Issue Date: August 12, 2011

Volume 38 • Issue 17 • Pages 989—1042

IN THIS ISSUE Open Meetings Compliance Board Judiciary Regulatory Review and Evaluation Regulations General Notices

Pursuant to State Government Article, §7-206, Annotated Code of Maryland, this issue contains all previously unpublished documents required to be published, and filed on or before July 25, 2011, 5 p.m.

Pursuant to State Government Article, §7-206, Annotated Code of Maryland, I hereby certify that this issue contains all documents required to be codified as of July 25, 2011.

Brian Morris Acting Administrator, Division of State Documents Office of the Secretary of State

Information About the Maryland Register and COMAR

MARYLAND REGISTER HOW TO RESEARCH REGULATIONS The Maryland Register is an official State publication published An Administrative History at the end of every COMAR chapter gives every other week throughout the year. A cumulative index is information about past changes to regulations. To determine if there have published quarterly. been any subsequent changes, check the ‘‘Cumulative Table of COMAR The Maryland Register is the temporary supplement to the Code of Regulations Adopted, Amended, or Repealed’’ which is found online at Maryland Regulations. Any change to the text of regulations www.dsd.state.md.us/CumulativeIndex.pdf. This table lists the regulations published in COMAR, whether by adoption, amendment, repeal, or in numerical order, by their COMAR number, followed by the citation to emergency action, must first be published in the Register. the Maryland Register in which the change occurred. The Maryland The following information is also published regularly in the Register serves as a temporary supplement to COMAR, and the two Register: publications must always be used together. A Research Guide for Maryland • Governor’s Executive Orders Regulations is available. For further information, call 410-260-3876. • Attorney General’s Opinions in full text • Open Meetings Compliance Board Opinions in full text SUBSCRIPTION INFORMATION • State Ethics Commission Opinions in full text For subscription forms for the Maryland Register and COMAR, see • Court Rules the back pages of the Maryland Register. Single issues of the • District Court Administrative Memoranda Maryland Register are $15.00 per issue. • Courts of Appeal Hearing Calendars CITIZEN PARTICIPATION IN • Agency Hearing and Meeting Notices THE REGULATION-MAKING PROCESS • Synopses of Bills Introduced and Enacted by the General Assembly Maryland citizens and other interested persons may participate in • Other documents considered to be in the public interest the process by which administrative regulations are adopted, amended, or repealed, and may also initiate the process by which the CITATION TO THE MARYLAND REGISTER validity and applicability of regulations is determined. Listed below The Maryland Register is cited by volume, issue, page number, and are some of the ways in which citizens may participate (references date. Example: are to State Government Article (SG), • 19:8 Md. R. 815—817 (April 17, 1992) refers to Volume 19, Issue Annotated Code of Maryland): 8, pages 815—817 of the Maryland Register issued on April 17, • By submitting data or views on proposed regulations either orally 1992. or in writing, to the proposing agency (see ‘‘Opportunity for Public CODE OF MARYLAND REGULATIONS (COMAR) Comment’’ at the beginning of all regulations appearing in the Proposed Action on Regulations section of the Maryland Register). COMAR is the official compilation of all regulations issued by (See SG, §10-112) agencies of the State of Maryland. The Maryland Register is • By petitioning an agency to adopt, amend, or repeal regulations. COMAR’s temporary supplement, printing all changes to regulations The agency must respond to the petition. (See SG §10-123) as soon as they occur. At least once annually, the changes to • By petitioning an agency to issue a declaratory ruling with respect regulations printed in the Maryland Register are incorporated into to how any regulation, order, or statute enforced by the agency COMAR by means of permanent supplements. applies. (SG, Title 10, Subtitle 3) CITATION TO COMAR REGULATIONS • By petitioning the circuit court for a declaratory judgment COMAR regulations are cited by title number, subtitle number, on the validity of a regulation when it appears that the regulation chapter number, and regulation number. Example: COMAR interferes with or impairs the legal rights or privileges of the 10.08.01.03 refers to Title 10, Subtitle 08, Chapter 01, Regulation 03. petitioner. (SG, §10-125) • By inspecting a certified copy of any document filed with the DOCUMENTS INCORPORATED BY REFERENCE Division of State Documents for publication in the Maryland Incorporation by reference is a legal device by which a document is Register. (See SG, §7-213) made part of COMAR simply by referring to it. While the text of an incorporated document does not appear in COMAR, the provisions of the incorporated document are as fully enforceable as any other Maryland Register (ISSN 0360-2834). Postmaster: Send address changes and other mail to: Maryland Register, State House, Annapolis, Maryland COMAR regulation. Each regulation that proposes to incorporate a 21401. Tel. 410-260-3876; Fax 410-280-5647. Published biweekly, with document is identified in the Maryland Register by an Editor’s Note. cumulative indexes published quarterly, by the State of Maryland, Division of The Cumulative Table of COMAR Regulations Adopted, Amended State Documents, State House, Annapolis, Maryland 21401. The subscription or Repealed, found online, also identifies each regulation rate for the Maryland Register is $225 per year (first class mail). All incorporating a document. Documents incorporated by reference are subscriptions post-paid to points in the U.S. periodicals postage paid at available for inspection in various depository libraries located Annapolis, Maryland and additional mailing offices. throughout the State and at the Division of State Documents. These Martin O’Malley, Governor; John P. McDonough, Secretary of State; depositories are listed in the first issue of the Maryland Register Brian Morris, Acting Administrator; Gail S. Klakring, Senior Editor; Mary D. MacDonald, Editor, Maryland Register and COMAR; Elizabeth Ramsey, published each year. For further information, call 410-974-2486. Editor, COMAR Online, and Subscription Manager; Tami Cathell, Help Desk, COMAR and Maryland Register Online. Front cover: State House, Annapolis, MD, built 1772—79. Illustrations by Carolyn Anderson, Dept. of General Services

Note: All products purchased are for individual use only. Resale or other compensated transfer of the information in printed or electronic form is a prohibited commercial purpose (see State Government Article, §7-206.2, Annotated Code of Maryland). By purchasing a product, the buyer agrees that the purchase is for individual use only and will not sell or give the product to another individual or entity.

Contents 991 Closing Dates for the Maryland Register BOATING — SPEED LIMITS AND OPERATION OF Schedule of Closing Dates and Issue Dates for the VESSELS Maryland Register ...... 993 Patuxent River...... 1012 10 DEPARTMENT OF HEALTH AND MENTAL HYGIENE DRUGS COMAR Research Aids Purchase and Distribution of Prescription Drugs and Table of Pending Proposals ...... 994 Devices...... 1012 FOOD Index of COMAR Titles Affected in This Issue Shellfish Sanitation...... 1012 COMAR Title Number and Name Page MARYLAND HEALTH CARE COMMISSION 04 Department of General Services ...... 1017 Institutional Review Board...... 1013 07 Department of Human Resources ...... 1018 BOARD OF EXAMINERS OF PSYCHOLOGISTS 08 Department of Natural Resources ...... 1011, 1012, 1020 Child Custody Evaluations in Family Law Proceedings.... 1013 09 Department of Labor, Licensing, and Regulation ...... 1027 BOARD OF PROFESSIONAL COUNSELORS AND 10 Department of Health and Mental Hygiene ...... 1012, 1028 THERAPISTS 12 Department of Public Safety and Correctional Services .... 1016 Supervision Requirements...... 1013 13A State Board of Education ...... 1013, 1038 13A STATE BOARD OF EDUCATION 14 Independent Agencies ...... 1011, 1016, 1039 SCHOOL PERSONNEL 26 Department of the Environment ...... 1014 Comprehensive Teacher Induction Program ...... 1013 31 Maryland Insurance Administration ...... 1039 26 DEPARTMENT OF THE ENVIRONMENT 33 State Board of Elections ...... 1014 AIR QUALITY General Administrative Provisions...... 1014 General Administrative Provisions...... 1014 PERSONS WITH DISABILITIES Control of Fuel-Burning Equipment, Stationary Internal Individuals with disabilities who desire assistance in using the Combustion Engines, and Certain Fuel-Burning publications and services of the Division of State Documents are Installations ...... 1014 encouraged to call (410) 974-2486, or (800) 633-9657, or FAX to Permits, Approvals, and Registration ...... 1014 (410) 974-2546, or through Maryland Relay. 33 STATE BOARD OF ELECTIONS PROVISIONAL VOTING Open Meetings Compliance Board Provisional Voting Documents and Supplies ...... 1014 OPINIONS...... 996 EARLY VOTING OPINIONS...... 996 Early Voting Centers...... 1015 OPINIONS...... 998 Early Voting Center Equipment and Materials...... 1015 OPINIONS...... 1004 Non-Voting Hours Procedures ...... 1015

The Judiciary Withdrawal of Regulations COURT OF APPEALS OF MARYLAND 12 DEPARTMENT OF PUBLIC SAFETY AND SCHEDULE ...... 1007 CORRECTIONAL SERVICES COURT OF SPECIAL APPEALS SEX OFFENDER REGISTRATION SCHEDULE FOR SEPTEMBER 1, 2, 6, 7, 8, 9, 12, 13, 14, Administration of Sex Offender Registration...... 1016 15, 16, 2011 ...... 1007 Administration of Juvenile Sex Offender Listing...... 1016 14 INDEPENDENT AGENCIES WORKERS' COMPENSATION COMMISSION Regulatory Review and Evaluation Procedural Regulations...... 1016 15 DEPARTMENT OF AGRICULTURE Notice of Availability of Evaluation Report ...... 1010 Proposed Action on Regulations

04 DEPARTMENT OF GENERAL SERVICES Emergency Action on Regulations OFFICE OF THE SECRETARY 08 DEPARTMENT OF NATURAL RESOURCES Public Information Requests ...... 1017 FISHERIES SERVICE BUILDINGS AND GROUNDS Oysters...... 1011 General Regulations ...... 1017 Shellfish...... 1011 07 DEPARTMENT OF HUMAN RESOURCES 14 INDEPENDENT AGENCIES CHILD SUPPORT ENFORCEMENT ADMINISTRATION STATE LOTTERY AGENCY General Information ...... 1018 Video Lottery Terminals...... 1011 Establishment of Paternity...... 1019 Establishment of Support Obligation...... 1019 Final Action on Regulations Enforcement of Support Obligation...... 1020 08 DEPARTMENT OF NATURAL RESOURCES 08 DEPARTMENT OF NATURAL RESOURCES FISHERIES SERVICE FISHERIES SERVICE General ...... 1020 Fish ...... 1012 Fishing in Nontidal Waters...... 1020 Fish ...... 1012 Nuisance and Prohibited Species...... 1020

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 Contents 992 Shellfish...... 1022 BOARD OF HEATING, VENTILATION, AIR- Fishing in Nontidal Waters...... 1023 CONDITIONING, AND REFRIGERATION FORESTS AND PARKS CONTRACTORS (HVACR) Licensed Tree Experts ...... 1026 Public Meeting ...... 1041 09 DEPARTMENT OF LABOR, LICENSING, AND MARYLAND STATE LOTTERY COMMISSION REGULATION Public Meeting ...... 1041 RACING COMMISSION MARYLAND HEALTH CARE COMMISSION Thoroughbred Rules ...... 1027 Public Meeting ...... 1042 COMMISSION OF REAL ESTATE APPRAISERS AND Formal Start of Review ...... 1042 HOME INSPECTORS — REAL ESTATE APPRAISERS Formal Start of Review ...... 1042 Fees...... 1028 BOARD OF PODIATRIC MEDICAL EXAMINERS 10 DEPARTMENT OF HEALTH AND MENTAL HYGIENE Public Meeting ...... 1042 MEDICAL CARE PROGRAMS Public Meeting ...... 1042 Medical Day Care Services...... 1028 Public Meeting ...... 1042 Early and Periodic Screening, Diagnosis, and Treatment: Public Meeting ...... 1042 Private Duty Nursing ...... 1029 PROCUREMENT ADVISORY COUNCIL (PAC) Home/Community Based Services Waiver for Older Public Hearing...... 1042 Adults ...... 1030 BOARD OF PUBLIC ACCOUNTANCY Living at Home Waiver Program...... 1031 Public Meeting ...... 1042 Home and Community-Based Services Waiver for Children COMMISSION TO COORDINATE THE STUDY, with Autism Spectrum Disorder ...... 1033 COMMEMORATION, AND IMPACT OF SLAVERY’S BOARD OF PHARMACY HISTORY AND LEGACY IN MARYLAND Infusion Pharmacy Services in an Alternate Site Care Public Meeting ...... 1042 Environment ...... 1034 MARYLAND TRANSPORTATION AUTHORITY 13A STATE BOARD OF EDUCATION Public Meeting ...... 1042 CERTIFICATION WORKERS’ COMPENSATION COMMISSION Specialists...... 1038 Public Meeting ...... 1042 14 INDEPENDENT AGENCIES STATE LOTTERY AGENCY .COMAR Online Video Lottery Terminals...... 1039 The Code of Maryland Regulations is available at 31 MARYLAND INSURANCE ADMINISTRATION www.dsd.state.md.us as a free service of the Office of the HEALTH MAINTENANCE ORGANIZATIONS; ENTITIES THAT ACT AS HEALTH INSURERS Secretary of State, Division of State Documents. The full text Payments to Nonparticipating Providers...... 1039 of regulations is available and searchable. Note, however, that the printed COMAR continues to be the only official and General Notices enforceable version of COMAR. The Maryland Register is also available at BOARD OF ARCHITECTS www.dsd.state.md.us. Public Meeting...... 1041 For additional information, visit www.sos.state.md.us, ATHLETIC COMMISSION Public Meeting...... 1041 Division of State Documents, or call us at (410) 974-2486 or 1 CHESAPEAKE BAY TRUST (800) 633-9657. Public Meeting...... 1041 BOARD FOR THE CERTIFICATION OF RESIDENTIAL Availability of Monthly List of Maryland Documents CHILD CARE PROGRAM ADMINISTRATORS The Maryland Department of Legislative Services Public Meeting...... 1041 receives copies of all publications issued by State officers and MARYLAND COLLECTION AGENCY LICENSING BOARD agencies. The Department prepares and distributes, for a fee, a Public Meeting on Regulations...... 1041 GOVERNOR’S OFFICE OF CRIME CONTROL AND list of these publications under the title ‘‘Maryland PREVENTION Documents’’. This list is published monthly, and contains Public Meeting...... 1041 bibliographic information concerning regular and special Public Meeting...... 1041 reports, bulletins, serials, periodicals, catalogues, and a variety MARYLAND STATE BOARD OF EDUCATION of other State publications. ‘‘Maryland Documents’’ also Public Meeting...... 1041 includes local publications. ELEVATOR SAFETY REVIEW BOARD Anyone wishing to receive ‘‘Maryland Documents’’ Public Meeting...... 1041 should write to: Legislative Sales, Maryland Department of DEPARTMENT OF HEALTH AND MENTAL Legislative Services, 90 State Circle, Annapolis, MD 21401. HYGIENE/MARYLAND BOARD OF PHYSICIANS Public Meeting...... 1041 DEPARTMENT OF HEALTH AND MENTAL HYGIENE/ LABORATORIES ADMINISTRATION Public Meeting...... 1041

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 Contents 993

CLOSING DATES and ISSUE DATES through JANUARY 27, 2012 Emergency and Proposed Final Issue Regulations Regulations Notices, etc. Date 5:00 p.m. 10:30 a.m. 10:30 a.m. August 26 August 8 August 17 August 15 September 9** August 22 August 30 August 26 September 23** September 2 September 14 September 12 October 7 September 19 September 28 September 26 October 21** October 3 October 12 October 7 November 4 October 17 October 26 October 24 November 18** October 31 November 8 November 4 December 2** November 14 November 18 November 16 December 16 November 28 December 7 December 5 December 30 December 12 December 21 December 19 January 13** December 23 January 4 December 30 January 27 January 9 January 18 January 16

* Due date for documents containing 8 to 18 pages—48 hours before date shown Due date for documents exceeding 18 pages—1 week before date shown NOTE: ALL DOCUMENTS MUST BE SUBMITTED IN TIMES NEW ROMAN, 9-POINT, SINGLE-SPACED FORMAT. THE REVISED PAGE COUNTS REFLECT THIS FORMATTING REQUIREMENT. ** Note closing date changes The regular closing date for Proposals and Emergencies is Monday.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 994

Cumulative Table of COMAR Regulations Adopted, Amended, or Repealed This table, previously printed in the Maryland Register lists the regulations, by COMAR title, that have been adopted, amended, or repealed in the Maryland Register since the regulations were originally published or last supplemented in the Code of Maryland Regulations (COMAR). The table is no longer printed here but may be found on the Division of State Documents website at www.dsd.state.md.us. Table of Pending Proposals The table below lists proposed changes to COMAR regulations. The proposed changes are listed by their COMAR number, followed by a citation to that issue of the Maryland Register in which the proposal appeared. Errata pertaining to proposed regulations are listed, followed by “(err)”. Regulations referencing a document incorporated by reference are followed by “(ibr)”. None of the proposals listed in this table have been adopted. A list of adopted proposals appears in the Cumulative Table of COMAR Regulations Adopted, Amended, or Repealed.

03 COMPTROLLER OF THE TREASURY 09 DEPARTMENT OF LABOR, LICENSING, AND REGULATION 03.02.06.01—.04 • 37:3 Md. R. 181 (1-29-10) 03.06.01.44 • 38:13 Md. R. 758 (6-17-11) 09.03.13.01,.02 •38:14 Md. R. 793 (7-1-11) 09.10.01.49 • 38:17 Md. R. 1027 (8-12-11) 04 DEPARTMENT OF GENERAL SERVICES 09.12.28.01—.07 •38:14 Md. R. 794 (7-1-11) (ibr) 09.15.02.12 •37:23 Md. R. 1614 (11-5-10) 04.01.01.13 • 38:17 Md. R. 1017 (8-12-11) 09.16.01.05,.06 • 38:15 Md. R. 901 (7-15-11) 04.05.01.02 • 38:17 Md. R. 1017 (8-12-11) 09.19.07.01 • 38:17 Md. R. 1028 (8-12-11) 09.20.04.01,.02 • 37:4 Md. R. 346 (2-12-10) 05 DEPARTMENT OF HOUSING AND COMMUNITY 38:3 Md. R. 176 (1-28-11) DEVELOPMENT 09.22.01.10,.11 • 38:15 Md. R. 901 (7-15-11) 09.24.05.03 • 38:16 Md. R. 952 (7-29-11) 05.05.07.01—.31 • 37:20 Md. R. 1398 (09-24-10) 09.37.01.04,.06,.08,.11,.17,.18 • 38:16 Md. R. 954 (7-29-11)

07 DEPARTMENT OF HUMAN RESOURCES 10 DEPARTMENT OF HEALTH AND MENTAL HYGIENE

07.02.04.08 • 38:16 Md. R. 947 (7-29-11) Subtitles 01 — 08 (1st Volume) 07.02.13.04 • 38:13 Md. R. 759 (6-17-11)

07.03.05.10 • 38:16 Md. R. 948 (7-29-11) 10.01.04.01—.11 • 38:3 Md. R. 180 (1-28-11) 07.07.02.04,.05 • 38:17 Md. R. 1018 (8-12-11) 38:14 Md. R. 800 (7-1-11) 07.07.04.03 • 38:17 Md. R. 1019 (8-12-11) 10.07.05.01—.28 • 38:4 Md. R. 269 (2-11-11) 07.07.05.03,.04 • 38:17 Md. R. 1019 (8-12-11)

07.07.06.05,.06 • 38:17 Md. R. 1020 (8-12-11) Subtitle 09 (2nd Volume)

08 DEPARTMENT OF NATURAL RESOURCES 10.09.03.01,.03—.05,.05-1,.06,.07 • 38:16 Md. R. 955 (7-29-11)

10.09.04.01,.03 • 38:9 Md. R. 555 (4-22-11) 08.02.01.09 • 38:17 Md. R. 1020 (8-12-11) 10.09.07.08 • 38:17 Md. R. 1028 (8-12-11) 08.02.04.13 • 38:16 Md. R. 949 (7-29-11) 10.09.10.01,.03,.15 •38:14 Md. R. 802 (7-1-11) 08.02.04.15 • 38:16 Md. R. 950 (7-29-11) 10.09.10.07-1 • 38:15 Md. R. 902 (7-15-11) 08.02.08.05 • 38:17 Md. R. 1022 (8-12-11) 10.09.20.01,.04—.06 • 38:16 Md. R. 961 (7-29-11) 08.02.11.01—.05,.07—.09 • 38:17 Md. R. 1023 (8-12-11) 10.09.24.13 • 38:3 Md. R. 180 (1-28-11) 08.02.11.10,.11 • 38:17 Md. R. 1020 (8-12-11) 38:14 Md. R. 800 (7-1-11) 08.02.19.04,.08 • 38:17 Md. R. 1020 (8-12-11) 10.09.53.07 • 38:17 Md. R. 1029 (8-12-11) 08.03.03.01,.07,.08 • 38:16 Md. R. 951 (7-29-11) 10.09.54.33 • 38:17 Md. R. 1030 (8-12-11) 08.03.04.22 • 38:14 Md. R. 791 (7-1-11) 10.09.55.29 • 38:17 Md. R. 1031 (8-12-11) 08.03.14.03 • 38:15 Md. R. 900 (7-15-11) 10.09.56.22 • 38:17 Md. R. 1033 (8-12-11) 08.07.07.07,.08 • 38:17 Md. R. 1026 (8-12-11) 10.09.81.01—.07 • 37:20 Md. R. 1409 (09-24-10) 08.18.14.05 •38:14 Md. R. 792 (7-1-11)

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PENDING PROPOSALS 995 Subtitles 10 — 22 (3rd Volume) 14 INDEPENDENT AGENCIES

10.10.01.03 • 37:25 Md. R. 1745 (12-3-10) 14.01.10.13 • 38:17 Md. R. 1039 (8-12-11) 10.10.03.02 • 37:25 Md. R. 1745 (12-3-10) 14.01.13.02 • 38:13 Md. R. 762 (6-17-11) 10.10.06.02 • 37:25 Md. R. 1745 (12-3-10) 14.09.03.01,.04,.09 • 38:3 Md. R. 207 (1-28-11) 10.21.22.07 • 38:15 Md. R. 902 (7-15-11) 14.32.05.02 •37:1 Md. R. 33 (1-4-10) 37:15 Md. R. 1020 (7-16-10) Subtitles 23 — 36 (4th Volume) 15 DEPARTMENT OF AGRICULTURE 10.24.05.04 • 38:16 Md. R. 962 (7-29-11) 10.25.08.01—.06 • 38:16 Md. R. 962 (7-29-11) 15.15.01.01-2,.17 •38:14 Md. R. 817 (7-1-11) 10.25.16.01—.07 • 38:16 Md. R. 964 (7-29-11) 10.26.01.03 • 38:16 Md. R. 968 (7-29-11) 17 DEPARTMENT OF BUDGET AND MANAGEMENT 10.26.02.07 • 38:16 Md. R. 968 (7-29-11) 10.27.11.02,.04,.05 •37:21 Md. R. 1456 (10-8-10) 17.04.13.01,.03 • 38:16 Md. R. 973 (7-29-11) 10.27.12.03 • 38:16 Md. R. 968 (7-29-11) 10.32.03..01—.16 •38:14 Md. R. 803 (7-1-11) 20 PUBLIC SERVICE COMMISSION 10.34.03.01—.18 • 38:12 Md. R. 716 (6-3-11) 10.34.28.01,.02,.04—.12 • 36:25 Md. R. 1965 (12-4-09) 20.50.01.03,.05 • 38:5 Md. R. 332 (2-25-11) 10.34.28.01,.02,.04—.14 • 38:2 Md. R. 93 (1-14-11) 20.50.10.01—.08 • 38:5 Md. R. 332 (2-25-11) 10.34.35.01—.10 • 38:17 Md. R. 1034 (8-12-11) 22 STATE RETIREMENT AND PENSION SYSTEM Subtitles 37—59 (5th Volume) 22.01.14.01—.03 •38:14 Md. R. 818 (7-1-11) 10.37.07.01—.07 • 38:12 Md. R. 722 (6-3-11) 22.07.02.04 •38:14 Md. R. 819 (7-1-11) 10.41.03.06 • 38:11 Md. R. 674 (5-20-11) 10.44.21.01,.02,.04,.05,.10,.11 • 38:11 Md. R. 674 (5-20-11) 26 DEPARTMENT OF THE ENVIRONMENT 10.44.30.01—.05 •38:14 Md. R. 812 (7-1-11) 10.53.04.03 • 38:16 Md. R. 969 (7-29-11) Subtitles 08 — 12 (Part 2) 10.53.12.01 • 38:16 Md. R. 969 (7-29-11) 10.54.02.18 • 38:16 Md. R. 970 (7-29-11) 26.11.02.01 •38:14 Md. R. 821 (7-1-11) (err) 26.11.09.01,.02,.10 • 38:2 Md. R. 112 (1-14-11) 11 DEPARTMENT OF TRANSPORTATION 26.11.19.11 • 38:9 Md. R. 565 (4-22-11) 26.12.01.01 •38:14 Md. R. 820 (7-1-11) (ibr) 11.11.05.03 • 38:15 Md. R. 903 (7-15-11) 11.15.16.05 • 38:15 Md. R. 903 (7-15-11) Subtitles 13—18 (Part 3)

12 DEPARTMENT OF PUBLIC SAFETY AND 26.17.01.01 • 37:19 Md. R. 1329 (9-10-10) (err) CORRECTIONAL SERVICES 26.17.01.01—.11 • 37:18 Md. R. 1244 (8-27-10) (ibr) 26.17.01.09 • 37:19 Md. R. 1329 (9-10-10) (err) 12.02.28.01—.23 • 37:24 Md. R. 1674 (11-19-10) 12.04.01.02 • 38:9 Md. R. 556 (4-22-11) 29 MARYLAND STATE POLICE 12.10.01.04—.06,.08,.09,.14—.17, .19—.27 • 38:15 Md. R. 904 (7-15-11) 29.06.06.01—.07 • 36:20 Md. R. 1554 (9-25-09) 12.10.04.01—.31 • 38:15 Md. R. 904 (7-15-11) 12.10.05.01 • 38:15 Md. R. 904 (7-15-11) 30 MARYLAND INSTITUTE FOR EMERGENCY MEDICAL 12.10.06.01—.16 • 38:15 Md. R. 904 (7-15-11) SERVICES SYSTEMS (MIEMSS)

13A STATE BOARD OF EDUCATION 30.04.02.12 • 38:15 Md. R. 922 (7-15-11) 30.04.03.17 • 38:15 Md. R. 922 (7-15-11) 13A.01.02.05 •38:14 Md. R. 814 (7-1-11) 30.04.04.15 • 38:15 Md. R. 922 (7-15-11) 13A.06.01.01—.03 • 38:12 Md. R. 723 (6-3-11) 30.08.02.03,.04,.07,.10 • 38:15 Md. R. 922 (7-15-11) 13A.06.02.01—.05 • 38:16 Md. R. 971 (7-29-11) 30.08.17.01—.19 • 38:15 Md. R. 924 (7-15-11) 13A.07.04.01.,01-1,.05,.06 •37:16 Md. R. 1082 (7-30-10) (ibr) 13A.12.02.27 •38:14 Md. R. 815 (7-1-11) 31 MARYLAND INSURANCE ADMINISTRATION 13A.12.03.02,.03,.11 • 38:17 Md. R. 1038 (8-12-11) 31.04.17.13 • 38:15 Md. R. 929 (7-15-11) 13B MARYLAND HIGHER EDUCATION COMMISSION 31.10.41.01—.07 • 38:12 Md. R. 730 (6-3-11) 31.12.08.04 • 38:17 Md. R. 1039 (8-12-11) 13B.02.01.04,.05,.07,.08 •38:14 Md. R. 815 (7-1-11) 13B.02.02.04,.06 •38:14 Md. R. 815 (7-1-11) 34 DEPARTMENT OF PLANNING 13B.02.03.02-1 •38:14 Md. R. 815 (7-1-11) 13B.02.04.03 •38:14 Md. R. 815 (7-1-11) 34.05.01.01—.04 • 38:6 Md. R. 401 (3-11-11)

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 996 Open Meetings Compliance Board

OPINIONS OPINIONS (Revised) April 21, 2011 April 21, 2011 Complaint: Complainant: Dr. Douglas E. Edwards Craig O’Donnell Respondent: Kent County News Prince George’s County Council Respondent: Maryland Transportation Authority The Open Meetings Compliance Board has considered the complaint of Dr. Douglas E. Edwards (“Complainant”) that the The Open Meetings Compliance Board has considered the Prince George’s County Council (“Council”) violated the Open complaint of Craig O’Donnell “Complainant”) that the Maryland Meetings Act (the “Act”) and other laws on December 7, 2010 with Transportation Authority (“Authority”) violated the Open Meetings respect to its decision in a closed session that Council Member Leslie Act (“Act”) by omitting from its minutes of an open session a E. Johnson would not be appointed to any committees. We have also description of the topics discussed in a prior closed session. considered the Council’s response and exhibits. The Authority agrees with Complainant: the minutes of its January For the reasons stated below, we conclude that the Council did 27, 2011 open meeting did not state the topics that were discussed in not violate the Act. We lack the authority to address the allegations the closed meeting held that day.1 The open session minutes state that the Council violated other laws. merely that “the members unanimously voted to move into Closed Session pursuant to Section 10-508(a)(12) of the State Government I Article ... to discuss an investigative proceeding on actual or possible Facts and Contentions criminal conduct.” Section 10-509(c)(2) of the State Government Article (“SG”) requires public bodies which have met in closed On December 7, 2010, the Prince George’s County Council met session to include in the minutes for their next open session “a listing to elect its officers and discuss committee assignments for the 2011 of the topics of discussion, persons present, and each action taken legislative year. Under the Council’s Rules of Procedure (“Council during the session.” We have “repeatedly noted that the mere Rules”), the Council elects its officers, while the Council committees parroting of the statutory exception is not acceptable.” 4 OMCB “shall be appointed by the Chairman upon the advice and consent of a Opinions 38, 41 (2004). The Authority thus violated the Act by majority of the full Council.” The Council elected its Chair and Vice omitting from its minutes the content required by §10-509(c)(2), and Chair in open session. It then unanimously approved a written it has since corrected them. “Motion for a closed session.” The motion states that the purpose of The Authority states that its omission (and hence violation of the the closed meeting was “To discuss personnel issues in accordance Act) was inadvertent and that it posted its closing statement on its with Section 10-508(a)(1)State Government [“SG”] Article, and to website. The closing statement provisions of the Act appear in SG consult with legal counsel in accordance with Section 10-508 (a)(7) §10-508 and are distinct from the minutes provisions set forth in SG ..., Annotated Code of Maryland.” The “Topics to be discussed” §10-509. See 3 OMCB Opinions 173, 178 (2002)(explaining the were “To discuss specific committee assignments for the upcoming Act’s “three distinct public disclosure mandates in connection [with] legislative year and to consult with legal counsel to receive advice on a closed meeting”). The topic description in the January 27, 2011 the scope of councilmanic authority within County and State law.” closing statement goes well beyond “mere boilerplate” and thus The open-session minutes of the December 7 meeting reflect complies with SG §10-508(d)(2). It reads: counsel’s presence at the closed session and describe the matters The meeting will be closed under [SG §10- addressed there: 508(a)(12)] to permit the MDTA Chief Police Discussion of specific committee assignments for officer to discuss an ongoing criminal the upcoming legislative year; Counsel provided investigation resulting from package incidents at legal advice on the scope of councilmanic the Maryland Department of Transportation authority within County and State law. headquarters and other locations. Discussion of scope of councilmanic authority to We find that while the Authority’s closing statement complied make appointments. Discussion of Committee with the Act, its minutes did not. assignments for Council Member Johnson. Approved the following assignments: Council OPEN MEETINGS COMPLIANCE BOARD Member Johnson will have no Committee Elizabeth L. Nilson, Esquire assignments; the full Council to take a more Courtney J. McKeldin active role in District six development projects Julio A. Morales, Esquire and throughout the County; Council Member [11-17-26] Johnson will not represent the Council to any external bodies. We have reviewed the minutes of the closed session. They do not suggest that the Council discussed or acted on other matters. The Council issued a press release later on the day of the meeting. The press release announced the committee assignments made that day and reported on statements made by the Chair during a press conference after the Council session. According to the press release, the Chair “said the Council had reached a decision on the role 1 This opinion replaces an earlier opinion, in which we mistook the Council Member Leslie Johnson (D) – District 6, will have in concession made by the Authority. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 997 legislative year 2011.” As quoted in the press release, the Chair session fell within the claimed exceptions for personnel matters and further stated: legal advice. While Mrs. Johnson is under federal charges the SG §10-508(a) lists fourteen topics of discussion that a public Council is proceeding with an abundance of body may discuss in closed session. The first such topic claimed by caution by taking the following measures to the Council was the “personnel matters” exception. Under that ensure the effectiveness of this body and to avoid exception, a public body may meet in closed session to discuss: any appearance of impropriety. Mrs. Johnson will (i) the appointment, employment, have no committee assignments; the full Council assignment, promotion, discipline, demotion, will take a more active role in development compensation, removal, resignation, or projects in District 6 and throughout all of Prince performance evaluation of appointees, George’s County; and she will not officially employees, or officials over whom it has represent the County Council to any external jurisdiction; or bodies. (ii) any other personnel matter that affects 1 or The press release also reported the Council’s election of officers. more specific individuals. Complainant asserts that the Council “failed to provide accurate SG §10-508(a)(1). information to the general public on the specific nature and purpose The Council also claimed the “legal advice” exception, which for the closed meeting,” that the Council’s “actions were not sealed permits a public body to “consult with counsel to obtain legal as required, but disclosed during a press conference,” that “the advice.” SG §10-508(7). information provided in the press release is not consistent with the The Act does not permit us to interpret the exceptions broadly. SG stated purpose for the meeting...,” and that the “action taken during §10-508(b) provides that a public body that meets in closed session to the [closed session] should be declared invalid.” Complainant discuss an excepted topic “may not discuss or act on any matter” not additionally contends that the Council’s action “prevents Mrs. permitted by the exception it claimed. Further, SG §10-508(c) Johnson from representing the residents of district 6” in violation of requires us to construe the exceptions “strictly” and “in favor of open the County Charter. Complainant’s attachments show that he has meetings....” Accordingly, the personnel exception permits closed- communicated to the Council his concern that Council Member session discussions concerning specifically-identifiable individuals, Johnson’s inability to serve on committees will have a negative but not to permit policy deliberations pertaining to an entire class. impact on the district. See, e.g., 4 OMCB Opinions 38,40 (2004) (finding that the exception The Council responds that the “discussion of committee permitted a closed-session discussion about five individuals’ assignments for Council Member Johnson [fell] squarely salaries). Similarly, a public body “may not use the ‘legal advice’ within...Section 10-508(a)(1) of the Act,” that the Act does not exception as a mask for policy deliberations.” 1 OMCB Opinions prohibit the public disclosure of actions taken in a closed session, and 145, 149 (1995). that this Board lacks the authority to address the alleged violations of To apply these principles to Complainant’s allegations, we have the County Charter. 2 examined the closed-session minutes to determine whether the Council’s actions with respect to Council Member Johnson could be II deemed “policy deliberations” applicable to a broad class, as opposed Discussion to the discussion of the “appointment” of “appointees ... over whom it has jurisdiction.” SG §10-508(a)(1). The minutes do not reflect We begin with the allegation that the Council’s motion to close policy deliberations. For instance, the Council did not address (“closing statement”) did not accurately disclose “the specific nature possible changes to its Rules of Procedure, which govern committee and purpose” of the closed session. That allegation raises the issues appointments and Council members’ duties. We also examined the of whether the closing statement was sufficiently detailed, whether it Rules of Procedure, in their entirety, to discern whether the Council’s was accurate, and whether the discussion fell within the exceptions various actions with respect to Council Member Johnson could be claimed. deemed a de facto amendment of those Rules. Again, we do not find With respect to the level of detail in the closing statement, a that the discussions strayed into policy matters. It appears that the public body need not disclose the names of the individuals to be Council properly confined its closed meeting to its attorney’s advice discussed in a session closed under the exception for personnel on councilmanic authority with respect to committee appointments matters. See, e.g., 6 OMCB Opinions 127,136 (2009). With respect to and other matters and to its own discussion and action on matters accuracy, it is apparent from our review of the closed-session minutes pertaining to the appointment of a specific individual to committees that the Council’s description of the “topics to be discussed” turned subject to the Council’s governance3. We turn to whether the Council out to be correct. Thus, the closing statement was sufficient under the violated the Act by disclosing its closed-session actions to the public. Act. We proceed to whether the matters discussed during the closed Two provisions of the Act govern a public body’s disclosure of matters discussed in closed session. First, SG §10-509(c)(2) requires the public body to include various items in its minutes for the next open session, including “a listing of the topics of discussion, persons 2 The Council does not claim that it was merely performing an present, and each action taken during the session.” The Council’s “administrative function” excluded from most provisions of the Act when it public disclosure of its actions did not violate this section. Second, discussed committee assignments. However, we note that we have explained SG §10-509(c)(4) requires a public body to keep the minutes of a that the “process by which a public body itself makes an appointment, as distinct from the process of considering the confirmation of an appointment by someone else, constitutes an [administrative] function.” 3 OMCB Opinions 3 The Council’s decision on which Council members would 182, 186, n.7 (2002). Thus, in 1 OMCB Opinions 252 (1997), we concluded communicate to other entities on the Council’s behalf falls into the that a mayor and town council were performing an administrative function administrative exclusion, which applies to a public body’s internal when they filled a vacancy on the council, because they were merely “housekeeping” matters. Cf. 1 OMCB Opinions 233, 236 (1997) (applying the administering their own regulations. Here, if the Council was simply exclusion to the members’ discussion of procedures governing their public performing its role under its rules of providing “advice” to the Chair on expression of private views because it involved their “internal operating committee appointments, it was likely performing an administrative function. methods” concerning the body’s responsibility to express the town’s The closed minutes are not clear on this point. positions). MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 998 closed session sealed and not “open to public inspection” unless the I public body votes otherwise or other events, not relevant here, occur. The “Drayton Manor” Issue The Council did not produce its closed-session minutes at the press conference and did not violate this provision. The Commissioners held a closed session on November 17, 2009, Finally, we turn to the allegations that the Council’s various to hear from the County Attorney concerning ongoing litigation. To actions with regard to Council Member Johnson should be declared do so, they invoked the exceptions relating to legal advice and invalid as violative of both the Act and the County Charter. We lack litigation to close the meeting. As crystallized at the informal the authority to either grant such redress or address alleged violations conference, Complainant’s argument is that subsequent events of laws other than the Act itself. While our duties include issuing demonstrate that the discussion exceeded the scope of either opinions as to whether a violation of the Act has occurred, SG §10- exception. 502.4, the enforcement of the Act through injunctive or other relief lies with the appropriate circuit court. SG §10-510. No provision of A. Background the Act authorizes us to examine whether a public body has violated 1. Drayton Manor Litigation other laws. In 1999, Kent County adopted a Growth Allocation Policy that III governs development decisions in parts of the County in the Conclusion Chesapeake Bay Critical Area. In 2003, a developer filed an application to reclassify a site known as the Drayton Manor property We conclude that the Prince George’s County Council did not in order to develop a resort and conference center at that site. In violate the Open Meetings Act with respect to the closed session it 2007, the Commissioners granted a growth allocation to the held on December 7, 2010. developer pursuant to the Growth Allocation Policy. The decision was then forwarded to the Critical Areas Commission for its review OPEN MEETINGS COMPLIANCE BOARD as required under State law. The Critical Areas Commission Elizabeth L. Nilson, Esquire approved the Commissioners’ decision. Courtney J. McKeldin Opponents of the development filed actions challenging the Julio A. Morales, Esquire approvals in the circuit courts for Kent County and Anne Arundel [11-17-27] County. The County prevailed in the Kent County action and the Court of Special Appeals dismissed an appeal of that decision. At the time of the November 17, 2009 meeting, the opponents were seeking OPINIONS a writ of certiorari in the Court of Appeals4. The issue on which the April 25, 2011 opponents sought further review was a procedural question Complainant: concerning the appropriate time for appealing a growth allocation Craig O’Donnell decision by the Commissioners – i.e., whether the Commissioners’ decision itself or the subsequent Critical Areas Commission approval Respondent: triggered the appeal period under the Growth Allocation Policy. Kent County Commissioners Subsequent to the meeting, the Court of Appeals granted certiorari

The Open Meetings Compliance Board has consolidated and and heard arguments; it currently has the case under advisement. considered the three complaints of Craig O’Donnell (“Complainant”) of the Kent County News that the Board of County Commissioners of 2. Closed Session Kent County(“Commissioners”) violated the Open Meetings Act with According to the response to the complaint, the meeting notice for respect to meetings in 2009 and 2010. Some allegations were the November 17, 2009, meeting indicated that part of the meeting resolved in an informal conference our counsel held with the would be closed for the Commissioners to discuss the Drayton Manor Complainant, the County Administrator, and the County’s Economic litigation with the County Attorney. The closing statement for that and Tourism Development Director. See §10-502.5(e) of the State session similarly referenced that litigation, cited the Act’s exceptions Government Article (“SG”). We now address the remaining issues, for legal advice and discussion of litigation, and stated that the which we summarize as follows: meeting was closed to protect the “confidentiality of information (1) Did the discussion during a closed session covered by attorney-client privilege.” The open minutes adopted at on November 17, 2009 concerning pending the next meeting of the Commissioners summarized the actions taken litigation exceed the basis for closing the during the closed session as follows: meeting? In closed session, the Commissioners requested (2) Did the Commissioners exceed the scope of that [the County Attorney] prepare an amendment the exception they claimed for closing various for the Growth Allocation Policy for their sessions to discuss selling County land to the consideration and the Commissioners decided not Fairweather Team, Inc., a solar utility company to file a response to the Petition of Certiorari that which proposed to locate in the County? is pending in the Court of Appeals as it relates to (3) Did the Commissioners exceed the scope of the Drayton Manor growth allocation case. the exception they claimed for closing various We have reviewed the minutes of the closed session submitted by the sessions to discuss the proposal of the company County. Without revealing the precise substance of those minutes, we known as “Firefly” to locate in the County? can confirm that they are consistent with the closing statement and (4) Did the Commissioners violate the Act when open minutes – that is, the County Attorney provided a report on the they reconvened a closed session which they had status of the litigation, the County Attorney offered legal advice as to temporarily recessed earlier the same day without steps the Commissioners could take in relation to that litigation, and voting again on whether to convene in closed the Commissioners in response made the decisions reported in the session? 4 The Anne Arundel County case was subsequently transferred to the Circuit Court for Kent County, where it was dismissed. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 999 open minutes.5 not be used as a pretext for engaging in closed discussions As indicated in the minutes, one of the decisions made by the concerning an underlying policy issue that, though related to the Commissioners in the closed session was to ask the County Attorney litigation, can reasonably discussed separately. See 1 OMCB to draft an amendment to the County’s Growth Allocation Policy. Opinions 56, 60-61 (1994) (while city council could discuss in closed The County Attorney prepared an amendment, which the session possible ways to avert a lawsuit related to alleged zoning Commissioners subsequently adopted at their December 1, 2009, violation by a day care center, discussion of alternative locations for meeting. According to the response, the purpose of the amendment day care center should have occurred separately in open session). was described at the December 1 meeting during the public session. The line is not always easy to draw. In a matter involving a As stated by the County Attorney and reflected in the resolution proposed ordinance that was the subject of pending litigation, we itself, the amendment was “for clarification purposes only” and was concluded that a city council could discuss legislative findings intended to be consistent with the construction of the appeal critical to the defense of the ordinance in closed session. “That an provision that had been adopted by the Court of Special Appeals in option involves changes in the law does not negate the exception, so dismissing the Drayton Manor case. Apparently, there was a hope long as the subject of the discussion remains the litigation, rather than that the amendment might render moot any further consideration of the policy issues in and of themselves, separate from the litigation.” the case by the Court of Appeals.6 3 OMCB Opinions 61, 65 (2000). But we also noted in that case that the policy debate concerning the legislative findings occurred in the B. Analysis open session that immediately followed the closed session. Id. 1. Contentions We find little to quibble with in the procedures the Commissioners The Complainant does not dispute that the open minutes recite the followed or the documentation they created in connection with the actions taken by the Commissioners in closed session. Rather, he November 17, 2009 meeting. The prospective closure of the meeting complains that the actions taken by the Commissioners in the closed was announced in advance of the meeting, the closing statement session – in particular, the decision to consider an amendment of the accurately described the reasons for closing the meeting and cited the Growth Allocation Policy – were not publicly known until the appropriate legal authority, and the discussion reported in the closed meeting at which the Commissioners adopted the amendment. minutes was almost entirely within the two exceptions cited in the Because of the intervening Thanksgiving holiday, the open minutes closing statement. It was certainly within the scope of those were not publicly available for the two weeks following the exceptions for the Commissioners to hear about the litigation, hear November 17, 2009, meeting during which Complainant assumed their attorney’s advice, and ask any questions they had about the that the closed session had involved only an update on the status of implications of that advice. the litigation. Moreover, the Complainant believes that any We take issue with just one aspect of the closed session. The discussion of the Growth Allocation Policy or its amendment should Commissioners’ decision to direct the County Attorney to draft an have taken place in open session. amendment to the Growth Allocation, though it may have resulted The County Attorney argues that the Commissioners meticulously from the County Attorney’s advice, was not itself a request for legal followed the Act’s procedures in closing the session, that the advice covered by the attorney-client privilege. While this legislative discussion was squarely within the exceptions for legal advice and action was perhaps inspired by the Drayton Manor litigation, it was consultation about litigation, and that the amendment of the Growth not directly part of that litigation. Rather, it was an amendment of a Allocation Policy involved procedure, not the substance of the policy, plan the County is required to maintain by State law. Thus, at the and, in any event, did not effect any change in public policy. very least, that decision should have been announced when the 2. Discussion Commissioners returned to their open session. The consideration, adoption, or amendment of a policy such as the The Compliance Board considered an analogous situation in 1 Growth Allocation Policy is, in the taxonomy of the Open Meetings OMCB Opinions 145 (1995). There, a city council held a series of Act, a “legislative function.” §10-502(f)(1) (“approving, closed sessions to receive legal advice concerning the First disapproving, enacting, amending, or repealing a law or other Amendment implications of an ordinance governing solicitation and measure to set public policy”). When a public body is engaged in a peddling. While the Compliance Board accepted the city attorney’s legislative function, it must ordinarily meet in open session. §10-505. representation that the meetings did not involve any discussion by This requirement covers “every step” of the legislative process. City council members concerning the merits of such a policy, nevertheless of New Carrollton v. Rogers, 287 Md. 56, 72, 410 A.2d 1070 (1980). we concluded that the council’s direction to the city attorney to draft There are several exceptions to this requirement, including those for an ordinance should have occurred in open session. “This decision consultations with counsel to receive legal advice (§10-508(a)(7)) was a key component of the legislative process ....” Id. at 150. This and for consultations with staff and other individuals about pending legislative process would have a broader effect than the resolution of or potential litigation (§10-508(a)(8)). The exceptions are to be particular litigation. Compare 1 OMCB Opinions 201 (1997) (board strictly construed. §10-508(c). of zoning appeals could have properly closed session concerning its The legal advice and litigation exceptions may be invoked when a implementation of circuit court decision reversing its prior decision). public body wishes to receive confidential advice concerning the It is true that the amendment did not affect the substantive aspects resolution of litigation, and they can even encompass execution of a of the Growth Allocation Policy, but rather concerned the procedures settlement agreement or consent decree. 7 OMCB Opinions 36 by which a person may challenge decisions made under the (2010). In some cases, the policy discussion may be so interrelated substantive policy. However, that does not mean that the creation, with litigation strategy that discussion of those considerations may alteration, or clarification of appeals rules is not itself a matter of legitimately occur in closed session. But the litigation exception may public policy. The Open Meetings Act itself contemplates that the creation of procedural rules may come within the Act. See §10- 5 The initial version of the open minutes incorrectly identified the 502(h)(3)(vi) (excluding courts from the definition of “public body” court in which the petition for certiorari was pending – an error that was later except when the court is exercising rulemaking power). The Court of corrected in both the closed and open minutes. Appeals and its Rules Committee both consider changes in 6 Given that the Court of Appeals accepted the case and procedural rules in open sessions. presumably will decide whether the opponents filed a timely appeal, the By contrast, the Commissioners’ decision not to file a response to question whether the amendment clarified or changed the Policy’s appeal the petition for certiorari need not have occurred in open session. The procedure may ultimately depend on the decision of that Court. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1000 decision whether or not to file a responsive pleading in litigation will negotiations concerning property”; under “Topics to be discussed,” it generally not involve the formulation of policy. In 4 OMCB Opinions states, “Business’ proposal to locate in Worton Industrial Park.” The 67, 72 (2004), we held that a county council’s decision in closed open minutes identify the non-Commissioner attendees; they session to agree to dismiss a lawsuit challenging its prior actions did included Mr. Hoon, who is a private lawyer, and his client, Mr. not violate the Act, as it fell within the administrative function Fairweather, as well as a realtor, the County Attorney, and four exclusion. However, “[h]ad the Council engaged in any negotiations County employees, including the County’s Director of Planning. The that would have required it to revisit its prior policy decisions, or minutes further state: “Topics of discussion related to a business otherwise engaged in any stage of policy formation, the Council’s proposal to locate in the Worton Industrial Park.” The minutes also action would not have fallen within the scope of the [administrative] report various “Planning” topics discussed in the open meeting; none function exclusion.” Id. involved proposed uses in the Industrial District. At 9:10 a.m., the Commissioners “temporarily adjourned” their C. Summary closed meeting “to reconvene later in the morning,” and they did so The Commissioners provided advance notice of their closed at 10:47. The minutes of the open session additionally report: session on November 17, 2009, followed the appropriate procedures In closed session, the Commissioners approved for closing part of their meeting, and adequately documented the for [the County Attorney] to move forward to closed session. The discussion during the closed session was almost negotiate modifications to the proposed purchase entirely within the claimed exceptions from the open meetings options agreement as presented by Mr. Fairchild requirement. However, the Commissioners’ direction to the County [sic] regarding his proposed purchase of one or Attorney to prepare an amendment to a procedural provision of the more lots located in the Worton Industrial Park. Growth Allocation Policy should have been part of the open session. The Commissioners have provided the closed minutes to us, and we shall describe them only to the extent that the County has II divulged their contents in its response. The many topics discussed The “Fairweather” Issue during the closed session included the need for a zoning text A. Facts and Contentions amendment to allow Mr. Fairweather’s proposed use of the property Complainant alleges that the Commissioners violated the Act by for a solar-energy utility, the timing of such an amendment, and a discussing in closed meetings matters which did not fall within the report by the Director of Planning on the Task Force’s plans to exception they cited in their closing statements. Specifically, address amendments to the Land Use Ordinance. The minutes do not Complainant alleges that the Commissioners violated the Act by reflect that any Commissioner spoke on these topics. “negotiating and approving a contract [and] discussing zoning... and On June 4, 2010, the Task Force met and agreed on the following legislation” in four sessions they had closed under SG §10-508(a)(4), “Action item”: “Solar energy systems should be permitted in the which permits closed-session consideration of matters concerning a Industrial District....Staff to provide draft permitted use language for business’s proposal to “locate, expand, or remain in the State....” The utility scale solar power in the Industrial District.” The meeting business in question was Fairweather Team, Inc., (“Fairweather”), summary does not reflect discussion on why the Task Force changed which proposed to buy County land and operate a solar utility there. its recommendation from allowing the use by special exception to The Commissioners respond that while they received information permitting it as of right. about Fairweather’s request for a zoning text amendment in closed On June 15, 2010, the Commissioners again voted to close a session, they did not discuss the proposed legislation in closed portion of their regular meeting to discuss “the proposal for a session, and that, in any event, the County’s Renewable Energy Task business to locate in Kent County.” The presiding officer indicated Force had already been created to study such legislation. on the closing statement that the topic to be discussed was “Proposal These contentions require us to review the history of the by business to locate in Worton Industrial Park,” and that the reason Commissioners’ passage of a text amendment to the County Land for closing was “Confidentiality of business’ proprietary information Use Ordinance. The Commissioners have provided us with their and protection of purchase price negotiations.” The summary of the minutes and those of two other entities, the County’s Renewable closed session contained in the open minutes states that the Energy Task Force (“Task Force”) and Planning Commission. Commissioners “approved for [the Town Attorney] to move forward Neither entity is a party to this matter. with negotiating contract submitted for the purchase of lots located in On May 21, 2010, the Task Force met for the first time to consider the Worton Industrial Park.” The closed minutes reflect the County solar energy uses in the County7. According to its meeting Attorney’s discussion of a revised contract and various requests by summaries, the Task Force agreed that “Utility scale solar should be the business, including an August deadline for passage of “the permitted with standards (special exception)” and that “Staff [are] to Zoning Text Amendment.” The County Attorney reported that the provide special exception language for utility scale solar power in the Director of Planning had commented that a November deadline was Industrial District.” The Task Force recommendation thus was that more feasible. The open meeting minutes do not disclose that utility scale solar uses be allowed by special exception, rather than as discussion of the zoning text amendment, and it apparently was not of right in the 1,100-acre Industrial District. discussed during the open discussion of planning issues. Four days later, on May 25, 2010, the Commissioners met in an On June 18, 2010, the Task Force met and agreed on “language open meeting and then, at 8:37 a.m., voted “[t]o go into closed for solar energy systems in the Industrial District.” session to consider a preliminary matter that concerns the proposal On June 22, 2010, the Commissioners met for a third time in for a business or industrial organization to locate, expand or remain closed session to discuss the Fairweather proposal. The closing in the State in accordance with [§] 10.508(a)(4) [of the Act].” The statement cited the same exception, reasons, and topics as those listed closing statement also cites that provision (“the business location on the June 15 closing statement. The proposed zoning text exception”). Under “Reason for Closing,” the closing statement amendment was not discussed in either the open or the closed states, “Confidentiality of business proprietary information and meeting. The minutes of both sessions reflect the Commissioners’ authorization to the County Attorney “to continue to negotiate an

7 agreement for the purchase of lots located in the Worton Industrial We have received no allegations that the Task Force violated the Park.” Act, and we do not know whether it was a public body. In any event, it On July 1, the Kent County Planning Commission met to address appears that at least some of the Task Force meetings were open to the public. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1001 various items, including the Task Force’s recommendation that the manufacturing facility on the properties. Land Use Ordinance be amended to permit utility-scale solar and Commissioner Crow advised that the agreement small-scale accessory solar uses in the Industrial and Employment signed with Fairweather Team, Inc. is Districts. Mr. Hoon testified that he had a client who wished to put a conditioned on use of the property for a solar solar manufacturing plant in Kent County, and Mr. Fairweather energy facility, and the property cannot be sold testified that he “was very interested in solar energy “ and “want[ed] and used for other purposes without the to build a large scale manufacturing plant.” The Commission voted Commissioners’ approval. to recommend the Task Force’s language on utility-scale solar uses. The Commissioners made the July 20 contract available to the public On July 8, 2010, the Commissioners published a notice of a public on July 27. hearing, to be held on July 27, 2010, regarding Code Home Rule Bill On August 3, 2010, the Commissioners’ business included a # 2-2010, “which is an act to amend Article V, Sections 14.2 “Code Home Rule Zoning Text Amendment,” as follows: (Employment Center - Permitted Uses and Structures), 15.2 Third reading was held today on Code Home (Industrial - Permitted Uses and Structures) and Article XI, Section 2 Rule Bill Number 2-2010, which is An Act to (Definitions) of the Kent County Land Use Ordinance to add new amend Article V, Sections 14.2 (Employment provisions for utility scale solar energy systems.” Center - Permitted Uses and Structures), 15.2 On July 20, 2010, a week before its public hearing on Bill #2- (Industrial - Permitted Uses and Structures) and 2010, the Board met in its fourth closed session to discuss the Article XI, Section 2 (Definitions) of the Kent Fairweather proposal. The Board again cited the “confidentiality of County Land Use Ordinance to add new business’ proprietary information.” The closed minutes state that the provisions for utility scale solar energy systems. Commissioners signed a contract with Fairweather in the closed Ballots were distributed to Commissioner Fithian session. The open minutes state that the Commissioners “resolved and Commissioner Pickrum for voting. questions concerning State grant funding[,] imposed conditions on Commissioner Crow was absent. Upon their the sale of lots in Worton Industrial Park, and reached an agreement return, both ballots were marked favorable and with Fairweather Team, Inc. for the sale of Lot 2 and purchase the bill was adopted and signed by the Board. options for Lots 3 and 4.” The effective date of this bill will be September The contract the Commissioners signed on July 20 specifies this 17, 2010. “Condition Precedent”: The minutes of the August 3 meeting do not reflect deliberations on B. The “Zoning Requirement:” the zoning text amendment. (i) There is some uncertainty about whether Buyer’s Intended Use is authorized by the Kent B. Discussion County Land Use Ordinance ... as a permitted use The “business location” exception permits a public entity to close in the LI-Light Industrial zoning district in which a meeting to “consider a matter that concerns the proposal for a the Business Park is located; business or industrial organization to locate, expand, or remain in the (ii) As soon as possible after the date hereof, State....” §10-508(a)(4) of the State Government (“SG”) Article. We Seller will introduce a zoning text amendment to have applied it six times. Each of those opinions is instructive on clarify and assure that uses like Buyer’s Intended whether the discussion of a text amendment in a closed session Use are permitted in the Business Park and other exceeds the scope of the exception. properties in the LI-Light Industrial District (“the In the first opinion, 1 OMCB Opinions 28, 29 (1993), we Zoning Text Amendment”). In the event that the considered allegations that a board of town commissioners Zoning Text Amendment is not enacted by improperly invoked the exception to discuss a proposal that would November 15, 2010, (the “the Zoning Text require an amendment of an annexation agreement between the town Amendment Contingency Date”), the Deposit and the seller of the affected property. We found that the discussion shall be returned to Buyer and this Agreement was properly limited to a discussion of the proposal. Id. at 29. We shall be null and void thereafter. further noted that “the materials supplied by the board reflect an At 9:30 a.m. on July 27, 2010, the Commissioners conducted a understanding by the board that the exception would not be properly public hearing on Bill # 2-2010. The minutes of that public hearing invoked when the matter involved not a discussion of the proposal ... contain the text of the bill, which added “Solar Energy Systems, but rather consideration of a possible amendment to an annexation Utility Scale” to the “Employment Center Permitted Uses” and resolution.” Id. We also described the evolution and purpose of the “Industrial Permitted Uses” sections of the Land Use Ordinance. The exception: Planning Commission’s recommendation that the bill be approved The exception ...reflects a rare instance in which was introduced. The County’s Director of Planning also addressed the 1991 amendments [to the Act] broadened the the amendment. She stated that it was the “first in a series of potential scope of an exception that had been in the amendments concerning alternative energy sources.” According to original Act. Under its former wording, §10- the minutes, the contract with Fairweather was not mentioned. 508(a)(4) authorized a public body to meet in The Commissioners also held a regular meeting on July 27, closed session to “consider a preliminary matter 20108. The minutes state: that concerns the proposal for a business or Commissioner Crow advised that the County industrial organization in the State.” In 1991 the reached an agreement and entered into a contract Legislature deleted the modifier “preliminary” on July 20 with Fairweather Team, Inc. for the and authorized the exception not only for sale of Lot 2 of the Worton Industrial Park and proposals by a business or industrial organization purchase options on Lots 3 and 4. Fairweather [to] locate in the State but also to “expand” or to Team, Inc. plans to place a solar energy “remain” in the State. This wording evidently reflects the Legislature’s

8 understanding that some businesses might be It is not clear from the minutes of the regular meeting whether the deterred from making proposals about relocation, public hearing preceded that meeting. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1002 expansion, or retention of an existing facility if 5 OMCB Opinions 86,90 (2006) (footnote omitted). all such discussions were open to public view. Then, in 2009, a complainant alleged that the Kent County Id. Commissioners improperly invoked the exception to conduct a closed In 2 OMCB Opinions 56 (1999), we applied the SG §10-508 (c) meeting regarding a proposal to locate a rubblefill in the County. 6 mandate that the exceptions be “strictly construed in favor of open OMCB Opinions 192 (2009). We reviewed the closed minutes, noted meetings of public bodies,” and we construed the “business location” that they provided “significant detail in terms of the respective roles exception not to include proposals by other public bodies. In 2 of the business and the County,” commented on our inability to OMCB Opinions 80 (1999), where the public body had not invoked disclose the details of the discussion, and concluded that the the exception, we applied it hypothetically: “[I]f the overall “discussion did not transcend the exception....” We explained: discussion concerned a business’ possible relocation to a site in While the Act requires that the exception be Hyattsville under circumstances in which the business insisted on the construed narrowly, that does not mean that the need for confidentiality, §10-508(a)(4) authorized discussion in County Commissioners could not address any closed session.” Id. at 82. collateral matters – matters that the We then began to extend the exception to certain matters collateral Commissioners would be expected to address in to a business location proposal. In 2006, in a matter involving the evaluating a business proposal. While the scope same Complainant and public body as in this matter, we addressed of discussions was indeed broad, it is unrealistic allegations involving a business proposal to relocate in the Worton to expect that the matters discussed could have Industrial Park. 5 OMCB Opinions 72 (2006). There, Complainant been practically separated and discussed outside asserted that the exception did not apply to discussions about the sale of the context of the specific business proposal. of County land. The Commissioners responded that the County had Id. at 194. sub-divided the industrial park into lots in order to sell them to In none of these opinions did we state that the business location businesses seeking to relocate and that any relocation proposal exception could shield decisions and deliberations on pending necessarily involved discussions about the purchase of the lots. Id. at legislation from public view. Nonetheless, in retrospect, we fear we 74. After reviewing the closed-session minutes, we agreed with the worded our 2009 advice to the Commissioners so broadly as to Commissioners and explained that various topics of such a discussion suggest that we are now reading the exception more expansively than could fall within the scope of the exception: we did in 1993. See 1 OMCB Opinions 29 (implicitly approving the A closed-session discussion is permitted about a public body’s understanding that amending an annexation resolution, business proposal “to locate, expand, or remain in even where allegedly integral to the proposal under discussion, was a the State.” Such a proposal could involve a host matter for open session). Specifically, the Commissioners may have of considerations, including the sale or other taken our application of the exception to “collateral matters... that the transfer of government land. Obviously, Commissioners would be expected to address in evaluating a businesses that are considering relocation or business proposal” to allow substantial closed-meeting deliberations expansion will be concerned about the site, on legislation. 6 OMCB Opinions 192. We take this occasion to including acquisition costs. From the perspective correct any such reading of that opinion and to reaffirm the limits we of a public body, the land that it owns might be have placed on the scope of discussions under the exceptions. We an important bargaining chip. Economic interpret the language of the Act in light of its purposes and in such a development deals of the kind described in §10- way as to harmonize its various parts. Cf. Lockshin v. Semsker, 412 508(a)(4) generally involve a subsidy to attract Md. 257, 275-76, 987 A.2d 18 (2010). the business investment that, in the long run, is We begin with the principle that the Court of Appeals has stated thought to justify the subsidy. Subsidies can be of variously as part of the “touchstone” or “heart” of the Act: “It is...the various kinds, including the gift or below-market deliberative and decision-making process in its entirety which must sale of land. This is particularly so when a county be conducted in meetings open to the public since every step of the owns land that it is seeking to transform into a process, including the final decision itself, constitutes the fully occupied industrial park. The characteristics consideration or transaction of public business.” New Carrollton, of a business seeking to purchase land in an supra, 287 Md. at 71-72; see also J. P. Delphey Limited Partnership industrial park, the economic development v. Mayor and City of Frederick, 396 Md. 180, 200, 913 A.2d 28 benefits and potential negative consequences of (2006) (quoting New Carrollton ). The Court further reiterated in selling to a particular private business, offering Delphey its adoption of the proposition that “one purpose of the price – all of these are directly related to a public government in the Open Meetings Act was to prevent at nonpublic body’s discussion of a proposal for a business to meetings the crystallization of secret decisions to a point just short of locate in a particular site. ceremonial acceptance.” Id. at 201 (brackets, emphasis, and citations Also in 2006, we addressed whether a Town Council would have omitted). And, as we have stated, “The legislative process includes exceeded the exception, had the Town Council claimed it, by “the imparting of information about a matter, albeit unaccompanied discussing whether the Town’s boat slip tax would apply to a by any discussion among the members of a public body....” 1 OMCB business’s proposed lease of the slips. We stated: Opinions 35, 36 (1993). Assuming that the business proposal involved use As the Court explained in Delphey, however, the Act contains of the boat slips on the property, the potential exceptions. So, we look also to the purpose of this exception, which application of a tax would be factored into any we must construe strictly and in favor of open meetings. §10-508 (c). business decision; thus, we cannot say that such a In 1 OMCB Opinions at 29, we referred to the Legislature’s discussion would be inappropriate in a meeting “understanding that some businesses might be deterred from making closed under §10-508(a)(4). On the other hand, proposals about relocation, expansion, or retention of an existing had the discussion not been tied to a specific facility if all such discussions were open to public view.” In 2 business proposal but instead focused on the tax OMCB Opinions at 82, we stated that the exception would apply “[I]f as a policy matter, the discussion would have the overall discussion concerned a business’ possible relocation to a exceeded the limits of the exception.... site in Hyattsville under circumstances in which the business insisted

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1003 on the need for confidentiality.” We have thus interpreted the exception in the same place we have drawn it for other exceptions exception to address the business’s interest in protecting its own and consistently with the principles set forth by the Court of Appeals: identity and information.9 We have also extended the exception to when a discussion strays beyond the specific proposal and into even matters that could not have been “practically separated and discussed the preliminary stages of a “legislative response,” the public body outside of the context of the specific business proposal,” 6 OMCB must conduct that discussion in an open meeting.10 Opinions at 194, and to the applicability of an existing law in a Here, the Commissioners decided in closed session that a text discussion “tied to” the proposal. amendment was needed, agreed to a date by which they would Here, the formulation of the County’s policy on permissible uses introduce it, decided that Fairweather’s proposed use should be as of in the 1,100-acre Industrial District did not fall into the category of right, rather than by special exception, and signed a contract confidential information belonging to Fairweather. Even if such contingent on the implementation of these policy decisions, all before legislation could be deemed to embody private information (a they held a public hearing on the text amendment itself. The fact that proposition we doubt), we note that Fairweather itself did not appear they did so without deliberating out loud is of no moment: the public to seek secrecy concerning its interest in relocating to the County: the was entitled to observe “every step” of this legislative process. Cf. minutes of the closed sessions identified Mr. Fairweather and his Delphey, supra, 396 Md. at 200. We repeat what we said in 1 OMCB lawyer as participants, and Mr. Fairweather announced his business’s Opinions 35, 36 : “No part of this process, including the imparting of intentions at the July 1 Planning Commission meeting. Further, the information to the [public body] about the ordinance and the policy could be discussed outside the context of Fairweather’s procedures for its enactment, could be permissibly carried out in a proposal; the Task Force summaries report a discussion of the very closed session unless one of the specific exceptions in the Act were same legislative topic without any mention of Fairweather. And, applicable.” these meetings involved not the application of an existing law to a specific proposal, but rather the passage of a new law by the deadline C. Summary and in the form required by the business making the proposal. We We conclude that the Commissioners’ closed-session deliberations therefore conclude that the extension of the business location on the text amendment and approval of the contract violated the Act, exception to the Commissioners’ closed-session discussions on as did their failure to disclose those discussions in their closed- generally-applicable land-use legislation would not further the meeting summaries. purposes of either the Act or the exception. Our conclusion with respect to the limits of the business location III exception is consistent with our application of the other exceptions in The “Firefly” Issue SG §10-508(a). We have not interpreted the other exceptions to extend to discussions regarding the public body’s own generally- A. Facts and contentions applicable policy decisions. For instance, in interpreting the Complainant alleges that the Commissioners violated the Act by “personnel matters” exception, we have concluded that while the closing meetings on the basis of “boilerplate,” by failing to identify exception permits closed sessions to discuss individual employees, it the participants in the meetings, and, in those meetings, by does not permit discussion of issues applicable to a class of negotiating contracts and discussing legislation to delete an obsolete employees. See, e.g. 3 OMCB Opinions 335,337 (2003). That reference in the County Code. The Commissioners’ documents show exception, too, is intended to protect the information of the person that, like the Fairweather meetings, the meetings in question were discussed, not that of the public entity. closed to discuss a business’s proposal to locate in the County. The As indicated in Part I, above, we have applied a similar distinction proposal was code-named “Project Firefly.” with respect to the legal advice exception. See 1 OMCB Opinions, We derive the facts from the Commissioners’ closed minutes and supra, at 149 (stating that the exception “may not be used as a mask therefore describe them only generally. On November 16 and 30 and for policy deliberations”). That exception protects the content of the December 14, 2010, the Commissioners went into closed session to advice; once it has been “sought and provided, the public body must discuss “the proposal for a business or industrial organization to return to open session to discuss the policy implications of the advice locate, expand, or remain in the State....” The company is not it received, or anything else about proposed legislation.” Id. There, identified in the minutes other than as “a private manufacturing we concluded that a city council exceeded the “legal advice” company” which “considers its proposal as proprietary and requests exception when it discussed the need to have an ordinance drafted, confidentiality.” The company proposing the relocation had “however brief and devoid of substantive discussion.” Id. We evidently insisted on complete secrecy: not even the closed minutes explained: identify the company’s representatives, industry, or current location. A decision by the Council that the City Attorney The Commissioners primarily discussed assembling a package of was to draft an ordinance amounted to a incentives, including exemptions from certain taxes. In one meeting, preliminary decision that the perceived problem the County Attorney raised certain legal issues, and the possibility of required a legislative response. This decision was amending the County Code was raised. In the last meeting, the a key component of the legislative process at Commissioners discussed introducing an amendment to the Code of work here, and the absence of a debate preceding Public Local Laws on the next legislative day. the decision is not proof against an Open

Meetings Act violation. The press and public 10 would have found this decision to have been of Although the act of approving a contract is a quasi-legislative function under §10-502(j)(3), not all contracts embody a new policy decision keen interest. It was required to have been made that would exceed the scope of an exception. In Delphey, the Court of Appeals in open session.... applied the exception for the public body’s “acquisition of real property” Id. at 149-50. under SG §10-508 (a)(3). There, the City aldermen publicly adopted task We shall therefore draw the line for the “business relocation” force recommendations that they condemn or otherwise acquire certain land for a parking lot, publicly arranged the financing, and eventually, in closed session, voted to condemn that land. The Court, after finding that no 9 Maryland’s other open government law, the Public Information ordinance was required for the condemnation, found that the aldermen had not Act, also affords businesses protection against a public entity’s disclosure of evaded the Act’s requirements and that the condemnation fell within the their commercial information. See SG §10-617(d). “acquisition of real property” exception. 396 Md. at 201-202. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1004 B. Discussion reconvened five days later constituted a single meeting for purposes We conclude that the Commissioners did not exceed the scope of of the Act, and we found violations with respect to each closed the business location exception by closing sessions to discuss and session. Id. at 186-88. Similarly, in 3 OMCB Opinions 4,6 (2000), assemble financial incentives responsive to the company’s requests. we concluded that “the Act would not have permitted [the public Here, as in 6 OMCB Opinions 192, supra, those appear to be “matters body] to vote on March 1 to close a meeting to be held on March 8.” that the Commissioners would be expected to address in evaluating a Under these principles, the question boils down to whether the business proposal” and that could not have been “practically open Commissioners’ vote to close the meeting occurred at a “prior separated and discussed outside of the context of the specific business meeting,” in which case the Commissioners would have had to vote proposal. Id. at 194. We also are not troubled by the failure to again, or, instead, at the same meeting. In 6 OMCB Opinions 77, we identify this company by name, for the reasons we stated in 1 OMCB referred in passing to a closed session that occurred at two times Opinions 60 (1999). during a single day as a single session and noted that the public body The closed-minute references to amending the ordinance and to considered the sessions to be “part of a single business meeting that the timing of such an amendment are another matter. Those day.” Id. at 81 and 81, n.2. And, in 6 OMCB Opinions 127, 131 discussions appear to have crossed the line between information (2009), we found no violation where, “if the closed session did not specific to a company or proposal, which may be discussed in a begin immediately, it did start shortly after the vote.” There, closed session, and policy deliberations, which may not. For the addressing allegations by this Complainant about this same public reasons we stated in our discussion of Issue I, the Act required the body, we found no violation where the Commissioners voted at 9:55 Commissioners to terminate any such discussions in their closed a.m. on a series of motions to consider issues in closed session and sessions and conduct them in public. completed its closed session by 10:45 a.m. We found no lack of accountability, no prejudice to the public’s right to object, and no IV violation of the Act. The reconvened closed session issue On these facts, we conclude that the “meeting being closed,” see 6 OMCB Opinions at 81, n.2., was the single business meeting that the A. Facts and contentions Commissioners had scheduled for May 25. We again find no lack of Complainant alleges that the Commissioners violated the Act by accountability, no prejudice to the public’s right to object, and no meeting in two closed sessions on May 25, 2010 without following violation of the Act. the Act’s closing procedures for the second session. The Commissioners have provided us with the relevant documents. V The minutes of the open meeting held that day show that the Conclusion Commissioners convened in a meeting open to the public and voted at 8:37 a.m. to go into closed session. At 9:10 a.m., the We conclude that the Commissioners strayed beyond the scope of Commissioners “temporarily adjourned to reconvene later in the the exceptions they claimed when, in closed sessions, they discussed, morning” to discuss business location matters. At 10:31 a.m., the decided to introduce, and, in the Fairweather matter, contractually Commissioners voted to go into closed session to discuss personnel bound the County to introduce, legislation. It follows from that matters. At 10:46 a.m., they adjourned that closed session. Then, at conclusion that the Commissioners should have disclosed those 10:47 a.m., the “closed session [on business location] reconvened,” topics in publicly-available minutes. and that second session was adjourned at 11:30 a.m. The minutes We find that the Commissioners did not violate the Act by holding report that no action was taken in the personnel session and that two closed sessions, only hours apart and during one regularly- certain actions were taken in the business location session. In their scheduled open meeting, on the basis of one closing statement and response, the Commissioners add that the Commissioners announced vote. during the public session that the business location meeting would be Finally, we commend the Commissioners for their forthright and reconvened later that morning. The Commissioners also state their thoroughly-documented response to this complaint. belief that their disclosures complied with the Act. OPEN MEETINGS COMPLIANCE BOARD B. Discussion Elizabeth L. Nilson, Esquire These facts present this question: must a public body vote to re- Courtney J. McKeldin close a public meeting when the closed session merely continues a Julio A. Morales, Esquire session that was properly closed earlier at the same meeting ? [11-17-28] The Act requires a public body that wishes to meet in a closed session to “conduct its vote to close the meeting and issue the required written statement [of the reason for closing the meeting] in OPINIONS open session.” 1 OMCB Opinions 201, 204 (1997) (summarizing SG May 19, 2011 §10-508(d)(2)). Further, if a person objects to the closing, the public Complainant: body must send a copy of the written statement to us. SG §10- Craig O’Donnell 508(d)(3). The purpose of these procedures is to ensure that the Kent County News members of a public body are accountable to the public for their Respondent: decisions to hold closed sessions. A “part of their accountability is to Attorney General’s Advisory Committee on Campaign Finance make that decision before the public that is about to be excluded.” 1 OMCB Opinions 191, 193 (1996). Although we have found that a The Open Meetings Compliance Board has considered your complaint public body may prepare its closing statement in advance as long as that the Attorney General’s Advisory Committee on Campaign Finance the statement remains accurate, see 6 OMCB Opinions 77, 82 (2009), (“ACCF”) violated the Open Meeting Act by holding several meetings in “[we] have long held that the vote to close a session must occur at the the fall of 2010 by failing to provide proper notice of its meeting and meeting being closed, not at a prior meeting.” 6 OMCB Opinions at failing to prepare minutes in accordance with the Act. Because the 81-82. Thus, in 5 OMCB Opinions 184 (2007), we rejected the Compliance Board finds that ACCF is not a “public body” subject to the argument that a closed meeting which began one day and was Act, there was no violation.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1005 I Complaint and Response B. Inapplicability of §10-502(h)(2)(i) The ACCF would have been a “public body” had it been The complaint alleged that ACCF repeatedly violated the Open appointed by the “Governor.” §10-502(h)(2)(i). The complaint Meeting Act by its failure to provide proper notice of its meeting and urges us to construe “Governor” to mean the Attorney General. We to provide minutes of the meeting. The complaint contends that the decline to do so as we are bound by the language of the statute as Attorney General is “either subject to the policy direction of the applying to boards, commissions or committees appointed by the Governor, or … is subject to the same requirements under the Act as “Governor” and not the Attorney General. the Governor” as provided in §10-502(h)(2). 11 In addition, the ACCF would have been a “public body” had it In a timely response submitted on behalf of ACCF, Jeffrey L. been appointed by an “official who is subject to the policy direction Darsie, Assistant Attorney General, first argued that the ACCF was of the Governor.” §10-502(h)(2)(i). In 4 OMCB Opinions 132 not created by any formal legal instrument enumerated in §10- (2005), we examined the meaning of whether someone serves at the 502(h)(1). Second, he argued that §10-502(h)(2) cannot be “policy direction” of the Governor or a chief elective authority. In interpreted as applying to the Attorney General for two reasons: (1) that complaint, we considered whether or not an advisory body because the Attorney General is elected independently and is not created by the Prince George’s County Planning Board was a public subject to the policy direction of the Governor; and (2) ACCF was body because it was appointed by an official who is “subject to the not appointed by the Governor but was appointed by the Attorney policy direction of the … chief executive authority of the political General. He noted that because the Attorney General is elected subdivision.” We found that while the members of the Planning independently of the Governor, the Attorney General may make Board were appointed by the County Executive, the chief executive policy recommendations to the General Assembly or to the State authority for Prince George’s County, the Board was not subject to Board of Elections. the policy direction of the County Executive. We noted that:

II [U]nlike a county department head or a position Analysis in which the appointee is expected to carry out policies on behalf of the chief executive The ACCF was formed by the Attorney General so that the authority, the duties of the Planning Board are Attorney General could receive insights from knowledgeable designated under State and local law, and the individuals on campaign finance issues. The Attorney General, based members owe a fiduciary duty to the Planning on the work of the ACCF, could then inform the General Assembly Board on which they serve. In our view, the of suggested amendments to the campaign finance laws and the State Planning Board is not subject to the policy Board of Elections could consider revisions of its regulations that direction of the county executive as contemplated relate to campaign finance. The ACCF consisted of twelve by the 2004 amendment to the Act. individuals: four state legislators, two employees of the State Board 4 OMCB Opinions at 138 (emphasis added and internal citations of Elections, a former federal regulator, two members of the Attorney omitted). General’s Office, and the counsels of the Maryland Republican and The Attorney General is not appointed by the Governor. Section Democratic State Central Committees.12 V, §1 of the Maryland Constitution establishes the Attorney General If an entity is not a “public body”, it is not subject to the Open as an independent official elected by the voters of Maryland.14 As a Meeting Act. The term “public body” means a multi-member entity state constitutional officer, the Attorney General’s duties are set forth established in one of three ways. First, it may be “created by” any of in the Maryland Constitution.15 Md. Code Ann., Const. Article V, §3. several formal legal enactments. §10-502(h)(1). Second, it may be The Attorney General is charged under the Constitution to: “appointed by” the Governor or chief executive authority of a (1) Prosecute and defend on the part of the State political subdivision or “appointed by an official who is subject to the all cases pending in the appellate courts of the policy direction” of the Governor or chief executive authority, but State, in the Supreme Court of the United States only if the appointees include at least two individuals from outside or the inferior Federal Courts, by or against the the government.13 §10-502(h)(2)(i). Third, it may be appointed either State, or in which the State may be interested, by a public body in the Executive Branch of State government, the except those criminal appeals otherwise members of which were appointed by the Governor or by an official prescribed by the General Assembly. who is subject to the policy direction of the public body, but only if the entity includes at least two individuals who are neither members of the appointing entity nor employees of the State. §10-502(h)(2)(ii). 14 See Dan Friedman, Magnificent Failure Revisited: Modern Maryland Constitutional Law from 1967 to 1998, 58 Md. L. Rev. 528, 560- A. Inapplicability of §10-502(h)(1) 561 (1999) (Explaining a proposal at the Constitutional Convention of 1967- The ACCF was not “created by” one of the formal means listed in 1968 to eliminate statewide elective offices such as the Attorney General that the definition of a public body including a law, Executive Order, rule, was rejected and noting that “[c]urrently, neither the comptroller nor the or resolution. §10-502(h)(1). Rather, the ACCF was an informal attorney general is dependent on the governor for his or her position. Because body of individuals asked to provide the Attorney General with each of these elected officials has his or her own constituency, the attorney advice on campaign finance issues. general and comptroller have every reason to act independently, and little impetus to follow the governor.” ). 15 There are state constitutional officers that are elected statewide 11 All statutory references in this opinion are to the State such as the Governor, Attorney General and Comptroller and state Government Article unless otherwise noted. constitutional officers that are elected locally such as a state’s attorney, 12 The response from Assistant Attorney General Darsie on behalf sheriff, clerk of the court, register of wills, or orphan’s court judges. See Md. of ACCF does not state specifically the number of times the ACCF met in Code Ann., Const. Article IV, §25 (election of clerks of the court); Article IV, 2010. §40 (election of orphans court judges); Article IV, §41 (election of register of 13 The ACCF included at least two individuals from outside of the wills); Article IV, §44 (election of sheriffs); Article V, §§7 and 9 (election and government, counsels to the Republican State Central Committee and the duties of state’s attorneys); Article VI, §§1 and 2 (election and duties of Democratic State Central Committee. Comptroller). MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 OPEN MEETINGS COMPLIANCE BOARD 1006 (2) Investigate, commence, and prosecute or C. Inapplicability of §10-502(h)(2)(ii) defend any civil or criminal suit or action or Finally, the ACCF was not was not a “public body” under the category of such suits or actions in any of the component of the Federal Courts or in any Court of this State, or definition in §10-502(h)(2). The ACCF was appointed not by a before administrative agencies and quasi public body within the Executive Branch of government but rather by legislative bodies, on the part of the State or in an individual, the Attorney General. Furthermore, as noted which the State may be interested, which the previously, the Attorney General is a State constitutional officer, not General Assembly by law or joint resolution, or part of the Executive Branch of State government as that term is used the Governor, shall have directed or shall direct in the Open Meetings Act. to be investigated, commenced and prosecuted or defended. III (3) When required by the General Assembly by Conclusion law or joint resolution, or by the Governor, aid any State’s Attorney or other authorized Because the AACF was not a public body under the Open prosecuting officer in investigating, commencing, Meetings Act, neither the substantive nor the procedural requirements and prosecuting any criminal suit or action or of the Act applied to the meetings of the AACF in the fall of 2010. category of such suits or actions brought by the Thus, no violation occurred.18 State in any Court of this State. (4) Give his opinion in writing whenever OPEN MEETINGS COMPLIANCE BOARD required by the General Assembly or either Elizabeth L. Nilson, Esquire branch thereof, the Governor, the Comptroller, Courtney J. McKeldin the Treasurer or any State’s Attorney on any legal Julio A. Morales matter or subject. [11-17-29] Md. Code Ann., Const., Article V, §3(a). While this constitutional provision provides that the Governor can direct the Attorney General to investigate criminal and civil actions in the State and to aid any State’s Attorney investigation, commencing, and prosecuting a criminal suit, this direction relates to the legal business of the state and not the “policy” direction that the General Assembly intended in §10-502(h)(2)(i). See Md. Ann. Code, State Government Article (“SG”) §6-106(a) (“the Attorney General has general charge of the legal business of the State”). Rather, the “policy direction” in §10-502(h)(2)(i) relates to those in the Executive Branch who are supervised by and serve at the pleasure of the Governor.16 SG §3-302(“The Governor is head of the Executive Branch of the State Government and … shall supervise and direct units in that branch.”); SG §8-203(a)(“The head of each principal department is a secretary, who shall be appointed by the Governor with the advice and consent of Senate.”). Indeed, the list of the principal departments within the Executive Branch does not include the Attorney General. See SG §8-201(listing the principal departments of the Executive Branch). 17

16 In the 2003 Annual Report of the Open Meetings Compliance Board, we recommended a legislative change in the OMA to expand the definition of “public body” to include a “board, commission, or committee appointed by an official of the executive branch…” Report at p. 4. This expansive definition could have included all officials in the Executive Branch including those who are not appointed directly by the Governor. The General Assembly, however, chose not to adopt this definition but instead limited §10- 502(h)(2)(i) to those Executive Branch officials “subject to the policy direction” of the Governor, a narrower group of officials. Compare Eleventh Annual Report of the Open Meetings Compliance Board p. 4 (2003) and Senate Bill 111 (2004), introduced at the request of the Compliance Board.

This change was enacted as Ch. 440, Laws of Maryland 2004. 17 Our conclusion that the Attorney General does not serve at the policy direction of the Governor is consistent with the conclusion the Court of Appeals has reached on whether the county sheriffs, also state constitutional 18 officers, are not local government officials and not subject to control of the The Open Meetings Compliance Board was advised for the chief executive authority of the political subdivision. Rucker v. Harford purposes of this complaint by Amanda Stakem Conn, Assistant Attorney County, Maryland, 16 Md. 27, 281 (1989). See also 91 Opinions of the General at the Maryland Department of Planning, because the Opinions and Attorney General 48 (1991) (Harford County Council lacks the authority to Advice Division which normally serves as counsel to the Board had contact establish a merit system for the Sheriff’s office). with the ACCF. Ms. Conn had no contact with the ACCF or other assistant

attorney generals that staffed the ACCF. MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1007 The Judiciary

COURT OF APPEALS OF COURT OF SPECIAL MARYLAND APPEALS SCHEDULE SCHEDULE FOR SEPTEMBER 1, 2, 6, Wednesday, August 31, 2011: 7, 8, 9, 12, 13, 14, 15, 16, 2011 Bar Admissions Thursday, September 1, 2011 Misc. 1 In the Matter of the Application of Karim Timothy Courtroom No. 1 Cheikh for Admission to the Bar of Maryland No. 01107/10 Pradeep Kulkarni vs. Regina Kaiser, Individually, AG 11 Attorney Grievance Commission of Maryland v. Joel etc. (2010 T) David Joseph No. 00993/10 Hubert Barry Shaw vs. State of Maryland No. 1 Charles Y. Kim v. Maryland State Board of Physicians No. 01036/10 Karl Herbert vs. Edson Hernandez et al. No. 3 State of Maryland v. Bryan Sivells No. 01396/09 Baltimore and Charles Associates, LLC. et al. vs. No. 9 Joel Pautsch v. Maryland Real Estate Commission J. F. Johnson Lumber Company, LLC et al.

No. 02901/09 Esperanza B. Gonzalez, Personal Representative of Thursday, September 1, 2011: the Estate of Manuel S. Gonzalez vs. AG 66 Attorney Grievance Commission of Maryland v. CertainTeed Corporation (2010 T) Lucille Saundra White No. 01514/09 JFY Enterprises, Inc. et al. vs. James A. Taylor AG 23 Attorney Grievance Commission of Maryland v. Peter et ux. (2010 T) Richard Maignan No. 2 Kenneth Gerald Stabb v. State of Maryland Courtroom No. 2 No. 8 Hosea Anderson, et ux. v. John S. Burson, et al. No. 01194/10 Lorene Garland vs. Charles J. Ware

No. 01354/10 Ricco Clifton Gough vs. State of Maryland Wednesday, September 7, 2011: No. 00453/11** State of Maryland vs. Thomas J. Franklin, Jr. AG 69 Attorney Grievance Commission of Maryland v. No. 01082/10 Walter Arthur Hayes vs. State of Maryland (2010 T) Spencer Dean Ault No. 01230/10 Jason Drew Mosley a/k/a Jason Mosely, Jayson AG 34 Attorney Grievance Commission of Maryland v. Mosley vs. State of Maryland (2010 T) Timothy Shawn Gordon No. 6 Gerald Thomas Titus, Jr. v. State of Maryland **120 DAY RULE

Thursday, September 8, 2011: Friday, September 2, 2011 Courtroom No. 1 AG 28 Attorney Grievance Commission of Maryland v. Brenda (2010 T) Carol Brisbon No. 01490/09 Lanie H. Walker a/k/a Lance Walker vs. State of AG 10 Attorney Grievance Commission of Maryland v. Andre Maryland (2010 T) Levell Brady No. 01492/09 Nadirah Moreno vs. State of Maryland No. 4 Linda Freilich, et al. v. Upper Chesapeake Health No. 01106/10 Richard D. Ayuso vs. Carolyn K. Gibson-Ayuso Systems, Inc., et al. No. 01256/10 Carol G. Carson vs. H. Emslie Parks No. 12 Megan Cathey v. Board of Review, Department of Health No. 01781/09*** Richard David Ayuso vs. Carolyn Kaye Gibson and Mental Hygiene No. 00056/10*** Richard D. Ayuso vs. Carolyn Kaye Gibson-Ayuso No. 00988/10 Paul Svrcek vs. Diane S. Rosenberg et al.

On the day of argument, counsel are instructed to register in the ***Consolidated Cases Clerk’s Office no later than 9:30 a.m. unless otherwise notified. After September 8, 2011 the Court will recess until October 6, Courtroom No. 2 2011. No. 00410/11* In Re: Adoption/Guardianship of Alysha B.*** BESSIE M. DECKER No. 00345/11* In Re: Adoption/Guardianship of Kenneth B. and Clerk Alysha B.*** [11-17-23] No. 01384/10 Ramon Harvey vs. State of Maryland No. 01216/10 David Dewees vs. Charles A. Jenkins, Sheriff No. 01400/10 Jackson H. Gichema vs. State of Maryland No. 00393/11 Roslyn Broadway vs. State of Maryland

*8-207(a) ***Consolidated Cases

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 THE JUDICIARY 1008 Tuesday, September 6, 2011 No. 01097/10 Deborah Ashton Parsons vs. Peninsula Regional Courtroom No. 1 Medical Center

No. 01476/10 Charles Aboke vs. State of Maryland *8-207(a) No. 00995/10 Anton Berk vs. Carole Berk et al., Co-Personal Representatives of the Estate of Maurice H. Friday, September 9, 2011 Berk Courtroom No. 1 No. 01177/10 Mary Carol Corder vs. Steven C. Corder No. 01477/10 Young Ok Valley vs. State of Maryland No. 00957/10 George Lee Smith vs. State of Maryland No. 01197/10 James T. Smith, Jr., Baltimore County Executive No. 01071/10 DeAngelo Tyrone Rouzer vs. State of Maryland vs. Fraternal Order of Police, Baltimore County

Lodge 4 Courtroom No. 2 No. 01780/10 Howard Drummond vs. State of Maryland No. 00999/10* Howard Earle Wells, Jr. et al. vs. Deborah Marie No. 01757/10 Angelo Sherrill a/k/a Angelo Sherril vs. State of Turner Maryland No. 00832/10 Michael Milburn vs. Bowie State University No. 01515/10 State Retirement and Pension System vs. Debora No. 00979/09 Michael T. Roach, Jr. vs. William Jackson Phillips No. 00835/10 Pathik Rami vs. Robert Yerman No. 01226/10 William Russell Morgan, III vs. Herman Matthew No. 02585/09 Tony Akhigbe vs. Siah Willie a/k/a Siah Ozurumba Parsons No. 00901/10 Kirk Anthony Bell vs. State of Maryland

*8-207(a) Courtroom No. 2 No. 00229/07 Wayne Stockstill vs. State of Maryland Wednesday, September 7, 2011 No. 03006/10* In Re: Malachi D. and Joy D. Courtroom No. 1 No. 01431/10 Charles Cornett vs. David Lockard et ux. No. 00962/10 Tamara Abrishamian vs. Montgomery County No. 02533/09 Prince George’s County, Maryland et al. vs. Department of Health and Human Services Anthony Achoronye No. 00536/10 Cuppett and Weeks Nursing Home, Inc. vs. No. 01038/10 Matthew C. Baker et al. vs. Montgomery County, Maryland et al. Department of Health and Mental Hygiene No. 01510/10 William Dryden vs. State of Maryland *8-207(a) No. 01196/10 Baltimore County, Maryland vs. Virginia W. Barnhart Monday, September 12, 2011 No. 02082/10 Anthony Okpeku vs. State of Maryland Courtroom No. 1

No. 01193/10 Ellen R. Goldman vs. Robert G. Koehler Courtroom No. 2 No. 00538/10 Eileen M. York vs. Richard Hession No. 01430/10*** State of Maryland vs. Richard Lynn Harris No. 01364/10 Joseph Drummond vs. State of Maryland No. 01442/10*** State of Maryland vs. Richard Lynn Harris No. 01225/10 James Tzeng et al. vs. John Michael Wood, Sr. et No. 01444/10 John C. Dodd, III vs. Thomas P. Dore et al., ux. Substitute Trustees No. 02057/10 James Allen Kemp vs. State of Maryland No. 01513/10 Amy Christine Spector vs. Charles Joseph Spector, Jr. Courtroom No. 2 No. 00986/10 C. Wayne Cook vs. Maryland Department of No. 00365/11* In Re: Ridgely M. Transportation et al. No. 01200/10 Wayne C. Markey vs. Critical Area Commission No. 02098/09 Steven J. Ochse et ux. vs. William O. Henry et ux. for the Chesapeake and Atlantic Coastal Bays ***Consolidated Cases et al. No. 00919/10 Stephen Barry Jones, Sr. vs. State of Maryland Thursday, September 8, 2011 No. 00278/10 Brent M. Blackmer vs. Aileen B. Blackmer Courtroom No. 1 No. 01797/10 Ralph Steele vs. John Wolfe, Warden

No. 00503/10 Howard County Citizens for Open Government et *8-207(a) al. vs. Howard County Board of Elections No. 01213/10 Antonio C. Alvarez vs. Sean D. Cook Tuesday, September 13, 2011 No. 01009/10 Barbara Hastings et al. vs. PNC Bank, NA Courtroom No. 1 No. 00768/10 MacKenzie Capital, LLC. vs. Edwin F. Hale, Sr. et No. 00557/10 2004 PG, LLC vs. Land Holders, LLC al. No. 00739/10 Direct Pharmacy Service, Inc. vs. DS Pharmacy, No. 00533/10 John M. Tregoning vs. State of Maryland et al. Inc. d/b/a Drugstore.com

No. 00530/10 H.T. Barberis, Inc. vs. Laundry Unlimited, LLC et Courtroom No. 2 al. No. 02902/10* In Re: Adoption/Guardianship of Savannah E. No. 01700/10* Dean Lake vs. Carolyn Tadiarca Lake No. 00280/10 CR-RSC Tower I, LLC et al. vs. RSC Tower I, No. 00811/10 Charles W. Kelly, Jr. vs. Andrea Collins Kelly LLC et al. No. 01827/10 Safety National Casualty Corp. et al. vs. State of No. 01187/10 Elizabeth S. Campbell vs. Council of Unit Owners Maryland et al. of Bayside Condominium *8-207(a) No. 01519/10 Carol Gilliam vs. St. Mary’s Hospital et al.

No. 00803/10 SunTrust Bank vs. Frank J. Goldman et al.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 THE JUDICIARY 1009 Courtroom No. 2 Courtroom No. 2 No. 02764/09*** Wycinna Spence et vir vs. Emerson R. Julian, Jr. et No. 01956/10 Gerald D. Fuller vs. Kathleen Green, Warden al. No. 00001/11* In Re: Viper M.*** No. 01511/10*** Emerson R. Julian, Jr. et al. vs. Mercy Medical No. 00002/11* In Re: Eva M.*** Center, Inc. et al. No. 00008/11* In Re: Dakota M.*** No. 00476/10 Paulette Ann Schriner f/k/a Paulette Moynihan vs. No. 01495/10 James Eugene Keiser, Jr. vs. State of Maryland Robert John Moynihan No. 01154/10 Shawn Lee Snyder vs. State of Maryland No. 00808/10 Hercules Barberis vs. August Martin et al. No. 00356/10 Kathy Kite vs. Ian Roy Jackson et al. No. 00543/10 Joseph J. Balsamo d/b/a JAG Vending vs. Jasmin No. 01472/10 Sean Tyrone Smith vs. State of Maryland R. Carbaugh et al. No. 01369/10 Christopher Bryan Williams vs. State of Maryland No. 01191/10 Michelle Moss Etlin vs. Department of Human No. 01372/10 Raymond Aur vs. State of Maryland Resources, Montgomery County Office of Child No. 01395/10 Gary Wayne Buehler vs. State of Maryland Support Enforcement *8-207(a) ***Consolidated Cases ***Consolidated Cases

Wednesday, September 14, 2011 Friday, September 16, 2011 All cases submitted on brief All cases submitted on brief Courtroom No. 1 Courtroom No. 1 No. 01954/10 Robert Tomas Poole vs. State of Maryland No. 01350/10* Gregory B. Curry, Sr. vs. Cecelia Carpenter No. 01558/10 Jaime Traverso vs. Commissioner of Correction No. 01006/10 Rose Isbell vs. Albert Marsico No. 01284/10 James Edward Moore, Jr. vs. Bobby P. Shearin, No. 00528/10 Damon Dukes vs. Caves Valley Golf Club, Inc. et Warden al. No. 01847/10 Claiton Marques Pacheco vs. State of Maryland No. 01895/10 Kasedaa Samba vs. State of Maryland No. 01842/10 Juan Carlos Galeas-Guevara vs. State of Maryland No. 01896/10 Tommy Whack, Jr. vs. State of Maryland No. 01743/10 Clifton Alexander Waters vs. State of Maryland No. 00131/11* In Re: Jasmyn C. No. 01889/10 Demetrius Kendell Thompson, Sr. vs. State of No. 01899/10 Christian Ellsworth Brooks vs. State of Maryland Maryland No. 02001/10 Spencer Ellsworth Chase vs. State of Maryland No. 01762/10 Daniel Leon Hutchins vs. State of Maryland No. 01744/10 Tyler Allen Moore vs. State of Maryland No. 01837/10 Kenny M. Jones vs. State of Maryland *8-207(a) No. 00140/10 Darryl McGowan vs. State of Maryland

Courtroom No. 2 Courtroom No. 2 No. 02966/10* In Re: Cole H. No. 01758/10 Rommell Riggins vs. State of Maryland No. 00200/11* In Re: Sierra M. and Alissa M. No. 01708/10 Aaron Dubose Headspeth vs. State of Maryland No. 00899/10 Victor Lewis Childs vs. State of Maryland No. 01782/10 Andre Patterson vs. State of Maryland No. 01527/10 Jody Pierre Carter vs. State of Maryland No. 00657/10 John Wilbert Donahue vs. State of Maryland No. 02085/09 Lubna N. Khan vs. Zubair Arif Khan Niazi No. 00864/10 Aaron Outlaw vs. State of Maryland No. 00161/09 Patricia Gardner vs. State of Maryland No. 00452/10*** Francis Mbewe vs. State of Maryland No. 01621/10 Charles Freeman vs. State of Maryland No. 00453/10*** Delonte Jordan vs. State of Maryland No. 01740/10 Charles D. Quailes, Jr. vs. State of Maryland No. 02138/10 Rodney L. Saunders vs. State of Maryland No. 01388/10 Terrance Mason vs. State of Maryland No. 01024/10 Devan Lamar Lake vs. State of Maryland No. 01075/10 Olufemi Amez Obua vs. State of Maryland *8-207(a)

***Consolidated Cases On the day of argument, counsel are instructed to register in the Office

of the Clerk no later than 9 a.m. The Court is located at 361 Rowe Thursday, September 15, 2011 Boulevard, in the Robert C. Murphy Courts of Appeals Building. After All cases submitted on brief September, 2011, the Court will recess until October, 2011. Courtroom No. 1 No. 00347/11* In Re: Jeremiah S. LESLIE D. GRADET No. 01110/10 Myles Spires, Jr. vs. Town of Forest Heights, Clerk Maryland et al. No. 01695/10 Jamaal Lee Hicks vs. State of Maryland ADMINISTRATIVE ORDER No. 02666/09 Charles Price a/k/a Dayton Harris vs. State of Pursuant to Maryland Rule 8-522(a), I hereby direct that oral Maryland argument in the month of September be limited to 20 minutes per No. 01023/10 Randy Robert Drummond vs. State of Maryland side, subject to the discretion of the hearing panel to allow additional No. 01702/10 Michael Antonio Hardy vs. State of Maryland argument, not exceeding a total of 30 minutes per side. No. 01843/10 David C. Winters vs. State of Maryland This directive applies only to cases scheduled in September, 2011. No. 01890/10 Ian Christopher Murdaugh vs. State of Maryland No. 01727/10*** Abayomi Oluwanioje Ogundeyi vs. State of Chief Judge’s signature appears on Maryland original Administrative Order No. 01729/10*** Abayomi Oluwanioje Ogundeyi vs. State of Dated: July 21, 2011 Maryland [11-17-25]

***Consolidated Cases

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1010 Regulatory Review and Evaluation Regulations promulgated under the Administrative Procedure Act will undergo a review by the promulgating agency in accordance with the Regulatory Review and Evaluation Act (State Government Article, §§10-130 — 10-139; COMAR 01.01.2003.20). This review will be documented in an evaluation report which will be submitted to the General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review. The evaluation reports have been spread over an 8-year period (see COMAR 01.01.2003.20 for the schedule). Notice that an evaluation report is available for public inspection and comment will be published in this section of the Maryland Register.

Title 15 DEPARTMENT OF AGRICULTURE Notice of Availability of Evaluation Report In accordance with the Regulatory Review and Evaluation Act, State Government Article, §§10-130 — 10-138, Annotated Code of Maryland, notice is hereby given that the Evaluation Reports concerning COMAR 15.11 — 15.22 are available for public inspection and comment for a period of 60 days following the date of this notice. This report may be reviewed at the Department of Agriculture, 50 Harry S. Truman Parkway, Annapolis, Maryland 21401, Monday through Friday, 9 a.m. to 5 p.m., except holidays. Information may be obtained by contacting Tonia C. Martin at 410-841-5883 or [email protected]. [11-17-19]

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1011 Emergency Action on Regulations Symbol Key • Roman type indicates text existing before emergency status was granted. • Italic type indicates new text. • [Single brackets] indicate deleted text.

Emergency Regulations Under State Government Article, §10-111(b), Annotated Code of Maryland, an agency may petition the Joint Committee on Administrative, Executive, and Legislative Review (AELR), asking that the usual procedures for adopting regulations be set aside because emergency conditions exist. If the Committee approves the request, the regulations are given emergency status. Emergency status means that the regulations become effective immediately, or at a later time specified by the Committee. After the Committee has granted emergency status, the regulations are published in the next available issue of the Maryland Register. The approval of emergency status may be subject to one or more conditions, including a time limit. During the time the emergency status is in effect, the agency may adopt the regulations through the usual promulgation process. If the agency chooses not to adopt the regulations, the emergency status expires when the time limit on the emergency regulations ends. When emergency status expires, the text of the regulations reverts to its original language.

Title 08 Title 14 DEPARTMENT OF NATURAL INDEPENDENT AGENCIES RESOURCES Subtitle 01 STATE LOTTERY AGENCY Subtitle 02 FISHERIES SERVICE 14.01.10 Video Lottery Terminals Authority: State Government Article, Title 9, Subtitle 1A, Annotated Code of 08.02.04 Oysters Maryland Authority: Natural Resources Article, §§4-215 and 4-11A-12, Annotated Code Notice of Emergency Action of Maryland [11-226-E] Notice of Emergency Action The Joint Committee on Administrative, Executive, and [11-196-E] Legislative Review has granted emergency status to amendments to The Joint Committee on Administrative, Executive, and Regulation .13 under COMAR 14.01.10 Video Lottery Terminals. Legislative Review has granted emergency status to amendments to Emergency status began: July20, 2011. Regulation .15 under COMAR 08.02.04 Oysters. Emergency status expires: December 27, 2011. Emergency status began: July 20, 2011. Emergency status expires: January 16, 2012. Editor’s Note: The text of this document will not be printed here because it appears as a Notice of Proposed Action on page 1039 of Editor’s Note: The text of this document will not be printed here this issue, referenced as [11-226-P]. because it appeared as a Notice of Proposed Action in 38:16 Md. R. 950—951 (July 29, 2011), referenced as [11-196-P]. STEPHEN L. MARTINO Director JOHN R. GRIFFIN State Lottery Agency Secretary of Natural Resources

Subtitle 02 FISHERIES SERVICE 08.02.08 Shellfish Authority: Natural Resources Article, §§4-206 and 4-215, Annotated Code of Maryland Notice of Emergency Action [11-222-E] The Joint Committee on Administrative, Executive, and Legislative Review has granted emergency status to adopt new Regulation .05 under COMAR 08.02.08 Shellfish. Emergency status began: July 20, 2011. Emergency status expires: January 16, 2012.

Editor’s Note: The text of this document will not be printed here because it appears as a Notice of Proposed Action on pages 1022 — 1023 of this issue, referenced as [11-222-P]. JOHN R. GRIFFIN Secretary of Natural Resources

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1012 Final Action on Regulations

Symbol Key • Roman type indicates text already existing at the time of the proposed action. • Italic type indicates new text added at the time of proposed action. • Single underline, italic indicates new text added at the time of final action. • Single underline, roman indicates existing text added at the time of final action. • [[Double brackets]] indicate text deleted at the time of final action.

River. This action, which was proposed for adoption in 38:3 Md. R. Title 08 175 (January 28, 2011), has been adopted as proposed. DEPARTMENT OF NATURAL Effective Date: August 22, 2011. JOHN R. GRIFFIN RESOURCES Secretary of Natural Resources

Subtitle 02 FISHERIES SERVICE Title 10 08.02.05 Fish DEPARTMENT OF HEALTH Authority: Natural Resources Article, §4-215, Annotated Code of Maryland Notice of Final Action AND MENTAL HYGIENE [11-156-F] On August 2, 2011, the Secretary of Natural Resources adopted Subtitle 13 DRUGS amendments to Regulation .21 under COMAR 08.02.05 Fish. This action, which was proposed for adoption in 38:13 Md. R. 759—760 10.13.02 Purchase and Distribution of (June 17, 2011), has been adopted as proposed. Prescription Drugs and Devices Effective Date: August 22, 2011. Authority: Health-General Article, §21-234; Health Occupations Article, JOHN R. GRIFFIN §§12-6C-01(u) and 12-6C-03.1; Annotated Code of Maryland Secretary of Natural Resources Notice of Final Action [11-140-F] Subtitle 02 FISHERIES SERVICE On July 27, 2011, the Secretary of Health and Mental Hygiene adopted new Regulations .01—.06 under a new chapter, COMAR 08.02.05 Fish 10.13.02 Purchase and Distribution of Prescription Drugs and Devices. This action, which was proposed for adoption in 38:12 Md. Authority: Natural Resources Article, §4-2A-03, Annotated Code of Maryland R. 712—715 (June 3, 2011), has been adopted as proposed. Notice of Final Action Effective Date: August 22, 2011. [11-157-F] JOSHUA M. SHARFSTEIN, M.D. On August 2, 2011, the Secretary of Natural Resources adopted Secretary of Health and Mental Hygiene amendments to Regulation .29 under COMAR 08.02.05 Fish. This action, which was proposed for adoption in 38:13 Md. R. 760—761 (June 17, 2011), has been adopted as proposed. Subtitle 15 FOOD Effective Date: August 22, 2011. 10.15.07 Shellfish Sanitation JOHN R. GRIFFIN Secretary of Natural Resources Authority: Health-General Article, §§18-102, 21-211, 21-234, 21-304, 21- 321, and 21-346—21-350, Annotated Code of Maryland Notice of Final Action Subtitle 18 BOATING — SPEED [11-155-F] LIMITS AND OPERATION OF On August 2, 2011, the Secretary of Health and Mental Hygiene adopted amendments to Regulations .02 and .04, and new Regulation VESSELS .06 under COMAR 10.15.07 Shellfish Sanitation. This action, 08.18.20 Patuxent River which was proposed for adoption in 38:13 Md. R. 761—762 (June 17, 2011), has been adopted as proposed. Authority: Natural Resources Article, §8-704, Annotated Code of Maryland Effective Date: August 22, 2011. Notice of Final Action JOSHUA M. SHARFSTEIN, M.D. [11-052-F] Secretary of Health and Mental Hygiene On August 2, 2011, the Secretary of Natural Resources adopted amendments to Regulation .04 under COMAR 08.18.20 Patuxent

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 FINAL ACTION ON REGULATIONS 1013

Subtitle 25 MARYLAND HEALTH Attorney General’s Certification CARE COMMISSION In accordance with State Government Article, §10-113, Annotated Code of Maryland, the Attorney General certifies 10.25.11 Institutional Review Board that the following changes do not differ substantively from the Authority: Health-General Article, §§19-109(a)(1) and (7) and (b)(5), 19- proposed text. The nature of the changes and the basis for this 103(c)(3), and 19-133(d), Annotated Code of Maryland conclusion are as follows: Regulation .01E: For clarity, the phrase “at the time this chapter Notice of Final Action becomes effective” is being deleted and replaced with the actual [11-143-F] effective date. On July 21, 2011, the Maryland Health Care Commission adopted amendments to Regulation .01 under COMAR 10.25.11 .01 Scope. Institutional Review Board. This action was considered by the A.—D. (proposed text unchanged) Maryland Health Care Commission at an open meeting held on July E. Licensed graduate professional counselors who are in the 21, 2011, notice of which was given through publication in the process of completing their supervision requirements [[at the time Maryland Register pursuant to State Government Article, §10-506, this chapter becomes effective]] before August 22, 2011, may Annotated Code of Maryland. This action, which was proposed for continue to complete their requirements as previously agreed to with adoption in 38:12 Md. R. 715—716 (June 3, 2011), has been adopted their supervisor. A licensed graduate professional counselor whose as proposed. supervision begins after [[the effective date of this chapter]] August Effective Date: August 22, 2011. 22, 2011, shall follow the requirements set forth in Regulation .03 of this chapter. MARILYN MOON Chair JOSHUA M. SHARFSTEIN, M.D. Maryland Health Care Commission Secretary of Health and Mental Hygiene

Subtitle 36 BOARD OF EXAMINERS Title 13A OF PSYCHOLOGISTS STATE BOARD OF 10.36.09 Child Custody Evaluations in Family Law Proceedings EDUCATION Authority: Health Occupations Article, §18-206, Annotated Code of Maryland Subtitle 07 SCHOOL PERSONNEL Notice of Final Action 13A.07.01 Comprehensive Teacher Induction [11-132-F] Program On July 20, 2011, the Secretary of Health and Mental Hygiene adopted new Regulations .01—.05 under a new chapter, COMAR Authority: Education Article, §§2-205(c) and 6-202(b), Annotated Code of 10.36.09 Child Custody Evaluations in Family Law Proceedings. Maryland This action, which was proposed for adoption in 38:10 Md. R. 620— Notice of Final Action 621 (May 6, 2011), has been adopted as proposed. [11-135-F] Effective Date: August 22, 2011. On July 19, 2011, the Maryland State Board of Education adopted JOSHUA M. SHARFSTEIN, M.D. amendments to Regulations .04—.07 and new Regulation .09 under Secretary of Health and Mental Hygiene COMAR 13A.07.01 Comprehensive Teacher Induction Program. This action, which was proposed for adoption in 38:11 Md. R. 679— 680 (May 20, 2011), has been adopted with the nonsubstantive Subtitle 58 BOARD OF changes shown below. PROFESSIONAL COUNSELORS AND Effective Date: August 22, 2011. THERAPISTS Attorney General’s Certification In accordance with State Government Article, §10-113, Annotated 10.58.12 Supervision Requirements Code of Maryland, the Attorney General certifies that the following changes do not differ substantively from the proposed text. The Authority: Health Occupations Article, §§17-101(s) and (v) and 17-301—17- nature of the changes and the basis for this conclusion are as follows: 309, Annotated Code of Maryland Regulation .06F(3): The change from “who was” to “and have Notice of Final Action been” is solely a grammatical change to make that part of the [11-139-F] sentence grammatically parallel to the first part of the sentence. On July 28, 2011, the Secretary of Health and Mental Hygiene .06 Mentoring Component of the Comprehensive Induction adopted new Regulations .01—.08 under a new chapter, COMAR Program. 10-58.12 Supervision Requirements. This action, which was A.—E. (proposed text unchanged) proposed for adoption in 38:11 Md. R. 676—678 (May 20, 2011), F. Mentors shall: has been adopted with the nonsubstantive changes shown below. (1)—(2) (proposed text unchanged) Effective Date: August 22, 2011. (3) Hold an advanced professional certificate and be rated as a satisfactory or effective teacher or be a retiree from a local school

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 FINAL ACTION ON REGULATIONS 1014 system [[who was]] and have been rated as a satisfactory or effective the applicable emission standard”. The language in Regulation teacher; and .11D(2) is correct for CEMs and applies to several different monitors, (4) (proposed text unchanged) each specific to different federal air quality standard. Consequently, G. (proposed text unchanged) when Regulation .11E(2)(a) is eliminated the requirement to “reduce all data to six-minute block averages calculated from 24 or more NANCY S. GRASMICK equally spaced data points” will still exist for COMs, as appropriate State Superintendent of Schools in Regulation .10D(2)(a). Elimination of Regulation .11E(2)(a) does not increase the requirements or stringency of the regulation and it does not decrease Title 26 the benefits of the regulation.

DEPARTMENT OF THE 26.11.01 General Administrative Provisions ENVIRONMENT Authority: Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2- 303, 10-102, and 10-103, Annotated Code of Maryland Subtitle 11 AIR QUALITY .11 Continuous Emission Monitoring Requirements. 26.11.01 General Administrative Provisions A. — D. (proposed text unchanged) E. Record Keeping and Reporting Requirements. Authority: Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2- (1) (proposed text unchanged) 303, 10-102, and 10-103, Annotated Code of Maryland (2) CEM Data Reporting Requirements. Notice of Final Action [[(a) A CEM shall automatically reduce all data to 6-minute block averages calculated from 36 or more equally spaced data [11-127-F] points.]] On July 29, 2011, the Secretary of the Environment adopted [[(b)]] (a) — [[(e)]] (d) amendments to Regulations .10 and .11 under COMAR 26.11.01 General Administrative Provisions. This action, which was ROBERT M. SUMMERS, Ph.D. proposed for adoption in 38:9 Md. R. 561—562 (April 22, 2011), has Secretary of the Environment been adopted as proposed. Effective Date: August 22, 2011. Subtitle 11 AIR QUALITY ROBERT M. SUMMERS, Ph.D. Secretary of the Environment 26.11.02 Permits, Approvals, and Registration Authority: Environment Article, §§[1-101,] 1-404, [2-101—] 2-103, 2-301— Subtitle 11 AIR QUALITY 2-303, 2-401, [2-403] 2-402, and 2-404, Annotated Code of Maryland Notice of Final Action Notice of Final Action [11-128-F] [11-025-F] On August 1, 2011, the Secretary of the Environment adopted On July 29, 2011, the Secretary of the Environment adopted amendments to Regulations .01, .10, and .13 under COMAR amendments to: 26.11.02 Permits, Approvals, and Registration. This action, which (1) Regulations .10 and .11 under COMAR 26.11.01 General was proposed for adoption in 38:9 Md. R. 562—565 (April 22, Administrative Provisions; and 2011), has been adopted as proposed. (2) Regulations .01 and .05 under COMAR 26.11.09 Control Effective Date: August 22, 2011. of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations. ROBERT M. SUMMERS, Ph.D. This action, which was proposed for adoption in 38:2 Md. R. Secretary of the Environment 104—106 (January 14, 2011), has been adopted with the nonsubstantive changes shown below. Effective Date: August 22, 2011. Title 33 Attorney General’s Certification In accordance with State Government Article, §10-113, Annotated STATE BOARD OF Code of Maryland, the Attorney General certifies that the following changes do not differ substantively from the proposed text. The ELECTIONS nature of the changes and the basis for this conclusion are as follows: Regulation 26.11.01.11E(2)(a): The removal of this paragraph Subtitle 16 PROVISIONAL VOTING eliminates an apparent conflict regarding the appropriate data reduction averaging time for Continuous Emissions Monitors 33.16.02 Provisional Voting Documents and (CEMs) in 26.11.01.11. The conflict was created when the language Supplies of Regulation 26.11.01.10D(2)(a) was erroneously duplicated and Authority: Election Law Article, §9-403, Annotated Code of Maryland inserted as Regulation 26.11.01.11E(2)(a). Regulation .11 applies only to CEMs, whereas Regulation .10 applies only to Continuous Notice of Final Action Opacity Monitors (COMs). The language of Regulation .11D(2), [11-152-F] Data Reduction, reads: “A CEM used to monitor a gas concentration On July 28, 2011, the State Board of Elections adopted shall record not less than four equally spaced data points per hour and amendments to Regulation .01 under COMAR 33.16.02 Provisional automatically reduce data in terms of averaging time consistent with Voting Documents and Supplies. This action, which was proposed

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 FINAL ACTION ON REGULATIONS 1015 for adoption in 38:12 Md. R. 732—733 (June 3, 2011), has been adopted as proposed. Effective Date: August 22, 2011. LINDA H. LAMONE State Administrator of Elections

Subtitle 17 EARLY VOTING Notice of Final Action [11-151-F] On July 28, 2011, the State Board of Elections adopted amendments to: (1) Regulation .01 under COMAR 33.17.02 Early Voting Centers; (2) Regulation .03 under COMAR 33.17.04 Early Voting Center Equipment and Materials; and (3) Regulation .04 under COMAR 33.17.07 Non-Voting Hours Procedures. This action, which was proposed for adoption in 38:12 Md. R. 733 (June 3, 2011), has been adopted as proposed. Effective Date: August 22, 2011. LINDA H. LAMONE State Administrator of Elections

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1016 Withdrawal of Regulations

Title 12 DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES Subtitle 06 SEX OFFENDER REGISTRATION Notice of Withdrawal [11-007-W] The Secretary of Public Safety and Correctional Services withdraws the proposal to: (1) amend Regulations .01 — .12, adopt new Regulations .13, .15, and .21, and amend and recodify existing Regulations .13 and .14—.18 to be Regulations .14 and .16—.20, respectively, under COMAR 12.06.01 Administration of Sex Offender Registration; and (2) adopt new Regulations .01 — .14 under a new chapter, COMAR 12.06.02 Administration of Juvenile Sex Offender Listing as published in 38:1 Md. R. 36—50 (January 3, 2011). GARY D. MAYNARD Secretary of Public Safety and Correctional Services

Title 14 INDEPENDENT AGENCIES Subtitle 09 WORKERS’ COMPENSATION COMMISSION 14.09.01 Procedural Regulations Authority: Health-General Article, §4-303; Labor and Employment Article, §§9-307, 9-309, 9-310.2, 9-314, 9-404, 9-405, 9-410, 9-603, 9-625, 9-635, 9- 689, 9-701, 9-709, 9-710, 9-711, 9-721, 9-731, 9-739, and 9-6A-07; Insurance Article, §§19-405 and 19-406; State Government Article, §10-1103; Annotated Code of Maryland Notice of Withdrawal [11-019-W] The Workers’ Compensation Commission withdraws the proposal to amend Regulations .01 and .19 under COMAR 14.09.01 Procedural Regulations, as published in 38:1 Md. R. 57—58 (January 3, 2011). R. KARL AUMANN Chairman Workers’ Compensation Commission

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1017 Proposed Action on Regulations

For information concerning citizen participation in the regulation-making process, see inside front cover.

Symbol Key • Roman type indicates existing text of regulation. • Italic type indicates proposed new text.

• [Single brackets] indicate text proposed for deletion.

Promulgation of Regulations An agency wishing to adopt, amend, or repeal regulations must first publish in the Maryland Register a notice of proposed action, a statement of purpose, a comparison to federal standards, an estimate of economic impact, an economic impact on small businesses, a notice giving the public an opportunity to comment on the proposal, and the text of the proposed regulations. The opportunity for public comment must be held open for at least 30 days after the proposal is published in the Maryland Register. Following publication of the proposal in the Maryland Register, 45 days must pass before the agency may take final action on the proposal. When final action is taken, the agency must publish a notice in the Maryland Register. Final action takes effect 10 days after the notice is published, unless the agency specifies a later date. An agency may make changes in the text of a proposal. If the changes are not

substantive, these changes are included in the notice of final action and published in the Maryland Register. If the changes are substantive, the agency must repropose the regulations, showing the changes that were made to the originally proposed text. Proposed action on regulations may be withdrawn by the proposing agency any time before final action is taken. When an agency

proposes action on regulations, but does not take final action within 1 year, the proposal is automatically withdrawn by operation of law, and a notice of withdrawal is published in the Maryland Register.

[email protected], or fax to 410-333-5480. Comments Title 04 will be accepted through September 12, 2011. A public hearing has DEPARTMENT OF GENERAL not been scheduled. .13 Fees SERVICES A. The fee schedule for copying and certifying copies of records is as follows: Subtitle 01 OFFICE OF THE (1) Copies. The fee for each copy is [15] 25 cents per page if reproduction is made by a photocopying machine within the SECRETARY Department. If records are not susceptible to photocopying, for example, punch cards, magnetic tapes, blueprints, and microfilm, the 04.01.01 Public Information Requests fee for copies will be based on the actual cost of reproduction. Authority: State Government Article, §§10-611 — [10-613] 10-630, (2) — (3) (text unchanged) Annotated Code of Maryland B. — H. (text unchanged) Notice of Proposed Action ALVIN C. COLLINS [11-206-P] Secretary of General Services The Department of General Services proposes to amend Regulation .13 under COMAR 04.01.01 Public Information Subtitle 05 BUILDINGS AND Requests. GROUNDS Statement of Purpose The purpose of this action is to adjust the fee schedule for copying 04.05.01 General Regulations and certifying records. Authority: United States Constitution, Amendments 1 and 14; Maryland Comparison to Federal Standards Constitution, Declaration of Rights, Article 13; State Finance and There is no corresponding federal standard to this proposed action. Procurement Article, §§4-604(6) and (7), 4-607(a) and (c); State Government Article, §2-1702; Criminal Law Article, §§4-208 and 6-409; Annotated Code Estimate of Economic Impact of Maryland The proposed action has no economic impact. Notice of Proposed Action Economic Impact on Small Businesses [11-205-P] The proposed action has minimal or no economic impact on small The Department of General Services proposes to amend businesses. Regulation .02 under COMAR 04.05.01 General Regulations. Impact on Individuals with Disabilities Statement of Purpose The proposed action has no impact on individuals with disabilities. The purpose of this action is to clarify access requirements to Opportunity for Public Comment property under the jurisdiction of the Department of General Comments may be sent to Joan Cadden, Legislative Affairs, Services. Department of General Services, 301 West Preston Street, Room Comparison to Federal Standards 1403, Baltimore, MD 21201, or call 410-767-4606, or email to There is no corresponding federal standard to this proposed action.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1018 Estimate of Economic Impact changes involving the processing of intergovernmental child support The proposed action has no economic impact. cases. Economic Impact on Small Businesses Comparison to Federal Standards The proposed action has minimal or no economic impact on small There is a corresponding federal standard to this proposed action, businesses. but the proposed action is not more restrictive or stringent. Impact on Individuals with Disabilities Estimate of Economic Impact The proposed action has no impact on individuals with disabilities. The proposed action has no economic impact. Opportunity for Public Comment Economic Impact on Small Businesses Comments may be sent to Joan Cadden, Legislative Affairs, The proposed action has minimal or no economic impact on small Department of General Services, 301 West Preston Street, Room businesses. 1403, Baltimore, MD 21201, or call 410-767-4606, or email to [email protected], or fax to 410-333-5480. Comments Impact on Individuals with Disabilities will be accepted through September 12, 2011. A public hearing has The proposed action has no impact on individuals with disabilities. not been scheduled. Opportunity for Public Comment Comments may be sent to Andrea Shuck, Acting Regulation .02 Property Access. Coordinator, Department of Human Resources, Office of A.—C. (text unchanged) Government, Corporate, and Community Affairs, 311 W. Saratoga D. [After regular] During and after business hours or during Street, Suite 270, Baltimore, Maryland 21201, or call 410-767-7193, declared emergency situations, [admission to the property is or email to [email protected], or fax to 410-333-0637. restricted to authorized individuals who] an individual working, Comments will be accepted through September 12, 2011. A public visiting, conducting business, or otherwise lawfully in, on, or about hearing has not been scheduled. State property will be required to display identification documents upon request. During [these times] and after business hours or during .04 [Interstate] Intergovernmental Support Services. declared emergencies, an individual may be arrested if the A. (text unchanged) individual: B. The Administration shall maintain [an Interstate] a Maryland (1) Either: Central Registry to coordinate [interstate] intergovernmental case (a) Is on the property with no apparent lawful business to activities. pursue[, who refuses]; or (b) Fails to display identification documents upon request; .05 Case Closure. and A. The support enforcement agency may close a case which meets (2) Refuses to leave[, may be arrested] or fails to leave after one or more of the following criteria: being asked to leave by an authorized employee of the Department of (1)—(8) (text unchanged) General Services. (9) In an [interstate] intergovernmental case, the support enforcement agency documents failure by the initiating state to take ALVIN C. COLLINS an action which is essential for the next step in providing services. Secretary of General Services B. The support enforcement agency shall notify the custodial parent, in writing, 60 days before closing a case of its intent to close the case, except if: Title 07 (1)—(3) (text unchanged) (4) The case is an [interstate] intergovernmental case. DEPARTMENT OF HUMAN C. In an [interstate] intergovernmental case, the support enforcement agency shall: RESOURCES (1) [notify] Notify the initiating state[, in writing, 60 days before closing a case of its intent to close the case.] of its intent to Subtitle 07 CHILD SUPPORT close a case 60 days prior to case closure; and (2) Stop income withholding notice within 10 working days of ENFORCEMENT ADMINISTRATION receipt of instructions for case closure from an initiating state 07.07.02 General Information pursuant to 45 C.F.R. 303.11(c)(12). Authority: Family Law Article, §§10-106—10-116, 10-118, 10-119, 10- THEODORE DALLAS 119.3—10-144, and 10-303—10-359, Annotated Code of Maryland; Secretary of Human Resources Agency Note: Federal Regulatory Reference—45 CFR §§302, 303.2—303.15, 303.30, 303.31, and 303.71—303.106; 42 U.S.C. §654(6)(B) Notice of Proposed Action [11-221-P] The Secretary of Human Resources proposes to amend Regulations .04 and .05 under COMAR 07.07.02 General Information. Statement of Purpose The purpose of this action is to indicate when a child support worker may close a child support case pursuant to federal regulations. This action will also amend terms to comply with federal regulation

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1019 Subtitle 07 CHILD SUPPORT Subtitle 07 CHILD SUPPORT ENFORCEMENT ADMINISTRATION ENFORCEMENT ADMINISTRATION 07.07.04 Establishment of Paternity 07.07.05 Establishment of Support Obligation Authority: Family Law Article, §§5-1005—5-1048, and 10-301—[10-348]10- Authority: Family Law Article, §§10-114, 10-204, 10-301—[10-307, 10-332, 359, Annotated Code of Maryland 10-354]10-359, and 12-101—12-204, Annotated Code of Maryland; (Agency Note: Federal Regulatory Reference—45 CFR §§302.31, 303.5, Agency Note: Federal Regulatory Reference—45 CFR §§302.56, 303.4— 303.7 and 305.24) 303.5, 303.7, 303.8, and 303.31; 42 U.S.C. §652(f) Notice of Proposed Action Notice of Proposed Action [11-220-P] [11-219-P] The Secretary of Human Resources proposes to amend Regulation The Secretary of Human Resources proposes to amend .03 under COMAR 07.07.04 Establishment of Paternity. Regulations .03 and .04 under COMAR 07.07.05 Establishment of Support Obligation. Statement of Purpose The purpose of this action is to amend terms to comply with Statement of Purpose federal regulation changes involving the processing of The purpose of this action is to amend terms to comply with intergovernmental child support cases. federal regulation changes that involve the processing of intergovernmental child support cases. Comparison to Federal Standards There is a corresponding federal standard to this proposed action, Comparison to Federal Standards but the proposed action is not more restrictive or stringent. There is a corresponding federal standard to this proposed action, but the proposed action is not more restrictive or stringent. Estimate of Economic Impact The proposed action has no economic impact. Estimate of Economic Impact The proposed action has no economic impact. Economic Impact on Small Businesses The proposed action has minimal or no economic impact on small Economic Impact on Small Businesses businesses. The proposed action has minimal or no economic impact on small businesses. Impact on Individuals with Disabilities The proposed action has no impact on individuals with disabilities. Impact on Individuals with Disabilities The proposed action has no impact on individuals with disabilities. Opportunity for Public Comment Comments may be sent to Andrea Shuck, Acting Regulation Opportunity for Public Comment Coordinator, Department of Human Resources, Office of Comments may be sent to Andrea Shuck, Acting Regulation Government, Corporate, and Community Affairs, 311 W. Saratoga Coordinator, Department of Human Resources, Office of Street, Suite 270, Baltimore, Maryland 21201, or call 410-767-7193, Government, Corporate, and Community Affairs, 311 W. Saratoga or email to [email protected], or fax to 410-333-0637. Street, Suite 270, Baltimore, Maryland 21201, or call 410-767-7193, Comments will be accepted through September 12, 2011. A public or email to [email protected], or fax to 410-333-0637. hearing has not been scheduled. Comments will be accepted through September 12, 2011. A public hearing has not been scheduled. .03 [Interstate] Intergovernmental Establishment of Paternity. A. Maryland as the Initiating State. .03 Review and Modification of Child Support Orders. (1) (text unchanged) A. (text unchanged) (2) If use of Maryland’s long-arm statutes is inappropriate or B. Cases Eligible for Review. unsuccessful, the support enforcement agency shall refer the case to (1)—(2) (text unchanged) the responding state’s [interstate] intergovernmental central registry. (3) In [interstate] intergovernmental cases, the support (3) (text unchanged) enforcement agency shall conduct a review of the order at the request B. Maryland as the Responding State. Upon receipt of a request of another state if the request for a review is appropriate. from another state for establishment of paternity, the Maryland (4) (text unchanged) [Interstate] Central Registry shall forward the request to the C. (text unchanged) appropriate Maryland support enforcement agency which shall take action to establish paternity. .04 [Interstate] Intergovernmental Establishment and C. Maryland’s Uniform Interstate Family Support Act (UIFSA). Modification of Support Order. When providing services to establish paternity in an [interstate] When providing services in an [interstate] intergovernmental case intergovernmental case, the Maryland support enforcement agency to establish or modify an order for support, the support enforcement shall comply with the provisions of UIFSA. agency shall comply with the provisions of UIFSA. THEODORE DALLAS THEODORE DALLAS Secretary of Human Resources Secretary of Human Resources

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1020 Subtitle 07 CHILD SUPPORT D. (text unchanged) ENFORCEMENT ADMINISTRATION THEODORE DALLAS Secretary of Human Resources 07.07.06 Enforcement of Support Obligation Authority: Family Law Article, §§10-108—10-108.2, 10-113—10-116, 10- 119, 10-119.3—10-359, and 12-102; Article 1, §24; Annotated Code of Title 08 Maryland; Agency Note: Federal Regulatory Reference—45 CFR §§302.60—302.65, DEPARTMENT OF NATURAL 302.80, 303.6, 303.7, 303.31, 303.71—303.100, 303.102, and 303.104 RESOURCES Notice of Proposed Action [11-218-P] Subtitle 02 FISHERIES SERVICE The Secretary of Human Resources proposes to amend Regulations .05 and .06 under COMAR 07.07.06 Enforcement of Notice of Proposed Action Support Obligation. [11-211-P] Statement of Purpose The Secretary of Natural Resources proposes to: The purpose of this action is to amend terms to comply with (1) Adopt new Regulation .09 under COMAR 08.02.01 federal regulation changes that involve processing of General; intergovernmental child support cases. (2) Repeal Regulations .10 and .11 under COMAR 08.02.11 Fishing in Nontidal Waters; and Comparison to Federal Standards (3) Amend Regulation .04 and adopt new Regulation .08 under There is a corresponding federal standard to this proposed action, COMAR 08.02.19 Nuisance and Prohibited Species. but the proposed action is not more restrictive or stringent. Statement of Purpose Estimate of Economic Impact The purpose of this action is to move regulations pertaining to The proposed action has no economic impact. zebra mussels and tidal and nontidal dividing lines to more appropriate regulatory chapters and to make a clarification on the Economic Impact on Small Businesses common name of the crayfish. Currently, regulations for zebra The proposed action has minimal or no economic impact on small mussels and tidal and nontidal dividing lines are in COMAR 08.02.11 businesses. Fishing in Nontidal Waters. The action would move the zebra Impact on Individuals with Disabilities mussels regulation from COMAR 08.02.11 Fishing in Nontidal The proposed action has no impact on individuals with disabilities. Waters to COMAR 08.02.19 Nuisance and Prohibited Species because zebra mussels are already listed as a prohibited species in Opportunity for Public Comment this chapter. This action would also move the tidal and nontidal Comments may be sent to Andrea Shuck, Acting Regulation dividing lines to COMAR 08.02.01 General, which will put the Coordinator, Department of Human Resources, Office of regulations in the same chapter as the bay dividing lines. The action Government, Corporate, and Community Affairs, 311 W. Saratoga also makes a minor correction to the common name for a certain Street, Suite 270, Baltimore, Maryland 21201, or call 410-767-7193, crayfish, previously this crayfish was called a crawfish and this or email to [email protected], or fax to 410-333-0637. action would change its name to “crayfish.” Comments will be accepted through September 12, 2011. A public hearing has not been scheduled. Comparison to Federal Standards There is no corresponding federal standard to this proposed action. .05 Methods of Child Support Enforcement. A.—C. (text unchanged) Estimate of Economic Impact D. IRS Full Collection Service. The support enforcement agency The proposed action has no economic impact. may apply for collection by the IRS, when the support enforcement Economic Impact on Small Businesses agency documents that: The proposed action has minimal or no economic impact on small (1) (text unchanged) businesses. (2) Local, State, and [interstate] intergovernmental enforcement efforts have failed; and Impact on Individuals with Disabilities (3) (text unchanged) The proposed action has no impact on individuals with disabilities. E.—I. (text unchanged) Opportunity for Public Comment .06 [Interstate] Intergovernmental Enforcement. Comments may be sent to Nuisance Species and Dividing Lines, The support enforcement agency shall: Regulatory Staff, Maryland Department of Natural Resources Fisheries A. (text unchanged) Service, 580 Taylor Ave., B-2, Annapolis, MD 21044, or call 410-260- B. Use all appropriate enforcement methods in [interstate] 8300, or email to [email protected], or fax to intergovernmental cases that the support enforcement agency uses in 410-260-8310. Comments will be accepted through September 12, 2011. intrastate cases; A public hearing has not been scheduled. C. Initiate [interstate] intergovernmental earnings withholding procedures when an obligor is liable for earnings withholding and the obligor’s employer: (1)—(2) (text unchanged)

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1021 08.02.01 General (9) Patuxent River: (a) Swanson Creek: Maryland Route 381; Authority: Natural Resources Article, §4-602, Annotated Code of Maryland (b) Mataponi Creek: St. Thomas Church Road; (c) Spice Creek: Maryland Route 382, Croom Road; .09 Dividing Lines; Tidal and Nontidal Waters. (d) Full Mill Branch: Maryland Route 382, Croom Road; The following boundaries are designated as official dividing lines (e) Black Swamp Creek: Maryland Route 382, Croom Road. for tidal and nontidal waters. These boundary lines are for the (10) Pomonkey Creek: Fenwick Road. purpose of delineating those areas in which nontidal fishing licenses (11) Hoghole Run: Maryland Route 6. or Chesapeake Bay and coastal sport fishing licenses are required (12) Oxen Creek (Run): Maryland Route 210. and tidal or nontidal fishing regulations apply, and have no other F. Kent and Queen Anne’s Counties. legal significance. (1) Chester River: 500 yards upstream from the Pennsylvania A. Harford County. Railroad Bridge at Millington at the point where the Cypress Branch (1) Winter’s Run: dam located ½mile south of Maryland Route empties into the Chester River. 7, the Old Philadelphia Road. (2) Unicorn Branch: the U.S. Geological Survey weir just east (2) Bynum Run: Old Philadelphia Road Bridge on Maryland of Maryland Route 313. Route 7. (3) Sassafras River: Maryland Route 299. (3) James Run: Old Philadelphia Road Bridge on Maryland (4) Herring Branch: Maryland Route 299. Route 7. (5) Morgan Creek: Wallis Road. (4) Deer Creek: Railroad bridge located at the mouth of Deer (6) Red Lion Branch: confluence with the Chester River. Creek. (7) Wye East River: Wye Mills Lake dam. (5) Gray’s Run: CSX Railroad crossing upstream of U.S. 40. G. Caroline County. B. Baltimore County. (1) Choptank River: bypass bridge on Maryland Route 313 on (1) Big Gunpowder Falls: ¾of a mile south of Maryland Route the outskirts of Greensboro. 7, the Old Philadelphia Road at B&O Railroad Bridge. (2) Tuckahoe Creek: abandoned stone railroad bridge (2) Little Gunpowder Falls: ¾ of a mile south of Maryland upstream of Maryland Route 404. Route 7, the Old Philadelphia Road at B&O Railroad Bridge. (3) Watt’s Creek: bridge on American Legion Road. (3) Stemmers Run: Golden Ring Road Bridge. (4) Fowling Creek: wooden bridge on Stratum Road about 1 (4) Stansbury Park Pond: base of dam. mile below Maryland Route 16. C. Baltimore and Howard Counties. Patapsco River: B&O (5) Chapel Branch: Maryland Route 313 near Piney Grove Viaduct at Relay. Church. D. Anne Arundel and Prince George’s Counties. (6) Marshy Hope Creek: confluence with Faulkner Branch. (1) Patuxent River: (7) Mill Creek: Maryland Route 16. (a) Mainstem: bridge on Maryland Route 214; (8) Hunting Creek: Maryland Route 331. (b) Lyons Creek: Maryland Route 4; H. Wicomico and Worcester Counties. (c) Stocketts Run: confluence with the river; (1) Pocomoke River: bridge on Whiton Crossing, 3 miles south (d) Rock Run: confluence with the river; of Powellville. (e) Ferry Branch: confluence with the river. (2) Wicomico River: Isabella Street in Salisbury. (2) Severn River: bridge on Maryland Route 3. (3) Beaverdam Creek: dam just upstream of U.S. Route 13 (3) Furnace Branch: Maryland Route 2. (Business). (4) Anacostia River: Northeast Branch Bridge at northbound (4) Nassawango Creek: Furnace Road. lane of Alternate U.S. Route 1, Bladensburg Road; Northwest Branch I. St. Mary’s County. Bridge at southbound lane of Rhode Island Avenue. (1) Park Hall Run: Maryland Route 5. (5) Marley Creek: Maryland Route 10. (2) McIntosh Run: Maryland Route 5. (6) Magothy River: Catherine Avenue. (3) Great Mills Run: bridge on Maryland Route 5. (7) South River and its tributaries: (4) Town Run: bridge on Maryland Route 5. (a) North River: Rutland Road; (5) Chaptico Run: Chaptico Bridge on Maryland Route 234. (b) Bacon Ridge Branch: Chesterfield Road; (6) Eastern Branch: Maryland Route 5. (c) Beards Creek: Maryland Route 214; (7) Dynard Run: Maryland Route 242. (d) Broad Creek: Harry S Truman Parkway. (8) Tomakokin Creek: Maryland Route 470. E. Charles, Montgomery, and Prince George’s Counties. (9) Buds Creek: Maryland Route 234. (1) Potomac River: man-made dam at Little Falls. (10) Gilbert Swamp Run: Maryland Route 234. (2) Piscataway Creek: bridge on Maryland Route 224 (11) St. Clements Creek: Maryland Route 234, bridge at town (Livingston Road). of Clements. (3) Henson Run: bridge on Old Broad Creek Road. J. Calvert County. (4) Western Branch: bridge on Maryland Route 4. (1) St. Leonard’s Creek: Parran Road. (5) Nanjemoy Creek: (2) Battle Creek: bridge about 2 miles east of Bowens (Sixes (a) Mainstem: Maryland Route 6; Road). (b) Mill Run (Burgess Cr.): Maryland Route 6; (3) Parker’s Creek: Maryland Route 765. (c) Hill Top Fork: Maryland Route 6; (4) Hunting Creek: bridge on Maryland Route 263 about 100 (d) Wards Run: Maryland Route 6. yards west of Maryland Route 4. (6) Wicomico River: Allens Fresh, bridge on Maryland Route (5) Hall’s Creek: Bridge on Maryland Route 4. 234. (6) Lyons Creek: Bridge on Maryland Route 4. (7) Port Tobacco Creek: bridge on Maryland Route 6. (7) Fishing Creek: 1½ miles upstream from the mouth of the (8) Mattawoman Creek: bridge on Maryland Route 225. creek at Chesapeake Beach. (8) Plum Point Creek: bridge on Maryland Route 263.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1022 (9) Mills Creek: Maryland Route 760. (2) Application shall be made on forms provided by the (10) Hellen Creek: Mill Branch Road, near Solomons. Department. (11) Island Creek: Ross Road, near Brooms Island. (3) The Department shall make available to the public, on (12) St. Johns Creek: Maryland Route 4. request, a complete list of certified bait dealers. (13) Quaker Swamp: Maryland Routes 2 and 4. K. Susquehanna River. Conowingo Dam at U.S. Route 1. JOHN R. GRIFFIN L. Cecil County. Secretary of Natural Resources (1) Octoraro Creek: bridge on U.S. Route 222. (2) Rock Run: confluence with the Susquehanna River. Subtitle 02 FISHERIES SERVICE (3) Mill Creek: Old Elk Neck Road. (4) Principio Creek: Amtrak crossing below Maryland Route 7. 08.02.08 Shellfish (5) North East River: Maryland Route 7. (6) Little Elk Creek: U.S. Route 40. Authority: Natural Resources Article, §§4-206 and 4-215, Annotated Code of (7) Big Elk Creek: Maryland Route 213. Maryland (8) Bohemia River: Telegraph Road. Notice of Proposed Action (9) Happy Valley Branch: confluence with Susquehanna River. [11-222-P] M. Dorchester County. The Secretary of Natural Resources proposes to adopt new (1) Chicamicomico River: U.S. Route 50. Regulation .05 under COMAR 08.02.08 Shellfish. (2) Transquaking River: dam at Higgins Mill Pond. Statement of Purpose

The purpose of this action is to require an individual to declare 08.02.19 Nuisance and Prohibited Species their intent to harvest clams. The action would allow the Department Authority: Natural Resources Article, §4-205.1, Annotated Code of Maryland to determine the licensees who should be submitting clam reports and those who should receive shellfish closure books. .04 Classification of Nonnative Aquatic Organisms. A. (text unchanged) Comparison to Federal Standards B. A person may not transport the following nonnative aquatic There is no corresponding federal standard to this proposed action. organisms: Estimate of Economic Impact (1) Fish species: The proposed action has no economic impact. (a) — (f) (text unchanged) (g) Southern white river [crawfish] crayfish (Procambarus Economic Impact on Small Businesses zonangulus); and The proposed action has minimal or no economic impact on small (h) (text unchanged) businesses. (2) (text unchanged) Impact on Individuals with Disabilities C. — D. (text unchanged) The proposed action has no impact on individuals with disabilities. .08 Zebra Mussel-Free Certification. Opportunity for Public Comment A. The purpose of this regulation is to ensure that live aquatic bait Comments may be sent to Clam Declaration, Regulatory Staff, grown in an aquaculture operation and purchased from certified Maryland Department of Natural Resources Fisheries Service, 580 dealers is free of zebra mussels so that it will not adversely impact Taylor Ave., B2, Annapolis, MD 21401, or call 410-260-8300, or wild stocks of fish. email to [email protected], or fax to 410-260- B. Definitions. 8310. Comments will be accepted through September 12, 2011. A (1) In this regulation, the following terms have the meanings public hearing has not been scheduled. indicated. (2) Terms Defined. .05 Clam Harvester Declaration. (a)”Live aquatic bait” means any organism grown in an A. Registration. aquaculture operation and which is kept alive in water for use as bait (1) A tidal fish licensee who possesses a clam harvester or while fishing, and includes, but is not limited to: unlimited tidal fish license under Natural Resources Article, §4- (i) Tadpoles and other amphibians, 701(d)(ii), Annotated Code of Maryland, shall declare an intent to (ii) Minnows and other fish, harvest clams in order to participate in the clam season. (iii) Clams and other mollusks, (2) Declaration Schedule. (iv) Hellgrammites and other aquatic insects, (a) A tidal fish licensee may submit an application of (v) Crayfish and other crustaceans, and declaration during license renewal as described in Natural (vi) Leeches and other annelids. Resources Article, §4-701, Annotated Code of Maryland. (b) “Zebra mussel-free certification” means a certification (b) A tidal fish licensee shall submit the application for issued by the Department that signifies that the: declaration no later than March 31 of the license year for which the (i) Volume of water containing certain live aquatic bait is licensee intends to harvest. free of any life stage of zebra mussels, B. The individual shall declare separately for each of the (ii) Live aquatic bait comes from a source that does not following species: support zebra mussels, or (1) Soft-shell clams: (iii) Water and bait have been treated in a manner that (a) Mya arenaria; and kills any life stage of zebra mussel. (b) Razor clams (Tagelus plebeius); and C. Certification. (2) Hard-shell clams (Mercenaria mercenaria). (1) Certification is available to dealers of live aquatic bait.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1023 C. Reporting. Tidal fish licensees who declare an intent to harvest [(b)] (2) — [(d)] (4) (text unchanged) clams under this regulation shall report in accordance with COMAR (5) Public and private ponds in which State-supported fishing 08.02.13.06 on forms provided by the Department. rodeos are held may be designated put-and-take trout fishing areas D. Closure Areas. on the day of the rodeo and are subject to the provisions in §B(1) — (1) The Department shall provide the publication as described (4) of this regulation. in Natural Resources Article, §4-1006.2, Annotated Code of [(2)] (6) [The] Except as provided in §C(1) of this regulation Maryland, to each individual declaring an intent to harvest clams. the following areas are subject to [these regulations] the provisions in (2) An individual receiving the publication as described in §B(1) — (4) of this regulation: §D(2)(a) of this regulation shall certify to the Department on the (a) — (n) (text unchanged) form the Department prescribes that the person received the [(3) Public and private ponds in which State-supported fishing publication. rodeos are held may be designated put-and-take trout fishing areas on the day of the rodeo and are subject to a 5-trout limit.] JOHN R. GRIFFIN C. Catch-and-Return Trout Fishing Areas. Secretary of Natural Resources (1) Owens Creek. (a) Special provisions in effect on this area: Subtitle 02 FISHERIES SERVICE (i) From June 1 through the last day of February, a person may not keep or have any trout in possession while fishing; 08.02.11 Fishing in Nontidal Waters and (ii) A person may not possess or use any natural or live Authority: Natural Resources Article, §§4-205, 4-215, 4-215.2, 4-219, 4-402, 4-602, 4-603, 4-616, 5-209, and 10-808, Annotated Code of Maryland bait, or any device enhanced with a scent and capable of catching fish. Notice of Proposed Action (b) The area subject to the provisions of §C(1)(a) of this [11-210-P] regulation is Owens Creek mainstem from Raven Rock Road The Secretary of Natural Resources proposes to amend downstream to Roddy Road. Regulations .01, .03 — .05, and .08 and repeal Regulations .02, .07, (2) Areas with No Special Tackle Restrictions. and .09 under COMAR 08.02.11 Fishing in Nontidal Waters. (a) Special provisions in effect on this area: (i) Open season—no closed season; Statement of Purpose (ii) Creel and possession limits, all trout species in The purpose of this action is to reorganize the chapter to make it aggregate: daily—0, possession—0; and more readable. Specifically, this action combines all sections relating (iii) No special tackle restrictions. to trout into one regulation, combines text where appropriate in order (b) The area subject to the provisions of §C(2)(a) of this to make the text more readable, and repeals outdated text. No regulation is the North Branch Potomac River from the Upper substantive changes were made in the reorganization. Potomac River Commission Wastewater Treatment Plant discharge Comparison to Federal Standards at Westernport downstream to the Maryland Route 956 bridge at There is no corresponding federal standard to this proposed action. Pinto. (3) Areas Limited to Use of Artificial Lures Only. Estimate of Economic Impact (a) Special provisions in effect on these areas: The proposed action has no economic impact. (i) A person may not have any trout in possession while fishing in these areas. All trout which are caught shall be released Economic Impact on Small Businesses and returned to the water. The proposed action has minimal or no economic impact on small (ii) A person may fish only with artificial lures, including businesses. artificial flies. Impact on Individuals with Disabilities (iii) In these areas, a person may not possess or use any The proposed action has no impact on individuals with disabilities. natural or live bait, or any device enhanced with a scent and capable of catching fish. Opportunity for Public Comment (iv) The open season for artificial lure fishing is January Comments may be sent to Nontidal Chapter Reorganization, 1 through December 31, inclusive. Regulatory Staff, Department of Natural Resources Fisheries Service, (b) Areas subject to the provisions of this section are: B-2, 580 Taylor Avenue, Annapolis, MD 21401, or call 410-260- (i) Patuxent River, Howard and Montgomery counties. 8300, or email to [email protected], or fax to The mainstem of the Patuxent River from the crossing of Maryland 410-260-8310. Comments will be accepted through September 12, Route 97 upstream to the crossing of Maryland Route 27 and Cabin 2011. A public hearing has not been scheduled. Branch from its confluence with the Patuxent River upstream to .01 Trout Fishing and Management Areas. Hipsley Mill Road. A. Basic Statewide Trout Fishing. Except as listed in [§B] §§B — (ii) Morgan Run, Carroll County. From bridge on H of this regulation, [or specifically exempted by law or other London Bridges Road upstream to bridge on Maryland Route 97. regulation,] the following shall be in effect for trout fishing in all (iii) Paint Branch and Tributaries, Montgomery County nontidal waters of the State: upstream of Fairland Road. (1) — (5) (text unchanged) (iv) Gunpowder Falls, Baltimore County. Mainstem, from B. Put-and-Take Trout Fishing Areas. Prettyboy Reservoir Dam downstream to Bluemount Road. (1) [The following are in effect for all put-and-take trout (v) North Branch Potomac River from an overhead cable fishing areas listed under §B(2) of this regulation: and red bank post located approximately 510 yards below the (a)] Open Season. Put-and-take trout fishing areas are closed Jennings Randolph Reservoir spillway downstream approximately 1 to all fishing from 10 p.m. of the first date to 5:30 a.m. of the last mile to a red post, located approximately 100 yards above the date, during the period listed in the following schedule: upstream concrete abutments at Barnum, West Virginia, and from a [(i)] (a) — [(v)] (e) (text unchanged) red post located below a pool known as Blue Hole approximately 1/3 MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1024 mile upstream of Bench Mark 1110 on the Westernport U.S.G.S. (2) Savage River mainstem from the Savage River Reservoir Quadrangle, downstream approximately 4 miles to the confluence of Dam downstream to the lower suspension bridge (Allegany Bridge) is Piney Swamp Run. a trophy trout fishing area. The following apply: (vi) Youghiogheny River, Garrett County. Mainstem (a) Open season—no closed season beginning at a red post approximately 100 yards upstream of the (b) Creel limit all trout species in aggregate — daily: 2, Deep Creek Lake tailrace and extending downstream 4 miles to the possession: 2. Sang Run Bridge. (c) Minimum size: brook trout—12 inches; brown trout—18 (vii) Little Hunting Creek, Frederick County. Mainstem inches; all other species of trout—no minimum size. from a red post located approximately 1/4 mile downstream of (d) A person may fish only with artificial flies. Maryland Route 806, upstream approximately 1 mile to the upper (e) In these areas, a person may not possess or use any boundary of Cunningham Falls State Park Manor Area. natural or live bait, or any device enhanced with a scent and capable (4) Areas Limited to Artificial Fly Fishing Only. of catching fish. Section C(4)(a)(ii)—(iv), of this regulation shall (a) Special provisions in effect on these areas: apply to this special trout management area. (i) A person may not have any trout in possession while (f) A person may not have in possession any trout smaller fishing in these areas. All trout which are caught shall be released than the minimum size limit in effect for this area. and returned to the water. E. Areas Limited to Fishing by Persons under 16 Years Old, 65 (ii) A person may fish only with artificial flies and Years Old and Older, and Blind Persons. streamers constructed in a normal fashion using natural or synthetic (1) Special provisions in effect on these areas: materials, or both, which may include feathers, fur, hair, tinsel, (a) Fishing in these areas is limited to persons under 16 thread, fiber, plastic, cork, wire, and rubber, on a single hook with years old, persons 65 years old and older, and blind persons; the components wound on or about the hook. A person may not use (b) Section B(1) — (4) of this regulation shall apply to these molded replicas of insects, earthworms, fish eggs, fish, or any special trout management areas. invertebrate or vertebrate, either singly or in combination with the (2) Areas subject to provisions of this section: other materials, or other lures commonly described as spinners, (a) Jones Falls, Baltimore County. That portion of Jones spoons, or plugs made of metal, plastic, wood, rubber, or a similar Falls and tributaries above Stevenson Road to their source. substance or a combination of these. (b) Laurel Run (Moscow), Allegany County. (iii) A person may fish only with conventional fly fishing (c) Avalon Pond, Baltimore County. tackle, including fly rods, fly reels, and fly line with a maximum of 18 (d) Pangborn Pond, Washington County. feet of leader or monofilament line attached. Any method of angling (e) Rising Sun Pond from March 1 through May 15. when the fly is cast directly from the reel is prohibited. The use of (f) Lion’s Park Pond (Frostburg), Allegany County. spinning, spincast, and casting reels is prohibited. F. Areas Limited to Fishing by Persons under 16 Years Old and (iv) In these areas, a person may not possess or use any Blind Persons. natural or live bait, or any device enhanced with a scent and capable (1) Special provisions in effect on these areas. of catching fish. (a) Fishing in these areas is limited to individuals under 16 (v) The open season is January 1 through December 31, years old and blind persons. inclusive. (b) Section B(1) — (4) of this regulation shall apply to these (b) Areas subject to provisions of this section are: special trout management areas. (i) Big Hunting Creek, Frederick County. All waters of (2) Areas subject to provisions of this section: Big Hunting Creek and its tributaries within Cunningham Falls State (a) Carroll Creek from a red post located approximately Park and Catoctin Mountain Park except Owens Creek, Little 300 yards upstream of Baughmans Lane downstream to the dam at Hunting Creek, Cunningham Falls Lake, and Frank Bentz Pond; College Avenue; (ii) Beaver Creek, Washington County. From the (b) Little Tonoloway Creek within Weidmeyer Park in confluence with Black Rock Creek downstream approximately 1 mile Hancock; to a red post located 0.1 mile above Beaver Creek Road; and (c) Glades Park Pond on Liberty Street in Oakland; (iii) Patuxent River, Montgomery and Howard Counties. (d) George’s Creek within Town Park in Westernport; From red bank posts located on both sides of the river approximately (e) Little Antietam Creek at Keedysville, from Coffman 400 yards below Brighton Dam downstream to Mink Hollow Road. Farms Road downstream to Maryland Route 34; and D. Trophy Trout Fishing Areas. (f) Grantsville Parkview Pond off Hershberger Lane. (1) Savage River mainstem from the downstream side of the G. Delayed Harvest Trout Fishing Areas and Requirements. Route 135 bridge upstream for a distance of approximately 2.7 miles (1) Group I Delayed Harvest Trout Fishing Areas and to the lower suspension bridge (Allegany Bridge) is a trophy trout Restrictions. fishing area. The following apply: (a) Group I Fishing Areas. (a) Open season—no closed season. (i) Catoctin and Little Catoctin Creek (Frederick County) (b) Creel limit all trout species in aggregate—daily: 2, from U.S. Route 40 near its intersection with Maryland Route 17 possession: 2. within Doubs Meadow Park downstream to the lower park boundary (c) Minimum size: brook trout—12 inches; brown trout—18 near Myersville. inches; all other species of trout—no minimum size. (ii) Middle Patuxent River (Howard County) from U.S. (d) A person may not have in possession any trout smaller Route 29 downstream to Murray Hill Road. than the minimum size limit in effect for this area. (iii) Town Creek mainstem (Allegany County) within (e) A person may fish only with artificial lures, including Green Ridge State Forest, from a red post located approximately 3/4 artificial flies. Treble hooks are prohibited. Each artificial lure is mile downstream of the upper ford on lower Town Creek Road, just restricted to a single hook with a single hook point. south of the Wagner Road intersection, downstream to a red post (f) In these areas, a person may not possess or use any located just upstream of the lower ford on Lower Town Creek Road natural or live bait, or any device enhanced with a scent and capable (Mallory Place), and from a post located approximately 1/2 mile of catching fish.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1025 downstream of Maniford Road to a red post located approximately 1- .03 Special Fisheries Management Areas. 3/4 miles downstream (Bull Ring Ranch). [A.] — [C.] (proposed for repeal) (b) Season, Creel, and Possession Limits for Group I [D.] A. (text unchanged) Fishing Areas. [E.] B. Impoundments Limited to Catch-and-Return Fishing. (i) From June 1 through September 30, inclusive, the (1) (text unchanged) daily creel limit and possession limit is five trout (all species of trout (2) While fishing in the areas set forth in [§E(1)] §B(1) of this in aggregate); and regulation, a person: (ii) From October 1 through May 31, inclusive, a person (a) — (b) (text unchanged) may not have any trout in possession while fishing in these areas, and C. Catch-and-Return Bass Areas. shall immediately release any trout caught to the water from which (1) Special provisions in effect for catch-and-return bass areas the trout was taken. are that a person: (c) Bait Restrictions for Group I Fishing Areas. (a) Who catches a largemouth or smallmouth bass shall (i) From June 1 through September 30, no special bait, immediately release that bass in the water where it was caught; and lure, or tackle restrictions are in effect. (b) May not possess largemouth or smallmouth bass while (ii) From October 1 through May 31, in these areas, a within the designated catch-and-return areas. person may not possess or use any natural or live bait, or any device (2) The areas subject to the provisions of this section are the: enhanced with a scent and capable of catching fish. (a) Potomac River from Dam No. 2 (Seneca Breaks) (2) Group II Delayed Harvest Trout Fishing Areas and upstream to the mouth of the Monocacy River; Restrictions. (b) Monocacy River from the Potomac River upstream to (a) Group II Fishing Areas. Buckeystown Dam; (i) Casselman River mainstem (Garrett County) from a (c) Patapsco River from Interstate 70 downstream to boundary marked by two red posts on both stream banks located on Maryland Route 144 (Frederick Road); the south side of the Interstate 68 eastbound bridge downstream to (d) Wheatley Lake (Gilbert Run Reservoir); and the Pennsylvania state line. (e) North Branch of the Potomac River, from the spillway in (ii) North Branch Potomac River mainstem (Garrett Cumberland upstream 25 miles to the U.S. Route 220 Bridge at County) from the lowermost boundary of the Potomac State Forest Keyser, West Virginia. near Lostland Run to the uppermost boundary of the Potomac State [F.] (proposed for repeal) Forest at Wallman. [G.] D. (text unchanged) (iii) Youghiogheny River mainstem (Garrett County) [H.] (proposed for repeal) below Friendsville from a site located 50 yards downstream of Maple [I.] E. (text unchanged) Street (at the confluence of Minnow Run) downstream 1.8 miles to the [J.] — [L.] (proposed for repeal) powerline crossing upstream of the Youghiogheny Reservoir. (b) Season, Creel, and Possession Limits for Group II .04 Statewide General Regulations. Fishing Areas. A. — B. (text unchanged) (i) From June 16 through September 30, inclusive, the C. Open Seasons, Creel, Possession, and Size Limits on Game and daily creel limit and possession limit is five trout (all species of trout Fresh Water Fish in Nontidal Waters. Except as otherwise provided in aggregate). in this chapter for specific areas, the following apply Statewide: (ii) From October 1 through June 15, inclusive, a person (1) Open Seasons. may not have any trout in possession while fishing in these areas, and Species Open Season shall immediately release any trout caught to the water from which the trout was taken. (a) (text unchanged) (c) Bait Restrictions for Group II Fishing Areas. (b) Trout (all species) No closed season, except as (i) From June 16 through September 30, inclusive, no provided in [Regulations .01B and special bait, lure, or tackle restrictions are in effect. .03C, F, H, and J] Regulation .01B, (ii) From October 1 through June 15, inclusive, in these C, E, F, and G of this chapter. areas, a person may not possess or use any natural or live bait, or any device enhanced with a scent and capable of catching fish. (c) — (n) (text unchanged) H. Zero Creel Limit Areas for Brook Trout. (2) (text unchanged) (1) Special provisions in effect in these areas are: (3) Minimum Size from Tip of Nose to End of Caudal Fin or (a) Open season—no closed season; Tail. (b) Creel limit. Brook trout: daily—0, possession—0; all other trout species in aggregate: daily—2, possession—2; 12 inches, except as provided in (c) Tackle is restricted to artificial flies and lures; and (a) Largemouth bass Regulation [.03D and I] .03A and E of (d) In these areas, a person may not possess or use any this chapter. natural or live bait, or any device enhanced with a scent and capable 12 inches, except as provided in (b) Smallmouth bass of catching fish. Regulation [.03D] .03A of this chapter. (2) The area subject to the provisions of this section is the Savage River mainstem and tributaries upstream of the Savage River (c) — (f) (text unchanged) Reservoir dam, excluding impoundments and Put-and-Take Trout As provided for in Regulation [.03G] (g) Striped bass Fishing Areas (Savage River Reservoir, Savage River from Savage .03D of this chapter. River Reservoir upstream to Poplar Lick Run, and New Germany Lake). (h) — (s) (text unchanged) D. — E. (text unchanged) [F.] (proposed for repeal) [G.] F. — [H.] G. (text unchanged)

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1026 [I. Repealed.] [J.] H. — [N.] L. (text unchanged) Subtitle 07 FORESTS AND PARKS [O.] M. Bait. 08.07.07 Licensed Tree Experts (1) A person may not [take or possess more than 35 bait fish in any day from nontidal waters of the State. This section does not apply Authority: Natural Resources Article, §§5-415—5-423, Annotated Code of to bait fish commercially propagated or reared.]: Maryland (a) Take or possess more than 35 bait fish in any day from Notice of Proposed Action nontidal waters of the State; or [11-212-P] (b) Take bait fish of any area described in Regulation .01B The Secretary of Natural Resources proposes to adopt new — H of this chapter. Regulation .07 and recodify existing Regulation .07 to be Regulation (2) Crayfish. .08 under COMAR 08.07.07 Licensed Tree Expert. (a) (text unchanged) (b) In addition to [§O(2)(a)] §M(2)(a) of this regulation, Statement of Purpose regulations relating to the importation, transport, purchase, The purpose of this action is to adopt amendments to the possession, propagation, sale, or release of specific nuisance species regulations to reflect the recent statutory changes adopted during the of crayfish appear in COMAR 08.02.19.04. 2011 Legislative Session. The statutory changes repealed the [P.] N. Possession of Fish Whose Physical Condition has been specified fees for obtaining and renewing tree expert licenses and Altered. authorized the Department of Natural Resources to set these fees, a (1) — (2) (text unchanged) time frame for the fees and procedures by regulations. (3) This provision does not apply to the capture of snakehead fish, under [§U] §S of this regulation. Comparison to Federal Standards [Q.] O. (text unchanged) There is no corresponding federal standard to this proposed action. [R.] P. Use of Dip Nets, Cast Nets, and Seines in Nontidal Waters. Estimate of Economic Impact (1) — (4) (text unchanged) I. Summary of Economic Impact. There will be an initial (5) [A person may not use a net, other than a landing net, on economic impact on the licensed tree expert companies. Currently any Put-and-Take Trout Fishing Area or Special Fisheries licenses are renewed annually. Starting in December 2011, the Management Area for Trout.] A person may not use seines, traps, or renewal fee will be increased to reflect a 2-year license. The fee will nets of any description in or upon the waters of the State described in be increased on a staggered basis with the odd-numbered licenses Regulation .01B — H of this chapter. This section does not apply to switching to a 2-year license and increased fee in 2011 and the even- landing nets used to land fish caught by angling. numbered licenses in 2012. (6) (text unchanged) (7) Subject to the provisions of [§R] §P of this regulation, a Revenue (R+/R-) seine not more than 6 feet in length nor more than 4 feet in depth or a II. Types of Economic Expenditure dip net may be used by residents to catch bait fish. Impact. (E+/E-) Magnitude [S.] Q. — [T.] R. (text unchanged)

[U.] S. Snakehead Harvest. (1) Notwithstanding Natural Resources Article, §4-710(g), Annotated Code of Maryland, an individual may capture and possess B. On other State agencies: NONE a snakehead fish using any legal method if, upon capture, the [head]: C. On local governments: NONE (a) Head of the snakehead fish is immediately removed[, the body]; (b) Body is gutted[, the gill]; Benefit (+) (c) Gill arches are removed from both sides of the fish[,]; or Cost (-) Magnitude [the fish] (d) Fish is filleted [upon capture]. (2) — (3) (text unchanged) [V.] T. — [W.] U. (text unchanged) D. On regulated industries or trade groups: (-) Minimal .05 [Special Permits and Licenses] Fee Fishing Lakes. [A. Fee Fishing Lakes.] E. On other industries or trade [(1)] A. — [(3)] C. (text unchanged) groups: NONE [B.] (proposed for repeal) F. Direct and indirect effects on public: NONE .08 Special Regulations for Deer Creek and Swan Creek. III. Assumptions. (Identified by Impact Letter and Number from A. — B. (text unchanged) Section II.) C. Scientific Collection Permit. A person may collect fish and eggs for scientific purposes in Deer Creek and Swan Creek only if he D. The license renewal fee will be increased from $10 yearly to first obtains a special scientific permit for these waters from the $25 every 2 years. This is a yearly increase of $2.50. Department. Any scientific permit issued before January 1, 1975, for the collection of fish and eggs is revoked with respect to the Economic Impact on Small Businesses collection of fish and eggs in Deer Creek and Swan Creek. The proposed action has minimal or no economic impact on small businesses. JOHN R. GRIFFIN Secretary of Natural Resources Impact on Individuals with Disabilities The proposed action has no impact on individuals with disabilities.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1027 the Maryland Bred Advisory Committee to allocate these funds as Opportunity for Public Comment needed to best promote the breeding industry in Maryland. Comments may be sent to Marian Honeczy, Supervisor, Urban and Community Forestry, Department of Natural Resources Forest Comparison to Federal Standards Service, 580 Taylor Ave., E-1, Annapolis, MD 21401, or call 410- There is no corresponding federal standard to this proposed action. 260-8511, or email to [email protected], or fax to 410-260- 8595. Comments will be accepted through September 12, 2011. A Estimate of Economic Impact public hearing has not been scheduled. The proposed action has no economic impact. Economic Impact on Small Businesses .07 License Application and Renewal Fees. The proposed action has minimal or no economic impact on small A. An applicant shall pay to the Department, as part of the businesses. examination application, a $30 fee. If the applicant fails an examination, an additional $20 fee must be paid for each subsequent Impact on Individuals with Disabilities examination application. The proposed action has no impact on individuals with disabilities. B. A tree expert license shall be renewed every 2 years. C. License Renewal Schedule. Opportunity for Public Comment (1) All licensees shall renew their licenses by December 31, Comments may be sent to J. Michael Hopkins, Executive Director, 2011, for the 2012 calendar year. Maryland Racing Commission, 300 East Towsontown Boulevard, (2) Commencing with 2011 renewals for the 2012 calendar Baltimore, MD 21202, or call 410-296-9682, or email to year: [email protected], or fax to 410-296-9687. Comments will (a) Odd-numbered licenses will be renewed for a 2-year be accepted through December 30, 2011. A public hearing has not period and every subsequent odd-numbered year; and been scheduled. (b) Even-numbered licenses will be renewed for a 1-year .49 Rewards to Breeders — Maryland-Bred Rules. period and will be renewed for a 2-year period every subsequent A. — C. (text unchanged) even-numbered year. D. [Five] Subject to the approval of the Commission, up to 10 D. Renewal Fees. percent of all monies allocated to the Maryland-Bred Race Fund (1) A licensed tree expert shall pay a $25 fee every 2 years for under Business Regulation Article, §§11-515 and 11-525(d), license renewal in accordance with the schedule in §C of this Annotated Code of Maryland, and all earnings on these monies, after regulation. the deduction of the amounts under §C of this regulation, shall be (2) Licensees renewing in accordance with §C(2)(b) of this paid to the Maryland Horse Breeders Association as compensation regulation shall pay a $10 renewal fee for the 2012 license year. for the administration of the Maryland-Bred Race Fund. JOHN R. GRIFFIN E. — F. (text unchanged) Secretary of Natural Resources G. With the exception of the monies allocated to this Fund which were generated by the handle on Maryland Million Day, [55 percent] subject to the approval of the Commission, a portion of all the remaining money allocated to this Fund from each race meeting that Title 09 generates revenue for the Fund, and all earnings on these monies, shall be distributed in the form of purse money and owner awards [as DEPARTMENT OF LABOR, determined by the Commission, with the advice of the Maryland- Bred Race Fund Advisory Committee, by applying the following LICENSING, AND criteria] on a semi-annual basis as follows: (1) — (2) (text unchanged) REGULATION H. After the application of §G of this regulation, the remaining [45 percent] portion of the monies allocated to this Fund, and all earnings Subtitle 10 RACING COMMISSION on these monies, shall be distributed in the form of breeder and 09.10.01 Thoroughbred Rules stallion owner awards as follows: (1) To a breeder of a registered Maryland-bred horse which Authority: Business Regulation Article, 11-210, Annotated Code of Maryland won a race, or finished second, third, or fourth in a stakes race [at a race meeting that generates revenue for the Fund]; and Notice of Proposed Action (2) To the owner of a stallion, as defined by §A(4) of this [11-216-P] regulation, if a registered Maryland-bred sired by the stallion won a The Maryland Racing Commission proposes to amend Regulation race, or finished second, third, or fourth in a stakes race [at a race .49 under COMAR 09.10.01 Rewards to Breeders. This action was meeting that generates revenue for the Fund]. considered by the Maryland Racing Commission at an open public I. — N. (text unchanged) meeting held pursuant to State Government Article, §10-506(c), Annotated Code of Maryland on Wednesday June 29, 2011. J. MICHAEL HOPKINS Executive Director Statement of Purpose The purpose of this action is to provide language requiring the Racing Commission to approve an increase from 5 percent up to 10 percent of the amount paid to the Maryland Horse Breeders Association to administer the fund and amends the language that specifies what percentage of the fund is to be paid as purses and bonuses paid to breeders, owners and stallion owners. The amended language allows the Racing Commission with the recommendation of

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1028 Subtitle 19 COMMISSION OF REAL E. On other industries or trade groups: NONE ESTATE APPRAISERS AND HOME F. Direct and indirect INSPECTORS — REAL ESTATE effects on public: NONE APPRAISERS III. Assumptions. (Identified by Impact Letter and Number from Section II.) 09.19.07 Fees D. License and certificate holders will be required to pay the Authority: Business Occupations and Professions Article, §§16-216, 16- adjusted fee to the Appraisal Subcommittee in order to be included 304(d), and 16-506(d), Annotated Code of Maryland on the National Registry. Only appraisers on the National Registry are eligible to perform appraisals in connection with federally related Notice of Proposed Action transactions. The National Registry benefits appraisers, consumers, [11-217-P] lenders, government agencies, and all other users of appraisal The Commission of Real Estate Appraisers and Home Inspectors services. proposes to amend Regulation .01 under COMAR 09.19.07 Fees. F. This action enhances the Appraisal Subcommittee’s oversight This action was considered at a public meeting of the Commission of the appraiser regulatory programs, which benefits all users of held on February 8, 2011, notice of which was given in 38:2 Md. R. appraisal services. 135 (January 14, 2011) pursuant to State Government Article, §10- 506(c), Annotated Code of Maryland. Economic Impact on Small Businesses The proposed action has minimal or no economic impact on small Statement of Purpose businesses. The purpose of this action is to amend COMAR 09.19.07.01 to increase the annual National Registry fee. The fee increase was Impact on Individuals with Disabilities adopted by the Appraisal Subcommittee of the Federal Financial The proposed action has no impact on individuals with disabilities. Institutions Examination Council on October 13, 2010, to become effective on January 1, 2012. This action ensures that federal Opportunity for Public Comment standards adopted by the Appraisal Subcommittee are in effect in Comments may be sent to Patricia Schott, Administrator, Maryland as required under federal law. Commission of Real Estate Appraisers and Home Inspectors, 500 North Calvert Street, Baltimore, MD 21202, or call 410-230-6165, or Comparison to Federal Standards email to [email protected], or fax to 410-333-6314. There is a corresponding federal standard to this proposed action, Comments will be accepted through October 4, 2011. A public but the proposed action is not more restrictive or stringent. hearing has not been scheduled. Estimate of Economic Impact .01 Fees Owed the Commission. I. Summary of Economic Impact. There is no direct impact on A. (text unchanged) the agency as these fees are nonbudgeted funds collected by the B. At the time a license or certificate is issued by the Commission, agency and paid to the Appraisal Subcommittee. The Appraisal the licensee or certificate holder shall pay to the Commission [$25] Subcommittee uses the fees to fund its operation and maintain a $40 for each year for which the license is issued. This fee will be National Registry. The National Registry is a database that contains transmitted to the Appraisal Subcommittee of the Federal Financial information about, and records disciplinary actions that have been Institutions Examinations Council as required by 12 U.S.C. §3338. taken against, the nation’s state-certified and -licensed real estate C. — D. (text unchanged) appraisers who are authorized to perform appraisal services in connection with federally related transactions. There is an annual fee PATRICIA SCHOTT charged to each license and certificate holder who obtains an original Administrator license or certificate or renews an existing license or certificate. This Commission of Real Estate Appraisers and Home inspectors action increases the fee to $40 from its current fee of $25.

Revenue (R+/R-) Title 10 II. Types of Economic Expenditure Impact. (E+/E-) Magnitude DEPARTMENT OF HEALTH AND MENTAL HYGIENE

A. On issuing agency: NONE Subtitle 09 MEDICAL CARE B. On other State agencies: NONE PROGRAMS C. On local governments: NONE 10.09.07 Medical Day Care Services Benefit (+) Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-111, Cost (-) Magnitude Annotated Code of Maryland Notice of Proposed Action [11-224-P] D. On regulated industries The Secretary of Health and Mental Hygiene proposes to amend or trade groups: (-) Minimal Regulation .08 under COMAR 10.09.07 Medical Day Care Services.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1029 Statement of Purpose Opportunity for Public Comment The purpose of this action is to reduce Medicaid reimbursement Comments may be sent to Michele Phinney, Director, Office of for medical day care services effective July 1, 2011. Regulation and Policy Coordination, Department of Health and Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, Comparison to Federal Standards Maryland 21201, or call 410-767-6499, or email to There is no corresponding federal standard to this proposed action. [email protected], or fax to 410-767-6483. Comments will be Estimate of Economic Impact accepted through September 12, 2011. A public hearing has not been I. Summary of Economic Impact. This proposal will decrease scheduled. the current per diem rate by 1 percent, effective July 1, 2011. .08 Payment Procedures. Revenue (R+/R-) A.―C. (text unchanged) II. Types of Economic Expenditure D. Per Diem Rate. Impact. (E+/E-) Magnitude (1) Payment to a provider of medical day care services shall be on a per diem basis. The per diem rate is [$73.27] $71.08 effective [November 1, 2008 through September 30, 2009. The per diem rate shall be $71.80 effective October 1, 2009 through June 30, 2010] July A. On issuing agency: (E-) $3,566,603 1, 2011. (2) Effective July 1, [2010] 2012, subject to the limitations of B. On other State the State’s budget, the per diem rate shall be adjusted annually by agencies: NONE adjusting the per diem rate for the preceding fiscal year by the C. On local governments: NONE percentage of the annual increase in the March Consumer Price Index for All Urban Consumers, medical care component, Washington- Baltimore, from U.S. Department of Labor, Bureau of Labor Benefit (+) Statistics. This rate shall be established 1 month before the beginning Cost (-) Magnitude of the State’s new fiscal year and shall be applicable for the State’s entire fiscal year. (3) (text unchanged) E. (text unchanged) D. On regulated industries or trade groups: (-) $3,566,603 JOSHUA M. SHARFSTEIN, M.D. E. On other industries or Secretary of Health and Mental Hygiene trade groups: NONE F. Direct and indirect Subtitle 09 MEDICAL CARE effects on public: NONE III. Assumptions. (Identified by Impact Letter and Number from PROGRAMS Section II.) 10.09.53 Early and Periodic Screening, A. Under the pre-existing regulatory provisions, the Fiscal Year Diagnosis, and Treatment: Private Duty 2012 per diem rate of $71.80 for medical day services would have increased by 3.4 percent to $74.24, based on the annual increase in Nursing the March Consumer Price Index. Under the provisions of the Authority: Health-General, §§2-104(b), 15-103, and 15-105, Annotated Code proposed amendment, the Fiscal Year 2012 per diem rate will be of Maryland reduced due to State budget limitations. Effective July 1, 2011 the medical day care services reimbursement rate of $71.80 will be Notice of Proposed Action reduced by 1 percent to $71.08. This 1 percent reduction will amount [11-225-P] to a cost savings of $3.16 per unit of service. The projected days of The Secretary of Health and Mental Hygiene proposes to amend service for FY 2012 is 1,128,672 days. Based on a cost savings of Regulation .07 under COMAR 10.09.53 Early and Periodic $3.16 and the projected days of service, the savings for Fiscal Year Screening, Diagnosis, and Treatment: Private Duty Nursing. 2012 will be $3,566,603.00. Fifty percent of this amount is federal Statement of Purpose funds. The purpose of this action is to implement a 1 percent rate D. Medicaid payments to providers of medical day care services decrease for private duty nursing providers in Fiscal Year 2012. will be reduced by $3,566,603 during Fiscal Year 2012 as described in Section A. Comparison to Federal Standards There is no corresponding federal standard to this proposed action. Economic Impact on Small Businesses The proposed action has a meaningful economic impact on small Estimate of Economic Impact I. Summary of Economic Impact. This proposal will decrease business. An analysis of this economic impact follows. reimbursement rates by 1 percent for providers. Many medical day care providers are small businesses and the proposed action will have a negative impact on their annual budgets. Revenue (R+/R-) Impact on Individuals with Disabilities II. Types of Economic Expenditure The proposed action has an impact on individuals with disabilities Impact. (E+/E-) Magnitude as follows: The proposed action will affect rates to providers of services to individuals with disabilities. No impact on access or quality of services is anticipated. A. On issuing agency: (E-) $4,419,031

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1030 B. On other State agencies: NONE shall be adjusted annually by adjusting the fee by the percentage of C. On local governments: NONE the annual increase in the March Consumer Price Index for All Urban Consumers, medical care component, Washington-Baltimore, from the U.S. Department of Labor, Bureau of Labor Statistics. Benefit (+) Cost (-) Magnitude JOSHUA M. SHARFSTEIN, M.D. Secretary of Health and Mental Hygiene

D. On regulated industries or Subtitle 09 MEDICAL CARE trade groups: (-) $4,419,031 PROGRAMS E. On other industries or trade groups: NONE 10.09.54 Home/Community Based Services F. Direct and indirect effects Waiver for Older Adults on public: NONE Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-132, III. Assumptions. (Identified by Impact Letter and Number from Annotated Code of Maryland Section II.) Notice of Proposed Action A. Reimbursement to providers for services is projected to be [11-209-P] $99,428,210 in FY 2012 based on a 1 percent rate decrease. Provider The Secretary of Health and Mental Hygiene proposes to amend rates would have increased by 3.4 percent under the prior regulations, Regulation .33 under COMAR 10.09.54 Home and Community increasing the cost of the Program to $103,847,241, therefore the Based Services Waiver for Older Adults. savings to the Program resulting from the decrease in proposed rates will be $4,419,031 in FY 2012. Fifty percent of this amount is federal Statement of Purpose funds. The purpose of this action is to implement a 1 percent rate decrease for Waiver for Older Adults providers in Fiscal Year 2012. D. The proposed reduction in reimbursement rates will decrease projected revenue by $4,419,031 for providers, as described in Comparison to Federal Standards Section A. There is no corresponding federal standard to this proposed action. Economic Impact on Small Businesses Estimate of Economic Impact The proposed action has minimal or no economic impact on small I. Summary of Economic Impact. This proposal will decrease businesses. reimbursement rates by 1 percent for providers of waiver services.

Impact on Individuals with Disabilities Revenue (R+/R-) The proposed action has an impact on individuals with disabilities II. Types of Economic Expenditure as follows: Impact. (E+/E-) Magnitude This rate decrease will have an impact on service providers but is not expected to effect access or quality of care for individuals with disabilities. Opportunity for Public Comment A. On issuing agency: (E-) $2,972,344 Comments may be sent to Michele Phinney, Director, Office of B. On other State agencies: NONE Regulation and Policy Coordination, Department of Health and C. On local governments: NONE Mental Hygiene, 201 W. Preston St., Baltimore, Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or email to [email protected], or fax to 410-767-6483. Comments will be Benefit (+) accepted through August 12, 2011. A public hearing has not been Cost (-) Magnitude scheduled. .07 Payment Procedures. A. (text unchanged) D. On regulated industries B. Effective [November 1, 2008] July 1, 2011, payment to a or trade groups: (-) $2,972,344 provider of private duty nursing services may not exceed the E. On other industries or following fee schedule: trade groups: NONE (1) (text unchanged) (2) [$7.91] $7.83 for 15 minutes of skilled nursing services F. Direct and indirect effects provided to one participant; and on public: NONE (3) [$5.46] $5.41 for 15 minutes of skilled nursing services III. Assumptions. (Identified by Impact Letter and Number from provided to each of two or more participants in the same residence. Section II.) C. Payment to a provider of private duty nursing services may not A. Reimbursement to providers for services is projected to be exceed the lesser of: $84,074,886 in FY 2012 based on a 1 percent rate decrease. Provider (1) The rates established under [§§ A and B] §B of this rates would have increased by 2.5 percent under the prior regulations, regulation; and increasing the cost of the program to $87,047,230; therefore the (2) (text unchanged) savings to the Program resulting from the decrease in proposed rates D. Effective July 1, [2010,] 2011, subject to the limitations of the will be $2,972,344 in FY 2012. Fifty percent of this amount is federal State budget, the fee schedule rates in §B(2) and (3) of this regulation

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1031 funds. Department of Aging, not to exceed [$45.21] $43.87, for each day that a participant attended the center for at least 4 hours, not D. Provider reimbursement rates will decrease by $2,972,344 including transportation to and from the center. under the provisions of the proposed amendment, as described in (8) Personal Care. A qualified provider shall bill the Program a Section A. rate for each hour of covered services not to exceed: Economic Impact on Small Businesses (a) [$10.17] $9.87 per hour for personal care aide services The proposed action has minimal or no economic impact on small rendered by a self-employed aide, not including medication businesses. administration or assistance with administration of medication; (b) [$13.27] $12.87 per hour for personal care aide services Impact on Individuals with Disabilities which include delegated nursing functions rendered by an The proposed action has an impact on individuals with disabilities appropriately certified self-employed aide under the supervision of a as follows: registered nurse; The proposed rate decrease will have an impact on service (c) [$13.01] $12.62 per hour for personal care aide services providers but it is not expected to effect access or quality of care for rendered by an aide employed by a personal care provider agency, individuals with disabilities. not including medication administration or assistance with Opportunity for Public Comment administration of medication; Comments may be sent to Michele Phinney, Director, Office of (d) [$16.95] $16.44 per hour for personal care aide services, Regulation and Policy Coordination, Department of Health and which include delegated nursing functions, rendered by an Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, appropriately certified aide employed by a personal care provider Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or agency, under the supervision of a registered nurse; email to [email protected], or fax to 410-767-6483. Comments (e) [$62.17] $60.32 per hour for personal care nurse monitor will be accepted through September 12, 2011. A public hearing has services rendered by a licensed registered nurse employed by a not been scheduled. personal care provider agency. (9) Respite Care. A qualified provider shall bill the Program a .33 Payment Procedures. rate for each hour of covered services not to exceed: A.—B. (text unchanged) (a) [$10.17] $9.87 per hour for respite care services rendered C. Payments. by a self-employed respite care worker; (1)—(2) (text unchanged) (b) [$13.01] $12.62 per hour for respite care services (3) The Program’s maximum rates as specified in §C(4)—(9) rendered by a respite care worker employed by a respite care provider and (12)—(14) of this regulation shall be effective [November 1, agency or facility, except a nursing facility or assisted living facility; 2008 through September 30, 2009. The rates shall be reduced by 2 (c) [$135.62] $131.58 per day for respite care services percent effective October 1, 2009, and the resulting rates] July 1, delivered in a nursing facility; or 2011 and shall increase on July 1 of each year beginning July 1, (d) [$72.33] $70.17 per day for respite care services [2010] 2012, subject to the limitations of the State budget, by the delivered in an assisted living facility. lesser of: (10)—(11) (text unchanged) (a)—(b) (text unchanged) (12) Family or Consumer Training. A qualified provider shall (4) Assisted Living Services. bill the Program an all-inclusive rate not to exceed [$62.17] $60.32 (a)—(c) (text unchanged) for each hour of covered services. (d) Payments for assisted living services as covered under (13) Home-Delivered Meals. A qualified provider shall bill the Regulation .16 of this chapter are: Program an all-inclusive rate not to exceed [$5.65] $5.48 for each (i) [$56.85] $55.15 per day for Level II assisted living delivered meal. services; (14) Dietitian and Nutritionist Services. A qualified provider (ii) [$42.65] $41.38 per day for Level II assisted living shall bill the Program a rate not to exceed [$62.17] $60.32 for each services on a day that the participant also received medical day care hour of covered services. services; (15)—(17) (text unchanged) (iii) [$71.72] $69.59 per day for Level III assisted living JOSHUA M. SHARFSTEIN, M.D. services; or Secretary of Health and Mental Hygiene (iv) [$53.78] $52.17 per day for Level III assisted living services on a day that the participant also received medical day care services. Subtitle 09 MEDICAL CARE (5) Environmental Assessment. (a) A qualified provider shall bill the Program the lesser of PROGRAMS [$395.59] $383.80 or its usual and customary charge to the general public for the services rendered, minus any payments by other third 10.09.55 Living at Home Waiver Program party payers such as Medicare. Authority: Health-General Article, §§2-104(b), 15-103, [and] 15-105, and 15- (b) If the environmental assessment was rendered on behalf 130, Annotated Code of Maryland of more than one participant, the total charge, not to exceed [$395.59] $383.80 shall be divided equally among invoices submitted on behalf Notice of Proposed Action of the impacted participants. [10-208-P] (6) Behavior Consultation Services. A qualified provider shall The Secretary of Health and Mental Hygiene proposes to amend bill the Program an all-inclusive rate not to exceed [$62.17] $60.32 Regulation .29 under COMAR 10.09.55 Living at Home Waiver for each hour of a home visit by an individual qualified to render Program. services. (7) Senior Center Plus. A qualified provider shall bill the Program a daily per capita rate, negotiated with the Maryland

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1032 Statement of Purpose will be accepted through September 12, 2011. A public hearing has The purpose of this action is to implement the 1 percent decrease not been scheduled. to provider rates based on the FY 2012 budget passed by the General Assembly. .29 Payment Procedures. A.—B. (text unchanged) Comparison to Federal Standards C. Payments. There is no corresponding federal standard to this proposed action. (1)—(3) (text unchanged) (4) Rates. Estimate of Economic Impact (a) Attendant Care Services. The Department shall I. Summary of Economic Impact. The proposal will decrease reimburse a qualified provider a rate for each hour of covered service provider reimbursement rates by 1 percent based on the FY 2012 not to exceed: budget passed by the General Assembly. (i) Consumer-employed—[$13.33] $12.93 per hour for Revenue (R+/R-) attendant services rendered by a qualified self-employed provider; and II. Types of Economic Expenditure (ii) Agency-employed—[$17.03] $16.52 per hour for Impact. (E+/E-) Magnitude attendant services rendered by a qualified agency-employed provider. (b) Environmental Accessibility Adaptations. A qualified provider shall bill the Department: A. On issuing agency: (E-) $1,067,653 (i) (text unchanged) (ii) Not more than [$6,246.66] $6,184.19 every 12 B. On other State agencies: NONE months per participant, unless the rate complies with the exceptions C. On local governments: NONE set forth in Regulation .28B of this chapter. (c) Personal Emergency Response Systems. A qualified provider shall: Benefit (+) (i) (text unchanged) Cost (-) Magnitude (ii) Bill the Department, not more than [$1,135.76] $1,101.91 per unit of service, unless preapproved under Regulation .28C of this chapter; and (iii) (text unchanged) D. On regulated industries (d) Personal Emergency Response Systems with Motion or trade groups: (-) $1,067,653 Detector. A provider shall: E. On other industries or (i) (text unchanged) trade groups: NONE (ii) Bill the Department, not more than [$1,362.90] F. Direct and indirect effects $1,322.28 per unit of service, unless preapproved under Regulation on public: NONE .28C of this chapter; and III. Assumptions. (Identified by Impact Letter and Number from (iii) (text unchanged) Section II.) (e) Assistive Technology. A qualified provider shall: (i) (text unchanged) A. and D. Reimbursement to providers for services is projected to (ii) Bill the Department, not more than [$6,246.66] be $30,199,330 in FY 2012 based on a 1 percent rate decrease. $6,184.19 every 12 months, unless the rate complies with the Provider rates would have increased by 2.5 percent under the prior exceptions set forth in Regulation .28B of this chapter; and regulations, increasing the cost of the Program to $31,266,983; (iii) (text unchanged) therefore, the savings to the Program resulting from the decrease in (f) Consumer Training. A qualified provider shall bill the proposed rates will be $1,067,653 in FY 2012. Fifty percent of this Department an all-inclusive rate not to exceed [$40.32] $39.11 for amount is federal funds. each hour of covered service. (g) Family Training. A qualified provider shall bill the Economic Impact on Small Businesses Department a rate for each hour of covered services not to exceed: The proposed action has a meaningful economic impact on small (i) Self-employed—[$26.69] $25.90 per hour for family businesses. An analysis of this economic impact follows. training services rendered by an appropriately licensed professional; and The proposal will have an economic impact on small businesses, (ii) Agency-employed—[$38.91] $37.75 per hour for as net provider revenues for services rendered under this Program family training services rendered by an appropriately licensed will be decreased. professional. Impact on Individuals with Disabilities (h) Nursing Supervision. A qualified provider shall bill the The proposed action has an impact on individuals with disabilities Department a rate for each hour of covered services not to exceed: as follows: (i) Self-employed—[$26.69] $25.90 per hour for nursing The proposed action will reduce payments to providers of services supervision services rendered by an appropriately enrolled, licensed to individuals with disabilities; however, no impact on access or provider; and quality of services is anticipated. (ii) Agency-employed—[$38.91] $37.75 per hour for nursing supervision services rendered by an appropriately enrolled, Opportunity for Public Comment licensed provider. Comments may be sent to Michele Phinney, Director, Office of (i)—(j) (text unchanged) Regulation and Policy Coordination, Department of Health and (k) Environmental Assessment. A qualified environmental Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, assessment provider shall bill the Department: Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or (i) The lesser of [$395.59] $383.80 or its usual and email to [email protected], or fax to 410-767-6483. Comments customary charge to the general public for the services rendered,

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1033 minus any payments by other third party payers such as Medicare; Benefit (+) but Cost (-) Magnitude (ii) If the environmental assessment is rendered to more than one participant, the total charge, not to exceed [$395.59] $383.80, shall be divided equally on invoices submitted for multiple participants. D. On regulated industries (l) Home-Delivered Meals. A qualified provider shall bill or trade groups: (-) $757,255 the Department an all inclusive rate not to exceed [$5.65] $5.48 for E. On other industries or each delivered meal. trade groups: NONE (m) Dietitian and Nutritionist Services. A qualified provider shall bill the Department a rate not to exceed [$62.17] $60.32 for F. Direct and indirect effects each hour of covered services. on public: NONE (n) Case Management Services. A qualified provider shall III. Assumptions. (Identified by Impact Letter and Number from bill the Department not more than [$13.25] $13.12 for each unit of Section II.) service, as defined in Regulation .26-3 of this chapter. A. Reimbursement to providers for services is projected to be (5) The Program’s rates as specified in §C(4) of this regulation $21,419,497 in FY 2012 based on a 1 percent decrease. Provider rates shall be effective [July 1, 2009 through September 30, 2009. The would have increased by 2.5 percent under the prior regulations, rates shall be reduced by 2 percent effective October 1, 2009 and the increasing the cost of the Program to $22,176,752; therefore, the resulting rates] July 1, 2011, and shall increase on July 1 of each year savings to the Program resulting from the decrease in proposed rates beginning July 1, [2010] 2012, subject to the limitations of the State will be $757,255 in FY 2012. Fifty percent of this amount is federal budget, by the lesser of: funds. (a)—(b) (text unchanged) D. The proposed reduction in reimbursement rates will decrease JOSHUA M. SHARFSTEIN, M.D. projected revenue by $757,255 for providers, as described in Section Secretary of Health and Mental Hygiene A.

Economic Impact on Small Businesses Subtitle 09 MEDICAL CARE The proposed action has minimal or no economic impact on small PROGRAMS businesses. Impact on Individuals with Disabilities 10.09.56 Home and Community-Based Services The proposed action has an impact on individuals with disabilities Waiver for Children with Autism Spectrum as follows: Disorder This rate decrease will have an impact on service providers but it is not expected to affect access or quality of care for individuals with Authority: Health-General Article, §§2-104(b), 15-103, 15-105, and 15-130, disabilities. Annotated Code of Maryland Opportunity for Public Comment Notice of Proposed Action Comments may be sent to Michele Phinney, Director, Office of [11-207-P] Regulation and Policy Coordination, Department of Health and The Secretary of Health and Mental Hygiene proposes to amend Mental Hygiene, 201 W. Preston Street, Room 512, Baltimore, Regulation .22 under COMAR 10.09.56 Home and Community- Maryland 21201, or call 410-767-6499 (TTY 800-735-2258), or Based Services Waiver for Children with Autism Spectrum email to [email protected], or fax to 410-767-6483. Comments Disorder. will be accepted through September 12, 2011. A public hearing has not been scheduled. Statement of Purpose The purpose of this action is to implement a 1 percent rate .22 Payment Procedures. decrease for Autism Waiver providers. A.—C. (text unchanged) D. Payments. Comparison to Federal Standards (1) (text unchanged) There is no corresponding federal standard to this proposed action. (2) The Program shall pay according to the following fee-for- Estimate of Economic Impact service schedule: I. Summary of Economic Impact. This proposal will decrease (a) Residential habilitation services: reimbursed at one of the reimbursement rates by 1 percent for providers of waiver services. following all-inclusive, maximum rates for a participant: (i) [$191.14] $190.08 per day for the regular level of Revenue (R+/R-) service; or II. Types of Economic (ii) [$382.30] $380.18 per day for the intensive level of Impact. Expenditure (E+/E-) Magnitude service; (b) Therapeutic integration services: reimbursed at the maximum rate of [$11.59] $11.52 per 30 minutes; (c) Intensive individual support services: reimbursed at the A. On issuing agency: (E-) $757,255 maximum rate of [$28.99] $14.41 per [hour] 30 minutes; B. On other State agencies: NONE (d) Respite care: reimbursed at the maximum rate of [$22.63] $22.51 per hour; C. On local governments: NONE (e) Family training: reimbursed at the maximum rate of [$95.10] $94.57 per hour;

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1034 (f) Adult life planning services: reimbursed at the maximum All pharmacies are inspected on an annual basis and that inspection rate of [$95.53] $94.57 per hour; schedule would not change. Some pharmacies providing infusion (g) (text unchanged) services in an alternate site care environment may need to develop (3) (text unchanged) policies and procedures or alter their practice to comply with the new (4) The Program’s rates as specified in §D(2)(a)—(f) of this regulations. regulation shall be effective [July 1, 2008 through September 30, 2009. The rates shall be reduced by 2 percent effective October 1, Revenue (R+/R-) 2009, and the resulting rates] July 1, 2011, and shall increase on July II. Types of Economic Expenditure Magnitude 1 of each year beginning July 1, [2010] 2012, subject to the Impact. (E+/E-) limitations of the State budget, by the lesser of: (a)—(b) (text unchanged)

JOSHUA M. SHARFSTEIN, M.D. A. On issuing agency: (E+) Minimal Secretary of Health and Mental Hygiene B. On other State agencies: NONE C. On local governments: NONE Subtitle 34 BOARD OF PHARMACY Benefit (+) 10.34.35 Infusion Pharmacy Services in an Magnitude Alternate Site Care Environment Cost (-)

Authority: Health Occupations Article, §12-205, Annotated Code of Maryland

Notice of Proposed Action D. On regulated industries (-) Unquantifiable [11-213-P] or trade groups: The Secretary of Health and Mental Hygiene proposes to adopt E. On other industries or new Regulations .01 — .10 under a new chapter, COMAR 10.34.35 NONE trade groups: Infusion Pharmacy Services in an Alternate Site Care F. Direct and indirect Environment. This action was considered by the Board of Pharmacy (+) Unquantifiable at a public meeting held February 16, 2011, notice of which was effects on public: given by publication on the Board of Pharmacy web site III. Assumptions. (Identified by Impact Letter and Number from www.dhmh.maryland.gov/pharamacyboard from January 22, 2011— Section II.) February 16, 2011, pursuant to the State Government Article, §10- A. The Board will be required to spend a minimal amount of time 506(c), Annotated Code of Maryland. developing an inspection form for infusion pharmacy services in an Statement of Purpose alternate site care environment. The purpose of this action is to establish regulatory requirements D. Some pharmacies providing infusion services in an alternate to set uniform standards for pharmacies that provide infusion therapy site care environment may have to adapt their current policies and to patients in alternate site care environments in Maryland. The procedures to conform with the requirements of this chapter. regulations set forth responsibilities for the permit holder, supervising F. This chapter will have a positive unquantifiable impact on the pharmacist, pharmacist, and support personnel. It requires policies public because it will ensure best practices in the safe and effective and procedures that address personnel, security, standards of patient delivery of infusion services to the public. care, infection control, initial and ongoing home safety assessments, patient education, patient care operations, delivery arrangements, Economic Impact on Small Businesses patient confidentiality, and pharmacist availability after hours. The proposed action has minimal or no economic impact on small Training requirements for all staff is required to addresses patient businesses. care, universal precautions, warehouse and equipment orientation, waste management, hazardous substances, customer service, patient Impact on Individuals with Disabilities confidentiality, policies and procedures, and other activities. Specific The proposed action has no impact on individuals with disabilities. training requirements are broken down by pharmacist, pharmacy Opportunity for Public Comment technician and unlicensed personnel. A performance improvement Comments may be sent to Michele Phinney, Director, Office of program will also be required to address medication errors, adverse Regulation and Policy Coordination, Department of Health and Mental drug reactions and equipment malfunctions. The regulations will Hygiene, 201 W. Preston St., Baltimore, Maryland 21201, or call 410-767- address discontinuation of infusion therapy and end of therapy orders. 6499, TTY:800-735-2258, or email to [email protected], or fax to Finally, the regulations will require specific reference materials 410-767-6483. Comments will be accepted through September 12, 2011. A beyond what is required in COMAR 10.34.07.03, such as Material public hearing has not been scheduled. Safety Data Sheets, IV compatibility references, stability and extended stability references, websites and electronic references, and .01 Definitions. other appropriate clinical references for the population served. A. In this chapter, the following terms have the meanings indicated. Comparison to Federal Standards B. Terms Defined. There is no corresponding federal standard to this proposed action. (1) “Alternate site care environment” means the location Estimate of Economic Impact where the patient is receiving infusion therapy other than an I. Summary of Economic Impact. There will be an expenditure inpatient hospital setting. of time by the Board in creating a new inspection form for providers of infusion pharmacy services in an alternate site care environment.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1035 (2) “Compounding worksheet” means a document or electronic (14) “Supervision” means the on-site provision of record which: management, direction, oversight and review of tasks assigned to (a) Specifies instructions for a specific compounded personnel. parenteral medication; (b) Documents the manufacturer’s: .02 Permit Holder Responsibilities. (i) Ingredients; The permit holder shall: (ii) Lot numbers; and A. Develop and maintain a policy and procedure manual which (iii) Expiration dates; and establishes the pharmacy’s policies and standard operating (c) Includes a copy of the prescription label. procedures related to the provision of infusion therapy services; (3) Delegated Pharmacy Act. B. Ensure that an annual review of the policy and procedure (a) “Delegated pharmacy act” means an activity that manual is performed by a qualified clinician or clinicians to assure constitutes the practice of pharmacy delegated by a licensed that the policies and procedures meet the current standards of pharmacist under Health Occupations Article, Title 12, Subtitle 6B, practice and regulatory requirements; Annotated Code of Maryland, and this chapter. C. Ensure that there is a process to verify the name, address, and (b) “Delegated pharmacy act” does not include: contact information of the licensed authorized prescriber of record (i) An act within the parameters of a Drug Therapy before initiation of therapy; Management contract as provided under Health Occupations Article, D. Establish and maintain a training program which includes, but Title 12, Subtitle 6A, Annotated Code of Maryland; is not limited to, the requirements set forth in Regulation .07 of this (ii) The administration of an influenza vaccination in chapter; accordance with Health Occupations Article, §12-508, Annotated E. If the infusion pharmacy is performing sterile compounding, Code of Maryland, or Health Occupations Article, Title 12, ensure compliance with COMAR 10.34.19; Annotated Code of Maryland; F. If the infusion pharmacy outsources sterile compounding to (iii) The delegation of a pharmacy act by a pharmacy another pharmacy, confirm that the secondary pharmacy is technician, pharmacy student, or pharmacy technician trainee; appropriately licensed and in compliance with COMAR 10.34.04 and (iv) A pharmacy activity performed by a pharmacy COMAR 10.34.19; student in accordance with Health Occupations Article, §12-301(b), G. Assign a supervising pharmacist to provide oversight of the Annotated Code of Maryland; facility and operations as specified in Regulation .03 of this chapter; (v) A pharmacy activity performed by an applicant for a H. Ensure adequate supervision to unlicensed personnel; license to practice pharmacy, if the applicant does not perform I. Limit access to the infusion pharmacy area to authorized delegated pharmacy acts for more than 10 months; or personnel; (vi) The performance of other functions prohibited in J. Secure the facility and patient records in compliance with regulations adopted by the Board. federal and State laws and regulations; and (4) “End of therapy” means the conclusion of parenteral K. Develop and implement a written performance improvement infusion therapy as ordered by the prescriber. program as set forth in Regulation .08 of this chapter. (5) “Infusion nurse” means a registered nurse providing .03 Supervising Pharmacist Responsibilities. infusion therapy as defined in COMAR 10.27.20.02B in an alternate The supervising pharmacist or the supervising pharmacist’s site environment. designee shall ensure compliance with: (6) “Infusion pharmacy” means a pharmacy that provides A. State and federal regulations; pharmaceutical care to patients receiving parenteral therapy in an B. Infusion pharmacy practice standards: alternate site care environment. (1) As set forth in this chapter; and (7) “Licensed authorized prescriber of record” means an (2) As established by nationally recognized professional individual with the authority to prescribe and monitor a patient’s organizations and accrediting bodies as appropriate; parenteral infusion therapy for the duration of the patient’s infusion C. The infusion pharmacy’s policies and procedures manual; therapy. D. An established training program; and (8) “Parenteral infusion access device” means, but is not E. An established performance improvement program. limited to, intravenous, subcutaneous, intrathecal, epidural, or peripheral nerve catheter device through which parenteral .04 Pharmacist Responsibilities. medications may be administered. A. A pharmacist in an infusion pharmacy shall adhere to the (9) “Patient care plan” means an individualized care plan that policies and procedures set forth in Regulation .06 of this chapter. reflects the patient’s parenteral infusion therapy pharmaceutical B. A pharmacist shall: monitoring plan aimed at optimizing the outcome of therapy while (1) Provide infusion therapy services in accordance with: minimizing untoward effects from the medication. (a) Orders issued by a licensed authorized prescriber of (10) “Patient triage form” means a written or electronic tool record; and used by a clinician or by a registered pharmacy technician when (b) Where applicable, protocols issued by a licensed communicating with a patient, a patient’s caregiver, or an infusion authorized prescriber of record. nurse to document the patient’s current status, including but not (2) Perform and document initial and ongoing assessments of limited to, the patient’s response to therapy, medication changes or the appropriateness of infusion therapy using the following adverse reactions, and pain level. information: (11) “Permit holder” means a person, corporation, or other (a) Patient demographics including: legal entity authorized by the Board to establish and operate a (i) Name; pharmacy. (ii) Address; (12) “Pharmacy technician” means an individual who is (iii) Telephone number; registered with the Board to perform delegated pharmacy acts. (iv) Gender; and (13) “Pharmacist” means an individual who is licensed to (v) Date of birth; practice pharmacy. (b) Emergency contact information;

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1036 (c) Diagnoses, including: .05 Support Personnel. (i) Diagnosis being treated; and A. Pharmacy Technicians. (ii) Concurrent conditions, including pregnancy and (1) A pharmacist working in an infusion pharmacy may lactation status if applicable; delegate pharmacy acts to a pharmacy technician in accordance with (d) Medical history; COMAR 10.34.34. (e) Allergies; (2) A pharmacy technician working in an infusion pharmacy (f) If applicable, height; may not perform delegated pharmacy acts as set forth in COMAR (g) Weight; 10.34.34.03. (h) Parenteral medication orders, including length of (3) A pharmacy technician working in an infusion pharmacy therapy; shall: (i) Parenteral infusion access device: (a) Communicate immediately to the pharmacist reported (i) Location; changes in: (ii) Type; and (i) Patient condition; (iii) If available, date of placement; (ii) Patient medication list; and (j) Ongoing medication profile review and reconciliation at (iii) Allergies; and end of therapy; (b) Obtain pharmacist approval before processing refills. (k) First dose status; (4) A pharmacy technician working in an infusion pharmacy (l) Caregiver information including, but not limited to: may not: (i) Name; (a) Except as provided in COMAR 10.34.34, accept or (ii) Address; transcribe a new or change verbal order from an licensed authorized (iii) Phone number; and prescriber of record or the licensed authorized prescriber of record’s (iv) Relationship to patient; agent; (m) If applicable, contact information for other agencies or (b) Perform the clinical assessment of a patient; individuals involved in the patient’s home care; (c) Communicate clinical matters except as required in § (n) Documented applicable medical and social factors and A(3)(a) of this regulations; functional limitations which may affect infusion therapy including but (d) Provide therapy-related direction to a patient or not limited to: caregiver; and (i) Language; (e) Create a patient care plan specific to a patient’s therapy. (ii) Sight; B. Unlicensed Personnel. (iii) Hearing; (1) Unlicensed personnel working in an infusion pharmacy (iv) History of IV drug abuse; under the supervision of a pharmacist may perform operational (v) History of drug or alcohol abuse; or support which the unlicensed personnel have been trained to (vi) Other physical or mental limitations; and adequately perform in accordance with COMAR 10.34.21. (o) If applicable to therapy, baseline labs; (2) Unlicensed personnel shall be appropriately trained to (3) Create a patient care plan specific to the patient’s: perform the following tasks, as applicable, including but not limited (a) Diagnosis; to: (b) Prescribed therapy; and (a) Schedule delivery dates based on; (c) Concurrent conditions; (i) Patient supply needs; (4) When compounding sterile preparations, comply with (ii) Patient or caregiver availability; and COMAR 10.34.19; (iii) If applicable, geographic delivery zones; (5) If sterile compounding is outsourced, comply with COMAR (b) Create delivery tickets; 10.34.04; (c) Communicate with the infusion nurse or pharmacist (6) As applicable, retrieve and assess lab values and other concerning supply needs and problems; and monitoring parameters; (d) Clean, test, and maintain patient-use equipment. (7) Document in the patient chart: (3) Unlicensed personnel working in an infusion pharmacy (a) New prescription orders; shall refer clinical questions or concerns reported by patients or (b) Changes in prescription orders; caregivers immediately to the pharmacist. (c) Information obtained from the patient or caregiver; and (4) Unlicensed personnel may not perform delegated pharmacy (d) Other necessary information obtained from the: acts. (i) Patient; (ii) Caregiver; .06 Minimum Requirements for Policies and Procedures. (iii) Infusion nurse; The policies and procedures shall: (iv) Licensed authorized prescriber of record; or A. Be congruent with State regulations and standards of care from (v) Other sources relevant to patient care; accrediting bodies and professional organizations; and (8) Verify prescription label accuracy; B. Address: (9) Communicate as appropriate, throughout the patient’s (1) Personnel: therapy with the: (a) Training and Orientation; (a) Licensed authorized prescriber of record or agent of the (b) Duties; and licensed authorized prescriber of record; (c) Qualifications; (b) Patient’s infusion nurse; (2) Security of the facility; (c) Patient; and (3) Standards of patient care; (d) Caregiver; and (4) Infection control; (10) Review therapy-specific considerations such as pain and (5) Initial and ongoing home safety assessments; nutrition status.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1037 (6) The provision of patient or caregiver education including, (3) Parenteral infusion access devices and therapy-specific but not limited to: appropriateness by device; (a) Drug and therapy administration-specific information (4) Supplies by therapy and device; and precautions; (5) Accurate set-up of compounding worksheet instructions; (b) Reporting adverse drug reactions; (6) Pharmacist functions on computer systems; (c) Reporting side effects; (7) Documentation; (d) Infusion pharmacy contact information; (8) If performing sterile compounding, COMAR 10.34.19; (e) Emergency measures related to: (9) Medication storage; (i) Changes in patient condition requiring medical (10) IV compatibility and stability; intervention; and (11) Calculations to ensure: (ii) Events which may delay or prevent delivery of (a) IV dose appropriateness; and pharmaceuticals or nursing care; and (b) Compounding accuracy, if applicable; and (f) Equipment use and safety. (12) On-call requirements and procedures for handling after- (7) Patient care operations, including but not limited to: hours care. (a) If applicable, pharmacist checking procedures related to C. A pharmacy technician obtaining clinical information shall be order entry and compounding accuracy; trained and evaluated in the following areas, including but not (b) Therapy-specific monitoring parameters for: limited to: (i) Laboratory testing; (1) Pharmacy technician functions on computer systems; (ii) Appropriate frequency of testing; and (2) Parenteral infusion access devices (iii) Patient follow-up; and (3) Supplies specific to therapy and device (c) Pump, or other patient-use equipment, between-patient (4) Storage and shipping protocols; cleaning, testing, and preventive maintenance, which include (5) Pharmaceutical calculations for IV compounding, if specific: applicable; (i) Procedures and documentation of cleaning, testing (6) Patient triage forms – therapy-specific training and and preventive maintenance for patient equipment according to communication with the pharmacist as specified in Regulation manufacturer’s guidelines; and .05A(3)(a) of this chapter; and (ii) Frequencies for all equipment maintenance activities; (7) Documentation of: (8) Delivery arrangements; (a) Communication with patients or caregiver; and (9) Patient confidentiality and the Health Insurance Portability (b) Delivery scheduling. and Accountability Act, 45 CFR Parts 160 and 164; and D. Unlicensed personnel shall be trained and evaluated in the (10) Availability of a pharmacist on call after-hours to respond following areas as applicable: to: (1) Insurance pre-authorization; (a) Pharmacy related patient or caregiver inquiries; and (2) Billing; (b) Medication or supply needs. (3) Delivery procedures; (4) Supplies; .07 Training Requirements. (5) Picking and packing of supplies; A. Personnel shall be trained in the following areas where (6) Drug storage; appropriate: (7) Shipping protocols; and (1) Patient rights and responsibilities; (8) Cleaning, testing, and maintenance of patient-use (2) Patient safety; equipment according to manufacturers’ specifications. (3) Performance improvement program; (4) Universal precautions which are incorporated by reference .08 Performance Improvement Program. in COMAR 10.06.01.01-1; A. The performance improvement program shall consist of: (5) Warehouse and equipment orientation; (1) A committee which: (6) Waste management; (a) Consists of representation of personnel and varied areas (7) Handling hazardous substances; of job responsibility; and (8) Policies and procedures; (b) Is responsible for analysis of data, reporting trends and (9) Recognizing signs of patient abuse and neglect; corrective actions; and (10) Recognizing signs of IV drug abuse; (c) Meets at least quarterly; (11) Customer service and cultural sensitivity training; (2) Quality assurance and performance improvement (12) Emergency policies and procedures which support the monitoring parameters; continuum of patient care during natural or manmade disasters; and (3) Documentation requirements for: (13) Patient confidentiality and the Health Insurance (a) Established monitoring parameters; Portability and Accountability Act, 45 CFR Parts 160 and 164. (b) Trend analyses; and B. A pharmacist shall be trained and evaluated in the following (c) Retention of committee meeting minutes for 3 years; areas, including but not limited to: (5) Documentation of tracking, trending, analyzing, resolving, (1) Clinical management of therapies and disease states and developing corrective action plans as appropriate for: managed by the infusion pharmacy services, including but not limited (a) Medication errors; to: (b) Adverse drug reactions; and (a) Specific dosing and monitoring protocols; (c) Equipment malfunctions; (b) Care planning; (6) Reporting of adverse events to regulatory and standard- (c) Lab value ranges; and setting bodies as applicable to State and federal regulations; (d) Side effects; (7) Documentation and resolution of patient care issues (2) Pump use and programming; involving: (a) Incorrect equipment, supplies, or medications;

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1038 (b) Delays in delivery of care; Statement of Purpose (c) Missed doses; The purpose of this action is to correct an error in a citation, (d) Patient infections; reflect a name change in a certification area, and remove language (e) Failures in after-hours care; and which is no longer applicable. (f) Patient, caregiver, or health care provider complaints; (8) Documentation of patient outcomes; Comparison to Federal Standards (9) Recall management; There is no corresponding federal standard to this proposed action. (10) Patient compliance monitoring; and Estimate of Economic Impact (11) Staff training and competency compliance. The proposed action has no economic impact. B. The permit holder shall review the performance improvement program at a minimum of every 3 years. Economic Impact on Small Businesses The proposed action has minimal or no economic impact on small .09 Discontinuation of Infusion Therapy. businesses. A. If not addressed in the initial order, the infusion pharmacy shall verify an end of therapy order. Impact on Individuals with Disabilities B. The infusion pharmacist shall: The proposed action has no impact on individuals with disabilities. (1) Communicate with the licensed authorized prescriber of Opportunity for Public Comment record or agent of the prescriber of record to verify: Comments may be sent to Jean Satterfield, Assistant State (a) An end of therapy order, if not addressed in the initial Superintendent, Certification and Accreditation, Maryland State order; and Department of Education, 200 West Baltimore Street, Baltimore, MD (b) Parenteral infusion access device disposition, including 21201, or call 410-767-0385 TTY: 410-333-6442, or email to orders for removal or line maintenance; and [email protected], or fax to 410-333-8963. Comments (2) Forward the most current medication list to: will be accepted through September 12, 2011. A public hearing has (a) The licensed authorized prescriber of record; and not been scheduled. (b) To the patient or caregiver. C. If appropriate, the infusion pharmacy shall arrange with the Open Meeting patient or caregiver for pick-up of medical equipment. Final action on the proposal will be considered by the Professional Standards and Teacher Education Board during a public meeting to .10 Reference Materials. be held on November 3, 2011, at 200 West Baltimore Street, A. An infusion pharmacy shall maintain an adequate reference Baltimore, MD 21201. library to enable it to prepare and dispense infusion therapy properly. .02 [Guidance] School Counselor. B. In addition to the requirements of COMAR 10.34.07.03, an The requirements for certification as a [guidance] school infusion pharmacy’s reference library shall include: counselor are: (1) Material Safety Data Sheets (MSDSs); A. — D. (text unchanged) (2) IV compatibility references; .03 Library Media Specialist. (3) Stability and extended stability references; A. (text unchanged) (4) Websites and electronic references authored by established B. Education and Experience. medical publishers recognized within the field of infusion pharmacy (1) — (2) (text unchanged) practice as a supplement to its printed library; (3) Option II. (5) Pediatric dosing reference, if applicable; and (a) — (c) (text unchanged) (6) Appropriate clinical references for the population served. (d) The total number of post-baccalaureate credits needed JOSHUA M. SHARFSTEIN, MD for certification will not be reduced for course requirements that are Secretary of Health and Mental Hygiene met in the applicant’s bachelor’s degree program. Additional post- baccalaureate or graduate courses may be substituted if some of the course work described in [§B(2)(b)] §B(3)(b) of this regulation has Title 13A been acquired as a part of the undergraduate degree program. (e) (text unchanged) STATE BOARD OF C. (text unchanged) .11 School Social Worker. EDUCATION [A.] To obtain certification as a school social worker, the applicant shall be licensed by the Maryland State Board of Social Work Subtitle 12 CERTIFICATION Examiners as a: [(1)] A.—[(3)] C. (text unchanged) 13A.12.03 Specialists [B. On or after December 1, 2008, but not later than March 31, Authority: Education Article, §§2-205, 2-303(g), 6-101—6-104, and 6-701— 2009, the Maryland State Board of Education shall initiate a review 6-706; Health Occupations Article, §2-301; Annotated Code of Maryland to consider amending this regulation to include additional criteria to obtain certification as a school social worker, if such criteria are Notice of Proposed Action considered appropriate.] [11-214-P] The Professional Standards and Teacher Education Board NANCY S. GRASMICK proposes to amend Regulations .02, .03, and .11 under COMAR State Superintendent of Schools 13A.12.03 Specialists. This action was considered at the Professional Standards and Teacher Education Board meeting on May 5, 2011.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1039 Title 14 Title 31 INDEPENDENT AGENCIES MARYLAND INSURANCE Subtitle 01 STATE LOTTERY AGENCY ADMINISTRATION 14.01.10 Video Lottery Terminals Subtitle 12 HEALTH MAINTENANCE Authority: State Government Article, Title 9, Subtitle 1A, Annotated Code of ORGANIZATIONS; ENTITIES THAT Maryland ACT AS HEALTH INSURERS Notice of Proposed Action [11-226-P] 31.12.08 Payments to Nonparticipating Providers The Maryland State Lottery Agency proposes to amend Authority: Health-General Article, §19-710.1(k), Annotated Code of Regulation .13 under COMAR 14.01.10 Video Lottery Terminals. Maryland. This action was considered at the Maryland State Lottery Commission open meeting held on June 23, 2011, notice of which Notice of Proposed Action was given pursuant to State Government Article, §10-506(c), [11-223-P] Annotated Code of Maryland. The Insurance Commissioner proposes to amend Regulation .04 under COMAR 31.12.08 Payments to Nonparticipating Providers. Statement of Purpose The purpose of this action is to revise the video lottery employee Statement of Purpose license fees and renewal fees to be consistent with the previous The purpose of this action is to clarify how a health maintenance change in the license term from 1 year to 3 years. organization shall calculate the annual rate schedule for certain CPT codes or HCPCS codes when paying a nonparticipating provider Comparison to Federal Standards under certain circumstances. There is no corresponding federal standard to this proposed action. Ch. 664, Acts of 2009, added a requirement to Health-General Estimate of Economic Impact Article, §19-710.1(k), Annotated Code of Maryland, that the The proposed action has no economic impact. Maryland Insurance Administration, in consultation with the Maryland Health Care Commission, adopt regulations to implement Economic Impact on Small Businesses Health-General Article, §19-710.1, Annotated Code of Maryland. The proposed action has minimal or no economic impact on small Emergency regulations were adopted January 1, 2010, as COMAR businesses. 31.12.08 and were permanently adopted March 8, 2010. After Impact on Individuals with Disabilities COMAR 31.12.08 was permanently adopted, the Maryland Insurance The proposed action has no impact on individuals with disabilities. Administration became aware of a payment scenario that was overlooked in the original regulations. The proposed action clarifies Opportunity for Public Comment how a health maintenance organization that receives a bill from a Comments may be sent to Robert W. Howells, Regulations nonparticipating provider, with a service code for which the HMO Coordinator, Maryland State Lottery Agency, 1800 Washington had no occurrences from a similarly contracted provider in the same Boulevard, Suite 330, Baltimore, MD 21230, or call 410-230-8789, geographic area, shall develop the annual rate schedule. or email to [email protected], or fax to 410-230-8727. Comments will be accepted through September 12, 2011. A public Comparison to Federal Standards hearing has not been scheduled. There is no corresponding federal standard to this proposed action. .13 Video Lottery Employee Licenses. Estimate of Economic Impact A. — B. (text unchanged) The proposed action has no economic impact. C. Gaming Employee License. The Commission may issue a Economic Impact on Small Businesses gaming employee license to an individual who has: The proposed action has minimal or no economic impact on small (1) (text unchanged) businesses. (2) Paid a license fee of [$200] $150; (3) — (10) (text unchanged) Impact on Individuals with Disabilities D. — G. (text unchanged) The proposed action has no impact on individuals with disabilities. H. Term; Renewal. Opportunity for Public Comment (1) (text unchanged) Comments may be sent to Katrina Lawhorn, Regulations (2) The Commission may renew the license if, before the term Coordinator, Maryland Insurance Administration, 200 St. Paul Place, of the license expires, the licensee: Baltimore, Maryland 21202, or call 410-468-2450, or email to (a) — (d) (text unchanged) [email protected], or fax to 410-468-2020. (e) Pays a nonrefundable application fee of: Comments will be accepted through September 12, 2011. A public (i) [$200] $150 for gaming employees; or hearing has not been scheduled. (ii) (text unchanged) I. (text unchanged) .04 Annual Rate Schedule. A.—B. (text unchanged) STEPHEN L. MARTINO Director State Lottery Agency

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 PROPOSED ACTION ON REGULATIONS 1040 C. The rate in the annual rate schedule for each CPT code or HCPCS code shall be developed as follows: (1) For each type of similarly licensed provider, the rate [paid] for the CPT code or HCPCS code shall be equal to: (a) If the health maintenance organization has received claims for occurrences of the CPT code or HCPCS code from participating providers who are similarly licensed providers in the same geographic area for the reference year, the total amount allowed for the occurrences of the CPT code or HCPCS code to participating providers who are similarly licensed providers in the same geographic area during the reference year divided by the total number of occurrences paid for the same CPT code or HCPCS code to participating providers who are similarly licensed providers in the same geographic area during the reference year[.]; or (b) If the health maintenance organization has not received any claims for occurrences of the CPT code or HCPCS code from participating providers who are similarly licensed providers in the same geographic area for the reference year, the total amount of the contracted rates that the health maintenance organization has entered into with all similarly licensed participating providers in the same geographic area for the reference year for the CPT code or HCPCS code divided by the total number of contracts with similarly licensed participating providers in the same geographic area for the reference year who had entered into contracts with the health maintenance organization for the CPT code or HCPCS code. (2) (text unchanged) D. (text unchanged) THERESE M. GOLDSMITH Insurance Commissioner

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 1041 General Notices

Notice of ADA Compliance The State of Maryland is committed to ensuring that individuals with disabilities are able to fully participate in public meetings. Anyone planning to attend a meeting announced below who wishes to receive auxiliary aids, services, or accommodations is invited to contact the agency representative at least 48 hours in advance, at the telephone number listed in the notice or through Maryland Relay.

BOARD OF ARCHITECTS GOVERNOR’S OFFICE OF CRIME DEPARTMENT OF HEALTH AND Subject: Public Meeting CONTROL AND PREVENTION MENTAL HYGIENE/MARYLAND Date and Time: August 22, 2011, 10 a.m. Subject: Public Meeting BOARD OF PHYSICIANS Place: 500 N. Calvert St., 3rd Fl. Conf. Date and Time: September 12, 2011, 3 — Subject: Public Meeting Rm., Baltimore, MD 5 p.m. Date and Time: August 24, 2011, 9 — 10 Contact: Pamela J. Edwards (410) 230- Place: Loch Raven Library, Baltimore, a.m. 6263 MD Place: 4201 Patterson Ave., Rms. 108/109, [11-17-30] Contact: Jessica Winpigler (410) 821-2829 Baltimore, MD [11-17-10] Add’l. Info: Appropriate auxiliary aids ATHLETIC COMMISSION services provided for qualified individuals upon request. Call Ellen D. Smith at (410) Subject: Public Meeting MARYLAND STATE BOARD OF 764-2477. Date and Time: August 25, 2011, 2 — EDUCATION Contact: Tammy Austin (410) 764-4769 4:30 p.m. Subject: Public Meeting [11-17-16] Place: 500 N. Calvert St., 3rd Fl. Conf. Date and Time: August 30, 2011, 9 a.m. Rm., Baltimore, MD — 5 p.m.; Additional Dates: August 31, Contact: Patrick Pannella (410) 230-6223 September 27 — 28, and October 25 — 26, DEPARTMENT OF HEALTH AND [11-17-21] 2011 MENTAL HYGIENE/ LABORATORIES ADMINISTRATION Place: 200 W. Baltimore St., Baltimore, CHESAPEAKE BAY TRUST MD Subject: Public Meeting Add’l. Info: The State Board of Education Date and Time: September 6, 2011, 8:30 Subject: Public Meeting is pleased to receive oral public comment a.m. — 12 p.m. Date and Time: September 14, 2011, 3 — at each of its regular monthly meetings. In Place: 201 W. Preston St., O’Conor Bldg., 6 p.m. order to allow the State Board sufficient Rm. L-37, Baltimore, MD Place: Loews Hotel, Annapolis, MD time for its other business, the total time Contact: Georgette P. Zoltani (410) 764- Contact: Heather Adams (410) 974-2941 allotted to public comment will generally 2899 [11-17-22] be limited to 30 minutes. Individuals [11-17-24] seeking to speak to the Board will be given BOARD FOR THE CERTIFICATION 3 minutes each. BOARD OF HEATING, OF RESIDENTIAL CHILD CARE Persons desiring to speak to the State PROGRAM ADMINISTRATORS VENTILATION, AIR- Board must call (410-767-0467) or e-mail CONDITIONING, AND Subject: Public Meeting ([email protected]) the Board REFRIGERATION CONTRACTORS Date and Time: September 9, 2011, 9 a.m. office no earlier than 1 week prior to the (HVACR) Place: Metro Executive Bldg., 4201 meeting to register to speak. Registration Patterson Ave., Baltimore, MD will be accepted on a first-come, first- Subject: Public Meeting Contact: Carol Johnson (410) 764-5996 served basis. In order to make the limited Date and Time: September 14, 2011, 9:30 a.m. — 12 p.m. [11-17-13] time available most effective, speakers are Place: 500 N. Calvert St., Rm. 302, urged to provide multiple written copies of Baltimore, MD MARYLAND COLLECTION AGENCY their comments or other material Contact: Steve Smitson (410) 230-6169 LICENSING BOARD amplifying their views. Contact: Charlene L. Necessary (410) 767- [11-17-15] Subject: Public Meeting on Regulations 0467 Date and Time: August 17, 2011, 10:30 [11-17-08] MARYLAND STATE LOTTERY a.m. — 12:30 p.m. COMMISSION Place: 500 N. Calvert St., Baltimore, MD Contact: Kelly Mack (410) 230-6079 ELEVATOR SAFETY REVIEW Subject: Public Meeting [11-17-11] BOARD Date and Time: August 25, 2011, 10 a.m. Subject: Public Meeting — 12 p.m. Date and Time: August 31, 2011, 1:30 — Place: Montgomery Park Business Center, GOVERNOR’S OFFICE OF CRIME 1800 Washington Blvd., Ste. 330, CONTROL AND PREVENTION 5 p.m. Place: 500 N. Calvert St., 2nd Fl. Conf. Baltimore, MD Subject: Public Meeting Rm., Baltimore, MD Contact: Marie A. Torosino (410) 230- Date and Time: September 8, 2011, 3 — 5 Contact: Raquel M. Meyers (410) 230- 8790 p.m. 6379 [11-17-31] Place: Howard Co. Police Dept., Ellicott [11-17-01] City, MD Contact: Jessica Winpigler (410) 821-2829 [11-17-09]

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 GENERAL NOTICES 1042 MARYLAND HEALTH CARE Pursuant to COMAR 10.24.01 et seq., PROCUREMENT ADVISORY COMMISSION on August 12, 2011, the Maryland Health COUNCIL (PAC) Subject: Public Meeting Care Commission hereby gives notice of Subject: Public Hearing Date and Time: September 15, 2011, 1 docketing of the above-referenced Date and Time: August 23, 2011, 2 — 4 p.m. applications. p.m. Place: Maryland Health Care Commission, Persons desiring to become interested Place: 201 W. Preston St., L-2, Baltimore, 4160 Patterson Ave., Conf. Rm. 100, parties in the Commission’s review of the MD Baltimore, MD above-referenced applications must meet Contact: Melissa Hodges (410) 260-7335 the requirements of COMAR Add’l. Info: Individuals requiring special [11-17-18] accommodations are requested to contact 10.24.01.01B(2) and (20) and must also submit written comments to the Valerie Wooding at (410) 764-3460, or the BOARD OF PUBLIC ACCOUNTANCY Department of Health and Mental Hygiene Commission no later than close of business TTY at (410) 383-7755, not later than 20 September 12, 2011. These comments must Subject: Public Meeting days before the meeting to make state with particularity the State Health Date and Time: September 13, 2011, 9 arrangements. Plan standards or review criteria that you a.m. — 11 p.m. Contact: Valerie Wooding (410) 764-3460 believe have not been met by the applicant Place: 500 N. Calvert St., 2nd Fl. Conf. as stated in COMAR 10.24.01.08F. Rm., Baltimore, MD [11-17-02] Questions may be directed to Paul Contact: Dennis L. Gring (410) 230-6224

Parker, Acting Director, Center for [11-17-07] MARYLAND HEALTH CARE Hospital Services at (410) 764-3261, or COMMISSION send to the MHCC, 4160 Patterson COMMISSION TO COORDINATE Subject: Formal Start of Review Avenue, Baltimore, Maryland 21215. THE STUDY, COMMEMORATION, Add’l. Info: Solomons Nursing Center — Contact: Ruby Potter (410) 764-3276 AND IMPACT OF SLAVERY’S Docket No. 11-04-2317 — Addition of 12 [11-17-33] HISTORY AND LEGACY IN comprehensive care beds to the current MARYLAND facility located at 13325 Dowell Road, BOARD OF PODIATRIC MEDICAL Subject: Public Meeting Solomons — Cost: $3,504,204. EXAMINERS Pursuant to COMAR 10.24.01 et seq., Date and Time: August 31, 2011, 11 a.m. on August 12, 2011, the Maryland Health Subject: Public Meeting — 1 p.m. Care Commission hereby gives notice of Date and Time: September 8, 2011, 1 p.m. Place: Edward C. Papenfuse State docketing of the above-referenced Place: 4201 Patterson Ave., Rm. 110, Archives Bldg., 350 Rowe Blvd., application. Baltimore, MD Annapolis, MD Persons desiring to become interested Contact: Sheri Henderson (410) 764-4785 Contact: Chris Haley (410) 260-6478 parties in the Commission’s review of the [11-17-03] [11-17-17] above-referenced application must meet the requirements of COMAR 10.24.01.01B(2) BOARD OF PODIATRIC MEDICAL MARYLAND TRANSPORTATION and (20) and must also submit written EXAMINERS AUTHORITY comments to the Commission no later than Subject: Public Meeting Subject: Public Meeting close of business September 12, 2011. Date and Time: October 13, 2011, 1 p.m. Date and Time: August 25, 2011, 9 — 11 These comments must state with Place: 4201 Patterson Ave., Rm. 110, a.m. particularity the State Health Plan Baltimore, MD Place: Maryland Transportation Authority, standards or review criteria that you believe Contact: Sheri Henderson (410) 764-4785 Point Breeze Complex, 2310 Broening have not been met by the applicant as [11-17-04] Hwy., Ste. 160, Baltimore, MD stated in COMAR 10.24.01.08F. Add’l. Info: A portion of this meeting may Questions may be directed to Paul be held in closed session. BOARD OF PODIATRIC MEDICAL Parker, Acting Director, Center for Contact: Cindy Taylor (410) 537-1002 Hospital Services at (410) 764-3261, or EXAMINERS [11-17-12] send to the MHCC, 4160 Patterson Subject: Public Meeting

Avenue, Baltimore, Maryland 21215. Date and Time: November 10, 2011, 1 WORKERS’ COMPENSATION Contact: Ruby Potter (410) 764-3276 p.m. COMMISSION [11-17-32] Place: 4201 Patterson Ave., Rm. 110, Baltimore, MD Subject: Public Meeting MARYLAND HEALTH CARE Contact: Sheri Henderson (410) 764-4785 Date and Time: September 8, 2011, 9 — COMMISSION [11-17-05] 11 a.m. Place: 10 E. Baltimore St., Baltimore, MD Subject: Formal Start of Review Add’l. Info: Portions of this meeting may BOARD OF PODIATRIC MEDICAL Add’l. Info: Knollwood Center — Docket be held in closed session. EXAMINERS No. 11-02-2316 — Construction of a new, Contact: Amy Lackington (410) 864-5300 relocated building to house 87 currently Subject: Public Meeting [11-17-14] licensed CCF beds to be relocated from the Date and Time: December 8, 2011, 1 p.m. existing building, 9 additional waiver beds Place: 4201 Patterson Ave., Rm. 110, to be licensed at the existing facility and 14 Baltimore, MD CCF beds which will be transferred from Contact: Sheri Henderson (410) 764-4785 Hammonds Lane Center — Cost: [11-17-06] $16,542,696.

MARYLAND REGISTER, VOLUME 38, ISSUE 17, FRIDAY, AUGUST 12, 2011 COMAR PDF ORDER FORM

Titles Agency Name Price1 Subscription2 Quantity Total Complete set of COMAR PDF format $1,000 $500 ______Title 01 Executive Department $35 $24 ______Title 02 Office of the Attorney General $22 $13 ______Title 03 Comptroller of the Treasury $30 $20 ______Title 04 General Services $16 $10 ______Title 05 Housing and Community Development $78 $50 ______Title 07 Human Resources $80 $53 ______Title 08 Natural Resources $78 $51 ______Title 09 Labor, Licensing and Regulation $89 $60 ______Title 10 Health & Mental Hygiene (All parts) ** $272 $180 ______Title 10 Part 1 ** $48 $32 ______Title 10 Part 2 ** $75 $50 ______Title 10 Part 3 ** $75 $50 ______Title 10 Part 4 ** $50 $35 ______Title 10 Part 5 ** $69 $50 ______Title 11 Transportation (All parts) ** $106 $75 ______Title 11 Part 1 (Transportation) ** $42 $25 ______Title 11 Parts 2 & 3 (MVA)** $74 $50 ______Title 12 Public Safety and Correctional Services $67 $43 ______Title 13A Board of Education $63 $42 ______Title 13B Higher Education Commission $25 $15 ______Title 14 Independent Agencies $87 $60 ______Title 15 Agriculture $48 $30 ______Title 16 Juvenile Service $23 $15 ______Title 17 Budget and Management $28 $16 ______Title 18 Assessments and Taxation $20 $12 ______Title 19A State Ethics Commission $24 $14 ______Title 20 Public Service Commission $49 $32 ______Title 21 State Procurement Regulations $48 $30 ______Title 22 State Retirement and Pension System $22 $13 ______Title 23 Board of Public Works $18 $11 ______Title 24 Business and Economic Development $34 $20 ______Title 25 State Treasurer $16 $9 ______Title 26 Environment (All parts) ** $189 $125 ______Title 26 Part 1 ** $54 $35 ______Title 26 Part 2 ** $83 $52 ______Title 26 Part 3 ** $57 $38 ______Title 26 Part 4 ** $37 $24 ______Title 27 Critical Area Comm. for the Chesapeake and Atlantic Coastal Bays $18 $10 ______Title 28 Office of Administrative Hearings $16 $9 ______Title 29 State Police $30 $18 ______Title 30 MD Institute for Emergency Medical Services Systems $25 $17 ______Title 31 Maryland Insurance Administration $68 $45 ______Title 32 Aging $25 $15 ______Title 33 State Board of Elections $42 $25 ______Title 34 Planning $31 $18 ______Title 35 Veterans Affairs $16 $9 ______Individual Binders (COMAR PDF’s binders not included) $15 S & H $9.00 ______Total: _____ Prices are for single user license only ~ Multi-user licenses are available. Please call 410-260-3876 for pricing information. 1 Price is per copy of each Title 2 Subscription (optional) - Receive updated information quarterly. ~ If ordered, subscription quantities MUST match Title quantities. ** See the following pages for description of contents

Updated on 4/27/2011

COMAR PRINT ORDER FORM (8 ½ x 11 format) Titles Agency Name Price1 Subscription2 Quantity Total Complete set of COMAR (includes binders) $1,400 $700 ______Title 01 Executive Department $47 $30 ______Title 02 Office of the Attorney General $31 $20 ______Title 03 Comptroller of the Treasury $41 $25 ______Title 04 General Services $23 $12 ______Title 05 Housing and Community Development $103 $70 ______Title 07 Human Resources $104 $70 ______Title 08 Natural Resources $102 $70 ______Title 09 Labor, Licensing and Regulation $116 $75 ______Title 10 Health & Mental Hygiene (All Parts)** $345 $230 ______Title 10 Part 1 ** $65 $40 ______Title 10 Part 2 ** $99 $70 ______Title 10 Part 3 ** $99 $70 ______Title 10 Part 4 ** $69 $42 ______Title 10 Part 5 ** $91 $62 ______Title 11 Transportation (All parts) ** $137 $85 ______Title 11 Part 1 (Transportation)** $55 $35 ______Title 11 Parts 2 & 3 (MVA) ** $102 $70 ______Title 12 Public Safety and Correctional Services $86 $55 ______Title 13A Board of Education $83 $60 ______Title 13B Higher Education Commission $34 $20 ______Title 14 Independent Agencies $112 $75 ______Title 15 Agriculture $63 $40 ______Title 16 Juvenile Service $32 $20 ______Title 17 Budget and Management $38 $25 ______Title 18 Assessments and Taxation $28 $18 ______Title 19A State Ethics Commission $33 $20 ______Title 20 Public Service Commission $64 $42 ______Title 21 State Procurement Regulations $65 $42 ______Title 22 State Retirement and Pension System $33 $18 ______Title 23 Board of Public Works $26 $15 ______Title 24 Business and Economic Development $47 $25 ______Title 25 State Treasurer $23 $12 ______Title 26 Environment (All parts) ** $241 $160 ______Title 26 Part 1 ** $72 $42 ______Title 26 Part 2 ** $109 $72 ______Title 26 Part 3 ** $76 $50 ______Title 26 Part 4 ** $51 $30 ______Title 27 Critical Area Comm. for the Chesapeake and Atlantic Coastal Bays $26 $15 ______Title 28 Office of Administrative Hearings $23 $12 ______Title 29 State Police $40 $22 ______Title 30 MD Institute for Emergency Medical Services Systems $34 $20 ______Title 31 Maryland Insurance Administration $90 $62 ______Title 32 Aging $34 $18 ______Title 33 State Board of Elections $57 $35 ______Title 34 Planning $42 $25 ______Title 35 Veterans Affairs $23 $12 ______Binders $15 S & H $9.00 ______Shipping & Handling Total: ______Order Total: _____ 1 Price is per copy of each Title Binder included with purchase of Title 2 Subscription (optional) - Receive updated information bi-annually ~ If ordered, subscription quantities MUST match Title quantities. ** See the following pages for description of contents Shipping/Handling Publication Total Shipping Note: COMAR prices are subject to change. Check $ 0-50 $15 the date on the lower right hand corner of this form. $ 51-150 $20 If the form is more than two months old, call the $ 151-300 $25 COMAR Subscription Manager (410-974-2486) to $ 301-400 $35 confirm prices. Fees are not refundable. $400 + please call Subscription Department. State agencies using courier, may omit Updated on 4/27/2011

SPECIAL PUBLICATIONS

Print Publication / Handbook Price S & H Quantity Total Preventive Maintenance Handbook (PM Handbook) $15 $5 ______Vehicle Inspection Handbook $40 $9 ______Forest Conservation Technical Manual 3rd Edition, 1997 $25 $9 ______Forest Conservation Law $20 $9 ______Control of Ionizing Radiation (including supplements up to 19) $130 $12 ______Total _____ If more than one quantity, shipping charges may vary, please call 410-260-3876 for pricing information.

Print Just In 26.12.01.01 Price S & H Quantity Total Control of Ionizing Radiation supplements 18 & 19 ONLY $42 $9 ______If more than one quantity, shipping charges may vary, please call 410-260-3876 for pricing information.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Date ______Account Number ______

Name______

Company______

Address______

City______State______Zip______

Tel.______Fax______

Email: ______

______Check enclosed, made payable to Division of State Documents

______Visa/Master Card/American Express/Discover card payment:

Acct.#______Exp.______Signature ______Tel:______

Return form & payment to: Office of the Secretary of State, Division of State Documents ~ State House ~ Annapolis, MD 21401 ~ Tel: 410-260-3876 ~ 800-633-9657 ext. 3876 ~ Fax: 410-280-5647

Updated on 4/27/2011

CODE OF MARYLAND REGULATIONS

Titles 10, 11, and 26 consist of more than one volume. Each volume may be purchased separately.

Title 10 Title 11 Department of Health and Mental Hygiene: Part & Subtitles Department of Transportation – Volume & Subtitles

Part 1 Volume 1 01 Procedures 01 Office of the Secretary 02 Division of Reimbursements 02 Transportation Service Human Resources System 03 Health Statistics 03 Maryland Aviation Administration 04 Fiscal 04 State Highway Administration 05 Freestanding Ambulatory Care Facilities 05 Maryland Port Administration 06 Diseases 06 Mass Transit Administration 07 Hospitals 07 Maryland Transportation Authority 08 Health Facilities Grants 08 Vacant Part 2 09 Vacant 09 Medical Care Programs 10 Vacant Part 3 Volume 2 and Volume 3 10 Laboratories 11 Motor Vehicle Administration – Administrative Procedures 11 Maternal and Child Health 12 MVA – Licensing of Businesses and Occupations 12 Adult Health 13 MVA – Vehicle Equipment 13 Drugs 14 MVA – Vehicle Inspections 14 Cancer Control 15 MVA – Vehicle Registration 15 Food 16 MVA – Vehicle Operations 16 Housing 17 MVA – Driver Licensing and Identification Documents 17 Sanitation 18 MVA – Financial Responsibility Requirements 18 Human Immunodeficiency Virus (HIV) Infection and 19 MVA – School Vehicles Acquired Immunodeficiency Syndrome (AIDS) 20 MVA – Motorcycle Safety Program 19 Dangerous Devices and Substances 21 MVA – Commercial Motor Vehicles 20 Kidney Disease Program 22 MVA – Preventive Maintenance Program 21 Mental Hygiene Regulations 23 MVA – Drivers’ Schools, Instructors, Driver Education Program 22 Developmental Disabilities Part 4 Title 26 23 Advance Directive Registry Department of the Environment – Part & Subtitles 24 Maryland Health Care Commission Part 1 25 Maryland Health Care Commission 01 General Provisions 26 Board of Acupuncture 02 Occupational, Industrial, and Residential Hazards 27 Board of Nursing 03 Water Supply, Sewerage, Solid Waste, and Pollution Control 28 Board of Examiners in Optometry Planning and Funding 29 Board of Morticians and Funeral Directors 04 Regulation of Water Supply, Sewage Disposal, and Solid Waste 30 Commission on Kidney Disease 05 Board of Well Drillers 31 Health Occupation Boards 06 Waterworks and Waste Systems Operators 32 Board of Physicians 07 Board of Environmental Sanitarians 33 Board of Examiners of Nursing Home Administrators Part 2 34 Board of Pharmacy 08 Water Pollution 35 Postmortem Examiners Commission 09 Maryland CO2 Budget Trading Program 36 Board of Examiners of Psychologists 10 Oil Pollution and Tank Management Part 5 11 Air Quality 37 Health Services Cost Review Commission 12 Radiation Management 38 Board of Physical Therapy Examiners Part 3 39 Board of Nursing – Certified Nursing Assistants 13 Disposal of Controlled Hazardous Substances 40 Board of Podiatric Medical Examiners 14 Hazardous Substance Response Plan 41 Board of Examiners for Audiologists, Hearing Aid 15 Disposal of Controlled Hazardous Substances ― Dispensers, and Speech-Language Pathologists Radioactive Hazardous Substances 42 Board of Social Work Examiners 16 Lead 43 Board of Chiropractic Examiners 17 Water Management 44 Board of Dental Examiners 18 Susquehanna River Basin Commission 45 Maryland Community Health Resources Commission Part 4 46 Board of Occupational Therapy Practice 19 Oil and Gas Resources 47 Alcohol and Drug Abuse Administration 20 Surface Coal Mining and Reclamation under 48 Child Abuse and Neglect Medical Reimbursement Program Federally Approved Program 49 State Anatomy Board 21 Mining 50 Tissue Banks 22 Coastal Facilities Review 51 Vacant 23 Nontidal Wetlands 52 Preventive Medicine 24 Tidal Wetlands 53 Board of Nursing—Electrology Practice Committee 25 Ballast Water Management 54 Special Supplemental Nutrition Program for Women, 26 Community Right-to-Know Fund Infants, and Children (WIC) 27 Hazardous Material Security 55 State Board of Spinal Cord Injury Research 56 Board of Dietetic Practice 57 Board for Certification of Residential Child Care Program Professionals 58 Board of Professional Counselors and Therapists 59 Catastrophic Health Emergencies Last Updated 4/2010

Date: ______Existing Account#: ______

eCOMAR Order Form

Name: ______

Business Name: ______

Address: ______

City: ______State: ______Zip Code: ______

Phone: ______Fax: ______Email: ______

COMAR codification: ______; (ex: 08.02.02*) ______; ______; ______; ______; * Each codification entered is considered a separate document

Payment Method:

_____ Check enclosed and made payable to "Division of State Documents"

_____ Charge to my Visa / MasterCard / American Express / Discover

Account# ______Expiration Date: ______

Signature: ______Phone No. ______

Return Options: Basic Page Pricing Mail to: Fax: per Document* Division of State Documents 410-280-5647 1 — 20 $10 State House 21— 40 $15 Annapolis, Maryland 21401 41 — 60 $20 61 — 80 $25 81 — 100 $30 101 — 120 $40 121 — 140 $50 141 — 160 $60 161 — 180 $70 181 — 200 $80 201 — 220 $90 221 — 240 $100 241 — 260 $110 260 — 280 $120 281 — 300 $130 Over 300 Call for pricing

* For documents containing tables, maps, graphics etc. additional fees may apply. —————— • For additional information, please call 410-974-2486 ext. 3876 or 800-633-6957 ext. 3876 or email your questions and inquiries to: [email protected] • Please allow up to 2 business days for turnaround.

Date: ______

Acct.# ______Maryland Register

Archive Order Form The Division of State Documents has created pdf files of all the Maryland Register issues since 1974. The issues from 1974—2003 are scanned images in pdf format of the actual Register and, as such, are not searchable, while the issues beginning with 2004 are searchable text in pdf format.  Single issues of the Maryland Register from 1974—present _____ $10 Per issue of the Register from 1974—present via emailed pdf file. Please specify Issue(s): ______$15 Per issue of the Maryland Register from 1974—present via mailed hard-copy Please specify Issue(s): ______

 An archival library of all Maryland Register issues from 1974—2003: _____ $375 2 DVDs (1974 — 2010) _____ $50 One year of the Maryland Register from 1974—2003 (unsearchable): Please specify Year(s): ______

 _____ $100 A single year of issues from 2004 forward will be available in January of the year following their publication. These will be searchable, on CD. Please specify: 2004 2005 2006 2007 2008 2009 2010

Note: All products purchased are for individual use only. Resale or other compensated transfer of the information in printed or electronic form is a prohibited commercial purpose (see State Government Article, §7-206.2, Annotated Code of Maryland). By purchasing a product, the buyer agrees that the purchase is for individual use only and will not sell or give the product to another individual or entity.

 Please order by faxing the Business/Firm: ______completed form to: Name: ______Fax: 410-280-5647 Billing Address: ______ By mailing it to: Division of State Documents ______State House City, State, Zip ______Annapolis, MD 21401 Tel: ______Fax:______ By email to: Recipient’s Email:[email protected]  By calling: 410-260-3876

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

(Please circle payment choice and complete the order form)

Money Order or Check # ______Amount: $______or

VISA, MasterCard, American Express, Discover ~ Amount: $______

Card # ______Card Exp. Date: ______

Signature: ______Phone: ______1/2011

Date: ______

Acct.# ______Maryland Register

Print and E-Version Order Form

The Maryland Register is a biweekly publication containing proposed, emergency, and final administrative regulations as well as other State government information. The Register serves as the temporary supplement to the Code of Maryland Regulations (COMAR). Any change to the text of regulations published in COMAR, whether by adoption, amendment, repeal, or emergency action, must first be published in the Register. See separate Order Form for the Maryland Register Archive Issues from 1974 — 2010.

 _____ $225 A single year of print 1st Class Mail Delivery.

 _____ $190 A single-user annual eSubscription, which would provide a searchable pdf text file of each issue, emailed directly to one recipient’s email address.  _____ $130 Per additional user, per account subscription. Call 410-260-3876 for details.

Note: All products purchased are for individual use only. Resale or other compensated transfer of the information in printed or electronic form is a prohibited commercial purpose (see State Government Article, §7-206.2, Annotated Code of Maryland). By purchasing a product, the buyer agrees that the purchase is for individual use only and will not sell or give the product to another individual or entity.

 Please order by faxing the Business/Firm: ______completed form to: Name: ______Fax: 410-280-5647 Billing Address: ______ By mailing it to: Division of State Documents ______State House City, State, Zip ______Annapolis, MD 21401 Tel: ______Fax:______ By email to: Recipient’s Email:[email protected]  By calling: 410-260-3876

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

(Please circle payment choice and complete the order form)

Money Order or Check # ______Amount: $______or

VISA, MasterCard, American Express, Discover ~ Amount: $______

Card # ______Card Exp. Date: ______

Signature: ______Phone: ______

Last updated on 1/2011