PUBLIC BROADCASTING DIVISION[288]
Created within the
Department of Cultural Affairs by 1986 Iowa Acts, chapter 1245, section 1318.
(Iowa Code §303.76)
[Prior to 8/10/88, see Public Broadcasting Department[645] and Educational
Radio and Television Facility Board[340]]
[Prior to 9/14/94, see Public Broadcasting Division [225]]
1.1(256) Establishment of the division of public broadcasting and the Iowa public broadcasting board
1.2(256) Operational organization
CHAPTER 2
FACILITIES MANAGEMENT
CHAPTER 3
PUBLIC RECORDS AND
FAIR INFORMATION PRACTICES
(Uniform Rules)
3.3(22) Requests for access to records
3.9(22) Disclosures without the consent of the subject
3.11(22) Consensual disclosure of confidential records
3.13(22) Availability of records
3.14(22) Personally identifiable information
3.15(22) Other groups of records
3.16(22) Data processing systems
CHAPTER 10
IOWA COMMUNICATIONS
NETWORK EDUCATIONAL
SITE SELECTION
10.1(18) Site selection criteria
CHAPTER 11
AGENCY PROCEDURE FOR
RULE MAKING
11.2(17A) Advice on possible rules before notice of proposed rule adoption
11.3(17A) Public rule–making docket
11.4(17A) Notice of proposed rule making
11.5(17A) Public participation
11.7(17A,25B) Fiscal impact statement
11.8(17A) Time and manner of rule adoption
11.9(17A) Variance between adopted rule and published notice of proposed rule adoption
11.10(17A) Exemptions from public rule–making procedures
11.11(17A) Concise statement of reasons
11.12(17A) Contents, style, and form of rule
11.13(17A) Agency rule–making record
11.15(17A) Effectiveness of rules prior to publication
11.16(17A) General statements of policy
11.17(17A) Review by agency of rules
12.1(17A) Petition for declaratory order
12.6(17A) Service and filing of petitions and other papers
12.9(17A) Refusal to issue order
12.10(17A) Contents of declaratory order—effective date
12.12(17A) Effect of a declaratory order
13.1(17A) Scope and applicability
13.4(17A) Requests for contested case proceeding
13.7(17A) Waiver of procedures
13.8(17A) Telephone proceedings
13.10(17A) Consolidation—severance
13.12(17A) Service and filing of pleadings and other papers
13.16(17A) Prehearing conference
13.23(17A) Ex parte communication
13.25(17A) Interlocutory appeals
13.28(17A) Applications for rehearing
13.29(17A) Stays of agency actions
13.30(17A) No factual dispute contested cases
13.31(17A) Emergency adjudicative proceedings
CHAPTER 14
CRITERIA FOR GRANTS
14.4(256) Review process (for competitive grants and contracts)
14.5(256) Appeal of grant or contract denial or termination
[Prior to 8/10/88, see Educational Radio and Television Facility Board[340] and Public Broadcasting Department[645]]
[Prior to 9/14/94, see Public Broadcasting Division[225]]
288—1.1(256) Establishment of the division of public broadcasting and the Iowa public broadcasting board. The public broadcasting division of the department of education and the public broadcasting board (hereinafter referred to as the board) were created by Iowa Code Supplement sections 256.80 to 256.90.
1.1(1) Mission. The mission of the board shall be to plan, establish, and operate educational radio, television, and telecommunications facilities to provide public broadcasting and educational narrowcast services to enrich the lives of the people of Iowa and enhance educational opportunity throughout the state. The broadcast operation shall adhere to the Principles of Editorial Integrity.
1.1(2) Board membership. The board shall be composed of nine members according to Iowa Code Supplement section 256.82. All appointments, except appointments to fill a vacancy, shall be for a term of three years. Terms shall commence on July 1 of the year of appointment.
A vacancy shall be filled in the same manner as the original appointment for the remainder of the term.
1.1(3) Board meetings. The board shall hold regular meetings at least four times each year and shall hold special meetings when called by the president or by the vice president in the president’s absence. Special meetings shall be called by the president upon written request of any four members of the board. The time and place for regular meetings shall be determined by the board as an agenda item. The time and place for special meetings shall be determined by the president, or vice president in the president’s absence.
1.1(4) Advisory committees. The board shall appoint advisory committees as deemed appropriate, each of which has no more than a simple majority of members of the same sex, among which shall be an advisory committee on narrowcast operation and an advisory committee on journalistic and editorial integrity. Duties of the advisory committees shall be specified in rules of internal management adopted by the board.
1.1(5) Rules of order. Reserved.
288—1.2(256) Operational organization. For operational efficiency, the board has organized the division into five bureaus each of which is administered by a chief.
1.2(1) Administration bureau. The chief of administration has the following responsibilities:
a. Planning and execution of the division budget and accounting functions;
b. Coordination of administrative planning for the division;
c. Supervision of division purchases, storage, and issuance of all equipment;
d. Administration of recruitment selection and development of employees;
e. Investigation of grievances and disciplinary situations;
f. Serving as agent for retirement funds, group insurance and other employee benefits;
g. Assisting the administrator with division policies and procedures.
1.2(2) Educational telecommunications bureau. The chief of educational telecommunications has the following responsibilities:
a. Administers the development and coordination of all instructional telecommunications activities including those related to the educational applications of the Iowa communications network;
b. Establishes the structure and operations of the narrowcast advisory committee and subcommittees;
c. Ensures the appropriate interface with the other bureaus;
d. Organizes, develops, directs, and implements plans and programs in the areas of instructional television, in–school utilization of television programs, business and industry programming, adult and higher education courses.
1.2(3) Engineering bureau. The chief of engineering has the following responsibilities:
a. Directs the design, procurement, installation, and maintenance of all radio and television equipment;
b. Plans, develops, and regulates all engineering facilities for the division.
1.2(4) Programming and production bureau. The chief of programming and production has the responsibility to administer all facets of the production and programming aspects of the division.
1.2(5) Community relations and development bureau. The chief of community relations and development administers the following activities:
a. Fund–raising;
b. Development and promotion; and
c. Public information.
Bureau chiefs shall complete other projects and activities as assigned by the administrator.
These rules are intended to implement Iowa Code Supplement sections 256.80 to 256.90.
[Filed October 9, 1972]
[Filed 7/17/75]
[Filed 7/23/76, Notice 5/17/76—published 8/9/76, effective 9/13/76]
[Filed emergency 7/1/83—published 7/20/83, effective 7/1/83]
[Filed 7/21/88, Notice 4/6/88—published 8/10/88, effective 9/14/88]
[Filed 8/23/94, Notice
5/11/94—published 9/14/94, effective 10/19/94]
Note: First three lines of history transferred from Ed. Radio and TV[340]
chapter 2
FACILITIES MANAGEMENT
[Prior to 9/14/94, see Public Broadcasting Division[225]]
288—2.1(256) Location. The division of public broadcasting’s Iowa public television center is located at 6450 Corporate Drive, Johnston, Iowa 50131, (515)242–3100.
2.1(1) Hours and days of operation. Public hours and days of operation are 8 a.m. to 4:30 p.m., Monday through Friday. To obtain information pertaining to Iowa public television or its facility write to: Bureau Chief of Administration, Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131.
2.1(2) Food and drink. Consumption of food and beverages is prohibited except in specific areas designated by the administrator of the division of public broadcasting.
2.1(3) Facilities management.
a. Facilities availability. The auditorium and one conference room are available for rent through the division. Details concerning room size, rental rates for day and evening functions, and scheduling may be obtained by contacting Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131, (515)242–3100.
State agencies and governmental subdivisions of the state of Iowa may have rental fees waived for meetings of an official nature during regular business hours.
b. Facilities contract. A contract for use of any part of the building must be executed prior to the event. This contract must identify, at a minimum, the group using the facility, purpose of the use, person or group legally responsible, estimated rental fee to be assessed, exact date and time of the event. All contracts shall be initiated with the production manager and approved by the administrator. To obtain information regarding the rental fee, contact the production manager at (515)242–3100.
c. Use of alcoholic beverages. Wine and beer, as defined in Iowa Code sections 123.3(7) and 123.3(10), respectively, may be served at functions in the building. Alcoholic liquor, however, is not permitted in the facility. Any and all liability resulting from the serving of wine or beer rests with the group using the facility.
d. Liability. All individuals and groups using the facility for any purpose shall agree in writing to abide by the “hold harmless” clause specified in the facility contract and, if applicable, the application to serve wine or beer.
e. Tours. Tours of Iowa public television are available. Prior scheduling is necessary for all tours. Tours scheduled for nonbusiness hours require a fee to cover additional staff and facilities costs incurred by the division. All inquiries and arrangements for tours should be directed to Public Information, Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131, (515)242–3100.
These rules are intended to implement Iowa Code Supplement sections 256.80 to 256.90.
[Filed 7/21/88, Notice 4/6/88—published 8/10/88, effective 9/14/88]
[Filed 8/23/94, Notice 5/11/94—published 9/14/94, effective 10/19/94]
chapter 3
PUBLIC RECORDS AND FAIR INFORMATION PRACTICES
[Prior to
9/14/94, see Public Broadcasting Division[225]]
The Iowa public broadcasting board hereby adopts, with the following exceptions and amendments, rules of the Governor’s Task Force on Uniform Rules of Agency Procedures relating to public records and fair information practices which are printed in the first Volume of the Iowa Administrative Code.
288—3.1(22) Definitions. As used in this chapter:
“Administrator” means the administrator of the public broadcasting division of the department of education.
“Agency” means the Iowa public broadcasting board.
“Custodian” means the public broadcasting board, the public broadcasting division of the department of education, and Iowa public television.
288—3.3(22) Requests for access to records.
3.3(1) Location of record. A request for access to a record should be directed to the Administrator, Public Broadcasting Division, Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131.
3.3(2) Office hours. Open records shall be made available during all customary office hours, which are 8 a.m. to 4:30 p.m. daily, excluding Saturdays, Sundays, and legal holidays.
3.3(7) Fees.
c. In lieu of “(specify time period)” insert “one–half hour”.
288—3.9(22) Disclosures without the consent of the subject.
3.9(1) Open records are routinely disclosed without the consent of the subject.
3.9(2) To the extent allowed by law, disclosure of confidential records may occur without the consent of the subject. Following are instances where disclosure, if lawful, will generally occur without notice to the subject:
a. For a routine use as defined in rule 3.10(22) or in any notice for a particular record system.
b. To a recipient who has provided the agency with advance written assurance that the record will be used solely as a statistical research or reporting record, provided that the record is transferred in a form that does not identify the subject.
c. To another government agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if an authorized representative of such government agency or instrumentality has submitted a written request to the agency specifying the record desired and the law enforcement activity for which the record is sought.
d. To an individual pursuant to a showing of compelling circumstances affecting the health or safety of any individual if a notice of the disclosure is transmitted to the last known address of the subject.
e. To the legislative services agency under Iowa Code section 2A.3.
f. Disclosures in the course of employee disciplinary proceedings.
g. In response to a court order or subpoena.
3.10(1) Defined. “Routine use” means the disclosure of a record without the consent of the subject or subjects, for a purpose which is compatible with the purpose for which the record was collected. It includes disclosures required to be made by statute other than the public records law, Iowa Code chapter 22.
3.10(2) To the extent allowed by law, the following uses are considered routine uses of all agency records:
a. Disclosure to those officers, employees, and agents of the agency who have a need for the rec–ord in the performance of their duties. The custodian of the record may, upon request of any officer or employee, or on the custodian’s own initiative, determine what constitutes legitimate need to use confidential records.
b. Disclosure of information indicating an apparent violation of the law to appropriate law enforcement authorities for investigation and possible criminal prosecution, civil court action, or regulatory order.
c. Disclosure to the department of inspections and appeals for matters in which it is performing services or functions on behalf of the agency.
d. Transfers of information within the agency, to other state agencies, or to local units of government as appropriate to administer the program for which the information is collected.
e. Information released to staff of federal and state entities for audit purposes or for purposes of determining whether the agency is operating a program lawfully.
f. Any disclosure specifically authorized by the statute under which the record was collected or maintained.
288—3.11(22) Consensual disclosure of confidential records.
3.11(1) Consent to disclosure by a subject individual. To the extent permitted by law, the subject may consent in writing to agency disclosure of confidential records as provided in rule 3.7(17A,22).
3.11(2) Complaints to public officials. A letter from a subject of a confidential record to a public official which seeks the official’s intervention on behalf of the subject in a matter that involves the agency may, to the extent permitted by law, be treated as an authorization to release sufficient information about the subject to the official to resolve the matter.
288—3.12(22) Release to subject.
3.12(1) The subject of a confidential record may file a written request to review confidential rec–ords about that person as provided in rule 3.6(17A,22). However, the agency need not release the following records to the subject:
a. The identity of a person providing information to the agency need not be disclosed directly or indirectly to the subject of the information when the information is authorized to be held confidential pursuant to Iowa Code section 22.7(18) or other provision of law.
b. Records need not be disclosed to the subject when they are the work product of an attorney or are otherwise privileged.
c. Peace officers’ investigative reports may be withheld from the subject, except as required by the Iowa Code. (See Iowa Code section 22.7(5))
d. As otherwise authorized by law.
3.12(2) Where a record has multiple subjects with interest in the confidentiality of the record, the agency may take reasonable steps to protect confidential information relating to another subject.
288—3.13(22) Availability of records.
3.13(1) General. Agency records are open for public inspection and copying unless otherwise provided by rule or law.
3.13(2) Confidential records. The following records may be withheld from public inspection.Records are listed by category, according to the legal basis for withholding them from public inspection.
a. Sealed bids received prior to the time set for public opening of bids. (Iowa Code section 72.3)
b. Tax records made available to the agency. (Iowa Code sections 422.20 and 422.72)
c. Records which are exempt from disclosure under Iowa Code section 22.7.
d. Minutes of closed meetings of a government body. (Iowa Code section 21.5(4))
e. Identifying details in final orders, decisions and opinions to the extent required to prevent a clearly unwarranted invasion of personal privacy or trade secrets under Iowa Code section 17A.3(1)“d.”
f. Those portions of agency staff manuals, instructions or other statements issued which set forth criteria or guidelines to be used by agency staff in auditing, in making inspections, in settling commercial disputes or negotiating commercial arrangements, or in the selection or handling of cases, such as operational tactics or allowable tolerances or criteria for the defense, prosecution or settlement of cases, when disclosure of these statements would:
(1) Enable law violators to avoid detection;
(2) Facilitate disregard of requirements imposed by law; or
(3) Give a clearly improper advantage to persons who are in an adverse position to the agency. (See Iowa Code sections 17A.2 and 17A.3)
g. Records which constitute attorney work product, attorney–client communications, or which are otherwise privileged. Attorney work product is confidential under Iowa Code sections 22.7(4), 622.10 and 622.11, Iowa R. Civ. P. 122(c), Fed. R. Civ. P. 26(b)(3), and case law. Attorney–client communications are confidential under Iowa Code sections 622.10 and 622.11, the rules of evidence, the Code of Professional Responsibility, and case law.
h. Any other records made confidential by law.
3.13(3) Authority to release confidential records. The agency may have discretion to disclose some confidential records which are exempt from disclosure under Iowa Code section 22.7 or other law. Any person may request permission to inspect these records withheld from inspection under a statute which authorizes limited or discretionary disclosure as provided in rule 3.4(17A,22). If the agency initially determines that it will release such records, the agency may, where appropriate, notify interested parties and withhold the records from inspection as provided in subrule 3.4(3).
288—3.14(22) Personally identifiable information. This rule describes the nature and extent of personally identifiable information which is collected, maintained, and retrieved by the agency by personal identifier in record systems as defined in rule 3.1(17A,22). For each record system, this rule describes the legal authority for the collection of that information, the means of storage of that information and indicates whether a data processing system matches, collates, or permits the comparison of personally identifiable information in one record system with personally identifiable information in another record system. The record systems maintained by the agency are:
3.14(1) Litigation files. These files or records contain information regarding litigation or anticipated litigation, which includes judicial and administrative proceedings. The records include briefs, depositions, docket sheets, documents, correspondence, attorney’s notes, memoranda, research materials, witness information, investigation materials, information compiled under the direction of the attorney, and case management records. The files contain materials which are confidential as attorney work product and attorney–client communications. Some materials are confidential under other applicable provisions of law or because of a court order. Persons wishing copies of pleadings and other documents filed in litigation should obtain these from the clerk of the appropriate court which maintains the official copy.
3.14(2) Personnel files. The agency maintains files containing information about employees, families and dependents, and applicants for positions with the agency. The files include payroll rec–ords, biographical information, medical information relating to disability, performance reviews and evaluations, disciplinary information, information required for tax withholding, information concerning employee benefits, affirmative action reports, and other information concerning the employer–employee relationship. Some of this information is confidential under Iowa Code sections 22.7(11) and 22.7(18).
288—3.15(22) Other groups of records. This rule describes groups of records maintained by the agency other than record systems as defined in rule 3.1(17A,22). The records listed may contain information about individuals. Unless otherwise designated, the authority for this office to maintain the record is provided by Iowa Code chapter 13, the statutes governing the subject matter of the record, and the enabling statutes of the agency client, where applicable. All records are stored both on paper and in automated data processing systems unless otherwise noted.
3.15(1) Board records. Agendas, minutes, and materials presented to the Iowa public broadcasting board are available from the administrator’s office, except those records concerning closed sessions which are exempt from disclosure under Iowa Code section 21.5 or which are otherwise confidential by law. Board records contain information about people who participate in meetings. This information is collected pursuant to Iowa Code section 21.3. This information is not stored in an automated data processing system.
3.15(2) Administrative records. This includes documents concerning budget, property inventory, purchasing, yearly reports, office policies for employees, time sheets, printing and supply requisitions. These records may contain confidential information as discussed in rule 3.13(22).
3.15(3) Publications. The office receives a number of books, periodicals, newsletters, government documents, and other materials. These materials would generally be open to the public but may be protected by copyright law. Most publications of general interest are available in the state law library.
3.15(4) Office publications. This office issues a variety of materials including teacher’s guides, schedule books, brochures and pamphlets, press releases, statistical reports, etc. These publications are open for public inspection, have no personally identifiable information and may have a charge to obtain.
3.15(5) Rule–making records. Official documents executed during the promulgation of agency rules and public comments are available for public inspection.
3.15(6) Office manuals. Information in office manuals such as the employee’s manual or desk manuals may be confidential under Iowa Code section 17A.2(10)“f” or other applicable provision of law.
3.15(7) Other records. All other records that are not exempted from disclosure by law.
288—3.16(22) Data processing systems. The agency does not currently have a data processing system which matches, collates or permits the comparison of personally identifiable information in one record system with personally identifiable information in another record system.
288—3.17(22) Applicability. This chapter does not:
1. Require the agency to index or retrieve records which contain information about individuals by that person’s name or other personal identifier.
2. Make available to the general public records which would otherwise not be available under the public records law, Iowa Code chapter 22.
3. Govern the maintenance or disclosure of, notification of or access to, records in the possession of the agency which are governed by the regulations of another agency.
4. Apply to grantees, including local governments or subdivisions thereof, administering state–funded programs, unless otherwise provided by law or agreement.
5. Make available records compiled by the agency in reasonable anticipation of court litigation or formal administrative proceedings. The availability of such records to the general public or to any subject individual or party to such litigation or proceedings shall be governed by applicable legal and constitutional principles, statutes, rules of discovery, evidentiary privileges, and applicable regulations of the agency.
These rules are intended to implement Iowa Code section 22.11.
[Filed 7/21/88, Notice 5/4/88—published 8/10/88, effective 9/14/88]
[Filed 12/21/88, Notice 10/5/88—published 1/11/89, effective 2/15/89]
[Filed 8/23/94, Notice 5/11/94—published 9/14/94, effective 10/19/94]
CHAPTERS 4 to 9
Reserved
chapter 10
IOWA COMMUNICATIONS NETWORK
EDUCATIONAL SITE SELECTION
[Prior to 9/14/94, see Public Broadcasting Division[225]]
288—10.1(18) Site selection criteria. Site selection shall be made using the following criteria:
10.1(1) Equipment facilities requirements. The requirements for equipment facilities include the following:
a. A minimum of 200 square feet is required for equipment facilities. A minimum clearance of three feet on the front and back of relay equipment and the front of wall–mounted equipment at the site shall be maintained at all times.
b. One wall shall be strong enough to support a horizontally mounted 8 feet by 4 feet by ¾–inch plywood board and 50 pounds of equipment mounted on the board.
c. 120/240–volt noninterruptible electrical service shall be provided from dedicated circuits with isolated grounding. At a minimum, there shall be a one–circuit fourplex for the wall–mounted equipment and a second one–circuit fourplex for general electrical needs of the site. The service shall be installed in compliance with the currently adopted edition of the National Electrical Code. Additional requirements may be necessary to handle site–specific equipment.
d. A minimum of 75 foot–candle average illumination is required at the floor of the site.
e. Adequate heating and air conditioning shall be provided to maintain ambient temperature between 50 and 80 degrees Fahrenheit, between 30 and 50 percent humidity, and have sufficient ventilation to maintain a clean environment for the electronic equipment. Additional requirements may be necessary to handle site–specific equipment.
f. Protection is required for the equipment to prevent accidental damage and damage from vandalism.
g. An outdoor area is required for a standby generator and an associated propane tank conven–iently located to provide emergency power for the site.
h. Convenient access to the site is required for equipment installation, testing, maintenance, and repair. The area shall be secured from access by unauthorized individuals and 24–hour access guaranteed for authorized personnel. A key to the building and room, if necessary, shall be provided.
i. The items in this subrule shall be provided at no expense to the state.
10.1(2) Facility access requirements. The requirements for facility access include the following:
a. Access to the classroom(s) and the area in which the classroom(s) is located shall, at a minimum, meet the Iowa state building code requirements in effect at the time of the site selection.
b. Access to the classroom(s) and the area in which the classroom(s) is located shall require the facility to meet all the conditions of the “Uniform Federal Accessibility Standards” in effect at the time of the site selection.
c. Parking facilities shall be of adequate size to accommodate classes and have adequate lighting for safe access.
d. Normal custodial maintenance including snow removal shall be provided.
10.1(3) Classroom facilities requirements. The requirements for classroom facilities include the following:
a. At initialization, each site shall have a minimum of one teaching classroom dedicated for educational telecommunications origination or reception. This classroom shall be of sufficient size to comfortably seat a minimum of 20 students.
b. At the time that a second channel is activated, a second teaching classroom shall be dedicated for educational telecommunications origination or reception. This classroom shall be of sufficient size to comfortably seat a minimum of 20 students.
c. Future classroom expansion should be considered in selecting sites.
d. Classroom(s) shall be available for use the entire calendar year.
e. Sites shall, at a minimum, support access and facilities use Monday through Friday, 7 a.m. to 10:30 p.m., and Saturday, 8 a.m. to 4 p.m.
f. Classroom(s) shall be located as close as possible to the equipment facilities identified in subrule 10.1(1).
This rule is intended to implement Iowa Code section 18.136(8).
[Filed emergency 2/26/91—published 3/20/91, effective 2/26/91]
[Filed emergency 4/16/91—published 5/15/91, effective 4/16/91]
[Filed emergency 4/21/94—published 5/11/94, effective 4/22/94]
[Filed 8/23/94, Notice 5/11/94—published 9/14/94, effective 10/19/94]
chapter 11
AGENCY PROCEDURE FOR RULE MAKING
288—11.1(17A) Applicability. Except to the extent otherwise expressly provided by statute, all rules adopted by the agency are subject to the provisions of Iowa Code chapter 17A, the Iowa administrative procedure Act, and the provisions of this chapter.
288—11.2(17A) Advice on possible rules before notice of proposed rule adoption. In addition to seeking information by other methods, the agency may, before publication of a Notice of Intended Action under Iowa Code section 17A.4(1)“a,” solicit comments from the public on a subject matter of possible rule making by the agency by causing notice to be published in the Iowa Administrative Bulletin of the subject matter and indicating where, when, and how persons may comment.
288—11.3(17A) Public rule–making docket.
11.3(1) Docket maintained. The agency shall maintain a current public rule–making docket.
11.3(2) Anticipated rule making. The rule–making docket shall list each anticipated rule–making proceeding. A rule–making proceeding is deemed “anticipated” from the time a draft of proposed rules is distributed for internal discussion within the agency. For each anticipated rule–making proceeding the docket shall contain a listing of the precise subject matter which may be submitted for consideration by the board for subsequent proposal under the provisions of Iowa Code section 17A.4(1)“a,” the name and address of agency personnel with whom persons may communicate with respect to the matter, and an indication of the present status within the agency of that possible rule. The agency may also include in the docket other subjects upon which public comment is desired.
11.3(3) Pending rule–making proceedings. The rule–making docket shall list each pending rule–making proceeding. A rule–making proceeding is pending from the time it is commenced, by publication in the Iowa Administrative Bulletin of a Notice of Intended Action pursuant to Iowa Code section 17A.4(1)“a,” to the time it is terminated, by publication of a Notice of Termination in the Iowa Administrative Bulletin or the rule becoming effective. For each rule–making proceeding, the docket shall indicate:
a. The subject matter of the proposed rule;
b. A citation to all published notices relating to the proceeding;
c. Where written submissions on the proposed rule may be inspected;
d. The time during which written submissions may be made;
e. The names of persons who have made written requests for an opportunity to make oral presentations on the proposed rule, where those requests may be inspected, and where and when oral presentations may be made;
f. Whether a written request for the issuance of a regulatory analysis, or a concise statement of reasons, has been filed, whether such an analysis or statement or a fiscal impact statement has been issued, and where any such written request, analysis, or statement may be inspected;
g. The current status of the proposed rule and any agency determinations with respect thereto;
h. Any known timetable for agency decisions or other action in the proceeding;
i. The date of the rule’s adoption;
j. The date of the rule’s filing, indexing, and publication;
k. The date on which the rule will become effective; and
l. Where the rule–making record may be inspected.
288—11.4(17A) Notice of proposed rule making.
11.4(1) Contents. At least 35 days before the adoption of a rule the agency shall cause Notice of Intended Action to be published in the Iowa Administrative Bulletin. The Notice of Intended Action shall include:
a. A brief explanation of the purpose of the proposed rule;
b. The specific legal authority for the proposed rule;
c. Except to the extent impracticable, the text of the proposed rule;
d. Where, when, and how persons may present their views on the proposed rule; and
e. Where, when, and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.
Where inclusion of the complete text of a proposed rule in the Notice of Intended Action is impracticable, the agency shall include in the notice a statement fully describing the specific subject matter of the omitted portion of the text of the proposed rule, the specific issues to be addressed by that omitted text of the proposed rule, and the range of possible choices being considered by the agency for the resolution of each of those issues.
11.4(2) Incorporation by reference. A proposed rule may incorporate other materials by reference only if it complies with all of the requirements applicable to the incorporation by reference of other materials in an adopted rule that are contained in subrule 11.12(2) of this chapter.
11.4(3) Copies of notices. Persons desiring to receive copies of future Notices of Intended Action by subscription must file with the agency a written request indicating the name and address to which such notices should be sent. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the agency shall mail or electronically transmit a copy of that notice to subscribers who have filed a written request for either mailing or electronic transmittal with the agency for Notices of Intended Action. The written request shall be accompanied by payment of the subscription price which may cover the full cost of the subscription service, including its administrative overhead and the cost of copying and mailing the Notices of Intended Action for a period of one year.
288—11.5(17A) Public participation.
11.5(1) Written comments. For at least 20 days after publication of the Notice of Intended Action, persons may submit argument, data, and views, in writing, on the proposed rule. Such written submissions should identify the proposed rule to which they relate and should be submitted to the Executive Director, Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131, or the person designated in the Notice of Intended Action.
11.5(2) Oral proceedings. The agency may, at any time, schedule an oral proceeding on a proposed rule. The agency shall schedule an oral proceeding on a proposed rule if, within 20 days after the published Notice of Intended Action, a written request for an opportunity to make oral presentations is submitted to the agency by the administrative rules review committee, a governmental subdivision, an agency, an association having not less than 25 members, or at least 25 persons. That request must also contain the following additional information:
1. A request by one or more individual persons must be signed by each of them and include the address and telephone number of each of them.
2. A request by an association must be signed by an officer or designee of the association and must contain a statement that the association has at least 25 members and the address and telephone number of the person signing that request.
3. A request by an agency or governmental subdivision must be signed by an official having authority to act on behalf of the entity and must contain the address and telephone number of the person signing that request.
11.5(3) Conduct of oral proceedings.
a. Applicability. This subrule applies only to those oral rule–making proceedings in which an opportunity to make oral presentations is authorized or required by Iowa Code section 17A.4(1)“b” as amended by 1998 Iowa Acts, chapter 1202, section 8, or this chapter.
b. Scheduling and notice. An oral proceeding on a proposed rule may be held in one or more locations and shall not be held earlier than 20 days after notice of its location and time is published in the Iowa Administrative Bulletin. That notice shall also identify the proposed rule by ARC number and citation to the Iowa Administrative Bulletin.
c. Presiding officer. The agency, a member of the agency, or another person designated by the agency who will be familiar with the substance of the proposed rule, shall preside at the oral proceeding on a proposed rule. If the agency does not preside, the presiding officer shall prepare a memorandum for consideration by the agency summarizing the contents of the presentations made at the oral proceeding unless the agency determines that such a memorandum is unnecessary because the agency will personally listen to or read the entire transcript of the oral proceeding.
d. Conduct of proceeding. At an oral proceeding on a proposed rule, persons may make oral statements and make documentary and physical submissions, which may include data, views, comments or arguments concerning the proposed rule. Persons wishing to make oral presentations at such a proceeding are encouraged to notify the agency at least one business day prior to the proceeding and indicate the general subject of their presentations. At the proceeding, those who participate shall indicate their names and addresses, identify any persons or organizations they may represent, and provide any other information relating to their participation deemed appropriate by the presiding officer. Oral proceedings shall be open to the public and shall be recorded by stenographic or electronic means.
(1) At the beginning of the oral proceeding, the presiding officer shall give a brief synopsis of the proposed rule, a statement of the statutory authority for the proposed rule, and the reasons for the agency decision to propose the rule. The presiding officer may place time limitations on individual oral presentations when necessary to ensure the orderly and expeditious conduct of the oral proceeding. To encourage joint oral presentations and to avoid repetition, additional time may be provided for persons whose presentations represent the views of other individuals as well as their own views.
(2) Persons making oral presentations are encouraged to avoid restating matters which have already been submitted in writing.
(3) To facilitate the exchange of information, the presiding officer may, where time permits, open the floor to questions or general discussion.
(4) The presiding officer shall have the authority to take any reasonable action necessary for the orderly conduct of the meeting.
(5) Physical and documentary submissions presented by participants in the oral proceeding shall be submitted to the presiding officer. Such submissions become the property of the agency.
(6) The oral proceeding may be continued by the presiding officer to a later time without notice other than by announcement at the hearing.
(7) Participants in an oral proceeding shall not be required to take an oath or to submit to cross–examination. However, the presiding officer in an oral proceeding may question participants and permit the questioning of participants by other participants about any matter relating to that rule–making proceeding, including any prior written submissions made by those participants in that proceeding; but no participant shall be required to answer any question.
(8) The presiding officer in an oral proceeding may permit rebuttal statements and request the filing of written statements subsequent to the adjournment of the oral presentations.
11.5(4) Additional information. In addition to receiving written comments and oral presentations on a proposed rule according to the provisions of this rule, the agency may obtain information concerning a proposed rule through any other lawful means deemed appropriate under the circumstances.
11.5(5) Accessibility. The agency shall schedule oral proceedings in rooms accessible to and functional for persons with physical disabilities. Persons who have special requirements should contact the Executive Director, Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131, or (515)242–3100 in advance to arrange access or other needed services.
288—11.6(17A) Regulatory analysis.
11.6(1) Definition of small business. A “small business” is defined in 1998 Iowa Acts, chapter 1202, section 10(7).
11.6(2) Mailing list. Small businesses or organizations of small businesses may be registered on the agency’s small business impact list by making a written application addressed to Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131. The application for registration shall state:
a. The name of the small business or organization of small businesses;
b. Its address;
c. The name of a person authorized to transact business for the applicant;
d. A description of the applicant’s business or organization. An organization representing 25 or more persons who qualify as a small business shall indicate that fact.
e. Whether the registrant desires copies of Notices of Intended Action at cost, or desires advance notice of the subject of all or some specific category of proposed rule making affecting small business.
The agency may at any time request additional information from the applicant to determine whether the applicant is qualified as a small business or as an organization of 25 or more small businesses. The agency may periodically send a letter to each registered small business or organization of small businesses asking whether that business or organization wishes to remain on the registration list. The name of a small business or organization of small businesses will be removed from the list if a negative response is received, or if no response is received within 30 days after the letter is sent.
11.6(3) Time of mailing. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the agency shall mail to all registered small businesses or organizations of small businesses, in accordance with their request, either a copy of the Notice of Intended Action or notice of the subject of that proposed rule making. In the case of a rule that may have an impact on small business adopted in reliance upon Iowa Code section 17A.4(2), the agency shall mail notice of the adopted rule to registered businesses or organizations prior to the time the adopted rule is published in the Iowa Administrative Bulletin.
11.6(4) Qualified requesters for regulatory analysis—economic impact. The agency shall issue a regulatory analysis of a proposed rule that conforms to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2a), after a proper request from:
a. The administrative rules coordinator;
b. The administrative rules review committee.
11.6(5) Qualified requesters for regulatory analysis—business impact. The agency shall issue a regulatory analysis of a proposed rule that conforms to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2b), after a proper request from:
a. The administrative rules review committee;
b. The administrative rules coordinator;
c. At least 25 or more persons who sign the request provided that each represents a different small business;
d. An organization representing at least 25 small businesses. That organization shall list the name, address and telephone number of not less than 25 small businesses it represents.
11.6(6) Time period for analysis. Upon receipt of a timely request for a regulatory analysis the agency shall adhere to the time lines described in 1998 Iowa Acts, chapter 1202, section 10(4).
11.6(7) Contents of request. A request for a regulatory analysis is made when it is mailed or delivered to the agency. The request shall be in writing and satisfy the requirements of 1998 Iowa Acts, chapter 1202, section 10(1).
11.6(8) Contents of concise summary. The contents of the concise summary shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10(4,5).
11.6(9) Publication of a concise summary. The agency shall make available, to the maximum extent feasible, copies of the published summary in conformance with 1998 Iowa Acts, chapter 1202, section 10(5).
11.6(10) Regulatory analysis contents—rules review committee or rules coordinator. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, or the administrative rules coordinator, the regulatory analysis shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2a), unless a written request expressly waives one or more of the items listed in the section.
11.6(11) Regulatory analysis contents—substantial impact on small business. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, the administrative rules coordinator, at least 25 persons signing that request who each qualify as a small business or by an organization representing at least 25 small businesses, the regulatory analysis shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2b).
288—11.7(17A,25B) Fiscal impact statement.
11.7(1) A proposed rule that mandates additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services must be accompanied by a fiscal impact statement outlining the costs associated with the rule. A fiscal impact statement must satisfy the requirements of Iowa Code section 25B.6.
11.7(2) If the agency determines at the time it adopts a rule that the fiscal impact statement upon which the rule is based contains errors, the agency shall, at the same time, issue a corrected fiscal impact statement and publish the corrected fiscal impact statement in the Iowa Administrative Bulletin.
288—11.8(17A) Time and manner of rule adoption.
11.8(1) Time of adoption. The agency shall not adopt a rule until the period for making written submissions and oral presentations has expired. Within 180 days after the later of the publication of the Notice of Intended Action, or the end of oral proceedings thereon, the agency shall adopt a rule pursuant to the rule–making proceeding or terminate the proceeding by publication of a notice to that effect in the Iowa Administrative Bulletin.
11.8(2) Consideration of public comment. Before the adoption of a rule, the agency shall consider fully all of the written submissions and oral submissions received in that rule–making proceeding or any memorandum summarizing such oral submissions, and any regulatory analysis or fiscal impact statement issued in that rule–making proceeding.
11.8(3) Reliance on agency expertise. Except as otherwise provided by law, the agency may use its own experience, technical competence, specialized knowledge, and judgment in the adoption of a rule.
288—11.9(17A) Variance between adopted rule and published notice of proposed rule adoption.
11.9(1) The agency shall not adopt a rule that differs from the rule proposed in the Notice of Intended Action on which the rule is based unless:
a. The differences are within the scope of the subject matter announced in the Notice of Intended Action and are in character with the issues raised in that notice; and
b. The differences are a logical outgrowth of the contents of that Notice of Intended Action and the comments submitted in response thereto; and
c. The Notice of Intended Action provided fair warning that the outcome of that rule–making proceeding could be the rule in question.
11.9(2) In determining whether the Notice of Intended Action provided fair warning that the outcome of that rule–making proceeding could be the rule in question, the agency shall consider the following factors:
a. The extent to which persons who will be affected by the rule should have understood that the rule–making proceeding on which it is based could affect their interests;
b. The extent to which the subject matter of the rule or the issues determined by the rule are different from the subject matter or issues contained in the Notice of Intended Action; and
c. The extent to which the effects of the rule differ from the effects of the proposed rule contained in the Notice of Intended Action.
11.9(3) The agency shall commence a rule–making proceeding within 60 days of its receipt of a petition for rule making seeking the amendment or repeal of a rule that differs from the proposed rule contained in the Notice of Intended Action upon which the rule is based, unless the agency finds that the differences between the adopted rule and the proposed rule are so insubstantial as to make such a rule–making proceeding wholly unnecessary. A copy of any such finding and the petition to which it responds shall be sent to petitioner, the administrative rules coordinator, and the administrative rules review committee, within three days of its issuance.
11.9(4) Concurrent rule–making proceedings. Nothing in this rule disturbs the discretion of the agency to initiate, concurrently, several different rule–making proceedings on the same subject with several different published Notices of Intended Action.
288—11.10(17A) Exemptions from public rule–making procedures.
11.10(1) Omission of notice and comment. To the extent the agency for good cause finds that public notice and participation are unnecessary, impracticable, or contrary to the public interest in the process of adopting a particular rule, the agency may adopt that rule without publishing advance Notice of Intended Action in the Iowa Administrative Bulletin and without providing for written or oral public submissions prior to its adoption. The agency shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.
11.10(2) Public proceedings on rules adopted without them. The agency may, at any time, commence a standard rule–making proceeding for the adoption of a rule that is identical or similar to a rule it adopts in reliance upon subrule 11.10(1). Upon written petition by a governmental subdivision, the administrative rules review committee, an agency, the administrative rules coordinator, an association having not less than 25 members, or at least 25 persons, the agency shall commence a standard rule–making proceeding for any rule specified in the petition that was adopted in reliance upon subrule 11.10(1). Such a petition must be filed within one year of the publication of the specified rule in the Iowa Administrative Bulletin as an adopted rule. The rule–making proceeding on that rule must be commenced within 60 days of the receipt of such a petition. After a standard rule–making proceeding commenced pursuant to this subrule, the agency may either readopt the rule it adopted without benefit of all usual procedures on the basis of subrule 11.10(1), or may take any other lawful action, including the amendment or repeal of the rule in question, with whatever further proceedings are appropriate.
288—11.11(17A) Concise statement of reasons.
11.11(1) General. When requested by a person, either prior to the adoption of a rule or within 30 days after its publication in the Iowa Administrative Bulletin as an adopted rule, the agency shall issue a concise statement of reasons for the rule. Requests for such a statement must be in writing and be delivered to Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131. The request should indicate whether the statement is sought for all or only a specified part of the rule. Requests will be considered made on the date received.
11.11(2) Contents. The concise statement of reasons shall contain:
a. The reasons for adopting the rule;
b. An indication of any change between the text of the proposed rule contained in the published Notice of Intended Action and the text of the rule as finally adopted, with the reasons for any such change;
c. The principal reasons urged in the rule–making proceeding for and against the rule, and the agency’s reasons for overruling the arguments made against the rule.
11.11(3) Time of issuance. After a proper request, the agency shall issue a concise statement of reasons by the later of the time the rule is adopted or 35 days after receipt of the request.
288—11.12(17A) Contents, style, and form of rule.
11.12(1) Contents. Each rule adopted by the agency shall contain the text of the rule and, in addition:
a. The date the agency adopted the rule;
b. A brief explanation of the principal reasons for the rule–making action if such reasons are required by 1998 Iowa Acts, chapter 1202, section 8, or the agency in its discretion decides to include such reasons;
c. A reference to all rules repealed, amended, or suspended by the rule;
d. A reference to the specific statutory or other authority authorizing adoption of the rule;
e. Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule;
f. A brief explanation of the principal reasons for the failure to provide for waivers to the rule if no waiver provision is included and a brief explanation of any waiver or special exceptions provided in the rule if such reasons are required by 1998 Iowa Acts, chapter 1202, section 8, or the agency in its discretion decides to include such reasons; and
g. The effective date of the rule.
11.12(2) Incorporation by reference. The agency may incorporate by reference in a proposed or adopted rule, and without causing publication of the incorporated matter in full, all or any part of a code, standard, rule, or other matter if the agency finds that the incorporation of its text in the agency proposed or adopted rule would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in the agency proposed or adopted rule shall fully and precisely identify the incorporated matter by location, title, citation, date, and edition, if any; shall briefly indicate the precise subject and the general contents of the incorporated matter; and shall state that the proposed or adopted rule does not include any later amendments or editions of the incorporated matter. The agency may incorporate such matter by reference in a proposed or adopted rule only if the agency makes copies of it readily available to the public. The rule shall state how and where copies of the incorporated matter may be obtained at cost from this agency, and how and where copies may be obtained from the agency of the United States, this state, another state, or the organization, association, or persons, originally issuing that matter. The agency shall retain permanently a copy of any materials incorporated by reference in a rule of the agency.
If the agency adopts standards by reference to another publication, it shall provide a copy of the publication containing the standards to the administrative rules coordinator for deposit in the state law library and may make the standards available electronically.
11.12(3) References to materials not published in full. When the administrative code editor decides to omit the full text of a proposed or adopted rule because publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient, the agency shall prepare and submit to the administrative code editor for inclusion in the Iowa Administrative Bulletin and Iowa Administrative Code a summary statement describing the specific subject matter of the omitted material. This summary statement shall include the title and a brief description sufficient to inform the public of the specific nature and subject matter of the proposed or adopted rules, and of significant issues involved in these rules. The summary statement shall also describe how a copy of the full text of the proposed or adopted rule, including any unpublished matter and any matter incorporated by reference, may be obtained from the agency. The agency will provide a copy of that full text (at actual cost) upon request and shall make copies of the full text available for review at the state law library and may make the standards available electronically.
At the request of the administrative code editor, the agency shall provide a proposed statement explaining why publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient.
11.12(4) Style and form. In preparing its rules, the agency shall follow the uniform numbering system, form, and style prescribed by the administrative rules coordinator.
288—11.13(17A) Agency rule–making record.
11.13(1) Requirement. The agency shall maintain an official rule–making record for each rule it proposes by publication in the Iowa Administrative Bulletin of a Notice of Intended Action, or adopts. The rule–making record and materials incorporated by reference must be available for public inspection.
11.13(2) Contents. The agency rule–making record shall contain:
a. Copies of all publications in the Iowa Administrative Bulletin with respect to the rule or the proceeding upon which the rule is based and any file–stamped copies of agency submissions to the administrative rules coordinator concerning that rule or the proceeding upon which it is based;
b. Copies of any portions of the agency’s public rule–making docket containing entries relating to the rule or the proceeding upon which the rule is based;
c. All written petitions, requests, and submissions received by the agency, and all other written materials of a factual nature as distinguished from opinion that are relevant to the merits of the rule and that were created or compiled by the agency and considered by the executive director, in connection with the formulation, proposal, or adoption of the rule or the proceeding upon which the rule is based, except to the extent the agency is authorized by law to keep them confidential; provided, however, that when any such materials are deleted because they are authorized by law to be kept confidential, the agency shall identify in the record the particular materials deleted and state the reasons for that deletion;
d. Any official transcript of oral presentations made in the proceeding upon which the rule is based or, if not transcribed, the stenographic record or electronic recording of those presentations, and any memorandum prepared by a presiding officer summarizing the contents of those presentations;
e. A copy of any regulatory analysis or fiscal impact statement prepared for the proceeding upon which the rule is based;
f. A copy of the rule and any concise statement of reasons prepared for that rule;
g. All petitions for amendment or repeal or suspension of the rule;
h. A copy of any objection to the issuance of that rule without public notice and participation that was filed pursuant to Iowa Code section 17A.4(2) by the administrative rules review committee, the governor, or the attorney general;
i. A copy of any objection to the rule filed by the administrative rules review committee, the governor, or the attorney general pursuant to Iowa Code section 17A.4(4), and any agency response to that objection;
j. A copy of any significant written criticism of the rule, including a summary of any petitions for waiver of the rule; and
k. A copy of any executive order concerning the rule.
11.13(3) Effect of record. Except as otherwise required by a provision of law, the agency rule–making record required by this rule need not constitute the exclusive basis for agency action on that rule.
11.13(4) Maintenance of record. The agency shall maintain the rule–making record for a period of not less than five years from the later of the date the rule to which it pertains became effective, the date of the Notice of Intended Action, or the date of any written criticism as described in 11.13(2)“g,” “h,” “i,” or “j.”
288—11.14(17A) Filing of rules. The agency shall file each rule it adopts in the office of the administrative rules coordinator. The filing must be executed as soon after adoption of the rule as is practicable. At the time of filing, each rule must have attached to it any fiscal impact statement and any concise statement of reasons that was issued with respect to that rule. If a fiscal impact statement or statement of reasons for that rule was not issued until a time subsequent to the filing of that rule, the note or statement must be attached to the filed rule within five working days after the note or statement is issued. In filing a rule, the agency shall use the standard form prescribed by the administrative rules coordinator.
288—11.15(17A) Effectiveness of rules prior to publication.
11.15(1) Grounds. The agency may make a rule effective after its filing at any stated time prior to 35 days after its indexing and publication in the Iowa Administrative Bulletin if it finds that a statute so provides, the rule confers a benefit or removes a restriction on some segment of the public, or that the effective date of the rule is necessary to avoid imminent peril to the public health, safety, or welfare. The agency shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.
11.15(2) Special notice. When the agency makes a rule effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3), the agency shall employ all reasonable efforts to make its contents known to the persons who may be affected by that rule prior to the rule’s indexing and publication. The term “all reasonable efforts” requires the agency to employ the most effective and prompt means of notice rationally calculated to inform potentially affected parties of the effectiveness of the rule that is justified and practical under the circumstances considering the various alternatives available for this purpose, the comparative costs to the agency of utilizing each of those alternatives, and the harm suffered by affected persons from any lack of notice concerning the contents of the rule prior to its indexing and publication. The means that may be used for providing notice of such rules prior to their indexing and publication include, but are not limited to, any one or more of the following means: radio, newspaper, television, signs, mail, telephone, personal notice or electronic means.
A rule made effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3) shall include in that rule a statement describing the reasonable efforts that will be used to comply with the requirements of subrule 11.15(2).
288—11.16(17A) General statements of policy.
11.16(1) Compilation, indexing, public inspection. The agency shall maintain an official, current, and dated compilation that is indexed by subject, containing all of its general statements of policy within the scope of Iowa Code section 17A.2(10)“a,” “c,” “f,” “g,” “h,” “k.” Each addition to, change in, or deletion from the official compilation must also be dated, indexed, and a record thereof kept. Except for those portions containing rules governed by Iowa Code section 17A.2(10)“f,” or otherwise authorized by law to be kept confidential, the compilation must be made available for public inspection and copying.
11.16(2) Enforcement of requirements. A general statement of policy subject to the requirements of this subsection shall not be relied on by the agency to the detriment of any person who does not have actual, timely knowledge of the contents of the statement until the requirements of subrule 11.16(1) are satisfied. This provision is inapplicable to the extent necessary to avoid imminent peril to the public health, safety, or welfare.
288—11.17(17A) Review by agency of rules.
11.17(1) Any interested person, association, agency, or political subdivision may submit a written request to the administrative rules coordinator requesting the agency to conduct a formal review of a specified rule. Upon approval of that request by the administrative rules coordinator, the agency shall conduct a formal review of a specified rule to determine whether a new rule should be adopted instead or the rule should be amended or repealed. The agency may refuse to conduct a review if it has conducted such a review of the specified rule within five years prior to the filing of the written request.
11.17(2) In conducting the formal review, the agency shall prepare within a reasonable time a written report summarizing its findings, its supporting reasons, and any proposed course of action. The report must include a concise statement of the agency’s findings regarding the rule’s effectiveness in achieving its objectives, including a summary of any available supporting data. The report shall also concisely describe significant written criticisms of the rule received during the previous five years, including a summary of any petitions for waiver of the rule received by the agency or granted by the agency. The report shall describe alternative solutions to resolve the criticisms of the rule, the reasons any were rejected, and any changes made in the rule in response to the criticisms as well as the reasons for the changes. A copy of the agency’s report shall be sent to the administrative rules review committee and the administrative rules coordinator. The report must also be available for public inspection.
These rules are intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202.
[Filed 7/9/99, Notice 6/2/99—published 7/28/99, effective 9/1/99]
288—12.1(17A) Petition for declaratory order. Any person may file a petition with Iowa public television for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of Iowa Public Television at 6450 Corporate Drive, Johnston, Iowa 50131. A petition is deemed filed when it is received by that office. Iowa public television shall provide the petitioner with a file–stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:
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IOWA PUBLIC TELEVISION |
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Petition by (Name of Petitioner) |
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PETITION
FOR |
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The petition must provide the following information:
1. A clear and concise statement of all relevant facts on which the order is requested.
2. A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.
3. The questions petitioner wants answered, stated clearly and concisely.
4. The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.
5. The reasons for requesting the declaratory order and disclosure of the petitioner’s interest in the outcome.
6. A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.
7. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.
8. Any request by petitioner for a meeting provided for by 12.7(17A).
The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative and a statement indicating the person to whom communications concerning the petition should be directed.
288—12.2(17A) Notice of petition. Within 15 days after receipt of a petition for a declaratory order, Iowa public television shall give notice of the petition to all persons not served by the petitioner pursuant to 12.6(17A) to whom notice is required by any provision of law. Iowa public television may also give notice to any other persons.
12.3(1) Any person who qualifies under any applicable provision of law as an intervenor and who files a petition for intervention within 15 days of the filing of a petition for declaratory order (after time for notice under 12.2(17A) and before 30–day time for agency action under 12.8(17A)) shall be allowed to intervene in a proceeding for a declaratory order.
12.3(2) Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of Iowa public television.
12.3(3) A petition for intervention shall be filed at 6450 Corporate Drive, Johnston, Iowa 50131. Such a petition is deemed filed when it is received by that office. Iowa public television will provide the petitioner with a file–stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:
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IOWA PUBLIC TELEVISION |
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Petition by (Name of Original
Petitioner) for a Declaratory Order on |
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PETITION
FOR |
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The petition for intervention must provide the following information:
1. Facts supporting the intervenor’s standing and qualifications for intervention.
2. The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.
3. Reasons for requesting intervention and disclosure of the intervenor’s interest in the outcome.
4. A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.
5. The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, the questions presented.
6. Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.
The petition must be dated and signed by the intervenor or the intervenor’s representative. It must also include the name, mailing address, and telephone number of the intervenor and intervenor’s representative, and a statement indicating the person to whom communications should be directed.
288—12.4(17A) Briefs. The petitioner or any intervenor may file a brief in support of the position urged. Iowa public television may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.
288—12.5(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Executive Director, Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131.
288—12.6(17A) Service and filing of petitions and other papers.
12.6(1) When service required. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested persons.
12.6(2) Filing—when required. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with Iowa Public Television, 6450 Corporate Drive, Johnston, Iowa 50131. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with Iowa public television.
12.6(3) Method of service, time of filing, and proof of mailing. Method of service, time of filing, and proof of mailing shall be as provided by uniform rule on contested cases 288—13.12(17A).
288—12.7(17A) Consideration. Upon request by petitioner, Iowa public television must schedule a brief and informal meeting between the original petitioner, all intervenors, and Iowa public television, a member of Iowa public television, or a member of the staff of Iowa public television, to discuss the questions raised. Iowa public television may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to Iowa public television by any person.
288—12.8(17A) Action on petition.
12.8(1) Within the time allowed by 1998 Iowa Acts, chapter 1202, section 13(5), after receipt of a petition for a declaratory order, the executive director or designee shall take action on the petition as required by 1998 Iowa Acts, chapter 1202, section 13(5).
12.8(2) The date of issuance of an order or of a refusal to issue an order is as defined in contested case uniform rule 288—13.2(17A).
288—12.9(17A) Refusal to issue order.
12.9(1) Iowa public television shall not issue a declaratory order where prohibited by 1998 Iowa Acts, chapter 1202, section 13(1), and may refuse to issue a declaratory order on some or all questions raised for the following reasons:
1. The petition does not substantially comply with the required form.
2. The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of Iowa public television to issue an order.
3. Iowa public television does not have jurisdiction over the questions presented in the petition.
4. The questions presented by the petition are also presented in a current rule making, contested case, or other agency or judicial proceeding, that may definitively resolve them.
5. The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.
6. The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.
7. There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.
8. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge an agency decision already made.
9. The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.
10. The petitioner requests Iowa public television to determine whether a statute is unconstitutional on its face.
12.9(2) A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final agency action on the petition.
12.9(3) Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.
288—12.10(17A) Contents of declaratory order—effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, the specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion.
A declaratory order is effective on the date of issuance.
288—12.11(17A) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the original petitioner and all intervenors.
288—12.12(17A) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on Iowa public television, the petitioner, and any intervenors who consent to be bound and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based. As to all other persons, a declaratory order serves only as precedent and is not binding on Iowa public television. The issuance of a declaratory order constitutes final agency action on the petition.
These rules are intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202.
[Filed 7/9/99, Notice 6/2/99—published 7/28/99, effective 9/1/99]
288—13.1(17A) Scope and applicability. This chapter applies to contested case proceedings conducted by Iowa public television.
288—13.2(17A) Definitions. Except where otherwise specifically defined by law:
“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under 1998 Iowa Acts, chapter 1202, section 14.
“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.
“Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.
“Presiding officer” means the executive director.
“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which Iowa public television did not preside.
288—13.3(17A) Time requirements.
13.3(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).
13.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.
288—13.4(17A) Requests for contested case proceeding. Any person claiming an entitlement to a contested case proceeding shall file a written request for such a proceeding within the time specified by the particular rules or statutes governing the subject matter or, in the absence of such law, the time spec–ified in the agency action in question.
The request for a contested case proceeding should state the name and address of the requester, identify the specific agency action which is disputed, and where the requester is represented by a lawyer identify the provisions of law or precedent requiring or authorizing the holding of a contested case proceeding in the particular circumstances involved, and include a short and plain statement of the issues of material fact in dispute.
288—13.5(17A) Notice of hearing.
13.5(1) Delivery. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery may be executed by:
a. Personal service as provided in the Iowa Rules of Civil Procedure; or
b. Certified mail, return receipt requested; or
c. First–class mail; or
d. Publication, as provided in the Iowa Rules of Civil Procedure.
13.5(2) Contents. The notice of hearing shall contain the following information:
a. A statement of the time, place, and nature of the hearing;
b. A statement of the legal authority and jurisdiction under which the hearing is to be held;
c. A reference to the particular sections of the statutes and rules involved;
d. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished;
e. Identification of all parties including the name, address and telephone number of the person who will act as advocate for the agency or the state and of parties’ counsel where known;
f. Reference to the procedural rules governing conduct of the contested case proceeding;
g. Reference to the procedural rules governing informal settlement;
h. Identification of the presiding officer, if known. If not known, a description of who will serve as presiding officer (e.g., agency head, members of multimembered agency head, administrative law judge from the department of inspections and appeals); and
i. Notification of the time period in which a party may request, pursuant to 1998 Iowa Acts, chapter 1202, section 15(1), and rule 13.6(17A), that the presiding officer be an administrative law judge.
288—13.6(17A) Presiding officer.
13.6(1) Any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within 20 days after service of a notice of hearing which identifies or describes the presiding officer as the agency head or members of the agency.
13.6(2) The agency or its designee may deny the request only upon a finding that one or more of the following apply:
a. Neither the agency nor any officer of the agency under whose authority the contested case is to take place is a named party to the proceeding or a real party in interest to that proceeding.
b. There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.
c. An administrative law judge is unavailable to hear the case within a reasonable time.
d. The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.
e. The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.
f. Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.
g. The request was not timely filed.
h. The request is not consistent with a specified statute.
13.6(3) The agency or its designee shall issue a written ruling specifying the grounds for its decision within 20 days or such other time period the agency designates after a request for an administrative law judge is filed. The parties shall be notified at least 10 days prior to hearing if a qualified administrative law judge will not be available.
13.6(4) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the agency. A party must seek any available intra–agency appeal in order to exhaust adequate administrative remedies.
13.6(5) Unless otherwise provided by law, agency heads and members of multimembered agency heads, when reviewing a proposed decision upon intra–agency appeal, shall have the powers of and shall comply with the provisions of this chapter which apply to presiding officers.
288—13.7(17A) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the agency in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.
288—13.8(17A) Telephone proceedings. The presiding officer may resolve preliminary procedural motions by telephone conference in which all parties have an opportunity to participate. Other telephone proceedings may be held with the consent of all parties. The presiding officer will determine the location of the parties and witnesses for telephone hearings. The convenience of the witnesses or parties, as well as the nature of the case, will be considered when location is chosen.
288—13.9(17A) Disqualification.
13.9(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:
a. Has a personal bias or prejudice concerning a party or a representative of a party;
b. Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;
c. Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;
d. Has acted as counsel to any person who is a private party to that proceeding within the past two years;
e. Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;
f. Has a spouse or relative within the third degree of relationship that: (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or
g. Has any other legally sufficient cause to withdraw from participation in the decision making in that case.
13.9(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case. Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17 as amended by 1998 Iowa Acts, chapter 1202, section 19, and subrules 13.9(3) and 13.23(9).
13.9(3) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.
13.9(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 13.9(1), the party shall file a motion supported by an affidavit pursuant to 1998 Iowa Acts, chapter 1202, section 19(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party.
If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must establish the grounds by the introduction of evidence into the record.
If the presiding officer determines that disqualification is appropriate, the presiding officer or other person shall withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer shall enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal under rule 13.25(17A) and seek a stay under rule 13.29(17A).
288—13.10(17A) Consolidation—severance.
13.10(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where: (a) the matters at issue involve common parties or common questions of fact or law; (b) consolidation would expedite and simplify consideration of the issues involved; and (c) consolidation would not adversely affect the rights of any of the parties to those proceedings.
13.10(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.
13.11(1) Pleadings may be required by rule, by the notice of hearing, or by order of the presiding officer.
13.11(2) Petition.
a. Any petition required in a contested case proceeding shall be filed within 20 days of delivery of the notice of hearing or subsequent order of the presiding officer, unless otherwise ordered.
b. A petition shall state in separately numbered paragraphs the following:
(1) The persons or entities on whose behalf the petition is filed;
(2) The particular provisions of statutes and rules involved;
(3) The relief demanded and the facts and law relied upon for such relief; and
(4) The name, address and telephone number of the petitioner and the petitioner’s attorney, if any.
13.11(3) Answer. An answer shall be filed within 20 days of service of the petition unless otherwise ordered. A party may move to dismiss or apply for a more definite and detailed statement when appropriate.
An answer shall show on whose behalf it is filed and specifically admit, deny, or otherwise answer all material allegations of the pleading to which it responds. It shall state any facts deemed to show an affirmative defense and contain as many additional defenses as the pleader may claim.
An answer shall state the name, address and telephone number of the person filing the answer, the person or entity on whose behalf it is filed, and the attorney representing that person, if any.
Any allegation in the petition not denied in the answer is considered admitted. The presiding officer may refuse to consider any defense not raised in the answer which could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.
13.11(4) Amendment. Any notice of hearing, petition, or other charging document may be amended before a responsive pleading has been filed. Amendments to pleadings after a responsive pleading has been filed and to an answer may be allowed with the consent of the other parties or in the discretion of the presiding officer who may impose terms or grant a continuance.
288—13.12(17A) Service and filing of pleadings and other papers.
13.12(1) When service required. Except where otherwise provided by law, every pleading, motion, document, or other paper filed in a contested case proceeding and every paper relating to discovery in such a proceeding shall be served upon each of the parties of record to the proceeding, including the person designated as advocate or prosecutor for the state or the agency, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.
13.12(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last–known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.
13.12(3) Filing—when required. After the notice of hearing, all pleadings, motions, documents or other papers in a contested case proceeding shall be filed with Iowa public television.
13.12(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to Iowa public television, delivered to an established courier service for immediate delivery to that office, or mailed by first–class mail or state interoffice mail to that office, so long as there is proof of mailing.
13.12(5) Proof of mailing. Proof of mailing includes either: a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:
I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the (agency office and address) and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or state interoffice mail).
(Date) (Signature)
13.13(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.
13.13(2) Any motion relating to discovery shall allege that the moving party has previously made a good–faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 13.13(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.
13.13(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.
13.14(1) Issuance.
a. An agency subpoena shall be issued to a party on request. Such a request must be in writing. In the absence of good cause for permitting later action, a request for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address, and telephone number of the requesting party.
b. Except to the extent otherwise provided by law, parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.
13.14(2) Motion to quash or modify. The presiding officer may quash or modify a subpoena for any lawful reason upon motion in accordance with the Iowa Rules of Civil Procedure. A motion to quash or modify a subpoena shall be set for argument promptly.
13.15(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.
13.15(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by rules of the agency or the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.
13.15(3) The presiding officer may schedule oral argument on any motion.
13.15(4) Motions pertaining to the hearing, except motions for summary judgment, must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of the agency or an order of the presiding officer.
13.15(5) Motions for summary judgment. Motions for summary judgment shall comply with the requirements of Iowa Rule of Civil Procedure 237 and shall be subject to disposition according to the requirements of that rule to the extent such requirements are not inconsistent with the provisions of this rule or any other provision of law governing the procedure in contested cases.
Motions for summary judgment must be filed and served at least 45 days prior to the scheduled hearing date, or other time period determined by the presiding officer. Any party resisting the motion shall file and serve a resistance within 15 days, unless otherwise ordered by the presiding officer, from the date a copy of the motion was served. The time fixed for hearing or nonoral submission shall be not less than 20 days after the filing of the motion, unless a shorter time is ordered by the presiding officer. A summary judgment order rendered on all issues in a contested case is subject to rehearing pursuant to 13.28(17A) and appeal pursuant to 13.27(17A).
288—13.16(17A) Prehearing conference.
13.16(1) Any party may request a prehearing conference. A written request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion shall be filed not less than seven days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date.
Written notice of the prehearing conference shall be given by the executive director to all parties. For good cause the presiding officer may permit variances from this rule.
13.16(2) Each party shall bring to the prehearing conference:
a. A final list of the witnesses who the party anticipates will testify at hearing. Witnesses not listed may be excluded from testifying unless there was good cause for the failure to include their names; and
b. A final list of exhibits which the party anticipates will be introduced at hearing. Exhibits other than rebuttal exhibits that are not listed may be excluded from admission into evidence unless there was good cause for the failure to include them.
c. Witness or exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.
13.16(3) In addition to the requirements of subrule 13.16(2), the parties at a prehearing conference may:
a. Enter into stipulations of law or fact;
b. Enter into stipulations on the admissibility of exhibits;
c. Identify matters which the parties intend to request be officially noticed;
d. Enter into stipulations for waiver of any provision of law; and
e. Consider any additional matters which will expedite the hearing.
13.16(4) Prehearing conferences shall be conducted by telephone unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists in advance of a telephone prehearing conference.
288—13.17(17A) Continuances. Unless otherwise provided, applications for continuances shall be made to the presiding officer.
13.17(1) A written application for a continuance shall:
a. Be made at the earliest possible time and no less than seven days before the hearing except in case of unanticipated emergencies;
b. State the specific reasons for the request; and
c. Be signed by the requesting party or the party’s representative.
An oral application for a continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within five days after the oral request unless that requirement is waived by the presiding officer. No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible. The agency may waive notice of such requests for a particular case or an entire class of cases.
13.17(2) In determining whether to grant a continuance, the presiding officer may consider:
a. Prior continuances;
b. The interests of all parties;
c. The likelihood of informal settlement;
d. The existence of an emergency;
e. Any objection;
f. Any applicable time requirements;
g. The existence of a conflict in the schedules of counsel, parties, or witnesses;
h. The timeliness of the request; and
i. Other relevant factors.
The presiding officer may require documentation of any grounds for continuance.
288—13.18(17A) Withdrawals. A party requesting a contested case proceeding may withdraw that request prior to the hearing only in accordance with agency rules. Unless otherwise provided, a withdrawal shall be with prejudice.
13.19(1) Motion. A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.
13.19(2) When filed. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor shall be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances which would delay the proceeding will ordinarily be denied.
13.19(3) Grounds for intervention. The movant shall demonstrate that: (a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; (b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and (c) the interests of the movant are not adequately represented by existing parties.
13.19(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.
288—13.20(17A) Hearing procedures.
13.20(1) The presiding officer presides at the hearing, and may rule on motions, require briefs, issue a proposed decision, and issue such orders and rulings as will ensure the orderly conduct of the proceedings.
13.20(2) All objections shall be timely made and stated on the record.
13.20(3) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations, or associations may be represented by any member, officer, director, or duly authorized agent. Any party may be represented by an attorney or another person authorized by law.
13.20(4) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross–examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.
13.20(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.
13.20(6) Witnesses may be sequestered during the hearing.
13.20(7) The presiding officer shall conduct the hearing in the following manner:
a. The presiding officer shall give an opening statement briefly describing the nature of the proceedings;
b. The parties shall be given an opportunity to present opening statements;
c. Parties shall present their cases in the sequence determined by the presiding officer;
d. Each witness shall be sworn or affirmed by the presiding officer or the court reporter, and be subject to examination and cross–examination. The presiding officer may limit questioning in a manner consistent with law;
e. When all parties and witnesses have been heard, parties may be given the opportunity to pre–sent final arguments.
13.21(1) The presiding officer shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.
13.21(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.
13.21(3) Evidence in the proceeding shall be confined to the issues as to which the parties received notice prior to the hearing unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.
13.21(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties.
All exhibits admitted into evidence shall be appropriately marked and be made part of the record.
13.21(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross–examination. Such an objection shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.
13.21(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.
13.22(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.
13.22(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested the contested case proceeding and has failed to file a required pleading or has failed to appear after proper service.
13.22(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within 15 days or other period of time specified by statute or rule after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 13.27(17A). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.
13.22(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.
13.22(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days or other time specified by the agency to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.
13.22(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 236.
13.22(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 13.25(17A).
13.22(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer shall issue another notice of hearing and the contested case shall proceed accordingly.
13.22(9) A default decision may award any relief consistent with the request for relief made in the petition and embraced in its issues but, unless the defaulting party has appeared, it cannot exceed the relief demanded.
13.22(10) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 13.29(17A).
288—13.23(17A) Ex parte communication.
13.23(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the notice of hearing, there shall be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. This does not prohibit persons jointly assigned such tasks from communicating with each other. Nothing in this provision is intended to preclude the presiding officer from communicating with members of the agency or seeking the advice or help of persons other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 13.9(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.
13.23(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending.
13.23(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.
13.23(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications shall be provided in compliance with rule 13.12(17A) and may be supplemented by telephone, facsimile, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.
13.23(5) Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.
13.23(6) The executive director or other persons may be present in deliberations or otherwise advise the presiding officer without notice or opportunity for parties to participate as long as they are not disqualified from participating in the making of a proposed or final decision under any provision of law and they comply with subrule 13.23(1).
13.23(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible, and shall notify other parties when seeking to continue hearings or other deadlines pursuant to rule 13.17(17A).
13.23(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified. If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order or disclosed. If the presiding officer determines that disqualification is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.
13.23(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.
13.23(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the agency. Violation of ex parte communication prohibitions by agency personnel shall be reported to the executive director for possible sanctions including censure, suspension, dismissal, or other disciplinary action.
288—13.24(17A) Recording costs. Upon request, Iowa public television shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.
Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means shall bear the cost of that recordation, unless otherwise provided by law.
288—13.25(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the board may review an interlocutory order of the executive director. In determining whether to do so, the board shall weigh the extent to which its granting the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by the agency at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of hearing, whichever is first.
288—13.26(17A) Final decision.
13.26(1) When Iowa public television presides over the reception of evidence at the hearing, its decision is a final decision.
13.26(2) When Iowa public television does not preside at the reception of evidence, the presiding officer shall make a proposed decision. The proposed decision becomes the final decision of the agency without further proceedings unless there is an appeal to, or review on motion of, Iowa public television within the time provided in rule 13.27(17A).
288—13.27(17A) Appeals and review.
13.27(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the board within 30 days after issuance of the proposed decision.
13.27(2) Review. The board may initiate review of a proposed decision on its own motion at any time within 30 days following the issuance of such a decision.
13.27(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with Iowa public television. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify:
a. The parties initiating the appeal;
b. The proposed decision or order appealed from;
c. The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;
d. The relief sought;
e. The grounds for relief.
13.27(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to pre–sent the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal or, by a nonappealing party, within 14 days of service of the notice of appeal. The board may remand a case to the presiding officer for further hearing or may itself preside at the taking of additional evidence.
13.27(5) Scheduling. Iowa public television shall issue a schedule for consideration of the appeal.
13.27(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 20 days thereafter, any party may file a responsive brief. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall be filed with the briefs.
The board may resolve the appeal on the briefs or provide an opportunity for oral argument. The board may shorten or extend the briefing period as appropriate.
288—13.28(17A) Applications for rehearing.
13.28(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.
13.28(2) Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the agency decision on the existing record and whether, on the basis of the grounds enumerated in subrule 13.27(4), the applicant requests an opportunity to submit additional evidence.
13.28(3) Time of filing. The application shall be filed with Iowa public television within 20 days after issuance of the final decision.
13.28(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein. If the application does not contain a certificate of service, Iowa public television shall serve copies on all parties.
13.28(5) Disposition. Any application for a rehearing shall be deemed denied unless the agency grants the application within 20 days after its filing.
288—13.29(17A) Stays of agency actions.
13.29(1) When available.
a. Any party to a contested case proceeding may petition Iowa public television for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the agency. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The board may rule on the stay or authorize the presiding officer to do so.
b. Any party to a contested case proceeding may petition Iowa public television for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy.
13.29(2) When granted. In determining whether to grant a stay, the presiding officer or board shall consider the factors listed in 1998 Iowa Acts, chapter 1202, section 23(5c).
13.29(3) Vacation. A stay may be vacated by the issuing authority upon application of Iowa public television or any other party.
288—13.30(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.
288—13.31(17A) Emergency adjudicative proceedings.
13.31(1) Necessary emergency action. To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare and, consistent with the Constitution and other provisions of law, the agency may issue a written order in compliance with Iowa Code section 17A.18 to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the agency by emergency adjudicative order. Before issuing an emergency adjudicative order the agency shall consider factors including, but not limited to, the following:
a. Whether there has been a sufficient factual investigation to ensure that the agency is proceeding on the basis of reliable information;
b. Whether the specific circumstances which pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing;
c. Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare;
d. Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and
e. Whether the specific action contemplated by the agency is necessary to avoid the immediate danger.
13.31(2) Issuance of order.
a. An emergency adjudicative order shall contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger in the agency’s decision to take immediate action.
b. The written emergency adjudicative order shall be immediately delivered to persons who are required to comply with the order by utilizing one or more of the following procedures:
(1) Personal delivery;
(2) Certified mail, return receipt requested, to the last address on file with the agency;
(3) Certified mail to the last address on file with the agency;
(4) First–class mail to the last address on file with the agency; or
(5) Fax. Fax may be used as the sole method of delivery if the person required to comply with the order has filed a written request that agency orders be sent by fax and has provided a fax number for that purpose.
c. To the degree practicable, the agency shall select the procedure for providing written notice that best ensures prompt, reliable delivery.
13.31(3) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order issues, the agency shall make reasonable immediate efforts to contact by telephone the persons who are required to comply with the order.
13.31(4) Completion of proceedings. After the issuance of an emergency adjudicative order, the agency shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.
Issuance of a written emergency adjudicative order shall include notification of the date on which agency proceedings are scheduled for completion. After issuance of an emergency adjudicative order, continuance of further agency proceedings to a later date will be granted only in compelling circumstances upon application in writing.
These rules are intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202.
[Filed 7/9/99, Notice 6/2/99—published 7/28/99, effective 9/1/99]
chapter 14
CRITERIA FOR GRANTS
288—14.1(256) Purpose. The division provides grant funding and contracts to a variety of entities throughout the state for support of educational telecommunications programs. To ensure objective evaluation of applicants for these funds, grant and contract application materials shall contain, at minimum, specific content. Program grant and contract application packets shall be developed by the division in accordance with these rules unless prohibited by or in conflict with appropriation language, the Iowa Code, the Iowa Administrative Code, federal regulations, or interagency agreements between the division and other state agencies.
288—14.2(256) Definitions. For the purpose of these rules, the following definitions shall apply:
“Division” means Iowa Public Television.
“Program grant or contract” means the collective activities of a grant or contract funded through the division.
“Program period” means the period of time during which the division intends to support the program without requiring recompetition for funds. The program period is specified within the grant application.
“Service delivery area” means the defined geographic area for delivery of program services.
288—14.3(256) Requirements. The following shall be included in all program grant and contract application materials made available by the division:
1. Funding source.
2. Program period.
3. Description of eligible applicants.
4. Services to be delivered.
5. Service delivery area.
6. Target population to be served (if applicable).
7. Funding purpose.
8. Funding restrictions.
9. Funding formula (if any).
10. Matching requirement (if any).
11. Reporting requirements.
12. Performance criteria (if any).
13. Need for letters of support or other materials (if applicable).
14. Application due date.
15. Anticipated date of awarding grant/contract.
16. Required components of submitted grant applications.
17. An explanation of the review process and the review criteria to be used by application evaluators, including, if applicable, the number of points allocated per required component.
18. Appeal process in the event an application is denied (only with competitive grant/contract process).
288—14.4(256) Review process (for competitive grants and contracts). The review process to be followed in determining the amount of funds to be approved for any competitive program grant or contract shall be described in the application. The review criteria and point allocation for each criterion shall also be described in the grant application material.
288—14.5(256) Appeal of grant or contract denial or termination. Any applicant may appeal to the administrator the denial of a properly submitted competitive program grant or contract application or the unilateral termination of a competitive program grant or contract. Appeals must be in writing and received within ten working days of the date of the notice of decision and must be based on a contention that the process was conducted outside of statutory authority; violated state or federal law, policy, or rule; did not provide adequate public notice; was altered without adequate public notice; or involved conflict of interest by staff or committee members. The contested case procedures found in 288—Chapter 13 that govern the administrator’s decision shall be applicable to any appeal of denial or termination.
In the notice of appeal, the applicant shall give a short and plain statement of the reasons for the appeal.
The administrator shall issue a decision within a reasonable time, not to exceed 60 days from the date of the appeal.
These rules are intended to implement Iowa Code sections 256.80 to 256.90.
[Filed 8/28/00, Notice 7/26/00—published 9/20/00, effective 10/25/00]