

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 917

CHAPTER TITLE: COUNTY CORRECTIONAL FACILITIES RESEARCH

AGENCY: Department of Correction

REGULATORY AUTHORITY: M.G.L. c. 124, § (1), (c), (d) and (q); c. 127, §§ 1A and 1B.

AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. LGAC notified 8/12/2016, Massachusetts Municipal Association notified 8/12/2016. Public notice published 8/30/2016

Date of public hearing or comment period: September 27, 2016

For the first five years:

No fiscal effect: none

Date amended small business impact statement was filed: 2/14/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 21 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 309 & 310 309 & 310

02/21/2017 mrs

103 CMR 917.00: COUNTY CORRECTIONAL FACILITIES -- RESEARCH

Section

917.01: General 917.02: Application to Conduct Research 917.03: Conduct of Research

917.01: General

The Sheriff/facility administrator shall develop guidelines governing the conduct of research. Research shall include, but not be limited to, studies involving the use of interviews, questionnaires, and reviews of case records. It may not include any study which will expose research subjects to the possibility of physical, psychological or other harm as a consequence of their participation in the study. Biomedical research and experimentation using inmate subjects is specifically prohibited under 103 CMR 932.19: Medical Experimentation and Research (Required) .

917.02: Application to Conduct Research

(1) The Sheriff/facility administrator shall in conformity with the parent agency's policy review and approve all facility research projects prior to implementation.

(2) The Sheriff/facility administrator shall require, at a minimum, that the following information be provided in any application to conduct research in the facility: (a) the name, address, and telephone number of the principal researcher and of all research staff; (b) an endorsement by a recognized research organization, such as a university, private foundation, consulting firm or public agency certifying that the research is for valid scientific, educational, or other public purposes; (c) a summary of the goals of the study; (d) a description of the research design including procedures for data collection, procedures which will be followed to protect inmate privacy, details of any compensation to be paid to inmates; and (e) when a study requires access to criminal offender record information (CORI), the researcher shall apply for access to the Department of Criminal Justice Information Services (DCJIS) and shall provide the Sheriff/facility administrator with a copy of the DCJIS' letter of approval before being allowed to begin the research. (Refer to M.G.L. c. 6, § 173.)

917.03: Conduct of Research

(1) Written policy and procedure shall govern the conduct of research to comply with state and federal guidelines for the use and dissemination of research findings and with accepted professional and scientific ethics. Research involving criminal offender record information (CORI) shall be conducted in accordance with regulations promulgated by DCJIS.

(2) All inmates shall be informed that any participation in the research is purely voluntary and shall not affect the terms or length of their confinement.

(3) The researcher shall provide a clear and comprehensible explanation of the study to all potential participants.

(4) The name or other information which might lead to identification of a particular subject may not be used in any report of research results.

REGULATORY AUTHORITY

103 CMR 917.00: M.G.L. c. 124, § (1), (c), (d) and (q); c. 127, §§ 1A and 1B.

3/10/17 103 CMR - 309 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

NON-TEXT PAGE

3/10/17 103 CMR - 310 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 277

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 103 CMR 918

CHAPTER TITLE: COUNTY CORRECTIONAL FACILITIES INMATE RECORDS

AGENCY: Department of Correction

REGULATORY AUTHORITY: M.G.L. c. 124, § (1), (c), (d) and (q); c. 127, §§ 1A and 1B.

AGENCY CONTACT: Jennifer Staples, Regulation Counsel PHONE: 617-727-3300 x 1144

ADDRESS: 70 Franklin Street, Suite 600, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. LGAC notified 8/12/2016, Massachusetts Municipal Association notified 8/12/2016. Public notice published 8/30/2016

Date of public hearing or comment period: September 27, 2016

For the first five years:

No fiscal effect: none

Date amended small business impact statement was filed: 2/14/2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 21 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 311 & 312 311 & 312

02/21/2017 mrs

103 CMR 918.00: COUNTY CORRECTIONAL FACILITIES -- INMATE RECORDS

Section

918.01: Case Record Management 918.02: Access to Records 918.03: Format and Contents of Inmate Case Records 918.04: Booking and Intake Information 918.05: Mittimus File 918.06: Release of Information

918.01: Case Record Management

(1) Written policy and procedure shall be developed governing case record management for inmate records which shall include, but not be limited to, the following: (a) establishment; (b) utilization; (c) content; (d) security and safety of all inmate case records; (e) privacy and security of legally privileged or confidential information; and (f) a schedule for the preservation, retirement or destruction of inactive case records.

(2) All inmate records shall be handled strictly in accordance with the relevant requirements imposed by the regulations of the Department of Criminal Justice Information Services (DCJIS) (M.G.L. c. 6, §§ 167 through 178; 803 CMR 2.00: Criminal Offender Record Information (CORI) ).

918.02: Access to Records

Written policy and procedure shall identify those persons within the county correctional facility, and other authorized persons, who shall have direct access to inmate records.

918.03: Format and Contents of Inmate Case Records

(1) Written policy and procedure shall provide that the county correctional facility shall maintain an individual facility case record on all inmates committed, assigned or incarcerated in the facility.

(2) The format of inmate case records shall be determined by the Sheriff/facility administrator, and the contents shall include, as applicable and appropriate, the following information: (a) Legal Data - the information to be included shall be related to the intake record, all data related to courts, administrative chronology, sentence and identification; (b) Classification Data - including all information on the classification and progress of the inmate; (c) Facility Programming Data - material related to the facility adjustment and program participation including disciplinary reports, disciplinary chronology, facility work assignments, grievances, etc . (d) Community Programming Data - materials related to participation on furloughs, hospital programs, and community work crews; (e) Parole Data - any appropriate information on parole consideration, pre-parole reports, violation reports, or progress reports.

918.04: Booking and Intake Information

(1) Written policy and procedure shall provide that intake booking information is recorded for every person admitted to the facility and includes the following data: (a) photograph; (b) booking number; (c) name and aliases of person; (d) current address (or last known address);

3/10/17 103 CMR - 311 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 103 CMR: DEPARTMENT OF CORRECTION

918.04: continued

(e) date, duration of confinement; (f) copy of the court order or other legal basis for commitment and sentence or bail status; (g) name, title and signature of delivering officer(s) and receiving officer(s); (h) specific charge(s), with statutory authorization; (i) sex; (j) age; (k) date of birth; (l) place of birth; (m) race; (n) fingerprints; (o) present or last place of employment; (p) health status, including any current medical or mental health needs; (q) emergency contact (name, relation, address and phone numbers); (r) driver's license and social security number(s); (s) notation of cash and all property; (t) general description, including height, weight, physical build, hair and eye color, and complexion; and (u) additional information concerning special custody requirements, service needs or other identifying information such as birthmark or tattoos.

(2) In the case of an inmate held solely in pre-arraignment custody, the intake record may omit 103 CMR 918.04(1)(a), (f), and (n), and shall indicate pre-arraignment status. In the case of an inmate held in pre-trial custody, the intake record may omit 103 CMR 918.04(1)(n).

(3) The photograph and other identifying matter contained in the intake record of sentenced inmates shall be transmitted forthwith to the Colonel of the State Police.

(4) The complete intake record shall be maintained in the inmate's individual case record and a copy shall accompany the inmate upon transfer to another facility. The transferring county correctional facility shall provide, in writing, known medical and mental health information about the inmate to the receiving facility. The content of this written form shall include, but not be limited to, the following: (a) Mental health history/concerns; (b) History of suicide attempts; (c) Acute medical concerns; (d) Name(s) and dosage(s) of current medications; (e) Substance abuse history; and (f) Allergies/dietary restrictions. In circumstances where an emergency transfer is required, such records may be forwarded within 24 hours of transfer.

918.05: Mittimus File

The county correctional facility shall maintain a file of attested copies of all warrants, mittimuses , processes and other official papers by which an inmate is committed or released. Each such document shall be properly secured, preserved and protected with respect to privacy rights.

918.06: Release of Information

Prior to the release of inmate information, other than that required or permitted by law, the inmate shall sign a "Release of Information Consent Form" (which complies with 803 CMR 2.00: Criminal Offender Record Information (CORI) ). A copy of this form shall be maintained in the inmate's record.

REGULATORY AUTHORITY

103 CMR 918.00: M.G.L. c. 124, § (1), (c), (d) and (q); c. 127, §§ 1A and 1B.

3/10/17 103 CMR - 312 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 1,016

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 130 CMR 450.000

CHAPTER TITLE: Administrative and Billing Regulations

AGENCY: Division of Medical Assistance

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. See attached Word document.

REGULATORY AUTHORITY: M.G.L. c 118E, §§ 7 and 12.

AGENCY CONTACT: Deborah M. Briggs PHONE: 617-847-3305

ADDRESS: 100 Hancock Street, Quincy, MA 02171

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. EO 562: February 13, 2017 EO 145 Letters: November 8, 2016

Date of public hearing or comment period: 11/22/16 - 12/13/16

For the first five years: $83,000 annualized

No fiscal effect:

Date amended small business impact statement was filed: January 10, 2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 24 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 17, 18 17, 18 563 - 564.2 563 - 564.4

02/24/2017 mrs

The revisions to 130 CMR 450.233(D), are intended to bring the payment methodology for out-of-state acute outpatient hospital services in these regulations generally in line with changes being made, to the payment methodology for in-state acute outpatient hospital services.'

Until now, the regulations provide that each out-of-state acute hospital is paid for outpatient services at the median in-state acute hospital payment amount per episode (PAPE), or in accordance with the applicable fee schedule established by EOHHS for services for which in-state acute hospitals are not paid the PAPE. These changes replace this fixed out-of-state PAPE amount with an adjudicated payment per episode of care (APEC) payment method. The APEC payment amount will vary by episode depending largely on {l} the case weights of services within the episode, and {2} an APEC outlier component. Certain outpatient services, such as clinical laboratory services, will continue to be paid separately in accordance with the applicable fee schedule established by EOHHS.

Components of the new out-of-state APEC method, as well as the existing out-of-state PAPE method, refer to the in-state methods. Accordingly, ensuring that similar payment calculations are utilized for both in- state and out-of-state acute hospitals will allow MassHealth to maintain only one payment methodology in the claims system for acute outpatient hospital services, increasing alignment and decreasing administrative burden.

1 The changes to the in-state acute outpatient hospital payment method are reflected in the Rate Year 2017 acute hospital RFA and contract.

Table of Contents Page

(130 CMR 443.000 THROUGH 449.000: RESERVED) 527

130 CMR 450.000: ADMINISTRATIVE AND BILLING REGULATIONS 529

Section 450.101: Definitions 530 Section 450.102: Purpose of 130 CMR 400.000 through 499.000 534 Section 450.103: Promulgation of Regulations 534 Section 450.105: Coverage Types 534 Section 450.106: Emergency Aid to the Elderly, Disabled and Children Program 541 Section 450.107: Eligible Members and the MassHealth Card 542 Section 450.108: Selective Contracting 542 Section 450.109: Out-of-state Services 542 Section 450.110: Hospital Determined Presumptive Eligibility 543 Section 450.112: Advance Directives 543 Section 450.117: Managed Care Participation 544 Section 450.118: Primary Care Clinician (PCC) Plan 546 Section 450.124: Behavioral Health Services 546.4 Section 450.130: Copayments Required by the MassHealth Agency 546.4 Section 450.140: Early and Periodic Screening, Diagnosis and Treatment (EPSDT) Services: Introduction 546.6 Section 450.141: EPSDT Services: Definitions 547 Section 450.142: EPSDT Services: Medical Protocol and Periodicity Schedule and Dental Protocol and Periodicity Schedule 547 Section 450.143: EPSDT Services: Description of Medical Protocol and Periodicity Schedule Visits (EPSDT Visits) 548 Section 450.144: EPSDT Services: Diagnosis and Treatment 548 Section 450.145: EPSDT Services: Claims for Visits 549 Section 450.146: EPSDT Services: Claims for Laboratory Services, Audiometric Hearing Tests, Vision Tests, and Behavioral Health Screening (Physician, Independent Nurse Practitioner, Independent Nurse Midwife and Community Health Center Providers Only) 550 Section 450.148: EPSDT Services: Payment for Transportation 550 Section 450.149: EPSDT Services: Recordkeeping Requirements 550 Section 450.150: Preventive Pediatric Health-care Screening and Diagnosis (PPHSD) Services for Certain MassHealth Members 550 Section 450.200: Conflict Between Regulations and Contracts 550.1 Section 450.201: Choice of Provider 550.1 Section 450.202: Nondiscrimination 550.1 Section 450.203: Payment in Full 551 Section 450.204: Medical Necessity 551 Section 450.205: Recordkeeping and Disclosure 552 Section 450.206: Determination of Compliance with Medical Standards 553 Section 450.207: Utilization Management Program for Acute Inpatient Hospitals 553 Section 450.208: Utilization Management: Admission Screening for Acute Inpatient Hospitals 554 Section 450.209: Utilization Management: Prepayment Review for Acute Inpatient Hospitals 555 Section 450.210: Pay-for-performance Payments: MassHealth Agency Review 556 Section 450.211: Medicaid Electronic Health Records Incentive Payment Program: Reconsideration and Appeals Process 556.1 Section 450.212: Provider Eligibility: Eligibility Criteria 556.2 Section 450.213: Provider Eligibility: Termination of Participation for Ineligibility 557 Section 450.214: Provider Eligibility: Suspension of Participation Pursuant to United States Department of Health and Human Services Order 558 Section 450.215: Provider Eligibility: Notification of Potential Changes in Eligibility 558

11/21/14 130 CMR - 17 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

Table of Contents Page

130 CMR 450.000: ADMINISTRATIVE AND BILLING REGULATIONS (continued)

Section 450.216: Provider Eligibility: Limitations on Participation 558 Section 450.217: Provider Eligibility: Ineligibility of Suspended Providers 558 Section 450.221: Provider Contract: Definitions 559 Section 450.222: Provider Contract: Application for Contract 560 Section 450.223: Provider Contract: Execution of Contract 560 Section 450.224: Provider Contract: Exclusion and Ineligibility of Convicted Parties 561 Section 450.226: Provider Contract: Issuance of Provider Numbers 562 Section 450.227: Provider Contract: Termination or Disapproval 562 Section 450.231: General Conditions of Payments 562 Section 450.232: Rates of Payments to In-state Providers 563 Section 450.233: Rates of Payments to Out-of-state Providers 563 Section 450.234: Rates of Payment to Chronic Disease, Rehabilitation, or Similar Hospitals with Both Out-of-state Inpatient Facilities and In-state Outpatient Facilities 564.2 Section 450.235: Overpayments 564.2 Section 450.236: Overpayments: Calculation by Sampling 564.2 Section 450.237: Overpayments: Determination 564.2 Section 450.238: Sanctions: General 564.3 Section 450.239: Sanctions: Calculation of Administrative Fine 565 Section 450.240: Sanctions: Determination 565 Section 450.241: Hearings: Claim for an Adjudicatory Hearing 566 Section 450.242: Hearings: Stay of Suspension or Termination 566 Section 450.243: Hearings: Consideration of a Claim for an Adjudicatory Hearing 567 Section 450.244: Hearings: Authority of the Hearing Officer 567 Section 450.245: Hearings: Burden of Proof 567 Section 450.246: Hearings: Procedure 567 Section 450.247: Hearings: Hearing Officer's Decision 568 Section 450.248: Commissioner's Decision 568 Section 450.249: Withholding of Payments 568 Section 450.259: Overpayments Attributable to Rate Adjustments 569 Section 450.260: Monies Owed by Providers 570 Section 450.261: Member and Provider Fraud 571 Section 450.271: Individual Consideration 571 Section 450.275: Teaching Physicians: Documentation Requirements 571 Section 450.301: Claims 573 Section 450.302: Claim Submission 574 Section 450.303: Prior Authorization 575 Section 450.304: Claim Submission: Signature Requirement 575 Section 450.307: Unacceptable Billing Practices 575 Section 450.309: Time Limitation on Submission of Claims: General Requirements 576 Section 450.313: Time Limitation on Submission of Claims: Claims for Members with Health Insurance 576 Section 450.314: Final Deadline for Submission of Claims 576 Section 450.316: Third-party Liability: Requirements 576.1 Section 450.317: Third-party Liability: Payment Limitations on Claim Submission 577 Section 450.318: Third-party Liability: Medicare Crossovers 577 Section 450.321: Third-party Liability: Waivers 578 Section 450.323: Appeals of Erroneously Denied or Underpaid Claims 578 Section 450.324: Payment of Claims 579 Section 450.331: Billing Agencies 579

(130 CMR 451.000 THROUGH 455.000: RESERVED) 589

3/10/17 130 CMR - 18 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

450.231: continued

(E) Payments to QMB-only providers as defined in 130 CMR 450.212(D) for covered services described in 130 CMR 450.105(D) for MassHealth Senior Buy-in members and 130 CMR 450.105(A) for MassHealth Standard members may be made upon the Division's receipt of a claim for payment within the time limitations set forth in provisions, regulations, or rules under Title XVIII of the Social Security Act. QMB-only providers are not required to be registered as such with the Division as of the date the medical services were delivered, but are required to sign a QMB-only provider contract with the Division or become a participating provider in MassHealth before receiving payment for such claim.

450.232: Rates of Payment to In-state Providers

Payment to all providers is made in accordance with the payment methodology applicable to the provider, subject to federal payment limitations. Without limiting the generality of the foregoing, payment to a Massachusetts in-state noninstitutional provider for any medical services payable by the MassHealth agency is made in accordance with the applicable payment methodology established by EOHHS, subject to any applicable federal payment limit ( see 42 CFR 447.304).

450.233: Rates of Payment to Out-of-state Providers

(A) Except as provided in 130 CMR 450.233(D) and 435.405(B), payment to an out-of-state institutional provider for any medical service payable by the MassHealth agency is the lowest of (1) the rate of payment established for the medical service under the other state’s Medicaid program; (2) the MassHealth rate of payment established for such medical service or comparable medical service in Massachusetts; or (3) the MassHealth rate of payment established for a comparable provider in Massachusetts.

(B) An out-of-state institutional provider, other than an acute hospital, must submit to the MassHealth agency a current copy of the applicable rate schedule under its state’s Medicaid program.

(C) Payment to an out-of-state noninstitutional provider for any medical service payable by the MassHealth agency is made in accordance with the applicable fee schedule established by EOHHS, subject to any applicable federal payment limit ( see 42 CFR 447.304).

(D) Payment to an out-of-state acute hospital provider for any medical service payable by the MassHealth agency is made as set forth in 130 CMR 450.233(D)(1) through (3). For purposes of 130 CMR 450.233(D), a “High MassHealth Volume Hospital” means any out-of-state acute hospital provider that had at least 150 MassHealth discharges during the most recent federal fiscal year for which complete data is available as determined by the MassHealth agency at least 90 days prior to the start of each federal fiscal year. (1) Inpatient Services. Except as provided in 130 CMR 450.233(D)(3), out-of-state acute hospitals are paid for inpatient services as specified in 130 CMR 450.233(D)(1)(a) through (c). (a) Payment Amount per Discharge . 1. Out-of-state APAD . Out-of-state acute hospitals are paid an adjudicated payment amount per discharge (“Out-of-state APAD”) for inpatient services. The Out-of-state APAD is calculated using the sum of the statewide operating standard per discharge and the statewide capital standard per discharge both as in effect for in-state acute hospitals on the date of admission, which is then multiplied by the MassHealth DRG Weight assigned to the discharge based on the information contained in a properly submitted inpatient acute hospital claim. a. “MassHealth DRG Weight” for purposes of 130 CMR 450.233(D) is the MassHealth relative weight determined by the MassHealth agency for each unique combination of APR-DRG and Severity of Illness (SOI). b. “APR-DRG” or “DRG” for purposes of 130 CMR 450.233(D) refers to the All Patient Refined Diagnosis Related Group and Severity of Illness (SOI) assigned to a claim by the 3M APR-DRG Grouper.

3/10/17 130 CMR - 563 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

450.233: continued

2. Out-of-state Outlier Payment . If the calculated cost of the discharge exceeds the discharge-specific outlier threshold, then the out-of-state acute hospital is also paid an outlier payment for that discharge (“Out-of-state Outlier Payment”). The Out-of-state Outlier Payment is equal to the marginal cost factor in effect for in-state acute hospitals on the date of admission multiplied by the difference between the calculated cost of the discharge and the discharge-specific outlier threshold. a. The “calculated cost of the discharge” for purposes of 130 CMR 450.233(D) shall be determined by the MassHealth agency by multiplying the out-of-state acute hospital's allowed charges for the discharge by the following cost-to-charge ratio: i. For a High MassHealth Volume Hospital, the hospital's inpatient cost-to-charge ratio, for the most recent complete rate year used for in-state acute hospitals, as determined by the MassHealth agency. ii. For all other out-of-state acute hospitals, the median in-state acute inpatient hospital cost-to-charge ratio in effect on the date of admission based on MassHealth discharge volume, as determined by the MassHealth agency. b. The “discharge-specific outlier threshold” for purposes of 130 CMR 450.233(D) is equal to the sum of the Out-of-state APAD corresponding to the discharge, and the fixed outlier threshold in effect for in-state acute hospitals on the date of admission. (b) Out-of-state Transfer Per Diem . If an out-of-state acute hospital transfers a MassHealth inpatient to another acute hospital, the transferring out-of-state acute hospital is paid for inpatient services provided to that member at a transfer per diem rate (“Out-of-state Transfer Per Diem” ), capped at the sum of the transferring hospital's Out-of-state APAD plus, if applicable, any Out-of-state Outlier Payment, that would have otherwise applied for the period that the member was an inpatient at the transferring hospital as calculated by the MassHealth agency. No other payments specified in 130 CMR 450.233(D)(1) apply. The Out-of-state Transfer Per Diem is equal to the sum of the transferring hospital's Out-of-state APAD plus, if applicable, any Out-of-state Outlier Payment, that would have otherwise applied for the period that the member was an inpatient at the transferring hospital as calculated by the MassHealth agency, divided by the mean in-state acute hospital all-payer length of stay for the particular DRG assigned, as determined by the MassHealth agency. (c) Out-of-state Psychiatric Per Diem . If an out-of-state acute hospital admits a MassHealth patient primarily for behavioral health services, including psychiatric and substance abuse services, the out-of-state acute hospital shall be paid an all-inclusive psychiatric per diem equal to the psychiatric per diem in effect for in-state acute hospitals on the date of service (“Out-of-state Psychiatric Per Diem” ). No other payments specified in 130 CMR 450.233(D)(1) apply. (2) Outpatient Services . (a) Payment for Outpatient Services . Except as provided in 130 CMR 450.233(D)(3), out-of-state acute hospitals are paid for outpatient services utilizing an adjudicated payment per episode of care payment methodology (“Out-of-state APEC”) as described in 130 CM 450.233(D)(2)(b), or in accordance with the applicable fee schedule established by EOHHS for outpatient services for which in-state acute hospitals are not paid the APEC. For purposes of 130 CMR 450.233(D), “APEC-covered services” are outpatient services for which in-state acute hospitals are paid an APEC, and “episode” means all APEC-covered services delivered to a MassHealth member on a single calendar day, or if the services extend past midnight in the case of emergency department or observation services; on consecutive days. (b) Out-of-state APEC . The Out-of-state APEC for each payable episode will equal the sum of the episode-specific total EAPG payment, and the APEC outlier component (see 130 CMR 450.233(D)(2)(b)1. and 2.) For proper payment out-of-stat acute hospitals must include on a single claim all of the APEC-covered services that correspond to the episode, and must otherwise submit properly completed outpatient hospital claims.

3/10/17 130 CMR - 564 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

450.233: continued

1. The “episode specific total EAPG payment” is equal to the sum of all of the episode's claim detail line EAPG payment amounts, where each claim detail line EAPG payment mount is equal to the product of the APEC outpatient statewide standard in effect for in-state acute hospitals on the date of service, and the claim detail line's adjusted EAPG weight. The 3M EAPG Grouper's discounting, consolidation and packaging logic is applied to each of the episode's claim detail line MassHealth EAPG weights to produce the claim detail line's adjusted EAPG weight used for this calculation. For purposes of 130 CMR 450.233(D) a. EAPG stands for Enhanced Ambulatory Patient Group . EAPG(s) are assigned to aim detail lines containing APEC-covered services based on information, contained on a properly submitted outpatient claim by the 3M EAPG Grouper, and refer to a group of outpatient services that have been bundled for purposes of categorizing and measuring casemix. b. 3M EAPG Grouper refers to the 3M Corporation's EAPG grouper that has been configured for the MassHealth APEC payment methodology. c. MassHealth EAPG weight refers to the MassHealth relative weight developed b the MassHealth agency for each unique EAPG. 2. The “APEC outlier component” is equal to the marginal cost factor in effect for in-state acute hospitals on the date of service multiplied by the difference between the episode-specific case cost and the episode-specific outlier threshold. If the episode-specific case cost is less than the episode-specific outlier threshold, then the APEC outlier component will be $0. a. The “episode-specific case cost” for purposes of 130 CMR 450.233(D) shall be determined by the MassHealth agency by multiplying the sum of the allowed charges for all of the claim detail lines with APEC-covered services in the episode that adjudicate to pay, by the following cost-to-charge ratio: I. For a High MassHealth Volume Hospital, the hospital's outpatient cost-to-charge ratio, for the most recent complete rate year used for in-state acute hospitals, as determined by the MassHealth agency. ii. For all other out-of-state acute hospitals, the median in-state acute outpatient hospital cost-to-charge ratio in effect on the date of service based on MassHealth episode volume, as determined by the MassHealth agency. b. The “episode-specific outlier threshold” for purposes of 130 CMR 450.233(D) is equal to the sum of the episode-specific total EAPG payment corresponding to the episode, and the fixed outpatient outlier threshold in effect for in-state acute hospitals on the date of service. c. In no case is an APEC outlier component payable if the episode-specific total EAPG payment is $0. (3) Services Not Available In-state . (a) For medical services payable by the MassHealth agency that are not available in-state as determined by the MassHealth agency, an out-of-state acute hospital that is not a High MassHealth Volume Hospital will be paid the rate of payment established for the medical service under the other state's Medicaid program (or equivalent) as determined by the MassHealth agency, or such other rate as the MassHealth agency determines necessary to ensure member access to services. (b) For an inpatient service that is not available in-state, as determined by the MassHealth agency, payment to the out-of-state acute hospital under 130 CMR 450.233(D)(3)(a) will also include acute hospital outpatient services that the MassHealth agency determines are directly related to the service that is not available in-state. (c) In order to receive payment under 130 CMR 450.233(D)(3), an out-of-state acute hospital provider must 1. submit to the MassHealth agency a complete list of services that are to be performed, along with their corresponding charges; and 2. coordinate the case with clinical staff designated by the MassHealth agency.

3/10/17 130 CMR - 564.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

450.234: Rates of Payment to Chronic Disease, Rehabilitation, or Similar Hospitals with Both Out-of-state Inpatient Facilities and In-state Outpatient Facilities

Payment to a chronic disease, rehabilitation, or similar hospital with both out-of-state inpatient facilities and in-state outpatient facilities, for any medical service payable by the MassHealth agency is made as follows:

(A) Inpatient Services . For inpatient services, payment shall be in accordance with 130 CMR 435.405(B).

(B) Outpatient Services . (1) For outpatient services provided out-of-state, payment shall be in accordance with 130 CMR 450.233(A) and (B). (2) For outpatient services provided in-state, payment shall be the median in-state outpatient hospital cost-to-charge ratio for similar hospitals.

450.235: Overpayments

(A) Overpayments include, but are not limited to, payments to a provider (1) for services that were not actually provided or that were provided to a person who was not a member on the date of service; (2) for services that were not payable under MassHealth on the date of service, including services that were payable only when provided by a different provider type and services that were not medically necessary (as defined in 130 CMR 450.204); (3) in excess of the maximum amount properly payable for the service provided, to the extent of such excess; (4) for services for which payment has been or should be received from health insurers, worker's compensation insurers, other third-party payers, or members; (5) for services for which a provider has failed to make, maintain, or produce such records, prescriptions, and other documentary evidence as required by applicable federal and state laws and regulations and contracts; (6) for services provided when, as of the date of service, the provider was not a participating provider, or was in any breach or default of the provider contract; (7) for services billed that result in a duplicate payment; or (8) in an amount that a federal or state agency (other than the MassHealth agency) has determined to be an overpayment.

(B) A provider must report in writing and return any overpayments to the MassHealth agency within 60 days of the provider identifying such overpayment or, for payments subject to reconciliation based on a cost report, by the date any corresponding cost report is due, whichever is later. A provider must include in such written report the reason for the overpayment and use such form and follow such process that may be prescribed by the MassHealth agency.

450.236: Overpayments: Calculation by Sampling

In any action or administrative proceeding to determine or recover overpayments, the MassHealth agency may ascertain the amount of overpayments by reviewing a representative sample drawn from the total number of claims paid to a provider during a given period and extrapolating the results of the review over the entire period. The MassHealth agency employs statistically valid techniques in establishing the size and distribution of the sample to ensure that it is a valid and representative sample.

450.237: Overpayments: Determination

The existence and amount of overpayment may be determined in an action to recover the overpayment in any court having jurisdiction. The MassHealth agency may also determine the existence and amount of overpayments. The procedures described in 130 CMR 450.236 and 450.237 do not apply to overpayments resulting from rate adjustments, which are governed by methods described in 130 CMR 450.259.

3/10/17 130 CMR - 564.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

450.237: continued

(A) Overpayment Notice . When the MassHealth agency believes that an overpayment has been made, it notifies the provider in writing of the facts upon which the MassHealth agency bases its belief, identifying the amount believed to have been overpaid and the reasons for concluding that such amount constitutes an overpayment. When the overpayment amount is based on a determination by a federal or state agency (other than the MassHealth agency), the MassHealth agency will so inform the provider. The MassHealth agency may notify the provider by letter, draft audit report, computer printout, or other format.

(B) Timely Reply . To preserve its right to an adjudicatory hearing and judicial review, the provider must reply in writing to the MassHealth agency and such reply must be received by the MassHealth agency within 30 calendar days of the date on the overpayment notice. The reply must specifically identify and address all allegations in the overpayment notice with which the provider disagrees. With the reply, the provider may submit additional data and argument to support its claim for payment and must include any documentary evidence it wants the MassHealth agency to consider. Where the MassHealth agency states in the overpayment notice that the overpayment amount is based on a determination by a federal or state agency (other than the MassHealth agency), a provider may contest only the factual assertion that the federal or state agency made such a determination. The provider may not contest in any proceeding before or against the MassHealth agency the amount or basis for such determination.

(C) Overpayment Determination . The MassHealth agency considers and reviews only information submitted with a timely reply. If, after reviewing the provider’s reply, the MassHealth agency determines that the provider has been overpaid, the MassHealth agency will so notify the provider in writing of its final determination, which will state the amount of overpayment that the MassHealth agency will recover from the provider.

(D) Adjudicatory Hearing . If the provider submits a timely reply, the provider may file a claim for an adjudicatory hearing to appeal the MassHealth agency's final determination, in accordance with 130 CMR 450.241 and 450.243.

(E) Consequences of Failure to Submit a Timely Reply . The provider has no right to an adjudicatory hearing if it fails to submit a timely reply. The MassHealth agency will take appropriate action to recover the overpayment.

450.238: Sanctions: General

(A) Introduction . All providers are subject to the rules, regulations, standards, and laws governing MassHealth. 130 CMR 450.238 through 450.240 sets forth the MassHealth agency's procedures for imposing sanctions for violations of those rules, regulations, standards, and laws. Such sanctions may include, but are not limited to, administrative fines and suspension or termination from participation in MassHealth. The MassHealth agency determines the amount of any fine and may take into account the particular circumstances of the violation. The MassHealth agency may assess an administrative fine whether or not overpayments have been identified based on the same set of facts.

(B) Instances of Violation . Instances of violation include, but are not limited to (1) billing a member for services that are payable under MassHealth, except copayments as provided in 130 CMR 450.130;

3/10/17 130 CMR - 564.3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 130 CMR: DIVISION OF MEDICAL ASSISTANCE

NON-TEXT PAGE

3/10/17 130 CMR - 564.4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 342

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 220 CMR 69.00

CHAPTER TITLE: Procedures for the Determination and Enforcement of Violations of Safety Codes Pertaining to Pipeline Facilities, Transportation of Natural Gas, and AGENCY: Department of Public Utilities

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 220 CMR 69.00 establishes procedures for determination and enforcement of state and federal pipeline safety standards. The U. S. Department of Transportation’s (“USDOT”) Pipeline and Hazardous Materials Safety Administration has established comprehensive safety standards. The DPU enforces state codes for intrastate natural gas pipelines and facilities, and federal pipeline safety codes, as an agent of the Secretary of USDOT. The amendments to 220 CMR 69.00 update statutory and regulatory references, clarify regulation language, and simplify terms, including the regulation title.

REGULATORY AUTHORITY: M.G.L. c. 164, §§ 66, 76, 76C, and 105A

AGENCY CONTACT: Tina Chin PHONE: (617) 305-3593

ADDRESS: One South Station, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Notified Local Government Advisory Committee: 2/11/16 Notified Department of Environmental Protection: 2/11/16 Executive Office of Administration and Finance Approval: 2/3/16 and 2/10/17

Date of public hearing or comment period: Public Hearing, 4/20/16; Comment Period, 2/26/16 – 4/27/16

For the first five years: There are minimal costs associated with amendments to the regulation.

No fiscal effect:

Date amended small business impact statement was filed: 2/14/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Gas Company; Liquefied Natural Gas; Municipal Gas Department; Natural Gas; Pipeline Facility; Safety Codes; Transportation of Natural Gas

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 15 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 5 - 8 5 - 8 83 & 84 83 & 84 319 - 324 319 - 324

02/15/2017 mrs

Table of Contents Page

220 CMR 37.00: AUTOMATIC TELEPHONE DIALING SYSTEMS 159

Section 37.01: Purpose and Scope 159 Section 37.02: Definitions 159 Section 37.03: Submission and Approval of Implementation Plan 159 Section 37.04: Requirements of Implementation Plan 160

(220 CMR 38.00 THROUGH 44.00: RESERVED) 161

220 CMR 45.00: POLE ATTACHMENT, DUCT, CONDUIT AND RIGHT-OF-WAY COMPLAINT AND ENFORCEMENT PROCEDURES 163

Section 45.01: Purpose and Applicability 163 Section 45.02: Definitions 163 Section 45.03: Duty to Provide Access; Modifications; Notice of Removal, Increase or Modification; and Petition for Interim Relief 164 Section 45.04: Complaint 165 Section 45.05: Response 166 Section 45.06: Procedure Where Formal Hearing is Waived 166 Section 45.07: Remedies 166.1 Section 45.08: Time Limit 166.1 Section 45.09: Appeal from Department Decisions 166.1 Section 45.10: Rates Charged Any Affiliate, Subsidiary, or Associate Company 166.1 Section 45.11: Severability 166.2

(220 CMR 46.00 THROUGH 49.00: RESERVED) 167

220 CMR 50.00: UNIFORM SYSTEM OF ACCOUNTS FOR GAS COMPANIES 169

220 CMR 51.00: UNIFORM SYSTEM OF ACCOUNTS FOR ELECTRIC COMPANIES 283

Section 51.01: General 283 Section 51.02: Summary of Modifications to the FERC System 283 Section 51.03: Specific Changes to the FERC System 284

220 CMR 52.00: UNIFORM SYSTEM OF ACCOUNTS FOR WATER COMPANIES 287

(220 CMR 53.00 THROUGH 68.00: RESERVED) 317

220 CMR 69.00: PROCEDURES FOR THE DETERMINATION AND ENFORCEMENT OF VIOLATIONS OF SAFETY CODES PERTAINING TO PIPELINE FACILITIES, TRANSPORTATION OF NATURAL GAS, AND LIQUEFIED NATURAL GAS FACILITIES 319

Section 69.01: Purpose and Scope 319 Section 69.02: Inspections 319 Section 69.03: Commencement of Enforcement Proceedings 319 Section 69.04: Response Options 320 Section 69.05: Informal Review 320 Section 69.06: Adjudicatory Hearing 321 Section 69.07: Remedial Orders 321 Section 69.08: Consent Orders 321 Section 69.09: Civil Penalties 321 Section 69.10: Hazardous Facility Orders 321

3/10/17 220 CMR - 5 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

Table of Contents Page

(220 CMR 70.00 through 74.00: RESERVED) 325

220 CMR 75.00: THE PRESERVATION OF RECORDS OF ELECTRIC, GAS, AND WATER UTILITIES 327

Section 75.01: Applicability and Scope 327 Section 75.02: Definitions 327 Section 75.03: General Instructions 328 Section 75.04: Application for Exceptions from Provision of 220 CMR 75.00 331 Section 75.05: Schedule of Records and Periods of Retention 332

(220 CMR 76.00: RESERVED) 361

220 CMR 77.00: VOTING TRUST CERTIFICATES OF PUBLIC UTILITIES 365

220 CMR 78.00: ACCOUNTING TREATMENT OF INVESTMENT TAX CREDIT FOR UTILITIES 367

220 CMR 79.00: ANNUAL RETURN TO BE FILED BY GAS AND ELECTRIC COMPANIES AND MUNICIPAL LIGHTING PLANTS 369

Section 79.01: Annual Return for Gas Companies 369 Section 79.02: Annual Return for Municipal Lighting Plants 369 Section 79.03: Annual Return for Water Companies 369 Section 79.04: Annual Return for Electric Companies 369

(220 CMR 80.00 through 98.00: RESERVED) 585

220 CMR 99.00: PROCEDURES FOR THE DETERMINATION AND ENFORCEMENT OF VIOLATIONS OF M.G.L. c. 82, §§ 40 THROUGH 40E ("DIG SAFE"). 601

Section 99.01: Purpose and Scope 601 Section 99.02: Definitions 601 Section 99.03: Premarking 602 Section 99.04: Excavation Notification 602 Section 99.05: Marking Procedures 603 Section 99.06: Excavation 604 Section 99.07: Notice of Probable Violation: Commencement of Enforcement Proceedings 604 Section 99.08: Informal Review 604 Section 99.09: Adjudicatory Hearing 605 Section 99.10: Remedial Orders 605 Section 99.11: Consent Orders 605 Section 99.12: Civil Penalties 606

220 CMR 100.00: MASSACHUSETTS GAS DISTRIBUTION CODE 607

6/17/16 220 CMR - 6 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

Table of Contents Page

220 CMR 101.00: MASSACHUSETTS NATURAL GAS PIPELINE SAFETY CODE 609

Section 101.01: Compliance with MFS Standards 609 Section 101.02: Applications for Exceptions and Waivers from 220 CMR 101.04, 101.05, or 101.06 609 Section 101.03: Definitions Based on 49 CFR Part 192 (Subpart A Section 192.3) of the MFS Standards 609 Section 101.04: Notice of Proposed Construction 610 Section 101.05: Preservation of Records 611 Section 101.06: Additional Rules or Modifications 611

(220 CMR 102.00 AND 103.000: RESERVED) 617

220 CAR 104.00: PETROLEUM GAS PLANTS 623

Section 104.01: Petroleum Gas Plants 623 Section 104.02: Applications for Exceptions and Waivers 623

(220 CMR 105.00 AND 106.000: RESERVED) 627

3/10/17 220 CMR - 7 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

Table of Contents Page

220 CMR 107.00: ABANDONMENT OF GAS SERVICE LINES AND LEAKAGE SURVEY PROCEDURES 647

Section 107.01: Applicability 647 Section 107.02: Application for Exceptions from Provisions of 220 CMR 107.00 647 Section 107.03: Definitions 647 Section 107.04: Procedures for Abandonment of Service Lines 648 Section 107.05: Abandonment of Service Lines 648 Section 107.06: Records and Reports For Inactive and Abandoned Service Lines 648 Section 107.07: Leakage Survey For All Service Lines 649

220 CMR 108.000: CONTROL OF DRUG USE 651

Section 108.01: Compliance with Minimum Federal Safety Standards 651

220 CMR 109.00: DESIGN, CONSTRUCTION, OPERATION, AND MAINTENANCE OF INTRASTATE PIPELINES OPERATING IN EXCESS OF 200 PSIG 652.1

Section 109.01: Applicability and Scope 652.1 Section 109.02: Applications for Exceptions from 220 CMR 109.000 652.1 Section 109.03: Definitions 652.1 Section 109.04: Applicability to Existing Pipelines 652.2 Section 109.05: Compliance with Additional Codes and Standards 652.2 Section 109.06: Location of a Pipeline 652.2 Section 109.07: Pipeline Location Marking 652.3 Section 109.08: Materials 652.3 Section 109.09: Cover and Backfill 652.3 Section 109.10: Welding and Welding Inspection 652.3 Section 109.11: Pressure Testing 652.4 Section 109.12: Valves 652.4 Section 109.13: Operations and Maintenance 652.5

2/19/99 220 CMR - 8 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

(220 CMR 9.00 AND 10.00: RESERVED)

6/17/16 220 CMR - 83 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

(PAGES 85 THROUGH 110 ARE RESERVED FOR FUTURE USE.)

3/10/17 220 CMR - 84 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

220 CMR 69.00: PROCEDURES FOR THE DETERMINATION AND ENFORCEMENT OF VIOLATIONS OF SAFETY CODES PERTAINING TO PIPELINE FACILITIES, TRANSPORTATION OF NATURAL GAS, AND LIQUEFIED NATURAL GAS FACILITIES.

Section

69.01: Purpose and Scope 69.02: Inspections 69.03: Commencement of Enforcement Proceedings 69.04: Response Options 69.05: Informal Review 69.06: Adjudicatory Hearing 69.07: Remedial Orders 69.08: Consent Orders 69.09: Civil Penalties 69.10: Hazardous Facility Orders

69.01: Purpose and Scope

220 CMR 69.00 establishes the procedure for determining the nature and extent of violations of codes, regulations, or rules adopted or enforced by the Department of Public Utilities (Department) pertaining to the safety of pipeline facilities and the transportation of natural gas and liquefied natural gas facilities, including but not limited to, 220 CMR 101.00 through 113.00 and federal pipeline safety standards as set forth in 49 CFR Part 192, including all subsequent amendments; federal safety standards for liquefied natural gas (LNG) as set forth in 49 CFR Part 193, including all subsequent amendments; and federal drug and alcohol testing standards as set forth in 49 CFR Parts 40 and 199, including all subsequent amendments. 220 CMR 69.00 shall apply to violations of these state codes and these federal codes that occur at a time when the Department has submitted and has in effect the annual certification to the United States Secretary of Transportation provided for in 49 U.S.C. § 60105, pursuant to the provisions of M.G.L. c. 164, § 105A.

69.02: Inspections

Officers, employees, or agents authorized by the Commission of the Department or its designee, upon presenting appropriate credentials, are authorized to enter upon, inspect and examine, at reasonable times and in a reasonable manner, the records and properties of gas companies and municipal gas departments to the extent such records and properties are relevant to determining the compliance of such gas companies and municipal gas departments with 220 CMR 101.00 through 113.00, and/or 49 CFR Parts 40, 192, 193 and 199. The facilities, reports, and records needed to ensure compliance with 220 CMR 69.00 shall be accessible to the Department for such inspections. Each gas company and municipal gas department shall provide the Department with such reports, supplemental data, and information as the Department may request for the enforcement and administration of 220 CMR 69.00, except that said companies and departments need not provide the Department with copies of security procedures for a pipeline facility, if such security procedures are made available at the facility for review and inspection by the Department.

69.03: Commencement of Enforcement Proceedings

(1) Warning Letters . Upon determining that a probable violation of 220 CMR 101.00 through 113.00, and/or 49 CFR Parts 40, 192, 193 and 199 has occurred or is occurring, the Department may issue a warning letter notifying the owner or operator of the probable violation and advising the operator to correct it or be subject to enforcement action under 220 CMR 69.03(2) through 69.09. No such warning letter will be deemed to be based on a finding or adjudication by the Department that a violation exists, nor will it constitute evidence that a violation exists.

3/10/17 220 CMR - 319 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

69.03: continued

(2) Notice of Probable Violation . The Department may begin an enforcement proceeding by issuing a notice of probable violation (NOPV) if the Department has reason to believe that a violation of 220 CMR 101.00 through 113.00, and/or 49 CFR Parts 40, 192, 193 and 199 has occurred or is occurring. The NOPV may be issued by the Commission or its designee. The NOPV shall state the provision(s) of the codes, regulations or rules which the respondent is alleged to have violated and the evidence upon which the allegations are based, shall give notice of response options available to the respondent under 220 CMR 69.04, and, if a civil penalty is proposed, shall state the amount of the proposed civil penalty and the maximum civil penalty for which the respondent may be liable under law.

69.04: Response Options

(1) Within 30 days of receipt of an NOPV, the respondent shall respond to the Department in one of the following ways: (a) Pay the proposed civil penalty by check or money order made payable to the Commonwealth of Massachusetts and close the case; (b) Submit an offer in compromise of the proposed civil penalty under 220 CMR 69.04(2); (c) Request an informal conference under 220 CMR 69.05; or (d) Submit a written reply to the Department disputing the violation(s) in the NOPV. The reply must include a complete statement of all relevant facts and authority and full description of the reasons why the respondent disputes the violation(s) alleged in the NOPV.

(2) An offer in compromise under 220 CMR 69.04(1)(b) is made by submitting a check or money order for the amount offered, payable to the Commonwealth of Massachusetts, to the Department. A respondent making an offer in compromise shall also submit written explanations, information, or other materials which may justify the Department's acceptance of the offer in compromise. If an offer in compromise is accepted by the Department, the respondent shall be notified in writing that the acceptance is in full settlement of the civil penalty action. If an offer in compromise is rejected by the Department, the check or money order shall be returned to the respondent with written notification. Within ten days of receipt of such notification, the respondent may request an informal conference under 220 CMR 69.05, or submit a written reply under 220 CMR 69.04(1)(d).

(3) Failure of the respondent to respond to the NOPV in accordance with 220 CMR 69.04 constitutes a waiver of respondent's right to contest the allegations in the NOPV and authorizes the Department, without further notice to the respondent, to find the facts to be as alleged in the NOPV and to issue a final order.

69.05: Informal Review

(1) The informal review shall be conducted by an investigator designated by the Commission. The informal review shall consist of an informal conference, if the respondent has chosen this option under 220 CMR 69.04(1)(c), or an analysis of the respondent's written reply under 220 CMR 69.04(1)(d).

(2) At the informal conference, the respondent shall have the right to be represented by an attorney or other person, and shall have the right to present relevant documents to the investigator. The investigator shall make available to the respondent any evidence which indicates that the respondent may have violated any provision of 220 CMR 101.00 through 113.00, and/or 49 CFR Parts 40, 192, 193 and 199, and the respondent or the respondent's representative shall have the opportunity to rebut this evidence. However, this informal conference shall not be construed to be an adjudicatory hearing for purposes of M.G.L. c. 30A.

(3) The investigator shall make a decision in writing. If the respondent is not satisfied with the decision, the respondent may request an adjudicatory hearing, in writing, within seven days of the date of the decision. Failure to request an adjudicatory hearing within the time allowed will be deemed an admission of the factual allegations and legal conclusions stated in the investigator's decision, and the respondent shall be held liable to pay the civil penalty designated in the NOPV and to comply with a remedial order issued under 220 CMR 69.07.

3/10/17 220 CMR - 320 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

69.06: Adjudicatory Hearing

(1) The adjudicatory hearing shall be a de novo hearing and shall be an adjudicatory hearing for purposes of M.G.L. c. 30A, and shall be conducted pursuant to 220 CMR 1.00: Procedural Rules .

(2) At the adjudicatory hearing, the respondent shall have the right to be represented by an attorney or other representative.

(3) If the Department finds, after the adjudicatory hearing, that the respondent has violated any provision of 220 CMR 101.00 through 113.00, and/or 49 CFR Parts 40, 192, 193 and 199, it may issue a remedial order pursuant to 220 CMR 69.07.

69.07: Remedial Orders

(1) If the Department finds that a violation has occurred or is occurring, it may issue a remedial order. The remedial order shall include a written opinion setting forth the factual and legal basis of the findings and shall direct any party to take or refrain from taking any action, including the payment of a fine or civil penalty provided by law.

(2) A remedial order issued by the Commission or its designee under 220 CMR 69.07 shall be effective upon issuance, in accordance with its terms, unless stayed, suspended, modified or rescinded.

(3) A remedial order is a final decision of the Commission within the meaning of M.G.L. c. 25, § 5, and subject to review by the Supreme Judicial Court.

(4) If the respondent fails either to appeal a remedial order to the Supreme Judicial Court or to comply fully with the order within 20 days after issuance of the order, the Department may refer the case to the Attorney General with a request that an action be brought in the Superior Court to seek appropriate relief, including collection of assessed penalties.

69.08: Consent Orders

(1) Notwithstanding any other provision to the contrary, the Department may at any time resolve an outstanding enforcement issue with a consent order. A consent order must be signed by the person to whom it is issued, or a duly authorized representative, and must indicate agreement with the terms therein. A consent order need not constitute an admission by any person that a violation has occurred.

(2) A consent order is a final order of the Department, having the same force and effect as a remedial order issued pursuant to 220 CMR 69.07.

(3) A consent order shall not be appealable and shall include an express waiver of appeal or judicial review rights that might otherwise attach to a final order of the Department.

69.09: Civil Penalties

The determination of the amount and appropriateness of a civil penalty shall be made pursuant to M.G.L. c. 164, § 105A.

69.10: Hazardous Facility Orders

(1) Except as provided by 220 CMR 69.10(2), if the Department finds, after reasonable notice and opportunity for hearing in accord with 220 CMR 69.10(3), a particular pipeline facility or LNG facility to be hazardous to life or property, it shall issue an order pursuant to 220 CMR 69.10 requiring the owner or operator of the facility to take corrective action. Corrective action may include suspended or restricted use of the facility, physical inspection, testing, repair, replacement, or other action, as appropriate.

3/10/17 220 CMR - 321 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

69.10: continued

(2) The Department may waive the requirement for notice and hearing under 220 CMR 69.10(1) before issuing an order pursuant to 220 CMR 69.10 when the Commission or its designee determines that failure to do so would result in the likelihood of serious harm to life or property. However, the Department shall include in the order an opportunity for hearing as soon as practicable after issuance of an order. The provisions of 220 CMR 69.10(3)(a) apply to an owner or operator's decision to exercise such an opportunity for hearing. The purpose of such a post-order hearing is for the Department to determine whether the order should remain in effect or be rescinded or suspended in accordance with 220 CMR 69.10(7).

(3) Notice and Hearing . (a) Written notice that the Department intends to issue an order under 220 CMR 69.10(3) shall be served upon the owner or operator of an allegedly hazardous facility. The notice shall allege the existence of a hazardous facility, stating the facts and circumstances supporting the issuance of a hazardous facility order, and providing the owner or operator an opportunity for a hearing, identifying the time and location of the hearing. (b) An owner or operator may exercise the opportunity for a hearing under 220 CMR 69.10 by notifying the Department of that election in writing within ten days of service of the notice provided under 220 CMR 69.10(3)(a), or, when applicable, under 220 CMR 69.10(2). Absence of such written notification waives an owner or operator's opportunity for a hearing and allows the Department to proceed to issue a "hazardous facility order" in accordance with 220 CMR 69.10(4) through (7). (c) A hearing under 220 CMR 69.10 shall be an adjudicatory proceeding as defined in M.G.L. c. 30A. The owner or operator of the allegedly hazardous facility shall have the right to be represented by an attorney at this hearing (d) If the Department finds the facility to be hazardous to life or property, the Department shall issue an order in accordance with 220 CMR 69.10. If it does not find the facility to be hazardous to life or property, the Department shall dismiss the allegations contained in the notice, and promptly notify the owner or operator in writing.

(4) The Department may find a pipeline facility or LNG facility to be hazardous under 220 CMR 69.10(1): (a) If, under the facts and circumstances, the Department determines that the particular facility is hazardous to life or property; or (b) If the pipeline facility or LNG facility or a component thereof has been constructed, operated, or maintained with any equipment, material or technique which the Department determines is hazardous to life or property, unless the operator involved demonstrates to the satisfaction of the Department that, under the particular facts and circumstances involved, such equipment, material or technique is not hazardous to life or property.

(5) In making a determination under 220 CMR 69.10(4), the Department shall consider, if relevant: (a) The characteristics of the pipe, components, and other equipment used in the pipeline facility or LNG facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction or assembly; (b) The nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation; (c) The aspects of the areas in which the pipeline facility or LNG facility is located, in particular, the climatic and geologic conditions (including soil characteristics) associated with such areas, and the population density and population and growth patterns of such areas; and (d) Such other factors as the Department may consider appropriate.

(6) The hazardous facility order shall contain the following information: (a) A finding that the pipeline facility or LNG facility is hazardous to life or property. (b) The relevant facts which form the basis for that finding. (c) The legal basis for the order.

3/10/17 220 CMR - 322 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

69.10: continued

(d) The nature and description of particular corrective action(s) required of the respondent. (e) The date by which the required action(s) must be taken or completed, and, where appropriate, the duration of the order. (f) If a hearing has been waived pursuant to 220 CMR 69.10(2), a statement that an opportunity for a hearing is provided at a particular location and at a certain time after issuance of the order.

(7) The Department shall rescind or suspend a hazardous facility order whenever it determines that the facility is no longer hazardous to life or property.

(8) At any time after an order issued under 220 CMR 69.10 has become effective, the Department may request the Attorney General to bring an action for appropriate equitable relief in the Supreme Judicial Court or the Superior Court, as provided in M.G.L. c. 164, § 79.

REGULATORY AUTHORITY

220 CMR 69.00: M.G.L. c. 164, §§ 66, 76, 76C, and 105A.

3/10/17 220 CMR - 323 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

NON-TEXT PAGE

3/10/17 220 CMR - 324 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 343

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 220 CMR 101.00

CHAPTER TITLE: Massachusetts Natural Gas Pipeline Safety Code

AGENCY: Department of Public Utilities

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 220 CMR 101.00 requires intrastate pipeline facilities to comply with state safety codes and with Code of Federal Regulations, Title 49, Federal Minimum Safety Standards. The amended regulation removes the requirement that the DPU review and hold a public hearing regarding Federal Minimum Safety Standards amendments, additions, or revisions, as they are publicly noticed by the U. S. Dept. of Transportation’s Pipeline and Hazardous Materials Safety Administration. The amended regulation revises the business district leak survey interval at 101.06(21)(a) to be consistent with 101.06(21)(b) for outside business districts.

REGULATORY AUTHORITY: M.G.L. c. 164, §§ 66, 76, 76C, and 105A

AGENCY CONTACT: Tina Chin PHONE: (617) 305-3593

ADDRESS: One South Station, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Notified Local Government Advisory Committee: 2/11/16 Notified Department of Environmental Protection: 2/11/16 Executive Office of Administration and Finance Approval: 2/3/16 and 2/10/17

Date of public hearing or comment period: Public Hearing, 4/20/16; Comment Period, 2/26/16 – 4/27/16

For the first five years: There are minimal costs associated with amendments to the regulation.

No fiscal effect:

Date amended small business impact statement was filed: 2/14/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Gas; Gas Corporation; Minimum Federal Safety Standards; Municipal Gas Department; Pipeline; Pipeline Facility; Safety Codes; Transportation of Gas

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 15 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 609 - 616 609 - 616

02/15/2017 mrs

220 CMR 101.00: MASSACHUSETTS NATURAL GAS PIPELINE SAFETY CODE

Section

101.01: Compliance with MFS Standards 101.02: Applications for Exceptions and Waivers from 220 CMR 101.04, 101.05, or 101.06 101.03: Definitions Based on 49 CFR Part 192 (Subpart A Section 192.3) of the MFS Standards 101.04: Notice of Proposed Construction 101.05: Preservation of Records 101.06: Additional Rules or Modifications

101.01: Compliance with MFS Standards

Every gas piping system shall be constructed, operated and maintained, except as otherwise provided in 220 CMR 101.00, in compliance with federal pipeline safety standards as set forth in 49 CFR Part 192: Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards (MFS Standards).

101.02: Applications for Exceptions and Waivers from 220 CMR 101.04, 101.05, or 101.06

(1) A gas corporation or municipal gas department may make a written request to the Department of Public Utilities (Department) for an exception to the provisions of 220 CMR 101.04, 101.05, or 101.06. The Department may, after consideration, and the payment of the appropriate fee, issue the exception requested or modification thereof to the particular gas corporation or municipality requesting such exception. In emergencies, a verbal exception may be granted by the Department, which will then be confirmed by written request within seven days.

(2) The Department may issue a waiver to a gas corporation or municipal gas department from a provision of 49 CFR Part 192 of the federal regulations providing that the waiver pertains to an intrastate facility and the Department gives notice of such waivers to the U.S. Department of Transportation at least 60 days before the waiver becomes effective.

101.03: Definitions Based on 49 CFR Part 192 (Subpart A Section 192.3) of the MFS Standards

As used in 220 CMR 101.06, the following definitions apply:

Distribution Line means a pipeline other than a gathering or transmission line.

Gas means natural gas, flammable gas, or gas which is toxic or corrosive.

Gathering Line means a pipeline that transports gas from a current production facility to a transmission line or main.

High Pressure Distribution System means a distribution system in which the gas pressure in the main is higher than the pressure provided to the customer. ( See 220 CMR 101.06.)

Listed Specification means a specification listed in 49 CFR Part 192, Appendix B, section I.

Low Pressure Distribution System means a distribution system in which the gas pressure in the main is substantially the same as the pressure provided the customer. ( See 220 CMR 101.06.)

Main means a distribution line that serves as a common source of supply for more than one service line.

Maximum Actual Operating Pressure means the maximum pressure that occurs during normal operations over a period of one year.

Maximum Allowable Operating Pressure (MAOP) means the maximum pressure at which a pipeline or segment of a pipeline may be operated under 220 CMR 101.00.

3/10/17 220 CMR - 609 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.03: continued

Municipality means a city, county, or any other political subdivision of a State.

Offshore means beyond the line of ordinary low water along that portion of the coast of the United States that is in direct contact with the open seas and beyond the line marking the seaward limit of inland waters.

Operator means a person who engages in the transportation of gas.

Person means any individual, firm, joint venture, partnership, corporation, association, State, municipality, cooperative association, or joint stock association, and including any trustee, receiver, assignee, or personal representative thereof.

Pipe means any pipe or tubing used in the transportation of gas, including pipe-type holders.

Pipeline means all parts of those physical facilities through which gas moves in transportation, including pipe, valves, and other appurtenance attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders and fabricated assemblies.

Pipeline Facility means new and existing pipelines, rights-of-way, and any equipment facility, or building used in the transportation of gas or in the treatment of gas during the course of transportation.

Secretary means the U.S. Secretary of Transportation or any person to whom he or she has delegated authority in the matter concerned.

Service Line means a distribution line that transports gas from a common source of supply to: (a) a customer meter or the connection to a customer's piping, whichever is farther downstream, or (b) the connection to a customer's piping if there is no customer meter. A customer meter is the meter that measures the transfer of gas from an operator to a consumer.

SMYS (Secified Minimum Yield Strength) is: (a) For steel pipe manufactured in accordance with a listed specification, the yield strength specified as a minimum in that specification; or (b) For steel pipe manufactured in accordance with an unknown or unlisted specification, the yield strength determined in accordance with 49 CFR 192.107(b).

State means each of the several states, the District of Columbia, and the Commonwealth of Puerto Rico.

Transmission Line means a pipeline, other than a gathering line, that: (a) Transports gas from a gathering line or storage facility to a distribution center or storage facility; (b) Operates at a hoop stress of 20% or more of SMYS; or (c) Transports gas within a storage field.

Transportation of Gas means the gathering, transmission, or distribution of gas by pipeline or the storage of gas in or affecting interstate or foreign commerce.

101.04: Notice of Proposed Construction

At least 48 hours prior to the start of construction of pipeline installations, notice shall be filed with the Department in accordance with the requirements listed in 220 CMR 101.04(1) through (3):

(1) Pipeline installation projects of 5000 feet or more in length: All such projects.

3/10/17 220 CMR - 610 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.04: continued

(2) Pipeline installation projects of 2500 feet to 5000 feet in length: 25% of such projects, or a maximum of three of the projects in a calendar year.

(3) If no pipeline installation projects in a calendar year meet the requirements of 220 CMR 101.04(1) and (2), then there shall be reported to the Department no less than three pipeline installations irrespective of the length, provided this number or more are undertaken.

101.05: Preservation of Records

Nothing contained in 220 CMR 101.00 shall conflict with 220 CMR 75.00: The Preservation of Records of Electric, Gas, and Water Utilities .

101.06: Additional Rules or Modifications

Notwithstanding any provision of the MFS Standards which may allow less stringent requirements, the following additional rules or modifications shall apply.

(1) Low Pressure Distribution System. (Section 192.3 MFS Standards.) For the purpose of 220 CMR 101.06, a low pressure distribution system shall be defined as any system in which the gas pressure in the main is equal to or less than two psig.

(2) Intermediate Pressure Distribution System . (Section 192.3 MFS Standards.) For the purpose of 220 CMR 101.06, an intermediate pressure distribution system shall be defined as any system in which the gas pressure in the main is greater than two psig but equal to or less than 60 psig.

(3) High Pressure Distribution System . (Section 192.3 MFS Standards.) For the purpose of 220 CMR 101.06, a high pressure distribution system shall be defined as a system in which the pressure in the main is greater than 60 psig, but equal to or less than 200 psig.

(4) Class Locations . (Section 192.3 MFS Standards.) (a) Gas pipelines which are to be operated at pressures in excess of 200 psig shall not be installed within 40 feet of any building intended for human occupancy unless class 4 construction design criteria are met, or such other design criteria as the Department shall require. (b) For the purpose of 220 CMR 101.00, every gas piping system shall be designed, constructed, tested, operated, and maintained using a class 3 location as a minimum class location designation.

(5) Design Limitations for Plastic Pipe . (Section 192.123 MFS Standards.) (a) The wall thickness for thermoplastic pipe may not be less than 0.090 inches. (b) The Department may approve the use of reinforced thermosetting plastic pipe having a wall thickness not less than that listed in the following table:

Normal Size in Inches Minimum Wall Thickness in Inches 2 0.060 3 0.060 4 0.070 6 0.100

(6) Distribution Line Valves . (Section 192.181 MFS Standards.) Each high pressure and intermediate pressure distribution system must have valves spaced so as to reduce the time to shut down a section of main in an emergency. The valve spacing is determined by the operating pressure, the size of mains, and the local physical conditions.

3/10/17 220 CMR - 611 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.06: continued

(7) Control of the Pressure of Gas Delivered from High Pressure Distribution System . (Section 192.197 MFS Standards.) For the purpose of 220 CMR 101.00, Section 192.197 of the MFS Standards shall be entitled: Control of the Pressure of Gas Delivered from Mains Operating at Higher Pressures Than the Pressure Provided to the Customer .

(8) Required Capacity of Pressure Relieving and Limiting Stations . (Section 192.201 MFS Standards.) Relief valves or other pressure limiting devices must be installed at or near each regular station controlling the pressure to a system operating at a pressure that is substantially the same as the pressure provided to the customer, with a capacity to limit the maximum pressure in the main to a pressure that will not exceed the safe operating pressure for any connected and properly adjusted gas utilization equipment.

(9) Inspection and Test of Welds . (Section 192.241 MFS Standards.) (a) Notwithstanding the requirements of 220 CMR 101.06(9)(b), not less than 10% of the welds randomly sampled over the length of at least three of the installations of which notice of construction is required under 220 CMR 101.04 shall be radiographically examined and available to the Department. If less than three installation projects are undertaken by any company, at least 10% of the welds shall be radiographically examined and available to the Department. (b) The Department may at any time visually inspect any welding and if it is considered faulty, order the operating company to subject the weld to a destructive test as outlined in MFS Standards, Appendix C, paragraph I or to a radiographic examination.

(10) Protection from Hazards . (Section 192.317 MFS Standards.) (a) The method of protecting all new piping on trestles and bridges shall be subject to the approval of the Department. For each such bridge crossing, the operator shall submit a written request for approval and a detailed installation plan to the Department that includes the following items: 1. The proposed nominal pipe diameter, wall thickness, (minimum wall thickness 0.237"), and the Specified Minimum Yield Strength (SMYS). 2. The maximum operating pressure of the pipeline and the test pressure. The maximum operating pressure for new pipelines on bridges shall not exceed 200 psig. 3. For nominal pipe diameters 12" or greater, a calculation of the hoop stress (H) in accordance with the following formula:

H = PD 2t

H = Hoop stress in pounds per square inch P = Maximum Operating Pressure in pounds per square inch gauge D = The specified outer diameter in inches t = Specified wall thickness in inches (not less than 0.237").

4. Method of providing for expansion or contraction of the bridge, if necessary. 5. Pipe support details, number of supports, and distances between supports. 6. The plan shall indicate that valves are provided on both sides of the bridge and their approximate location. (b) For bridges under the care and control of the Massachusetts Department of Transportation (MassDOT), the procedure for a MassDOT permit shall be as follows: 1. On new bridges, a preliminary design plan will be submitted by MassDOT to the pertinent utility company notifying it of the proposed construction and suggested location of pipe on or in the bridge structure. (A copy of this letter will be forwarded to the Director of the Pipeline Engineering and Safety Division of the Department). 2. The utility company will submit a plan to the Department within 30 days of the receipt of the afore described design plan if any construction is proposed on the particular bridge. 3. No permit for the installation of gas facilities on bridges will be considered unless MassDOT has received from the Department a letter approving the design.

3/10/17 220 CMR - 612 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.06: continued

4. All requests for permits for gas facilities on new bridges shall be directed to the Highway and Structures Engineer at the Highway Division of MassDOT. 5. All requests for new gas facilities on existing bridges shall be directed to the Maintenance Engineer at the Highway Division of MassDOT.

(11) Casing . (Section 192.323 MFS Standards.) Where a pipeline is or is to be subjected to a maximum operating pressure in excess of 200 psig, it shall not be laid or maintained (for the purpose of 220 CMR 101.06, maintained shall mean any action of moving, replacing or changing the pipeline for the purposes of upkeep, repair, renewal or replacement) under a highway pavement or under a railroad except where it is necessary to cross a highway or railroad. Whenever such crossings are required, they shall be made as nearly as practicable, to an angle of 90 to the center line of the highway or railroad. In the case of a railroad or highway crossing, the pipe shall be enclosed in a casing. Each casing used on a transmission line or main under a highway or railroad must comply with the following. (a) The casing must be designed to withstand the superimposed loads. (b) If there is a possibility of water entering the casing, the ends must be sealed. (c) If the ends of an unvented casing are sealed and the sealing is strong enough to retain the maximum allowable operating pressure of the pipe, the casing must be designed to hold this pressure at a stress level of not more than 72% of SMYS. (d) If vents are installed on a casing, the vents must be protected from the weather to prevent water from entering the casing. (e) In addition to 220 CMR 101.06(11)(a) through (d), casings under railroads in which the gas carrier pipe is or is to be subjected to operating pressure in excess of 200 psig shall meet the requirements of the specification in API Code No. 1102 (December 2007) issued by the American Petroleum Institute, Recommended Practice for Liquid Petroleum Pipelines Crossings Railroads and Highways. (f) Casings under highways in which the gas carrier pipe is or is to be subjected to operating pressures in excess of 200 psig shall be designed in accordance with 220 CMR 101.06(11)(e) except that the minimum distance from the top of the casing to the used surface of the road shall be four feet, six inches and the casing shall extend beyond the edges of the pavement or of the used surface of the road where there is no pavement, a distance of not less than 25 feet or to the line of the right of way, whichever is the lesser. ( See also M.G.L. c. 164, § 72 and 220 CMR 111.00: Construction of Streets, Places and Ways, Except Residential Driveways, Over, Along or Across High Pressure Gas Mains Operating at Pressures in Excess of 200 PSIG ).

(12) Cover . (Section 192.327 MFS Standards.) (a) Except as provided in 220 CMR 101.06(12)(c) each buried transmission line must be installed with a minimum cover as follows:

TABLE 1 Location Normal Soil Inches Consolidated Rock Inches Class 3 and 4 locations 36 24 Drainage and ditches of public roads and railroad 36 24 crossings

(b) Gas mains to be installed in highways under the jurisdiction and control of the MassDOT shall be laid with a minimum cover of 36 inches from the top of the main to the used surface of the road. (c) Except as provided in 220 CMR 101.06(12)(d) and (e), each buried main must be installed with at least 24 inches of cover. (d) Where an underground structure prevents the installation of a transmission line or main with the minimum cover, the transmission line or main may be installed with less cover if it is provided with additional protection to withstand anticipated external loads.

3/10/17 220 CMR - 613 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.06: continued

(e) A main may be installed with less than 24 inches of cover providing: 1. Adequate measures are taken to prevent damage to the pipe by external forces. 2. That the maximum allowable operating pressure will produce a stress level of less than 20% of SMYS. 3. That the Department approves the installation.

(13) Service Lines Valve Requirements . (Section 192.363 MFS Standards). Each service line valve on an intermediate pressure or high pressure service line installed above ground or in an area where the blowing of gas would be hazardous, must be designed and constructed to minimize the possibility of the removal of the core of the valve with other than specialized tools.

(14) Service Lines Location of Valves . (Section 192.365 MFS Standards.) All intermediate and high pressure services and all services two inches in diameter or larger shall be equipped with an underground curb shut off located in proximity to the property line, except that whenever gas is supplied to a theatre, church, school, factory, or other buildings where large numbers of persons assemble, an outside shut off in such case will be required regardless of the size of the service or of the service pressure. All underground curb shut offs shall be readily identifiable and available for easy access by gas company personnel.

(15) Test Requirements for Pipelines to Operate at a Hoop Stress less than 30% of SMYS and above 100 psig . (Section 192.507 MFS Standards.) Except for service lines and plastic pipelines, each segment of a pipeline that is to be operated at a hoop stress less than 30% of SMYS and above 100 psig must be tested in accordance with the following: (a) The pipeline operator must use a test procedure that will ensure discovery of all potentially hazardous leaks in the segment being tested. However, loss of pressure due to leakage during the test period is not permitted. (b) If, during the test, the segment is to be stressed to 20% or more of SMYS and natural gas, inert gas, or air is the test medium: 1. A leak test must be made at a pressure between 100 psig and the pressure required to produce a hoop stress of 20% of SMYS; or 2. The line must be walked to check for leaks while the hoop stress is held at approximately 20% of SMYS. (c) Steel gas mains to be operated at pressures from 100 psig to 150 psig shall be air or hydrostatically tested for tightness to 1.5 times the maximum allowable operating pressure for at least one hour. (d) Steel gas mains to be operated at pressures in excess of 150 psig shall be air or hydrostatically tested for tightness to 1.5 times the maximum operating pressure for at least four hours and may be witnessed by the Department. Calibrated recording instruments shall be verified by dead weight instruments and the recording submitted to the Department for certification that the steel gas main as defined may be operated at a pressure which is equal to the test pressure divided by a factor of 1.5.

(16) Test Requirements for Pipelines to Operate at or below 100 psig . (Section 192.509 MFS Standards.) Except for service lines and plastic pipelines, each segment of a pipeline that is to be operated at or below 100 psig must be leak tested in accordance with the following: (a) The pipeline operator must use a test procedure that will ensure discovery of all potentially hazardous leaks in the segment being tested. However, loss of pressure due to leakage during the test period is not permitted. (b) At a test pressure of at least 90 psig for at least one hour. (c) The tie-in joints to the live gas main, cast iron or steel, shall be tested using the soap bubble test.

(17) Test Requirements for Service Lines . (Section 192.511 MFS Standards.) (a) Each segment of a service line (other than plastic) must be leak tested in accordance with 220 CMR 101.06 before being placed in service. If feasible, the service line connection to the main must be included in the test. If not feasible, it must be given a leakage test at the operating pressure when placed in service.

3/10/17 220 CMR - 614 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.06: continued

(b) Each segment of a service line (other than plastic) to operate at not more than 100 psig shall be tested after construction and before being placed into service to at least 90 psig for not less than 15 minutes. Pressure loss due to leakage during the test period is not permitted. (c) Each segment of a service line (other than plastic) to operate at pressures in excess of 100 psig must be tested in accordance with 49 CFR 192.507 of the MFS Standards.

(18) Test Requirements for Plastic Mains and Services . (Section 192.513 MFS Standards.) (a) The test procedure must ensure discovery of all potentially hazardous leaks in the segment being tested. However, loss of pressure due to leakage during the test period is not permitted. (b) The test pressure shall be at least 150% of the maximum operating pressure or 90 psig whichever is the greater, for at least 15 minutes for services, or one hour for mains. However, the maximum test pressure may not be more than three times the design pressure of the pipe.

(19) Maximum Allowable Operating Pressure, Intermediate Pressure and High Pressure Distribution Systems . (Section 192.621 MFS Standards.) No person may operate a segment of an intermediate pressure or high pressure distribution system at a pressure that exceeds the lowest of the applicable pressures shown in 49 CFR 192.621(a)(1) through (5) and (b) of the MFS Standards.

(20) Odorization of Gas . (Section 192.625 MFS Standards.) (a) A combustible gas in a distribution line shall have a distinctive odor of sufficient intensity so that a concentration of 0.15% gas in the air is readily perceptible to the normal or average olfactory senses of a person coming from fresh uncontaminated air into a closed room containing one part of the gas in 666 parts of air. (b) In the concentrations in which it is used, the odorant in combustible gases must comply with the following: 1. The odorant may not be deleterious to persons, material, or pipe. 2. The products of combustion from the odorant may not be toxic when breathed nor may they be corrosive or harmful to those materials to which the products of combustion will be exposed. (c) The odorant may not be soluble in water to an extent greater than 2.5 parts to 100 parts by weight. (d) Equipment for odorization must introduce the odorant without wide variations in the level of odorant. (e) Equipment and facilities for handling the odorant shall be located so as to minimize the effect of an escape of odorant. (f) Each operator shall conduct periodic samplings of the combustible gases to assure the proper concentration of odorant in accordance with 220 CMR 101.06.

(21) Distribution Systems Leakage Surveys and Procedures . (Section 192.723 MFS Standards.) Each operator having a gas distribution system shall conduct leakage surveys, as frequently as experience and technology indicates they are necessary, but in no event shall such leakage surveys be less than the following minimum standards: (a) Business Districts . A gas detector survey must be conducted in business districts including tests of the atmosphere in gas, electric, telephone, sewer and water system manholes, at cracks in pavement and sidewalks, and at other locations providing an opportunity for finding gas leaks, at least once in every consecutive 12 month period. In areas where an effectively prescribed and supervised survey of electric or other manholes and vaults is conducted and offers more frequent coverage than the previous, such a survey procedure may be substituted. Business districts are defined as areas with pavement from building wall to building wall and/or where the principal commercial activity of the city or town takes place. Such areas shall be outlined on a map and maintained by the operator. (b) Distribution System Areas Not Included in the Principal Business District . Leakage surveys shall be made of the area not included in the principal business district at least once in every consecutive 24 month period.

3/10/17 220 CMR - 615 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

101.06: continued

(c) Type of Survey . Leakage surveys for 220 CMR 101.06(21)(a) and (b) shall include one or more of the following: 1. Gas detector surveys using combustible gas indicators, flame ionization equipment, infra-red equipment or other industry accepted testing equipment; 2. Bar tests; 3. Vegetation surveys; 4. Pressure drop tests. (d) Other Surveys . In addition to the requirements of 220 CMR 101.06(21)(a) and (b), a survey of schools, churches, hospitals, theatres, and arenas shall be conducted at least once annually. The survey shall include tests for gas leakage and visual inspection of gas facilities in the immediate area of the service entrance. (e) Hazardous Conditions Repaired . All disclosed conditions of a nature hazardous to persons or property shall be promptly made safe and permanent repairs instituted. (f) Leakage Survey Records . Records of the leakage surveys required under 220 CMR 101.06 shall be maintained for a period of time not less than the interim between successive surveys.

(22) Test Requirements for Reinstating Service Lines . (Section 192.725 MFS Standards). (a) For the purpose of 220 CMR 101.06(22), each service line, temporarily disconnected from the main and to be operated at a pressure not in excess of one psig, shall be tested at a pressure of at least ten psig for not less than 15 minutes. Pressure loss due to leakage during the test period is not permitted. (b) The operator shall make and retain a record of each pressure test required under 49 CFR 192.725 MFS Standards.

REGULATORY AUTHORITY

220 CMR 101.00: M.G.L. c. 164, §§ 66, 76, 76C, and 105A.

3/10/17 220 CMR - 616 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 344

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 220 CMR 104.00

CHAPTER TITLE: Design, Operation and Maintenance of Liquefied Petroleum Plants and Related Facilities AGENCY: Department of Public Utilities

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 220 CMR 104.00 provides mandatory safety guidance to operators of Liquefied Petroleum ("LP") gas plants. The National Fire Protection Association (“NFPA”) has developed comprehensive safety codes for the construction and operation of LP plants and related facilities. See NFPA 59: Utility LP – Gas Plant Code. The amendments to 220 CMR 104.00 remove the outdated reference to the 1968 edition of NFPA 59 and refer to the 2004 edition. Also, the proposed amendments no longer reiterate individual sections of NFPA 59 within the regulations.

REGULATORY AUTHORITY: M.G.L. c. 164, §§ 66, 76, 76C, and 105A

AGENCY CONTACT: Tina Chin PHONE: (617) 305-3593

ADDRESS: One South Station, Boston, MA 02110

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Notified Local Government Advisory Committee: 2/11/16 Notified Department of Environmental Protection: 2/11/16 Executive Office of Administration and Finance Approval: 2/3/16 and 2/10/17

Date of public hearing or comment period: Public Hearing, 4/20/16; Comment Period, 2/26/16 – 4/27/16

For the first five years: There are minimal costs associated with amendments to the regulation.

No fiscal effect:

Date amended small business impact statement was filed: 2/14/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Gas Corporation; Liquefied Petroleum Gas Plant; Municipal Gas Department; National Fire Protection Association

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 15 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 623 - 626 623 & 624

02/15/2017 mrs

220 CAR 104.00: PETROLEUM GAS PLANTS

Section

104.01: Petroleum Gas Plants 104.02: Applications for Exceptions and Waivers

104.01: Petroleum Gas Plants

All liquefied petroleum gas plants in Massachusetts shall be constructed, operated, and maintained according to the requirements of National Fire Protection Association 59 Utility LP-Gas Plant Code (2004) (NAPA 59), and applicable provisions of 220 CAR 101.00: Massachusetts Natural Gas Pipeline Safety Code and 49 CAR Parts 40,192, and 199.

104.02: Applications for Exceptions and Waivers

(1) A gas corporation or municipal gas department may make written request to the Department of Public Utilities (Department) for exception from any of the provisions of NFPA 59 or 220 CAR 104.01. The Department may, after consideration, and the payment of the appropriate fee, issue the requested exception or modification to the specific gas corporation or municipal gas department requesting such exception. Upon request or in an emergency, a verbal exception may be granted by the Department. This verbal request for grant of exception must be subsequently confirmed in writing to the Department within seven days of the time the exception is granted.

(2) The Department may issue a waiver to a gas corporation or municipal gas department from provisions of 49 CAR Part 40, 192, or 199 of the federal regulations, providing that the waiver pertains to an intrastate facility and the Department gives notice of such waiver to the U.S. Department of Transportation at least 60 days before the waiver is to become effective.

REGULATORY AUTHORITY

220 CAR 104.00: M.G.L. c. 164, §§ 66, 76, 76C, and 105A.

3/10/17 220 CMR - 623 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 220 CMR: DEPARTMENT OF PUBLIC UTILITIES

(PAGES 625 AND 626 ARE RESERVED FOR FUTURE USE.)

3/10/17 220 CMR - 624 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 154

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Notice of Correction Secretary of the Commonwealth Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 248 CMR 10.00

CHAPTER TITLE: Uniform State Plumbing Code

AGENCY: Board of State Examiners of Plumbers and Gas Fitters

ORIGINAL PUBLICATION REFERENCE: 1331 Date: 01/27/2017

SUMMARY OF CORRECTION: A clerical revision is necessary. The Register version of a table, 248 CMR 10.10(18(table 1) was not updated to reflect the changes approved and presented for public hearing (no post hearing changes were made). As a result, page numbers 248 CMR 136 and 137 need to be replaced. A copy of these pages showing the correct table is being filed with this notice. Note this is a clerical issue only, the submitted table is identical to the submission made on September 8, 2016.

AGENCY CONTACT: Charles Kilb PHONE: 617-727-2707

ADDRESS: Div. of Prof. Licensure, 1000 Washington St., 7th Fl., Boston, MA 02118

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST: SIGNATURE: SIGNATURE ON FILE DATE: Feb 23 2017 Publication To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017 EFFECTIVE DATE: 01/27/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 135 - 138 135 - 138

02/23/2017 mrs

10.10: continued

3. Toilets for public use shall be of the elongated style and the seats shall be solid plastic, non-porous and of the open front type. Refer to 248 CMR 10.10(5)(a) through (e). 4. When a urinal(s) is provided in a toilet facility the floor areas one foot in front of the urinal lip and one foot on each side of the urinal and the wall areas to four feet above the finished floor surface, shall be protected by non-absorbent building products and material. Wood and fiber boards are prohibited in these areas. Refer to 248 CMR 10.10(7)(c). 5. In a toilet facility with more than one toilet, or with a toilet and a urinal, each toilet shall be enclosed. Each urinal shall be side shielded for privacy. 6. When two or more urinals are required, a shield shall be provided between urinals. (o) Laundries . Laundry facilities requirements. A washing machine connection that consists of a piping arrangement that includes a cold water supply, hot water supply and a sufficient drain connection shall be provided in conformance with the following: 1. One and Two Family Dwelling . At least one washing machine connection. 2. Multiple Dwellings . a. Non-elderly Housing . In multiple dwellings that are not restricted to the elderly, one washing machine connection for every ten dwelling units, or fraction thereof. b. Elderly Housing . In housing that is restricted to the elderly, one washing machine connection for every 20 dwelling units or fraction thereof. c. Dormitories . In dormitories, one washing machine connection for every ten dwelling units or fraction thereof. For purposes of post-secondary school residential dormitories, the Board interprets one dwelling unit to be equivalent to four students. d. The washing machine connection shall be located so that each occupant in the dwelling has access to the washing machine that may be affixed to the washing machine connection. (p) Urinals . 1. Urinals may be substituted for toilets where indicated in 248 CMR 10.10(19): Table 1 are listed by percentage. 2. Urinals listed for elementary, secondary, post-secondary and industrial factory/warehouse are in addition to the toilets required. 3. When urinals are used at least one shall be set for handicapped use. (q) Bathroom Group Defined . a bathroom group shall consist of one bath tub or shower stall, one toilet, and one lavatory. (r) Use of Gender-neutral Toilet Rooms . For purposes of the minimum fixture requirements of 248 CMR, wherever 248 CMR 10.00 requires two or more toilet fixtures designated by gender, those facilities may be replaced with single use Gender-neutral toilet rooms pursuant to one of the following options: 1. Every gender designated toilet fixture is replaced with an equal number of single use gender-neutral toilet rooms (such that there are no gender designated fixtures); or 2. Where the code requires four or more toilet fixtures combined for males and females, gender designated fixtures may be replaced by single use Gender-neutral toilet rooms in increments of two such that for every male designated fixture replaced by a Gender-neutral toilet room, a female designated fixture must also be replaced by a Gender-neutral toilet room, and vice-versa ( e.g . instead of three men's toilets, four female toilets, there may be installed two men's toilets, three female toilets, and two single use Gender-neutral toilet rooms).

1/27/17 248 CMR - 135 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 248 CMR: BOARD OF STATE EXAMINERS OF PLUMBERS AND GAS FITTERS

10.10: continued

Table 1: Minimum Facilities For Building Occupancy.

Drinking Pertinent Toilets Building Clarification Use Urinals Lavatories Water Bath/ Other Regulations. Group Males Each Sex Station Show. Fixtures 248 CMR Females Males with drain 10.10(19) Theaters A-1 1 per 30 1 per 60 50% 1 per 100 1 per 1000 1 service (b), (i)1., (m), sink per (n), (p) floor Nightclubs, Pubs A-2 1 per 30 1 per 50 50% 1 per 75 (b), (m), (n), (p) Restaurants A-31 per 301 per 60 50% 1 per 200 (b), (m), (n), (p) Hall, Museums, Libraries etc . A-3 1 per 50 1 per 10050% 1 per 200 (b), (i)1., (m), (n), (p) Coliseums, Arenas A-3 1 per 30 1 per 60 50% 1 per 150 (b), (i)1., (m), (n), (p) House of Worship A-4 1 per 50 1 per 10050% 1 per 200 (b), (c), (m), (n), (p) Stadiums etc . A-51 per 301 per 60 50% 1 per 150 (i)1., (m), (n), (p) Pool/Fitness Centers A-5 1 per 40 1 per 40 33% 1 per 60 At least 1 for (i)1., (m), (n), one source every 40 (p). For pools, see 105 CMR for bather load. Bathing (Public Beaches) 1 per 2001 per 50033% 1 per 1000 1 per 1 Service (d), (m), (n), (p) 1000 Sink Day Care Facility (Child) E-I-3 1 per 20 1 per 20 1 per 20 1 Service (e), (m), (n) Sink (Staff) N/A1 per 201 per 2533% 1 per 40 (i), (m), (n), (p) Detention Facility (Detainee) I-3 1 per 6 1 per 8 33% 1 per 6 1 per 8 (f), (m), (p) (Staff) N/A1 per 201 per 2533% 1 per 40 (i), (m), (n), (p) Dwellings (Single) R One Bathroom Group and One Kitchen Sink (o), (q) (Multiple) R One Bathroom Group and One Kitchen Sink per Unit (o), (q) (Hotel/Motel) R One Bathroom Group per Unit (m), (q) (Dormitories) R-2 1 per 6 1 per 8 33% 1 per 8 1 per 8 1 Service (g), (m), (n), (p) Sink per Floor Educational (Kindergarten) E 1 per 20 1 per 20 1 per 20 1 per 75 (h), (i), (m), (n), (p) 1 Service (Elementary) E 1 per 30 1 per 60 1 per 60 1 per 60 1 per 75 Sink Per (Secondary) E 1 per 30 1 per 90 1 per 90 1 per 90 1 per 75 Floor (Post Secondary) E 1 per 90 1 per 1801 per 1801 per 180 1 per 75 Staff) E 1 per 20 1 per 25 33% 1 per 40 Employee (Non-industrial)* 1 per 20 1 per 25 33% 1 per 40 1 Service (i), (m), (n), (p) Sink per Floor

3/10/17 (Effective 1/27/17) - corrected 248 CMR - 136 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 248 CMR: BOARD OF STATE EXAMINERS OF PLUMBERS AND GAS FITTERS

10.10: continued

Drinking Pertinent Toilets Building Clarification Use Urinals Lavatories Water Bath/ Other Regulations. Group Males Each Sex Station Show. Fixtures 248 CMR Females Males with drain 10.10(19) Employee (Industrial Factory/ F 1 per 15 1 per 20 1 per 40 1 per 30 1 per 15 (j), (m), (n), (p) Warehouse and Similar Usage Institution Hospital (Private/Semi) I 1 per Room 1 per Room 1 Per each 1 per 15 1 Service (i), (m), (n) set of rest- (in ICU) rooms Nursing Homes: 1 per 12 Sink 1 toilet and 1 (inpatient lavatory with direct facilities access from each other Per bedroom (shared than by 8 beds max), ICU) can be unisex. Floor 1 per 6 patients (Psychi- atric Hosp.)

1 per 8 (Rehab facility) Nursing Homes (Ward) 1 per 8 1 per 10 33% 1 per 10 1 per 15 (i), (m), (n), (p)

Malls (Covered) M 1 per 7501 per 50% 1 per 2000 1 per 2000 (i), (l), (m), (n), 1500 (p) Medical/Health Care Building B 1 per 45 1 per 55 50% 1 per 200 1 Per each (i), (k), (m), (n), set of rest- (p) rooms (may be a 1 Service Water Station, without Sink drain)

Per Office Buildings B 1 per 20 1 per 25 33% 1 per 50 1 per Floor (i), (m), (n), (p) (may be a Water Floor Station, without drain)

Retail (Mercantile) M 1 per 20 1 per 20 33% 1 per 40 (i), (m), (n), (p)

Waiting Rooms (Airports, A 1 per 35 1 per 75 50% 1 per 200 1 per 500 (b), (m), (n), (p) Railroad and Bus Stations)

(19) Funeral Establishment Preparation Rooms . Funeral establishment preparation rooms shall comply with the provisions of 239 CMR 3.07: Preparation Room . (a) The preparation room of a Funeral establishment shall be provided with a floor drain and flooring that is compliant with 239 CMR 3.07(3): Preparation Room . (b) The preparation room shall include a flushing rim sink and the preparation room shall be protected by proper backflow devices. (c) An additional reduced pressure zone backflow preventer shall be installed on the water distribution system to the building at the outlet side of the meter or main control valve. (d) Emergency Wash Stations shall be installed and be compliant with the provisions of 239 CMR: Board of Registration in Embalming and Funeral Directing .

3/10/17 (Effective 1/27/17) - corrected 248 CMR - 137 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 248 CMR: BOARD OF STATE EXAMINERS OF PLUMBERS AND GAS FITTERS

10.11: Hangers and Supports

(1) General . Piping shall be installed with provisions, when necessary, for expansion, contraction or structural settlement.

(2) Material . Hangers, anchors, and supports shall be of metal or other material of sufficient strength to support the piping and its contents, except that piers may be of concrete, brick, or other Product-accepted material.

(3) Attachment to Building . Hangers and anchors shall be securely attached to the building at sufficiently close intervals to support the piping and its contents.

(4) Intervals of Supports . (a) Vertical Piping . Vertical pipe of the following materials shall be supported at not more than the following distance intervals: 1. Cast iron soil pipe -- at base and at each story height. 2. Threaded pipe (SPS) -- every other story height. 3. Copper tubing -- at each story height but not more than ten-foot intervals. 4. Plastic (PVC and ABS) pipe at each story height, but not more than ten foot intervals and elsewhere as required to maintain proper alignment. 5. Stainless steel tubing at each story height, but not more than ten foot intervals. 6. Aluminum DWV --- at each height, or at intervals not exceeding ten feet. (b) Horizontal Piping . Horizontal pipe of the following materials shall be supported at not more than the following distance intervals. 1. Cast Iron Soil Pipe -- five foot intervals except that where ten-foot lengths of cast iron soil pipe are used, ten-foot intervals between supports are acceptable. 2. Threaded pipe -- 12 foot intervals. 3. Copper tubing (1¼ inches or less) -- six-foot intervals. 4. Copper tubing (1½ inches or over) -- ten-foot intervals. 5. Plastic (PVC and ABS) pipe (1½ inches or less) -- three-foot intervals, (two inches or over) --- four-foot intervals, ( Refer to 248 CMR 10.06(2)(o) and (p). 6. Cross-linked Polyethylene (PEX) Tubing shall meet the following requirements: a. the maximum hanger spacing is to be 32-inch intervals for all sizes; b. the tubing is to be secured rigidly to studs or joist with hangers and supports that enable adequate expansion and ease of movement; c. Plumber shall consult the individual manufacturers recommendations for other specific installation methods. 7. Stainless steel tubing at each story height, but not more than ten foot intervals. 8. Stainless Steel Tubing (1¼ inches or less) -- six-foot intervals. 9. Stainless Steel Tubing (1½ inches or over) -- ten-foot intervals. 10. Aluminum DWV pipe -- ten foot intervals. 11. CPVC pipe sizes one inch or less shall be supported at three-foot intervals and sizes 1¼ and greater shall be supported at four-foot intervals.

(5) Base of Stacks . (a) Bases of cast iron stacks shall be supported on concrete, brick laid in cement mortar, metal brackets attached to the building, or by other methods approved by the Inspector. (b) Other piping material shall be so anchored as to take the load off the stack at the base.

(6) Piping in Masonry . (a) Piping which is installed in and parallel to the faces of reinforced concrete or masonry walls shall be installed in adequately sized pipe space chases formed in the concrete or masonry walls. (b) The pipe chase spaces shall be accessible, or the piping shall be otherwise installed free of the reinforced concrete or masonry.

1/27/17 248 CMR - 138 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 87

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 301 CMR 23.00

CHAPTER TITLE: Review and Approval of Municipal Harbor Plans

AGENCY: Executive Office of Energy and Environmental Affairs

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. Establishes a voluntary procedure by which municipalities may obtain approval of Municipal Harbor Plans from the Secretary, in order that such plans may serve to inform and guide state agency actions affecting the implementation of waterway management programs at the local level.

REGULATORY AUTHORITY: 301 CMR 23.00: M.G.L. c. 21A, §§ 2 and 4A

AGENCY CONTACT: Brad Washburn PHONE: 617-626-1203

ADDRESS: 251 Causeway Street, Suite 800, Boston, MA 02114

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

Date of public hearing or comment period: 4/5/16

For the first five years: n/a

No fiscal effect: n/a

Date amended small business impact statement was filed: 2/21/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: 301 CMR 23.00

PROMULGATION - State the action taken by this regulation and its effect on existing provisions of the Code of Massachusetts Regulations (CMR) or repeal, replace or amend. List by CMR number: The purpose of these revisions is to increase the flexibility provided to municipalities and businesses by allowing for new and expanded economic development opportunities, while ensuring the protection of current and future marine industrial opportunitie

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 23 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 3 & 4 3 & 4 219 - 230 219 - 230

02/23/2017 mrs

Table of Contents Page

301 CMR 20.00: COASTAL ZONE MANAGEMENT PROGRAM 153

Section 20.01: Authority and Purpose 153 Section 20.02: Definitions 153 Section 20.03: State Implementation of the Massachusetts Coastal Program 155 Section 20.04: Consistency Review of Federal Actions with Coastal Effects 156 Section 20.99: Severability 157

(301 CMR 21.00 AND 22.00: RESERVED) 175

301 CMR 23.00: REVIEW AND APPROVAL OF MUNICIPAL HARBOR PLANS 219

Section 23.01: Purpose 219 Section 23.02: Definitions 219 Section 23.03: Notice to Proceed 221 Section 23.04: Review Procedures 222 Section 23.05: Standards for Municipal Harbor Plan Approval 224 Section 23.06: Amendment and Renewal Procedures 228 Section 23.07: Applicability of Certain Provisions of an Approved MHP 229 Section 23.08: Miscellaneous Administrative Procedures 229 Section 23.09: Severability 230

(301 CMR 24.00: RESERVED) 231

301 CMR 25.00: DESIGNATION OF PORT AREAS 237

Section 25.01: Purpose 237 Section 25.02: Definitions 238 Section 25.03: Designation Procedures 238.1 Section 25.04: Designation Standards 238.3 Section 25.05: DPA Boundary Maps 238.4 Section 25.06: Miscellaneous 238.4

301 CMR 26.00: COASTAL POLLUTANT REMEDIATION PROGRAM 238.7

Section 26.01: Authority 238.7 Section 26.02: Purpose 238.7 Section 26.03: Definitions 238.7 Section 26.04: Eligibility Requirements and Conditions 238.8 Section 26.05: Application and Requirements for Grant Awards 238.9 Section 26.06: State Action 238.10 Section 26.07: Applicable Criteria in Project Evaluation 238.10 Section 26.08: Fiscal Considerations 238.10 Section 26.09: Severability 238.10.1

(301 CMR 27.00: RESERVED) 238.11

301 CMR 28.00: OCEAN MANAGEMENT PLAN 238.13

Section 28.01: Authority and Purpose 238.13 Section 28.02: Definitions 238.13 Section 28.03: Jurisdiction 238.15 Section 28.04: Management Areas and Standards 238.16 Section 28.05: Consistency of Agency Authorizations 238.18 Section 28.06: Ocean Development Mitigation Fee 238.19 Section 28.07: Standards for Plan Review, Amendments and Updates 238.19 Section 28.08: Data Standards 238.20 Section 28.09: Severability 238.20.1

3/10/17 301 CMR - 3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

Table of Contents Page

(301 CMR 29.00 through 39.00: RESERVED) 238.21

301 CMR 40.00: TOXIC USE FEE 239

Section 40.01: Authority and Purpose 239 Section 40.02: Definitions 239 Section 40.03: Toxics Use Fees 241 Section 40.04: Late Fee 242 Section 40.05: Fee Waiver 242

301 CMR 41.00: TOXIC OR HAZARDOUS SUBSTANCE LIST 243

Section 41.01: Authority and Purpose 243 Section 41.02: Definitions 243 Section 41.03: Toxic or Hazardous Substance List 245 Section 41.04: Amendment of the Toxic or Hazardous Substance List 246.4 Section 41.05: Designation of Higher and Lower Hazard Substances 246.4 Section 41.06: Higher Hazard Substances 246.5 Section 41.07: Lower Hazard Substances 246.5

(301 CMR 42.00 through 50.00: RESERVED) 247

301 CMR 51.00: LAND ACQUISITION 303

Section 51.01: Definitions 303 Section 51.02: Applicability 303 Section 51.03: General Provisions 304 Section 51.04: Preparation for Real Property Acquisition 304 Section 51.05: Central Register Publication Requirement 304 Section 51.06: Determination of Terms of Acquisition 305 Section 51.07: Public Notice of Commonwealth's Intention to Purchase or Lease Real Property 305 Section 51.08: Real Property Acquisition Procedures 305 Section 51.09: Record Keeping Requirements 306 Section 51.10: Reimbursements to Non-profit Organizations 306

(PAGES 5 AND 6 ARE RESERVED FOR FUTURE USE.)

1/27/17 301 CMR - 4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

301 CMR 23.00: REVIEW AND APPROVAL OF MUNICIPAL HARBOR PLANS

Section

23.01: Purpose 23.02: Definitions 23.03: Notice to Proceed 23.04: Review Procedures 23.05: Standards for Municipal Harbor Plan Approval 23.06: Amendment and Renewal Procedures 23.07: Applicability of Certain Provisions of an Approved MHP 23.08: Miscellaneous Administrative Procedures 23.09: Severability

23.01: Purpose

(1) 301 CMR 23.00 serves as the primary agency of the Commonwealth for environmental planning, as set forth in M.G.L. c. 21A, §§ 2 and 4; and to implement the Massachusetts Coastal Zone Management Program (CZM Program), established by M.G.L. c. 21A, § 4A for the purpose of securing for the inhabitants of the Commonwealth the objectives and benefits of the Federal Coastal Zone Management Act, 16 USC 1451 et seq . 301 CMR 23.00 forms part of the CZM Program and shall be interpreted and applied in a manner consistent with 301 CMR 20.00: Coastal Zone Management Program .

(2) Purpose . 301 CMR 23.00 establishes a voluntary procedure by which municipalities may obtain approval of Municipal Harbor Plans (MHPs) from the Secretary, in order that such plans may serve to inform and guide state agency actions affecting the implementation of waterway management programs at the local level. Specifically, Approved MHPs will be of direct assistance to the Department of Environmental Protection (DEP) in making regulatory decisions pursuant to M.G.L. c. 91 that are responsive to municipal objectives and priorities, harbor-specific conditions, and other local and regional circumstances. The additional purposes served by the regulations are as follows: (a) to promote long-term, comprehensive, municipally based planning of harbors and other waterway areas that fully incorporates state policies governing stewardship of trust lands, as defined in 310 CMR 9.02: Definitions , and that establishes, through early and continuing consultation, an effective partnership between the Commonwealth and its municipalities in such planning efforts; (b) to carry out overall state environmental policy by, among other things, providing for the management of water and land resources to assure the protection and balanced utilization of such resources; promoting the best usage of land and water by encouraging and providing for, in cooperation with other appropriate state agencies, planned industrial, commercial, recreational, and community development; encouraging the restoration and reclamation of degraded or despoiled areas, including harbors and coastal waters; and assisting other state agencies and regional planning agencies in developing programs and policies relating to land-use planning and regulation in the Commonwealth; (c) to comply with and implement national coastal policy as set forth in the Federal Coastal Zone Management Act of 1972, as amended, by encouraging the preparation of special area management plans that provide for increased specificity in protecting significant natural resources, reasonable coastal-dependent economic growth, improved protection of life and property in hazardous areas, and improved predictability in governmental decision making and by encouraging the participation and cooperation of the public, state, local, regional, interstate, and federal governments in the preparation of such plans; (d) to foster the right of the people to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and aesthetic qualities of their environment under Article XCVII of the Massachusetts Constitution.

23.02: Definitions

Approved MHP means an MHP approved by the Secretary in accordance with 301 CMR 23.00.

CZM means the Office of Coastal Zone Management established within the Executive Office of Energy and Environmental Affairs pursuant to M.G.L. c. 21A, § 4A.

3/10/17 301 CMR - 219 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.02: continued

CZM Policies means the policies set forth in 301 CMR 20.00: Coastal Zone Management Program .

CZM Program means the Massachusetts Coastal Zone Management Program established pursuant to M.G.L. c. 21A and codified in 301 CMR 20.00: Coastal Zone Management Program .

DCR means the Department of Conservation and Recreation.

DEP means the Department of Environmental Protection.

Designated Port Area (DPA) means an area of contiguous lands and waters in the coastal zone that has been so designated in accordance with 301 CMR 25.00: Designation of Port Areas . Copies of official DPA maps and any superseding revisions are available from CZM.

Director means the Director of CZM as provided in M.G.L. c. 21A, § 4A.

DPA Master Plan means the component of an MHP pertaining to lands and waters of a DPA within the municipality. The DPA may be segmented for purposes of phasing the development of a Master Plan over time.

Environmental Monitor means the publication published by the Secretary and further described in 301 CMR 11.15: Public Notice and the Environmental Monitor .

Harbor Planning Area means the segment of a coastal or other waterway for which an MHP is developed. The Harbor Planning Area should include all areas that are relevant to the functional use and management of the harbor or other waterway segment in question. Functional use refers to those activities that have the potential to promote or impair water-dependent activity or public use or enjoyment of waterways or shorelands. The landward boundary of any Harbor Planning Area subject to 301 CMR 23.00 shall encompass all filled tidelands subject to the jurisdiction of DEP pursuant to 310 CMR 9.04: Geographic Areas Subject to Jurisdiction . The Harbor Planning Area may be segmented for purposes of phasing the development of an MHP over a period of time.

Harbor Planning Group means a group designated by the municipal official for purposes of developing or overseeing development of an MHP. The group should include individuals knowledgeable of the planning area in question, and must include a representative of the planning board.

MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H, and 301 CMR 11.00: MEPA Regulations .

Municipal Harbor Plan (MHP) means a document (in words, maps, illustrations, and other media of communication) or amendment thereto, submitted in accordance with 301 CMR 23.04, setting forth: (a) a community's general goals and objectives for a Harbor Planning Area, and a corresponding expression of the applied policies that have been established to guide development and other human activity in various sub-areas, in terms of its desired sequence, patterns, limits, and other characteristics; (b) an implementation program that specifies the legal and institutional arrangements, financial strategies, and other measures that will govern public and private utilization of harbor waters and lands, in accordance with the applied policies the community has established for each sub-area; (c) the date on which the municipality proposes to submit the MHP for renewal in accordance with 301 CMR 23.06(2); (d) a planning analysis that synthesizes the technical data, community input, and other information that served as the basis for evaluating tradeoffs among alternatives and choosing preferred courses of action; (e) a review of the public participation process that contributed to the formulation of the substantive elements of the MHP as described in 301 CMR 23.02: Municipal Harbor Plan (MHP) (a) through (d); and

3/10/17 301 CMR - 220 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.02: continued

(f) other elements as may be deemed appropriate by the Secretary to serve the purposes of 301 CMR 23.00.

Municipality means any city or town of the Commonwealth of Massachusetts.

Municipal Official means the mayor of a city, the board of selectmen of a town, or the council of a municipality having a manager-council form of government.

Notice to Proceed means a written statement issued in accordance with the provisions of 301 CMR 23.03.

Person means any individual, corporation, partnership, trust, association, or other business or non-profit organization, or any state, federal, municipal, or regional governmental, intergovernmental or other entity.

Planning Representative means the person(s) designated by the municipal official to represent the municipality in all proceedings under 301 CMR 23.00.

Regional Planning Agency means one of the six coastal regional planning organizations established pursuant to statewide enabling legislation that help communities plan and implement short- and long-range improvements for transportation, economic development, environmental, land use, and community development needs.

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs.

State Agency means a public agency of the Commonwealth.

State Project means any work, action, conduct, alteration, change of use, or other activity that is the subject of a license or permit application submitted to DEP, in accordance with the Waterways Regulations, by a state agency for the provision of facilities or services directly to the public (or to another public agency for such provision to the public) by the state agency or its contractor or agent.

Supporting DPA Use means a use so defined in accordance with 310 CMR 9.02: Definitions .

Temporary Use means a use so defined in accordance with 310 CMR 9.02: Definitions .

Tidelands means present and former submerged lands and tidal flats lying between the present or historic high water mark, whichever is farther landward, and the seaward limit of state jurisdiction. Tidelands include both flowed and filled tidelands as defined in 310 CMR 9.02: Definitions .

Waterway means any area of water and associated submerged land or tidal flat lying below the high water mark of any navigable river or stream, any Great Pond, or any portion of the Atlantic Ocean within the Commonwealth, which is subject to 310 CMR 9.04: Geographic Areas Subject to Jurisdiction .

Waterways Regulations means the regulations established by DEP under M.G.L. c. 91, at 310 CMR 9.00: Waterways .

23.03: Notice to Proceed

(1) Submission Requirements . To request a Notice to Proceed and begin the process of developing an MHP that is eligible for approval, a written description of the proposed planning program must be submitted to the Director, pursuant to 301 CMR 23.08(1), by the planning representative of the municipality, or of each municipality in the event two or more municipalities wish to prepare a joint MHP for a shared Harbor Planning Area. Advance consultation with CZM is encouraged in order to obtain guidance as to the information necessary to allow the public review of the proposed planning program to commence. At a minimum, such information shall include the following:

3/10/17 301 CMR - 221 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.03: continued

(a) a description of the Harbor Planning Group and any staff or consultants that will be available to such group; in the case of a harbor shared by more than one municipality, such description must identify any arrangements that have been made for collaborative or coordinated planning efforts; (b) an appropriately scaled map identifying the proposed Harbor Planning Area; (c) a concise historical narrative of land and water use and development in the Harbor Planning Area, and the reasons for initiating the harbor planning process, including a summary of current problems, opportunities, and other harbor planning issues, together with a review of prior planning efforts as appropriate; (d) a general description of a participation program that includes early and continuing interaction with the public; close coordination within municipal government and with boards, committees, and officials having jurisdiction over land and/or water resources affecting the Harbor Planning Area, including those of neighboring municipalities as appropriate; and consultation with CZM, DEP, and other affected state agencies, regional planning agencies, and federal government, including those owning real property or otherwise responsible for the implementation of plans or projects in the Harbor Planning Area; and (e) a general description of a study program that identifies the planning analysis to be employed for developing goals, addressing potential issues, and assessing alternatives including any potential substitutions or amplifications to 310 CMR 9.00: Waterways pursuant to 301 CMR 23.05(2)(b) through (d).

(2) Public Notice and Distribution Requirements . After receiving a request for a Notice to Proceed pursuant to 301 CMR 23.03(1), the Director shall publish notice of the proposed planning program in the next available edition of the Environmental Monitor . The municipality shall, on or before the date of such publication: (a) publish the notice in a local newspaper of general circulation and provide a copy of the notice to all public agencies indentified in 301 CMR 23.08(4)(a) and (b); and (b) distribute copies of the proposed planning program in accordance with 301 CMR 23.08(4)(c).

(3) Public Comment . For a period of 30 days after publication of the notice in the Environmental Monitor , the Secretary shall accept written public comments and may convene a public meeting on the proposed planning program.

(4) Issuance of Notice to Proceed . No later than 30 days after the close of the comment period the Director, pursuant to 301 CMR 23.08(1), shall determine in writing whether the request for the proposed planning program has been accepted or declined. In the event a request for the proposed planning program is declined, the Director shall summarize the reasons for the determination. If the request is accepted, the Director shall issue a Notice to Proceed on the proposed planning program. Notice of the issuance of such Notice to Proceed shall be published in the next available edition of the Environmental Monitor . The Notice to Proceed may include specifications as to the information and analysis, including consideration of alternatives, that will be necessary to determine whether the MHP complies with all relevant standards for approval set forth in 301 CMR 23.05. If the Harbor Planning Area appears to include filled tidelands subject to jurisdiction under 310 CMR 9.00: Waterways , the Notice to Proceed shall indicate how the relevant boundaries of such tidelands should be estimated for planning purposes, based on best available information and any regulations and administrative guidelines for historic tideline delineation set forth by DEP.

23.04: Review Procedures

(1) Submission Requirements . The planning representative of the municipality shall submit a proposed MHP to the Secretary within two years of the date of issuance of the Notice to Proceed, unless written approval is obtained from the Secretary for an extension of the submission deadline by an additional six months. The proposed MHP shall be prepared in accordance with content and format instructions provided by CZM, with whom advance consultation is encouraged to obtain guidance as to the information necessary to allow the review process to commence. At a minimum such content shall include the following: (a) text encompassing all basic elements of an MHP as defined in 301 CMR 23.02 and addressing all matters discussed in the Notice to Proceed; and

3/10/17 301 CMR - 222 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.04: continued

(b) supporting documentation containing, among other things, the data and analysis establishing how the MHP complies with the standards for approval set forth in 301 CMR 23.05.

(2) Public Notice and Distribution Requirements . Upon the submission of a proposed MHP that meets the requirements of 301 CMR 23.04(1), the Secretary shall publish notice of the submission and of the location and date of the public hearing scheduled in accordance with 301 CMR 23.04(3)(b) in the next available edition of the Environmental Monitor . The municipality shall, on or before the date of such publication: (a) publish the notice in a local newspaper of general circulation, and provide a copy of the notice to all persons and organizations identified in 301 CMR 23.08(4)(a) and (b), and to all persons who submitted written comments on the proposed planning program; and (b) distribute copies of the proposed MHP in accordance with 301 CMR 23.08(4)(c).

(3) Public Comment, Hearing, and Consultation with Municipality . (a) For a period of 30 days after publication of the notice in the Environmental Monitor , the Secretary shall accept public comments on the proposed MHP. The Secretary may extend the public comment period upon the request of any interested person and shall publish notice of any such extension in the next available edition of the Environmental Monitor . Generally, extensions shall not exceed 30 days. (b) A public hearing shall be held by the Secretary prior to the close of the public comment period and within the municipality submitting the proposed MHP. In the case of a jointly submitted MHP for a harbor shared by more than one municipality, a single hearing shall be held. (c) Upon the close of the public comment period, the Secretary shall arrange a consultation session involving one or more meetings with the planning representative of the municipality and members of the Harbor Planning Group in order to obtain further input for purposes of developing a written decision by the Secretary on the proposed MHP. As appropriate, such consultation shall involve other state agencies with legal jurisdiction or special expertise relative to the matters under consideration, including, but not limited to, DEP, DCR, and state agencies owning real property or otherwise responsible for the implementation of plans or projects within the Harbor Planning Area. The consultation shall be completed within 60 days of the close of the public comment period, unless the period is extended at the request of the municipality or by the Secretary as necessary to review any additional information submitted by the municipality more than 30 days after the close of the comment period.

(4) Issuance of Written Decision . No later than 21 days after the close of the consultation session, or at such later time as the municipality may request, the Secretary shall issue a written decision on the proposed MHP and shall send a copy of such decision to the planning representative of the municipality and to all persons who submitted written comments during any comment period under 301 CMR 23.03 and 23.04. The written decision shall indicate whether the Secretary has approved the MHP and shall set forth the basis for such determination, in accordance with the following provisions: (a) no portion of a proposed MHP shall be approved unless it meets the standards for approval set forth in 301 CMR 23.05, provided however that the Secretary may qualify, limit, or otherwise condition such approval in any manner that serves the purposes of 301 CMR 23.00; such conditions may govern both substantive and procedural matters, including but not limited to: 1. the effective date and duration of the approval; 2. the applicability of specified provisions of the MHP to the review of license or permit applications under 310 CMR 9.00: Waterways ; and 3. the legislative, administrative, and other steps that must be taken by the municipality to fulfill any implementation commitments necessary for MHP approval, in accordance with 301 CMR 23.05(4); (b) notwithstanding any provision to the contrary in 301 CMR 23.04(4)(a), the Secretary shall renew the approval of any provisions of an existing Approved MHP submitted in accordance with 301 CMR 23.06(2), except upon a determination that: 1. the continued implementation of said provisions under the Secretary's existing approval would result in significant detriment to any water-related public interest protected by the standards set forth in 301 CMR 23.05; and

3/10/17 301 CMR - 223 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.04: continued

2. such significant detriment cannot be avoided reasonably through sole reliance on further conditions to the Secretary's existing approval; (c) if any portion of a proposed MHP does not meet the standards for approval, the written decision shall identify the issues that have not been adequately addressed, shall indicate what modifications to the MHP or the planning process would be appropriate to remedy the inadequacies noted, and shall provide such additional guidance as the Secretary deems appropriate; upon revision and resubmission, the proposed MHP shall be reviewed in accordance with the procedures of 301 CMR 23.04; (d) if the Secretary of any State Executive Office certifies in writing during public comment or the consultation session pursuant to 301 CMR 23.04(3) that incompatibility cannot be avoided between one or more provisions of the MHP and the planned activities of any state agency under such Executive Office owning real property or otherwise responsible for the implementation of plans or projects within the Harbor Planning Area, the Secretary shall determine that such incompatible MHP provision(s) are not applicable to the property or projects in question; and (e) in the event the Secretary decides not to renew the approval of an Approved MHP or portion thereof, pursuant to 301 CMR 23.06(2), the applicable provisions of said MHP shall remain in full force and effect for any project for which a license or permit application was filed pursuant to 310 CMR 9.00: Waterways on or before the effective date of such decision.

(5) Reconsideration of Decision . The Secretary may reconsider the decision issued pursuant to 301 CMR 23.04(4) only if a compelling basis for such reconsideration is presented in a written petition submitted within 21 days of the Secretary's decision by the planning representative of the municipality, any state agency, or ten or more citizens of the Commonwealth. Such petition must include a clear and concise statement of the specific objections to the Secretary's decision and the relief sought, including specifically any changes that are proposed for consideration. The Secretary shall respond in writing to any such petition within 21 days of the close of the petition period, and shall set forth the basis for such response, including the reasons for any modification of the decision. When the Secretary's decision is final, notice thereof shall be published in the next available edition of the Environmental Monitor .

(6) Effective Date of Approval . An Approved MHP or portion thereof shall be effective for purposes of 310 CMR 9.00: Waterways when the Secretary has determined that the municipality has met all relevant conditions of the approval decision, including but not limited to those related to implementation of any ordinances/bylaws, regulations, capital improvements, programmatic initiatives, or organizational measures. When such implementation requires adoption or other formal action by a municipal body, the Secretary shall make this determination only if the municipal clerk has certified in writing that all such actions have been taken and has submitted copies of the enactments in question to the Secretary. The Secretary's approval shall remain in effect until an amendment or renewal decision becomes effective in accordance with 301 CMR 23.06, except upon a clear showing that the municipality has not continued to meet all relevant conditions of such approval.

23.05: Standards for Municipal Harbor Plan Approval

An MHP or portion thereof shall be approved only upon a written determination by the Secretary that the following standards have been met.

(1) The MHP must be consistent with all CZM Policies, as applicable. In evaluating the MHP for such consistency, the Secretary shall take into account all relevant guidance as to the interpretation and application of such Policies as may be available in documents comprising the CZM Plan and other policy-related materials issued by CZM, such as federal consistency determinations.

(2) The MHP must be consistent with state tidelands policy objectives and associated regulatory principles, as set forth in 310 CMR 9.00: Waterways . In evaluating the MHP for such consistency, the Secretary shall take into account all relevant guidance as to the interpretation and application of such regulations as may be available in written determinations, licensing decisions, and other administrative documents issued pursuant to 310 CMR 9.00, or as may otherwise be provided by DEP in accordance with the consultation procedures of 301 CMR 23.08(2). In addition, the Secretary shall act in accordance with the following provisions.

3/10/17 301 CMR - 224 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.05: continued

(a) As articulated in 310 CMR 9.00: Waterways , the primary state tidelands policy objectives with which the MHP must be consistent are as follows: 1. to ensure that development of all tidelands complies with other applicable environmental regulatory programs of the Commonwealth as provided in 310 CMR 9.33: Environmental Protection Standards , and is especially protective of aquatic resources within coastal Areas of Critical Environmental Concern, as provided in 310 CMR 9.32(1)(e): Areas of Critical Environmental Concern (ACECs) ; 2. to preserve any rights held by the Commonwealth in trust for the public to use tidelands for lawful purposes, and to preserve any public rights of access that are associated with such use, as provided in 310 CMR 9.35: Standards to Preserve Water-related Public Rights ; 3. to preserve the availability and suitability of tidelands that are in use for water-dependent purposes, or that are reserved primarily as locations for maritime industry or other specific types of water-dependant use, as provided in 310 CMR 9.32(1)(b): Tidelands Within Designated Port Areas (DPAs) and 9.36: Standards to Protect Water-dependent Uses ; 4. to ensure that all licensed fill and structures are structurally sound and otherwise designed and built in a manner consistent with public health and safety and with responsible environmental engineering practice, especially in coastal high hazard zones and other areas subject to flooding or sea-level rise, as provided in 310 CMR 9.37: Engineering and Construction Standards ; 5. to ensure patronage of public recreational boating facilities by the general public and to prevent undue privatization in the patronage of private recreational boating facilities, as provided in 310 CMR 9.38: Use Standards for Recreational Boating Facilities ; and to ensure that fair and equitable methods are employed in the assignment of moorings to the general public by harbormasters, as provided in 310 CMR 9.07: Activities Subject to Annual Permit ; 6. to ensure that marinas, boatyards, and boat-launching ramps are developed in a manner that is consistent with sound engineering and design principles, and include such pumpout facilities and other mitigation measures as are appropriate to avoid or minimize adverse impacts on water quality, physical processes, marine productivity, and public health, as provided in 310 CMR 9.39: Standards for Marinas/Boatyards/Boat Ramps ; 7. to ensure that dredging and disposal of dredged material is conducted in a manner that avoids unnecessary disturbance of submerged lands and otherwise avoids or minimizes adverse effects on water quality, physical processes, marine productivity, and public health, as provided in 310 CMR 9.40: Standards for Dredging and Dredged Material Disposal ; 8. to ensure that nonwater-dependent use projects do not unreasonably diminish the capacity of any tidelands to accommodate water-dependent use, as provided in 310 CMR 9.51: Conservation of Capacity for Water-dependent Use ; 9. to ensure that nonwater-dependent use projects on any tidelands devote a reasonable portion of such lands to water-dependent use, including public access in the exercise of public rights in said lands, as provided in 310 CMR 9.52: Utilization of Shoreline for Water-dependent Purposes ; and 10. to ensure that nonwater-dependent use projects on Commonwealth tidelands, except in DPAs, promote public use and enjoyment of such lands to a degree that is fully commensurate with the proprietary rights of the Commonwealth therein, and that ensures that private advantages of use are not primary but merely incidental to the achievement of public purposes, as provided in 310 CMR 9.53: Utilization of Shoreline for Water-dependent Purposes . (b) If the MHP includes provisions that amplify upon any discretionary requirement of 310 CMR 9.00: Waterways , such provisions must be complementary in effect with the regulatory principle(s) underlying such discretionary requirement. At a minimum, this determination shall be based upon a demonstration by the municipality that: 1. the provisions in question do not contradict the corresponding provisions of 310 CMR 9.00: Waterways ; for example, the MHP may not require that which is prohibited nor prohibit that which is required in 310 CMR 9.00: Waterways ;

3/10/17 301 CMR - 225 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.05: continued

2. the provisions in question do not significantly alter the substantive nature of the requirement, narrow the range of factors that may be considered, or otherwise unreasonably affect the ability of DEP to exercise discretion in the interpretation and application of all relevant provisions of 310 CMR 9.00: Waterways ; and 3. the provisions in question must be consistent with the provisions of any memoranda of understanding with other state agencies that, as provided in 310 CMR 9.00: Waterways , may govern the manner in which DEP licenses and permits will incorporate the requirements of other statues and regulations that preserve public rights in waterways and otherwise promote state tidelands policy objectives. (c) If the MHP includes provisions that are intended to substitute for the minimum use limitations or numerical standards of 310 CMR 9.00: Waterways at 310 CMR 9.51(3)(a) through (e), 9.52(1)(b)1., or 9.53(2)(b) and (c), the Secretary must determine that the following conditions have been met, as applicable: 1. as provided in 310 CMR 9.51(3)(a), governing pile-supported structures that extend beyond the footprint of existing, previously authorized pile-supported structures, the MHP must specify alternative replacement requirements that ensure that no net loss of open water will occur for nonwater-dependent purposes, in order to maintain or improve the overall capacity of the state's waterways to accommodate public use in the exercise of water-related rights, as appropriate for the harbor in question; 2. as provided in 310 CMR 9.51(3)(b), governing the location of certain facilities of private tenancy, the MHP must specify alternative limitations and other requirements that ensure that no significant privatization of waterfront areas immediately adjacent to the water-dependent use zone will occur for nonwater-dependent purposes, in order that such areas will be generally free of uses that conflict with, preempt, or otherwise discourage water-dependent activity or public use and enjoyment of the water-dependent use zone, as appropriate for the harbor in question; 3. as provided in 310 CMR 9.51(3)(c), governing the establishment of a water-dependent use zone, the MHP must specify alternative setback distances and other requirements that ensure that new or expanded buildings for nonwater-dependent use are not constructed immediately adjacent to a project shoreline, in order that sufficient space along the water's edge will be devoted exclusively to water-dependent use and public access associated therewith, as appropriate for the harbor in question; 4. as provided in 310 CMR 9.51(3)(d), governing the combined footprint of certain buildings, the MHP must specify alternative site coverage ratios and other requirements that ensure that, in general, buildings for nonwater-dependent use will be relatively condensed in footprint, in order that an amount of open space commensurate with that occupied by such buildings will be available to accommodate water-dependent activity and public access associated therewith, as appropriate for the harbor in question; 5. as provided in 310 CMR 9.51(3)(e), governing the height of certain buildings, the MHP must specify alternative height limits and other requirements that ensure that, in general, new or expanded buildings for nonwater-dependent use will be relatively modest in size, in order that wind, shadow, and other conditions of the ground level environment will be conducive to water-dependent activity and public access associated therewith, as appropriate for the harbor in question; 6. as provided in 310 CMR 9.52(1)(b)1., governing the provision of a pedestrian access network, the MHP may specify a minimum walkway width other than ten feet, provided that the alternative width is appropriate given, among other things, the size and configuration of the water-dependent use zone and the nature and extent of water-dependent activity and public uses that may be accommodated therein; 7. as provided in 310 CMR 9.53(2)(b) and (c), governing provision of water-related public benefits by certain nonwater-dependent use projects, the MHP must specify alternative requirements for public outdoor recreation facilities and for interior facilities of public accommodation that will establish the project site as a year-round locus of public activity in a comparable and highly effective manner;

3/10/17 301 CMR - 226 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.05: continued

(d) In accordance with 310 CMR 9.51(3), any determination made pursuant to 301 CMR 23.05(2)(c), shall be based upon a demonstration by the municipality that the substitute provisions set forth in the MHP will promote, with comparable or greater effectiveness, the state tidelands policy objectives stated in the corresponding provisions of 310 CMR 9.00: Waterways . The substitute provisions may include alternative use limitations or numerical standards that are less restrictive than the Waterways requirements as applied in individual cases, provided that the MHP includes other requirements that, considering the balance of effects on an areawide basis, will mitigate, compensate, or otherwise offset adverse effects on water-related public interests. In determining whether comparable or greater effectiveness has been achieved, the Secretary shall also act in accordance with the following provisions: 1. the planning analysis and data presented therewith shall be organized in a manner that clearly identifies the substitute provisions proposed and establishes the nature and extent of differential effects that any less restrictive requirements will have with respect to the tidelands policy objectives in question; generally, the appropriate level of such analysis will depend on the degree to which the Waterways requirements are relaxed, the significance of benefits associated with proposed offsetting measures, and other relevant circumstances such as the characteristics of the built environment in the area in question; 2. generally, offsetting measures should be applied within reasonable proximity of the locus of adverse effects that need to be offset, in order to avoid or minimize inequity in the distribution of public benefits and detriments; and 3. a special permit, site plan review, or design review process may be acceptable as a means of establishing the particulars of mitigation on a case-by-case basis, provided that the MHP itself sufficiently defines the parameters within which such process will operate, so that a reasonable assessment of likely effects under varying circumstances can be made. (e) If the MHP includes a DPA Master Plan, such Master Plan must preserve and enhance the capacity of the DPA to accommodate water-dependent industrial use, and must prevent substantial exclusion of such use by any other use eligible for licensing in a DPA pursuant to 310 CMR 9.32: Categorical Restrictions on Fill and Structures . At a minimum, this determination shall be based upon a demonstration by the municipality that the following criteria are met: 1. the Master Plan shall ensure that an extensive amount of the total DPA land area in close proximity to the water will be reserved for water-dependent industrial uses, provided that Temporary Use may also be allowed on such reserved lands if the Master Plan establishes guidelines for solicitation of a maritime industrial tenant as a pre-condition of the temporary occupancy; the Master Plan shall further ensure that commercial uses and any accessory uses thereto will not, as a general rule, occupy more than 25% of the total DPA land area covered by the Master Plan; 2. the Master Plan shall set forth reasonable arrangements, as required in 310 CMR 9.36: Standards to Protect Water-dependent Uses , to prevent commitments of any space or facilities that would significantly discourage present or future water-dependent industrial activity, especially on waterfront sites; the arrangements shall include, but are not limited to, appropriate limits on the type, location, density, scale, duration, operation, or other relevant aspects of commercial uses, in order to ensure that such uses will mix compatibly with and not significantly alter the predominantly maritime industrial character of the DPA; the Master Plan may also specify reasonable limitations on any uses in the DPA, if necessary to mitigate undue conflict with existing residential uses on properties abutting the DPA; 3. the Master Plan shall indentify any industrial or commercial uses allowable under the municipal zoning code that shall qualify as a Supporting DPA Use, provided such uses comply with the provisions of the definition set forth in 310 CMR 9.02: Definitions and any associated written guidelines of DEP; if the Master Plan includes provisions to allow for supporting uses on piers over flowed tidelands, the Master Plan shall specify limitations and other requirements that ensure that supporting uses do not decrease the functionality of the working waterfront; 4. the Master Plan shall set forth a strategy to guide the on-going promotion of water-dependent industrial use by appropriate municipalities, state agencies, and federal government; the strategy shall include, but is not limited to:

3/10/17 301 CMR - 227 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.05: continued

a. recommendations for capital improvements or other economic or operational benefits to be provided by projects involving Supporting DPA Uses, in accordance with municipal goals and priorities for development of water-dependent industrial uses on the project sites in question; b. recommendations to preserve or enhance the infrastructure of navigation channels, truck routes and rail lines, and other transportation facilities providing user access to the working waterfront and its backlands from both the water and the land sides; and c. commitments to maintain a surrounding land-development pattern that provides an appropriate buffer between industrial uses in the DPA and community uses that require separation therefrom in order to avoid significant operational conflict. 5. if the Master Plan identifies proposed new sites for recreational boating facilities of nine slips or less pursuant to 310 CMR 9.32(1)(b)7., the Secretary must determine that all of the following additional criteria are met: a. The Master Plan must contain a detailed assessment of the physical characteristics of the DPA (i.e ., configuration, size and location(s) of navigation channel(s); presence of existing docks, moorings, and developed shoreline features; etc .) as well as the functional characteristics of the DPA (i.e ., scale and type of water-dependent uses, volume and type of vessels transiting the waterway, general composition and character of land uses in the DPA, etc .). b. The Master Plan must contain an analysis of the potential effects of new recreational boating facilities on existing or prospective water-dependent industrial activity or watersheet operations within the DPA. This analysis shall include consultation and coordination with the U.S. Coast Guard and local harbormaster, as well as other affected port/harbor users, including the local waterways board, Massport or other port authority, port pilot association, and other users as applicable. c. The Master Plan must demonstrate that the proposed recreational boating facilities will not create navigational conflicts or safety risks with existing or prospective water-dependent industrial activity or watersheet operations in the DPA; such demonstration shall include confirmation from the parties listed in 301 CMR 23.05(2)(e)5.b. d. the Master Plan must demonstrate that such facilities cannot be reasonably located outside of the DPA and, in the case of proposed wet slips, must demonstrate that the proposed recreational berthing capacity cannot reasonably be provided in the form of moorings (permitted annually in accordance with 310 CMR 9.07: Activities Subject to Annual Permit ) or dry rack storage; and e. the Master Plan must demonstrate that the proposed facilities will provide direct economic or operational support to water-dependent industrial use in the DPA, such support may include, but is not limited to, the provision of additional berths for commercial vessels ( i.e . beyond that already existing on the project site).

(3) The MHP must include all feasible measures to achieve compatibility with the plans or planned activities of all state agencies owning real property or otherwise responsible for the implementation or development of plans or projects within the Harbor Planning Area. This determination shall be made only if full consultation has occurred between the municipality and the relevant state agencies, wherein both parties have made every reasonable effort to maximize the compatibility of their respective plans.

(4) The MHP must include enforceable implementation commitments to ensure that, among other things, all measures will be taken in a timely and coordinated manner to offset the effect of any MHP requirement less restrictive than that contained in 310 CMR 9.00: Waterways .

23.06: Amendment and Renewal Procedures

(1) Amendments . Upon written request by the planning representative of a municipality, accompanied by appropriate supporting material, the Secretary may approve an amendment to an Approved MHP. The proposed amendment shall be reviewed under the procedures of 301 CMR 23.04. Notwithstanding such procedures, the Secretary may issue, at the request of the municipality, written clarification and corrections regarding any approval previously issued.

3/10/17 301 CMR - 228 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.06: continued

(2) Renewal . (a) The approval of an MHP shall expire on the date stipulated in the Secretary's approval decision, unless the planning representative of the municipality submits a written request to the Secretary to commence renewal of the approval or to extend the expiration date. The Secretary may extend the expiration date of the approval or portion thereof for a period not to exceed one year. (b) No later than six months prior to the expiration date of the Secretary's approval of the MHP, the Secretary shall notify the planning representative of the municipality of the above renewal requirement. The notification may include instructions as to the information necessary for the renewal process to commence, including but not limited to a review of the MHP's effectiveness in promoting state tidelands policy objectives and other water-related public interests. (c) All provisions of the existing Approved MHP and any proposed amendments shall be reviewed in accordance with 301 CMR 23.04. Until the Secretary's final decision to renew the approval of an existing Approved MHP becomes effective, the Secretary's previous approval shall remain in full force and effect.

23.07: Applicability of Certain Provisions of an Approved MHP

If the Secretary of any State Executive Office certifies in writing, subsequent to the approval of an MHP, that an incompatibility has arisen between a state project under such Executive Office and one or more provisions of the Approved MHP the Secretary shall act in accordance with the following provisions:

(1) upon receipt of the written certification, the Secretary shall follow the notice, comment, and consultation procedures set forth in 301 CMR 23.04(2)(a) and (3), unless the project requires an Environmental Impact Report (EIR);

(2) reasonable arrangements shall be made by the state agency, in full consultation with the Secretary and the affected municipality, to evaluate alternatives to the proposed project in order to avoid or minimize incompatibility with the Approved MHP and to evaluate the possibility of amending the Approved MHP pursuant to 301 CMR 23.06 if incompatibility cannot be reasonably reduced through other measures; if the project requires an Environmental Impact Report (EIR), the information and analysis required for such evaluation shall be limited to that provided in the final EIR prepared in accordance with MEPA; and

(3) to the extent that incompatibility remains between the state project and the Approved MHP after reasonable effort has been made to minimize such incompatibility, in accordance with 301 CMR 23.07(2), the Secretary shall determine that the relevant provisions of the Approved MHP are no longer applicable to the project; this determination shall be made in the Secretary's Certificate on the final EIR, or, if an EIR is not required, within 21 days of the close of the consultation session provided for in 301 CMR 23.07(1).

23.08: Miscellaneous Administrative Procedures

(1) Administration and Delegation . The CZM Program shall administer 301 CMR 23.00 under the direction of the Director. The Secretary may delegate to the Director the authority to issue any written decision or other written statement pursuant to 301 CMR 23.00, exclusive of 301 CMR 23.07. Any such statement signed by the Director shall be deemed the valid and duly authorized statement of the Secretary.

(2) Consultation with DEP . If DEP files written notice with the Secretary during any public comment period, it shall be provided the opportunity to participate in any consultation session with the municipality and to co-chair the public hearing. DEP may also provide a written recommendation to the Secretary concerning the consistency of a proposed MHP with state tidelands policy objectives and associated regulatory principles, as provided in 301 CMR 23.05(2), which shall be evaluated in accordance with the following procedures: (a) if CZM concurs with the recommendation of DEP, such recommendation shall be included in the written decision on the proposed MHP; and

3/10/17 301 CMR - 229 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

23.08: continued

(b) if CZM disagrees with the recommendation of DEP and such disagreement cannot be resolved through routine consultation, the assistance and direction of the Secretary shall be sought in accordance with the provisions of M.G.L. c. 21A, § 4, governing mediation of administrative and jurisdictional conflicts within EEA; if the disagreement is not eliminated through such mediation, the Secretary shall include in the written decision on the proposed MHP an explanation of the specific basis for the final determination on consistency with state tidelands policy objectives and associated regulatory principles.

(3) Saturday, Sunday, or Legal Holiday . When the last day for a Secretarial action falls on a Saturday, Sunday, or legal holiday, the Secretary may act on the next succeeding business day. When the last day of the receipt of comments or receipt of documents for publication in the Environmental Monitor falls on a Saturday, Sunday, or legal holiday, the Secretary shall accept such comments or documents until 5:00 P.M. on the next succeeding business day.

(4) Distribution of Documents . (a) On or before the date on which any notice of request for a Notice to Proceed, proposed MHP, or other submission under 301 CMR 23.00 is published in the Environmental Monitor , the municipality shall send a copy of such document(s) to the following: 1. Director, DEP, Division of Wetlands and Waterways Program (two copies); 2. DEP, Regional Director; for the region appropriate to the proposed planning program; 3. Commissioner, Department of Fish and Game; 4. Commissioner, DCR; 5. Maritime Director, Massachusetts Port Authority, as applicable; 6. Regional planning agencies or land use commissions, as applicable; and 7. any other state agency, person, or organization designated by the Secretary or CZM in the Notice to Proceed or other written statement. (b) Upon request, the municipality shall send a copy of any request for Notice to Proceed, proposed MHP, or other submission under 301 CMR 23.00 to any other state agency, including but not limited to: 1. Massachusetts Historical Commission; 2. Division of Capital Asset Management; 3. Department of Agricultural Resources, if any portion of the Harbor Planning Area has been used for agricultural purposes in the last five years; 4. the following state agencies responsible for the development or regulation of infrastructure facilities within the Harbor Planning Area, as applicable; a. Massachusetts Water Resources Authority; b. Department of Transportation; c. Massachusetts Bay Transportation Authority; d. Department of Public Utilities; e. Energy Facilities Siting Board; and f. any other state agency that may either permit or fund activities in the Harbor Planning Area. (c) The municipality shall make copies of any request for a Notice to Proceed, proposed MHP, or other submission under 301 CMR 23.00 available to the public at the municipal library, city or town hall, and office of the harbormaster and harbor commission, if any. Copies of such documents shall also be made available to individuals, upon request and for a fee not to exceed the cost of printing and mailing. The municipality shall maintain a list of the names and addresses of all persons to whom documents are provided, indicating the dates on which the request was received and the documents sent. (d) Undue delay in meeting the above distribution requirements may be cause for extension of any relevant public comment period by the Secretary.

23.09: Severability

Severability . If any provision of 301 CMR 23.00 or the application thereof is held to be invalid, such invalidity shall not affect any other provision of 301 CMR 23.00.

REGULATORY AUTHORITY

301 CMR 23.00: M.G.L. c. 21A, §§ 2 and 4A.

3/10/17 301 CMR - 230 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 88

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 301 CMR 25.00

CHAPTER TITLE: Designation of Port Areas

AGENCY: Executive Office of Energy and Environmental Affairs

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. Sets forth a procedure for establishing and modifying the boundaries of Designated Port Areas.

REGULATORY AUTHORITY: 301 CMR 25.00: M.G.L. c. 21A, §§ 2 and 4A.

AGENCY CONTACT: Brad Washburn PHONE: 617-626-1203

ADDRESS: 251 Causeway Street, Suite 800, Boston, MA 02114

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

Date of public hearing or comment period: 4/6/16

For the first five years: n/a

No fiscal effect: n/a

Date amended small business impact statement was filed: 2/21/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: 301 CMR 25.00

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 23 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 237 - 238.6 237 - 238.6

02/23/2017 mrs

301 CMR 25.00: DESIGNATION OF PORT AREAS

Section

25.01: Purpose 25.02: Definitions 25.03: Designation Procedures 25.04: Designation Standards 25.05: DPA Boundary Maps 25.06: Miscellaneous

25.01: Purpose

(1) 301 CMR 25.00 serves as the primary agency of the Commonwealth for environmental planning, as set forth in M.G.L. c. 21A, §§ 2 and 4; and to implement the Massachusetts Coastal Zone Management Program (CZM Program), established by M.G.L. c. 21A, § 4A for the purpose of securing for the inhabitants of the Commonwealth the objectives and benefits of the Federal Coastal Zone Management Act, 16 USC 1451 et seq . 301 CMR 25.00 forms part of the CZM Program and shall be interpreted and applied in a manner consistent therewith.

(2) Purpose . 301 CMR 25.00 sets forth a procedure for establishing and modifying the boundaries of Designated Port Areas (DPAs). Since 1978, the CZM Program has identified DPAs as geographic areas of particular state, regional, and national significance with respect to the promotion of commercial fishing, shipping, and other vessel-related activities associated with water-borne commerce and the promotion of manufacturing, processing, and production activities reliant upon marine transportation or the withdrawal or discharge of large volumes of water. These water-dependent industrial uses vary in scale and intensity but generally share a need for infrastructure with three essential components: a waterway and associated waterfront that has been developed for some form of commercial navigation or other direct utilization of the water, backland space that is conducive in both physical configuration and use character to the siting of industrial facilities and operations, and land-based transportation and public utility services appropriate for general industrial purposes. This special combination of industrial attributes is found in a very limited and diminishing portion of the coastal zone, and particularly few areas are of sufficient contiguous extent to invite concentrations of related businesses and/or large-scale facilities. Because economic, environmental, and social factors now virtually preclude further development of such an intensive nature, what remains of the industrialized coast should be preserved to the maximum extent practicable in order to meet the long-term, cumulative space needs of the water-dependent industries that these areas are so well-suited to accommodate. As a matter of state policy, it is not desirable to allow these scarce and non-renewable resources of the marine economy to be irretrievably committed to, or otherwise significantly impaired by, non-industrial or nonwater-dependent types of development, which enjoy a far greater range of locational options. Accordingly, within DPAs it is the intent of the CZM Program to encourage water-dependent industrial use and to prohibit on tidelands subject to the jurisdiction of M.G.L. c. 91 other uses except for compatible public access and certain industrial, commercial, and transportation activities that can occur on an interim basis without significant detriment to the capacity of DPAs to accommodate water-dependent industrial use in the future. The additional purposes served by 301 CMR 25.00 are as follows: (a) to carry out overall state growth policy by encouraging further maritime build-out of existing industrialized waterfronts, in order to both minimize incremental detriments to the environment and maximize the effective return on prior expenditures for port infrastructure; (b) to carry out overall state environmental policy by, among other things, providing for the management of land and water resources to assure the protection and balanced utilization of such resources; promoting the best usage of land and water by encouraging and providing for, in cooperation with other appropriate state agencies, planned industrial, commercial, and community development; and assisting other state agencies and regional planning agencies in developing programs and policies relating to land use planning and regulation in the Commonwealth; and

3/10/17 301 CMR - 237 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

25.01: continued

(c) to comply with and implement national coastal policy as set forth in the Federal Coastal Zone Management Act of 1972, as amended, by giving priority consideration to coastal-dependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries development, ports and transportation, and to the location, to the maximum extent practicable, of new commercial and industrial developments in or adjacent to areas where such development already exists.

25.02: Definitions

Coastal Zone means that area subject to the CZM Program and defined in 301 CMR 20.03: State Implementation of the Massachusetts Coastal Program and 20.99: Severability .

CZM means the Massachusetts Office of Coastal Zone Management established pursuant to M.G.L. c. 21A, § 4A.

CZM Program means the Massachusetts Coastal Zone Management Program established pursuant to M.G.L. c. 21A and codified in 301 CMR 20.00: Coastal Zone Management Program .

DEP means the Department of Environmental Protection.

Design Depth means the required project depth, as measured at mean low water, specified in the applicable authorizing documents for a navigation dredging project. In the event multiple construction projects have been carried out in a channel, the design depth shall be the deepest of the required depths specified for the respective projects.

Designated Port Area (DPA) means an area of contiguous lands and waters in the coastal zone that has been so designated in accordance with 301 CMR 25.00. Copies of official DPA maps and any superseding revisions are available from CZM.

Director means the Director of CZM as provided in M.G.L. c. 21A, § 4A, as amended in St. 1983, c. 589.

EEA means the Executive Office of Energy and Environmental Affairs.

Environmental Monitor means the publication published by the Secretary and further described in 301 CMR 11.15: Public Notice and the Environmental Monitor .

Municipal Official means the mayor of a city, the board of selectmen of a town, or the council of a municipality having a manager-council form of government.

Municipality means any city or town of the Commonwealth of Massachusetts.

Planning Representative means the person(s) designated by the municipal official to represent the municipality in all proceedings under 301 CMR 25.00.

Requesting Party means any person eligible to request the initiation of a DPA review, as listed in 301 CMR 25.03(1).

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs.

3/10/17 301 CMR - 238 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

25.02: continued

State Agency means any public or quasi-public agency, department, board, district, commission, or authority of the Commonwealth.

Water-dependent Industrial Use means any use found to be such in accordance with 310 CMR 9.12(2)(b).

Waterways Regulations means the regulations established by DEP under M.G.L. c. 91, at 310 CMR 9.00: Waterways .

25.03: Designation Procedures

(1) Initiation of Review . CZM shall perodically carry out reviews under 301 CMR 25.00 to determine whether particular areas of land or water shall be included or remain in an existing DPA, or form a new DPA. Except as provided in 301 CMR 25.03(2), the Director also may carry out a review upon the written request of: (a) the municipal official or planning board, or the City Council or other municipal body with authority to enact zoning, of the municipality where the area proposed for review is located; (b) any state agency or regional planning agency with planning, regulatory, or development authority over the area proposed for review; (c) the owner(s) of the area proposed for review; or (d) any ten citizens of the Commonwealth. Such written request shall be accompanied by an assessors map and mailing addresses for all persons owning property within the area proposed for review, as shown on the most recent applicable tax list of the assessors, as well as by preliminary documentation prepared in accordance with any content and format instructions provided by CZM, with whom advance consultation is encouraged in order to obtain guidance as to the minimum information submittal necessary for the request to be completed. Within 45 days of receiving a completed request, the Director shall determine in writing whether the request for review has been accepted or declined and shall summarize the reasons for the determination. In the event a request for review is accepted, the Director may require that additional information be provided by the requesting party, in accordance with any written guidelines that may be provided by CZM.

(2) Areas Not Eligible for Review . The following areas shall not be included in any review carried out under 301 CMR 25.00: (a) any area that has been the subject of a DPA designation decision within the previous five years, except upon a demonstration by a requesting party that substantial and rapid change has occurred in circumstances affecting the suitability of the area to accommodate water-dependent industrial use, as governed by the designation standards set forth in 301 CMR 25.04; (b) any area within a DPA that consisted primarily of Water-dependent Industrial Use throughout the previous five years; (c) any area within a DPA that is recommended for exclusion from review by the City Council or other municipal body with authority to enact zoning, unless the area is the site of a proposed project that is exempt by law from compliance with zoning or has been granted relief from the use restrictions applicable under zoning; or

3/10/17 301 CMR - 238.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

25.03: continued

(d) any land area within a DPA that is entirely bounded by existing DPA lands and/or DPA waters, exclusive of existing roads, residential properties, and sensitive wetland resource areas, such as salt marsh, dunes, banks, beaches, etc .

(3) Commentary . As a general rule, CZM intends to apply the foregoing eligibility criteria in the context of groups of parcels that form coherent planning units, rather than to individual project sites or other properties under common ownership or control. DPA-related attributes typically vary across different parcels, such that the combined characteristics of associated parcels in the same general vicinity are not reflected accurately in the characteristics of any single property. For this reason, it is important that geographic areas subject to review be sized and configured in a manner that allows consideration of all relevant factors affecting overall eligibility to accommodate Water-dependent Industrial Use.

(4) Information Gathering Process . CZM shall carry out all DPA reviews in accordance with the following provisions: (a) Notice of the review shall be published in the Environmental Monitor and, on or before the date of such publication, in a local newspaper of general circulation. A copy of the notice shall be sent to all organizations and persons identified in 301 CMR 25.06(5) and to all property owners identified on any list provided in accordance with 301 CMR 25.03(1). (b) For a period of 30 days after publication of the notice in the Environmental Monitor , CZM shall accept public comments relative to areas and issues that might be addressed in the review. Within this comment period, a public information meeting shall be convened in the municipality where the area subject to review is located. CZM may extend the public comment period upon the request of any interested person and shall publish notice of any extension in the next available edition of the Environmental Monitor . (c) Upon the close of the public comment period, CZM shall arrange a consultation session involving one or more meetings with the planning representative of any affected municipality and with DEP. As appropriate the Director shall also consult with affected state agencies, the operators of water-dependent industrial facilities in the DPA, and any other organizations or persons with expertise related to the designation standards of 301 CMR 25.04. The purpose of the consultation session is to obtain further input and assistance in conducting the review. A work plan shall be established that identifies, among other things, the scope of any additional information that needs to be compiled together with an appropriate division of information-gathering responsibility. CZM shall adopt a target schedule for the information-gathering process, which shall not exceed six months except as may be agreed upon by CZM and the planning representative of the affected municipality. If the accuracy or appropriateness of any factual information gathered during the consultation session is disputed by the planning representative of an affected municipality, or a state agency, the Director shall seek to resolve the dispute through appropriate mediation measures. (d) Within 30 days after the close of the consultation session, CZM shall issue a written designation report for public review and comment. The report shall indicate which areas CZM proposes to include and/or exclude from a DPA and shall include a map(s) showing all proposed changes to existing boundaries and/or specifications of new boundaries. The report shall set forth the data and analysis on which the proposed map amendments are based, in accordance with the designation standards set forth in 301 CMR 25.04.

(5) Public Comment on Designation Report . CZM shall solicit public response to the designation report in accordance with the following provisions: (a) A notice of availability of the report and of the location and date of the public hearing scheduled in accordance with 301 CMR 25.03(5)(c) shall be published in the next available edition of the Environmental Monitor and, on or before the date of such publication, in a local newspaper of general circulation. A copy of the notice shall be sent to the relevant planning representative(s) and to all the organizations and persons identified in 301 CMR 25.06(5).

3/10/17 301 CMR - 238.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

25.03: continued

(b) For a period of 30 days after publication of the notice in the Environmental Monitor , CZM shall accept public comments on the designation report. CZM may extend the public comment period upon the request of any interested person, and shall publish notice of any extension in the next available edition of the Environmental Monitor . (c) A public hearing shall be held by CZM prior to the close of the public comment period and within the municipality where the area subject to review is located.

(6) Issuance of Designation Decision and Map Amendment . Within 60 days after the close of the public comment period, the Director shall issue a final written designation decision stating whether the area(s) under review shall be included or remain within a DPA, in accordance with the designation standards set forth at 301 CMR 25.04. The decision shall include an amended map(s) showing the modified or new boundaries of the DPA, and shall state the reasons for any boundary changes relative to the map previously proposed in the designation report. The Director may qualify, limit, or otherwise condition the designation decision in any manner that serves the purposes of 301 CMR 25.00, and the decision shall take effect immediately upon the date of issuance. A copy of the decision shall be sent to the relevant planning representative(s), to all public agency representatives with whom consultation occurred, and to any other person on request. Notice of the decision shall be published in the next available edition of the Environmental Monitor and a copy of the notice shall be sent to all organizations and persons identified in 301 CMR 25.06(5).

25.04: Designation Standards

(1) Designation of Waters . An area of water reviewed under 301 CMR 25.00 shall be included or remain in a DPA if and only if CZM finds that the area is in substantial conformance with the following criteria governing suitability to accommodate water-dependent industrial use, as appropriate to the harbor in question: (a) the water area must include, or be contiguous with, other DPA waters that include: 1. a navigable entrance or main channel with a design depth of at least 20 feet; and 2. a shoreline that has been substantially developed with piers, wharves, bulkheads, or other structures that establish a functional connection with a land area meeting the criteria set forth in 301 CMR 25.04(2); and (b) the water area must be of a configuration, size, and location appropriate for the maneuvering or berthing of vessels, the placement of intake/outfall structures, or other activities involving direct utilization of the water; at a minimum, the DPA shall include: 1. all channels (including sloped sides necessary to create actual depth) and mooring and turnaround areas within or serving as access channels to land or water areas meeting the designation standards of 301 CMR 25.04; and 2. any water area lying between an entrance or main channel and any land or water areas meeting the designation standards of 301 CMR 25.04, extending channelward from such areas.

(2) Designation of Lands . An area of land reviewed under 301 CMR 25.00 shall be included or remain in a DPA if and only if CZM finds that the area is in substantial conformance with the following criteria governing suitability to accommodate Water-dependent Industrial Use, as appropriate to the harbor in question: (a) the land area must include, or be contiguous with other DPA lands that include, a shoreline that has been substantially developed with piers, wharves, bulkheads, or other structures that establish a functional connection with a water area meeting the criteria set forth in 301 CMR 25.04(1); (b) the land area must lie in reasonable proximity to: 1. established road or rail links leading to major trunk or arterial routes; and 2. water and sewer facilities capable of supporting general industrial use; (c) the land area must exhibit a topography that is generally conducive to industrial use, or reasonably capable of becoming so in terms of technology, cost, and other appropriate factors governing engineering feasibility; and (d) the land area must exhibit a use character that is predominately industrial or reasonably capable of becoming so because it does not contain a dense concentration of:

3/10/17 301 CMR - 238.3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

25.04: continued

1. non-industrial buildings that cannot be removed or converted, with relative ease, to industrial use; or 2. residential, commercial, recreational, or other uses that unavoidably would be destabilized if commingled with industrial activity.

(3) Commentary . As a general rule, CZM intends to apply the foregoing suitability criteria in the context of groups of parcels that form coherent planning units, rather than to individual project sites or other properties under common ownership or control. DPA-related attributes typically vary across different parcels, such that the combined characteristics of associated parcels in the same general vicinity are not reflected accurately in the characteristics of any single property. For this reason, it is important that geographic areas subject to review be sized and configured in a manner that allows consideration of all relevant factors affecting overall suitability to accommodate Water-dependent Industrial Use.

25.05: DPA Boundary Maps

(1) Maps . Maps showing DPA boundaries currently in effect are available from CZM.

(2) Boundary Delineation . Except as otherwise deemed appropriate by the Director, DPA boundaries shall coincide to the maximum extent practicable with roadways, property lines, or other physical or legal landmarks that are generally permanent and can be ascertained with relative ease through field observation or inspection of scaled maps available from municipalities or other government sources. Notwithstanding any other provision of 301 CMR 25.00, CZM may make minor adjustments of an existing DPA boundary to facilitate its identification in relation to such physical or legal landmarks, provided however that such adjustments generally should not result in a net reduction in the total area of the DPA. Unless otherwise specified in a designation decision issued pursuant to 301CMR 25.00, any public or private way serving as the boundary of a DPA shall be included in its entirety.

(3) Boundary Determinations . It is the exclusive responsibility of CZM to formally interpret the DPA boundary maps to determine whether any specific parcel or portion thereof is included in a DPA. Any person who desires a boundary determination shall submit a written request to CZM and shall provide copies of the request to DEP and to such other persons as CZM may require.

25.06: Miscellaneous

(1) Effects of Designation on StateAgency Actions. Inclusion of lands and waters in a Designated Port Area shall have the following effects: (a) in accordance with 301 CMR 20.00: Coastal Zone Management Program , CZM review of federal activities within or impacting a Designated Port Area shall ensure that such activities are consistent with the purposes of 301 CMR 25.00, which implement an enforceable policy of the approved CZM Program; (b) in accordance with 301 CMR 20.00: Coastal Zone Management Program , all appropriate state agencies shall enforce their laws, process regulatory reviews, conduct program activities, disburse funds, construct or supervise the construction of works, or otherwise administer their programs as they relate to DPAs so as to advance the purposes of 301 CMR 25.00.

(2) Applicability of Designation . A decision under 301 CMR 25.00 to include a new area of land or water in a DPA shall not apply to a project within such area if, prior to the date the notice of commencement of review was published in the Environmental Monitor : (a) the public comment period on a license or permit application under M.G.L. c. 91 had commenced, in accordance with the notice requirements of 310 CMR 9.13(1): Notice Requirements ; and (b) applications were submitted and accepted for all other state and federal approvals required for the project, including but not limited to any federal consistency certification to be obtained from CZM.

(3) Clarification of Designation . Upon the request of any interested person, CZM may issue written clarification of a designation decision or minor map corrections, as necessary to serve the purposes of 301 CMR 25.00.

3/10/17 301 CMR - 238.4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

25.06: continued

(4) Saturday, Sunday, or Legal Holiday . When the last day for an action under 301 CMR 25.00 falls on a Saturday, Sunday, or legal holiday, the action shall occur on the next business day. When the last day of the receipt of comments or receipt of documents for publication in the Environmental Monitor falls on a Saturday, Sunday, or legal holiday, CZM shall accept comments or documents on the next succeeding business day.

(5) Distribution of Notice . All public notices prepared in accordance with 301 CMR 25.03 shall be sent, on or before the date the notice is published in the Environmental Monitor , to the following: (a) the municipal official, the planning board, the conservation commission, the City Council or other municipal body with authority to enact zoning, and the harbormaster, if any, of the municipality where the area subject to review is located; (b) any party requesting a review under 301 CMR 25.03(1); (c) DEP, Division of Wetlands and Waterways and Regional Director; (d) Department of Conservation and Recreation, Division of Waterways; (e) Massachusetts Port Authority, Maritime Division and Planning and Development Division, as applicable; (f) Department of Transportation; (g) Executive Office of Housing and Economic Development; (h) Regional planning agencies or land use commissions, as applicable; (i) U.S. Army Corps of Engineers, New England Division; (j) any person who had previously submitted written comments in the proceeding or had requested, in writing, notification and provided the address to which notice should be sent; and (k) any other person deemed appropriate by CZM.

(6) Severability . If any provision of 301 CMR 25.00 or the application thereof is held to be invalid, the holding shall not affect the validity of any other provision of 301 CMR 25.00.

REGULATORY AUTHORITY

301 CMR 25.00: M.G.L. c. 21A, §§ 2 and 4A.

3/10/17 301 CMR - 238.5 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

NON-TEXT PAGE

3/10/17 301 CMR - 238.6 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 628

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 310 CMR 7.70

CHAPTER TITLE: Air Pollution Control

AGENCY: Department of Environmental Protection

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. The amendments to 310 CMR 7.70 allow any power plant that produces useful thermal energy (steam) to deduct from its compliance obligation the CO2 emissions associated with the production of Useful Net Thermal Energy.

REGULATORY AUTHORITY: M.G.L. c. 111, sections 142A through 142E, and M.G.L. c. 21N Section 2(a) AGENCY CONTACT: Bill Lamkin PHONE: (978) 694 - 3294

ADDRESS: MassDEP 205 B Lowell Street, Wilmington, MA 01887

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Prior notification on July 12, 2016 to MOU Agencies (MHC, DPU, EFSB, MEPA, EOEEA, DHCD LGAC of the MMA and DPH).

Date of public hearing or comment period: Hearing 9/22/17 Comment close 9/22/17

For the first five years: Minimal cost to net savings.

No fiscal effect:

Date amended small business impact statement was filed: February 23, 2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Air pollution, climate, Regional Greenhouse Gas Initiative, Combined Heat and Power.

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 24 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 4.1 & 4.2 4.1 & 4.2 250.102.17 - 250.102.24 250.102.17 - 250.102.24 250.102.31 & 250.102.32 250.102.31 & 250.102.32 250.102.35 & 250.102.36 250.102.35 & 250.102.36 02/24/2017 mrs 250.102.49 & 250.102.50 250.102.49 - 250.102.50.2

Table of Contents Page

310 CMR 9.00: WATERWAYS (continued)

Section 9.37: Engineering and Construction Standards 316.4 Section 9.38: Use Standards for Recreational Boating Facilities 316.5 Section 9.39: Standards for Marinas/Boatyards/Boat Ramps 316.6 Section 9.40: Standards for Dredging and Dredged Material Disposal 316.8 Section 9.51: Conservation of Capacity for Water-dependent Use 316.9 Section 9.52: Utilization of Shoreline for Water-dependent Purposes 316.11 Section 9.53: Activation of Commonwealth Tidelands for Public Use 316.12 Section 9.54: Consistency with Coastal Zone Management Policies 316.14 Section 9.55: Standards for Nonwater-dependent Infrastructure Facilities 316.15 Section 9.56: Standards for Facilities of Limited Accommodation 316.15

310 CMR 10.00: WETLANDS PROTECTION 317

All Wetlands Section 10.01: Introduction and Purpose 324 Section 10.02: Statement of Jurisdiction 324 Section 10.03: General Provisions 328 Section 10.04: Definitions 334 Section 10.05: Procedures 350 Section 10.06: Emergencies 369 Section 10.07: Compliance with M.G.L. c. 30, §§ 61 through 62H 373 Section 10.08: Enforcement Orders 374 Section 10.09: Severability 374 Section 10.10: Effective Date 374 Section 10.11: Actions Required Before Submitting a Notice of Intent for an Ecological Restoration Project 376 Section 10.12: Notice of Intent for an Ecological Restoration Project 377 Section 10.13: Eligibility Criteria for Restoration Order of Conditions 379 Section 10.14: Restoration Order of Conditions 381

Coastal Wetlands Section 10.21: Introduction 384 Section 10.22: Purpose 385 Section 10.23: Additional Definitions for 310 CMR 10.21 through 10.37 385 Section 10.24: General Provisions 387 Section 10.25: Land under the Ocean 396 Section 10.26: Designated Port Areas 397 Section 10.27: Coastal Beaches 398 Section 10.28: Coastal Dunes 400 Section 10.29: Barrier Beaches 401 Section 10.30: Coastal Banks 402 Section 10.31: Rocky Intertidal Shores 404 Section 10.32: Salt Marshes 405 Section 10.33: Land under Salt Ponds 406 Section 10.34: Land Containing Shellfish 407 Section 10.35: Banks of or Land under the Ocean, Ponds, Streams, Rivers, Lakes or Creeks that Underlie Anadromous/Catadromous ("Fish Run") 408 (Section 10.36: Reserved: Variance provision is found at 310 CMR 10.05(10)) 410 Section 10.37: Estimated Habitats of Rare Wildlife (for coastal wetlands) 410

Inland Wetlands Section 10.51: Introduction 411 Section 10.52: Purpose 411 Section 10.53: General Provisions 412 Section 10.54: Bank (Naturally Occurring Banks and Beaches) 422 Section 10.55: Bordering Vegetated Wetlands (Wet Meadows, Marshes, Swamps and Bogs) 424

3/10/17 310 CMR - 4.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

Table of Contents Page

310 CMR 10.00: WETLANDS PROTECTION (continued)

Section 10.56: Land under Water Bodies and Waterways (under any Creek, River, Stream, Pond or Lake) 427 Section 10.57: Land Subject to Flooding (Bordering and Isolated Areas) 429 Section 10.58: Riverfront Area 432 Section 10.59: Estimated Habitats of Rare Wildlife (for inland wetlands) 440.2 Section 10.60: Wildlife Habitat Evaluations 440.3

10/24/14 310 CMR - 4.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

CO 2 Cost Containment Reserve Allowance or CO 2 CCR Allowance . A CO 2 allowance that is offered for sale at an auction by DOER for the purpose of containing the cost of CO 2 allowances. CO 2 CCR allowances offered for sale at an auction are separate from and additional to CO 2 allowances from the CO 2 Budget Trading Program base budget. CO 2 CCR allowances are subject to all applicable limitations contained in 310 CMR 7.70 or equivalent regulations in other participating states.

CO 2 Equivalent . The quantity of a given greenhouse gas multiplied by its global warming potential (GWP).

CO 2 Offset Allowance . A CO 2 allowance that is awarded to the sponsor of a CO 2 emissions offset project pursuant to 310 CMR 7.70(10)(g) and is subject to the relevant compliance deduction limitations of 310 CMR 7.70(6)(e)1.c.

Combined Cycle System . A system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.

Combined Heat and Power (CHP) CO 2 Budget Source . A CO 2 Budget Source that contains one or more CO 2 Budget Units which generate electricity and useful thermal energy in a single integrated system.

Combustion Turbine . An enclosed fossil or other fuel-fired device that is comprised of a compressor (if applicable), a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

Commence Commercial Operation . With regard to a unit that serves a generator, to have begun to produce steam, gas, or other heated medium used to generate electricity for sale or

use, including test generation. For a unit that is a CO 2 budget unit under 310 CMR 7.70(1)(d) on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified,

reconstructed, or repowered. For a unit that is not a CO 2 budget unit under 310 CMR 7.70(1)(d) on the date the unit commences commercial operation, the date the unit becomes

a CO 2 budget unit under 310 CMR 7.70(1)(d) shall be the unit's date of commencement of commercial operation.

Commence Operation . To begin any mechanical, chemical, or electronic process, including,

with regard to a unit, startup of a unit's combustion chamber. For a unit that is a CO 2 budget unit under 310 CMR 7.70(1)(d) on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently

modified, reconstructed, or repowered. For a unit that is not a CO 2 budget unit under 310 CMR 7.70(1)(d) on the date of commencement of operation, the date the unit becomes

a CO 2 budget unit under 310 CMR 7.70(1)(d) shall be the unit's date of commencement of operation

Compliance Account . A CO 2 Allowance Tracking System account, established by the Department or its agent for a CO 2 budget source under 310 CMR 7.70(6), in which are held CO 2 allowances available for use by the source for a control period and each interim control period for the purpose of meeting the CO 2 requirements of 310 CMR 7.70(1)(e)3.

Continuous Emissions Monitoring System or CEMS . The equipment required under 310 CMR 7.70(8) to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated DAHS), a permanent record of stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with 40 CFR Part 75 and 310 CMR 7.70(8).

Control Period . The control period is a three-calendar-year time period. The first control period is from January 1, 2009 through December 31, 2011. Each subsequent sequential three-calendar-year period is a separate control period. The first two calendar years of each control period are each defined as an interim control period, beginning in January 1, 2015.

3/10/17 310 CMR - 250.102.17 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

Department . The Massachusetts Department of Environmental Protection (pursuant to St. 1989, c. 240, § 101, "…the department of environmental quality engineering shall be known as the department of environmental protection").

Eligible Biomass . Eligible biomass includes sustainably harvested woody and herbaceous fuel sources that are available on a renewable or recurring basis (excluding old-growth timber), including dedicated energy crops and trees, agricultural food and feed crop residues, aquatic plants, unadulterated wood and wood residues, animal wastes, other clean organic wastes not mixed with other solid wastes, and biogas derived from such fuel sources. Liquid biofuels do not qualify as eligible biomass. Sustainably harvested shall be determined by the Department.

Excess Emissions . Any tonnage of CO 2 emitted by a CO 2 budget source during a control period that exceeds the CO 2 budget emissions limitation for the source.

Excess Interim Emissions . Any tonnage of CO 2 emitted by a CO 2 budget source during an interim control period multiplied by 0.50 that exceeds the CO 2 budget emissions limitation for the source.

First Control Period Interim Adjustment for Banked Allowances . An adjustment applied to

the CO 2 Budget Trading Program base budget for allocation years 2014 through 2020 to address the surplus allocation year 2009, 2010, and 2011 allowances held in general and compliance accounts, including compliance accounts established pursuant to 310 CMR 7.70(6), but not including accounts opened by participating states, that are in addition to the

aggregate quality of first control period CO 2 emissions from all CO 2 budget sources in all of the participating states.

Fossil Fuel . Natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

Fossil Fuel-fired . (a) With regard to a unit that commenced operation prior to January 1, 2005, the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 50% of the annual heat input on a Btu basis during any year. (b) With regard to a unit that commences operation on or after January 1, 2005, the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 5% of the annual heat input on a Btu basis during any year.

General Account . A CO 2 Allowance Tracking System account, established under 310 CMR 7.70(6), that is not a compliance account.

Global Warming Potential (GWP) . A measure of the radiative efficiency (heat-absorbing

ability) of a particular gas relative to that of carbon dioxide (CO 2) after taking into account the decay rate of each gas (the amount removed from the atmosphere over a given number

of years) relative to that of CO 2. Global warming potentials used in 310 CMR 7.70 are consistent with the values used in the Intergovernmental Panel on Climate Change, 2007 Fourth Assessment Report.

Gross Generation . The electrical output (in MWe) at the terminals of the generator.

Interim Control Period . An interim control period is a one-calendar-year time period, during each of the first and second calendar years of each three year control period. The first interim control period starts on January 1, 2015 and ends on December 31, 2015. The second interim control period starts on January 1, 2016 and ends on December 31, 2016, inclusive. Each successive three year control period will have two interim control periods, comprised of each three of the first two calendar years of that control period.

3/10/17 310 CMR - 250.102.18 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

Life-of-the-unit Contractual Arrangement . A unit participation power sales agreement under which a customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and/or associated energy from any specified unit pursuant to a contract: (a) For the life of the unit; (b) For a cumulative term of no less than 25 years, including contracts that permit an election for early termination; or, (c) For a period equal to or greater than either 20 years, or 70% of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

Massachusetts Auction Account . An account administered by DOER for purposes of

auctioning CO 2 allowances.

Massachusetts CO 2 Budget Trading Program Adjusted Budget . The Massachusetts CO 2 Budget Trading Program adjusted budget is determined in accordance with 310 CMR

7.70(5)(c)2. CO 2 offset allowances allocated to project sponsors and CO 2 CCR allowances offered for sale at an auction are separate from and additional to CO 2 allowances allocated from the Massachusetts CO 2 Budget Trading Program adjusted budget.

Massachusetts CO 2 Budget Trading Program Base Budget . The Massachusetts CO 2 Budget Trading Program base budget is specified in 310 CMR 7.70(5)(a). CO 2 offset allowances awarded pursuant to 310 CMR 7.70(10) and CO 2 CCR Allowances offered for sale at auction are separate from and additional to CO 2 allowances allocated from the Massachusetts CO 2 Budget Trading Program base budget.

Massachusetts Department of Energy Resources or DOER . The Massachusetts agency established pursuant to M.G.L. c. 25A, §§ 1 through 13.

Maximum Design Heat Input . The ability of a unit to combust a stated maximum amount of fuel per hour on a steady state basis, as determined by the physical design and physical characteristics of the unit.

Maximum Potential Hourly Heat Input . An hourly heat input used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use Appendix D of 40 CFR Part 75 to report heat input, this value should be calculated, in accordance with 40 CFR Part 75, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with 40 CFR Part 75, using the maximum potential flowrate and

either the maximum carbon dioxide concentration (in percent CO 2) or the minimum oxygen concentration (in percent O 2).

Monitoring System . Any monitoring system that meets the requirements of 310 CMR 7.70(8), including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.

Nameplate Capacity . The maximum electrical output (in MWe) that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the United States Department of Energy standards.

Non-CO 2 Budget Unit . A unit that does not meet the applicability criteria of 310 CMR 7.70(1)(d).

Operator . Any person who operates, controls, or supervises a CO 2 budget unit or a CO 2 budget source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

Owner . Any of the following persons:

(a) Any holder of any portion of the legal or equitable title in a CO 2 budget unit; or

3/10/17 310 CMR - 250.102.19 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

(b) Any holder of a leasehold interest in a CO 2 budget unit, other than a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are

not based, either directly or indirectly, upon the revenues or income from the CO 2 budget unit; or

(c) Any purchaser of power from a CO 2 budget unit under a life-of-the-unit contractual arrangement in which the purchaser controls the dispatch of the unit; or (d) With respect to any general account, any person who has an ownership interest with

respect to the CO 2 allowances held in the general account and who is subject to the binding agreement for the CO 2 authorized account representative to represent that person's ownership interest with respect to the CO 2 allowances.

Participating State . A state that is a member of the CO 2 Budget Trading Program and has promulgated a regulation consistent with 310 CMR 7.70.

Receive or Receipt Of . When referring to the Department or its agent, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence, by the Department or its agent in the regular course of business.

Recordation, Record, or Recorded . With regard to CO 2 allowances, the movement of CO 2 allowances by the Department or its agent from one CO 2 Allowance Tracking System account to another.

Second Control Period Interim Adjustment for Banked Allowances . An adjustment applied

to the Massachusetts CO 2 Budget Trading Program base budget for allocation years 2015 through 2020 to address the allocation year 2012 and 2013 allowances held in general and

compliance accounts, including compliance accounts established pursuant to the CO 2 Budget Trading Program, but not including accounts opened by participating states, that are in

addition to the aggregate quantity of 2012 and 2013 emissions from all CO 2 budget sources in all of the participating states.

Serial Number . When referring to CO 2 allowances, the unique identification number assigned to each CO 2 allowance by the Department or its agent under 310 CMR 7.70(6)(d)4.

Source . Any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any air pollutant. A “source,” including a “source” with multiple units, shall be considered a single “facility.”

State . A U.S. State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands.

Submit or Serve . To send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation: (a) In person; (b) By United States Postal Service; or, (c) By other means of dispatch or transmission and delivery. Compliance with any “submission”, “service”, or “mailing” deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

Ton or Tonnage . Any “short ton”, or 2,000 pounds. For the purpose of determining

compliance with the CO 2 requirements of 310 CMR 7.70(1)(e)3., total tons for a control period and each interim control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with 310 CMR 7.70(8), with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons. A short ton is equal to 0.9072 metric tons.

3/10/17 310 CMR - 250.102.20 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

Undistributed CO 2 Allowances . CO 2 allowances originally allocated to a set-aside account pursuant to 310 CMR 7.70(5)(c) that were not distributed.

Unit . A fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.

Unit Operating Day . A calendar day in which a unit combusts any fuel.

Useful Net Thermal Energy . Energy: (a) in the form of direct heat, steam, hot water, or other thermal form that is used in production and beneficial measures for heating, cooling, humidity control, process use, or other valid thermal end use energy requirements, excluding thermal energy used in the power production process ( e.g ., house loads, parasitic loads); and (b) for which fuel or electricity would otherwise be consumed.

Useful Thermal Energy Account . An account established for the purpose of retiring allowances pursuant to 310 CMR 7.70(5)(c)5.b.

Unsold CO 2 Allowances . CO 2 allowances that have been made available for sale in an auction conducted by DOER, but not sold.

Voluntary Renewable Energy Account . An account established for the purpose of retiring allowances pursuant to 310 CMR 7.7(5)(c)1.b.iii.

(c) Measurements, Abbreviations and Acronyms . Measurements, abbreviations, and acronyms used in 310 CMR 7.70 are defined as follows:

1. CO 2 – carbon dioxide. 2. g – grams. 3. hr – hour. 4. lb – pounds. 5. mol – mole. 1 mole = 6.022 x 10 23 molecules. 6. MWe – megawatt electrical. 7. scf – standard cubic feet. (d) Applicability . Any unit that, at any time on or after January 1, 2005, serves an electricity generator with a nameplate capacity equal to or greater than 25 MWe shall be a

CO 2 budget unit, and any source that includes one or more such units shall be a CO 2 budget source, subject to the requirements of 310 CMR 7.70. (e) Standard Requirements .

1. CO 2 budget emission control plan requirements . a. The CO 2 authorized account representative of each CO 2 budget source shall: i. Submit to the Department a complete CO 2 budget emission control plan under 310 CMR 7.70(3)(c) in accordance with the deadlines specified in 310 CMR 7.70(3)(b); and, ii. Submit in a timely manner any supplemental information that the Department

determines is necessary in order to review and approve or deny the CO 2 budget emission control plan.

b. The owners and operators of each CO 2 budget source and each CO 2 budget unit for the source shall have an approved CO 2 budget emission control plan and operate the CO 2 budget source and the CO 2 budget unit at the source in compliance with such approved CO 2 budget emission control plan. 2. Monitoring Requirements .

a. The owners and operators and, to the extent applicable, the CO 2 authorized account representative of each CO 2 budget source and each CO 2 budget unit at the source shall comply with the monitoring requirements of 310 CMR 7.70(8). b. The emissions measurements recorded and reported in accordance with 310 CMR

7.70(8) shall be used to determine compliance by the unit with the CO 2 requirements of 310 CMR 7.70(1)(e)3.

3. CO 2 Requirements . a. The owners and operators of each CO 2 budget source and each CO 2 budget unit at the source shall hold CO 2 allowances available for compliance deductions under 310 CMR 7.70(6)(e), as of the CO 2 allowance transfer deadline, in the source's compliance account in an amount not less than the total CO 2 emissions for the control period from all CO 2 budget units at the source, minus the CO 2 allowances deducted to meet the requirements of 310 CMR 7.70(1)(e)3.b., as determined in accordance with 310 CMR 7.70(6) and (8).

3/10/17 310 CMR - 250.102.21 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

b. The owners and operators of each CO 2 budget source and each CO 2 budget unit at the source shall hold CO 2 allowances available for compliance deductions under 310 CMR 7.70(6)(e), as of the CO 2 allowance transfer deadline, in the CO 2 budget source's compliance account in an amount not less than the total CO 2 emissions for the interim control period from all CO 2 budget units at the CO 2 budget source multiplied by 0.50, as determined in accordance with 310 CMR 7.70(6) and (8).

c. Each ton of CO 2 emitted in excess of the CO 2 budget emissions limitation for a control period shall constitute a separate violation of 310 CMR 7.70 and applicable state law. d. Each ton of excess interim emissions shall constitute a separate violation of 310 CMR 7.70 and applicable state law.

e. A CO 2 budget unit shall be subject to the requirements under 310 CMR 7.70(1)(e)3.a. on January 1, 2009 or the date on which the unit commences operation, whichever comes later.

f. CO 2 allowances shall be held in, deducted from, or transferred among CO 2 Allowance Tracking System accounts in accordance with 310 CMR 7.70(5) through (7) and(10)(g).

g. A CO 2 allowance shall not be deducted in order to comply with the requirements under 310 CMR 7.70(1)(e)3.a. and b. for a control period or interim control period

that ends prior to the year for which the CO 2 allowance was allocated. A CO 2 offset allowance shall not be deducted in order to comply with the requirements under 310 CMR 7.70(1)(e)3.a. beyond the applicable percent limitations set out in 310 CMR 7.70(6)(e)1.c.

h. A CO 2 allowance under the CO 2 Budget Trading Program is a limited authorization by the Department or a participating state to emit one ton of CO 2 in accordance with the CO 2 Budget Trading Program. No provision of the CO 2 Budget Trading Program, the application for a CO 2 budget emissions control plan, or the approved CO 2 budget emissions control plan, or any provision of law shall be construed to limit the authority of the State to terminate or limit such authorization.

i. A CO 2 allowance under the CO 2 Budget Trading Program does not constitute a property right.

4. Excess Emissions Requirements . The owners and operators of a CO 2 budget source that has excess emissions in any control period or excess interim emissions in any interim control period shall:

a. Forfeit the CO 2 allowances required for deduction under 310 CMR 7.70(6)(e)4.a., provided CO 2 offset allowances may not be used to cover any part of such excess emissions; and, b. Pay any fine, penalty, or assessment or comply with any other remedy imposed under 310 CMR 7.70(6)(e)4.b. 5. Recordkeeping and Reporting Requirements .

a. Unless otherwise provided, the owners and operators of the CO 2 budget source and each CO 2 budget unit at the source shall keep on site at the source each of the following documents for a period of ten years from the date the document is created. This period may be extended for cause, at any time prior to the end of ten years, in writing by the Department.

i. The account certificate of representation for the CO 2 authorized account representative for the source and each CO 2 budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation, in accordance with 310 CMR 7.70(2)(d), provided that the certificate and documents shall be retained on site at the source beyond such ten- year period until such documents are superseded because of the submission of a

new account certificate of representation changing the CO 2 authorized account representative. ii. All emissions monitoring information, in accordance with 310 CMR 7.70(8) and 40 CFR 75.57. iii. Copies of all reports, compliance certifications, and other submissions and

all records made or required under the CO 2 Budget Trading Program. iv. Copies of all documents used to complete an application for a CO 2 budget emissions control plan and any other submission under the CO 2 Budget Trading Program or to demonstrate compliance with the requirements of the CO 2 Budget Trading Program.

3/10/17 310 CMR - 250.102.22 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

b. The CO 2 authorized account representative of a CO 2 budget source and each CO 2 budget unit at the source shall submit the reports and compliance certifications

required under the CO 2 Budget Trading Program, including those under 310 CMR 7.70(4). 6. Liability .

a. No revision to a CO 2 budget emissions control plan shall excuse any violation of the requirements of the CO 2 Budget Trading Program that occurs prior to the date that the revision takes effect.

b. Any provision of the CO 2 Budget Trading Program that applies to a CO 2 budget source (including a provision applicable to the CO 2 authorized account representative of a CO 2 budget source) shall also apply to the owners and operators of such source and of the CO 2 budget units at the source. c. Any provision of the CO 2 Budget Trading Program that applies to a CO 2 budget unit (including a provision applicable to the CO 2 authorized account representative of a CO 2 budget unit) shall also apply to the owners and operators of such unit. 7. Effect on Other Authorities .

a. No provision of the CO 2 Budget Trading Program, a CO 2 budget emissions control plan application, or an approved CO 2 budget emissions control plan, shall be construed as exempting or excluding the owners and operators and, to the extent

applicable, the CO 2 authorized account representative of a CO 2 budget source or CO 2 budget unit from compliance with any other provisions of applicable State and federal law and regulations. (f) Computation of Time .

1. Unless otherwise stated, any time period scheduled under the CO 2 Budget Trading Program to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

2. Unless otherwise stated, any time period scheduled under the CO 2 Budget Trading Program to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

3. Unless otherwise stated, if the final day of any time period under the CO 2 Budget Trading Program falls on a weekend or a Massachusetts or Federal holiday, the time period shall be extended to the next business day.

3/10/17 310 CMR - 250.102.22.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

NON-TEXT PAGE

3/10/17 310 CMR - 250.102.22.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

(g) Severability . If any provision of 310 CMR 7.70, or its application to any particular person or circumstances, is held invalid, the remainder of 310 CMR 7.70, and the application thereof to other persons or circumstances, shall not be affected thereby.

(h) Exemption for Any Combined Heat and Power CO 2 Budget Source . 1. Applicability . Notwithstanding 310 CMR 7.70(1)(d), any entity owning, operating,

or controlling a combined heat and power CO 2 budget source that sells its useful net thermal energy shall comply with all of the provisions of 310 CMR 7.70, except that it

may subtract from its total CO 2 emissions recorded for compliance under 310 CMR 7.70(6) the amount of CO 2 emissions attributable to the production of useful net thermal energy as long as it complies with all of the provisions in 310 CMR 7.70(1)(h). 2. Compliance . Any entity owning, operating, or controlling a combined heat power

CO 2 budget source shall comply with the requirements in 310 CMR 7.70(6)(e)2. 3. Monitoring and Reporting . Any entity owning, opeating, or controlling a combined

heat and power CO 2 budget source shall monitor and report the amount of annual CO 2 mass emissions (expressed in tons) associated with the production of useful net thermal energy pursuant to 310 CMR 7.70(8)(i) for the control period beginning 2015 and each year thereafter. 4. Change to Previously Reported Emissions . Any entity owning, operating, or

controlling a combined heat and power CO 2 budget source that previously reported its annual CO 2 emissions for the interim control periods of 2015 and 2016 pursuant to 310 CMR 7.70(4)(a), but did not deduct its CO 2 emissions associated with the production of useful net thermal energy as allowed for under 310 CMR 7.70(1)(h), may submit revised compliance certification reports to the Department change under 310 CMR

7.70(4)(a)3.d. and e., that deducts the amount of CO 2 mass emissions attributable to the production of useful net thermal energy for the interim control periods of 2015 and 2016 as quantified under 310 CMR 7.70(8)(i).

(2) CO 2 Authorized Account Representative for CO 2 Budget Sources . (a) Authorization and Responsibilities of the CO 2 Authorized Account Representative . 1. Except as provided under 310 CMR 7.70(2)(b), each CO 2 budget source, including all CO 2 budget units at the source, shall have one and only one CO 2 authorized account representative, with regard to all matters under the CO 2 Budget Trading Program concerning the source or any CO 2 budget unit at the source. 2. The CO 2 authorized account representative of the CO 2 budget source shall be selected by an agreement binding on the owners and operators of the source and all CO 2 budget units at the source. 3. Upon receipt by the Department or its agent of a complete account certificate of

representation under 310 CMR 7.70(2)(d), the CO 2 authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or

submissions, legally bind each owner and operator of the CO 2 budget source represented and each CO 2 budget unit at the source in all matters pertaining to the CO 2 Budget Trading Program, notwithstanding any agreement between the CO 2 authorized account representative and such owners and operators. The owners and operators shall be bound

by any decision or order issued to the CO 2 authorized account representative by the Department or a court regarding the source or unit.

4. No CO 2 budget emissions control plan shall be issued, and no CO 2 Allowance Tracking System account shall be established for a CO 2 budget source, until the Department or its agent has received a complete account certificate of representation

under 310 CMR 7.70(2)(d) for a CO 2 authorized account representative of the source and the CO 2 budget units at the source.

3/10/17 310 CMR - 250.102.23 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

5. Each submission under the CO2 Budget Trading Program shall be submitted, signed, and certified by the CO22 authorized account representative for each CO budget source on behalf of which the submission is made. Each such submission shall include the following

certification statement by the CO2 authorized account representative: “I am authorized to

make this submission on behalf of the owners and operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.” 6. The Department or its agent shall accept or act on a submission made on behalf of

owners or operators of a CO22 budget source or a CO budget unit only if the submission has been made, signed, and certified in accordance with 310 CMR 7.70(2)(a)5.

(b) Alternate CO2 Authorized Account Representative.

1. An account certificate of representation may designate one and only one alternate CO2 authorized account representative who may act on behalf of the CO2 authorized account

representative. The agreement by which the alternate CO2 authorized account representative is selected shall include a procedure for authorizing the alternate CO2 authorized account

representative to act in lieu of the CO2 authorized account representative. 2. Upon receipt by the Department or its agent of a complete account certificate of representation under 310 CMR 7.70(2)(d), any representation, action, inaction, or submission

by the alternate CO2 authorized account representative shall be deemed to be a representation,

action, inaction, or submission by the CO2 authorized account representative. 3. Except in 310 CMR 7.70(2)(b) and 310 CMR 7.70(2)(a)1., (c), (d), and (6)(b), whenever

the term “CO2 authorized account representative” is used in 310 CMR 7.70, the term shall be construed to include the alternate CO2 authorized account representative.

(c) Changing the CO22 Authorized Account Representative and the Alternate CO Authorized Account Representative; Changes in the Owners and Operators.

1. Changing the CO22 Authorized Account Representative. The CO authorized account representative may be changed at any time upon receipt by the Department or its agent of a superseding complete account certificate of representation under 310 CMR 7.70(2)(d). Notwithstanding any such change, all representations, actions, inactions, and submissions by

the previous CO22 authorized account representative or alternate CO authorized account representative prior to the time and date when the Department or its agent receives the

superseding account certificate of representation shall be binding on the new CO2 authorized account representative and the owners and operators of the CO22 budget source and the CO budget units at the source.

2. Changing the Alternate CO22 Authorized Account Representative. The alternate CO authorized account representative may be changed at any time upon receipt by the Department or its agent of a superseding complete account certificate of representation under 310 CMR 7.70(2)(d). Notwithstanding any such change, all representations, actions,

inactions, and submissions by the previous CO2 authorized account representative or alternate

CO2 authorized account representative prior to the time and date when the Department or its agent receives the superseding account certificate of representation shall be binding on the

new alternate CO22 authorized account representative and the owners and operators of the CO budget source and the CO2 budget units at the source.

12/6/13 310 CMR - 250.102.24 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

d. CO2 Budget Trading Program Adjusted Budgets for 2015 through 2020 . On April 15, 2014 the Department shall determine the Massachusetts CO 2 Budget Trading Program adjusted budgets for allocation years 2015 through 2020 by the following formula: AB = BB - (FCPIABA + SCPIABA) Where:

AB is the Massachusetts CO 2 Budget Trading Program adjusted budget. BB is the Massachusetts CO 2 Budget Trading Program base budget. FCPIABA is the first control period interim adjustment for banked allowances. SCPIABA is the second control interim adjustment for banked allowances. e. After making the determinations in 310 CMR 7.70(5)(c)2.c. and d., the

Department or its agent will publish the CO 2 trading program adjusted base budgets for the 2014 through 2020 allocation years.

3. Cost Containment Reserve (CCR) Allocation . The Department shall allocate CO 2 CCR allowances, separate from and additional to, the Massachusetts CO 2 Budget Trading Program base budget set forth in 310 CMR 7.70(5)(a), to the Massachusetts Auction

Account. The CCR allocation is for the purpose of containing the cost of CO 2 allowances. The Department shall allocate CO 2 CCR allowances in the following manner:

a. The Department shall initially allocate 806,984 CO 2 CCR allowances for calendar year 2014. b. On or before January 1, 2015 and of each calendar year thereafter, the Department

shall allocate CO 2 CCR allowances in an amount equal to 1,613,968, minus the number of CO 2 CCR allowances that remain in the Massachusetts Auction Account at the end of the prior calendar year.

c. After all of the CO 2 CCR allowances in the Massachusetts Auction Account have been sold in a given calendar year, no additional CO 2 CCR allowances will be transferred into the Massachusetts Auction Account.

4. Undistributed and Unsold CO 2 Allowances . a. The Department or DOER may retire undistributed CO 2 allowances at the end of each control period.

b. The Department or DOER may retire unsold CO 2 allowances at the end of each control period.

c. The Department may create one or more retirement accounts in the CO 2 Allowance Tracking System for the purpose of retiring CO 2 allowances. CO 2 allowances transferred into retirement accounts cannot be removed, unless they are transferred in error. 5. Useful Net Thermal Energy Retirement Account . a. Pursuant to 310 CMR 7.70(5)(c)4.c., the Department shall create a useful net

thermal energy retirement account in the RGGI CO 2 Allowance Tracking System for the purpose of retiring CO 2 allowances equal to the amount of CO2 emissions attributable to the production of useful net thermal energy from combined heat and

power CO 2 budget sources. b. Each year, the Department shall retire CO 2 allowances equal to the amount of CO 2 emissions attributed to the production of useful net thermal energy during the prior calendar year, as quantified and reported by the CO 2 authorized account representative pursuant to under 310 CMR 7.70(8)(i).

(6) CO 2 Allowance Tracking System . (a) CO 2 Allowance Tracking System Accounts . 1. Compliance Accounts . Consistent with 310 CMR 7.70(6)(b)1., the Department or

its agent shall establish one compliance account for each CO 2 budget source. Deductions or transfers of CO 2 allowances pursuant to 310 CMR 7.70(4)(b), (6)(e), (6)(g), or (7) shall be recorded in the compliance accounts in accordance with 310 CMR 7.70(6). 2. General Accounts . Consistent with 310 CMR 7.70(6)(b)2., the Department or its

agent shall establish, upon request, a general account for any person. Transfers of CO 2 allowances pursuant to 310 CMR 7.70(7) shall be recorded in the general account in accordance with 310 CMR 7.70(6). (b) Establishment of Accounts . 1. Compliance Accounts . Upon receipt of a complete account certificate of representation under 310 CMR 7.70(2)(d), the Department or its agent shall establish a

compliance account for each CO 2 budget source for which the account certificate of representation was submitted.

3/10/17 310 CMR - 250.102.31 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

2. General Accounts. a. Application for General Account. Any person may apply to open a general account

for the purpose of holding and transferring CO2 allowances. An application for a general account may designate one and only one CO2 authorized account representative and one

and only one alternate CO2 authorized account representative who may act on behalf of the CO22 authorized account representative. The agreement by which the alternate CO authorized account representative is selected shall include a procedure for authorizing the

alternate CO22 authorized account representative to act in lieu of the CO authorized account representative. A complete application for a general account shall be submitted to the Department or its agent and shall include the following elements in a format prescribed by the Department or its agent: i. Name, address, email address, telephone number, and facsimile transmission

number of the CO22 authorized account representative and any alternate CO authorized account representative;

ii. At the option of the CO2 authorized account representative, organization name and type of organization;

iii. A list of all persons subject to a binding agreement for the CO2 authorized account representative or any alternate CO2 authorized account representative to

represent their ownership interest with respect to the CO2 allowances held in the general account;

iv. The following certification statement by the CO2 authorized account representative and any alternate CO2 authorized account representative: “I certify that

I was selected as the CO22 authorized account representative or the CO alternate authorized account representative, as applicable, by an agreement that is binding on

all persons who have an ownership interest with respect to CO2 allowances held in the general account. I certify that I have all the necessary authority to carry out my

duties and responsibilities under the CO2 Budget Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Department or its agent or a court regarding the general account.”;

v. The signature of the CO22 authorized account representative and any alternate CO authorized account representative and the dates signed; and, vi. Unless otherwise required by the Department or its agent, documents of agreement referred to in the application for a general account shall not be submitted to the Department or its agent. Neither the Department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, whether or not submitted.

b. Authorization of CO2 Authorized Account Representative. i. Upon receipt by the Department or its agent of a complete application for a general account under 310 CMR 7.70(6)(b)2.a.: (i) The Department or its agent shall establish a general account for the person or persons for whom the application is submitted.

(ii) The CO22 authorized account representative and any alternate CO authorized account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each

person who has an ownership interest with respect to CO2 allowances held in the

general account in all matters pertaining to the CO2 Budget Trading Program, notwithstanding any agreement between the CO2 authorized account

representative or any alternate CO2 authorized account representative and such person. Any such person shall be bound by any order or decision issued to the

CO22 authorized account representative or any alternate CO authorized account representative by the Department or its agent or a court regarding the general account.

(iii) Any representation, action, inaction, or submission by any alternate CO2 authorized account representative shall be deemed to be a representation, action,

inaction, or submission by the CO2 authorized account representative.

12/6/13 310 CMR - 250.102.32 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

iv. A notice of delegation submitted under 310 CMR 7.70(6)(b)2.e.iii. shall be

effective, with regard to the CO22 authorized account representative or alternate CO authorized account representative identified in such notice, upon receipt of such notice by the Department or its agent and until receipt by the Department or its agent

of a superseding notice of delegation by such CO2 authorized account representative or alternate CO2 authorized account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority. v. Any electronic submission covered by the certification in 310 CMR 7.70(6)(b)2.e.iii.(iv)-1. and made in accordance with a notice of delegation effective under 310 CMR 7.70(6)(b)2.e.iv. shall be deemed to be an electronic submission by

the CO22 authorized account representative or alternate CO authorized account representative submitting such notice of delegation. 3. Account Identification. The Department or its agent shall assign a unique identifying number to each account established under 310 CMR 7.70(6)(b)1. or 2.

(c) CO22 Allowance Tracking System Responsibilities of CO Authorized Account Repre- sentative. Following the establishment of a CO2 Allowance Tracking System account, all submissions to the Department or its agent pertaining to the account, including, but not limited

to, submissions concerning the deduction or transfer of CO2 allowances in the account, shall be

made only by the CO2 authorized account representative for the account. (d) Recordation of CO2 Allowance Allocations. 1. On or before January 1, 2014, the Department or its agent shall record in the

Massachusetts Auction Account the CO2 allowances for the allocation years of 2014, 2015, 2016, and 2017. 2. On or before January 1, 2015 and each January 1st thereafter, the Department or its agent

shall record CO2 allowances in the Massachusetts Auction Account for the allocation year three years in the future. 3. On or before January 1, 2011 and January 1st of each year thereafter, the Department or

its agent shall record CO2 allowances allocated pursuant to 310 CMR 7.70(5)(c)1.b. in the Voluntary Renewable Energy (VRE) Account for the allocation year three years in the future.

4. Serial Numbers for Allocated CO22 Allowances. When allocating CO allowances to, and

recording them in, an account, the Department or its agent shall assign each CO2 allowance a unique identification number that includes digits identifying the year for which the CO2 allowance is allocated. (e) Compliance.

1. Allowances Available for Compliance Deduction. CO2 allowances that meet the following criteria are available to be deducted in order for a CO2 budget source to comply

with the CO2 requirements of 310 CMR 7.70(1)(e)3. for a control period or an interim control period.

a. The CO22 allowances, other than CO offset allowances, are of allocation years that fall within a prior control period, the same control period, or the same interim control period for which the allowances will be deducted.

b. The CO22 allowances are held in the CO budget source's compliance account as of the

CO2 allowance transfer deadline for that control period or interim control period are transferred into the compliance account by a CO2 allowance transfer correctly submitted

for recordation under 310 CMR 7.70(7)(a) by the CO2 allowance transfer deadline for that control period or interim control period.

c. For CO22 offset allowances, the number of CO offset allowances that are available to be deducted in order for a CO22 budget source to comply with the CO requirements of 310 CMR 7.70(1)(e)3. for a control period or interim control period may not exceed 3.3%

of the CO22 budget source's CO emissions for that control period, or 3.3% of 0.50 times

the CO2 budget source's emissions for an interim control period, as determined in accordance with 310 CMR 7.70(6) and (8); and

d. The CO2 allowances are not necessary for deductions for excess emissions for a prior control period under 310 CMR 7.70(6)(e)4.

12/6/13 310 CMR - 250.102.35 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

2. Deductions for Compliance . Following the recordation, in accordance with

310 CMR 7.70(7)(b), of CO 2 allowance transfers submitted for recordation in the CO 2 budget source’s compliance account by the CO 2 allowance transfer deadline for a control period or interim control period, the Department or its agent shall deduct CO 2 allowances available under 310 CMR 7.70(6)(e)1. to cover the source’s CO 2 emissions (as determined in accordance with 310 CMR 7.70(8)) for the control period or interim control period, as follows:

a. Until the amount of CO 2 allowances deducted equals the number of tons of total CO 2 emissions (or 0.50 times the number of tons of total CO 2 emissions for the interim control period), less any CO 2 emissions attributable to the burning of eligible biomass or the production of useful net thermal energy, determined in accordance

with 310 CMR 7.70(8), from all CO 2 budget units at the CO 2 budget source for the control period or interim control period; or

b. If there are insufficient CO 2 allowances to complete the deductions in 310 CMR 7.70(6)(e)2.a., until no more CO 2 allowances available under 310 CMR 7.70(6)(e)1. remain in the compliance account. c. After making the deductions for compliance, the Department or its agent shall

notify the CO 2 authorized account representative if it believes that the CO 2 budget source exceeded its CO 2 budget emissions limitation. 3. Identification of Available CO 2 Allowances by Serial Number; Default Compliance Deductions .

a. The CO 2 authorized account representative for a source’s compliance account may request that specific CO 2 allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period or interim control period in accordance with 310 CMR 7.70(6)(e)2. or 4. Such identification shall be made in the compliance certification report submitted in accordance with 310 CMR 7.70(4)(a).

b. The Department or its agent shall deduct CO 2 allowances for a control period or interim control period from the CO 2 budget source’s compliance account, in the absence of an identification or in the case of a partial identification of available CO 2 allowances by serial number under 310 CMR 7.70(6)(e)3.a., in the following descending order: i. First, subject to the relevant compliance deduction limitations under 310 CMR

7.70(6)(e)1.c. and 4.a., CO 2 offset allowances. CO 2 offset allowances shall be deducted in chronological order ( i.e ., CO 2 offset allowances from earlier allocation years shall be deducted before CO 2 offset allowances from later allocation years). In the event that some, but not all, CO 2 offset allowances from a particular allocation year are to be deducted, CO2 offset allowances shall be deducted by serial number, with lower serial number allowances deducted before higher serial number allowances.

ii. Second, any CO 2 allowances, other than CO2 offset allowances, that are available for deduction under 310 CMR 7.70(6)(e)1. CO 2 allowances shall be deducted in chronological order (i.e ., CO 2 allowances from earlier allocation years shall be deducted before CO 2 allowances from later allocation years). In the event that some, but not all, CO 2 allowances from a particular allocation year are to be deducted, CO 2 allowances shall be deducted by serial number, with lower serial number allowances deducted before higher serial number allowances. 4. Deductions for Excess Emissions . a. After completing the procedures in 310 CMR 7.70(6)(e)2., the Department

or its agent shall deduct from the CO 2 budget source’s compliance account a number of CO 2 allowances, from allocation years that occur after the control period in which the source has excess emissions, equal to three times the number

of the source’s excess emissions. In the event that a source has insufficient CO 2 allowances to cover three times the number of the source’s excess emissions, the source shall be required within 14 calendar days of receipt of notice by the Department or its agent to transfer sufficient allowances into its compliance

account. No CO 2 offset allowances may be deducted to account for the source’s excess emissions.

3/10/17 310 CMR - 250.102.36 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

c. Out-of-control Periods . If testing a piece of output measurement equipment shows that the output readings are not accurate to the certification value, data remain invalid until the output measurement equipment passes an accuracy test or is replaced with another piece of equipment that passes the accuracy test. All invalid data shall be replaced by either zero or an output value that is likely to be lower than a measured value and that is approved as part of the monitoring plan required under 310 CMR 7.70(8)(h)3. 6. Recordkeeping and Reporting .

a. General Provisions . The CO 2 authorized account representative shall comply with all recordkeeping and reporting requirements in 310 CMR 7.70(8)(h) and with the requirements of 310 CMR 7.70(1)(e)5. and (2)(a)5. b. Recordkeeping . Facilities shall retain data used to monitor, determine, or calculate net generation for ten years from the date reported.

c. Annual Reports . The CO 2 authorized account representative shall submit annual output reports in a spreadsheet, as follows. The data shall be sent both electronically and in hardcopy by March 1st for the immediately preceding calendar year to the Department or its agent. The annual report shall include the annual total unit level MWh, the annual total useful steam output and a certification statement from the

CO 2 authorized account representative stating the following, “I am authorized to make this submission on behalf of the owners and operators of the CO 2 budget sources or CO 2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(i) CO 2 Budget Units That Generate Useful Net Thermal Energy . 1. The CO 2 authorized account representative of a combined heat and power CO 2 budget source that generates useful net thermal energy shall report the following information for

the combined heat and power CO 2 budget source to the Department or its agent for each calendar quarter:

a. The total amount of useful net thermal energy output produced by CO 2 budget units expressed in MMBtu, the total volume of steam output produced by CO 2 budget units expressed in cubic feet, the average pressure of the steam output

produced by CO 2 budget units expressed in pounds per square inch, and the average temperature of the steam expressed in degrees Fahrenheit. The amount of useful net thermal energy output shall be determined in a manner as approved by the

Department in the CO 2 Budget Emission Control Plan consistent with the requirements of 310 CMR 7.70(3) and (8)(h).

b. The total amount of CO 2 emissions from CO 2 budget units attributable to the production of useful net thermal energy, in tons, calculated in accordance with 310 CMR 7.70(8)(i)2.

2. The quantity of CO 2 emissions attributable to the production of useful net thermal energy shall be determined by the following equation (rounded to the nearest whole ton):

UNTE/.80 x 122 lb/MMBtu

2000 lb/ton

Where:

UNTE = useful net thermal energy (in MMBtu output) generated by CO 2 budget units at the combined heat and power CO 2 budget source during each calendar quarter.

(9) Auction for Cost Containment Reserve Allowances . (Reserved)

3/10/17 310 CMR - 250.102.49 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

(10) CO 2 Emissions Offset Projects . (a) Purpose . The Department shall provide for the award of CO2 offset allowances to project sponsors of CO 2 emissions offset projects that have reduced or avoided atmospheric loading of CO 2 or CO 2 equivalent, or sequestered carbon as demonstrated in accordance with the applicable provisions of 310 CMR 7.70(10). The requirements of 310 CMR 7.70(10)

seek to ensure that CO 2 offset allowances awarded represent CO 2 equivalent emission reductions or carbon sequestration that are real, additional, verifiable, enforceable, and permanent within the framework of a standards-based approach. Subject to the relevant

compliance deduction limitations of 310 CMR 7.70(6)(e)1.c., CO 2 offset allowances may be used by any CO 2 budget source for compliance purposes. (b) Definitions .

Allocation Period . The maximum number of years for which the Department may award

CO 2 offset allowances to a project for a given consistency determination pursuant to 310 CMR 7.70(10).

Anaerobic Digester . A device that promotes the decomposition of organic material to simple organics and gaseous biogas products, usually accomplished by means of controlling temperature and volume, and including a methane recovery system.

Anaerobic Digestion . The degradation of organic material including manure brought about through the action of microorganisms in the absence of elemental oxygen.

Anaerobic Storage . Storage of organic material in an oxygen-free environment, or under oxygen-free conditions, including but not limited to, holding tanks, ponds, and lagoons.

ANSI . American National Standards Institute.

ASHRAE . American Society of Heating, Refrigerating and Air-conditioner Engineers.

Attribute . A characteristic associated with electricity generated using a particular renewable fuel, such as its generation date, facility geographic location, unit vintage, emissions output, fuel, state program eligibility, or other characteristic that can be identified, accounted for, and tracked.

Attribute Credit . An attribute credit represents the attributes related to one megawatt-hour of electricity generation.

Biogas . Gas resulting from the decomposition of organic matter under anaerobic conditions. The principal constituents are methane and carbon dioxide.

Boiler (commercial) . A self contained, low-pressure appliance for supplying steam or hot water to a commercial building.

Boiler (residential) . A self contained, low-pressure appliance for supplying steam or hot water to a residential building.

Building Envelope . The elements of a building that separate conditioned space from unconditioned space, or that enclose semi-heated space, through which thermal energy may be transferred to or from the exterior, unconditioned space, or conditioned space. Includes all elements that separate the interior of a building from the outdoor environment, including walls, windows, foundation, basement slab, ceiling, roof, and insulation.

CO 2e. CO 2e means carbon dioxide equivalent.

Commercial Building . A building to which the provisions of ANSI/ASHRAE/IESNA Standard 90.1 apply, which includes buildings except low-rise residential buildings. Low- rise residential buildings include single family homes, multifamily structures of three stories or fewer above grade, and manufactured homes (modular and mobile).

3/10/17 310 CMR - 250.102.50 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

7.70: continued

Conflict of Interest . A situation that may arise with respect to an individual in relation to any

specific project sponsor, CO 2 emissions offset project or category of offset projects, such that the individual’s other activities or relationships with other persons or organizations render or may render the individual incapable of providing an impartial certification opinion, or otherwise compromise the individual’s objectivity in performing certification functions.

Condensing Mode . The design and operation of furnaces or boilers in a mode that leads to the production of condensate in flue gases.

Cooperating Regulatory Agency . A regulatory agency in a state or United States jurisdiction that is not a participating state that has entered into a memorandum of understanding with the appropriate regulatory agencies of all participating states to carry out certain obligations

relative to CO 2 emissions offset projects in that state or United States jurisdiction, including but not limited to the obligation to perform audits of offset project sites, and report violations of 310 CMR 7.70(10).

Energy Conservation Measure (ECM) or Energy Efficiency Measure (EEM) . A set of activities designed to increase the energy efficiency of a building or improve the management of energy demand.

Energy Performance . A measure of the relative energy efficiency of a building, building equipment, or building components, as measured by the amount of energy required to provide building services. For building equipment and components, a relative measure of the impact of equipment or components on building energy usage.

Energy Services . Provision of useful services to building occupants, such as heating and hot water, cooling, and lighting.

3/10/17 310 CMR - 250.102.50.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

NON-TEXT PAGE

3/10/17 310 CMR - 250.102.50.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 627

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 310 CMR 9.00

CHAPTER TITLE: Waterways

AGENCY: Department of Environmental Protection

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. The Department of Environmental Protection is responsible for the stewardship of the Commonwealth’s public trust lands, including waterways and filled former tidelands. These regulation amendments explain the requirements for Facilities of Public Accommodation (e.g. restaurants, retail stores, hotels, museums, and transportation facilities) to ensure the rights and benefits of the transient public along the waterfront. The amendments also serve to protect traditional water-dependent marine industrial uses in Designated Port Areas (e.g. commercial fishing, commercial passenger vessel operation, boat repair and maintenance, and other commercial shipping activities) from displacement by nonwater-dependent commercial, residential, and recreational uses.

REGULATORY AUTHORITY: MGL C. 91 - Massachusetts Public Waterfront Act

AGENCY CONTACT: James Lynch PHONE: 617-292-5615

ADDRESS: One Winter Street, Boston, MA 02108

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency. Not Applicable

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. MA Municipal Association – 2/19/2016 MA Dept. of Public Health – 2/19/2016 MA Municipal Association/Local Government Advisory Committee – 2/19/2016

Date of public hearing or comment period: Public hearings: April 5, 6 and 7, 2016; public comment period: March 11 to April 25, 2016.

For the first five years: None

No fiscal effect: None

Date amended small business impact statement was filed: February 21, 2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Department of Environmental Protection, Waterways, Facilities of Public Accommodation, Facilities of Limited Accommodation, Designated Port Area, Coastal Zone Management, Public Waterfront Act.

PROMULGATION - State the action taken by this regulation and its effect on existing provisions of the Code of Massachusetts Regulations (CMR) or repeal, replace or amend. List by CMR number: The action amends 310 CMR 9.00 and clarifies the rights and benefits of the transient public along the waterfront and protects traditional water-dependent marine industrial uses from displacement by nonwater-dependent commercial, residential, and recreati

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 24 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 261 - 270 261 - 270.2 287 - 290 287 - 290 311 - 316 311 - 316 316.7 - 316.16 316.7 - 316.18 02/24/2017 kr

310 CMR 9.00: WATERWAYS

Section

9.01: Authority and Purpose 9.02: Definitions 9.03: Scope of Jurisdiction 9.04: Geographic Areas Subject to Jurisdiction 9.05: Activities Subject to Jurisdiction 9.06: Requests for Determination of Applicability 9.07: Activities Subject to Annual Permit 9.08: Enforcement 9.09: Effective Date and Severability 9.10: Simplified Procedures for Small Structures Accessory to Residences 9.11: Application Requirements 9.12: Determination of Water-dependency 9.13: Public Notice and Participation Requirements 9.14: Decision on License and Permit Applications 9.15: Terms 9.16: Fees 9.17: Appeals 9.18: Recording 9.19: Certificate of Compliance 9.20: Authorization of Emergency Actions 9.21: Variances 9.22: Maintenance, Repair, and Minor Project Modifications 9.23: Transfer of License Upon Change of Ownership 9.24: Amendments 9.25: Expiration and Renewal 9.26: Revocation and Nullification 9.27: Removal of Previously Licensed Structures 9.28: Amnesty 9.29: General License Certification 9.30: Permitting of Test Projects 9.31: Summary of License and Permit Requirements 9.32: Categorical Restrictions on Fill and Structures 9.33: Environmental Protection Standards 9.34: Conformance with Municipal Zoning Law and Harbor Plans 9.35: Standards to Preserve Water-related Public Rights 9.36: Standards to Protect Water-dependent Uses 9.37: Engineering and Construction Standards 9.38: Use Standards for Recreational Boating Facilities 9.39: Standards for Marinas/Boatyards/Boat Ramps 9.40: Standards for Dredging and Dredged Material Disposal 9.51: Conservation of Capacity for Water-dependent Use 9.52: Utilization of Shoreline for Water-dependent Purposes 9.53: Activation of Commonwealth Tidelands for Public Use 9.54: Consistency with Coastal Zone Management Policies 9.55: Standards for Nonwater-dependent Infrastructure Facilities 9.56: Standards for Facilities of Limited Accommodation

9.01: Authority and Purpose

(1) Authority . 310 CMR 9.00 is adopted by the Commissioner of the Department of Environmental Protection (DEP) under the authority of M.G.L. c. 91A, § 18 to establish procedures, criteria, and standards for uniform and coordinated administration of the provisions of M.G.L. c. 91, §§ 1 through 63 and M.G.L. c. 21A, §§ 2, 4, 8 and 14. 310 CMR 9.00 also form part of the Massachusetts Coastal Zone Management (CZM) Program, established by M.G.L. c. 21A, § 4A, and codified at 301 CMR 20.00: Coastal Zone Management Program . The interpretation and application of 310 CMR 9.00 shall be consistent with the policies of the CZM Program, 301 CMR 20.00, to the maximum extent permissible by law.

3/10/17 310 CMR - 261 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.01: continued

(2) Purpose . 310 CMR 9.00 is promulgated by the Department to carry out its statutory obligations and the responsibility of the Commonwealth for effective stewardship of trust lands, as defined in 310 CMR 9.02. The general purposes served by 310 CMR 9.00 are to: (a) protect and promote the public's interest in tidelands, Great Ponds, and non-tidal rivers and streams in accordance with the public trust doctrine, as established by common law and codified in the Colonial Ordinances of 1641-47 and subsequent statutes and case law of Massachusetts; (b) preserve and protect the rights in tidelands of the inhabitants of the Commonwealth by ensuring that the tidelands are utilized only for water-dependent uses or otherwise serve a proper public purpose; (c) protect the public health, safety, and general welfare as it may be affected by any project in tidelands, great ponds, and non-tidal rivers and streams; (d) support public and private efforts to revitalize unproductive property along urban waterfronts, in a manner that promotes public use and enjoyment of the water; and (e) foster the right of the people to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment under Article XCVII of the Massachusetts Constitution.

9.02: Definitions

Abutter means the owner of land which shares, along the water’s edge, a common boundary or corner with a project site, as well as the owner of land which lies within 50 feet across a water body from such site. Ownership shall be determined according to the records of the local tax assessors office.

Accessory Use means a use determined to be accessory to a water-dependent use, in accordance with the provisions of 310 CMR 9.12(3).

Aggrieved Person means any person who, because of a decision by the Department to grant a license or permit, may suffer an injury in fact, which is different either in kind or magnitude, from that suffered by the general public and which is within the scope of the public interests protected by M.G.L. c. 91 and c. 21A.

Applicant means any person submitting a license or permit application or other request for action by the Department pursuant to 310 CMR 9.00, and shall include the heirs, assignees, and successors in interest to such person.

Area of Critical Environmental Concern (ACEC) means an area which has been so designated by the Secretary pursuant to 301 CMR 12.00: Areas of Critical Environmental Concern .

Base Flood Elevation means the maximum elevation of flood water, including wave heights if any, which will theoretically result from the statistical 100-year frequency storm. Said elevation shall be determined by reference to the most recently available flood profile data prepared for the municipality within which the work is proposed under the National Flood Insurance Program, currently administered by FEMA; and in accordance with Wetlands Protection Act regulations at 310 CMR 10.57: Land Subject to Flooding (Bordering and Isolated Areas) .

Beach Nourishment means the placement of clean sediment, of a grain size compatible with existing beach sediment, on a beach to increase its width and volume for purposes of storm damage prevention, flood control, or public recreation. The seaward edge of the nourished beach shall not be confined by any structure.

Berth means any space wherein a vessel is confined by wet slip, dry stack, float, mooring, or other type of docking facility.

Boatyard means a facility whose function is the construction, repair, or maintenance of boats, which may include boat storage and docking for boatyard services.

3/10/17 310 CMR - 262 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

Boston Waterfront Decision means the decision of the Massachusetts Supreme Judicial Court in Boston Waterfront Development Corporation vs. Commonwealth, 378 Mass. 629, 393 N.E.2d 356 (1979).

Channel means a navigable route for the passage of vessels, established by customary use or under the authority of federal, state, or municipal law.

Coastal Atlas means the volume of maps of the coastal zone at a scale of 1:40,000 prepared as part of the CZM Program and available for public review at CZM offices.

Coastal Beach means unconsolidated sediment subject to wave, tidal, and coastal storm action which forms the gently sloping shore of a body of salt water and including tidal flats. Coastal beaches extend from the low water line landward to the dune line, coastal bank line or the seaward edge of existing man-made structures, when these structures replace one of the above lines, whichever is closest to the ocean.

Coastal Dune means any natural hill, mound or ridge of sediment landward of a coastal beach deposited by wind action or storm overwash. Coastal dune also means sediment deposited by artificial means and serving the purpose of storm damage prevention or flood control.

Coastal High Hazard Area means an area subject to high velocity waters, as defined in accordance with FEMA regulations and as designated on a Flood Insurance Rate Map, as issued and as may be revised or amended hereafter by FEMA.

Coastal or Shoreline Engineering Structure means any breakwater, bulkhead, groin, jetty, revetment, seawall, weir, riprap or any other structure which by its design alters wave, tidal, current, ice, or sediment transport processes in order to protect inland or upland structures from the effects of such processes.

Coastal Processes means natural forces which can modify coastal lands and waters through the action of wind, waves, tides, currents, or ice.

Coastal Zone means that area subject to the CZM Program and defined in 301 CMR 20.02: Definitions.

Combined Application means an application that may serve as a Notice of Intent pursuant to 310 CMR 10.00: Wetlands Protection, an application for a 401 Water Quality Certification pursuant to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth, and/or an application for a Chapter 91 license, permit or other written approval for a water-dependent use pursuant to 310 CMR 9.00. Notwithstanding the foregoing, a Combined Application may not serve as an application for an annual permit for a mooring, float, raft or small structure accessory to a residence in accordance with 310 CMR 9.07, an application for a Chapter 91 license for a small structure accessory to a residence in accordance with the simplified process set forth in 310 CMR 9.10, or the certification submitted as an application for a General License in accordance with 310 CMR 9.29.

Combined Permit means a decision issued in response to a Combined Application that serves as two or more of the following: a Superseding Order of Conditions issued pursuant to 310 CMR 10.00: Wetlands Protection; a 401 Water Quality Certification issued pursuant to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth; and/or a Chapter 91 permit, license or other written approval issued pursuant to 310 CMR 9.00.

Commonwealth Tidelands means tidelands held by the Commonwealth, or by its political subdivisions or a quasi-public agency or authority, in trust for the benefit of the public; or tidelands held by a private person by license or grant of the Commonwealth subject to an express or implied condition subsequent that it be used for a public purpose. In applying 310 CMR 9.02: Definitions: Commonwealth Tidelands, the Department shall act in accordance with the following provisions:

5/23/14 310 CMR - 263 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

(a) the Department shall presume that tidelands are Commonwealth tidelands if they lie seaward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward; such presumption may be overcome only if the Department issues a written determination based upon a final judicial decree concerning the tidelands in question or other conclusive legal documentation establishing that, notwithstanding the Boston Waterfront decision of the Supreme Judicial Court, such tidelands are unconditionally free of any proprietary interest in the Commonwealth; (b) the Department shall presume that tidelands are not Commonwealth tidelands if they lie landward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever if farther landward; such presumption may be overcome only upon a showing that such tidelands, including but not limited to those in certain portions of the Town of Provincetown, are not held by a private person.

Commissioner means the Commissioner of the Department of Environmental Protection (DEP).

CZM means the Massachusetts Coastal Zone Management Office.

CZM Program means the Massachusetts Coastal Zone Management Program established pursuant to M.G.L. c. 21A and codified in 301 CMR 20.00: Coastal Zone Management Program .

Date of Receipt means the date of delivery to an office, home or usual place of business by mail or hand delivery. The Department will presume that a document is received three business days after it is mailed, certified mail return receipt requested, to the correct address unless good cause is shown otherwise.

DCR means the Department of Conservation and Recreation.

Department means the Department of Environmental Protection (DEP).

Designated Port Area (DPA) means an area that has been so designated by CZM in accordance with 301 CMR 25.00: Designation of Port Areas .

Development Site means the area owned, controlled, or proposed for development by the applicant in which a project will occur.

DPA Master Plan means the component of a municipal harbor plan pertaining to lands and waters of a DPA within the municipality. Such master plan or portion thereof shall take effect under 310 CMR 9.00 only upon written approval by the Secretary in accordance with 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and any associated written guidelines of CZM.

Dredged Material means rocks, bottom sediment, debris, refuse, plant or animal matter, or other materials which are removed by dredging.

Dredged Material Disposal means the discharge of dredged material, the transportation of such material prior to discharge, and the dispersion, deposition, assimilation or biological uptake or accumulation of such material after transportation or discharge.

Dredging means the removal of materials including, but not limited to, rocks, bottom sediments, debris, sand, refuse, plant or animal matter, in any excavating, cleaning, deepening, widening or lengthening, either permanently or temporarily, of any flowed tidelands, rivers, streams, ponds or other waters of the Commonwealth. Dredging shall include improvement dredging, maintenance dredging, excavating and backfilling or other dredging and subsequent refilling.

Ecological Restoration Project means a project whose primary purpose is to restore or otherwise improve the natural capacity of a Resource Area(s) to protect and sustain the interests identified in M.G.L. c. 131, § 40, when such interests have been degraded or destroyed by anthropogenic influences. Ecological Restoration Project shall not include projects specifically intended to

3/10/17 310 CMR - 264 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

provide mitigation for the alteration of a Resource Area authorized by a Final Order or Variance issued pursuant to 310 CMR 10.00: Wetlands Protection or a 401 Water Quality Certification issued pursuant to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth .

EIR means Environmental Impact Report as defined in 301 CMR 11.00: MEPA Regulations .

Environmental Monitor means the semi-monthly publication of proposed actions and projects which require MEPA filings with the Secretary pursuant to M.G.L. c. 30, §§ 61 through 62H.

EOEEA means the Executive Office of Energy and Environmental Affairs.

Facility of Limited Accommodation means a facility at which goods or services are made available directly (e.g ., in person by customer access to the facility, not exclusively by means of mail order, telecommunications or other electronic transmission) to the public on a regular basis primarily by appointment or enrollment on essentially equal terms to the public at large rather than restricted to a relatively limited group of specified individuals. Facilities of Limited Accommodation may be either water-dependent, accessory to water-dependent, or nonwater- dependent, and shall include but not be limited to: (a) Rehabilitation clinics and medical facilities; (b) Business or professional offices that serve customers by appointment or enrollment and by customer access to the facility; (c) Child care centers and elderly or other social service centers, provided that the facility does not interfere with access to public spaces outside of a building; and (d) Artist and photography studios open to the public by appointment.

Facility of Private Tenancy means a facility at which the advantages of use accrue, on either a transient or a permanent basis, to a relatively limited group of specified individuals ( e.g. , members of a private club, owners of a condominium building) rather than to the public at large (e.g. , patrons of a public restaurant, visitors to an aquarium or museum). Such facilities may be water-dependent, accessory to water-dependent, or nonwater-dependent, and may include but are not limited to: (a) houses, apartments, condominiums, and other residential units; (b) business or professional offices that do not rely upon customer access as a significant element of the business or profession; (c) industrial facilities, including but not limited to manufacturing plants and electric power generating stations; (d) vehicular ways or parking facilities not open to the public; (e) open spaces, pedestrian walkways, or outdoor recreation facilities not open to the public; and (f) marina berths for long-term exclusive use.

Facility of Public Accommodation means a facility at which goods or services are made available directly to the transient public on a regular basis, or at which advantages of use are otherwise open on essentially equal terms to the public at large (e.g. , patrons of a public restaurant, visitors to an aquarium or museum), rather than restricted to a relatively limited group of specified individuals (e,g, , members of a private club, owners of a condominium building). Facilities of public accommodation may be either water-dependent, accessory to water-dependent, or nonwater-dependent, and shall include but are not limited to: (a) public restaurants or entertainment facilities; (b) theaters, performance halls, art galleries, or other establishments dedicated to public presentation of the fine arts; (c) hotels, motels, or other lodging facilities of transient occupancy; (d) educational, historical, or other cultural institutions open to the public; (e) interior spaces dedicated to the programming of community meetings, informational displays, special recreational events, or other public activities; (f) sports or physical fitness facilities open to the public; (g) open spaces, pedestrian walkways, or outdoor recreation facilities open to the public;

3/10/17 310 CMR - 265 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

(h) retail sales or service facilities; (i) ferry terminals, transit stations, and other public transportation facilities; (j) marina berths for transient use; and (k) vehicular ways open to the public or parking facilities open to the public, including users of facilities of public accommodation.

FEMA means the Federal Emergency Management Agency.

Fill means any unconsolidated material that is confined or expected to remain in place in a waterway, except for: material placed by natural processes not caused by the owner or any predecessor in interest; material placed on a beach for beach nourishment purposes; and dredged material placed below the low water mark for purposes of subaqueous disposal.

Filled Tidelands means former submerged lands and tidal flats which are no longer subject to tidal action due to the presence of fill.

Final Order means the order of conditions issued pursuant to the Wetlands Protection Act, M.G.L. c. 131, § 40, as the term is defined in 310 CMR 10.04: Definitions .

Fish means any animal life inhabiting waterways or the land beneath them that is utilized for recreational or commercial purposes, or that is part of the food chain for such animal life.

Flowed Tidelands means present submerged lands and tidal flats which are subject to tidal action.

Great Pond means any pond which contained more than ten acres in its natural state, as calculated based on the surface area of lands lying below the natural high water mark. The title to land below the natural low water mark is held by the Commonwealth in trust for the public, subject to any rights which the applicant demonstrates have been granted by the Commonwealth. The Department shall presume that any pond presently larger then ten acres is a Great Pond, unless the applicant presents topographic, historic, or other information demonstrating that the original size of the pond was less than ten acres, prior to any alteration by damming or other human activity.

Harbor Line means any line established by the legislature pursuant to M.G.L. c. 91, § 34.

Harbormaster means the individual appointed pursuant to M.G.L. c. 102, § 19, or as otherwise provided by law.

High Water Mark means: (a) for tidelands, the present mean high tide line, as established by the present arithmetic mean of the water heights observed at high tide over a specific 19-year Metonic Cycle (the National Tidal Datum Epoch), and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce; and (b) for Great Ponds, rivers, and streams, the present arithmetic mean of high water heights observed over a one year period using the best available data as determined by the Department.

Historic High Water Mark means the high water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding, or other means. In areas where there is evidence of such alteration by fill, the Department shall presume the historic high water mark is the farthest landward former shoreline which can be ascertained with reference to topographic or hydrographic surveys, previous license plans, and other historic maps or charts, which may be supplemented as appropriate by soil logs, photographs, and other documents, written records, or information sources of the type on which reasonable persons are accustomed to rely in the conduct of serious business affairs. Such presumption may be overcome by a clear showing that a seaward migration of such shoreline occurred solely as a result of natural accretion not caused by the owner or any predecessor in interest. For Great Ponds, the historic high water mark is synonymous with the natural high water mark.

3/10/17 310 CMR - 266 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

Historic Low Water Mark means the low water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding or other means. In areas where there is evidence of such alteration by fill, the Department shall make its determination of the position of the historic low water mark in the same manner as described in 310 CMR 9.02: Definitons : Historic High Water Mark .

Improvement Dredging means any dredging under a license or a permit in an area which has not been previously dredged or which extends the original dredged width, depth, length, or otherwise alters the original boundaries of a previously dredged area.

Infrastructure Crossing Facility means any infrastructure facility which is a bridge, tunnel, pipeline, aqueduct, conduit, cable, or wire, including associated piers, bulkheads, culverts, or other vertical support structures, which is located over or under the water and which connects existing or new infrastructure facilities located on the opposite banks of the waterway. Any structure which is operationally related to such crossing facility and requires an adjacent location shall be considered an ancillary facility thereto. Such ancillary facilities generally include, but are not limited to, power transmission substations, gas meter stations, sewage headworks and pumping facilities, toll booths, tunnel ventilation buildings, drainage structures, and approaches, ramps, and interchanges which connect bridges or tunnels to adjacent highways or railroads.

Infrastructure Facility means a facility which produces, delivers, or otherwise provides electric, gas, water, sewage, transportation, or telecommunication services to the public.

Innovative Technology means technology that has not been commercially deployed or is in limited deployment in Massachusetts, and includes, but is not limited to, energy technology that obtains energy from the ocean, waterway, or conditions associated with the ocean or waterway, other forms of renewable energy technology.

Landlocked Tidelands means any filled tidelands which on January 1, 1984 were entirely separated by a public way or interconnected public ways from any flowed tidelands, except for that portion of such filled tidelands which are presently located: (a) within 250 feet of the high water mark, or (b) within any Designated Port Area. Said public way or ways shall also be defined as landlocked tidelands, except for any portion thereof which is presently within 250 feet of the high water mark.

Licensee means the person to whom a license is issued and shall include the heirs, assignees, and successors in interest to such person.

Local Economic Development Authority means a municipal planning board, zoning board, or other board or commission so designated by a municipality; community development corporations designated in accordance with M.G.L. c. 40H; municipal economic development and industrial corporations designated in accordance with M.G.L. c. 121C; municipal housing authorities designated in accordance with M.G.L. c. 121B, § 3; municipal redevelopment authorities designated in accordance with M.G.L. c. 121B, § 4; urban development corporations designated in accordance with M.G.L. c. 121A; and 40B district planning commissions established under M.G.L. c. 40B, including, but not limited to, the Cape Cod Commission, the Martha's Vineyard Commission and the Boston Redevelopment Authority.

Low Water Mark means the present mean low tide line, as established by the present arithmetic mean of water heights observed at low tide over a specific 19-year Metonic Cycle (the National Tidal Datum Epoch), and shall be determined using hydrographic survey data of the National Ocean Survey of the U.S. Department of Commerce.

Maintenance Dredging means dredging in accordance with a license or permit in any previously authorized dredged area which does not extend the originally dredged depth, width, or length.

Marina means a berthing area with docking facilities under common ownership or control and with berths for ten or more vessels, including commercial marinas, boat basins, and yacht clubs. A marina may be an independent facility or may be associated with a boatyard.

3/10/17 310 CMR - 267 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

Marine Industrial Park means a multi-use complex on tidelands within a DPA, at which: (a) the predominant use is for water-dependent industrial purposes; in general, at least two thirds of the park site landward of any project shoreline must be used exclusively for such purposes; (b) spaces and facilities not dedicated to water-dependent industrial use are available primarily for general industrial purposes; uses that are neither water-dependent nor industrial may occur only in a manner that is incidental to and supportive of the water-dependent industrial uses in the park, and may not include general residential or hotel facilities; and (c) any commitment of spaces and facilities to uses other than water-dependent industry is governed by a comprehensive park plan, prepared in accordance with M.G.L. c. 30, §§ 61 through 62H, if applicable, and accepted by the Department in a written determination issued pursuant to 310 CMR 9.14.

MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H, and 301 CMR 11.00: MEPA Regulations .

MOU means a Memorandum of Understanding between the Department and another public agency. The draft text of any such document or other written interagency agreement shall be published in the Environmental Monitor for public review and comment, and the final text shall be published therein upon adoption and made available by the Department upon request.

Municipal Harbor Plan means a document (in words, maps, illustrations, and other media of communication) setting forth, among other things: a community's objectives, standards, and policies for guiding public and private utilization of land and water bodies within a defined harbor or other waterway planning area; and an implementation program which specifies the legal and institutional arrangements, financial strategies, and other measures that will be taken to achieve the desired sequence, patterns, and characteristics of development and other human activities within the harbor area. Such plan shall take effect under 310 CMR 9.00 only upon written approval by the Secretary, provided that said plan approval is issued in accordance with 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and any associated written guidelines of CZM.

Municipal Official means the mayor of a city, the board of selectmen of a town, or the council of a municipality having a manager-council form of government.

Natural High Water Mark means the historic high water mark of a Great Pond.

Natural Low Water Mark means the historic low water mark of a Great Pond.

Net Operating Income means the rental income from a Facility of Limited Accommodation within the licensed structure minus its operating expenses and property taxes calculated as an amount per square foot for the licensed structure or a comparable value if owner occupied. Operating expenses may include expenses for management, legal and accounting services, insurance, janitorial and security services, maintenance, supplies, and utilities.

Noncommercial Community Docking Facility means a facility for berthing of recreational vessels accessory to residential or nonprofit seasonal camp use ( e.g ., summer camps).

Non-profit Organization means an organization exempt from federal income taxation under § 501(c)(3) of the U.S. Internal Revenue Code.

Nonwater-dependent Use means a use as specified in 310 CMR 9.12.

Nonwater-dependent Use Project means a project consisting of one or more nonwater-dependent uses, or a mix of water-dependent and nonwater-dependent uses, as specified in 310 CMR 9.12(1).

Notification Date means a specified date by which a public notice must be published in the newspaper and/or the Environmental Monitor , and mailed to municipal officials, and on which the public comment period commences.

3/10/17 310 CMR - 268 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

Ocean Sanctuary means an ocean area wherein certain restrictions on activities apply, as defined in M.G.L. c. 132A, § 13 and 302 CMR 5.00: Ocean Sanctuaries .

Party means the applicant, any person allowed by the Department to intervene pursuant to M.G.L. c. 30A, § 1, or any ten citizens allowed by the Department to intervene pursuant to M.G.L. c. 30A, § 10A.

Person means any individual, partnership, trust, firm, corporation, association, commission, district, department, board, municipality, public or quasi-public agency or authority.

Present means contemporaneous with the review of an application, request for determination of applicability, or other action by the Department.

Private Recreational Boating Facility means a facility for berthing of recreational vessels at which all berths and accessory uses thereto are not available for patronage by the general public, or where exclusive use of any such berth is available on a long-term basis. Such berths shall not include a berth reserved for the operator of said facility.

Private Tidelands means tidelands held by a private person subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water. In accordance with the Colonial Ordinances of 1641-47, the Department shall presume that tidelands are private tidelands if they lie landward of the historic low water mark or of a line running 100 rods (1650 feet) seaward of the historic high water mark, whichever is farther landward; such presumption may be overcome upon a showing that such tidelands, including but not limited to those in certain portions of the Town of Provincetown, are not held by a private person or upon a final judicial decree that such tidelands are not subject to said easement of the public.

Project means any work, action, conduct, alteration, change of use, or other activity subject to the jurisdiction of the Department under M.G.L. c. 91, in accordance with the provisions of 310 CMR 9.03 through 9.05, which is the subject of a license or permit application.

Project Shoreline means the high water mark, or the perimeter of any pier, wharf, or other structure supported by existing piles or to be replaced pursuant to 310 CMR 9.32(1)(a)4., whichever is farther seaward.

Project Site means the area owned, controlled, or proposed for development by the applicant in which a project will occur and which is subject to the geographic jurisdiction of the Department, as specified in 310 CMR 9.04.

Public Agency means any agency, department, board, district, commission, or authority of the Commonwealth or the United States, or any municipality or other political subdivision of the Commonwealth.

Public Recreational Boating Facility means a facility for berthing of recreational vessels at which all berths and accessory uses thereto are available for patronage by the general public on a seasonal or transient basis. Such facility may be either publicly or privately owned, and may include town piers, commercial rental marinas, or community sailing centers or yacht clubs offering open membership to the public. Nothing in 310 CMR 9.00 shall be construed as prohibiting the adoption of minimum eligibility criteria of broad, objective applicability, such as basic knowledge of boating safety or a willingness to make regular work commitments; nor as prohibiting the reservation of a berth for the operator of said facility.

Public Service Project means a project: (a) whose entire control, development, and operation is undertaken by a public agency for the provision of facilities or services directly to the public (or to another public agency for such provision to the public) by the public agency or its contractor or agent; or (b) which consists entirely of Infrastructure Facilities, as defined at 310 CMR 9.02.

Public Way means a road, street, or highway for vehicular use open to the public at large and for which a public agency is responsible for maintenance and repair.

3/10/17 310 CMR - 269 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

Resource Area means any of the areas specified in 310 CMR 10.25 through 10.35 and 310 CMR 10.54 through 10.58. It is used synonymously with Area Subject to Protection under M.G.L. c. 131, § 40, each one of which is enumerated in 310 CMR 10.02(1): Areas Subject to Protection Under M.G.L. c. 131, § 40 .

Restoration Order of Conditions means the General Order of Conditions issued pursuant to 310 CMR 10.14: General Ecological Restoration Project Order of Conditions for a project that meets the eligibility criteria set forth in 310 CMR 10.13: Eligibility Criteria for General Restoration Order of Conditions .

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs.

Shellfish means the following species: Bay Scallop ( Argopecten irradians ); Blue Mussel (Mytilus edulis ); Ocean Quahog (Arctica islandica ); Oyster (Crassostrea virginica ); Quahog (Mercenaria mercenaria ); Razor Clam (Ensis directus ); Sea Clam (Spicula solidissima ); Sea Scallop ( Placopecten megallanicus ); and Soft Clam ( Mya arenaria ).

State Agency means any agency, department, board, district, commission, or authority of the Commonwealth.

Structure means any man-made object which is intended to remain in place in, on, over, or under tidelands, Great Ponds, or other waterways. Structure shall include, but is not limited to, any pier, wharf, dam, seawall, weir, boom, breakwater, bulkhead, riprap, revetment, jetty, piles (including mooring piles), line, groin, road, causeway, culvert, bridge, building, parking lot, cable, pipe, pipeline, conduit, tunnel, wire, or pile-held or other permanently fixed float, barge, vessel or aquaculture gear. Structure does not include any mooring, float, or raft which has been authorized by annual permit of a harbormaster, in accordance with M.G.L. c. 91, § 10A and with 310 CMR 9.07; nor any weir, pound net, or fish trap which has been authorized in tidewater by permit of the municipal official and approved by the Department and the Division of Marine Fisheries, in accordance with M.G.L. c. 130, § 29. Any such mooring, float, raft, weir, pound net, or fish trap, which has not been so authorized shall be considered a structure under 310 CMR 9.00.

Substantial Change in Use means a use for a continuous period of at least one year of 10% or more of the surface area of the authorized or licensed premises or structures for a purpose unrelated to the authorized or licensed use or activity, whether express or implied.

Substantial Structural Alteration means a change in the dimensions of a principal building or structure which increases by more than 10% the height or ground coverage of the building or structure specified in the authorization or license, or an increase by more than 10% of the surface area of the fill specified in the authorization or license.

Superseding Order means an order of conditions issued by the Department pursuant to the Wetlands Protection Act M.G.L. c. 131, § 40, as defined in 310 CMR 10.04: Definitions .

Supporting DPA Use means an industrial or commercial use in a Designated Port Area that provides water-dependent industrial use in the DPA with direct economic or operational support, to an extent that adequately compensates for the reduced amount of tidelands on the project site that will be available for water-dependent industrial use during the term of the license. The type, location, scale, duration, operation, and other relevant aspects of the industrial or commercial use must be compatible with activities characteristic of a working waterfront and its backlands, in order to preserve in the long run the predominantly industrial character of the DPA and its viability for maritime development. In determining whether an industrial or commercial use qualifies as a Supporting DPA Use, the Department shall act in accordance with the following provisions as well as all applicable provisions of a DPA Master Plan.

3/10/17 310 CMR - 270 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.02: continued

In the case of commercial uses, any use may be determined to be compatible with the DPA except where the inherent nature of the use gives rise to conflict with port operations or excessive consumption of port space, either directly or indirectly (e.g. as a result of collateral development activity). Accordingly, new or expanded uses that shall not be determined to be a Supporting DPA Use include, but are not limited to, transient group quarters such as hotels/motels, nursing homes, and hospitals; recreational boating facilities; amusement parks and other major entertainment or sports complexes; and new buildings devoted predominantly to office use. Unless otherwise provided in a DPA Master Plan, the amount of tidelands occupied by Supporting DPA Uses and any accessory uses thereto shall not exceed 25% of the area of the project site (excluding tidelands seaward of the project shoreline), so that the remainder of the project site will continue to be available exclusively for water-dependent industrial or temporary use.

Temporary Use means warehousing, trucking, parking, and other industrial and transportation uses which occupy vacant space or facilities in a Designated Port Area, for a maximum term of ten years as specified in 310 CMR 9.15(1)(d), and without significant structural alteration of such space or facilities. Temporary uses may be licensed only if marketing efforts have failed to identify any prospective water-dependent industrial tenant, and if the license is conditioned to require further solicitation of such tenancy upon expiration of the license term.

Test Project means the installation or deployment of water dependent Innovative Technology in situ for purposes of evaluating its performance and environmental effects.

Trust Lands means present and former waterways in which the fee simple, any easement, or other proprietary interest is held by the Commonwealth in trust for the benefit of the public. All geographic areas subject to the jurisdiction of M.G.L. c. 91, as specified in 310 CMR 9.04, are generally considered to be trust lands.

3/10/17 310 CMR - 270.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

NON-TEXT PAGE

3/10/17 310 CMR - 270.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.11: continued

(4) Additional Information and Extensions. (a) The Department shall request additional information as soon as practicable when an application is incomplete or when otherwise allowed under 310 CMR 9.00. Applicants shall provide requested information as soon as practicable but no later than 180 days from the request. (b) With the consent of the applicant or upon the applicant submitting revised or additional information, the Department may extend the period for actions under 310 CMR 9.11 as provided under 310 CMR 4.04: Permit Applications Schedules and Fee.

(5) Expiration of Application (a) An application shall expire if the applicant has failed to diligently pursue the issuance of said license or permit in proceedings under 310 CMR 9.00. (b) With the exception of applications filed under 310 CMR 9.28, an application shall be presumed to have expired six months after any request for additional information by the Department unless the applicant submits information showing that: 1. good cause exists for the delay of proceedings under 310 CMR 9.00; and 2. the applicant has continued to pursue the project diligently in other forums in the intervening period; provided, however, that unfavorable financial circumstances shall not constitute good cause for delay. (c) No application shall be deemed to have expired under 310 CMR 9.11 when a completed application is pending and when the applicant has provided all information necessary for the Department to determine whether to issue a license or permit.

9.12: Determination of Water-dependency

(1) Prior to issuance of the public notice, the Department shall classify the project as a water-dependent use project or as a nonwater-dependent use project. The Department shall classify as a water-dependent use project any project which consists entirely of: (a) uses determined to be water-dependent in accordance with 310 CMR 9.12(2); and/or (b) uses determined to be accessory to a water-dependent use, in accordance with 310 CMR 9.12(3). Any other project shall be classified as a nonwater-dependent use project.

(2) The Department shall determine a use to be water-dependent upon a finding that said use requires direct access to or location in tidal or inland waters, and therefore cannot be located away from said waters. In making this determination, the Department shall act in accordance with the following provisions. (a) The Department shall find to be water-dependent the following uses: 1. any use found to be water-dependent-industrial in accordance with 310 CMR 9.12(2)(b); 2. marinas, boat basins, channels, storage areas, and other commercial or recreational boating facilities; 3. facilities for fishing, swimming, diving, and other water-based recreational activities; 4. parks, esplanades, boardwalks, and other pedestrian facilities that promote use and enjoyment of the water by the general public and are located at or near the water's edge, including but not limited to any park adjacent to a waterway and created by a public agency; 5. aquariums and other education, research, or training facilities dedicated primarily to marine purposes; 6. aquaculture facilities; 7. beach nourishment; 8. waterborne passenger transportation facilities, such as those serving ferries, cruise ships, commuter and excursion boats, and water shuttles and taxis; 9. dredging for navigation channels, boat basins, and other water-dependent purposes, and subaqueous disposal of the dredged materials below the low water mark; 10. navigation aids, marine police and fire stations, and other facilities which promote public safety and law enforcement on the waterways;

5/23/14 310 CMR - 287 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.12: continued

11. shore protection structures, such as seawalls, bulkheads, revetments, dikes, breakwaters, and any associated fill which are necessary either to protect an existing structure from natural erosion or accretion, or to protect, construct, or expand a water-dependent use; 12. flood, water level, or tidal control facilities; 13. discharge pipes, outfalls, tunnels, and diffuser systems for conveyance of stormwater, wastewater, or other effluents to a receiving waterway; 14. facilities and activities undertaken or required by a public agency for purposes of decontamination, capping, or disposal of polluted aquatic sediments; and 15. wildlife refuges, bird sanctuaries, nesting areas, other wildlife habitats or an Ecological Restoration Project. (b) The Department shall find to be water-dependent-industrial the following uses: 1. marine terminals and related facilities for the transfer between ship and shore, and the storage of, bulk materials or other goods transported in waterborne commerce; 2. facilities associated with commercial passenger vessel operations; 3. manufacturing facilities relying primarily on the bulk receipt or shipment of goods by waterborne transportation; 4. commercial fishing, shellfishing, and other seafood and fish processing facilities for fish, shellfish, and other seafood; 5. boatyards, dry docks, and other facilities related to the construction, serving, maintenance, repair, or storage of vessels or other marine structures; 6. facilities for tug boats, barges, dredges, or other vessels engaged in port operations or marine construction; 7. any water-dependent use listed in 310 CMR 9.12(2)(a)9. through 14., provided the Department determines such use to be associated with the operation of a Designated Port Area; 8. hydroelectric power generating facilities; 9. Offshore renewable energy infrastructure facilities in the Commonwealth, including ocean wave energy facilities, ocean current energy facilities, tidal energy facilities, any ancillary facility thereto or any similar facility that obtains its energy from the ocean; 10. infrastructure facilities used to deliver electricity, natural gas or telecommunications services to the public from an offshore facility located outside the Commonwealth; and 11. facilities for the manufacture, servicing, maintenance, data collection, and other functions related to coastal or offshore structures, buoys, autonomous underwater vehicles or vessels, and for the development of new technologies and systems for these structures, buoys, vehicles or vessels, provided that the facility requires transfer between ship and shore or the withdrawal and/or discharge of large volumes of water; 12. facilities for research and development or for the manufacture of technologies, e.g ., robotics and acoustics, related to the marine environment, provided that the facility requires transfer between ship and shore or the withdrawal and/or discharge of large volumes of water; 13. facilities for research on, and the treatment of, marine species which require transfer between ship and shore or the withdrawal and/or discharge of large volumes of water; 14. facilities for the development and testing of offshore renewable energy infrastructure or components, provided that the facility requires transfer between ship and shore or the withdrawal and/or discharge of large volumes of water; 15. commercial aquaculture facilities that require transfer between ship and shore or the withdrawal and/or discharge of large volumes of water; and 16. other industrial uses or infrastructure facilities which cannot reasonably be located at an inland site as determined in accordance with 310 CMR 9.12(2)(c) or (d). (c) In the case of industrial and infrastructure facilities not listed in 310 CMR 9.12(2)(b), which are dependent on marine transportation or require large volumes of water to be withdrawn from or discharged to a waterway for cooling, process, or treatment purposes, the Department shall act in accordance with the following provisions: 1. the Department shall presume to be water-dependent any alteration or expansion of a facility existing or licensed as of the effective date of 310 CMR 9.00, and any energy facility for which the proposed location has been approved by the Energy Facilities Siting Board; this presumption may be overcome only upon a clear showing that the proposed alteration or expansion or energy facility can reasonably be located or operated away from tidal or inland waters;

3/10/17 310 CMR - 288 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.12: continued

2. except as provided in 310 CMR 9.12(2)(c)1., the Department shall presume that any such industrial or infrastructure facility is not water-dependent; this presumption may be overcome only upon a clear showing that such facility cannot reasonably be located or operated away from tidal or inland waters. If an EIR is submitted, the findings necessary to overcome the above presumptions shall be based on a comprehensive analysis of alternatives and other information analyzing measures that can be taken to avoid or minimize impacts on the environment, in accordance with M.G.L. c. 30, §§ 61 through 62H. If an EIR is not submitted, such findings shall be based on information presented to the Department in the application and during the public comment period thereon. (d) In the case of an infrastructure crossing facility, or any ancillary facility thereto, for which an EIR is submitted, the Department shall find such facility to be water-dependent only if the Secretary has determined that such facility cannot reasonably be located or operated away from tidal or inland waters, based on a comprehensive analysis of alternatives and other information analyzing measures that can be taken to avoid or minimize adverse impacts on the environment, in accordance with M.G.L. c. 30, §§ 61 through 62H. If an EIR is not submitted, such finding may be made by the Department based on information presented in the application and during the public comment period thereon.

3/10/17 310 CMR - 288.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

NON-TEXT PAGE

3/10/17 310 CMR - 288.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.12: continued

(e) In the case of a facility generating electricity from wind power (wind turbine facility), or any ancillary facility thereto, for which an EIR is submitted, the Department shall presume such facility to be water-dependent if the Secretary has determined that such facility requires direct access to or location in tidal waters and cannot reasonably be located or operated away from tidal or inland waters, based on a comprehensive analysis of alternatives and other information analyzing measures that can be taken to avoid or minimize adverse impacts on the environment, in accordance with M.G.L. c. 30, §§ 61 through 62I. If an EIR is not submitted, the Department shall presume such facility to be water-dependent. Whether or not an EIR is filed, this presumption may be overcome only upon a clear showing that the proposed facility can reasonably be located or operated away from tidal or inland waters. (f) The Department shall not find the following uses to be water-dependent: 1. restaurants and other food/beverage service establishments; 2. retail shops and stores; 3. parking facilities; 4. office facilities; 5. housing units and other residential facilities; 6. hotels, motels, and other facilities for transient lodging; 7. parks, esplanades, boardwalks, and other pedestrian facilities other than those described in 310 CMR 9.12(2)(a)4.; 8. roads, causeways, railways, and other facilities for land-based vehicular movement, other than those found to be water-dependent in accordance with 310 CMR 9.12(2)(c) or (d); and 9. subaqueous disposal, below the low water mark, of material excavated or otherwise originating on land.

(3) Accessory Uses . (a) The Department may determine a use to be accessory to a water-dependent use upon a finding that said use is customarily associated with and necessary to accommodate a principal water-dependent use. Such a finding shall be made only if the proposed use is: 1. integral in function to the construction or operation of the water-dependent use in question, or provides related goods and services primarily to persons engaged in such use; and 2. commensurate in scale with the operation of the water-dependent use in question. Examples of uses that may be determined to be accessory to a water-dependent use include, but are not limited to, access and interior roadways, parking facilities, administrative offices and other offices primarily providing services to water-dependent uses on the site, yacht clubhouses, restaurants and retail facilities primarily serving patrons of the water-dependent use on the site, bait shops, chandleries, boat sales, and other marine-oriented retail facilities. Uses that may not be determined to be accessory to a water-dependent use include, but are not limited to, general residential facilities, hotels, general office facilities, and major retail establishments. (b) The Department may find a use to be accessory to a water-dependent industrial use if, in addition to the criteria listed in 310 CMR 9.12(3)(a)1. and 2., the hours of operation of the use do not extend beyond the hours of operation of the water-dependent industrial use, except for support services which occur outside of the hours of the accessory use, and the use does not require a significant additional investment in infrastructure apart from that necessary for the primary water-dependent industrial use. Examples of water-dependent industrial accessory uses include, but are not limited to, ticketing booths for ferry operations, snack bars, and administrative offices associated with the water-dependent industrial use.

(4) The Department shall find to be nonwater-dependent any use which has not been found to be water-dependent or accessory to a water-dependent use, pursuant to 310 CMR 9.12(2) and (3).

9.13: Public Notice and Participation Requirements

(1) Notice Requirements . (a) Public notice shall be issued by the Department but distributed and published by the applicant. The date of the public notice and, when required, the date of the public hearing, shall be determined by the Department. The applicant shall send a notice of license or permit application as described in 310 CMR 9.13(1)(c), by first class mail, return receipt, and provide proof of such notification to the Department, to:

3/10/17 310 CMR - 289 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.13: continued

1. the municipal official, the planning board, the conservation commission, and the harbormaster, if any, in the city or town where the project is located; 2. if the application is for a proposed bridge, dam or similar structure across a tidal river, cove or inlet, the municipal official, the planning board, the conservation commission, and the harbormaster of every municipality into which the tidewater of said river, cove, or inlet extends; 3. the Martha's Vineyard Commission or the Cape Cod Commission, if the project is located within an area subject to the jurisdiction of said Commission; 4. CZM, if the project is located within the coastal zone; DCR, if the project is located in an Ocean Sanctuary; and the Department of Fish and Game. 5. the Environmental Monitor for all projects exceeding M.G.L. c. 30, §§ 61 through 62H review theresholds for Waterways activities; 6. all landowners and easement holders of the project site and abutters thereto, as identified pursuant to 310 CMR 9.11(3)(b)1.; and 7. U.S. Army Corps of Engineers, New England Division. (b) At least 45 days prior to issuance of a license, or 21 days prior to issuance of a permit, the applicant shall cause, at his own expense and at the direction of the Department, notice as described in 310 CMR 9.13(1)(c)1. through 9., to be published in one or more newspapers having circulation in the area affected by the project. (c) Notice shall contain: 1. the name and address of the applicant and the applicant's representative, if any; 2. a description of the location of the project, including whether it is located in an ACEC, DPA, or an Ocean Sanctuary; 3. a description of the project including a listing of uses and the Department's determination of water-dependency; 4. for nonwater-dependent use projects, and for any water-dependent use project for which the Department decides to hold a hearing, the time, place and location of the public hearing and the date on which the public comment period ends; 5. for other water-dependent use projects, a statement that within 30 days of the notification date of a license application or within 15 days of the notification date of a permit application, written comments will be accepted, and that a public hearing may be held upon request by the municipal official; 6. the address where the application may be viewed, where a copy of the draft license conditions may be obtained if applicable, and where public comments regarding the application may be sent; 7. a statement that a municipality, ten citizen group or any aggrieved person that has submitted written comments before the close of the public comment period may appeal and that failure to submit written comments will result in the waiver of any right to an adjudicatory hearing; 8. the notification date, as defined in 310 CMR 9.02; 9. for applications submitted under 310 CMR 9.11(2)(b)2. and 4., the date that copies of the Department’s draft license conditions will be available seven days prior to the public hearing; and 10. an 8½" x 11" copy of the site plan, including a locus insert, of the project site. (d) An applicant for a license, permit or other written approval pursuant to 310 CMR 9.00 and whose project is also subject to 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth and/or 310 CMR 10.00: Wetlands Protection may provide joint public notice by appending to the notice required under 310 CMR 10.05(5): Public Hearings by Conservation Commissions or 314 CMR 9.05(3): Public Notice of an Application a statement that an application for a license, permit or other written approval pursuant to 310 CMR 9.00 is pending before the Department, provided that the joint notice contains the information required by 310 CMR 9.13(1)(c). An applicant may provide a joint public notice even if the application is not a Combined Application.

5/23/14 310 CMR - 290 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.30: continued

The applicant shall also send a copy of the notice to the persons identified in 310 CMR 9.13(1)(a) by certified mail, return receipt, and provide proof of such notice to the Department. With the agreement of the conservation commission, joint notice under M.G.L. c. 131, § 40, and M.G.L. c. 91 may be published and sent to abutters, provided it contains the requisite information and meets the requisite standards pursuant to each statute and its implementing regulations. Joint notice may be provided even if the applicant does not submit a Combined Application.

(5) Fees. All applicants for a permit under these procedures shall pay the application fee, or the renewal fee, in accordance with the provisions of 310 CMR 9.16. No tidewater displacement fees or occupation fees shall be assessed.

(6) Decision on Applications. The Department shall issue a permit or permit denial within 30 days of the close of the public comment period or receipt of the Order of Conditions, whichever is later.

(7) Term. A permit issued under 310 CMR 9.30 shall be valid for no more than one year.

(8) Extension of Permit. Upon request of the Permittee, the Department may extend the term of the permit for one additional one-year period, without the filing of a new application. Notice of the extension request shall be published by the Permittee and distributed to the persons identified in 310 CMR 9.30(4) above at least 30 days prior to the expiration of the permit.

(9) Appeals. The appeal provisions in 310 CMR 9.17 shall apply to proceedings under 310 CMR 9.30, provided, however, that if the Department determines that an application submitted for a permit under this section is not eligible for permitting as a Test Project pursuant to 310 CMR 9.30, the applicant shall seek authorization for the proposed project in accordance with the applicable permit or licensing procedures set forth in 310 CMR 9.11 through 310 CMR 9.27 and the performance standards set forth in 310 CMR 9.32 through 310 CMR 9.55 in lieu of requesting an adjudicatory hearing.

9.31: Summary of License and Permit Requirements

(1) Basic Requirements. No license or permit shall be issued by the Department for any project subject to 310 CMR 9.03 through 9.05 and 9.09 unless said project: (a) includes only fill and structures for uses that have been categorically determined to be eligible for a license, according to the provisions of 310 CMR 9.32; (b) complies with applicable environmental regulatory programs of the Commonwealth, according to the provisions of 310 CMR 9.33; (c) conforms to applicable provisions of a municipal harbor plan, if any, and local zoning law, according to the provisions of 310 CMR 9.34; (d) complies with applicable standards governing the preservation of water-related public rights, according to the provisions of 310 CMR 9.35; (e) complies with applicable standards governing the protection of water-dependent uses, according to the provisions of 310 CMR 9.36; (f) complies with applicable standards governing engineering and construction of structures, according to the provisions of 310 CMR 9.37; (g) complies with applicable standards governing use and design of boating facilities for recreational or commercial vessels, according to the provisions of 310 CMR 9.38 and 9.39; (h) complies with applicable standards governing dredging and disposal of dredge materials, according to the provisions of 310 CMR 9.40; and (i) does not deny access to its services and facilities to any person in a discriminatory manner, as determined in accordance with the constitution of the Commonwealth of Massachusetts, of the United States of America, or with any statute, regulation, or executive order governing the prevention of discrimination.

(2) Proper Public Purpose Requirement. No license or permit shall be issued by the Department for any project on tidelands or Great Ponds, except for water-dependent use projects located entirely on private tidelands, unless said project serves a proper public purpose which provides greater benefit than detriment to the rights of the public in said lands. In applying 310 CMR 9.31(2), the Department shall act in accordance with the following provisions.

5/23/14 310 CMR - 311 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.31: continued

(a) Water-dependent Use Projects - The Department shall presume 310 CMR 9.31(2) is met if the project is a water-dependent use project. (b) Nonwater-dependent Use Projects - The Department shall presume 310 CMR 9.31(2) is met if the project is a nonwater-dependent use project which: 1. complies with the standards for conserving and utilizing the capacity of the project site to accommodate water-dependent use, according to the applicable provisions of 310 CMR 9.51 through 9.52; and complies with the additional standard for activating Commonwealth tidelands for public use, according to the applicable provisions of 310 CMR 9.53; 2. if located in the coastal zone, complies with the standard governing consistency with the policies of the Massachusetts Coastal Zone Management Program, according to 310 CMR 9.54; and 3. if consisting entirely of infrastructure facilities, to which 310 CMR 9.31(2)(b)1. does not apply, complies with the special mitigation and public access standards governing such facilities, according to 310 CMR 9.55.

(3) Rebuttal of Presumptions . The presumptions of 310 CMR 9.31(2) may be overcome only if: (a) the basic requirements specified in 310 CMR 9.31(1) have not been met; or (b) a clear showing is made by a municipal, state, regional, or federal agency that requirements beyond those contained in 310 CMR 9.00 are necessary to prevent overriding detriment to a public interest which said agency is responsible for protecting; in the case of a project for which a final EIR has been prepared, the presumption may be overcome only if such detriment has been identified during the M.G.L. c. 30, §§ 61 through 62H review process.

(4) Requirements for Projects with Special Legislative Authorization . Notwithstanding the provisions of 310 CMR 9.31(1) through (3), the Department shall issue a license or permit where the project comprises fill or structures that have been specifically authorized in a grant or other enactment of the legislature, provided that the Department may prescribe such alterations and conditions as it deems necessary to ensure the project conforms with: (a) any requirements contained in the legislative authorization; and (b) the standards of 310 CMR 9.31 through 9.60, to the extent consistent with the legislative authorization.

9.32: Categorical Restrictions on Fill and Structures

(1) The Department has determined that in certain situations fill or structures categorically do not meet the statutory tests for approval under M.G.L. c. 91 or are otherwise not in keeping with the purposes of 310 CMR 9.00. Accordingly, a project shall be eligible for a license only if it is restricted to fill or structures which accommodate the uses specified below, within the geographic areas specified in 310 CMR 9.32(1)(a) through (e). (a) Tidelands (Outside of ACECs and DPAs) . 1. fill or structures for any use on previously filled tidelands; 2. fill or structures for water-dependent use located below the high water mark, provided that, in the case of proposed fill, reasonable measures are taken to minimize the amount of fill, including substitution of pile-supported or floating structures and relocation of the use to a position above the high water mark; 3. structures to accommodate public pedestrian access on flowed tidelands, provided that it is not reasonable to locate such structures above the high water mark or within the footprint of existing pile-supported structures or pile fields; 4. pile-supported structures located below the high water mark for nonwater-dependent uses which replace or modify existing, previously authorized wharves, piers, pile fields, or other filled or pile-supported structures, in accordance with the provisions of 310 CMR 9.51(3)(a) and (b); 5. new fill located below the high water mark for accessory or nonwater-dependent use provided that: a. the purpose of such fill is to eliminate irregularities in previously altered portions of the project shoreline; and

3/10/17 310 CMR - 312 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.32: continued

b. such fill will replace previously authorized fill elsewhere along the project shoreline, on a 1:1 square foot basis and without seaward projection beyond the adjacent shoreline; 6. stationary vessels located below the high water mark and proposed for conversion to accessory use or to nonwater-dependent facilities of public accommodation, provided that such vessels: a. do not consist of platform-like floating structures, such as barges, built or modified to serve primarily as support for new buildings; and b. will be licensed for a limited term, in accordance with the provisions of 310 CMR 9.15(1)(d)2. 7. fill or structures located below the high water mark for wind turbine facilities found to be non-water dependent, pursuant to 310 CMR 9.12(2)(e), in accordance with the mitigation and/or compensation measures for non-water dependent infrastructure facilities required by 310 CMR 9.55. (b) Tidelands Within Designated Port Areas (DPAs). 1. fill or structures for any water dependent industrial use, and accessory uses thereto, provided that: a. in the case of proposed fill, neither pile supported nor floating structures are a reasonable alternative; and b. in the case of parking, where the use cannot reasonably be located above the high water mark, and is not located within a water dependent use zone; and c. when parking is limited to persons employed by or doing business with the water-dependent industrial use over flowed tidelands; 2. fill or structures for recreational boating facilities of nine slips or less under the conditions specified in a DPA Master Plan; 3. Supporting DPA Uses, as defined at 310 CMR 9.02, shall not exceed 25% of the area of the project site, excluding tidelands seaward of the project shoreline. 4. Supporting DPA Uses on pile-supported structures over flowed tidelands may be allowed only through a DPA Master Plan or a Marine Industrial Park Master Plan, provided that said plan is based on a clear showing that the use meets the following requirements and is appropriate for the harbor in question: a. no Supporting Use structure may be allowed in the Water-dependent Use Zone; b. no Supporting Use parking shall be allowed on pile-supported structures over flowed tidelands; c. non Water-dependent Supporting Use structure meet the standards of 310 CMR 9.51(3)(b) through (e); and d. Supporting Use structures shall otherwise be appropriately sized and located, in accordance with 310 CMR 9.36(5)(b). 5. The Department shall waive the numerical standard for Supporting DPA Uses as defined at 310 CMR 9.02, if the project conforms to a DPA Master Plan or Marine Industrial Park Master Plan which specifies alternative site coverage ratios and other requirements which ensure that: a. said Supporting Uses are relatively condensed in footprint and compatible with existing water-dependent industrial uses on said pier; b. said Supporting Use locations shall preserve and maintain the site's utility for existing and prospective water-dependent industrial uses; c. parking associated with a Supporting Use is limited to the footprint of existing licensed fill and is not located within a Water-dependent Use Zone; and d. The use of tidelands for this purpose in a DPA shall also be governed by the provisions of 310 CMR 9.15(1)(d)1. and 310 CMR 9.36(5). 6. maintenance of existing, previously-authorized recreational boating facilities; 7. recreational berths authorized in connection with a Boatyard in accordance with 310 CMR 9.39(2)(b), or as included in an approved Designated Port Area Master Plan pursuant to 301 CMR 23.05(2)(e)5.; 8. structures to accommodate public pedestrian access, provided that such structures are located above the high water mark or within the footprint of existing pile supported structures or pile fields, wherever feasible; 9. structures on filled tidelands to accommodate the following uses on a limited basis: a. a use to be licensed in combination with water dependent industrial uses within a marine industrial park, as defined in 310 CMR 9.02; or

3/10/17 310 CMR - 313 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.32: continued

b. a temporary use, as defined in 310 CMR 9.02. The use of filled tidelands in a DPA for the above purposes shall also be governed by the provisions of 310 CMR 9.15(1)(d)1. and 9.36(5).

(2) Notwithstanding the provisions of 310 CMR 9.32(1), the Department may license fill or structures necessary for the following uses, provided that reasonable measures are taken to avoid, minimize, and mitigate any encroachment in a waterway: (a) shoreline stabilization or the rehabilitation of an existing shore protection structure, irrespective of the uses proposed landward of such fill or structures; (b) installation of drainage, ventilation, or utility structures, or placement of minor and incidental fill, necessary to accommodate any replacement, reconstruction or other modification to existing public roadways or existing railroad track and/or rail bed; (c) improvement or rehabilitation of existing public roadways or existing railroad track and/or rail bed, provided that any net encroachment with respect to public roadways is limited to widening by less than a single lane, adding shoulders, and upgrading substandard intersections; or (d) except as may be provided in 310 CMR 9.32(1)(b)1., accessory uses, other than parking, which are clearly subordinate and incidental to a water-dependent use, provided that: 1. the fill or structures in question are not located in an ACEC, and do not result in any encroachment in the waterway beyond the area occupied by the water-dependent use itself; and 2. the accessory use cannot reasonably be located above the high water mark, and is not located within a water-dependent use zone.

9.33: Environmental Protection Standards

(1) All projects must comply with applicable environmental regulatory programs of the Commonwealth, including but not limited to: (a) Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 62H and 301 CMR 11.00: MEPA Regulations . (b) Wetlands Protection Act, M.G.L. c. 131, § 40, and 310 CMR 10.00: Wetlands Protection . (c) Wetlands Restriction Acts, M.G.L. c. 130, § 105 and c. 131, § 40A, and 310 CMR 12.00: Adopting Coastal Wetlands Orders and 310 CMR 13.00: Adopting Inland Wetlands Orders . All projects shall comply with wetland restriction orders recorded pursuant to these statutes. (d) Areas of Critical Environmental Concern, M.G.L. c. 21A, § 2(7) and St. 1974, c. 806, § 40(E), and 301 CMR 12.00: Areas of Critical Environmental Concern . (e) Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through 53, and 314 CMR 3.00: Surface Water Discharge Permit Program , 314 CMR 5.00: Ground Water Discharge Permit Program , 314 CMR 7.00: Sewer System Extension and Connection Permit Program , 314 CMR 9.00: 401 Water Quality Certification for Discharge of Dredged or Fill Material, Dredging, and Dredged Material Disposal in Waters of the United States Within the Commonwealth , and 310 CMR 15.00: The State Environmental Code, Title 5: Standard Requirements for the Siting, Construction, Inspection, Upgrade and Expansion of On-site Sewage Treatment and Disposal Systems and for the Transport and Disposal of Septage . (f) Ocean Sanctuaries Act, M.G.L. c. 132A, §§ 13 through 16 and 18, and 302 CMR 5.00: Ocean Sanctuaries . No license or permit shall be issued for any structure or fill that is expressly prohibited in M.G.L. c. 132A, §§ 1 through 16. (g) Marine Fisheries Laws, M.G.L. c. 130, and 322 CMR 1.00: Enforcement of Rules and Regulations . (h) Scenic Rivers Act, M.G.L. c. 21, § 17B, and 302 CMR 3.00: Scenic and Recreational Rivers Orders . (i) Massachusetts Historical Commission Act, M.G.L. c. 9, §§ 26 through 27C, as amended by St. 1982, c. 152 and St. 1988, c. 254, and 950 CMR 71.00: Protection of Properties Included in the State Register of Historic Places . For projects for which a Project Notification Form must be submitted pursuant to 950 CMR 71.07: Review of Projects the applicant shall file said form with the Massachusetts Historical Commission.

3/10/17 310 CMR - 314 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.33: continued

(j) Mineral Resources Act, M.G.L. c. 21, §§ 54 through 58. (k) Massachusetts Drinking Water Act, M.G.L. c. 111, §§ 159 through 174A, and 310 CMR 22.00: Land Application of Sludge and Septage . (l) Underwater Archeological Resources Act, M.G.L. c. 91 and c. 6, §§ 179 and 180, and 312 CMR 2.00: Massachusetts Underwater Archaeological Resources . (m) Hazardous Waste Management Act, M.G.L. c. 21C and 310 CMR 30.000: Hazardous Waste . (n) Solid Waste Disposal Act, M.G.L. c. 16, §§ 18 through 24, and 310 CMR 16.00: Site Assignment Regulations for Solid Waste Facilities . (o) Air Pollution Act, M.G.L. c. 111, §§ 142A through I and 310 CMR 7.00: Air Pollution Control . (p) State Highway Curb Cuts, M.G.L. c. 81, § 21. (q) Energy Restructuring Act, M.G.L. c. 164, §§ 69G through S, and 980 CMR 1.00 through 12.00. (r) Regional land use control statutes, including the Martha's Vineyard Commission Act, St. 1974, c. 637, c. 831, and the Cape Cod Commission Act, St. 1989, c. 716.

(2) Where a state or regional agency has authority to issue regulatory approval, issuance of such approval shall be conclusive as to compliance with the regulatory program in question.

(3) With respect to M.G.L. c. 131, § 40 and 310 CMR 10.00: Wetlands Protection , if the Department has issued a final order of conditions the project shall be presumed to comply with the statute and the final order shall be deemed to be incorporated in the terms of the license or permit, with no additional wetland conditions imposed. If an order of conditions has been issued by the conservation commission and the Department has not taken jurisdiction, the Department shall presume the project complies with state wetland standards, except upon a clear showing of substantial non-compliance with such standards. In that event, the Department shall impose such additional conditions in the license or permit as will make the project substantially comply with state wetlands standards.

(4) Where a state agency has statutory responsibility but no authority to issue regulatory approval, the Department shall act in accordance with any MOU with said agency governing incorporation of its standards and requirements into waterways licenses and permits. In the absence of an MOU, the Department shall presume that the project complies with the statutes and regulations in question, unless the responsible state agency informs the Department otherwise. In that event, the Department shall consult with the responsible state agency and may adopt any formal recommendations received therefrom, provided such recommendations do not conflict with 310 CMR 9.00 or the purposes of M.G.L. c. 91.

9.34: Conformance with Municipal Zoning and Harbor Plans

(1) Zoning Law . Any project located on private tidelands or filled Commonwealth tidelands must be determined to comply with applicable zoning ordinances and by-laws of the municipality(ies) in which such tidelands are located. The Department shall find this requirement is met upon receipt of written certification issued by the municipal clerk, or by another municipal official responsible for administering said zoning ordinances and by-laws, and signed by the municipal clerk, stating that the activity to be licensed is not in violation of said ordinances and by-laws. Compliance with zoning does not apply to any public service project that is exempted from such requirements by law, including but not limited to action of the Department of Public Utilities pursuant to M.G.L. c. 40A, § 3.

(2) Municipal Harbor Plan . (a) If the project is located within an area covered by a municipal harbor plan, said project must conform to the provisions of said plan to the degree applicable under plan approval at 301 CMR 23.00: Review and Approval of Municipal Harbor Plans . In making this determination the Department shall take into account all relevant information in the public record, and shall act in accordance with the following provisions:

3/10/17 310 CMR - 315 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.34: continued

1. the Department shall consult with the planning board or other municipal body with lead responsibility for plan implementation, as appropriate and in accordance with the provisions of 310 CMR 9.11(1). In the event a written recommendation as to plan conformance is submitted by such board or other body, the Department shall presume that the requirement is met or not met in accordance with said recommendation, except upon a clear showing to the contrary and except as otherwise provided in 310 CMR 9.34(2)(a)2.; 2. the Department shall not find the requirement has been met if the project requires a variance or similar form of exemption from the substantive provisions of the municipal harbor plan, unless the Department determines the deviation to be de minimus or unrelated to the purposes of M.G.L. c. 91 or 310 CMR 9.00; (b) If the project conforms to the municipal harbor plan the Department shall: 1. apply the use limitations or numerical standards specified in the municipal harbor plan as a substitute for the respective limitations or standards contained in 310 CMR 9.32(1)(b)3., 9.51(3), 9.52(1)(b)1., and 9.53(2)(b) and (c), in accordance with the criteria specified in 310 CMR 9.32(1)(b)3., 9.51(3), 9.52(1)(b)1., and 9.53(2)(b) and (c) and in associated plan approval at 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and associated guidelines of CZM; 2. adhere to the greatest reasonable extent to applicable guidance specified in the municipal harbor plan which amplifies any discretionary requirements of 310 CMR 9.00, in accordance with the criteria specified in 301 CMR 23.00: Review and Approval of Municipal Harbor Plans and associated guidelines of CZM; 3. determine that the requirement of 310 CMR 9.54, governing consistency with CZM policies, has been met, if applicable, except upon a written showing by CZM for a project identified in 310 CMR 9.13(2)(a) for CZM participation that the project conflicts with CZM policy in effect when the license application was completed, in a manner that was not reasonably foreseeable at the time of plan approval.

9.35: Standards to Preserve Water-related Public Rights

(1) General . The project shall preserve any rights held by the Commonwealth in trust for the public to use tidelands, Great Ponds and other waterways for lawful purposes; and shall preserve any public rights of access that are associated with such use. In applying this standard the Department shall act in accordance with the provisions of 310 CMR 9.35(2) through (6), and shall give particular consideration to applicable guidance specified in a municipal harbor plan, as provided in 310 CMR 9.34(2)(b)2. Further, in assessing the significance of any interference with public rights pursuant to 310 CMR 9.35(2) and(3), the Department shall take into account that the provision of public benefits by certain water-dependent uses may give rise to some unavoidable interference with certain water-related public rights. Such interference may be allowed provided that mitigation is provided to the greatest extent deemed reasonable by the Department, and that the overall public trust in waterways is best served.

(2) Public Rights Applicable to All Waterways . (a) Navigation . The project shall not significantly interfere with public rights of navigation which exist in all waterways. Such rights include the right to conduct any activity which entails the movement of a boat, vessel, float, or other watercraft; the right to conduct any activity involving the transport or the loading/unloading of persons or objects to or from any such watercraft; and the natural derivatives thereof. 1. The Department shall find that the standard is not met in the event a project will: a. extend seaward of any state harbor line unless said project is specifically authorized by law or, if not so authorized, is a pipeline, conduit or cable which is entirely embedded in the soil and does not in any part occupy or project into such tidewater beyond the harbor line, provided also that the Department may at any time require any pipeline, conduit or cable to be removed or relocated if channel changes or alterations demand the same, as required by M.G.L. c. 91, § 14; b. extend into or over any existing channel such as to impede free passage; c. impair any line of sight required for navigation; d. require the alteration of an established course of vessels; e. interfere with access to adjoining areas by extending substantially beyond the projection of existing structures adjacent to the site;

3/10/17 310 CMR - 316 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.39: continued

6. if the applicant proposes to provide facilities for storage, pumping or conveyance of petroleum fuels, the following information shall also be provided: a. a detailed description and site location plan for marine related facilities necessary for the pumping, conveyance and storage of any petroleum products; b. a list of methods and equipment to be used for containment and clean-up of any petroleum fuels accidentally discharged into the water, including minor spills during routine operations; and a detailed contingency plan for major spills; c. documentation showing compliance with applicable local, state and federal requirements for said facilities. (b) Reconfiguration of Docking Facilities in a Marina . In a license or license amendment, the Department may delineate a zone within a marina for purposes of future reconfiguration of existing, licensed docking facilities, including pile-held or bottom-anchored floating walkways and finger piers, floats, and mooring piles. Such reconfiguration may proceed upon written approval by the Department, but without further licensing action if: 1. the licensee submits to the Department a written request and plan for reconfiguration which does not extend beyond the delineated zone, and which does not result in an increase in the area of waterway occupied from that which was originally licensed; 2. the licensee submits to the Department a statement affirming that the material submitted to the Department under 310 CMR 9.39(1)(b)1. has, at the time of such submittal, also been sent to the harbormaster of the affected municipality or, if the municipality has no harbormaster, to the municipal official, and that said harbormaster or municipal official has been informed that he has 30 days to register any objections to the proposed reconfiguration plan with the Department; 3. all other applicable permits have been obtained, including any required approval under M.G.L. c. 131, § 40 and 310 CMR 10.00: Wetlands Protection . The Department shall act upon any such request within 60 days of receipt.

(2) Boatyards . (a) The license application for any boatyard or expansion thereof shall indicate on the license plan that the following facilities and information will be provided: 1. adequate oil, grease, sediment, and paint traps and other appropriate measures used to contain by-products of boat service, repair and construction to prevent them from discharging into the adjacent waterway; 2. boat out-hauling and launching facilities which have been certified as structurally sound by a registered professional engineer; and 3. documentation showing compliance with applicable local, state and federal requirements for the use and storage of hazardous materials. (b) Recreational berths may be licensed in connection with a Boatyard in Designated Port Area in compliance with a MHP/DPA Master Plan, and in accordance with 310 CMR 9.32(1)(b)2., and the following: 1. the number of berths shall be commensurate in scale with the operation of the boatyard; 2. the berths may be licensed in connection with an active Boatyard only and shall be discontinued in the event that Boatyard operations at the site cease; and 3. the location of the berths and their use shall preserve water-related public rights and protect water-dependent uses.

(3) Boat Launching Ramps . The license application for any boat launching ramp for public use, or any expansion thereof, shall indicate on the license plan that the following facilities will be provided, to a degree deemed appropriate by the Department: (a) turning areas to facilitate the launching and retrieval of boats to or from the water; (b) parking areas for vehicles and boat trailers; (c) permanent or temporary sanitary facilities for boaters using the launching ramp, as necessary in light of anticipated water quality or other environmental concerns and maintenance considerations; (d) ramps constructed, where possible, at an angle no greater than 15% from the horizontal; where upland modification is necessary, the slope grade should be created, if possible, by cutting back into the upland; ramps should be approximately even with beach or upland grade elevations; and ramps should extend a sufficient distance inland to prevent washout at the inland edge and where possible should extend a minimum of five feet beyond the low water mark; and

3/10/17 310 CMR - 316.7 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.39: continued

(e) sufficient access facilities and water depths so as to provide safe navigational ingress and egress; this may include adjacent catwalks, tie-off pilings, or access piers and suitable associated water area for staging of boat launching and retrieval; water depths at the launching area of the ramp should be the minimum depth necessary to accommodate the types of boats which will use the facility.

9.40: Standards for Dredging and Dredged Material Disposal

Any project that includes dredging or dredged material disposal shall comply with the following requirements:

(1) Limitations on Dredging and Disposal Activity (a) The project shall not include any dredging of channels, mooring basins, or turnaround basins to a mean low water depth greater than 20 feet, unless said project: 1. is located within a Designated Port Area; or 2. serves a commercial navigation purpose of state, regional, or federal significance, and cannot reasonably be located in a Designated Port Area. (b) If the project is located in an ACEC, the project shall not include any of the following activities: 1. improvement dredging, unless the dredging is: for the sole purpose of fisheries or wildlife enhancement; part of an Ecological Restoration Project; or conducted by a public entity for the sole purpose of the maintenance or restoration of historic, safe navigation channels or turnaround basins of a minimum length, width and depth consistent with a Resource Management Plan adopted by the municipality(ies) and approved by the Secretary. 2. dredged material disposal, except for the sole purpose of beach nourishment, dune construction, reconstruction or stabilization with proper vegetative cover, the enhancement of fishery or wildlife resources, or unless the dredged material disposal is part of an Ecological Restoration Project in accordance with 314 CMR 9.07(1)(c) and 310 CMR 10.11(6)(b) and 310 CMR 40.000: Massachusetts Contingency Plan , if applicable, provided that any fill or dredged material used in an Ecological Restoration Project may not contain a chemical above the RCS-1 concentration, as defined in 310 CMR 40.000: Massachusetts Contingency Plan .

(2) Resource Protection Requirements . (a) The design and timing of dredging and dredged material disposal activity shall be such as to avoid interference with anadromous/catadromous fish runs. At a minimum, no such activity shall occur in such areas between March 15th and June 15 th of any year, except upon a determination by the Division of Marine Fisheries, pursuant to M.G.L. c. 130, § 19, that such an activity will not obstruct or hinder the passage of fish. (b) The design and timing of dredging and dredged material disposal activity shall be such as to minimize adverse impacts on shellfish beds, fishery resource areas, and submerged aquatic vegetation. The Department may consult with the Department of Fish and Game or the natural resource officer of the municipality regarding the assessment of such impacts.

(3) Operational Requirements for Dredging . (a) The extent of dredging shall not exceed that reasonably necessary to accommodate the navigational requirements of the project and provide adequate water circulation. (b) The shoreward extent of dredging shall be a sufficient distance from the edge of adjacent marshes to avoid slumping. In general, for improvement dredging projects the edge of the dredging footprint, including any side cuts, should be at least 25 feet from any marsh boundary. In areas where significant wake or wash will be generated by vessel traffic, increased setbacks may be incorporated based on appropriate design calculations. (c) In general, no basin, canal, or channel shall be dredged deeper than the main channel to which it is connected. (d) To the maximum reasonable extent, basins shall have wide openings and short entrance channels to promote tidal exchange within the basin. (e) In general, hydraulic dredging shall be favored over mechanical methods, except when open water disposal of fine grained material is proposed.

3/10/17 310 CMR - 316.8 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.40: continued

(4) Operational Requirements for Dredged Material Disposal . (a) Where determined to be reasonable by the Department, clean dredged material shall be disposed of in a manner that serves the purpose of beach nourishment, in accordance with the following provisions: 1. in the case of a publicly-funded dredging project, such material shall be placed on publicly-owned eroding beaches; if no appropriate site can be located, private eroding beaches may be nourished if easements for public access below the existing high water mark can be secured by the applicant from the owner of the beach to be nourished; 2. in the case of a privately-funded dredging project, such material may be placed on any eroding beach. (b) In the event ocean disposal of dredged material is determined to be appropriate by the Department, the licensee or permittee shall: 1. publish in the Notice to Mariners the date, time, and proposed route of all ocean disposal activities and the coordinates of the ocean disposal site, as deemed appropriate by the U.S. Coast Guard; 2. ensure that transport vessels are not loaded beyond capacity; are equipped with sudden, high volume release mechanisms; and are at a complete stop when the material is released; and 3. ensure that disposal occurs within the boundaries of an approved or otherwise formally designated ocean disposal site; and that the discharge location is marked during disposal operations by a buoy equipped with a flashing light and radar reflectors which allow it to be located under variable sea/weather conditions.

(5) Supervision of Dredging and Disposal Activity. (a) The licensee or permittee shall inform the Department in writing at least three days before commencing any authorized dredging or dredged material disposal. (b) The licensee or permittee shall provide, at his or her expense, a dredging inspector approved by the Department who shall accompany the dredged material while in transit and during discharges, either upon the scows containing the dredged material or upon the boat towing them, for the following activities: 1. any offshore disposal; 2. any onshore disposal of dredged material greater than 10,000 cubic yards; or 3. the disposal of materials defined by the Department as potentially degrading or hazardous. (c) The name, address, and qualifications of the dredging inspector shall be submitted to the Department as part of the license or permit application for approval. (d) Within 30 days after the completion of the dredging, a report shall be submitted to the Department certified by the dredging inspector, including daily logs of the dredging operation indicating volume of dredged material, point of origin, point of destination, and other appropriate information.

9.51: Conservation of Capacity for Water-dependent Use

A nonwater-dependent use project that includes fill or structures on any tidelands shall not unreasonably diminish the capacity of such lands to accommodate water-dependent use. In applying this standard, the Department shall take into account any relevant information concerning the utility or adaptability of the site for present or future water-dependent purposes, especially in the vicinity of a water-dependent use zone; and shall adhere to the greatest reasonable extent to applicable guidance specified in a municipal harbor plan, as provided in 310 CMR 9.34(2)(b)2. At a minimum, the Department shall act in accordance with the following provisions.

(1) If the project includes nonwater-dependent facilities of private tenancy, such facilities must be developed in a manner that prevents significant conflict in operation between their users and those of any water-dependent facility which reasonably can be expected to locate on or near the project site. Characteristics of the respective facilities that may give rise to such user conflict include, but are not limited to: (a) presence of noise and odors; (b) type of equipment and accessory services; (c) hours of operation and spatial patterns of activity; (d) traffic flows and parking needs;

3/10/17 310 CMR - 316.9 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.51: continued

(e) size and composition of user groups; (f) privacy and security requirements; (g) requirements for public infrastructure.

(2) If the project includes new structures or spaces for nonwater-dependent use, such structures or spaces must be developed in a manner that protects the utility and adaptability of the site for water-dependent purposes by preventing significant incompatibility in design with structures and spaces which reasonably can be expected to serve such purposes, either on or adjacent to the project site. Aspects of built form that may give rise to design incompatibility include, but are not limited to: (a) the total surface coverage by buildings and other permanent structures, insofar as it may affect the amount of open space where flexibility to serve water-dependent purposes will be retained; (b) the layout and configuration of buildings and other permanent structures, insofar as they may affect existing and potential public views of the water, marine-related features along the waterfront, and other objects of scenic, historic or cultural importance to the waterfront, especially along sight lines emanating in any direction from public ways and other areas of concentrated public activity; (c) the scale of buildings and other permanent structures, insofar as it may affect wind, shadow, and other conditions of the ground level environment that may affect users of water-dependent facilities; and (d) the landscape design of exterior open spaces, insofar as it may affect the attainment of effective pedestrian and vehicular circulation within and to areas of water-dependent activity.

(3) The Department shall find that the standard is not met if the project does not comply with the following minimum conditions which, in the absence of a municipal harbor plan which promotes the policy objectives stated herein with comparable or greater effectiveness, are necessary to prevent undue detriments to the capacity of tidelands to accommodate water-dependent use: (a) new pile-supported structures for nonwater-dependent use shall not extend beyond the footprint of existing, previously authorized pile-supported structures or pile fields, except where no further seaward projection occurs and the area of open water lost due to such extension is replaced, on at least a 1:1 square foot basis, through the removal of existing, previously authorized fill or pile-supported structures or pile fields elsewhere on the project site; as provided in 310 CMR 9.34(2)(b)1., the Department shall waive the on-site replacement requirement if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative replacement requirements which ensure that no net loss of open water will occur for nonwater-dependent purposes, in order to maintain or improve the overall capacity of the state's waterways to accommodate public use in the exercise of water-related rights, as appropriate for the harbor in question; (b) Facilities of Public Accommodation, but not nonwater-dependent Facilities of Private Tenancy, shall be located on any pile-supported structures on flowed tidelands and at the ground level of any filled tidelands within 100 feet of a project shoreline. The Department may allow any portion of the equivalent area of a Facility of Public Accommodation to be relocated within the building footprint, or in other buildings owned, controlled or proposed for development by the applicant within the Development Site if the Department determines the alternative location would more effectively promote public use and enjoyment of the project site. As provided in 310 CMR 9.34(2)(b)1., the Department shall waive the above use limitations if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative limitations and other requirements which ensure that no significant privatization of waterfront areas immediately adjacent to the water-dependent use zone will occur for nonwater-dependent purposes, in order that such areas will be generally free of uses that conflict with, preempt, or otherwise discourage water-dependent activity or public use and enjoyment of the water-dependent use zone, as appropriate for the harbor in question; (c) new or expanded buildings for nonwater-dependent use, and parking facilities at or above grade for any use, shall not be located within a water-dependent use zone; except as provided below, the width of said zone shall be determined as follows:

3/10/17 310 CMR - 316.10 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.51: continued

1. along portions of a project shoreline other than the edges of piers and wharves, the zone extends for the lesser of 100 feet or 25% of the weighted average distance from the present high water mark to the landward lot line of the property, but no less than 25 feet; and 2. along the ends of piers and wharves, the zone extends for the lesser of 100 feet or 25% of the distance from the edges in question to the base of the pier or wharf, but no less than 25 feet; and 3. along all sides of piers and wharves, the zone extends for the lesser of 50 feet or 15% of the distance from the edges in question to the edges immediately opposite, but no less than ten feet. As provided in 310 CMR 9.34(2)(b)1., the Department shall waive the above numerical standards if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative setback distances and other requirements which ensure that new buildings for nonwater-dependent use are not constructed immediately adjacent to a project shoreline, in order that sufficient space along the water's edge will be devoted exclusively to water-dependent activity and public access associated therewith, as appropriate for the harbor in question; (d) at least one square foot of the project site at ground level, exclusive of areas lying seaward of a project shoreline, shall be reserved as open space for every square foot of tideland area within the combined footprint of buildings containing nonwater-dependent use on the project site; in the event this requirement cannot be met by a project involving only the renovation or reuse of existing buildings, ground level open space shall be provided to the maximum reasonable extent; as provided in 310 CMR 9.34(2)(b)1., the Department shall waive the above numerical standard if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative site coverage ratios and other requirements which ensure that, in general, buildings for nonwater-dependent use will be relatively condensed in footprint, in order that an amount of open space commensurate with that occupied by such buildings will be available to accommodate water-dependent activity and public access associated therewith, as appropriate for the harbor in question; (e) new or expanded buildings for nonwater-dependent use shall not exceed 55 feet in height if located over the water or within 100 feet landward of the high water mark; at greater landward distances, the height of such buildings shall not exceed 55 feet plus ½ foot for every additional foot of separation from the high water mark; as provided in 310 CMR 9.34(2)(b)1., the Department shall waive such height limits if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative height limits and other requirements which ensure that, in general, such buildings for nonwater-dependent use will be relatively modest in size, in order that wind, shadow, and other conditions of the ground level environment will be conducive to water-dependent activity and public access associated therewith, as appropriate for the harbor in question;

(4) the requirements of 310 CMR 9.51(1) through (3), shall also apply in the event a nonwater-dependent use project is located on a Great Pond;

(5) the requirements of 310 CMR 9.51(3), shall not apply to projects on filled tidelands in Designated Port Areas involving temporary uses, supporting DPA uses that are industrial, and marine industrial parks.

9.52: Utilization of Shoreline for Water-dependent Purposes

A nonwater-dependent use project that includes fill or structures on any tidelands shall devote a reasonable portion of such lands to water-dependent use, including public access in the exercise of public rights in such lands. In applying this standard, the Department shall take into account any relevant information concerning the capacity of the project site to serve such water-dependent purposes, especially in the vicinity of a water-dependent use zone; and shall give particular consideration to applicable guidance specified in a municipal harbor plan, as provided in 310 CMR 9.34(2)(b)2. Except as necessary to protect public health, safety, or the environment, the Department shall act in accordance with the following provisions.

3/10/17 310 CMR - 316.11 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.52: continued

(1) In the event the project site includes a water-dependent use zone, the project shall include at least the following: (a) one or more facilities that generate water-dependent activity of a kind and to a degree that is appropriate for the project site, given the nature of the project, conditions of the water body on which it is located, and other relevant circumstances; in making this determination, the Department shall give particular consideration to: 1. facilities that promote active use of the project shoreline, such as boat landing docks and launching ramps, marinas, fishing piers, waterfront boardwalks and esplanades for public recreation, and water-based public facilities as listed in 310 CMR 9.53(2)(a); and 2. facilities for which a demonstrated need exists in the harbor in question and for which other suitable locations are not reasonably available; and (b) a pedestrian access network of a kind and to a degree that is appropriate for the project site and the facility(ies) provided in 310 CMR 9.52(1)(a); at a minimum, such network shall consist of: 1. walkways and related facilities along the entire length of the water-dependent use zone; wherever feasible, such walkways shall be adjacent to the project shoreline and, except as otherwise provided in a municipal harbor plan, shall be no less than ten feet in width; and 2. appropriate connecting walkways that allow pedestrians to approach the shoreline walkways from public ways or other public access facilities to which any tidelands on the project site are adjacent. Such pedestrian access network shall be available to the public for use in connection with fishing, fowling, navigation, and any other purposes consistent with the extent of public rights at the project site.

(2) In the event the project site does not include a water-dependent use zone, the project shall provide connecting public walkways or other public pedestrian facilities as necessary to ensure that sites containing water-dependent use zones will not be isolated from, or poorly linked with, public ways or other public access facilities to which any tidelands on the project site are adjacent.

(3) The requirements of 310 CMR 9.52(1) and (2), shall also apply in the event a nonwater- dependent use project is located on a Great Pond.

9.53: Activation of Commonwealth Tidelands for Public Use

A nonwater-dependent use project that includes fill or structures on Commonwealth tidelands, except in Designated Port Areas, must promote public use and enjoyment of such lands to a degree that is fully commensurate with the proprietary rights of the Commonwealth therein, and which ensures that private advantages of use are not primary but merely incidental to the achievement of public purposes. In applying this standard, the Department shall take into account any factor affecting the quantity and quality of benefits provided to the public, in comparison with detriments to public rights associated with facilities of private tenancy, especially those which are nonwater-dependent; and shall give particular consideration to applicable guidance specified in a municipal harbor plan, as provided in 310 CMR 9.34(2)(b)2. At a minimum, the Department shall act in accordance with 310 CMR 9.53(1)through (4).

(1) The project shall not include fill or structures for nonwater-dependent use of Commonwealth tidelands which the Department determines are necessary to accommodate a public agency which intends to pursue a water-dependent use project on such lands, provided written notice of such agency's intention is submitted to the Department prior to the close of the public comment period on the license application. Such determination shall be based upon a clear showing, within a period of time deemed reasonable by the Department, that the agency's project has met the criteria of 310 CMR 9.36(5)(a)2. through 4.

(2) The project shall attract and maintain substantial public activity on the site on a year-round basis, through the provision of water-related public benefits of a kind and to a degree that is appropriate for the site, given the nature of the project, conditions of the waterbody on which it is located, and other relevant circumstances. In making this determination, the Department shall act in accordance with 310 CMR 9.53(2)(a) through (e):

3/10/17 310 CMR - 316.12 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.53: continued

(a) in the event the project site includes a water-dependent use zone, at least one facility utilizing the shoreline in accordance with the provisions of 310 CMR 9.52(1)(a) must also promote water-based public activity; such facilities include but are not limited to ferries, cruise ships, water shuttles, public landings and swimming/fishing areas, excursion/ charter/rental docks, and community sailing centers; (b) the project shall include exterior open spaces for active or passive public recreation, examples of which are parks, plazas, and observation areas; such open spaces shall be located at or near the water to the maximum reasonable extent, unless otherwise deemed appropriate by the Department, and shall include related pedestrian amenities such as lighting and seating facilities, restrooms and trash receptacles, children's play areas, and safety ladders along shoreline walkways, as appropriate; such facilities shall be sized in accordance with 310 CMR 9.53(2)(b)1. through 2.: 1. the amount of such space shall be at least equal to the square footage of all Commonwealth tidelands on the project site landward of a project shoreline and not within the footprint of buildings, less any space deemed necessary by the Department to accommodate other water-dependent uses; the Department may also allow a portion of such open space to be devoted to public ways and/or surface parking open to the public, including users of the facility of public accommodation, provided that below grade or structured parking is not a reasonable alternative and that the open space devoted to public vehicular use does not exceed that devoted to public pedestrian use; 2. as provided in 310 CMR 9.34(2)(b)1., the Department shall waive the requirements of 310 CMR 9.53(2)(b)1., if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative requirements for public outdoor recreation facilities that will establish the project site as a year-round locus of public activity in a comparable and highly effective manner; (c) the project shall devote interior space to facilities of public accommodation, other than public parking, with special consideration given to facilities that enhance the destination value of the waterfront by serving significant community needs, attracting a broad range of people, or providing innovative amenities for public use; such public interior space shall be located at the ground level of all buildings containing nonwater-dependent facilities of private tenancy, unless the Department determines that an alternative location would more effectively promote public use and enjoyment of the project site or is appropriate to make ground level space available for water-dependent use or upper floor accessory services; the extent of such interior space shall be determined in accordance with 310 CMR 9.53(2)(c)1. through 2.: 1. such space shall be at least equal in amount to the square footage of all Commonwealth tidelands on the project site within the footprint of buildings containing nonwater-dependent facilities of private tenancy; 2. as provided in 310 CMR 9.34(2)(b)1., the Department shall waive the requirements of 310 CMR 9.34(2)(c)1., if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative requirements for interior facilities of public accommodation that will establish the project site as a year-round locus of public activity in a comparable and highly effective manner; (d) the project shall include a management plan for all on-site facilities offering water-related benefits to the public, to ensure that the quantity and quality of such benefits will be effectively sustained; management elements which may be covered by the plan include, but are not limited to, signage, maintenance, hours and rules of operation, organizational arrangements and responsibilities, pricing, financing, and procedures for resolving use conflicts; if deemed appropriate, the Department may require the applicant to offer to the public, in the form of an easement, an enforceable right of access to or use of a proposed water-dependent facility of public accommodation; (e) in the event that water-related public benefits which can reasonably be provided on-site are not appropriate or sufficient, the Department may consider measures funded or otherwise taken by the applicant to provide such benefits elsewhere in the harbor or otherwise in the vicinity of the project site.

(3) The project shall promote other development policies of the Commonwealth, through the provision of nonwater-related benefits in accordance with applicable governmental plans and programs and in a manner that does not detract from the provision of water-related public benefits. In making this determination, the Department shall act in accordance with 310 CMR 9.53(3)(a) through (d):

3/10/17 310 CMR - 316.13 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.53: continued

(a) the Department shall take into account any guidance forthcoming from a state, federal, regional, or municipal agency as to the extent to which the project will contribute to or detract from the implementation of any specific policy, plan or program relating to, among other things: education; employment; energy; environmental protection; historic or archeological preservation; housing; industry; land use; natural resources; public health and safety; public recreation; and transportation. (b) the Department shall act in accordance with the written recommendation of the Secretary of any state Executive Office in whose area of agency or program jurisdiction the proposed project falls, provided that said recommendation is made pursuant to an MOU or other written agreement with the Department as to the manner and extent to which the nonwater-related policies, plans, and programs of said Executive Office will be promoted in relation to water-related public interests. (c) the Department shall give primary consideration to the implementation of policies, plans, or programs that: 1. have been officially adopted by statute, regulation, or other formal instrument of legislative or administrative action; and 2. complement measures taken by the project to serve water-related public purposes; examples of such complementary policies include the improvement of public transportation systems in order to foster ease of public movement to and from waterfront facilities, and the inclusion of affordable housing in residential development in order to make waterfront tenancy and access available to a broader segment of the public than would be the case under prevailing market conditions; (d) the Department shall consider only those nonwater-related benefits accruing to the public in a manner that is reasonably direct, rather than remote, diffuse, or theoretical. Examples of direct public benefits include meeting a community need for mixed-income residential development, creating a large number of permanent jobs on-site, and reutilizing idle waterfront properties. Corresponding examples of indirect public benefits include increasing the general supply of market-rate housing, improving overall economic conditions, and expanding the property tax base of a municipality.

(4) In the event a nonwater-dependent use project is located on Great Ponds, the Department shall apply the provisions of 310 CMR 9.53(1) through (3), to the portion of the project site lying below the natural low water mark.

9.54: Consistency with Coastal Zone Management Policies

Nonwater-dependent use projects located in the coastal zone shall be consistent with all policies of the Massachusetts Coastal Zone Management Program, pursuant to 301 CMR 20.05(3). In applying this standard for projects identified for CZM participation in license or permit proceedings pursuant to 310 CMR 9.13(2)(a), the Department shall consider any written statement submitted by the Coastal Zone Management Office pursuant to 310 CMR 9.13(2), and shall act in accordance with the following provisions.

(1) If the Department concurs with the conclusions and recommendations of CZM, said written statement shall be adopted as part of the written determination on license application.

(2) If the Department disagrees with any conclusions or recommendations of CZM and the disagreement cannot be resolved through routine consultation, the assistance and direction of the Secretary shall be sought in accordance with the provisions of M.G.L. c. 21A, § 4, governing mediation of administrative and jurisdictional conflicts within EOEEA. If the disagreement is not eliminated through such mediation, the Department shall include in the written determination an explanation of the specific basis for its final decision on consistency with CZM policies. If the project site is within an area covered by a municipal harbor plan, the Department shall presume this standard is met, in accordance with the provisions of 310 CMR 9.34(2)(b)3.

3/10/17 310 CMR - 316.14 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.55: Standards for Nonwater-dependent Infrastructure Facilities

(1) The requirements of 310 CMR 9.51 through 9.53, shall not apply to nonwater-dependent use projects consisting of infrastructure facilities on tidelands or Great Ponds. Such projects shall include mitigation and/or compensation measures as deemed appropriate by the Department to ensure that all feasible measures are taken to avoid or minimize detriments to the water-related interests of the public. Such interests include, but are not limited to: (a) the protection of maritime commerce, industry, recreation and associated public access; (b) the protection, restoration, and enhancement of living marine resources; (c) the attainment of water quality goals; (d) the reduction of flood and erosion-related hazards on lands subject to the 100-year storm event or to sea level rise, especially those in damage-prone or natural buffer areas; (e) the protection and enhancement of public views and visual quality in the natural and built environment of the shoreline; (f) the preservation of historic sites and districts, archaeological sites, and other significant cultural resources near waterways.

(2) All nonwater-dependent use projects consisting of infrastructure facilities on tidelands or Great Ponds shall take reasonable measures to provide open spaces for active or passive recreation at or near the water's edge, wherever appropriate. Such measures may be provided by any means consistent with the need to avoid undue interference with the infrastructure facilities in question, and to protect public health, safety, or the environment.

9.56: Standards for Facilities of Limited Accommodation

Facilities of Limited Accommodation may be authorized on filled Commonwealth Tidelands or filled Private Tidelands under certain circumstances where a project site cannot support Facilities of Public Accommodation for a period of time. Projects including Facilities of Limited Accommodation as a substitution for Facilities of Public Accommodation described in 310 CMR 9.53(2)(c) and referenced in 310 CMR 9.51(3)(b) must meet any otherwise applicable requirements of 310 CMR 9.00. The substitution of Facilities of Limited Accommodation for Facilities of Public Accommodation fulfills the requirements for licensing under 310 CMR 9.31(2)(b)1. provided otherwise applicable requirements are met. The calculation of the required amount of Facilities of Public Accommodation or the amount of the payment to allow the substitution shall be based on Facilities of Limited Accommodation located on the ground floor of buildings on filled Commonwealth Tidelands or Private Tidelands within 100 feet of the project shoreline. The substitution of Facilities of Limited Accommodation for Facilities of Public Accommodation may not be inconsistent with an approved Municipal Harbor Plan under 310 CMR 9.34(2).

(1) An application for a building less than or equal to 75' in height, may substitute Facilities of Limited Accommodation in up to 50% of the interior space required to be devoted to Facilities of Public Accommodation. The remainder of the required ground floor interior space, with the exception of Upper Floor Accessory Services, shall be devoted to Facilities of Public Accommodation. The requirement that no less than 25% of the otherwise required ground floor interior space be devoted to Facilities of Public Accommodation may not be waived by the Department, regardless of foot traffic, density, level of economic development, or the absence of potential revenues generated by the Facility of Public Accommodation. The Applicant shall provide notice of the project to the Local Economic Development Authority and any response it has received from the authority. If the Local Economic Development Authority responds in writing that the project area has a sufficient level of development to support a Facility of Public Accommodation, the Department shall not authorize the substitution of a Facility of Limited Accommodation. If the authority concurs in writing that the project area lacks sufficient development to support a Facility of Public Accommodation or does not respond to the notice and the Department does not request additional information within 60 days of receipt of a license application, the Local Economic Development Authority will be deemed to concur with the request and the substitution of a Facility of Limited Accommodation shall be authorized. The first floor design shall be capable of accommodating a Facility of Public Accommodation. 20% of the net operating income per year generated from the Facilities of Limited Accommodation shall be paid annually by the project to fund specific construction or activities, approved by the Department, to activate the waterfront in geographic proximity to the project site. The activation

3/10/17 310 CMR - 316.15 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.56: continued

provided by the specific construction or activities shall extend to evening and/or weekend hours wherever feasible to compensate for any lack of activation that may result in the substitution of Facilities of Limited Accommodation for Facilities of Public Accommodation. The funding of specific construction or activities shall be in addition to applicable requirements at 310 CMR 9.52(1) and 9.53(2). The specific construction or activities to be funded shall be identified by the Applicant and approved by the Department prior to licensing. A condition of the license shall include, on or before the 15 th anniversary of the first certificate of occupancy, a requirement for the Department to review the uses of the Facilities of Limited Accommodation to determine whether the project site could support Facilities of Public Accommodation, typically based upon foot traffic and density, based on information provided by the Licensee. The Licensee shall file any relevant information at least six months prior to the fifteenth anniversary. If the Department determines that Facilities of Public Accommodation can be supported and the project is unable to obtain a contrary opinion as referenced in 310 CMR 9.56(2)(d), the Department shall provide the Licensee with a schedule for submittals for transition to such uses. If the Department determines that Facilities of Public Accommodation cannot be supported or the Licensee obtains such an opinion as referenced in 310 CMR 9.56(2)(d), the Department shall specify a time period for a subsequent review. The Licensee shall certify annually to the Department the amount of space devoted to Facilities of Limited Accommodation, the use of the space, the net operating income from the Facilities of Limited Accommodation, and a demonstration of payment for the substitution of Facilities of Limited Accommodation for Facilities of Public Accommodation as specified in 310 CMR 9.56(2)(f). The Licensee shall provide an electronic copy of the certifications and notice of any information submitted six months prior to the 15 th anniversary review, upon request to any person who filed comments during the public comment period on the written determination for the project.

(2) An application for a building greater than 75' in height that can demonstrate that its project site is unable to fully support Facilities of Public Accommodation, based on foot traffic and density, may apply for a short-term condition in a license to authorize up to 50% of the interior space required to be devoted to Facilities of Limited Accommodation in accordance with 310 CMR 10.51 and 10.53 for some portion of the ground floor interior space otherwise required to be devoted to Facilities of Public Accommodation, provided that no less than twenty-five percent of such required interior space shall be devoted to Facilities of Public Accommodation. The requirement that no less than 25% of the ground floor interior space otherwise required be devoted to Facilities of Public Accommodation may not be waived by the Department, regardless of foot traffic, density, level of economic development, or the absence of potential revenues generated by the Facility of Public Accommodation. The short-term condition in the license may not exceed ten years. At the expiration of the term, the ground floor shall be devoted to Facilities of Public Accommodation unless the licensee applies for an extension for no more than ten years and proves that the provisions of 310 CMR 9.56(2)(a) through (d) are met. Applications for extensions prior to expiration of the term may be allowed only where necessary to maintain occupancy. For an Applicant seeking a short-term condition in the license to authorize Facilities of Limited Accommodation in the interior space otherwise required to be devoted to Facilities of Public Accommodation, 20% of net operating income per year generated from the Facilities of Limited Accommodation shall be paid by the licensee annually to fund specific construction or activities, approved by the Department, to activate the waterfront. The activation provided by the specific construction or activities shall extend to evening and/or weekend hours wherever feasible to compensate for any lack of activation that may result in the substitution of Facilities of Limited Accommodation for Facilities of Public Accommodation. The specific construction or activities to be funded shall be identified by the Applicant and approved by the Department prior to licensing. The funding of specific construction or activities shall be in addition to applicable requirements at 310 CMR 9.52(1) and 9.53(2). A project seeking a short term condition in a license shall: (a) not be inconsistent with any substitutions, offsets or conditions of approval established in an approved Municipal Harbor Plan as provided in 310 CMR 9.34(2); (b) demonstrate that marketing efforts for at least one year have failed to identify any prospective Facility of Public Accommodation, even with the offer of up to 50% below market rents to civic or cultural not-for-profit organizations and a diligent good faith attempt to locate tenants which shall include advertisements in at least two commercial real estate marketing publications and listing with a commercial real estate brokerage;

3/10/17 310 CMR - 316.16 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

9.56: continued

(c) comply with the conditions in the license requiring Facilities of Public Accommodation unless or until another use is authorized; this requirement may not be waived by the Department, regardless of foot traffic, density, level of economic development, or the absence of potential revenues generated by the Facility of Public Accommodation; (d) obtain the written concurrence of the Local Economic Development Authority that the project area lacks the level of development to support a Facility of Public Accommodation at the time of licensing or amendment. If the Local Economic Develoment Authority does not respond to the notice and the Department does not request additional information within sixty days of receipt of a license application, the Local Economic Development Authority will be deemed to concur with the request; (e) ensure that the first floor design will be capable of accommodating a Facility of Public Accommodation at the end of the term; and (f) certify annually the space devoted to Facilities of Limited Accommodation, the use of the space, the net operating income from those facilities, and demonstration of payment.

(3) A licensee may request an amendment of an existing license to authorize Facilities of Limited Accommodation, provided the request meets the requirements for an amendment at 310 CMR 9.24, the requirements identified in 310 CMR 9.56(2)(a) through (d), and other applicable requirements of 310 CMR 9.56(1) or (2). A short term license condition for Facilities of Limited Accommodation amending an existing license may be for a limited term of ten years or 15 years, depending on the height of the building.

REGULATORY AUTHORITY

310 CMR 9.00: M.G.L. c. 21A, §§ 2, 4, 8, and 14; c. 91, §§ 1 through 63; c. 91A, § 18.

3/10/17 310 CMR - 316.17 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION

NON-TEXT PAGE

3/10/17 310 CMR - 316.18 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 482

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 321 CMR 10.90 and 10.91

CHAPTER TITLE: Massachusetts Endangered Species Act Regulations

AGENCY: Division of Fisheries & Wildlife

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 21 CMR 10.90 provides the list of species of animals and plants protected by the Massachusetts Endangered Species Act (M.G.L. c. 131A). 321 CMR 10.91 is an Index to the State Listed Species that aids individuals in locating species on the list in 10.90.

REGULATORY AUTHORITY: M.G.L. 131A: Section 4

AGENCY CONTACT: James Burnham` PHONE: 617 626 1586

ADDRESS: 251 Causeway St Suite 400, Boston MA

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

Date of public hearing or comment period: 10/7/14

For the first five years: no fiscal effect

No fiscal effect: no fiscal effect

Date amended small business impact statement was filed: 2/23/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Massachusetts Endangered Species Act List of Endangered, Threatened, and Special Concern Species in Massachusetts

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Dec 24 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 125 - 134.10 125 - 134.10

02/24/2017 kr

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species ANIMALS Taxonomic Group Status Common Name Scientific Name MA US Notes

VERTEBRATES:

Fish American Brook Lamprey Lampetra appendix T Shortnose Sturgeon Acipenser brevirostrum EE Atlantic Sturgeon Acipenser oxyrinchus E Lake Chub Couesius plumbeus E Eastern Silvery Minnow Hybognathus regius SC Bridle Shiner Notropis bifrenatus SC Northern Redbelly Dace Phoxinus eos E Longnose Sucker Catostomus catostomus SC Burbot Lota lota SC Threespine Stickleback Gasterosteus aculeatus T1

Amphibians Jefferson Salamander Ambystoma jeffersonianum SC 2 Blue-spotted Salamander Ambystoma laterale SC 3 Marbled Salamander Ambystoma opacum T Eastern Spadefoot Scaphiopus holbrookii T

Reptiles Loggerhead Seaturtle Caretta caretta TT Green Seaturtle Chelonia mydas TT Hawksbill Seaturtle Eretmochelys imbricata EE Kemps’s Ridley Seaturtle Lepidochelys kempii EE Leatherback Seaturtle Dermochelys coriacea EE Wood Turtle Glyptemys insculpta SC Bog Turtle Glyptemys muhlenbergii ET Blanding's Turtle Emydoidea blandingii T Diamond-backed Terrapin Malaclemys terrapin T Northern Red-bellied Cooter Pseudemys rubriventris EE4 Eastern Box Turtle Terrapene carolina SC Eastern Wormsnake Carphophis amoenus T Eastern Ratsnake Patherophis alleghaniensis E Copperhead Agkistrodon contortrix E Timber Rattlesnake Crotalus horridus E

S))))))))))))))))))))))))Q 1 Trimorphic freshwater population only.

2 Including triploid and other polyploid forms within the Ambystoma jeffersonianum/Ambystoma laterale complex.

3 Ditto.

4 This species is listed by the U.S. Fish & Wildlife Service as P.r. bangsi (Plymouth Redbelly Turtle) in 50 CFR 17.11.

E = Endangered, T = Threatened, SC = Special Concern

2/17/12 321 CMR - 125 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species ANIMALS Taxonomic Group Status Common Name Scientific Name MA US Notes

VERTEBRATES: continued

Birds Common Loon Gavia immer SC Pied-billed Grebe Podilymbus podiceps E Leach's Storm-petrel Oceanodroma leucorhoa E American Bittern Botaurus lentiginosus E Least Bittern Ixobrychus exilis E Bald Eagle Haliaeetus leucocephalus T Northern Harrier Circus cyaneus T Peregrine Falcon Falco peregrinus T King Rail Rallus elegans T Common Moorhen Gallinula chloropus SC Piping Plover Charadrius melodus TT Upland Sandpiper Bartramia longicauda E Roseate Tern Sterna dougallii EE Common Tern Sterna hirundo SC Arctic Tern Sterna paradisaea SC Least Tern Sternula antillarum SC Barn Owl Tyto alba SC Long-eared Owl Asio otus SC Short-eared Owl Asio flammeus E Sedge Wren Cistothorus platensis E Golden-winged Warbler Vermivora chrysoptera E Northern Parula Parula americana T Blackpoll Warbler Dendroica striata SC Mourning Warbler Oporornis philadelphia SC Vesper Sparrow Pooecetes gramineus T Grasshopper Sparrow Ammodramus savannarum T Whip-poor-will Caprimulgus vociferus SC

Mammals Water Shrew Sorex palustris SC Rock Shrew Sorex dispar SC Indiana Bat Myotis sodalis EE Small-footed Myotis Myotis leibii E Little Brown Myotis Myotis lucifugus E Tricolored Bat Perimyotis subflavus E Northern Long-eared Bat Myotis septentrionalis E Southern Bog Lemming Synaptomys cooperi SC Sperm Whale Physeter macrocephalus EE Fin Whale Balaenoptera physalus EE Sei Whale Balaenoptera borealis EE Blue Whale Balaenoptera musculus EE Humpback Whale Megaptera novaeangliae EE Northern Right Whale Eubalaena glacialis EE

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 126 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species ANIMALS Taxonomic Group Status Common Name Scientific Name MA US Notes

INVERTEBRATES

Sponges Smooth Branched Sponge Spongilla aspinosa SC

Flatworms Sunderland Spring Planarian Polycelis remota SC

Segmented Worms New England Medicinal Leech Macrobdella sestertia SC

Snails New England Siltsnail Floridobia winkleyi SC Coastal Marsh Snail Littoridinops tenuipes SC Slender Walker Pomatiopsis lapidaria E Boreal Marstonia Marstonia lustrica E Boreal Turret Snail Valvata sincera E

Mussels Dwarf Wedgemussel Alasmidonta heterodon EE Swollen Wedgemussel Alasmidonta varicosa E Yellow Lampmussel Lampsilis cariosa E Tidewater Mucket Leptodea ochracea SC Eastern Pondmussel Ligumia nasuta SC Creeper Strophitus undulatus SC

Crustaceans Intricate Fairy Shrimp Eubranchipus intricatus SC Agassiz's Clam Shrimp Eulimnadia agassizii E Northem Spring Amphipod Gammarus pseudolimnaeus SC American Clam Shrimp Limnadia lenticularis SC Taconic Cave Amphipod Stygobromus borealis E Piedmont Groundwater Amphipod Stygobromus tenuis tenuis SC Coastal Swamp Amphipod Synurella chamberlaini SC

Dragonflies Subarctic Darner Aeshna subarctica E Ocellated Darner Boyeria grafiana SC Spine-crowned Clubtail Gomphus abbreviatus SC Harpoon Clubtail Gomphus descriptus E

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 127 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species ANIMALS Taxonomic Group Status Common Name Scientific Name MA US Notes

INVERTEBRATES: continued

Dragonflies: continued Midland Clubtail Gomphus fraternus E Rapids Clubtail Gomphus quadricolor E Cobra Clubtail Gomphus vastus SC Skillet Clubtail Gomphus ventricosus T Umber Shadowdragon Neurocordulia obsoleta SC Stygian Shadowdragon Neurocordulia yamaskanensis SC Brook Snaketail Ophiogomphus aspersus SC Riffle Snaketail Ophiogomphus carolus T Ski-tipped Emerald Somatochlora elongata SC Forcipate Emerald Somatochlora forcipata E Coppery Emerald Somatochlora georgiana E Incurvate Emerald Somatochlora incurvata E Kennedy's Emerald Somatochlora kennedyi E Mocha Emerald Somatochlora linearis SC Riverine Clubtail Stylurus amnicola E Ebony Boghaunter Williamsonia fletcheri E Ringed Boghaunter Williamsonia lintneri T

Damselflies Tule Bluet Enallagma carunculatum SC Attenuated Bluet Enallagma daeckii T Scarlet Bluet Enallagma pictum T Pine Barrens Bluet Enallagma recurvatum T

Beetles Twelve-spotted Tiger Beetle Cicindela duodecimguttata SC Hentz's Redbelly Tiger Beetle Cicindela rufiventris hentzii T Northeastern Beach Tiger Beetle Cicindela dorsalis dorsalis ET Bank Tiger Beetle Cicindela limbalis T Cobblestone Tiger Beetle Cicindela marginipennis E Barrens Tiger Beetle Cicindela patruela E Puritan Tiger Beetle Cicindela puritana ET Purple Tiger Beetle Cicindela purpurea SC American Burying Beetle Nicrophorus americanus EE

Butterflies and Moths Coastal Heathland Cutworm Abagrotis nefascia SC Barrens Daggermoth Acronicta albarufa T Drunk Apamea Moth Apamea inebriata SC New Jersey Tea Inchworm Apodrepanulatrix liberaria E Hessel's Hairstreak Callophrys hesseli SC Frosted Elfin Callophrys irus SC Bog Elfin Callophrys lanoraieensis T

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 128 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species ANIMALS Taxonomic Group Status Common Name Scientific Name MA US Notes

INVERTEBRATES: continued

Butterflies and Moths: continued

Gerhard's Underwing Catocala herodias gerhardi SC Precious Underwing Moth Catocala pretiosa pretiosa E Waxed Sallow Moth Chaetaglaea cerata SC Melsheimer's Sack Bearer Cicinnus melsheimeri T Chain Dot Geometer Cingilia catenaria SC Unexpected Cycnia Cycnia inopinatus T Imperial Moth Eacles imperialis T Early Hairstreak Erora laeta T Persius Duskywing Erynnis persius persius E Sandplain Euchlaena Euchlaena madusaria SC Dion Skipper Euphyes dion T The Pink Streak Dargida rubripennis T Phyllira Tiger Moth Grammia phyllira E Slender Clearwing Sphinx Moth Hemaris gracilis SC Barrens Buckmoth Hemileuca maia SC Buchholz's Gray Hypomecis buchholzaria E Pine Barrens Speranza (Speranza exonerata) SC Pale Green Pinion Moth Lithophane viridipallens SC Twilight Moth Lycia rachelae E Pine Barrens Lycia Lycia ypsilon T Barrens Metarranthis Metarranthis apiciaria E Coastal Swamp Metarranthis Metarranthis pilosaria SC Northern Brocade Moth Neoligia semicana SC Dune Noctuid Moth Sympistis riparia SC Pitcher Plant Borer Papaipema appassionata T Ostrich Fern Borer Papaipema sp. 2 SC 1 Chain Fern Borer Papaipema stenocelis T Water-willow Stem Borer Papaipema sulphurata T Mustard White Pieris oleracea T Pink Sallow Moth Psectraglaea carnosa SC Southern Ptichodis Ptichodis bistrigata T Orange Sallow Moth Pyrrhia aurantiago SC Spartina Borer Photedes inops SC Faded Gray Geometer Stenoporpia polygrammaria T Pine Barrens Zale Zale lunifera SC 2 Sandplain Heterocampa Heterocampa varia T Pine Barrens Zanclognatha Zanclognatha martha SC

S))))))))))))))))))))))))Q

1 Undescribed species near P. pterisii

2 True Z. lunifera, sensu Schmidt (2010). Taxonomic Reassessment of Zale lunifera (Hubner) (Erebidae , Erebinae ). Zookeys 39:99-106

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 129 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Adiantaceae (Cliff Ferns) Fragile Rock-brake Cryptogramma stelleri E

Alismataceae (Arrowheads) Estuary Arrowhead Sagittaria montevidensis ssp. spongiosa E Wapato Sagittaria cuneata T Terete Arrowhead Sagittaria teres SC

Apiaceae (Parsleys, Angelicas) Hemlock Parsley Conioselinum chinense SC Saltpond Pennywort Hydrocotyle verticillata T Canadian Sanicle Sanicula canadensis T Long-styled Sanicle Sanicula odorata T

Aquifoliaceae (Hollies) Mountain Winterberry Ilex montana E

Araceae (Arums) Green Dragon Arisaema dracontium T Golden Club Orontium aquaticum E

Araliaceae (Ginsengs) Ginseng Panax quinquefolius SC

Asclepiadaceae (Milkweeds) Purple Milkweed Asclepias purpurascens E Linear-leaved Milkweed Asclepias verticillata T

Aspleniaceae (Spleenworts) Mountain Spleenwort Asplenium montanum E Wall-rue Spleenwort Asplenium ruta-muraria T

Asteraceae (Asters, Composites) Lesser Snakeroot Ageratina aromatica E Eaton's Beggar-ticks Bidens eatonii E Estuary Beggar-ticks Bidens hyperborea E Cornel-leaved Aster Doellingeria infirma E New England Boneset Eupatorium novae-angliae E Purple Cudweed Gamochaeta purpurea E New England Blazing Star Liatris scariosa var. novae-angliae SC

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 130 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Asteraceae (Asters, Composites): continued Lion's Foot Nabalus serpentarius E Sweet Coltsfoot Petasites frigidus var. palmatus E Sclerolepis Sclerolepis uniflora E Large-leaved Goldenrod Solidago macrophylla SC Upland White Aster Oligoneuron album E Rand's Goldenrod Solidago simplex ssp. randii var monticola E Eastern Silvery Aster Symphyotrichum concolor E Crooked-stem Aster Symphyotrichum prenanthoides SC Tradescant’s Aster Symphyotrichum tradescantii T

Betulaceae (Birches, Alders) Mountain Alder Alnus viridis ssp. crispa SC Swamp Birch Betula pumila E

Boraginaceae (Borages) Northern Wild Comfrey Cynoglossum virginianum var boreale E Oysterleaf Mertensia maritima E

Brassicaceae (Mustards) Lyre-leaved Rock-cress Arabidopsis lyrata E Smooth Rock-cress Boechera laevigata SC Green Rock-cress Boechera missouriensis T Purple Cress Cardamine douglassii E Long's Bitter-cress Cardamine longii E Fen Cuckoo Flower Cardamine dentata T

Cactaceae (Cacti) Prickly Pear Opuntia humifusa E

Campanulaceae (Bluebells, Lobelias) Great Blue Lobelia Lobelia siphilitica E

Caprifoliaceae (Honeysuckles) Hairy Honeysuckle Lonicera hirsuta E American Twinflower Linnaea borealis SC Snowberry Symphoricarpos albus var. albus E Broad Tinker's-weed Triosteum perfoliatum E Downy Arrowwood Viburnum rafinesquianum E

Caryophyllaceae (Pinks, Sandworts) Nodding Chickweed Cerastium nutans E Michaux's Sandwort Minuartia michauxii T Large-leaved Sandwort Moehringia macrophylla E Silverling Paronychia argyrocoma E

Celastraceae (Staff Tree Family) American Bittersweet Celastrus scandens T

Chenopodiaceae (Saltworts) Fogg’s Goosefoot Chenopodium foggii E American Sea-blite Suaeda calceoliformis SC S))))))))))))))))))))))))Q E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 131 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Cistaceae (Rockroses, Pinweeds) Beaded Pinweed Lechea pulchella var. moniliformis E

Clusiaceae (St. John's-worts) Creeping St. John's-wort Hypericum adpressum T Giant St. John's-wort Hypericum ascyron E St. Andrew's Cross Hypericum stragulum E

Convolvulaceae (Morning Glories) Low Bindweed Calystegia spithamaea E

Crassulaceae (Sedums) Pygmyweed Crassula aquatica T

Cupressaceae (Cedars, Junipers) Arborvitae Thuja occidentalis E

Cyperaceae (Sedges) Foxtail Sedge Carex alopecoidea T Back’s Sedge Carex backii E Bailey's Sedge Carex baileyi T Bush's Sedge Carex bushii E Chestnut-colored Sedge Carex castanea E Creeping Sedge Carex chordorrhiza E Davis' Sedge Carex davisii E Handsome Sedge Carex formosa T Glaucescent Sedge Carex glaucodea E Slender Woodland Sedge Carex gracilescens E Gray's Sedge Carex grayi T Hitchcock's Sedge Carex hitchcockiana SC Shore Sedge Carex lenticularis T Glaucous Sedge Carex livida E False Hop-sedge Carex lupuliformis E Midland Sedge Carex mesochorea E Michaux's Sedge Carex michauxiana E Mitchell’s Sedge Carex mitchelliana T Rich Woods Sedge Carex oligocarpa T Few-seeded Sedge Carex oligosperma E Few-flowered Sedge Carex pauciflora E Variable Sedge Carex polymorpha E Schweinitz's Sedge Carex schweinitzii E Dioecious Sedge Carex sterilis T Walter's Sedge Carex striata E Fen Sedge Carex tetanica SC Hairy-fruited Sedge Carex trichocarpa SC Tuckerman's Sedge Carex Tuckermanii E Cat-tail Sedge Carex typhina T Engelmann's Umbrella-sedge Cyperus engelmannii T Houghton's Flatsedge Cyperus houghtonii E S))))))))))))))))))))))))Q

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 132 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Cyperaceae (Sedges): continued Wright’s Spike-rush Eleocharis diandra E Intermediate Spike-sedge Eleocharis intermedia T Tiny-fruited Spike-sedge Eleocharis microcarpa var. filiculmis E Ovate Spike-sedge Eleocharis ovata E Few-flowered Spike-sedge Eleocharis quinqueflora E Three-angled Spike-sedge Eleocharis tricostata E Slender Cottongrass Eriophorum gracile T Dwarf Bulrush Lipocarpha micrantha T Capillary Beak-sedge Rhynchospora capillacea E Inundated Horned-sedge Rhynchospora inundata T Short-beaked Bald-sedge Rhynchospora nitens T Long-beaked Bald-sedge Rhynchospora scirpoides SC Torrey's Beak-sedge Rhynchospora torreyana E Northeastern Bulrush Scirpus ancistrochaetus EE Long's Bulrush Scirpus longii T Papillose Nut-sedge Scleria pauciflora E 1 Tall Nut-sedge Scleria triglomerata E

Dryopteridaceae (Wood Ferns) Braun’s Holly-fern Polystichum braunii E Smooth Woodsia Woodsia glabella E

Elatinaceae (Waterworts) American Waterwort Elatine americana E

Empetraceae (Crowberries)

Equisetaceae (Horsetails) Dwarf Scouring-rush Equisetum scirpoides SC

Ericaceae (Laurels, Blueberries) Pink Pyrola Pyrola asarifolia E One-flowered Pyrola Moneses uniflora SC Great Laurel Rhododendron maximum T Mountain Cranberry Vaccinium vitis-idaea ssp. minus E

Eriocaulaceae (Pipeworts) Parker's Pipewort Eriocaulon parkeri E

Fabaceae (Beans, Peas, Clovers) Large-bracted Tick-trefoil Desmodium cuspidatum T Wild Senna Senna hebecarpa E

Fagaceae (Oaks, Beeches) Bur Oak Quercus macrocarpa SC Yellow Oak Quercus muhlenbergii T

Fumariaceae (Fumitories) Climbing Fumitory Adlumia fungosa SC S))))))))))))))))))))))))Q 1 Includes the two varieties of this species that occur in Massachusetts: s. p. var. pauciflora and s. p. var. caroliniana E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 133 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Gentianaceae (Gentians) Andrew’s Bottle Gentian Gentiana andrewsii E Spurred Gentian Halenia deflexa E Slender Marsh Pink Sabatia campanulata E Plymouth Gentian Sabatia kennedyana SC Sea Pink Sabatia stellaris E

Grossulariaceae (Currants) Bristly Black Currant Ribes lacustre SC

Haemodoraceae (Redroots) Redroot Lachnanthes caroliana SC

Haloragaceae (Water-milfoils) Alternate-flowered Water- milfoil Myriophyllum alterniflorum E Farwell's Water- milfoil Myriophyllum farwellii E Pinnate Water-milfoil Myriophyllum pinnatum SC Comb Water-milfoil Myriophyllum verticillatum E

Hydrophyllaceae (Waterleaves) Broad Waterleaf Hydrophyllum canadense E

Hymenophyllaceae (Filmy-ferns) Appalachian Bristle-fern Trichomanes intricatum E

Iridaceae (Irises) Sandplain Blue-eyed Grass Sisyrinchium fuscatum SC Slender Blue-eyed Grass Sisyrinchium mucronatum E

Isoetaceae (Quillworts) Acadian Quillwort Isoetes acadiensis E Lake Quillwort Isoetes lacustris E

Juncaceae (Rushes) Weak Rush Juncus debilis E Thread Rush Juncus filiformis E Black-fruited Woodrush Luzula parviflora ssp. melanocarpa E

Lamiaceae (Mints) Purple Giant-hyssop Agastache scrophulariifolia E Downy Wood-mint Blephilia ciliata E Hairy Wood-mint Blephilia hirsuta E Gypsywort Lycopus rubellus E False Pennyroyal Trichostema brachiatum E

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 134 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Lentibulariaceae (Bladderworts) Resupinate Bladderwort Utricularia resupinata T Subulate Bladderwort Utricularia subulata SC

Liliaceae (Lilies) Devil's-bit Chamaelirium luteum E

Linaceae (Flaxes) Rigid Flax Linum medium var. texanum T

Lycopodiaceae (Clubmosses) Foxtail Clubmoss Lycopodiella alopecuroides E Appalachian Firmoss Huperzia appressa E Mountain Firmoss Huperzia selago E

Lythraceae (Loosestrifes) Toothcup Rotala ramosior E

Magnoliaceae (Magnolias) Sweetbay Magnolia Magnolia virginiana E

Melastomataceae (Meadow Beauties) Maryland Meadow Beauty Rhexia mariana E

Moraceae (Mulberries) Red Mulberry Morus rubra E

Nymphaeaceae (Water Lilies) Tiny Cow-lily Nuphar microphylla E

Onagraceae (Evening Primroses) Many-fruited False-loosestrife Ludwigia polycarpa E Round-fruited False-loosestrife Ludwigia sphaerocarpa E

Ophioglossaceae (Grape Ferns) Adder's-tongue Fern Ophioglossum pusillum T

Orchidaceae (Orchids) Putty-root Aplectrum hyemale E Arethusa Arethusa bulbosa T Autumn Coralroot Corallorhiza odontorhiza SC Ram's-head Lady's-slipper Cypripedium arietinum E

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 134.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Orchidaceae (Orchids): continued Yellow Lady's-slipper Cypripedium parviflorum E Showy Lady's-slipper Cypripedium reginae E Dwarf Rattlesnake-plantain Goodyera repens E Small Whorled Pogonia Isotria medeoloides ET Lily-leaf Twayblade Liparis liliifolia T Heartleaf Twayblade Listera cordata E Bayard's Green Adder's Mouth Malaxis bayardii E White Adder's Mouth Malaxis monophyllos var. brachypoda E Green Adder’s Mouth Malaxis unifolia T Southern Twayblade Neottia bifolia T Crested Fringed Orchis Platanthera cristata E Leafy White Orchis Platanthera dilatata T Pale Green Orchis Platanthera flava var. herbiola T Hooded Ladies'-tresses Spiranthes romanzoffiana E Grass-leaved Ladies'-tresses Spiranthes vernalis T Cranefly Orchid Tipularia discolor E Nodding Pogonia Triphora trianthophora E

Oxalidaceae (Wood-sorrels) Violet Wood-sorrel Oxalis violacea E

Poaceae (Grasses) Annual Peanutgrass Amphicarpum amphicarpon E Purple Needlegrass Aristida purpurascens T Seabeach Needlegrass Aristida tuberculosa T Reed Bentgrass Calamagrostis pickeringii E New England Northern Calamagrostis stricta ssp. inexpansa E Reed Grass Tufted Hairgrass Deschampsia cespitosa var. glauca E Commons's Panic-grass Dichanthelium ovale ssp. pseudopubescens SC Mattamuskeet Panic-grass Dichanthelium dichotomum ssp. mattamuskeetense E Rough Panic-grass Dichanthelium scabriusculum T Wright's Panic-grass Dichanthelium wrightianum SC Hairy Wild Rye Elymus villosus E Frank's Lovegrass Eragrostis frankii SC Saltpond Grass Leptochloa fusca ssp. fascicularis T Sea Lyme-grass Leymus mollis E Woodland Millet Milium effusum T Gattinger's Panic-grass Panicum philadelphicum ssp. gattingeri SC Long-leaved Panic-grass Panicum rigidulum ssp. pubescens T Philadelphia Panic-grass Panicum philadelphicum ssp. philadelphicum SC Drooping Speargrass Poa saltuensis ssp. languida E Bristly Foxtail Setaria parviflora SC Salt Reedgrass Spartina cynosuroides T Shining Wedgegrass Sphenopholis nitida T Swamp Oats Sphenopholis pensylvanica T Small Dropseed Sporobolus neglectus E Northern Gama-grass Tripsacum dactyloides E Spiked False-oats Trisetum spicatum E

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 134.2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Polygonaceae (Docks, Knotweeds) Strigose Knotweed Persicaria setacea T Sea-beach Knotweed Polygonum glaucum SC Pondshore Knotweed Persicaria puritanorum SC Seabeach Dock Rumex pallidus T Swamp Dock Rumex verticillatus T

Portulacaceae (Spring Beauties) Narrow-leaved Spring Beauty Claytonia virginica E

Potamogetonaceae (Pondweeds) Algae-like Pondweed Potamogeton confervoides T Fries’ Pondweed Potamogeton friesii E Hill's Pondweed Potamogeton hillii SC Ogden’s Pondweed Potamogeton ogdenii E Straight-leaved Pondweed Potamogeton strictifolius E Vasey’s Pondweed Potamogeton vaseyi E

Pyrolaceae (Shinleaf) Pink Pyrola Pyrola asarifolia ssp. asarifolia E

Ranunculaceae (Buttercups) Black Cohosh Actaea racemosa E Purple Clematis Clematis occidentalis SC Golden Seal Hydrastis canadensis E Tiny-flowered Buttercup Ranunculus micranthus E Bristly Buttercup Ranunculus pensylvanicus SC

Rosaceae (Roses, Shadbushes) Small-flowered Agrimony Agrimonia parviflora E Hairy Agrimony Agrimonia pubescens T Bartram's Shadbush Amelanchier bartramiana T Roundleaf Shadbush Amelanchier sanguinea SC Bicknell's Hawthorn Crataegus bicknellii E Sandbar Cherry Prunus pumila var. depressa T Northern Prickly Rose Rosa acicularis ssp. sayi E Northern Mountain-ash Sorbus decora E Barren Strawberry Geum fragarioides SC

Rubiaceae (Bedstraws, Bluets) Northern Bedstraw Galium boreale E Labrador Bedstraw Galium labradoricum T Long-leaved Bluet Houstonia longifolia E

Salicaceae (Willows) Swamp Cottonwood Populus heterophylla E Sandbar Willow Salix exigua ssp. interior T

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 134.3 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.90: continued

Massachusetts List of Endangered, Threatened, and Special Concern Species PLANTS Taxonomic Family Status Common Name Scientific Name MA US Notes

Scheuchzeriaceae (Pod-grasses) Pod-grass Scheuchzeria palustris E Schizaeaceae (Climbing Ferns) Climbing Fern Lygodium palmatum SC

Scrophulariaceae (Figworts) Sandplain Gerardia Agalinis acuta EE Winged Monkey-flower Mimulus alatus E Muskflower Mimulus moschatus T Swamp Lousewort Pedicularis lanceolata E Hairy Beardtongue Penstemon hirsutus E Sessile Water-speedwell Veronica catenata E Culver's-root Veronicastrum virginicum T

Sparganiaceae (Bur-reeds) Small Bur-reed Sparganium natans E

Verbenaceae (Vervains) Narrow-leaved Vervain Verbena simplex E

Violaceae (Violets) Sand Violet Viola adunca SC Britton's Violet Viola brittoniana T

Viscaceae (Christmas-mistletoes) Dwarf Mistletoe Arceuthobium pusillum SC

E = Endangered, T = Threatened, SC = Special Concern

3/10/17 321 CMR - 134.4 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.91: Index to State Listed Species

The following index is intended to help users of the state list of Endangered, Threatened, and Special Concern species determine the official status of any species listed under MESA. This is particularly important for users of the list who are not familiar with the scientific names of species. Starting with only a common or scientific name, the index tells the user where to find the species on the list. The index accomplishes this by specifying the name of the animal group or plant family under which the species will be found. For example, to find the status of Acipenser brevirostrum, one would look up "Acipenser" in the index and find that it is a fish. Where fish occur in the list is specified by the outline appearing just before the list at 321 CMR 10.90(3). The outline shows that fish is the first category of vertebrate animals. By looking for "Acipenser brevirostrum" in that section of the list one would determine that it is the "Shortnose Sturgeon" and is listed as an Endangered species on both the state and federal lists.

Note that all plants are found under plant families which end with "-aceae" and that animals are listed under commonly known categories, such as birds, mammals, or butterflies.

Index to State Listed Species

Abagrotis, Butterflies and Moths Bald-sedge, Cyperaceae Accipiter, Birds Barn-owl, Birds Acer, Aceraceae Bartramia, Birds Acipenser, Fish Beak-sedge, Cyperaceae Acronicta, Butterflies and Moths Beardtongue, Scropholariaceae Actaea, Ranunculaceae Bedstraw, Rubiaceae Adder's Mouth, Orchidaceae Beetle, Beetles Adlumia, Fumariaceae Beggar-ticks, Asteraceae Aeshna, Dragonflies Betula, Betulaceae Agalinis, Scrophulariaceae Bidens, Asteraceae Agastache, Lamianeae Bindweed, Convolvulaceae Ageratina, Asteraceae Birch, Betulaceae Agkistrodon, Reptiles Bitter-cress, Brassicaceae Agrimonia, Rosaceae Bittern, Birds Agrimony, Rosaceae Bladderwort, Lentibulariaceae Alasmidonta, Mussels Blazing Star, Asteraceae Alder, Betulaceae Blephilia, Lamiaceae Alnus, Betulaceae Blue-eyed Grass, Iridaceae Ambystoma, Amphibians Bluet, Rubiaceae Amelanchier, Rosaceaes Bluet, Damselflies Ammodramus, Birds Boechera, Brassicaceae Amphicarpum, Poaceae Boghaunter, Dragonflies Amphipod, Crustaceans Bolboschoenus, Cyperaceae Anax, Dragonflies Boneset, Asteraceae Annelids, Segmented Worms Borer, Butterflies and Moths Apamea, Butterflies and Moths Botaurus, Birds Aplectrum, Orchidaceae Boyeria, Dragonflies Apodrepanulatrix, Butterflies and Moths Bristle-fern, Hymenophyllaceae Arabidopsis, Brassicaceae Bryozoans, Moss Animals Arborvitae, Cupressaceae Buckmoth, Butterflies and Moths Arceuthobium, Viscaceae Bulrush, Cyperaceae Arethusa, Orchidaceae Bur-reed, Sparganiaceae Arisaema, Araceae Burbot, Fish Aristida, Poaceae Buttercup, Ranunculaceae Arrowhead, Alismataceae Calamagrostis, Poaceae Arrowwood, Caprifoliaceae Callophrys, Butterflies and Moths Asclepias, Asclepiadaceae Calystegia, Convolvulaceae Asio, Birds Caprifoliaceae, Twinflower Asplenium, Aspleniaceae Cardamine, Brassicaceae Aster, Asteraceae Caretta, Reptiles Bagisara, Butterflies and Moths Carex, Cyperaceae Balaenoptera, Mammals Carphophis, Reptiles

3/10/17 321 CMR - 134.5 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.91: continued

Index to State Listed Species

Catocala, Butterflies and Moths Digrammia, Butterflies and Moths Catostomus, Fish Dock, Polygonaceae Cerastium, Caryophyllaceae Doellingeria, Asteraceae Chaetaglaea, Butterflies and Moths Dragon, Araceae Chamaelirium, Liliaceae Dragonfly, Dragonflies Charadrius, Birds Dropseed, Poaceae Chelonia, Reptiles Eacles, Butterflies and Moths Chenopodium, Chenopodiaceae Eagles, Birds Cherry, Rosaceae Elatine, Elatinaceae Chub, Fish Eleocharis, Cyperaceae Cicindela, Beetles Elymus, Poaceae Cicinnus, Butterflies and Moths Emerald, Dragonflies Cingilia, Butterflies and Moths Emydoidea, Reptiles Circus, Birds Enallagma, Damselflies Cistothorus, Birds Equisetum, Equisetaceae Clam Shrimp, Crustaceans Eragrostis, Poaceae Claytonia, Portulacaceae Eretmochelys, Reptiles Clematis, Ranunculaceae Eriocaulon, Eriocaulaceae Club, Araceae Eriophorum, Cyperaceae Clubmoss, Lycopodiaceae Erora, Butterflies and Moths Clubtail, Dragonflies Erynnis, Butterflies and Moths Cohosh, Ranunculaceae Eubalaena, Mammals Coleoptera, Beetles Eubranchipus, Crustaceans Coltsfoot, Asteraceae Euchlaena, Butterflies and Moths Conioselinum, Apiaceae Eulimnadia, Crustaceans Cooter, Reptiles Eupatorium, Asteraceae Copperhead, Reptiles Euphyes, Butterflies and Moths Corallorhiza, Orchidaceae Fairy Shrimp, Crustaceans Coralroot, Orchidaceae Falco, Birds Corema, Empetraceae Falcon, Birds Cottongrass, Cyperaceae False-loosestrife, Onagraceae Couesius, Fish False-oats, Poaceae Cow-lily, Nymphaeaceae Faronta, Butterflies and Moths Cranberry, Ericaceae Fern, Dryopteridaceae, Ophioglossaceae, Creeper, Mussel Schizaeceae Cress, Brassicaceae Ferrissia, Snails Crocanthemum, Cistaceae Firmoss, Lycopodiaceae Crotalus, Reptiles Flax, Linaceae Crowberry, Empetraceae Floater, Mussel Cryptogramma, Adiantaceae Floridobia, Snails Cuckoo Flower, Brassicaceae Foxtail, Poaceae Cudweed, Asteraceae Fumitory, Fumariaceae Culver's-root, Scrophulariaceae Galium, Rubiaceae Currant, Grossulariaceae Gallinula, Birds Cutworm, Butterflies and Moths Gama-grass, Poaceae Cycnia, Butterflies and Moths Gammarus, Crustaceans Cynoglossum, Boraginaceae Gamochaeta, Asteraceae Cyperus, Cyperaceae Gasterosteus, Fish Cypripedium, Orchidaceae Gavia, Birds Dace, Fish Gentian, Gentianaceae Daggermoth, Butterflies and Moths Gentiana, Gentianaceae Damelfly, Damelflies Geometer, Butterflies and Moths Darner, Dragonflies Gerardia, Scrophulariaceae Dendroica, Birds Giant-hyssop, Scrophulariaceae Dermochelys, Reptiles Ginseng, Araliaceae Deschampsia, Poaceae Glyptemys, Reptiles Desmodium, Fabaceae Golden Club, Araceae Devil's-bit, Liliaceae Golden Seal, Ranunculaceae Dichanthelium, Poaceae Goldenrod, Asteraceae

3/10/17 321 CMR - 134.6 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.91: continued

Index to State Listed Species

Gomphus, Dragonflies Linnaea, Caprifoliaceae Goodyera, Orchidaceae Linum, Linaceae Goosefoot, Chenopodiaceae Lion's Foot, Asteraceae Grammia, Butterflies and Moths Liparis, Orchidaceae Grass, Poaceae Lipocarpha, Cyperaceae Gray, Butterflies and Moths Listera, Orchidaceae Grebe, Birds Lithophane, Butterflies and Moths Green Dragon, Araceae Littoridinops, Snails Gypsywort, Lamiaceae Lobelia, Campanulaceae Hairgrass, Poaceae Loggerhead, Reptiles Hairstreak, Butterflies and Moths Lonicera, Caprifoliaceae Halenia, Gentianaceae Loon, Birds Haliaeetus, Birds Lota, Fish Harrier, Birds Lousewort, Scrophulariaceae Hawk, Birds Lovegrass, Poaceae Hawkmoth, Butterflies and Moths Ludwigia, Onagraceae Hawksbill, Reptiles Luzula, Juncaceae Hemaris, Butterflies and Moths Lycia, Butterflies and Moths Hemileuca, Butterflies and Moths Lycopdiella, Lycopodiaceae Holly-fern, Dryopteridaceae Lycopus, Lamiaceae Honeysuckle, Caprifoliaceae Lygodium, Schizaeaceae Horned-sedge, Cyperaceae Lyme-grass, Poaceae Houstonia, Rubiaceae Macrobdella, Segmented Worms Huperzia, Lycopodiaceae Magnolia, Magnoliaceae Hybognathus, Fish Malaclemys, Reptiles Hydrastis, Ranunculaceae Malaxis, Orchidaceae Hydrocotyle, Apiaceae Maple, Aceraceae Hydrophyllum, Hydrophyllaceae Marstonia, Snails Hypericum, Clusiaceae Meadow Beauty, Melastomataceae Hypomecis, Butterflies and Moths Megaptera, Mammals Ilex, Aquifoliaceae Mertensia, Boraginaceae Inchworm, Butterflies and Moths Metarranthis, Butterflies and Moths Isoetes, Isoetaceae Milium, Poaceae Isotria, Orchidaceae Milkweed, Asclepiadaceae Itame, Butterflies and Moths Millet, Poaceae Ixobrychus, Birds Mimulus, Scrophulariaceae Juncus, Juncaceae Minnow, Fish Knotweed, Polygonaceae Minuartia, Caryophyllaceae Lachnanthes, Haemodoraceae Mistletoe, Viscaceae Ladies'-tresses, Orchidaceae Moehringia, Caryophyllaceae Lady's-slipper, Orchidaceae Molluscs, Mussels Lampetra, Fish Moneses, Ericaceae Lamprey, Fish Monkey-flower, Scrophulariaceae Lampsilis, Mussels Moorhen, Birds Laurel, Ericaceae Morus, Moraceae Leatherback, Reptiles Moth, Butterflies and Moths Lechea, Cistaceae Mountain-ash, Rosaceae Leech, Segmented Worms Mucket, Mussels Lemming, Mammals Mulberry, Moraceae Lepidochelys, Reptiles Muskflower, Scrophulariaceae Lepidoptera, Butterflies and Moths Mussel, Mussels Leptochloa, Poaceae Myotis, Mammals Leptodea, Mussels Myriophyllum, Haloragaceae Leymus, Poaceae Nabalus, Asteraceae Liatris, Asteraceae Needlegrass, Poaceae Ligumia, Mussels Neoligia, Butterflies and Moths Limnadia, Crustaceans Neottia, Orchidaceae Limpet, Snails Neurocordulia, Dragonflies Nicrophorus, Beetles

3/10/17 321 CMR - 134.7 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.91: continued

Index to State Listed Species

Notropis, Fish Ptichodis, Butterflies and Moths Nuphar, Nymphaeaceae Putty-root, Orchidaceae Nut-sedge, Cyperaceae Pygmyweed, Crassulaceae Oak, Fagaceae Pyrola, Ericaceae Oats, Poaceae Quercus, Fagaceae Oceanodroma, Birds Quillwort, Isoetaceae Odonata, Dragonflies or Damselflies Rail, Birds Oncocnemis, Butterflies and Moths Rallus, Birds Ophioglossum, Ophioglossaceae Ranunculus, Ranunculaceae Ophiogomphus, Dragonflies Rattlesnake, Reptiles Oporornis, Birds Rattlesnake-plantain, Orchidaceae Opuntia, Cactaceae Redroot, Haemodoraceae Orchid, Orchidaceae Reedgrass, Poaceae Orchis, Orchidaceae Rhexia, Melastomataceae Orontium, Araceae Rhionaeschna, Dragonflies Owl, Birds Rhododendron, Ericaceae Oxalis, Oxalidaceae Rhodoecia, Butterflies and Moths Oysterleaf, Boraginaceae Rhynchospora, Cyperaceae Panax, Araliaceae Ribes, Grossulariaceae Panic-grass, Poaceae Ridley, Reptiles Panicum, Poaceae Rock-brake, Adiantaceae Papaipema, Butterflies and Moths Rock-cress, Brassicaceae Paronychia, Caryophyllaceae Rockrose, Cistaceae Parsley, Apiaceae Rosa, Rosaceae Parula, Birds Rose, Rosaceae Patherophis, Reptiles Rotala, Lythraceae Peanutgrass, Poaceae Rumex, Polygonaceae Pedicularis, Scrophulariaceae Rush, Juncaceae Pennyroyal, Lamiaceae Rye, Poaceae Pennywort, Apiaceae Sabatia, Gentianaceae Penstemon, Scrophulariaceae Sack Bearer, Butterflies and Moths Persicaria, Polygonaceae Sagittaria, Alismataceae Petasites, Asteraceae Salamander, Amphibians Phoxinus, Fish Salix, Salicaceae Physeter, Mammals Sallow, Butterflies and Moths Pieris, Butterflies and Moths Sandpiper, Birds Pink, Gentianaceae Sandwort, Caryophyllaceae Pinweed, Cistaceae Sanicle, Apiaceae Pipewort, Eriocaulaceae Sanicula, Apiaceae Planarian, Flatworms Satyrium, Butterflies and Moths Platanthera, Orchidaceae Scaphiopus, Amphibians Plover, Birds Scheuchzeria, Scheuchzeriaceae Poa, Poaceae Scirpus, Cyperaceae Pod-grass, Scheuchzeriaceae Scleria, Cyperaceae Podilymbus, Birds Sclerolepis, Asteraceae Podostemum, Podostemaceae Scouring-rush, Equisetaceae Pogonia, Orchidaceae Sea-blite, Chenopodiaceae Polycelis, Flatworms Sedge, Cyperaceae Polygonum, Polygonaceae Senna, Fabaceae Polystichum, Dryopteridaceae Setaria, Poaceae Pomatiopsis, Snails Shadbush, Rosaceae Pondweed, Potamogetonaceae Shadowdragon, Dragonflies Pooecetes, birds Shrew, Mammals Populus, Salicaceae Shiner, Fish Potamogeton, Potamogetonaceae Siltsnail, Snails Prickly Pear, Cactaceae Silverling, Caryophyllaceae Prunus, Rosaceae Sisyrinchium, Iridaceae Psectraglaea, Butterflies and Moths Skipper, Butterflies and Moths Pseudemys, Reptiles Snail, Snails

3/10/17 321 CMR - 134.8 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

10.91: continued

Index to State Listed Species

Snake, Reptiles Tillaea, Crassulaceae Snakeroot, Asteraceae Tinker's-weed, Caprifoliaceae Snaketail, Dragonflies Tipularia, Orchidaceae Snowberry, Caprifoliaceae Toothcup, Lythraceae Solidago, Asteraceae Trichomanes, Hymenophyllaceae Somatochlora, Dragonflies Trichostema, Lamiaceae Sorbus, Rosaceae Triosteum, Caprifoliaceae Sorex, Mammals Triphora, Orchidaceae Spadefoot, Amphibians Tripsacum, Poaceae Sparganium, Sparganiaceae Trisetum, Poaceae Sparrow, Birds Turtle, Reptiles Spartina, Poaceae Twayblade, Orchidaceae Spartiniphaga, Butterflies and Moths Tyto, Birds Speargrass, Poaceae Umbrella-sedge, Cyperaceae Sphenopholis, Poaceae Utricularia, Lentibulariaceae Spike-sedge, Cyperaceae Vaccinium, Ericaceae Spiranthes, Orchidaceae Valvalta, Snails Spleenwort, Aspleniaceae Verbena, Verbenaceae Sponge, Sponges Vermivora, Birds Spongilla, Sponges Veronica, Scrophulariaceae Sporobolus, Poaceae Veronicastrum, Scrophulariaceae Spring Beauty, Portulacaceae Vervain, Verbenaceae St. John's-wort, Clusiaceae Viburnum, Caprifoliaceae St. Andrew's Cross, Clusiaceae Viola, Violaceae Stenoporpia, Butterflies and Moths Violet, Violaceae Sterna, Birds Waldsteinia, Rosaceae Sternula, Birds Walker, Snails Stickleback, Fish Wapato, Alismataceae Storm-petrel, Birds Warbler, Birds Strawberry, Rosaceae Water-milfoil, Haloragaceae Streak, Butterflies and Moths Water-speedwell, Scrophulariaceae Strophitus, Mussel Water-starwort, Callitrichaceae Sturgeon, Fish Waterleaf, Hydrophyllaceae Stygobromus, Crustaceans Waterwort, Elatinaceae Stylurus, Dragonflies Wedgegrass, Poaceae Suaeda, Chenopodiaceae Whale, Mammals Sucker, Fish White, Butterflies and Moths Symphoricarpos, Caprifoliaceae Williamsonia, Dragonflies Symphyotrichum, Asteraceae Willow, Salicaceae Synaptomys, Mammals Winterberry, Aquifoliaceae Synurella, Crustaceans Wood-mint, Lamiaceae Tern, Birds Wood-sorrel, Oxalidaceae Terrapene, Reptiles Woodrush, Juncaceae Terrapin, Reptiles Woodsia, Dryopteridaceae Threadfoot, Podostemaceae Wren, Birds Thuja, Cupressaceae Yarrow, Asteraceae Tick-trefoil, Fabaceae Zale, Butterflies and Moths Tigermoth, Butterflies and Moths Zanclognatha, Butterflies and Moths

3/10/17 321 CMR - 134.9 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 321 CMR: DIVISION OF FISHERIES AND WILDLIFE

(10.99: Designated Significant Habitats: Reserved)

REGULATORY AUTHORITY

321 CMR 10.00: M.G.L. c. 131A.

3/10/17 321 CMR - 134.10 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 555

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 801 CMR 3.00

CHAPTER TITLE: Privacy and Confidentiality

AGENCY: Executive Office for Administration and Finance

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. This regulation sets forth guidance regarding compliance with the Fair Information and Practices Act, M.G.L. c. 66A.

REGULATORY AUTHORITY: M.G.L. c. 66A, s. 3

AGENCY CONTACT: Tori T. Kim PHONE: 857-400-5455

ADDRESS: State House, Room 373, Boston, MA 02133

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Notice to Department of Housing and Community Development, sent 12/27/16 Notice to Massachusetts Municipal Association, sent 12/27/16

Date of public hearing or comment period: Feb. 3, 2017 (hearing)

For the first five years:

No fiscal effect: XXX

Date amended small business impact statement was filed: 2/16/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 23 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 1 & 2 1 & 2 31 & 32 31 - 34

02/23/2017 kr

Table of Contents Page

801 CMR 1.00: STANDARD ADJUDICATORY RULES OF PRACTICE AND PROCEDURE 5

Section 1.01: Formal Rules 5 Section 1.02: Informal/Fair Hearing Rules 15 Section 1.03: Miscellaneous Provisions Applicable to All Adjudicatory Proceedings 20 Section 1.04: Conduct of Mediation at the Division of Administrative Law Appeals 21

(801 CMR 2.00: RESERVED) 27

801 CMR 3.00: PRIVACY AND CONFIDENTIALITY 31

Section 3.01: General Provisions 31 Section 3.02: Administration of Personal Data 31 Section 3.03: Access to Personal Data 32 Section 3.04: Objections and Administrative Appeals 33 Section 3.05: Access by the Office of the Attorney General 33 Section 3.06: Severability 34

801 CMR 4.00: RATES 41

Section 4.02: Fees for Licenses, Permits, and Services to be Charged by State Agencies 41 Section 4.03: Rents and Meals to Be Paid by State Employees 75 Section 4.04: Rental Charge for Space Used in State Buildings 77 Section 4.05: Fee Schedule-Laboratory Testing and Calibration Services 77 Section 4.07: Hazardous Waste Transporters Fee 78 Section 4.08: Returned Check Charge 79

(801 CMR 5.00 THROUGH 20.00: RESERVED) 91

801 CMR 21.00: PROCUREMENT OF COMMODITIES OR SERVICES, INCLUDING HUMAN AND SOCIAL SERVICES 151

Section 21.01: Purpose, Application, and Authority 151 Section 21.02: Definitions 152 Section 21.03: Requests for Information or Interest (RFI) 154 Section 21.04: Statewide Contracts 154 Section 21.05: Competitive Procurement Exceptions 154 Section 21.06: Competitive Procurement Standards 155 Section 21.07: Contract Negotiation, Execution and Effective Start Date 158 Section 21.08: Contract Funding and Compensation 158.2 Section 21.09: Quality Assurance 158.2

3/10/17 801 CMR - 1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 801 CMR: EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE

Table of Contents

Page

801 CMR 21.00: PROCUREMENT OF COMMODITIES OR SERVICES (continued)

Section 21.10: Integration 158.2 Section 21.11: Severability 158.2

(801 CMR 22.00 THROUGH 29.00: RESERVED) 159

801 CMR 30.00: ALLOCATION OF STATE CEILING ON VOLUME OF PRIVATE ACTIVITY BONDS 197

Section 30.01: Purpose 197 Section 30.02: Definitions 197 Section 30.03: Assignment to the Commonwealth of Massachusetts 197 Section 30.04: Allocation Procedures 198 Section 30.05: Additional Requirements for Issuers of Solid Waste Disposal Facility Bonds 198 Section 30.06: Response to Requests for Allocation 199 Section 30.07: Duration of Allocations 199 Section 30.08: Carryforward of Unused Annual State Ceiling 199 Section 30.09: Recordkeeping 199

(801 CMR 31.00 THROUGH 49.00: RESERVED) 201

11/4/16 801 CMR - 2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 801 CMR: EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE

801 CMR 3.00: PRIVACY AND CONFIDENTIALITY

Section

3.01: General Provisions 3.02: Administration of Personal Data 3.03: Access to Personal Data 3.04: Objections and Administrative Appeals 3.05: Access by the Office of the Attorney General 3.06: Severability

3.01: General Provisions

(1) Scope and Purpose . Except where otherwise provided by law or judicial order, 801 CMR 3.00 shall apply to the collection, maintenance, and dissemination of personal data. Consistent with M.G.L. c. 66A, § 1, 801 CMR 3.00 shall not apply to: (a) Criminal offender record information as defined in M.G.L. c. 6, § 167; (b) Intelligence or evaluative information as defined in M.G.L. c. 6, § 167; or (c) Any information contained in a public record as defined in M.G.L. c. 4, § 7.

(2) Applicability . 801 CMR 3.00 is jointly promulgated by and, except where otherwise provided by law or judicial order, shall apply to the Executive Office for Administration and Finance, the Executive Office of Education, the Executive Office of Energy and Environmental Affairs, the Executive Office of Health and Human Services, the Massachusetts Department of Transportation, the Executive Office of Public Safety and Security, the Executive Office of Housing and Economic Development, the Executive Office of Labor and Workforce Development (each of which is referred to as “Executive Office” in 801 CMR 3.00, and any agencies, departments, boards, commissions, authorities and instrumentalities within each said Executive Office. 801 CMR 3.00 shall not preclude any Executive Office from promulgating its own regulations pursuant to M.G.L. c. 66A, § 3, subject to the approval of the Secretary of Administration and Finance. Any agency, as defined in M.G.L. c. 66A, § 1, not within an Executive Office shall be subject to 801 CMR 3.00, unless the agency adopts its own regulations consistent with the provisions in 801 CMR 3.00. Any agency within an Executive Office is authorized to disseminate personal data to such Executive Office, in accordance with M.G.L. c. 6A, § 5, or to the Office of the Governor in accordance with M.G.L. c. 66A, and each Executive Office and the Office of the Governor may request and access personal data held by any of their subordinate agencies, provided that such dissemination or access is consistent with the purposes of M.G.L. c. 66A and not otherwise prohibited by law. Executive Offices and agencies within such Executive Offices are authorized to provide access to personal data to the Massachusetts Information Technology Division (MassIT), without relinquishing control over such personal data, in connection with MassIT's provision of services under M.G.L. c. 7D, as such access is consistent with the purposes of M.G.L. c. 66A.

(3) Definitions . Refer to all definitions appearing in M.G.L. c. 66A, § 1.

3.02: Administration of Personal Data

(1) General Rules . (a) Each holder shall designate an information officer who shall serve as the responsible person for each personal data system maintained by the holder. The holder shall ensure that the requirements for preventing unauthorized access to or dissemination of personal data, as set out in M.G.L. c. 66A, are followed. A single employee may serve as the responsible person for more than one personal data system. (b) Each holder shall inform each of its employees having any responsibility or function involving the design, development, operation, or maintenance of a personal data system, or the use of any personal data contained therein, of the provisions of 801 CMR 3.00 and any other regulations promulgated under M.G.L. c. 66A, the safeguards of M.G.L. c. 66A pertaining to the operation of the personal data system, and the civil remedies available to individuals whose rights under M.G.L. c. 66A are allegedly violated.

3/10/17 801 CMR - 31 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 801 CMR: EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE

3.02: continued

(c) Each holder shall not collect or maintain more personal data than is reasonably necessary for the performance of the holder's statutory functions. The holder shall permit only those employees whose duties reasonably require access to have access to personal data. (d) Each holder shall take reasonable precautions to protect personal data from dangers of fire, identity theft, theft, flood, natural disaster, or other physical threat. (e) Each holder shall maintain personal data with such accuracy, completeness, timeliness, pertinence and relevance as is necessary to assure fair determination of a data subject's qualifications, character, rights, opportunities, or benefits when such determinations are based upon such data. (f) Holders may enter into contracts to hold personal data but no such contract shall relieve the holder of its obligations under M.G.L. c. 66A or 801 CMR 3.00. Every such contract shall include such provisions as are necessary to ensure compliance with M.G.L. c. 66A and 801 CMR 3.00.

(2) Record of Access . In the case of data held in automated personal data systems, and to the extent feasible with data held in manual personal data systems, each holder shall maintain complete and accurate records showing any access to or use of personal data by persons or organizations outside of or other than the holder. These records shall include every disclosure of personal data, including the identity of all such persons and organizations to which such access or use has been granted. To the extent maintained pursuant to 801 CMR 3.02(2), a list of the uses made of personal data, including the identity of all persons and organizations which have gained access to the data, shall be provided to the data subject upon request. Access to or use by employees and agents of the holder need not be recorded.

(3) Notice and Report to Secretary of Commonwealth . Each holder shall, upon the establishment, termination, or substantial change in character of a personal data system, file a report with the Secretary of the Commonwealth regarding each such personal data system, as required by M.G.L. c. 30, § 63 and c. 66A, § 2(e).

3.03: Access to Personal Data

Subject to 801 CMR 3.01 and 3.03, the holder shall not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulation which are consistent with the purposes of M.G.L. c. 66A, or is approved by the data subject if the data subject is entitled to access under M.G.L. c. 66A, § 2(I). The holder may adopt rules identifying the specific types of personal data applicable to that holder and a manner of dissemination that is consistent with 801 CMR 3.00. Nothing in 801 CMR 3.00 shall be construed as authorizing the holder to release information, the disclosure of which is prohibited by any statute other than M.G.L. c. 66A. Consistent with the purposes of M.G.L. c. 66A and 801 CMR 3.00, the holder may disseminate personal data to persons other than the data subject as follows: (a) The holder may disseminate personal data in response to compulsory legal process, provided that the procedures required by M.G.L. c. 66A, § 2(k) are followed. The holder need not provide the notice required under M.G.L. c. 66A, § 2(k), if a court orders otherwise upon a finding that notice to the data subject would probably so prejudice the administration of justice that good cause exists to delay or dispense with such notice. (b) A holder may disseminate personal data to any federal, state, or local governmental entity for criminal or civil law enforcement purposes, provided that an authorized representative of the governmental entity has made a written request to the holder specifying the record desired and the law enforcement activity for which the record is sought, and the governmental entity agrees in writing to keep the personal data confidential to the extent permitted by law. (c) The holder may disseminate personal data to the United States Census Bureau to aid the Bureau in connection with an official census or survey, provided that the Bureau agrees to keep the personal data confidential to the extent permitted by law. (d) The holder may disseminate personal data as required by an order of a court of competent jurisdiction.

3/10/17 801 CMR - 32 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 801 CMR: EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE

3.03: continued

(e) The holder may disseminate medical or psychiatric data to a physician treating a data subject upon the request of said physician, or to other persons to the extent consistent with federal or other applicable law, if a medical or psychiatric emergency arises which precludes the data subject's giving approval for the release of such data, but the data subject shall be given notice of such access upon termination of the emergency. The holder may disseminate personal data to other persons if an emergency arises that precludes the data subject's giving approval for the release of such data and dissemination is necessary for reasons related to the health or safety of the data subject, or in circumstances posing an immediate threat to public safety, provided that the scope of disclosure is limited to the extent necessary to alleviate or address the emergency. The data subject shall be given notice of such dissemination upon termination of the emergency.

3.04: Objections and Administrative Appeals

(1) Objections . A data subject, his or her attorney, parent or legal guardian, or other representative authorized in writing by the data subject may object to the accuracy, completeness, pertinence, timeliness, relevance or dissemination of personal data pertaining to the data subject, or the denial of access to such data maintained in a personal data system. Such individual may file an objection with the information officer in charge of the personal data system or another designated person within the agency. If the information officer or agency designee is unavailable, the data subject or his or her representative may make the objection to the agency head.

(2) Responsibilities of Holder Pursuant to Objections . Upon receiving a data subject's objection, the information officer or agency designee shall investigate the validity of the objection within 30 days of receipt of the objection. (a) If the data subject or his or her representative requests that the personal data be corrected or amended, or requests any other change with respect to the personal data, and there is no disagreement concerning the change to be made, the information officer or agency designee shall cause such change to be made. (b) If the information officer or agency designee determines that the objection lacks merit, he or she shall provide the data subject an opportunity to provide a statement reflecting the data subject's position regarding the data and shall include the statement with the personal data and with any subsequent disclosure or dissemination of the data in question.

(3) Appeal of Holder's Decision . Any data subject or representative who objects to the decision of the information officer or agency designee may appeal the matter to the agency head or a designee. The appeal shall be filed in writing within 30 days of receipt of notification of the decision by the information officer or agency designee under 801 CMR 3.04(2). (a) If the agency head or designee agrees with the objection, he or she shall cause the requested correction, amendment, or other change to be made. (b) If the agency head or designee determines that objection lacks merit, he or she shall provide the data subject an opportunity to provide a statement reflecting the data subject's position regarding the personal data and cause such statement to be included with the personal data and with any subsequent disclosure or dissemination of the data in question.

3.05: Access by the Office of the Attorney General

Whenever a data subject files or threatens to file a claim against an agency, or against any employee or officer of the agency concerning a matter within the scope of his or her official duties or employment, any personal data held by that agency that concerns the data subject and is relevant to the determination of issues in dispute may be provided to the Office of the Attorney General upon written request.

3/10/17 801 CMR - 33 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 801 CMR: EXECUTIVE OFFICE FOR ADMINISTRATION AND FINANCE

3.06: Severability

If any provision of 801 CMR 3.00 or the application of any such provision to any person or circumstance is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of 801 CMR 3.00 and the application of the subject provision to other persons or circumstances shall not be affected or impaired thereby.

REGULATORY AUTHORITY

801 CMR 3.00: M.G.L c. 66A, § 3.

(PAGES 35 THROUGH 40 ARE RESERVED FOR FUTURE USE.)

3/10/17 801 CMR - 34 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 11

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 957 CMR 11.00

CHAPTER TITLE: Registered Provider Organizations Reporting Requirements

AGENCY: Center for Health Information and Analysis

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. 957 CMR 11.00 governs the reporting requirements for Registered Provider Organizations to submit data and information to the Center. The regulation is effective 3/10/17.

REGULATORY AUTHORITY: M.G.L. c. 12C

AGENCY CONTACT: Dianne McCarthy, General Counsel PHONE: 617-701-8171

ADDRESS: 501 Boylston Street, Suite 5100, Boston, MA 02116

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. John Robertson (11/3/16) Marilyn Contreas (11/3/16) MA Municipal Assoc. Dept. of Housing & Com. Dev. 1 Winthrop Sq., Boston MA 02110 100 Cambridge St., Boston MA 02114

Date of public hearing or comment period: 12/13/16

No fiscal effect:

Date amended small business impact statement was filed: February 7, 2017

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation: Registered Provider Organizations Reporting Requirements

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 15 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 2.1 & 2.2 2.1 & 2.2 ______77 - 82

02/15/2017 tr

Table of Contents Page

957 CMR 10.00 HEALTH CARE PAYERS PREMIUMS AND CLAIMS DATA REPORTING REQUIREMENTS 71

Section 10.01: General Provisions 71 Section 10.02: Definitions 71 Section 10.03: Reporting Requirements 73 Section 10.04: Data Submission Procedures 73 Section 10.05: Audits 74 Section 10.06: Other Provisions 74 Section 10.07: Compliance and Penalties 74 Section 10.08: Severability 75

957 CMR 11.00: REGISTERED PROVIDER ORGANIZATIONS REPORTING REQUIREMENTS 77

Section 11.01: General Provisions 77 Section 11.02: Definitions 77 Section 11.03: Reporting Requirements 80 Section 11.04: Submission Procedures 81 Section 11.05: Submission Review 81 Section 11.06: Compliance and Penalties 81 Section 11.07: Administrative Bulletins 81 Section 11.08: Nonpublic Information 82 Section 11.09: Severability 82

3/10/17 957 CMR - 2.1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

Table of Contents Page

957 CMR 6.00: COST REPORTING REQUIREMENTS - continued

Section 6.09: Intermediate Care Facilities 38 Section 6.10: Ambulance Services 38 Section 6.11: Community Health Centers 38 Section 6.12: AFC Providers 39 Section 6.13: Resident Care Facilities 39 Section 6.14: Temporary Nursing Services 41 Section 6.15: Additional Information 41 Section 6.16: Accuracy of Reported Data 41 Section 6.17: Audits 42 Section 6.18: Extensions of Deadlines, Exemptions from Filing and Alternate Cost Reports 42 Section 6.19: Penalties 42 Section 6.20: Administrative Bulletins 42 Section 6.21: Severability 43

957 CMR 7.00: NURSING FACILITIES COST REPORTING REQUIREMENTS 45

Section 7.01: General Provisions 45 Section 7.02: Definitions 45 Section 7.03: Reporting Requirements 48 Section 7.04: Filing Deadlines 52 Section 7.05: Incomplete Submissions 53 Section 7.06: Audits 53 Section 7.07: Penalties 53 Section 7.08: Administrative Bulletins 53 Section 7.09: Severability 54

957 CMR 8.00: ALL PAYER CLAIMS DATABASE (APCD) AND CASE MIX AND CHARGE DATA SUBMISSION 55

Section 8.01: General Provisions 55 Section 8.02: Definitions 55 Section 8.03: Data Reporting Requirements 57 Section 8.04: Data Submission Procedures 58 Section 8.05: Data Reporting Schedule 59 Section 8.06: Other Provisions 59 Section 8.07: Severability 59

957 CMR 9.00: HOSPITAL FINANCIAL DATA REPORTING REQUIREMENTS 61

Section 9.01: General Provisions 61 Section 9.02: Definitions 61 Section 9.03: General Reporting Requirements 62 Section 9.04: Hospital Cost Reporting 62 Section 9.05: Audited Financial Statements 62 Section 9.06: Other Hospital Reporting Requirements 63 Section 9.07: Acute Hospital Standardized Financial Filings 63 Section 9.08: Employee Compensation Reporting by Acute Hospitals 64 Section 9.09: Audits 64 Section 9.10: Compliance and Penalties 64 Section 9.11: Administrative Bulletins 65 Section 9.12: Nonpublic Information 65 Section 9.13: Severability 65

4/8/16 957 CMR - 2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

957 CMR 11.00: REGISTERED PROVIDER ORGANIZATIONS REPORTING REQUIREMENTS

Section

11.01: General Provisions 11.02: Definitions 11.03: Reporting Requirements 11.04: Submission Procedures 11.05: Submission Review 11.06: Compliance and Penalties 11.07: Administrative Bulletins 11.08: Nonpublic Information 11.09: Severability

11.01: General Provisions

Scope and Purpose . 957 CMR 11.00 governs the reporting requirements for Registered Provider Organizations to submit data and information in accordance with M.G.L. c. 12C.

11.02: Definitions

All defined terms in 957 CMR 11.00 are capitalized. As used in 957 CMR 11.00 and the Data Submission Manual , unless the context requires otherwise, the following terms shall have the following meanings:

Acute Hospital . The teaching hospital of the University of Massachusetts Medical School and any hospital licensed under M.G.L. c. 111, § 51 and which contains a majority of medical-surgical, pediatric, obstetric, and maternity beds, as defined by the Department of Public Health.

Advanced Care Settings . Sites at which more complex care can be provided for one or more clinical services.

Audited Financial Statements . A complete set of financial statements of an Entity, including the notes to the financial statements, which are subject to an independent audit in accordance with Generally Accepted Auditing Standards (GAAS) . The independent auditor issues an opinion as to whether or not the accompanying financial statements are presented fairly in accordance with Generally Accepted Accounting Principles (GAAP) .

Behavioral Health Services . Supplies, care, and services for the diagnosis, treatment, or management of patients with mental health or substance use disorders.

Carrier . An insurer licensed or otherwise authorized to transact accident or health insurance under M.G.L. c. 175; a nonprofit hospital service corporation organized under M.G.L. c. 176A; a nonprofit medical service corporation organized under M.G.L. c. 176B; a health maintenance organization organized under M.G.L. c. 176G; and an organization entering into a preferred provider arrangement under M.G.L. c. 176I, but not including an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer; provided that, unless otherwise noted, Carrier shall not include any Entity to the extent it offers a policy, certificate or contract that provides coverage solely for dental care services or vision care services.

Center . The Center for Health Information and Analysis established in M.G.L. c. 12C.

Clinical Affiliation . Any relationship between a Provider or Provider Organization and another Entity for the purpose of increasing the level of collaboration in the provision of Health Care Services, including, but not limited to, sharing of physician resources in hospital or other ambulatory settings, co-branding, expedited transfers to Advanced Care Settings, provision of inpatient consultation coverage or call coverage, enhanced electronic access and communication, co-located services, provision of capital for service site development, Joint Training Programs, video technology to increase access to expert resources and sharing of hospitalists or intensivists.

3/10/17 957 CMR - 77 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

11.02: continued

Commission . The Health Policy Commission established in M.G.L. c. 6D.

Community Advisory Board . Committees, boards, or other oversight and governance bodies engaging the community of a Provider Organization, including, but not limited to patient and family advisory councils, as defined in 105 CMR 130.1801: Policies and Procedures for Patient and Family Advisory Council , or community benefits advisory boards.

Consolidating Schedule . A document that accompanies the consolidated Audited Financial Statements, which includes detailed financial statements of subsidiary hospital(s) and the other organizations that comprise the consolidated entity.

Contracting Affiliation . Any relationship between a Provider Organization and another Provider or Provider Organization for the purposes of negotiating, representing, or otherwise acting to establish contracts for the payment of Health Care Services, including for payment rates, incentives, and operating terms, with a Payer or Third-party Administrator.

Corporate Affiliation . Any relationship between two Entities that reflects, directly or indirectly, a partial or complete controlling interest or partial or complete common control.

Data Submission Manual . A manual published by the MA-RPO Program as an administrative bulletin, containing specifications, submission guidelines, and timelines for Registration and data collection.

Division . The Massachusetts Division of Insurance established in M.G.L. c. 26, § 1.

Entity . A corporation, sole proprietorship, partnership, limited liability company, trust, foundation, or any other organization formed for the purpose of carrying on a commercial or charitable enterprise.

Facility . A licensed institution providing Health Care Services, or a health care setting, including, but not limited to, hospitals and other licensed inpatient centers, ambulatory surgical or treatment centers, skilled nursing centers, residential treatment centers, diagnostic, laboratory and imaging centers, and rehabilitation and other therapeutic health settings.

Fiscal Year . The 12-month period during which a Provider Organization keeps its accounts and which is identified by the calendar year in which it ends.

Full-time Equivalent . The ratio of the total payroll hours for employees to the standard number of annual full-time payroll hours, and the equivalent for contracted individuals.

Funds Flow . The apportionment of Provider or Provider Organization funds, including payments from Payers and Third-party Administrators, across affiliated Entities, which shall include apportionment across hospitals and physicians, across physician groups, across primary care physicians and specialists, and across employed versus affiliated physicians.

Governmental Unit . The Commonwealth, any board, commission, department, division, or agency of the Commonwealth, and any political subdivision of the Commonwealth.

Health Care Professional . A physician or other health care practitioner licensed, accredited, or certified to perform specified Health Care Services consistent with law.

Health Care Provider or Provider . A provider of Health Care Services or any other person or organization that furnishes, bills or is paid for Health Care Services delivery in the normal course of business or any person, corporation, partnership, governmental unit, state institution or any other entity qualified under the laws of the Commonwealth to perform or provide Health Care Services.

3/10/17 957 CMR - 78 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

11.02: continued

Health Care Services . Supplies, care and services of medical, Behavioral Health, surgical, optometric, dental, podiatric, chiropractic, therapeutic, diagnostic, preventative, rehabilitative, supportive or geriatric nature including, but not limited to, inpatient and outpatient acute hospital care and services; services provided by a community health center, home health care provider, and hospice care provider, or by a sanatorium, as included in the definition of "hospital" in Title XVIII of the federal Social Security Act, and treatment and care compatible with such services, or provided by a health maintenance organization.

Initial Registration . The first time a Provider Organization submits an application for Registration, which application may include one or more parts.

Joint Training Programs . A training program, including but not limited to student education and graduate medical education, jointly sponsored by one or more Providers or Provider Organizations.

Local Practice Group . A group of Health Care Professionals that functions as a subgroup of a Provider Organization (i.e. , groups broken out from the larger Provider Organization for purposes of data reporting and market comparisons).

Major Service Category . A set of service categories as specified in the Data Submission Manual , including: (a) Acute Hospital inpatient services, by major diagnostic category; (b) outpatient and ambulatory services, by categories as defined by the Centers for Medicare and Medicaid Services, or as specified in the Data Submission Manual , not to exceed 15, including a residual category for "all other" outpatient and ambulatory services that do not fall within a defined category; (c) Behavioral Health Services; (d) professional services, by categories as defined by the Centers for Medicare and Medicaid Services, or as specified in the Data Submission Manual ; and (e) sub-acute services, by major service line or clinical offering, as specified in the Data Submission Manual .

Massachusetts Registration of Provider Organizations Program or MA-RPO Program . The Commonwealth program, jointly administered by the Commission and the Center, pursuant to M.G.L. c. 6D, § 11 and § 12 and M.G.L. c. 12C.

Patient Panel . The total number of individual patients seen over the course of the most recent complete 36-month period.

Payer . Any entity, other than an individual, that pays providers for the provision of health care services; provided, that Payer shall include both governmental and private entities; provided further, that Payer shall not include excluded ERISA plans.

Practice Site . Any site at which members of a Local Practice Group provide care.

Provider Organization or Health System or System . Any corporation, partnership, business trust, association or organized group of persons, which is in the business of health care delivery or management, whether incorporated or not, that represents one or more Health Care Providers in contracting with Carriers or Third-party Administrators for the payment of Health Care Services; provided that the definition shall include, but not be limited to, physician organizations, physician-hospital organizations, independent practice associations, Provider networks, accountable care organizations, and any other organization that contracts with Carriers or Third-party Administrators for payment for Health Care Services.

Registration . The process of becoming a Registered Provider Organization as established by the Commission pursuant to M.G.L. c. 6D, § 11, including Initial Registration and Registration Renewal.

3/10/17 957 CMR - 79 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

11.02: continued

Registration Renewal . The process for a Registered Provider Organization to renew its Registration every 24 months.

Registered Provider Organization (RPO) . A Provider Organization, which includes a Risk-bearing Provider Organization, that meets the criteria for Registration pursuant to 958 CMR 6.00: Registration of Provider Organizations and registers with the Commission.

Risk-bearing Provider Organization (RBPO) . An Entity subject to the requirements of the Division pursuant to M.G.L. c. 176T.

Risk Certificate . A certificate of solvency issued by the Division that demonstrates that a Risk-bearing Provider Organization has satisfied the certification requirements of M.G.L. c. 176T and 211 CMR 155.00: Risk-bearing Provider Organizations .

Third-party Administrator . An Entity that administers payments for Health Care Services on behalf of a client in exchange for an administrative fee.

11.03: Reporting Requirements

(1) General Reporting Requirements . Each Registered Provider Organization shall provide information, as specified in the most recent Data Submission Manual , which may include: (a) Information regarding ownership, governance, and operational structure, including, organizational charts and narrative descriptions of the type and kind of Corporate and Contracting Affiliations; information regarding incentive structures and compensation models, including Funds Flow within the Registered Provider Organization; and information regarding the characteristics of any Clinical Affiliations and the role of Community Advisory Boards; (b) Information regarding the number of affiliated Health Care Professional Full-time Equivalents by license type, specialty, each Health Care Professional's name, address of principal location of work, national provider identifier, or other identifying information, and whether the Health Care Professional is employed by or affiliated with the Registered Provider Organization and the nature of that relationship, including whether provisions exist in physician participation or employment agreements such as referral requirements; (c) The name and address of each Facility and Practice Site, by license number, license type, tax identification number, national provider identifier, and capacity in each Major Service Category, or by any other relevant characteristic as defined in the Data Submission Manual ; (d) Information regarding utilization by Major Service Category; (e) Comprehensive financial statements, including Audited Financial Statements, Consolidating Schedules and standardized filings that shall include a balance sheet, a statement of operations, and a cash flow statement; (f) Information on stop-loss insurance and any non-fee-for-service payment arrangements; (g) Information on clinical quality, care coordination and patient referral practices; (h) Information regarding expenditures and funding sources for payroll, teaching, research, advertising, taxes or payments-in- lieu -of-taxes and other non-clinical functions; (i) Information regarding charitable care and community benefit programs; (j) For any risk-bearing provider organization, a certificate from the Division under M.G.L. c. 176U; (k) Information regarding any discounts, rebates or any other type of refunds or remuneration in exchange for, or in any way related to, the provision of heath care services; and (l) Such other information as the MA-RPO Program considers appropriate.

(2) Administrative Simplification . The MA-RPO Program will coordinate with the Division and other Governmental Units to obtain information directly from such entities where available.

3/10/17 957 CMR - 80 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

11.04: Submission Procedures

(1) General . Each Registered Provider Organization shall submit annually data and information to the MA-RPO Program in accordance with the procedures provided in the Data Submission Manual .

(2) Data Submission Process . Each Registered Provider Organization shall submit data and information at the time and in the manner specified in the Data Submission Manual and in conformance with the specifications set forth in the Data Submission Manual . In accordance with the procedures set forth in the Data Submission Manual , the MA-RPO Program will notify a Registered Provider Organization as to whether the submission has been accepted or rejected and whether the Registered Provider Organization must correct and resubmit data or information.

(3) Filing Deadlines . Each year, each Registered Provider Organization must submit the required data and information on the dates specified in the Data Submission Manual .

(4) Certification of Submissions . Each individual that submits information in accordance with 957 CMR 11.00 on behalf of a Registered Provider Organization must represent and warrant that he or she is duly authorized and has full authority to make the submissions.

(5) Waivers . The Center may grant waivers from certain annual reporting requirements based on the criteria specified in the Data Submission Manual .

(6) Fees . The Center may assess administrative fees on Registered Provider Organizations in an amount to defray the Center's costs in collecting Registered Provider Organization data and information pursuant to 957 CMR 11.00.

11.05: Submission Review

Submissions under 957 CMR 11.00 may be subject to review by the MA-RPO Program to ensure accuracy and consistency in reporting. The MA-RPO Program will work with Registered Provider Organizations, as necessary, to address discrepancies uncovered through such review and, in doing so, may require Registered Provider Organizations to submit additional data, information and related documentation.

11.06: Compliance and Penalties

(1) If a Registered Provider Organization fails to submit required data and information to the MA-RPO Program on a timely basis, or fails to correct submissions rejected because of errors, the Center shall provide written notice to the Registered Provider Organization. If the Registered Provider Organization fails to provide the required information within two weeks of written notice, the Center will take all necessary steps to enforce 957 CMR 11.06 to the fullest extent of the law.

(2) Registered Provider Organizations that do not comply with the reporting requirements of 957 CMR 11.00 are subject to a penalty of up to $1,000 per week for each week that the Registered Provider Organization fails to provide the required data, up to a maximum of $50,000 in accordance with M.G.L. c. 12C, § 11.

(3) The Center will notify the Attorney General's Office to enforce the provisions of 957 CMR 11.06 and may provide notice of noncompliance to other Governmental Units.

11.07: Administrative Bulletins

The Center may issue administrative bulletins from time to time to clarify, add to, or change reporting requirements under 957 CMR 11.00.

3/10/17 957 CMR - 81 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 957 CMR: CENTER FOR HEALTH INFORMATION AND ANALYSIS

11.08: Nonpublic Information

Information furnished pursuant to 957 CMR 11.03(1)(e) or 11.05 under an assurance of confidentiality in accordance with M.G.L. c. 12C, § 5 shall not be subject to the disclosure provision of the public records law. Any reasonable segregable portion of a record filed pursuant to this regulation shall be provided to any person requesting such records after deletion of the portions which are considered nonpublic under 957 CMR 11.08.

11.09: Severability

The provisions of 957 CMR 11.00 are severable. If any such provisions or the applicability thereof is held to be invalid or unconstitutional by any court of competent jurisdiction, such invalidity shall not be construed to affect the validity or constitutionality of any remaining provisions of 957 CMR 11.00 or the application of such provisions.

REGULATORY AUTHORITY

957 CMR 11.00: M.G.L. c. 12C.

3/10/17 957 CMR - 82 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. Docket # 4

THE COMMONWEALTH OF MASSACHUSETTS William Francis Galvin Secretary of the Commonwealth

Regulation Filing To be completed by filing agency

CHAPTER NUMBER: 976 CMR 2.00

CHAPTER TITLE: State Finance and Governance Board Regulations

AGENCY: State Finance and Governance Board

SUMMARY OF REGULATION: State the general requirements and purposes of this regulation. This regulation sets forth procedural rules for the State Finance and Governance Board.

REGULATORY AUTHORITY: M.G.L. c. 6, s. 98

AGENCY CONTACT: Tori T. Kim PHONE: 857-400-5455

ADDRESS: State House, Room 373, Boston, MA 02133

Compliance with M.G.L. c. 30A

EMERGENCY ADOPTION - if this regulation is adopted as an emergency, state the nature of the emergency.

PRIOR NOTIFICATION AND/OR APPROVAL - If prior notification to and/or approval of the Governor, Legislature or others was required, list each notification, and/or approval and date, including notice to the Local Government Advisory Commission. Notice to Department of Housing and Community Development, sent 9/23/16 Notice to Massachusetts Municipal Association, sent 9/23/16

Date of public hearing or comment period: 11/11/16 (end of comment period)

For the first five years:

No fiscal effect: XXX

Date amended small business impact statement was filed: 1/27/17

CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:

ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation adopted by this agency. ATTEST:

SIGNATURE: SIGNATURE ON FILE DATE: Feb 23 2017

Publication - To be completed by the Regulations Division

MASSACHUSETTS REGISTER NUMBER: 1334 DATE: 03/10/2017

EFFECTIVE DATE: 03/10/2017

CODE OF MASSACHUSETTS REGULATIONS Remove these pages: Insert these pages: 1 & 2 1 & 2 5 - 8 5 - 10

02/23/2017 kr

Table of Contents Page

(976 CMR 1.00: RESERVED) 3

976 CMR 2.00: STATE FINANCE AND GOVERNANCE BOARD REGULATIONS 5

Section 2.01: Purpose and Application 5 Section 2.02: Definitions 5 Section 2.03: Policies Relating to Investment of Public Funds 6 Section 2.04: Debt Management Policies 6 Section 2.05: Review of Financial Transactions Involving Derivative Financial Products 6 Section 2.06: Review of Qualified Conduit Debt Transactions Involving Derivative Financial Products; with Guarantee 7 Section 2.07: Review of Requests for Waiver from Presumption of a Competitively Bid Financing 8 Section 2.08: Board Contact Information 9

3/10/17 976 CMR - 1 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

NON-TEXT PAGE

3/10/17 976 CMR - 2 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

976 CMR 2.00: STATE FINANCE AND GOVERNANCE BOARD REGULATIONS

Section

2.01: Purpose and Application 2.02: Definitions 2.03: Policies Relating to Investment of Public Funds 2.04: Debt Management Policies 2.05: Review of Financial Transactions Involving Derivative Financial Products 2.06: Review of Qualified Conduit Debt Transactions Involving Derivative Financial Products; with Guarantee 2.07: Review of Requests for Waiver from Presumption of a Competitively Bid Financing 2.08: Board Contact Information

2.01: Purpose and Application

The powers and responsibilities of the Board set forth in M.G.L. c. 6, § 98 are intended to promote transparency, accountability and best practices among State Entities with respect to investments, borrowing or other financial transactions involving public funds made or entered into by State Entities.

2.02: Definitions

For purposes of 976 CMR 2.00, the following definitions shall apply, in addition to the definitions appearing in M.G.L. c. 6, § 97:

Board . The State Finance and Governance Board, established under M.G.L. c. 6, § 97.

Commonwealth . The Commonwealth of Massachusetts.

Derivative Financial Product . Any financial instrument which is a bond or note issue of a State Entity Authorized to Issue Debt or which is related to a bond or note issue of a State Entity Authorized to Issue Debt the value of which is derived from or based upon the value of other assets or on the level of an interest rate index including, but not limited to, a call option on a bond, interest rate swap agreements, interest rate swaptions, caps, floors, collars, inverse floaters and auction rate securities; provided, however, that any bonds or notes issued by State Entities Authorized to Issue Debt with fixed rates of interest shall not constitute Derivative Financial Products, regardless of whether such fixed rate bonds or notes are issued with a call option, regardless of whether such fixed rate bonds or notes are insured by bond insurance or other form of credit enhancement, and regardless of investment or lending of such fixed rate bond or note proceeds.

Public Funds . Any funds that are received by a State Entity Authorized to Issue Debt from the Commonwealth or any other public or private source, and are under the control of and are expended at the discretion of the State Entity Authorized to Issue Debt.

Qualified Conduit Debt Transaction . Any issue of bonds or notes issued by a State Entity Authorized to Issue Debt acting in a conduit role for a non-governmental, for-profit or non-profit corporation or group of related or unrelated for profit or non-profit corporations (none of which is itself a State Entity Authorized to Issue Debt) (collectively, the borrower), and any derivative financial products related to such issue, which are secured by and payable by the borrower, a related guarantor, or any third party guarantee such as a letter of credit or bond insurance. Such bonds or notes, or related derivative financial products, shall not be payable under any circumstances from public funds of, and shall not be the liability of, the State Entity Authorized to Issue Debt that issued the bonds or notes, the Commonwealth or any other State Entity Authorized to Issue Debt.

Qualified Conduit Debt Transaction with Guarantee . Qualified Conduit Debt Transaction for which there is a related guarantee provided by the State Entity Authorized to Issue Debt acting in a conduit role.

State Entity . The Commonwealth, any state authority as defined in M.G.L. c. 29, § 1, or other state entities of the Commonwealth with responsibility for managing and overseeing Public Funds.

3/10/17 976 CMR - 5 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

2.02: continued

State Entity Authorized to Issue Debt . Any State Entity with authority to issue bonds or notes, including the following currently existing State Entities Authorized to Issue Debt while they continue to exist, and any future State Entities Authorized to Issue Debt that are created by statute and that meet the definition set forth in M.G.L. c. 6, § 97 and 976 CMR 2.00:

Commonwealth of Massachusetts Massachusetts Clean Water Trust

Massachusetts Bay Transportation Authority Massachusetts Water Resources Authority

Massachusetts Development Finance Agency University of Massachusetts Building Authority

Woods Hole, Martha's Vineyard, Nantucket Steamship Massachusetts Educational Financing Authority Authority

Massachusetts Housing Finance Agency Regional Transit Authorities

Massachusetts Port Authority

Massachusetts School Building Authority

Massachusetts State College Building Authority

Massachusetts Department of Transportation as successor to Massachusetts Turnpike Authority

State Entity Authorized to Issue Debt Subject to Waiver Process (SESWP) . The meaning set forth in 976 CMR 2.07.

2.03: Policies Relating to Investment of Public Funds

Upon adoption of a substantive revision, a State Entity Authorized to Issue Debt shall file its revised policy or policies related to the investment of Public Funds with the Board.

2.04: Debt Management Policies

Upon adoption of a substantive revision, a State Entity Authorized to Issue Debt shall file its revised policy or policies related to debt management with the Board. The Board shall make the policies filed with it available on its website and to any member of the public upon reasonable request to review.

2.05: Review of Financial Transactions Involving Derivative Financial Products

In furtherance of its statutory authority and mandate, the Board hereby establishes 976 CMR 2.05 to ensure that financial transactions involving a Derivative Financial Product are properly analyzed and managed to ensure consistency with State Entity Authorized to Issue Debt objectives, suitability of the transaction, and avoidance of unintended consequences. In the event that a State Entity Authorized to Issue Debt is entering into a new financial transaction that involves a Derivative Financial Product, the State Entity Authorized to Issue Debt shall submit the following materials to the Board:

(1) If not previously submitted, a copy of the State Entity Authorized to Issue Debt's derivative policy* with a certified copy of the vote of the governing board of the State Entity Authorized to Issue Debt or certificate of the authorized official of the State Entity Authorized to Issue Debt if such State Entity Authorized to Issue Debt does not have a governing board; and

(2) A written analysis of the proposed Derivative Financial Product transaction by an independent financial advisor with relevant expertise, together with the advisor's recommendation as to whether or not the State Entity Authorized to Issue Debt should enter into the proposed transaction. Such analysis should include but not be limited to: (a) a detailed description of the Derivative Financial Product; (b) a description of risks, strategies for mitigating any such risks, and any benefits;

3/10/17 976 CMR - 6 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

2.05: continued

(c) scenario analyses or stress tests demonstrating impact on the State Entity Authorized to Issue Debt under extreme financial market events or conditions as a result of entering into the subject Derivative Financial Product; and (d) in the case of a restructuring of an existing Derivative Financial Product, a comparison of the expected benefits resulting from the restructuring with the potential risks resulting from the restructuring.

(3) A certified copy of the minutes of the meeting of the governing board of the State Entity Authorized to Issue Debt (such meeting to be held on a date not greater than two years prior to the date of Board review), or a certificate of the authorized official of the State Entity Authorized to Issue Debt, demonstrating or confirming that: (a) the written analysis and recommendation of the independent financial advisor was presented to the board, or to the official and transmitted to the board; (b) that the structure of the Derivative Financial Product is consistent with the derivative policy adopted by the board or approved by the authorized official; (c) that the benefits of the Derivative Financial Product outweigh the risks of the use of a Derivative Financial Product; and (d) that the governing board or the official approved the proposed transaction. * The following issues should be considered in connection with such a policy: 1. How derivative products fit within the overall debt management program; 2. Expected outcomes or goals of entering into a derivative product (i.e . synthetically fix a variable rate at lower rate than otherwise available in the market); 3. Security and sources of payments for ongoing costs associated with the derivative product and for termination costs of the derivative product; 4. A list of the types of derivative products that may be used and a list of the types of derivative products that are prohibited; 5. The conditions under which these types of products can be utilized ( i.e . bidding procedures, minimum benefit thresholds, terms of master agreements, etc .); 6. The maximum amount of derivatives contracts, or a means of determining such amount; 7. Guidelines and criteria for selecting counterparties; 8. Methods for evaluating, measuring and managing derivative risk; 9. Methods and process for procuring derivative products; 10. Post issuance monitoring, reporting and ongoing risk mitigation procedures, including periodic valuation. The Board's review pursuant to 976 CMR 2.00 shall consist of reviewing the items required to be submitted to the Board described in 976 CMR 2.05(3)(d)1. through 10. The Board shall either conclude that the items required to be submitted have in fact been submitted consistent with the purpose and intent of 976 CMR 2.00, or that said items have not been submitted in a manner consistent with the purpose and intent of 976 CMR 2.00. Any conclusion shall be established by vote of the Board, and confirmed in writing (which may be by e-mail) to the State Entity Authorized to Issue Debt. Such conclusion shall be valid unless the State Entity Authorized to Issue Debt informs the Board of any material change in any of the submittals pursuant to 976 CMR 2.05 or unless six months have lapsed from the date of Board conclusion. A State Entity Authorized to Issue Debt which has received a Board conclusion that the items required to be submitted in connection with 976 CMR 2.00 were in fact submitted consistent with the purpose and intent of 976 CMR 2.00 must report to the Board at the Board meeting next following the execution of the Derivative Financial Product transaction. Such report should include, but not be limited to, the results or final terms of the Derivative Financial Product transaction.

2.06: Review of Qualified Conduit Debt Transactions Involving Derivative Financial Products; with Guarantee

(1) With respect to any proposed Derivative Financial Products that are related to a Qualified Conduit Debt Transaction, the Board's review of such transaction shall be limited to confirming that the transaction constitutes a Qualified Conduit Debt Transaction.

3/10/17 976 CMR - 7 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

2.06: continued

(2) In order to request a review of any Derivative Financial Products that are related to a Qualified Conduit Debt Transaction, a State Entity Authorized to Issue Debt must submit the following items to the Board prior to such Derivative Financial Product being executed: (a) A written description of the proposed Derivative Financial Product transaction(s), including: the parties involved; the schedule; the amount; the security (including any guarantor of payment obligations); and terms. (b) A certification of bond counsel to the proposed transaction confirming that the transaction constitutes a Qualified Conduit Debt Transaction pursuant to 976 CMR 2.06. Not later than five business days following receipt of the material submitted in connection with any Derivative Financial Product related to a Qualified Conduit Debt Transaction, the Secretary of the Board will contact the State Entity Authorized to Issue Debt in writing (which may be by e-mail) to either: 1. confirm that, based on the materials provided under 976 CMR 2.00, the transaction constitutes a Qualified Conduit Debt Transaction and either no public funds are at risk in the transaction or the amount of guarantee, if any, is equal to or less than the threshold amount in 976 CMR 2.06(3); or 2. notify the State Entity Authorized to Issue Debt that the materials submitted were incomplete or that they fail to demonstrate that the transaction constitutes a Qualified Conduit Debt Transaction.

(3) With respect to any proposed Derivative Financial Products that are related to a Qualified Conduit Debt Transaction with Guarantee, the Board's review of such transaction shall be the same as the review of Qualified Conduit Debt Transactions Involving Derivative Financial Products as described in 976 CMR 2.06(2), provided that the governing board of the related State Entity Authorized to Issue Debt has delegated authority to its staff to extend such guarantee without further approval based on an established threshold dollar value and/or risk rating of such guarantee as may be determined by the governing board from time to time, or provided that the guarantee is not greater than $1 million. (a) With respect to any proposed Derivative Financial Products that are related to a Qualified Conduit Debt Transaction with Guarantee which does not meet the criteria in 976 CMR 2.06, the Board's review of such transaction shall be the same as review of financial transactions involving Derivative Financial Products as described in 976 CMR 2.05. (b) A State Entity Authorized to Issue Debt that issues Qualified Conduit Debt Transactions With Guarantee must submit a periodic (but at least quarterly) report of its guarantee programs (Guarantee Program Report). The Guarantee Program Report shall include, but not be limited to: the number and dollar amount of outstanding guarantees by segregated guarantee program and the change in the number and dollar amount of such guarantees from the prior reporting period; the number and dollar amount of guarantees paid during the reporting period with an explanation of the circumstances surrounding such payments. The Board, in its sole discretion, may request further information about the guarantee program.

2.07: Review of Requests for Waiver from Presumption of a Competitively Bid Financing

Statutorily, the Commonwealth may not sell bonds or notes maturing at a time later than three years from their dates on a negotiated basis without receiving a waiver from the Board. In addition, any State Entity Authorized to Issue Debt for which the Secretary of Administration and Finance approves the sale of its bonds or which issues bonds that receive Commonwealth support to the extent that Commonwealth disclosure is used in the marketing of such bonds, may not sell bonds or notes on a negotiated basis without receiving a waiver from the Board, including but not limited to the University of Massachusetts Building Authority, the Massachusetts State College Building Authority, certain of the Massachusetts Department of Transportation bonds, the Massachusetts Clean Water Trust, the Massachusetts Development Finance Agency as issuer of bonds supported by Commonwealth contract assistance and the Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (together with the Commonwealth, "State Entities Authorized to Issue Debt Subject to Waiver Process" or "SESWP"). In the event that a SESWP seeks to sell bonds or notes on a negotiated basis, the SESWP shall submit the following materials to the Board:

3/10/17 976 CMR - 8 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

2.07: continued

(1) If not previously submitted, a copy of the SESWP's Debt Management Policy with a certified copy of the board of the SESWP vote or certificate of the authorized official of the SESWP if such State Entity Authorized to Issue Debt does not have a governing board;

(2) Certified copy of the minutes of a meeting of the governing board of the SESWP or certificate of the authorized official of the SESWP, evidencing awareness and approval that the SESWP will be selling bonds or notes on a negotiated basis; and

(3) A letter from an authorized official of the SESWP to the Board and presented at a Board meeting requesting a waiver from the presumption of a competitively bid financing and demonstrating that: (a) the process or criteria to determine the method of sale set forth in the SESWP's Debt Management Policy had been thoroughly followed; (b) an explanation for why the SESWP believes negotiation is a better approach; (c) the date beyond which such waiver, if granted, would expire; (d) a "not-to-exceed" amount of bonds to be sold; and (e) a description of the use of proceeds of the subject bonds or notes. Such letter shall be personally presented to the Board by an appropriate official of the SESWP. Consistent with statute, the Board's presumption is that SESWP bond sales will be conducted on a competitive basis. There may be exceptions to this premise, however, where the anticipated benefit of a negotiated sale can be demonstrated. The Board's review pursuant to 976 CMR 2.00 shall consist of reviewing the items required to be submitted to the Board as described in 976 CMR 2.07(3)(a) through (e). The Board shall either conclude that the items required to be submitted have in fact been submitted in a manner consistent with the purpose and intent of 976 CMR 2.00 and grant a waiver, or that said items have not been submitted consistent with the purpose and intent of 976 CMR 2.00. Any conclusion shall be established by vote of the Board, and confirmed in writing (which may be by e-mail) to the SESWP. Any conclusion will expire six months from the date thereof. A SESWP that received a waiver pursuant to 976 CMR 2.00 must present results of the sale, including comparative pricing information, to the Board at the next Board meeting following the execution of the negotiated sale.

2.08: Board Contact Information

Whenever a document is required to be submitted to the Board under 976 CMR 2.00, it shall be submitted to: State Finance and Governance Board c/o Director of Debt Management and Special Finance Programs Executive Office for Administration and Finance State House, Room 373 Boston, MA 02133

REGULATORY AUTHORITY

976 CMR 2.00: M.G.L. c. 6, § 98.

3/10/17 976 CMR - 9 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 976 CMR: STATE FINANCE AND GOVERNANCE BOARD

NON-TEXT PAGE

3/10/17 976 CMR - 10 The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only. The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. William Francis Galvin PERIODICALS Secretary of the Commonwealth State Bookstore U.S. POSTAGE PAID State House, Room 116 Boston, MA 02133 Boston, MA

This document contains time sensitive public contract information! ~ Please deliver as soon as possible.