Pages 1624 to 1729 include ARC 9814A to ARC 9842A

Filed, Motor vehicle fuel—MTBE, 85.33
ARC 9842A 1692

Schedule for rule making 1616

Publication procedures 1617

Administrative rules on CD–ROM 1617

Agency identification numbers 1622

CITATION OF ADMINISTRATIVE RULES 1615

Notice, Juvenile crime prevention community
grant program; reorganization of rules,
chs 1, 3, 4, 5 ARC 9841A 1624

Notice, Standards of practice and professional
ethics; record keeping, 27.2, 27.11
ARC 9818A 1630

Notice, Housing fund, 25.5 ARC 9820A 1631

Notice, Local housing assistance program,
28.5(5) ARC 9819A 1631

Filed, Housing fund, 25.8(3) ARC 9821A 1692

Filed, Community economic betterment
program, 53.2, 53.6(1) ARC 9822A 1693

Filed, Iowa export trade assistance program,
68.1 to 68.8 ARC 9823A 1694

Notice, Organization, 1.1, 1.2 ARC 9828A 1632

Notice, Agency procedures; Iowa emergency
plan, chs 2 to 6, 9 ARC 9827A 1633

Notice, Local emergency management, ch 7
ARC 9826A 1647

Notice, Criteria for awards or grants, ch 8
ARC 9825A 1647

Filed Emergency, Local emergency management,
ch 7 ARC 9824A 1686

Notice, Water quality standards, 61.2, 61.3
ARC 9839A 1648

Notice, Restrictions on pets, 8.4 ARC 9832A 1667

Notice, Applying county institutional credit
balances, 28.13 ARC 9829A 1668

Notice, Child support guidelines and criteria,
99.2, 99.4(5) ARC 9830A 1669

Notice, Child support parental obligation
pilot projects, ch 100 ARC 9831A 1670

Amended Notice, Asbestos removal
and encapsulation, rescind chs 81, 82;
adopt ch 155 ARC 9833A 1674

Notice, Hearing aid dealers, 120.1(5),
120.6 to 120.14, 120.212, ch 121
ARC 9834A 1674

Summarized list 1618

Notice, Parking for persons with disabilities,
18.1 to 18.8 ARC 9840A 1678

Filed, Trifecta wagering; grounds for denial,
suspension or revocation of license; labor
organization registration, 8.2(13), 13.10(8),
13.14 ARC 9814A 1695

Notice, Prescription and nonprescription drugs
and devices—taxation and exemption,
20.7 to 20.9 ARC 9838A 1680

Notice, Application of related expense
to allocable interest, dividends, rents and
royalties, 54.3, 54.9, 59.29 ARC 9837A 1682

Notice, Cigarette sales, 84.2, 84.4
ARC 9836A 1683

Decisions summarized 1730

Notice, Lighting on freeways, 150.2(3)
ARC 9817A 1684

Filed, Unauthorized changes in
telecommunications service, 6.8,
22.23 ARC 9835A 1696

Filed, Workforce development board,
1.1(2), 1.4 to 1.6 ARC 9816A 1702

Filed, Iowa workforce investment act program,
ch 7 ARC 9815A 1704

CITATION of Administrative Rules

The Iowa Administrative Code shall be cited as (agency identification number) IAC
(chapter, rule, subrule, lettered paragraph, or numbered subparagraph).

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(1)“a” (Paragraph)

441 IAC 79.1(1)“a”(1) (Subparagraph)

The Iowa Administrative Bulletin shall be cited as IAB (volume), (number), (publication
date), (page number), (ARC number).

IAB Vol. XII, No. 23 (5/16/90) p. 2050, ARC 872A

PUBLISHED UNDER AUTHORITY OF IOWA CODE SECTIONS 2B.5 AND 17A.6

__________________________________

The Iowa Administrative Bulletin is published biweekly in pamphlet form pursuant to Iowa Code chapters 2B and 17A and contains Notices of Intended Action on rules, Filed and Filed Emergency rules by state agencies.

It also contains Proclamations and Executive Orders of the Governor which are general and permanent in nature; Economic Impact Statements to proposed rules and filed emergency rules; Objections filed by Administrative Rules Review Committee, Governor or the Attorney General; and Delay by the Committee of the effective date of filed rules; Regulatory Flexibility Analyses and Agenda for monthly Administrative Rules Review Committee meetings. Other “materials deemed fitting and proper by the Administrative Rules Review Committee” include summaries of Public Hearings, Attorney General Opinions and Supreme Court Decisions.

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PLEASE NOTE: Italics indicate new material added to existing rules; strike through letters indicate deleted material.

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FROM: Kathleen K. Bates, Iowa Administrative Code Editor

SUBJECT: Publication of Rules in Iowa Administrative Bulletin

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To All Agencies:

The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(1)“b” by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.

Due to reorganization of state government by 1986 Iowa Acts, chapter 1245, it was necessary to revise the agency identification numbering system, i.e., the bracketed number following the agency name.

“Umbrella” agencies and elected officials are set out below at the left–hand margin in CAPITAL letters.

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AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

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Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

Status of African–Americans, Division on the[434]

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

Workforce Development Board and
Workforce Development Center Administration Division[877]

Pursuant to the authority of Iowa Code section 17A.3, the Division of Criminal and Juvenile Justice Planning proposes to rescind Chapter 1, “Functions,” Chapter 3, “Juvenile Justice Advisory Council,” Chapter 4, “Juvenile Crime Prevention Community Grant Fund,” and Chapter 5, “Juvenile Accountability Incentive Block Grant Program (JAIBG),” and adopt new Chapter 1, “Functions,” and new Chapter 3, “Juvenile Justice Youth Development Program,” Iowa Administrative Code.

A bill governing the juvenile crime prevention community grant program, 2000 Iowa Acts, Senate File 2429, passed the legislature this past session and awaits the Governor’s signature to be enacted into law. Senate File 2429 would amend Iowa Code section 232.190 and would change the distribution of funding for that program and require administrative rule changes. Additionally, pursuant to the Governor’s Executive Order Numbers 8 and 9, the Division is reorganizing and amending its rules to consolidate programs and facilitate the disbursement of funds to communities.

Consideration will be given to all written suggestions received on or before June 6, 2000. Such written materials should be sent to the Division of Criminal and Juvenile Justice Planning, Lucas State Office Building, Des Moines, Iowa 50319.

Also, there will be a public hearing on June 6, 2000, at1 p.m. in the Department of Human Rights Conference Room, First Floor, Lucas State Office Building, Des Moines, Iowa, at which time persons may present their views. Any persons who intend to attend a public hearing and have special requirements such as hearing or mobility impairments should contact the Division and advise of special needs.

This amendment does not provide for waivers because, in order to fairly distribute funds, the same rules must apply to all communities.

It is the Division’s intention to file these rules emergency after notice because the rule changes need to be effective before the Division can distribute funds to communities. The emergency after Notice filing will benefit communities.

These rules are intended to implement Iowa Code sections 216A.131 to 216A.138 and section 232.190 as amended by 2000 Iowa Acts, Senate File 2429.

The following amendment is proposed.

Rescind 428—Chapters 1, 3, 4, and 5, and adopt the following new chapters.

CHAPTER 1
FUNCTIONS

428—1.1(216A) Definitions. As used in this chapter:

“Administrator” means the administrator of the division of criminal and juvenile justice planning.

“Criminal and juvenile justice planning advisory council (CJJPAC)” means the advisory council established in Iowa Code section 216A.132.

“Division” means the division of criminal and juvenile justice planning.

“Juvenile justice advisory council (JJAC)” means the state advisory group described in P. L. 93–415, Section 223(a)(3) and established through executive order to oversee the administration of the Juvenile Justice and Delinquency Prevention Act (JJDPA) formula grants in Iowa.

1.2(1) The division shall provide staff support to the CJJPAC and the JJAC and shall assist them with the coordination of their efforts. Additionally, the division shall perform functions consistent with the duties and requirements outlined in Iowa Code chapter 216A, subchapter 9,P. L. 93–415 and other relevant federal and state requirements.

1.2(2) The division shall establish and maintain procedures to collect and report all instances of juvenile detention and confinement occurring in the state of Iowa consistent with P. L. 93–415, Section 223(a)(15). The monitoring function shall include the following:

a. The division shall collect relevant self–report information and perform on–site verification of data from jails, police lockups, juvenile detention facilities, state training schools, mental health institutes, locked residential treatment facilities for youth and other secure facilities.

b. Through written agreement, the jail inspection unit of the department of corrections shall provide the division and the specific jails and lockups with certification of their ability to separate juveniles and adults, consistent with P. L. 93–415, Section 223(a)(13).

c. Through written agreement, the department of inspections and appeals shall provide information to the division on holdings relative to 223(a)(12)(A) P. L. 93–415 in contracted private facilities that the department of inspections and appeals has authority to inspect.

d. Through written agreement, the department of human services shall provide information to the division on holdings relative to 223(a)(12)(A) of P. L. 93–415 in state institutions that the department of human services administers.

1.2(3) Inquiries shall be directed to the division, the CJJPAC or the JJAC, Lucas State Office Building, Des Moines, Iowa 50319. Office hours are 8 a.m. to 4:30 p.m., Monday through Friday.

428—1.3(216A) Function and activity of the CJJPAC. The CJJPAC is established by Iowa Code section 216A.132 and is charged with the responsibility to identify and analyze justice system issues of concern; develop and assist others in implementing recommendations and plans for system improvement; and provide for a clearinghouse of justice system information to coordinate with data resource agencies and to assist others in the use of justice system data. The CJJPAC shall advise the division on its administration of state and federal grants and appropriations and shall carry out other functions consistent with the intent of Iowa Code chapter 216A, subchapter 9.

428—1.4(216A) Function and activity of the JJAC. The JJAC is established through executive order pursuant to P. L. 93–415 to advise the division on juvenile justice issues; make recommendations to the governor and legislature; review and comment on the division’s reporting of Iowa’s compliance with the requirements of P. L. 93–415, paragraphs 223(a)(12), (13), (14) and (23); advise the division on its administration of state and federal grants and appropriations; supervise the division’s administration of the Juvenile Justice and Delinquency Prevention Act formula grant and Title V delinquency prevention programs established in P. L. 93–415; and carry out other functions consistent with the intent of P. L. 93–415.

1.5(1) Notice of meetings of the CJJPAC and the JJAC shall be published 24 hours in advance of the meeting and will be mailed to interested persons upon request. The notice shall contain the specific date, time, and place of the meeting. Agendas shall be available by mail from the division to any interested persons if requested not less than five days in advance of the meeting. All meetings shall be open to the public, unless a closed session is voted by two–thirds of the entire membership or by all members present for one of the reasons specified in Iowa Code section 21.5. Special or electronic meetings may be called by the chair upon a finding of good cause and shall be held in accordance with Iowa Code section 21.8. CJJPAC or JJAC meetings shall be governed by the following procedures:

a. Persons wishing to appear before the CJJPAC or the JJAC shall submit the request to the respective council not less than five days prior to the meeting. Presentations may be made at the discretion of the respective chair and only upon matters appearing on the agenda.

b. Persons wishing to submit written material shall do so at least five days in advance of the scheduled meeting to ensure that CJJPAC or JJAC members have adequate time to receive and evaluate the material.

c. At the conclusion of each meeting, a time, date and place of the next meeting shall be set unless such meeting was previously scheduled and announced.

d. Cameras and recording devices may be used at open meetings provided they do not obstruct the meeting. The chair may request a person using such a device to discontinue its use when it is obstructing the meeting. If the person fails to comply with this request, the presiding officer shall order that person excluded from the meeting.

e. The chair may exclude any person from the meeting for repeated behavior that disrupts or obstructs the meeting.

f. Other meeting protocol and procedures consistent with this subrule and Iowa Code chapter 21 may be established by the CJJPAC or the JJAC through bylaws approved by a majority of the members of the council subject to the bylaws.

1.5(2) Minutes of CJJPAC or JJAC meetings are prepared and are available for inspection at the division office during business hours. Copies may be obtained without charge by contacting the office.

1.5(3) The CJJPAC or JJAC may form committees to carry out those duties as are assigned by the respective council. Meetings of the committees shall conform to the conditions governing the respective full councils as listed in subrule 1.5(1).

These rules are intended to implement Iowa Code chapter 17A, Iowa Code sections 216A.131 to 216A.136, and section 232.190 as amended by 2000 Iowa Acts, Senate File 2429, and Public Law 93–415.

CHAPTER 3
JUVENILE JUSTICE
YOUTH DEVELOPMENT PROGRAM

428—3.1(216A,232) Definitions. As used in this chapter:

“Administrator” means the administrator of the division of criminal and juvenile justice planning within the department of human rights.

“Applicant” means a city, county or other designated eligible entity preparing and submitting an application for funding through this program.

“Application” means a request to the division for funding that complies with federal and state requirements.

“Criminal and juvenile justice planning advisory council (CJJPAC)” means the advisory council established in Iowa Code section 216A.132.

“Decategorization,” as established in Iowa Code section 232.188, means the department of human services’ program whereby approved counties are permitted to pool their allocations of designated state and federal child welfare and juvenile justice funding streams, establish local planning and governance structures, and design and implement service systems that are more effective in meeting local needs.

“Decategorization governance board” means the board required to provide direction and governance for a decategorization project, pursuant to Iowa Code section 232.188.

“Division” means the division of criminal and juvenile justice planning within the department of human rights.

“Formula–based allocation” means a process that uses a formula to determine funding amounts to units of government or local public planning entities on a statewide basis.

“Grant review committee” means a committee established by the JJAC, the CJJPAC or the division to review and rank applications for funding. Individuals who are not members of the JJAC or the CJJPAC may serve on this committee.

“Justice Research and Statistics Association (JRSA)” is a national nonprofit organization that provides a clearinghouse of current information on state criminal justice research, programs, and publications.

“Juvenile Accountability Incentive Block Grant (JAIBG)” means a federally funded program to provide state and local governments funds to develop programs to reduce delinquency, improve the juvenile justice system, and increase accountability for juvenile offenders.

“Juvenile crime prevention community grants” means the community grant fund program established in Iowa Code section 232.190 as amended by 2000 Iowa Acts, Senate File 2429, and the federal Title V delinquency prevention program.

“Juvenile justice advisory council (JJAC)” means the state advisory group described in P. L. 93–415, Section 223(a)(3) and established through executive order to oversee the administration of the JJDPA formula grants in Iowa.

“Juvenile Justice and Delinquency Prevention Act (JJDPA)” means the federal Act, P. L. 93–415.

“Law enforcement expenditures” means the expenditures associated with police, prosecutorial, legal, and judicial services, and corrections as reported by the units of local government to the U.S. Census Bureau during the Census of Governments.

“Local public planning entities” means entities that have a local governance structure to plan, develop and coordinate services for children and families, and provide for implementation of services for children and families. Examples of local public planning entities include, but are not limited to, units of local government such as cities or counties, decategorization governance boards, community empowerment area boards, and school districts.

“Office of Juvenile Justice and Delinquency Prevention (OJJDP)” means the federal office within the U.S. Department of Justice that administers the Juvenile Justice and Delinquency Prevention Act and JAIBG.

“State juvenile crime enforcement coalition (JCEC)” means a group of individuals that develops a state plan to achieve the goals of JAIBG. The CJJPAC and the JJAC shall jointly act as the state JCEC.

“Subgrantee” means any applicant receiving funds through this program from the division.

“Title V delinquency prevention grants” means Title V, Sections 501–506, “Incentive Grants for Local Delinquency Prevention Programs Act,” of the JJDPA.

“Unit of local government” means a county, township, city, or political subdivision of a county, township, or city that is a unit of local government as determined by the Secretary of Commerce for general statistical purposes, and the recognized governing body of an Indian tribe that carries out substantial governmental duties and powers.

3.2(1) The purpose of the juvenile justice youth development program is to assist the state in the establishment and operation of juvenile crime prevention programs; provide for greater accountability in the juvenile justice system; implement a results framework that promotes youth development; and comply with the JJDPA core requirements regarding the deinstitutionalization of status offenders, sight and sound separation of adults and juveniles in secure facilities, prohibitions on the use of adult jails to hold juveniles, and the disproportionate confinement of minority youth.

3.2(2) The primary goal of the coordinated juvenile justice and prevention program is to promote positive youth development by helping communities provide their children, families, neighborhoods, and institutions with the knowledge, skills, and opportunities necessary to foster healthy and nurturing environments that support the growth and development of productive and responsible citizens. Other specific goals of this program are to reduce youth violence, truancy, youth involvement in criminal gangs, substance abuse and other delinquent behavior.

428—3.3(216A,232,PL93–415) Program funding distribution. The division shall distribute funds available for this program through the following methods:

1. Competitive grants.

2. Formula–based allocations.

3. Sole source contracts.

Funding through any of these methods may be on an annual or multiyear basis.

3.4(1) Application announcement. The administrator of the division shall announce through public notice the opening of any competitive grant application process. The announcement shall provide potential applicants with information that describes eligibility conditions, purposes for which the program funding shall be available, application procedures, and all relevant time frames established for proposal submittal and review, grant awards, and grant expenditure periods.

3.4(2) Preapplication. The division may request potential applicants to submit a preapplication summary of their proposal. If a preapplication is required, the division shall provide all potential applicants with sufficient information detailing the extent of the preapplication and the criteria for review. Preapplications received in a timely manner shall be presented to the grant review committee for screening. The committee shall use the same ranking system for each preapplication. It shall be based on the criteria provided to the applicant through the division activities specified in subrule 3.4(1). Applicants shall be notified in writing of the screening decisions.

3.4(3) Content of applications. Required elements of the applications shall be published in the request for applications and shall be based on a point system established by the division that reflects the requirements of federal and state funding sources. The division shall develop the application and selection criteria.

3.4(4) Application review and selection process. The division shall conduct a preliminary review of each application to ensure that the applicant is eligible and the application is complete. All applications that are submitted in a timely manner by eligible applicants and contain the necessary information shall be presented to the grant review committee. Members of the grant review committee shall review each application and shall assign numerical scores to each application using criteria and point values established by the division and listed in the request for applications. The rank order of scores assigned to the applications by the review committee shall be the basis for funding recommendations for each application reviewed. The grant review committee shall forward their funding recommendations for approval and final award decisions pursuant to rule 428— 3.7(216A,232,PL93–415). Decisions to make final awards shall be consistent with applicable state and federal program requirements.

3.4(5) Conflict of interest. Persons shall not serve on the grant review committee or otherwise participate personally through decisions, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise in any proceeding, application, request for a ruling or other determination, contract, grant, cooperative agreement, claim, controversy, or other particular matter in which funds administered by the division are used, when to the person’s knowledge, the person or a member of the person’s immediate family, a partner, an organization in which the person is serving as an officer, director, trustee, partner, or employee or any person or organization with whom the person is negotiating or has any arrangement concerning prospective employment, or has a financial interest of less than an arms–length transaction. If a person’s agency or organization submits an application the person shall not be present when the grant review committee’s recommendations are acted upon by the JJAC or the CJJPAC.

3.5(1) Funding recipients. Only units of local government and local public planning entities may be considered eligible applicants to receive funding through this distribution method. The determination of which units of local government and local public planning entities are eligible applicants shall be made according to the state or federal law or regulation that makes funding available to the division for this distribution method. When such a determination is not established in law or regulation, the administrator shall make the determination with the advice of the CJJPAC and the JJAC.

3.5(2) Formula to determine individual allocation amounts. Allocation amounts to individual units of local government or local public planning entities shall be calculated according to the state or federal law or regulation that makes funding available to the division for this distribution method. When an allocation formula for funding to be distributed by the division is not established in this chapter or other law or regulation, the division shall calculate allocations based on a formula determined by the administrator. The formula shall be based on the number of children residing in the respective areas and may also be based on poverty rates, delinquency rates and other data relevant to child and family well–being. Application materials provided to the eligible units of local government or local public planning entities shall specify the formula used to calculate the allocation.

3.5(3) Application procedures and requirements.

a. Each unit of local government or local public planning entity that is eligible to be an applicant for funds pursuant to 3.5(1) shall be contacted by the division and provided an application that must be completed by the applicant prior to the applicant’s receipt of the allocation.

b. The application may require the submission of a comprehensive plan to prevent and reduce juvenile crime that reflects the purposes and goals in rule 428—3.2(216A,232) and that structures the coordination and collaboration of other relevant community programs and activities. Evidence of such coordination and collaboration may be required to include assurances and documentation that the plan for this program was developed to include, or be an integral part of, other areawide plans related to, for example, child welfare, substance abuse, health, or education.

c. The application may require documentation that the application was completed with the participation of representatives from, for example, law enforcement, county attorneys, county and city governments, health, human services, education and community service agencies.

d. The application may also require the applicant to certify and make assurances regarding policies and practices related to, but not limited to, funding eligibility, program purposes, service delivery and planning and administration capacities.

e. Each notified applicant shall submit the required information by the deadline established and announced by the division. The division reserves the right to extend the deadline.

f. Following its receipt and approval of a completed application, the division shall offer the applicant a contract authorizing the obligation of funds. These rules and all applicable state and federal laws and regulations shall become part of the contract by reference.

3.5(4) Allocations declined, waived or combined.

a. As allowed by federal or state law, when an eligible local public planning entity or unit of local government declines to submit an application for funds, such funds shall be retained by the division to be reallocated among all participating units of local government or local public planning entities or to be otherwise distributed for the development of services that have a statewide impact.

b. As allowed by federal or state law, the division may permit an eligible unit of local government to waive its right to a direct allocation and request that its allocation be awarded to and expended for its benefit by a larger or contiguous unit of local government or local public planning entity. A written waiver shall be required from the unit of local government that waives its right to a direct allocation and names a requested unit of local government or local public planning entity to receive and expend the funds. The unit of local government or local public planning entity receiving the funds must agree, in writing, to accept the redirected funds, to carry out all planning and application requirements and to serve as the fiscal agent for receiving the waived allocation. The division’s instructions to eligible applicants shall describe the procedures required to implement this subrule.

c. As allowed by federal or state law, the division may permit applicants to enter into regional coalitions by planning for and utilizing combined allocations from the participating units of local government or local public planning entities. A unit of local government or local public planning entity shall serve as the applicant and fiscal agent for purposes of carrying out planning and application requirements, and for receiving the allocation and obligating and expending funds for the benefit of the combined units. The division’s instructions to eligible applicants shall describe the process to implement this subrule.

428—3.6(216A,232,PL93–415) Sole source contracts. The division may determine, because of the nature of a certain problem or desired programmatic response, that a competitive grant or formula–based allocation process would not be the most appropriate or expeditious process through which to award funds. In such cases, the division may seek out a potential subgrantee with which it can develop a sole source contract for services. The division shall be alert to organizational conflicts of interest and noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. The division’s awarding and administration of any sole source contract shall be governed by all relevant state and federal laws and regulations.

3.7(1) Sources of funding for this program may include juvenile crime prevention community grants, JJDPA formula grants, JAIBG funds and other funds made available to the division for the purpose of this program. The division may combine funding from these federal and state appropriations and grant programs to distribute through any of the methods outlined in 428—3.3(216A,232,PL93–415).

3.7(2) Juvenile crime prevention community grants.

a. These funds, when available, shall be distributed according to the provisions of 428—3.5(216A,232,PL93–415).

b. The decategorization governance boards established in Iowa Code section 232.188 shall be the eligible recipients of these funds.

c. The administrator may approve applications for these funds except that the JJAC may exercise approval authority over those applications that will be funded in whole or in part with federal Title V delinquency prevention grants.

d. The CJJPAC and the JJAC shall advise the division on its administration of these funds.

3.7(3) JJDPA formula grants.

a. The JJAC shall determine the amounts of these funds, when available, that are to be distributed according to the provisions of 428—3.3(216A,232,PL93–415).

b. The JJAC shall determine any specific purposes for which this funding shall be distributed through the provisions of 428—3.4(216A,232,PL93–415) and 428— 3.6(216A,232, PL93–415).

c. The JJAC may review and exercise approval authority over any applications for these funds distributed through the provisions of 428—3.4(216A,232,PL93–415).

d. The administrator may approve applications for these funds when distributed through the provisions of 428— 3.5(216A,232,PL93–415) and 428—3.6(216A,232, PL93–415).

3.7(4) Determination of JAIBG funding amounts to be distributed when available.

a. OJJDP determines the amount of JAIBG funds that the division will distribute to units of local government through the provisions of 428—3.5(216A,232,PL93–415).

b. The state JCEC may determine an amount and the purposes of JAIBG funds to be distributed through the provisions of 428—3.4(216A,232,PL93–415) and 428— 3.6(216A,232,PL93–415) and the amount of JAIBG funds to be distributed to local public planning entities through the provisions of 428—3.5(216A,232,PL93–415).

3.7(5) JAIBG funding for units of local government.

a. Each year JAIBG funding is available, the division shall conduct a review of state and local juvenile justice expenditures to determine the primary financial burden for the administration of juvenile justice within the state of Iowa. If, after conducting this review, the state’s financial burden in the program purpose areas is greater than 50 percent of the expenditures, the division may request OJJDP’s approval to distribute to units of local government a lower percentage of the available funding than the percentage initially established by Congress for units of local government. The division shall consult with units of local government or organizations representing such units prior to submitting such a request.

b. The JAIBG allocations for individual units of local government shall be determined by a formula set by Congress which is based on a combination of law enforcement expenditures for each unit of local government and the number of Uniform Crime Report Part 1 violent crime reports by each unit of local government. Two–thirds of each unit of local government’s allocation will be based on the law enforcement expenditure data and one–third will be based on the reported violent crime data, in the same ratio to the aggregate of all other units of general local government in the state.

c. To apply the formula set by Congress, the division shall use data collected by the U.S. Census Bureau pertaining to law enforcement expenditures and the Federal Bureau of Investigation pertaining to reported Part 1 violent crime, as compiled by the JRSA, and the department of public safety (DPS) of the state of Iowa.

d. If data, as compiled by JRSA, indicates that units of local government have not reported law enforcement expenditures, or have reported only partial law enforcement expenditures, the division may request complete law enforcement expenditure reports directly from the affected units of local government to determine the correct allocation. If no additional information is received from units of local government within 15 calendar days after requesting such expenditure reports, the division shall use the data as presented by JRSA.

e. If data, as compiled by JRSA, indicates that units of local government have not reported crime data to the DPS or have reported only partial crime data, the division may request complete violent crime data directly from the affected units of local government to determine the correct allocation. If no additional data is received from units of local government within 15 calendar days after requesting such data, the division shall use the data as presented by JRSA.

f. No unit of local government shall receive an allocation that exceeds 100 percent of the law enforcement expenditures of such unit as reported to the Census Bureau.

g. In order to qualify for JAIBG funds, a unit of local government’s allocation must be $5,000 or more. If, based on the formula, the allocation for a unit of local government is less than $5,000 during a fiscal year, the amount shall be distributed by the division to the local decategorization governance board for those areas encompassing the unit of local government, as described in subrule 3.7(6).

3.7(6) JAIBG funding for local public planning entities. In any year in which JAIBG funds are available and the state JCEC determines an amount of these funds to be distributed through the provisions of 428—3.5(216A,232,PL93–415), the division may make such funds available to local decategorization governance boards. The division shall calculate allocations to each of the decategorization governance boards based on the number of children aged 5 to 17 years residing in the respective areas. The most recent available population data for children aged 5 to 17 years shall be used to calculate the allocations. In any year in which the division makes JAIBG funds available to local decategorization governance boards, the division shall make funds available to any county that is not participating in decategorization. The division shall calculate allocations to each county that is not participating in decategorization based on the number of children aged 5 to 17 years residing in the respective areas. The most recent available population data for children aged 5 to 17 years shall be used to calculate the allocations.

3.7(7) Other funds. When funds other than those provided for in subrules 3.7(2) through 3.7(6) are made available to the division for the purposes of this program, the division shall distribute such funds through the provisions of this chapter. With the advice of the JJAC and the CJJPAC, the division shall, consistent with applicable state and federal law and regulation, determine the distribution methods, eligible applicants and any allocation formulas to be used when making such funding available.

3.8(1) Applicants choosing to appeal funding decisions must file a written appeal with the administrator within ten calendar days of the postmarked date of the written notification of the program’s funding decisions.

3.8(2) All letters of appeal shall clearly state the reason(s) for the appeal and evidence of the reason(s) stated. Reason(s) for appeal must be based on a contention that the rules and procedures governing the funding process have not been applied properly. All appeals must clearly state in what manner the division failed to follow the rules of the selection process as governed by these administrative rules or procedures outlined in the application materials provided to all applicants by the division. The letter of appeal must also describe the remedy being sought.

3.8(3) If an appeal is filed within the ten calendar days, the division shall not enter into a contract with any applicant involved in the application process being appealed until the administrator has reviewed and decided on all appeals received in accordance with the criteria in subrules 3.8(1) and 3.8(2). The division administrator shall consider the information submitted by the appellant and relevant information from division staff when conducting the review. The review shall be conducted as expeditiously as possible so that all funds can be distributed in timely manner.

3.8(4) The decision of the division administrator shall represent the final division action for the purpose of implementing Iowa Code chapter 17A.

3.9(1) Contract offer. Applicants shall be notified in writing of the division’s intent to fund, contingent upon the funds available. The administrator shall have flexibility in determining which state and federal funds shall be utilized in awards and allocations to subgrantees. These rules and all applicable state and federal laws and regulations become a part of the contract by reference.

3.9(2) Preaward negotiation. The applicant may be requested to modify the original application in the negotiation process. The division reserves the right to fund all or part of the applicant’s application.

3.9(3) Withdrawal of contract offer. If the applicant and the division are unable to successfully negotiate a contract, the division may withdraw the award offer and redistribute program funds in a manner consistent with the provisions of rule 428—3.14(216A,232).

3.9(4) Contract modifications. The subgrantee or the division may request a modification or revision of the contract.

3.9(5) Reimbursement of expenditures. Funds are to be spent to meet program goals as provided in the contract. Expenditures shall be reimbursed pursuant to regular reimbursement procedures of the state of Iowa.

3.10(1) Termination by subgrantee. The contract may be terminated by the subgrantee at any time during the contract period by giving 30 days’ notice to the division.

3.10(2) Termination by the division.

a. The division may terminate a contract upon ten days’ notice when the subgrantee or any of its subcontractors fail to comply with the grant award stipulations, standards or conditions. The division may terminate a contract upon 30 days’ notice when there is a reduction of funds by executive order.

b. Termination for convenience. The performance of work under the agreement may be terminated by the division in accordance with this clause in whole or, from time to time, in part whenever the division shall determine that such termination is in the best interest of the state. The division shall pay all reasonable costs associated with the agreement that the subgrantee has incurred up to the date of termination. The division shall not pay for any work that has not been done prior to the date of termination.

c. Termination for default. If the subgrantee fails to fulfill its obligations under this agreement properly or on time, or otherwise violates any provision of this agreement, the division may terminate the agreement by written notice to the subgrantee. The notice shall specify the acts of commission or omission relied on as cause for termination. All finished or unfinished products and services provided by the subgrantee shall, at the option of the division, become the state’s property. The division shall pay the subgrantee fair and equitable compensation for satisfactory performance prior to receipt of notice of termination.

3.10(3) Responsibility of subgrantee at termination. Within 45 days of the termination, the subgrantee shall supply the division with a financial statement detailing all costs up to the effective date of the termination.

3.11(1) Expenditure claim reports shall be required from subgrantees on provided forms. The division, pursuant to regular reimbursement procedures of the state of Iowa, shall reimburse subgrantees for actual expenditures specified in the approved budget.

3.11(2) Quarterly reports on program outcomes, program status and financial status shall be required from subgrantees on provided forms.

3.11(3) Other reports, including audit reports prepared by independent auditors, may be required by the division and specified in the request for applications or contract to assist in the monitoring and evaluation of programs.

3.11(4) Failure to submit required reports by the due date shall result in suspension of financial payments to the subgrantee by the division until such time as the reports are received. No new awards shall be made for continuation programs where there are delinquent reports from prior grants.

428—3.12(216A,232) Subgrantee records. Financial rec–ords, supporting documents, statistical records and all other records pertinent to the program shall be retained by the subgrantee in accordance with the following:

3.12(1) Records for any project shall be retained for three years after final closeout and audit procedures are completed and accepted by the division.

3.12(2) Representatives of the state auditor’s office and the division shall have access to all books, accounts, documents, and other property belonging to or in use by a subgrantee pertaining to the receipt of funds under these rules.

3.13(1) Grant funds from this program shall be used to support only those activities and services specified and agreed to in the contract between the subgrantee and the division. The contract shall identify specific cost categories against which all allowable costs must be consistently charged.

3.13(2) Funds appropriated for this program shall not be expended for supplantation of federal, state, or local funds supporting existing programs or activities. Instructionsfor the application and acceptance of competitive grants,formula–based allocations, and sole source contracts may specify other cost limitations including, but not limited to, costs related to political activities, interest costs, fines, penalties, lawsuits or legal fees, and certain fixed assets and program equipment.

428—3.14(216A,232) Redistribution of funds. The division reserves the right to recapture and redistribute awarded funds based upon projected expenditures if it appears that funds shall not be expended by a subgrantee according to the conditions of the subgrantee’s contract. Recaptured funds may be granted by the administrator to other applicants or subgrantees for services and activities consistent with the purposes and goals of the program.

428—3.15(216A,232) Compliance with state and federal laws. In acceptance of a grant, the subgrantee shall agree to comply with all applicable state and federal rules and laws including, but not limited to, the JJDPA.

428—3.16(216A,232) Immunity of state and agencies. The subgrantee shall defend and hold harmless the state and any federal funding source for the state from liability arising from the subgrantee’s performance or attempted performance of their contract, and the subgrantee’s activities with subcontractors and all other third parties.

These rules are intended to implement Iowa Code chapter 17A, Iowa Code sections 216A.131 to 216A.136, and section 232.190 as amended by 2000 Iowa Acts, Senate File 2429, and Public Laws 93–415 and 105–119.

Pursuant to the authority of Iowa Code section 147.76, the Board of Dental Examiners hereby gives Notice of Intended Action to amend Chapter 27, “Principles of Professional Ethics,” Iowa Administrative Code.

Item 1 changes the title of Chapter 27 to clarify that these rules also establish standards of practice in addition to principles of professional ethics.

In Item 2, information regarding patient records is stricken and is incorporated in new rule 650—27.11(153,272C) in Item 3. The new rule establishes standards for patient record keeping and clarifies the standards of practice for practitioners.

The Board has determined that these rules are not subject to waiver or variance in specific circumstances because the rules establish standards of practice necessary for the protection of patients.

Any interested person may make written comments or suggestions on the proposed amendments on or before June 6, 2000. Such written comments should be directed toJennifer Hart, Agency Rules Administrator, Board of Dental Examiners, 400 S.W. 8th Street, Suite D, Des Moines, Iowa 50309–4687. E–mail may be sent to jhart@bon.state.ia.us.

Also, there will be a public hearing on June 6, 2000, from 2 to 3 p.m. in the Conference Room, 400 S.W. 8th Street, Suite D, Des Moines, Iowa. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

Any person who plans to attend the public hearing and who may have special requirements, such as hearing or mobility impairments, should contact the Board and advise of specific needs.

These amendments were approved at the April 20, 2000, regular meeting of the Board of Dental Examiners.

These amendments are intended to implement Iowa Code chapters 17A, 147, 153, and 272C.

The following amendments are proposed.

ITEM 1. Amend the title of 650—Chapter 27 as follows:

CHAPTER 27
STANDARDS OF PRACTICE AND
PRINCIPLES OF PROFESSIONAL ETHICS

ITEM 2. Amend rule 650—27.2(153) as follows:

27.2(1) Dentists, in serving the public, may exercise reasonable discretion in accepting patients in their practices; however, dentists shall not refuse to accept patients into their practice or deny dental service to patients because of the patient’s race, creed, sex or national origin.

ITEM 3. Adopt the following new rule:

650—27.11(153,272C) Record keeping. Dentists shall maintain patient records in a manner consistent with the protection of the welfare of the patient. Records shall be permanent, timely, accurate, legible, and easily understandable.

27.11(1) Dental records. Dentists shall maintain dental records for each patient. The records shall contain all of the following:

a. Personal data.

(1) Name, date of birth, address and, if a minor, name of parent or guardian.

(2) Name and telephone number of person to contact in case of emergency.

b. Dental and medical history. Dental records shall include information from the patient or the patient’s parent or guardian regarding the patient’s dental and medical history. The information shall include sufficient data to support the recommended treatment plan.

c. Patient’s reason for visit. When a patient presents with a chief complaint, dental records shall include the patient’s stated oral health care reasons for visiting the dentist.

d. Clinical examination progress notes. Dental records shall include chronological dates and descriptions of the following:

(1) Clinical examination findings, tests conducted, and a summary of all pertinent diagnoses;

(2) Plan of intended treatment and treatment sequence;

(3) Services rendered and any treatment complications;

(4) All radiographs, study models, and periodontal charting if applicable;

(5) Name, quantity, and strength of all drugs dispensed, administered, or prescribed;

(6) Name of dentist, dental hygienist, or any other auxiliary, who performs any treatment or service or who may have contact with a patient regarding the patient’s dental health.

e. Informed consent. Dental records shall include, at a minimum, documentation of informed consent that includes discussion of procedure(s), treatment options, potential complications and known risks, and patient’s consent to proceed with treatment.

27.11(2) Retention of records. A dentist shall maintain a patient’s dental record for a minimum of five years after the date of last examination, prescription, or treatment. Records for minors shall be maintained for a minimum of either(a) one year after the patient reaches the age of majority (18), or (b) five years, whichever is longer. Proper safeguards shall be maintained to ensure safety of records from destructive elements.

27.11(3) Electronic record keeping. The requirements of this rule apply to electronic records as well as to records kept by any other means. When electronic records are kept, a dentist shall keep either a duplicate hard copy record or use an unalterable electronic record.

27.11(4) Correction of records. Notations shall be legible, written in ink, and contain no erasures or white–outs. If incorrect information is placed in the record, it must be crossed out with a single nondeleting line and be initialed by a dental health care worker.

27.11(5) Confidentiality and transfer of records. Dentists shall preserve the confidentiality of patient records in a manner consistent with the protection of the welfare of the patient. Upon request of the patient or patient’s new dentist, the dentist shall furnish the dental records or copies or summaries of the records, including dental radiographs or copies of the radiographs, as will be beneficial for the future treatment of that patient. The dentist may charge a nominal fee for duplication of records, but may not refuse to transfer records for nonpayment of any fees.

ITEM 4. Amend 650—Chapter 27, implementation clause, as follows:

These rules are intended to implement Iowa Code sections 153.34(7), 153.34(9), 272C.3, and 272C.4(1f) and 272C.4(6).

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to amend Chapter 25, “Housing Fund,” Iowa Administrative Code.

The proposed amendments (1) encourage, but do not require, participation in the multiagency HART review process and (2) establish the joint application and review process to be utilized when considering project applications for Housing Fund and Low–Income Housing Tax Credits (LIHTC) funding.

Public comments concerning the proposed amendments will be accepted until 4:30 p.m. on June 6, 2000. Interested persons may submit written or oral comments by contacting Roselyn McKie Wazny, Division of Community and Rural Development, Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515)242–4822.

A public hearing to receive comments about the proposed amendments will be held on June 6, 2000, at 11 a.m. at the above address in the Northeast Conference Room on the second floor. Individuals interested in providing comments at the hearing should contact Roselyn McKie Wazny by 4 p.m. on June 5, 2000, to be placed on the hearing agenda.

These amendments are intended to implement Iowa Code section 15.108(1)“a.”

The following amendments are proposed.

ITEM 1. Amend rule 261—25.5(15), introductory paragraph, as follows:

261—25.5(15) Application procedure. All potential housing fund applicants shall are encouraged, but not required, to complete and submit a HART form describing the proposed housing activity. If, after HART review, the proposal is determined to be appropriate for housing fund assistance, IDED shall inform the applicant of the appropriate application procedure by mail. The HART process must, if undertaken, should be completed as early as possible in the application procedure and within a minimum of 30 days prior to the application deadline process.

ITEM 2. Adopt new subrule 25.5(5) as follows:

25.5(5) For applicants requesting funding from both the housing fund and low–income housing tax credit (LIHTC) programs, the applicant may request application forms and related material from the Iowa finance authority (IFA). IFA shall forward an application package to a potential applicant and make the application package available in electronic form either by diskette or on the Internet at http://www.ifa home.com. The applicant must submit the completed appli–cation, with required housing fund attachments, to IFA by the deadline established in the application package.

a. IDED and IFA shall appoint a joint review team to discuss and review applications for housing fund and LIHTC funds. Staff for each agency may communicate frequently regarding common projects. Information contained in each application may be shared with each agency.

b. The joint review team shall meet at least twice to compare and discuss each common project. The first meeting will be convened after IDED and IFA have completed the threshold review. The second meeting shall be convened after IDED and IFA have completed the next phase of each agency’s review process. No additional points will be awarded to an applicant seeking both types of funding. Staff from each agency will make recommendations for funding to their respective decision makers after the second meeting. A decision by one agency does not bind the other agency to fund a project.

c. All applicants for the housing fund must meet the threshold requirements outlined in rules 25.4(15) and 25.6(15) and subrule 25.7(3) in order to be considered for award under this subrule.

ITEM 3. Rescind subrule 25.5(6).

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to amend Chapter 28, “Local Housing Assistance Program,” Iowa Administrative Code.

The proposed amendment clarifies the relationship between the HART (housing application review team) process and the preapplication process for LHAP funds. Applicants are encouraged, but not required, to submit a HART form prior to preparing a preapplication for LHAP funds.

Public comments concerning the proposed amendment will be accepted until 4:30 p.m. on June 6, 2000. Interested persons may submit written or oral comments by contacting Roselyn McKie Wazny, Division of Community and Rural Development, Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515)242–4822.

A public hearing to receive comments about the proposed amendment will be held on June 6, 2000, at 10 a.m. at the above address in the Northeast Conference Room on the second floor. Individuals interested in providing comments at the hearing should contact Roselyn McKie Wazny by 4 p.m. on June 5, 2000, to be placed on the hearing agenda.

This amendment is intended to implement Iowa Code section 15.108(1)“a.”

The following amendment is proposed.

Amend subrule 28.5(5) as follows:

28.5(5) Applicants whose preapplications best meet the preliminary review criteria, as determined by HART review and IDED staff review, shall be invited to submit full appli–cations for funds. Applicants are encouraged, but not required, to submit a HART form for review by the HART team prior to, or in conjunction with, submitting a preapplication for funding under LHAP.

Pursuant to the authority of Iowa Code sections 17A.3 and 29C.8, the Emergency Management Division gives Notice of Intended Action to amend Chapter 1, “Organization,” Iowa Administrative Code.

These amendments result from an extensive rules review by the Emergency Management Division.

Consideration will be given to all written suggestions or comments on the proposed amendments on or before June 12, 2000. Such written materials should be sent to the Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319, or faxed to (515)281–7539.

There will be a public hearing on these proposed amendments on June 12, 2000, at 10 a.m., in the Emergency Management Division Conference Room, Hoover State Office Building, Des Moines, Iowa, at which time persons may present their views orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of these amendments.

These amendments are intended to implement Iowa Code chapters 29C, 30, and 34A.

The following amendments are proposed.

Amend 605—Chapter 1 as follows:

CHAPTER 1
ORGANIZATION

605—1.1(29C) Description. The emergency management division is a division within the department of public defense.

1.1(1) Executive director Director. The adjutant general, as executive the director of the department of public defense and under the direction and control of the governor, shall have supervisory direction and control of the emergency management division and shall be responsible to the governor for the carrying out of the provisions of Iowa Code chapter 29C. In the event of disaster beyond local control, the adjutant general may assume direct operational control over all or any part of the emergency management functions within this state.

1.1(2) Administrator. The emergency management division shall be under the management of an administrator appointed by the governor. The administrator shall be vested with the authority to administer emergency management affairs in this state and shall be responsible for preparing and executing the emergency management programs of this state subject to the direction of the adjutant general. The administrator, upon the direction of the governor and supervisory control of the director of the department of public defense, shall: prepare a comprehensive plan and emergency management program for the disaster preparedness, response, mitigation, recovery, emergency operations operation, and emergency resource management of this state; make such studies and surveys of the industries, resources and facilities in this state as may be necessary to ascertain the capabilities of the state for disaster recovery, disaster planning and operations, and emergency resource management, and to plan for the most efficient emergency use thereof; provide technical assistance to any local emergency management commission or joint commission requiring such assistance in the development of an emergency management program; implement planning and training for emergency response teams as mandated by the federal government under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986 42 U.S.C. § 9601 et seq.; the administrator, with the approval of the governor and upon recommendation of the adjutant general, may employ a deputy administrator and such technical, clerical, stenographic and other personnel and make such expenditures within the appropriation or from other funds made available to the department of public defense for purposes of emergency management, as may be necessary to carry out administer the purposes of Iowa Code chapters 29C and, 30, and 34A.

605—1.2(29C) Definitions. The following definitions are applicable to emergency management division:

“Administrator” means the administrator of the emergency management division of the department of public defense.

“Comprehensive countywide emergency operations plan” means documents which describe the actions to be taken to lessen the effects of, prepare for, respond to and recover from in the event of an extraordinary emergency a disaster by county and city government resources governments,quasi–government agencies, and private organizations which have countywide emergency operations capabilities responsibility. The plan is multihazard in scope (covers a variety of disasters) all hazards for the county) and provides for a coordinated response effort. It references authority, assigns functional responsibilities, provides for direction and control, and the effective use of resources.

“Disaster” means man–made, technological, or natural occurrences, such as fire, flood, drought, earthquake, tornado, windstorm, hazardous substance or nuclear power plant accident or incident, which threaten the public peace, health and safety of the people or which damage or destroy public or private property. The term includes terrorism, enemy attack, sabotage, or other hostile action from without the state.

“Division” means the emergency management division of the department of public defense.

“Emergency” means a sudden, generally unexpected occurrence or set of circumstances demanding immediate action to protect life or property. Such actions are normally handled in a routine manner by law enforcement, fire protection, public works, utilities, and health–medical emergency medical services.

“Emergency management” means lessening the effects of, preparations for, operations during, and recovery from natural, technological or man–made disasters. These actions are broad in scope and include, but are not limited to: disaster plans, mitigation, preparedness, response, warning, emergency operations, training, exercising, research, rehabilitation, and recovery activities.

“Emergency management assistance funds” “Emergency management performance grant program” means a program by which federal funds are utilized to pay up to no more than 50 percent of the salaries, benefits, travel, and office expenses incurred in the administration of the state and local emergency management program.

“Joint commissions” means two or more local emergency management commissions may act acting as a joint commission for the joint coordination and administration of emergency management.

“Local commission” means the local emergency management commission.

“Mitigation” refers to activities that either prevent emergencies or disasters from happening or at least reduce the damaging impact if they cannot be prevented. means any action taken to reduce or eliminate the long–term risk to human life and property from hazards. Examples of mitigation activities are include building codes, disaster insurance incentives, land use management, floodplain management, building of protective structures such as flood walls, litigation, monitoring or inspection, public education, research, risk mapping, safety codes, and statutes and ordinances, and tax incentives.

“Preparedness” means any activity taken in advance of an emergency or disaster that improves emergency readiness posture and develops or expands operational capabilities. planning how to respond in a coordinated manner when an emergency or disaster occurs and working to increase available resources to respond effectively. Preparing people to respond appropriately within a system of management when disasters occur saves lives and reduces property damage. Examples of preparedness activities are include, but are not limited to, continuity of government, plans and ordinances, emergency broadcast system alert and warning systems, emergency communications, emergency operations centers, comprehensive countywide emergency operations plans, emergency public information materials, exercise of plans and systems, hazard analysis, mutual aid agreements, resource management, and the training response and equipping of personnel including political leaders and governmental managers, and warning systems.

“Recovery” is the process of returning the community to predisaster condition. Short–term recovery returns essential services to minimum operating standards. Long–term recovery continues until the public and private infrastructure is restored. means short–term activity to return vital life support systems to minimum operating standards and long–term activity designed to return the affected people and areas to their predisaster conditions. Examples of recovery activity are crisis counseling, damage assessment, debris clearance, decontamination, disaster application centers, disaster insurance payments, disaster loans and grants, disaster unemployment assistance, public information, community outreach, temporary housing, and reconstruction.

“Response activities” are those actions taken to immediately confront the source or presented effects of the emergency or disaster event. means any action taken immediately before, during, or directly after an emergency or disaster occurs, which is intended to save lives, minimize injuries, lessen property and environmental damage and enhance the effectiveness of recovery. The responders aid in the determination of the magnitude of the event or its potential for escalation. If appropriate, the emergency operations center is activated. Examples of response activity are include rendering of assistance by emergency responders, activation of the emergency operations center, emergency broadcast alert system activation, emergency instructions to the public, emergency medical assistance, emergency plan implementation, manning the emergency operations center, public official alerting, reception and care, shelter and evacuation, evacuation, sheltering of victims, search and rescue, resource mobilization, and warning system activation.

These rules are intended to implement Iowa Code chapter chapters 29C, 30 and 34A.

Pursuant to the authority of Iowa Code sections 17A.3 and 29C.8, the Emergency Management Division hereby gives Notice of Intended Action to rescind Chapter 2, “Petitions for Rule Making,” and adopt a new Chapter 2 with the same title; rescind Chapter 3, “Declaratory Rulings,” and adopt a new Chapter 3, “Declaratory Orders”; rescind Chapter 4, “Agency Procedure for Rule Making,” and adopt a new Chapter 4 with the same title; rescind Chapter 5, “PublicRecords and Fair Information Practices,” and adopt a new Chapter 5, “Fair Information Practices”; rescind Chapter 6, “Iowa Emergency Plan” and adopt a new Chapter 6, “Contested Cases”; and adopt a new Chapter 9, “Iowa Emergency Plan,” Iowa Administrative Code.

By proposing new Chapters 2 through 6, the Emergency Management Division implements, as closely as is practicable for this Division, the Uniform Rules on Agency Procedure that comply with the amendments to Iowa Code chapter 17A in 1998 Iowa Acts, chapter 1202, effective July 1, 1999. By so doing, administrative practice before the Division will be facilitated and will be substantially the same in the areas addressed as with all other agencies of state government.

The Division also proposes to rescind current Chapter 6 and adopt new Chapter 9 regarding the Iowa Emergency Plan, which details the state government response to a wide range of natural, technological, and human–caused disasters.

Any interested person may make written comments or suggestions on these proposed amendments on or before June 12, 2000. Such written materials should be sent to the Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319, or faxed to (515)281–7539.

There will be a public hearing on these proposed amendments on June 12, 2000, at 10 a.m., in the Emergency Management Division Conference Room, Hoover State Office Building, Des Moines, Iowa, at which time persons may present their views orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of these amendments.

These rules are intended to implement Iowa Code chapters 17A, 29C, 30 and 34A.

The following amendments are proposed.

ITEM 1. Rescind 605—Chapter 2 and adopt the following new chapter in lieu thereof:

CHAPTER 2
PETITIONS FOR RULE MAKING

605—2.1(17A) Petition for rule making. Any person or agency may file a petition for rule making with the division at the Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office. The division must provide the petitioner with a file–stamped copy of the petition if the petitioner provides the division an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

The petition must provide the following information:

1. A statement of the specific rule–making action sought by the petitioner including the text or a summary of the contents of the proposed rule or amendment to a rule and, if it is a petition to amend or repeal a rule, a citation and the relevant language to the particular portion or portions of the rule proposed to be amended or repealed.

2. A citation to any law deemed relevant to the division’s authority to take the action urged or to the desirability of that action.

3. A brief summary of the petitioner’s arguments in support of the action urged in the petition.

4. A brief summary of any data supporting the action urged in the petition.

5. 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 proposed action which is the subject of the petition.

6. Any request by petitioner for a meeting provided by rule 2.4(17A).

2.1(1) 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.

2.1(2) The emergency management division may deny a petition because it does not substantially conform to the required form.

605—2.2(17A) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The emergency management division may request a brief from the petitioner or from any other person concerning the substance of the petition.

605—2.3(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to the Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319.

2.4(1) Within 14 days after the filing of a petition, the division must submit a copy of the petition and any accompanying brief to the administrative rules coordinator and to the administrative rules review committee. Upon request by petitioner in the petition, the emergency management division must schedule a brief and informal meeting between the petitioner and the division, a member of the division, or a member of the staff of the division, to discuss the petition. The emergency management division may request the petitioner to submit additional information or argument concerning the petition. The division may also solicit comments from any person on the substance of the petition. Also, comments on the substance of the petition may be submitted to the emergency management division by any person.

2.4(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the emergency management division must, in writing, deny the petition and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule–making proceedings on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date when the division mails or delivers the required notification to petitioner.

2.4(3) Denial of a petition because it does not substantially conform to the required form does not preclude the filing of a new petition on the same subject that seeks to eliminate the grounds for the division’s rejection of the petition.

These rules are intended to implement Iowa Code chapter 17A.

ITEM 2. Rescind 605—Chapter 3 and adopt the following new chapter in lieu thereof:

CHAPTER 3
DECLARATORY ORDERS

605—3.1(17A) Petition for declaratory order. Any person may file a petition with the emergency management division for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the division, at the Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office. The division shall provide the petitioner with a file–stamped copy of the petition if the petitioner provides the division an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

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 3.7(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.

605—3.2(17A) Notice of petition. Within 15 days after receipt of a petition for a declaratory order, the emergency management division shall give notice of the petition to all persons not served by the petitioner pursuant to 3.6(17A) to whom notice is required by any provision of law. The division may also give notice to any other persons.

3.3(1) Persons who qualify under any applicable provision of law as an intervenor and who file a petition for intervention within 20 days of the filing of a petition for declaratory order shall be allowed to intervene in a proceeding for a declaratory order.

3.3(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 the emergency management division.

3.3(3) A petition for intervention shall be filed at the Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319. Such a petition is deemed filed when it is received by that office. The division 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:

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.

605—3.4(17A) Briefs. The petitioner or any intervenor may file a brief in support of the position urged. The emergency management division may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.

605—3.5(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319.

3.6(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.

3.6(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 the Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the division.

3.6(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 rule 605—6.12(17A).

605—3.7(17A) Consideration. Upon request by petitioner, the emergency management division must schedule a brief and informal meeting between the original petitioner, all intervenors, and the division, a member of the division, or a member of the staff of the division, to discuss the questions raised. The division may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the division by any person.

3.8(1) Within the time allowed by 1998 Iowa Acts, chapter 1202, section 13(5), after receipt of a petition for a declaratory order, the administrator or designee shall take action on the petition as required by Iowa Code section 17A.9(5).

3.8(2) The date of issuance of an order or of a refusal to issue an order is as defined in rule 605—6.2(17A).

3.9(1) The emergency management division shall not issue a declaratory order where prohibited by Iowa Code section 17A.9(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 the division to issue an order.

3 The division 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 a division 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 the emergency management division to determine whether a statute is unconstitutional on its face.

3.9(2) A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final division action on the petition.

3.9(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.

605—3.10(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.

605—3.11(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.

605—3.12(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 the emergency management division, the petitioner, and any intervenors 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 the emergency management division. The issuance of a declaratory order constitutes final agency action on the petition.

These rules are intended to implement Iowa Code chapter 17A.

ITEM 3. Rescind 605—Chapter 4 and adopt the following new chapter in lieu thereof:

CHAPTER 4
AGENCY PROCEDURE FOR RULE MAKING

605—4.1(17A) Adoption by reference. The emergency management division hereby adopts the agency procedure for rule making segment of the Uniform Rules on Agency Procedure which are printed in the first volume of the Iowa Administrative Code, with the following amendments:

1. In lieu of the words “(commission, board, council, director)” insert “administrator”.

2. In lieu of the words “(specify time period)” insert “one year”.

3. In lieu of the words “(identify office and address)” insert “Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319”.

4. In lieu of the words “(designate office and telephone number)” insert “the administrator at (515)281–3231”.

5. In lieu of the words “(designate office)” insert “Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319”.

6. In lieu of the words “(specify the office and address)” insert “Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319”.

7. In lieu of the words “(agency head)” insert “administrator”.

These rules are intended to implement Iowa Code chapter 17A.

ITEM 4. Rescind 605—Chapter 5 and adopt the following new chapter in lieu thereof:

CHAPTER 5
FAIR INFORMATION PRACTICES

605—5.1(17A) Adoption by reference. The emergency management division hereby adopts the fair information practices segment of the Uniform Rules on Agency Procedure which are printed in the first volume of the Iowa Administrative Code, with the following amendments:

1. In lieu of the words “(official or body issuing these rules)” insert “Emergency Management Division”.

2. In lieu of the words “(insert agency head)” insert “administrator”.

3. In lieu of the words “(insert agency name and address)” insert “Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319”.

4. In lieu of the words “(insert customary office hours and, if agency does not have customary office hours of at least thirty hours per week, insert hours specified in Iowa Code section 22.4)” insert the words “at any time from 9 a.m. to 12 noon and from 1 to 4 p.m., Monday through Friday, excluding legal holidays, unless the person exercising such right and the lawful custodian agree on a different time”.

5. In lieu of the words “(specify time period)” insert the words “30 minutes”.

6. In lieu of the words “(designate office)” insert the words “Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319”.

7. Delete the words “(and, where applicable, the time period during which the record may be disclosed)”.

8. Delete the words “(Additional requirements may be necessary for special classes of records.)”

9. Insert at the end of rule 605—5.7(17A,22) the following new sentence: “For federal records maintained by the emergency management division, a subject will provide a Privacy Act release in accordance with the requirements of Title 5 United States Code, Section 552, in writing, and signed by the subject of the record.”

10. Delete the words “(Each agency should revise its forms to provide this information.)”

11. Insert at the end of rule 605—5.8(17A,22) the following new sentence: “For federal records and forms, the United States government’s determination of routine use and the consequences of failure to provide required or optional information as requested shall be provided to the supplier of the information.”

12. Insert the following new rule:

605—5.9(17A,22) Federal records. Pursuant to Iowa Code section 22.9, the division finds that maintenance, use, or disclosure of federal records described in this rule, except as allowed by federal law and regulation, would result in denial of United States government funds, services and essential information that would otherwise definitely be available and that have been available to the division in the past. The division has authority to enter into agreements and contracts to obtain funds pursuant to Iowa Code chapter 29C. The division makes such agreements and contracts with the Federal Emergency Management Agency (FEMA) under the authority of Public Law 93–288 (the Robert T. Stafford Disaster Relief and Emergency Assistance Act) and an Emergency Management Performance Grant Agreement which specify categories of records and information that must be kept confidential. In addition, 44 CFR 5.71 specifies categories of records that are exempt from disclosure under 5 U.S.C. 552. These rec–ords include those containing personally identifiable information concerning applicants to individual assistance and mitigation assistance programs that are administered by the state under a presidentially declared disaster. Nuclear Regulatory Commission Title 10 CFR 73.21 relates to the physical protection of nuclear power plants and materials. This regulation requires that certain information contained in plans and documents on file with the division be kept confidential and include information concerning the physical protection at fixed sites; physical protection in transit; inspections, audits and evaluations; and correspondence insofar as it contains safeguards information.

ITEM 5. Rescind 605—Chapter 6 and adopt the following new chapter in lieu thereof:

CHAPTER 6
CONTESTED CASES

605—6.1(17A) Scope and applicability. This chapter applies to contested case proceedings conducted by the emergency management division.

605—6.2(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 Iowa Code section 17A.10A.

“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 administrator of the emergency management division or the administrator’s designee.

“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which the administrator did not preside.

6.3(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).

6.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute or by rule. 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.

605—6.4(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 specified 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 orprecedent 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.

6.5(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.

6.5(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 Iowa Code section 17A.11(1) and rule 6.6(17A), that the presiding officer be an administrative law judge.

6.6(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.

6.6(2) The agency 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. The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.

d. The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.

e. Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.

f. The request was not timely filed.

g. The request is not consistent with a specified statute.

6.6(3) The agency shall issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed.

6.6(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.

6.6(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.

605—6.7(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.

605—6.8(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.

6.9(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.

6.9(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(3) and subrules 6.9(3) and 6.23(9).

6.9(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.

6.9(4) If a party asserts disqualification on any appropriate grounds, including those listed in subrule 6.9(1), the party shall file a motion supported by an affidavit pursuant to Iowa Code section 17A.17(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 rec–ord.

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 6.25(17A) and seek a stay under rule 6.29(17A).

6.10(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.

6.10(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.

6.11(1) Pleadings may be required by rule, by the notice of hearing, or by order of the presiding officer.

6.11(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.

6.11(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.

6.11(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.

6.12(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.

6.12(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.

6.12(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 the presiding officer as identified in the notice of hearing. All pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319.

6.12(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the emergency management division, 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.

6.12(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)

6.13(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.

6.13(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 6.13(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.

6.13(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.

6.14(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.

6.14(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.

6.15(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.

6.15(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.

6.15(3) The presiding officer may schedule oral argument on any motion.

6.15(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.

6.15(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 6.28(17A) and appeal pursuant to 6.27(17A).

6.16(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 presiding officer to all parties. For good cause the presiding officer may permit variances from this rule.

6.16(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.

6.16(3) In addition to the requirements of subrule 6.16(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.

6.16(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.

605—6.17(17A) Continuances. Unless otherwise provided, applications for continuances shall be made to the presiding officer.

6.17(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.

6.17(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.

605—6.18(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.

6.19(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.

6.19(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.

6.19(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.

6.19(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.

6.20(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.

6.20(2) All objections shall be timely made and stated on the record.

6.20(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.

6.20(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.

6.20(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.

6.20(6) Witnesses may be sequestered during the hearing.

6.20(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 present final arguments.

6.21(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.

6.21(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.

6.21(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.

6.21(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.

6.21(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.

6.21(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.

6.22(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.

6.22(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.

6.22(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 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 6.27(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.

6.22(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.

6.22(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 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.

6.22(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.

6.22(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 6.25(17A).

6.22(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.

6.22(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).

6.22(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 6.29(17A).

6.23(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 6.9(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.

6.23(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.

6.23(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.

6.23(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 6.12(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.

6.23(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.

6.23(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 6.23(1).

6.23(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 6.17(17A).

6.23(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.

6.23(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.

6.23(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 administrator for possible sanctions including censure, suspension, dismissal, or other disciplinary action.

605—6.24(17A) Recording costs. Upon request, the emergency management division 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.

605—6.25(17A) Interlocutory appeals. Upon written request of a party or on the administrator’s own motion, the administrator may review an interlocutory order of the presiding officer. In determining whether to do so, the administrator shall weigh the extent to which 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.

6.26(1) When the emergency management division administrator presides over the reception of evidence at the hearing, the administrator’s decision is a final decision.

6.26(2) When the emergency management division administrator 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, the emergency management division administrator within the time provided in rule 6.27(17A).

6.27(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the emergency management division administrator within 30 days after issuance of the proposed decision.

6.27(2) Review. The administrator may initiate review of a proposed decision on the administrator’s own motion at any time within 30 days following the issuance of such a decision.

6.27(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the emergency management division administrator. 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.

6.27(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 present 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 administrator may remand a case to the presiding officer for further hearing, or the administrator may preside at the taking of additional evidence.

6.27(5) Scheduling. The emergency management division administrator shall issue a schedule for consideration of the appeal.

6.27(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 administrator may resolve the appeal on the briefs or provide an opportunity for oral argument. The administrator may shorten or extend the briefing period as appropriate.

6.28(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.

6.28(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 6.27(4), the applicant requests an opportunity to submit additional evidence.

6.28(3) Time of filing. The application shall be filed with the emergency management division administrator within 20 days after issuance of the final decision.

6.28(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, the emergency management division shall serve copies on all parties.

6.28(5) Disposition. Any application for a rehearing shall be deemed denied unless the agency grants the application within 20 days after its filing.

6.29(1) When available.

a. Any party to a contested case proceeding may petition the emergency management division administrator 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 administrator may rule on the stay or authorize the presiding officer to do so.

b. Any party to a contested case proceeding may petition the emergency management division administrator 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.

6.29(2) When granted. In determining whether to grant a stay, the presiding officer or administrator shall consider the factors listed in Iowa Code section 17A.19(5)“c.”

6.29(3) Vacation. A stay may be vacated by the issuing authority upon application of the emergency management division or any other party.

605—6.30(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.

6.31(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.

6.31(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.

6.31(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.

6.31(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.

ITEM 6. Adopt the following new chapter:

CHAPTER 9
IOWA EMERGENCY PLAN

605—9.1(29C) State emergency plan. The Iowa emergency plan, as promulgated by governor’s proclamation July 7, 1999, has been adopted and is published and maintained by the division. The plan details the state government response to, and recovery from, a wide range of natural and human–caused disasters.

1. The plan shall be distributed to state agencies and departments that have been assigned emergency functions and to all county sheriffs and emergency management coordinators.

2. The Iowa emergency plan serves as the state emergency response and recovery document.

3. The division updates the plan by amendments promulgated by rule according to Iowa Code chapter 17A and distributes amendments to all plan holders on the division distribution list.

4. The plan shall be available for public view at the Emergency Management Division, Hoover State Office Building, Des Moines, Iowa.

To maximize survival and preservation of life, property, and environment in the event of any natural or human–caused disaster, or major accident affecting any city or rural areas by making the best use of available personnel, equipment, facilities, and supplies or other resources.

This plan is intended to facilitate a coordinated response to, and recovery from, disasters in Iowa. It addresses activities that should take place predisaster, in response to an emergency and for recovery from the emergency. Barring special circumstances of state or federal preemption, local government has primary responsibility to arrange for personnel and equipment for emergency response to, and recovery from, disasters. Local and state government is encouraged to use a structured approach and standard terminology to coordinate activities. Industry, as well as state and federal agencies, should be involved with local government in the local planning process. State involvement in disaster response and recovery will occur on request or may be self–initiated in those instances where the problem exceeds local capability.

Preparation for coping with a disaster requires cooperative efforts of numerous agencies (local, state, and federal) and the private sector. Each level of government and state agencies should prepare plans consistent with this plan, train its people, and take such other steps as are required to ensure that it can carry out its responsibilities during a disaster in an efficient and effective manner.

The state organization which will respond to a disaster is structured to alter its capabilities in response to the type of hazard which triggers activation. Thus, for a disaster the state would provide a multiagency response within the context of the emergency responsibilities assigned in Tab G to Enclosure #2, page 40. For local emergency situations, the state could respond with routine day–to–day emergency response actions of one or two state agencies.

The scale of the response, skills brought to bear on the problem, and agencies participating in the emergency organization will be geared to the nature of each specific incident or disaster. The organizational structure of state government designed to provide this flexibility is shown in this Basic Plan, page 23.

State response is in support of local government response. Coordination with the federal government will be accomplished through a state coordinating officer.

In relation to other plans, this Basic Plan is part of the Iowa Emergency Plan and is consistent with Iowa Code chapter 29C. This plan as Part I, Iowa Emergency Plan, is a generic plan and responsibilities as listed in this plan apply to most disaster situations. Other parts of the Iowa Emergency Plan augment Part I. The information in other parts of the Iowa Emergency Plan will pertain specifically to the hazard for which that plan has been developed and should provide appropriate actions in the event that disaster occurs.

A. In any emergency or disaster, local governments will utilize all their resources first before requesting state assistance. If the scope of the disaster is beyond the obvious capabilities of local government resources, state resources may be immediately provided.

B. If local governments require state assistance, the various state departments/agencies will perform the necessary emergency functions as assigned by this plan and directed by the Governor.

C. The Governor will exercise direction and control of state emergency operations through the Director of Public Defense and the state Emergency Management Division Administrator.

D. The Governor will exercise direction and control of state emergency operations for civil disorders through the Commissioner of Public Safety and prison riots through the Director, Department of Corrections.

E. The Commissioner of Public Safety will coordinate the state’s resources in any civil disorder emergency and the Director of Department of Corrections will coordinate state resources for prison riots or relocating and housing prisoners in an emergency.

F. The Director of Information Technology Services will coordinate the restoration of data systems and network services.

G. The state Emergency Management Division Administrator shall provide for coordination between all state departments to ensure efficient and maximum emergency function response to a natural or human–caused disaster, except for civil disorder or prison riots.

H. The state Emergency Management Division Administrator is responsible for preparing, distributing, and keeping the Iowa Emergency Plan up to date.

I. Interdepartmental coordination of disaster preparedness planning and operational matters will be effected by a designated agency coordinator for planning and operational matters.

J. Public information is generally provided to the news media by the respective department or agency head during normal operations. When this plan is activated, all emergency public information will be released by the Governor’s Office or the Emergency Management Division Administrator acting for the Governor’s Office. All news or public information contacts to state government personnel will be referred to the Governor’s Office for action.

K. All state departments and agencies will retain their identities and autonomy throughout all levels of emergency coordination.

L. While evacuations will normally be the responsibility of the local government that is involved, the state Emergency Management Division Administrator may coordinate such movements. Decisions for evacuations will be made by the Governor or the local government involved. Except when immediate evacuation is imperative, or loss of life could result, the decision may be made by the local public official on scene.

M. Decisions for reentry of areas contaminated by hazardous substances will be made by the Incident Commander. When terrorist activities or biological contamination is suspected, supporting data and recommendations will be provided by the Department of Public Health, Department of Natural Resources, Emergency Management Division, University Hygienic Laboratory, nuclear facilities, or other responsible party, as appropriate.

N. Personnel monitoring and decontamination will be coordinated by the Incident Commander and supported by the state Department of Public Health. Contaminated clothing or other materials will be disposed of, if necessary, as directed by the Department of Natural Resources in coordination with nuclear facilities and the Nuclear Regulatory Commission. In a suspected biological terrorist incident, procedures for decontamination shall be coordinated with the Iowa Department of Public Health, Iowa National Guard, FBI and the CDC for transportation of cultures. Monitoring and decontamination will be coordinated by the Incident Command System.

O. Centralized coordination of support to local government and lead state agencies, as requested, of all phases of emergency operations will be effected through the state Emergency Operations Center (EOC).

P. Some situations may require the state to establish a forward command post in or near the disaster area. Once this decision is made, the Department of Public Safety, in cooperation with the Emergency Management Division, shall provide its mobile communication and command–post van and operations personnel. State departments and agencies with emergency responsibilities will send a liaison officer to operate from this location if necessary. Reports and information will be sent to the state EOC for evaluation and supportive actions. Established county or municipal EOCs may also be used for this purpose or other fixed facilities if available and properly equipped.

Q. State departments and agencies will coordinate and liaison will be established with their counterparts in the bordering states and supporting federal agencies to ensure effective responses and possible aid in emergencies.

R. State departments and agencies should enter into mutual aid and other written agreements with federal, state, local, and volunteer organizations, as appropriate, to provide for implementation of this plan.

A. The state Emergency Management Division Administrator, at the direction of the Governor, is responsible for:

1. Advising the Governor, state departments or agencies, and officials of local government of the nature, magnitude and effects of the emergency or disaster.

2. Coordinating all the elements of state government involved in an emergency operation.

3. Providing advice and assistance to state departments and agencies and local governments in developing and revising emergency operation plans.

4. Orienting and training the state emergency operations staff and conducting periodic exercises to test and evaluate this plan as required.

5. Coordinating with the Federal Emergency Management Agency, Region VII.

6. Maintaining a current list of state department and agency disaster coordinators.

7. Keeping this plan current and making distribution of the plan and changes thereto to appropriate state and federal departments and agencies and local governments.

8. Maintaining a file of Memorandums of Understanding.

9. Coordinating interstate emergency operations and planning.

10. Initiating such other actions deemed necessary to effectively implement this plan.

B. The head of each state department or agency with an assigned primary or support emergency function(s) as indicated in Tab F to Enclosure #2 to Basic Plan, page 39, shall:

1. Develop internal Emergency Operating Procedures (EOPs) for carrying out assigned primary and support functions on a current basis.

2. Review this plan annually and upgrade the department’s or agency’s EOP as necessary. One copy of the revised EOP shall be submitted to the state Emergency Management Division Administrator prior to the end of March of each year. During review, recommended plan revisions should be forwarded to the Emergency Management Division.

3. Assign and train operations personnel required to support agency assigned functions.

4. Designate appropriate personnel for the Emergency Operations Center staff as shown in this Basic Plan, pages 39 and 40, provide a list of names and position assignments to the state Emergency Management Division Administrator, and annually review the list in January and submit changes prior to the end of March.

5. Provide for procurement and management of resources necessary for emergency operations, except in a nuclear attack or terrorist incident. In exception, the Resources Priorities Board, under direction of the Governor, will manage resources in accordance with national policy.

6. Maintain a state agency contact for planning and operational matters who shall keep the agency aware of the current overall emergency management program of the state.

C. Assignment of emergency operation functional responsibilities. See Tab F to Enclosure #2, pages 39 and 40.

A. National Guard services should be requested by the sheriff or local government chief executive through the Emergency Management Division to the Governor. Military assistance, when provided, will complement and not be a substitute for state, county, or local government participation in emergency operations. Military forces will remain under military command at all times.

B. Local governments should have intra– and intercounty mutual aid agreements for mutual assistance.

C. Volunteer agency support may be available through the state Emergency Management Division.

D. Fire Control

Department of Public Safety

State Fire Marshal coordinates the state’s fire fighting resources under disaster conditions.

E. State Emergency Response Team (SERT)

1. Department of Public Defense

Provide personnel to serve as the Forward Coordinator of state response resources when requested by the Administrator, Emergency Management Division.

2. Department of Public Safety

Provide personnel to serve as the Forward Coordinator of state response resources when requested by the Administrator, Emergency Management Division.

3. All State Agencies

Provide operating personnel for state EOC and State Emergency Response Team as requested by the Administrator, Emergency Management Division.

605—9.2(29C) State resources management system. A resource management system shall be maintained by the division. The system contains an inventory of emergency–use resources from the private sector and state and local governments.

1. The division surveys private, state and local agencies for emergency–use resources.

2. In the event of a disaster or emergency, the division, upon request, provides information regarding the location and availability of needed resources.

605—9.3(29C) Cooperation with and support of the civil air patrol. The division shall cooperate with and support the civil air patrol in accordance with a memorandum of agreement between the division and the commander of the Iowa wing civil air patrol.

These rules are intended to implement Iowa Code chapter 29C.

Pursuant to the authority of Iowa Code sections 17A.3 and 29C.8, the Emergency Management Division proposes to rescind Chapter 7, “Local Emergency Management,” Iowa Administrative Code, and adopt a new Chapter 7 with the same title.

The adoption of the new chapter results from an extensive review of existing rules and implements a change in policy governing the state’s participation in funding financial assistance programs in a presidentially declared disaster. This change is the result of emergency management legislation contained in 1999 Iowa Acts, chapter 86.

Any interested person may make written comments or suggestions on these proposed rules on or before June 12, 2000. Such written materials should be sent to the Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319, or faxed to (515) 281–7539.

There will be a public hearing on these proposed rules on June 12, 2000, at 10 a.m., in the Emergency Management Division Conference Room, Hoover State Office Building, Des Moines, Iowa, at which time persons may present their views orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of these rules.

These rules were also Adopted and Filed Emergency and are published herein as ARC 9824A. The content of that submission is incorporated by reference.

These rules are intended to implement Iowa Code sections 29C.6 and 29C.8.

Pursuant to the authority of Iowa Code sections 17A.3 and 29C.8, the Emergency Management Division gives Notice of Intended Action to rescind Chapter 8, “Criteria for Awards or Grants,” Iowa Administrative Code, and adopt a new Chapter 8 with the same title.

By proposing this new chapter, the Emergency Management Division will implement policy ensuring equal access to and establishing the specific criteria for making awards and grants to eligible applicants.

Any interested person may make written comments or suggestions on the proposed rules on or before June 12, 2000. Such written materials should be sent to the Administrator, Emergency Management Division, Hoover State Office Building, Des Moines, Iowa 50319, or faxed to (515) 281–7539.

There will be a public hearing on the proposed rules on June 12, 2000, at 10 a.m., in the Emergency Management Division Conference Room, Hoover State Office Building, Des Moines, Iowa, at which time persons may present their views orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of these rules.

These rules are intended to implement Iowa Code sections 29C.8 and 29C.13.

The following rules are proposed.

Rescind 605—Chapter 8 and adopt the following new chapter in lieu thereof:

CHAPTER 8
CRITERIA FOR AWARDS OR GRANTS

605—8.1(29C,17A) Purpose. The emergency management division receives and distributes funds to a variety of entities throughout the state for support of emergency management planning, training, and other initiatives. Unless otherwise prohibited by state or federal law, rule or regulation, the administrator may make such funds subject to competition. Where such funds are designated by the administrator to be competitive, the division shall ensure equal access, objective evaluation of applicantions for these funds, and that grant application material shall contain, at a minimum, specific content.

605—8.2(29C,17A) Definitions. For the purpose of these rules, the following definitions shall apply:

“Administrator” means the administrator of the emergency management division within the Iowa department of public defense.

“Competitive grant” means the competitive grant application process to determine the grant award for a specified project period.

“Division” means the emergency management division of the Iowa department of public defense.

“Project” means the activity(ies) or program(s) funded by the division.

“Project period” means the period of time for which the division intends to support the project without requiring the recompetition of funds.

“Service delivery area” means the defined geographic area for delivery of project services.

605—8.3(29C,17A) Exceptions. The division considers funds subject to competition except in those cases where:

1. State or federal law, rule or regulation prohibits such competition.

2. The state, federal or private funding source specifies a sole source for the receipt of funds.

3. There is mutual agreement among the division and contract organizations.

4. The administrator designates such funds to be noncompetitive.

605—8.4(29C,17A) Public notice of available competitive grants. When making funds available through a competitive grant application process, the division shall, at least 60 days prior to the application due date, issue a public notice in the Iowa Administrative Bulletin that identifies the availability of funds and states how interested parties may request an application packet. A written request for the packet shall serve as the letter of intent. Services, delivery areas, and eligible applicants shall be described in the public notice.

If the receipt of a grantor’s official notice of award to the division precludes a full 60–day notice in the Iowa Administrative Bulletin, the division shall nonetheless issue the public notice in the Iowa Administrative Bulletin at the earliest publication date.

In the event the publication date would not allow at least 30 days for interested parties to request and submit an application packet, the division shall notify current contractors and other interested parties of the availability of funds through press releases and other announcements.

605—8.5(29C,17A) Requirements. Where funds are designated as competitive, the following shall be included in all grant application materials made available by the division:

1. Funding source;

2. Project period;

3. Services to be delivered;

4. Service delivery area;

5. Funding purpose;

6. Funding restrictions;

7. Funding formula (if any);

8. Matching requirements (if any);

9. Reporting requirements;

10. Performance criteria;

11. Description of eligible applicants;

12. Need for letters of support or other materials (if applicable);

13. Application due date;

14. Anticipated date of award;

15. Eligibility guidelines for those receiving the service or product and the source of those guidelines, including fees or sliding fee scales (if applicable);

16. Target population to be served (if applicable); and

17. Appeal process in the event an application is denied.

605—8.6(29C,17A) Review process (competitive applications only). The review process to be followed in determining the amount of funds to be approved for award of a contract shall be described in the application material. The review criteria and point allocation for each element shall also be described in the grant application material.

The competitive grant application review committee shall be determined by the division bureau chief administering the grant or award, with oversight from the administrator. The review committee members shall apply points per the established review criteria in conducting the review.

In the event competitive applications for a project receive an equal number of points, a second review shall be conducted by the administrator and the bureau chief administering the grant or award.

605—8.7(29C,17A) Opportunity for review and comment. Program advisory committees or related task forces of the program may be provided with an opportunity to review and comment on the criteria and point allocation prior to implementation. Exceptions may occur when the funding source to the division has already included such criteria and point allocation within the award or the time frame allowed is insufficient for such review and comment.

605—8.8(29C,17A) Awards. Once applications have been scored and ranked, the division shall award all available funds to eligible applicants based on the ranking of their applications. Should there be more eligible applications than funds available, those remaining eligible applications shall be kept on file by the division.

In those cases in which applicants have received an award but actual project costs are less than anticipated or established in the application, remaining funds shall become de–obligated funds. The division shall award deobligated funds to remaining eligible applications on file with the division. Should deobligated funds remain after satisfying all eligible applications, the division shall republish the availability of funds.

These rules are intended to implement Iowa Code chapters 17A and 29C.13.

Pursuant to the authority of Iowa Code sections 455B.105 and 455B.173, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 61, “Water Quality Standards,” Iowa Administrative Code.

Under the provisions of the federal Clean Water Act, states are required to undertake a comprehensive review of their water quality standards every three years. During 1999, the Department of Natural Resources, Environmental Protection Division, solicited public input on existing standards to begin the comprehensive review process. Based on the public comments as well as Environmental Protection Agency (EPA) comments, the Department developed a list of issues identified as needing changes and began developing issue papers for discussion and consideration with a water quality standards Technical Advisory Committee (TAC). The amendments being proposed address some of the issues identified to date. As the remaining issues are addressed and resolved by Department staff and the TAC, additional changes will be proposed.

Additional information on Iowa’s Water Quality Standards can be found on the Department’s Web site at http:// www.state.ia.us/government/dnr/organiza/epd/prgrmdsc/wtrqual/sum.htm.

The amendments now being proposed will, if adopted: (1) modify the ammonia nitrogen criteria for aquatic life protection; (2) modify the descriptive basis for the Class C criteria; (3) allow for consideration of total residual chlorine (TRC) demand in the mixing zone; (4) establish procedures for seasonal ammonia limits; (5) modify the critical low stream flows referenced in the standards; (6) modify the stream use designations for several waterbodies; and (7) modify the aquatic life criteria for aluminum, mercury, dieldrin, endrin, lindane, pentachlorophenol, silver and toxaphene.

In December 1999, the EPA finalized a new guidance document for ammonia. The new guidelines incorporate new toxicity data for various aquatic species and new procedures to implement the acute and chronic criteria. For Iowa, implementation of the ammonia criteria is proposed to include considerations for the time when sensitive versus nonsensitive life stages are present in the waterbodies. The months when sensitive life stages are present are specifically listed for each aquatic life use designation. Thus, the proposed amendment will rescind subrule 61.3(3), Tables 3a, 3b, and 3c, regarding criteria for ammonia nitrogen, and adopt new tables in lieu thereof to reflect the EPA’s new national guidelines.

Amendments to items associated with the implementation of the Class C drinking water criteria are also proposed. First, paragraph 61.2(4)“c,” regarding regulatory mixing zones, will be modified to state that the maximum contaminate level (MCL) will be met at the boundary of the allowed mixing zone. Second, subrule 61.3(3), Table 1, regarding criteria for chemical constituents, will be relabeled and amended to identify the basis of the Class C criteria, whether a criterion is based on the drinking water maximum contaminant level (MCL) or the consumption of fish or fish and water.

The rule–referenced document “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, as revised on March 20, 1990, is proposed to be modified to provide procedures for considering the total residual chlorine demand within the mixing zone. Additional guidance is being provided on establishing site–specific demand values. The guidance addresses the analytical procedure to establish the TRC demand, the number of tests to be performed, and seasonal and stream flow restrictions.

In addition, the rule–referenced document is proposedto be modified to allow the department to establish water quality–based ammonia nitrogen limits using a seasonal grouping of months or individual monthly limits, including the consideration of the presence or absence of sensitive aquatic life stages. The grouping of months in each season may vary with each wastewater treatment facility. This will provide permittees with greater flexibility in complying with their ammonia limits while still meeting water quality standards.

In subrule 61.2(5), amendments to various items associated with the critical low stream flows used in the implementation of the standards are proposed. Based on EPA guidance, the critical low flow conditions will be modified to reflect the same statistical basis for which the numerical criteria were established. Specifically, numerous citations in rules 567— 61.2(455B) and 61.3(455B) will be linked to a table referencing the four new critical low stream flow regimes to be used in the standards.

The designated uses in paragraph 61.3(5)“e,” about surface water classification, are proposed to be modified for one stream, South Cedar Creek, tributary to the Turkey River, and add a warm water designation for three streams, Muchakinock Creek in Mahaska Co., Bear Creek in Benton/Buchanan Co., and Winnebago Creek in Allamakee Co., for four newly constructed state lakes and for three lakes inadvertently omitted from the 1990 rule modifications. The proposed modification to South Cedar Creek would replace the upper 1–mile reach of the Class B(CW) cold water designation with Class B(LR) limited resource warm water designation. This replacement reflects the aquatic life species found in this upper reach and the natural limitations of the creek but will not impact the Class B(CW) designation in the lower spring–fed reach. Muchakinock, Bear and Winnebago Creeks are recommended for Class B(LR) limited resource warm water designations to reflect the aquatic life species found in these reaches. The newly constructed lakes of Three Mile Lake, Beaver Lake, Lake Sugema, and Brushy Creek Lake are proposed to be designated as Class B(LW) lake/wetland waters along with the three omitted lakes of Mystic Reservoir, Littlefield Lake and Wiese Slough. In addition, several corrections are being made to current entries in paragraph 61.3(5)“e” where errors or omissions were noted.

In subrule 61.3(3), Table 1, the Aquatic Life Criteria for aluminum, mercury, dieldrin, endrin, lindane, pentachlorophenol, toxaphene, and silver are proposed to be modified. The existing numerical criteria do not reflect the current aquatic toxicity data or were incorrectly calculated in the revisions to rules from 1990 to 1994.

Any person may submit written suggestions or comments on the proposed amendments through June 30, 2000. Such written material should be submitted to Ralph Turkle, Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, Iowa 50319–0034, by fax (515)281–8895 or by E–mail at ralph.turkle@dnr.state.ia.us. Persons who have questions may contact Ralph Turkle at (515)281–7025.

Persons are invited to present oral or written comments at public hearings which will be held as follows:

June 8, 2000

10 a.m. — Iowa City Public Library,
Meeting Room A, 123 S. Linn St.,
Iowa City

4 p.m. — Decorah City Hall Meeting Room,
400 Claiborne Drive, Decorah

June 12, 2000

11 a.m. — Cherokee Community Center,
530 W. Bluff St., Cherokee

7 p.m. — Clear Lake Community Meeting Room,
15 N. Sixth St., Clear Lake

June 15, 2000

11 a.m. — Municipal Utilities Conference Room,
15 W. Third St., Atlantic

June 16, 2000

1 p.m. — Wallace State Office Building,
Fifth Floor Conference Room, West Half,
900 East Grand Ave., Des Moines

Copies of Environmental Protection Commission rules may be obtained from Cecilia Nelson, Records Center, Iowa Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, Iowa 50319–0034.

These amendments may have an impact upon small businesses.

These amendments are intended to implement Iowa Code chapter 455B, division III, part 1.

The following amendments are proposed.

ITEM 1. Amend subrule 61.2(4) as follows:

Amend paragraph “a” as follows:

a. Due to extreme variations in wastewater and receiving water characteristics, spatial dimensions of mixing zones shall be defined on a site–specific basis. These rules are not intended to define each individual mixing zone, but will set maximum limits which will satisfy most biological, chemical, physical and radiological considerations in defining a particular mixing zone. Additional details are noted in the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July1976, as revised on March 20, 1990 effective date of revised document, for considering unusual site–specific features such as side channels and sand bars which may influence a mixing zone. Applications for operation permits under 567—subrule 64.3(1) may be required to provide specific information related to the mixing zone characteristics below their outfall so that mixing zone boundaries can be determined.

Amend paragraph “b,” introductory paragraph, as follows:

b. For parameters included in Table 1 only (which does not include ammonia nitrogen), the dimensions of the mixing zone and the zone of initial dilution will be calculated using a mathematical model presented in the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document, or from instream studies of the mixing characteristics during low flow. In addition, the most restrictive of the following factors will be met:

Further amend paragraph “b,” subparagraph (1), as follows:

(1) The stream flow in the mixing zone may not exceed the most restrictive of the following:

1. Twenty–five percent of the seven–day, ten–year design low stream flow flows noted in subrule 61.2(5) for interior streams and rivers, and the Big Sioux and Des Moines Rivers.

2. Ten percent of the seven–day, ten–year design low stream flow flows noted in subrule 61.2(5) for the Mississippi and Missouri Rivers.

3. The stream flow contained in the mixing zone at the most restrictive of the applicable mixing zone length criteria, noted below.

Amend paragraph “c” as follows:

c. The stream flow used in determining wasteload allocations to ensure compliance with the maximum contaminant level (MCL), chronic and human health criteria of Table 1 will be that value contained at the boundary of the allowed mixing zone. This stream flow may not exceed the following percentages of the seven–day, ten–year design low stream flow as measured at the point of discharge:

(1) Twenty–five percent for interior streams and rivers, and the Big Sioux and Des Moines Rivers.

(2) Ten percent for the Mississippi and Missouri Rivers.

The stream flow in the zone of initial dilution used in determining effluent limits to ensure compliance with the acute criteria of Table 1 may not exceed 10 percent of the calculated flow associated with the mixing zone.

Amend paragraph “d,” subparagraph (4), as follows:

(4) A discharger to interior streams and rivers, the Big Sioux and Des Moines Rivers, and the Mississippi or Missouri Rivers may provide to the department, for consideration, instream data which technically supports the allowance of an increased percentage of the stream flow contained in the mixing zone due to rapid and complete mixing. Any allowed increase in mixing zone flow would still be governed by the mixing zone length restrictions. The submission of data should follow the guidance provided in the “Supporting Document for Iowa Water Quality Management Plans,” (Iowa Department of Water, Air and Waste Management, Chapter IV, July 1976, as revised on March 20, 1990) effective date of revised document.

Amend paragraph “e,” introductory paragraph, as follows:

e. For ammonia criteria noted in Table 3, the dimensions of the mixing zone and the zone of initial dilution will be calculated using a mathematical model presented in the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document, or from instream studies of the mixing characteristics during low flow. In addition, the most restrictive of the following factors will be met:

Further amend paragraph “e,” subparagraph (1), as follows:

(1) The stream flow in the mixing zone may not exceed the most restrictive of the following:

1. One hundred percent of the seven–day, ten–year design low stream flow flows noted in subrule 61.2(5) for locations where the dilution ratio is less than or equal to 2:1.

2. Fifty percent of the seven–day, ten–year design low stream flow flows noted in subrule 61.2(5) for locations where the dilution ratio is greater than 2:1, but less than or equal to 5:1.

3. Twenty–five percent of the seven–day, ten–year design low stream flow flows noted in subrule 61.2(5) for locations where the dilution ratio is greater than 5:1.

4. The stream flow contained in the mixing zone at the most restrictive of the applicable mixing zone length criteria, noted below.

Amend paragraph “f” as follows:

f. For ammonia criteria noted in Table 3, the stream flow used in determining wasteload allocations to ensure compliance with the chronic criteria of Table 3 will be that value contained at the boundary of the allowed mixing zone. This stream flow may not exceed the percentages of the seven–day, ten–year design low stream flow noted in 61.2(4)“e”(1) as measured at the point of discharge.

The pH and temperature values at the boundary of the mixing zone used to select the chronic ammonia criteria of Table 3 will be from one of the following sources. The source of the pH and temperature data will follow the sequence listed below, if applicable data exists from the source.

(1) Specific pH and temperature data provided by the applicant gathered at their mixing zone boundary. Procedures for obtaining this data are noted in the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document.

(2) Regional background pH and temperature data provided by the applicant gathered along the receiving stream and representative of the background conditions at the outfall. Procedures for obtaining this data are noted in the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document.

(3) The statewide average background values presented in Table IV–5 of the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document.

The stream flow in the zone of initial dilution used in determining effluent limits to ensure compliance with the acute criteria of Table 3 may not exceed 5 percent of the calculated flow associated with the mixing zone for facilities with a dilution ratio of less than or equal to 2:1, and not exceed 10 percent of the calculated flow associated with the mixing zone for facilities with a dilution ratio of greater than 2:1. The pH and temperature values at the boundary of the zone of initial dilution used to select the acute ammonia criteria of Table 3 will be from one of the following sources and follow the sequence listed below, if applicable data exists from the source.

1. Specific effluent pH and temperature data if the dilution ratio is less than or equal to 2:1.

2. If the dilution ratio is greater than 2:1, the logarithmic average pH of the effluent and the regional or statewide pH provided in 61.2(4)“f” will be used. In addition, the flow proportioned average temperature of the effluent and the regional or statewide temperature provided in 61.2(4)“f” will be used. The procedures for calculating these data are noted in the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document.

Amend paragraph “g,” subparagraph (4), as follows:

(4) A discharger to interior streams and rivers, the Big Sioux and Des Moines Rivers, and the Mississippi and Missouri Rivers may provide to the department, for consideration, instream data which technically supports the allowance of an increased percentage of the stream flow contained in the mixing zone due to rapid and complete mixing. Any allowed increase in mixing zone flow would still be governed by the mixing zone length restrictions. The submission of data should follow the guidance provided in the “Supporting Document for Iowa Water Quality Management Plans,” (Iowa Department of Water, Air and Waste Management, Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document).

ITEM 2. Amend subrule 61.2(5), introductory paragraph, as follows:

61.2(5) Implementation strategy. Numerical criteria specified in these water quality standards shall be met when the flow of the receiving stream equals or exceeds the seven–day, ten–year design low flow flows noted below.

Exceptions may be made for intermittent or low flow streams classified as significant resource warm waters or limited resource warm waters. For these waters, the department may waive the seven–day, ten–year design low flow requirement and establish a minimum flow in lieu thereof. Such waiver shall be granted only when it has been determined that the aquatic resources of the receiving waters are of no significance at flows less than the established minimum, and that the continued maintenance of the beneficial uses of the receiving waters will be ensured. In no event will toxic conditions be allowed to occur in the receiving waters outside of mixing zones established pursuant to subrule 61.2(4). The policy for granting waivers is described in the “Supporting Document for Iowa Water Quality Management Plans,” (Iowa Department of Water, Air and Waste Management, Chapter IV, July 1976, as revised on March 20, 1990 effective date of revised document). (Copies are available upon request to the Department of Natural Resources, Henry A. Wallace Building, 900 East Grand, Des Moines, Iowa 50319–0034. Copy also on file with the Iowa Administrative Rules Coordinator.)

ITEM 3. Amend subrule 61.3(3), paragraph “b,” subparagraph (3), numbered paragraph “2,” as follows:

2. The chronic criteria represent the level of protection necessary to prevent chronic toxicity to aquatic life. Excursions above the chronic criteria will be allowed only inside of mixing zones or only for short–term periods outside of mixing zones; however, these excursions cannot exceed the acute criteria shown in Tables 1 and 3. The chronic criteria will be met as short–term average conditions at all times the flow equals or exceeds either the seven–day, ten–year flow design flows noted in subrule 61.2(5) or any site–specific low flow established under the provisions of subrule 61.2(5).

ITEM 4. Amend subrule 61.3(3), paragraph “b,” by adopting the following new subparagraph (6):

(6) Early life stage for each use designation. The following seasons will be used in applying the early life stage present chronic criteria noted in Table 3b, “Chronic Criterion for Ammonia in Iowa Streams – Early Life Stages Present.”

1. For all Class B(CW) waters, the early life stage will be year–round.

2. For all Class B(WW) significant resource waters, the early life stage will begin in March and last through September except the following:

• For the following, the early life stage will begin in February and last through September:

—The entire length of the Mississippi and Missouri Rivers,

—The lower reach of the Des Moines River south of the Ottumwa dam, and

—The lower reach of the Iowa River below the Cedar River.

• For the following, the early life stage will begin in April and last through September:

—All Class B(WW) waters in the Southern Iowa River Basin,

—All of the Class B(WW) reach of the Skunk River, the North Skunk River and the South Skunk River south of Indian Creek (Jasper County), and the Class B(WW) tributaries to these reaches, and

—The entire Class B(WW) reach of the English River.

3. For all Class B(LR) waters, the early life stage will begin in April and last through September.

4. For all Class B(LW) lake and wetland waters, the early life stage will begin in March and last through September except for the Class B(LW) waters in the southern two tiers of Iowa counties which will have the early life stage of April through September.

ITEM 5. Amend subrule 61.3(3), Table 1, “Criteria For Chemical Constituents,” as follows:

Table 1: Criteria For Chemical Constituents

(all values as micrograms per liter unless noted otherwise)

Human health criteria for carcinogenic parameters noted below were based on the prevention of an incremental cancer risk of 1 in 100,000. For parameters not having a noted human health criteria criterion, the U.S. Environmental Protection Agency has not developed final national human health guideline values. For noncarcinogenic parameters, the recommended EPA criterion was selected. For Class C waters, the EPA criteria for fish and water consumption were selected using the same considerations for carcinogenic and noncarcinogenic parameters noted above. For Class C waters where no EPA human health criteria were available, the EPA MCL value was selected.