Pages 268 to 297 include ARC 0879B to ARC 0895B

Administrative rules review committee 258

Filed, Waiver or variance of rules, ch 8
ARC 0894B 293

Schedule for rule making 256

Publication procedures 257

Administrative rules on CD–ROM 257

Agency identification numbers 266

Notice, Uniform waiver and variance rules,
ch 12 ARC 0890B 268

CITATION OF ADMINISTRATIVE RULES 255

Notice 271

Filed, Waiver rules, ch 9 ARC 0895B 293

Filed, Dental or dental hygiene licensure—
WREB examination option, 11.1, 11.2(2),
11.4, 11.5(2), 12.1, 12.2, 12.3(2), 12.4(5),
12.5 ARC 0880B 293

Filed, Dental assistants—expanded function
registration, 20.6(3) ARC 0879B 295

Notice, Oil, gas, and metallic minerals,
50.1, 50.2, 51.1(2), 51.6(8), 51.7, 51.11,
51.15(1) ARC 0886B 271

Notice, Medicaid—application and eligibility
determination process, 50.2(3), 50.4,
75.1(35), 75.21(5), 75.22(1), 75.25, 76.1,
76.7, 76.10(5), 76.12(7), 76.13 ARC 0881B 272

Notice, Rent subsidy program, 53.1 to 53.3,
53.5(2) ARC 0882B 274

Notice, Interim assistance reimbursement
program, 57.1, 57.2, 57.6, 57.7
ARC 0883B 275

Notice, Graduate medical education and
disproportionate share fund payments,
79.1 ARC 0884B 277

Notice, Medicaid providers, 79.2(3), 79.6 to
79.8, 79.14 ARC 0885B 278

Notice, Bingo and raffle prize limits; net receipt
determination, 100.6, 100.34, 102.2(3)
ARC 0892B 279

Notice—Workers’ compensation rate filing 280

Notice, Update—director’s office address
and telephone number, 174.5 ARC 0893B 280

Summarized list 261

Public Notice 280

Filed, Update of technical specifications;
clarification of payment methods and
accompanying rates, 12.76, 12.82(8),
12.83, 12.84(1) ARC 0891B 295

Notice—Public funds interest rates 281

Notice, Generation plant siting, 24.1,
24.2, 24.3(2), 24.4, 24.6(2), 24.7(6),
24.8 to 24.16 ARC 0889B 281

Notice, Competitive bidding programs,
ch 40 ARC 0888B 287

Filed, Estimation and proration of natural
gas bills, 19.3(8), 19.10(3) ARC 0887B 296

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.

The Bulletin may also contain Public Funds Interest Rates [12C.6]; Workers’ Compensation Rate Filings [515A.6(7)]; Usury [535.2(3)“a”]; Agricultural Credit Corporation Maximum Loan Rates [535.12]; and Regional Banking—Notice of Application and Hearing [524.1905(2)].

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

Subscriptions and Distribution Telephone: (515)242–5120
Fax: (515)242–5974

KATHLEEN K. BATES, Administrative Code Editor Telephone: (515)281–3355

STEPHANIE A. HOFF, Assistant Editor (515)281–8157

Fax: (515)281–4424

The Iowa Administrative Bulletin is sold as a separate publication and may be purchased by subscription or single copy. All subscriptions will expire on June 30 of each year. Subscriptions must be paid in advance and are prorated quarterly.

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Single copies may be purchased for $20.50 plus $1.23 sales tax.

The Iowa Administrative Code and Supplements are sold in complete sets and subscription basis only. All subscriptions for the Supplement (replacement pages) must be for the complete year and will expire on June 30 of each year.

Prices for the Iowa Administrative Code and its Supplements are as follows:

Iowa Administrative Code - $1,252.75 plus $75.17 sales tax

(Price includes 22 volumes of rules and index, plus a one–year subscription to the Code Supplement and the Iowa Administrative Bulletin. Additional binders may be purchased for $11.75 plus $.71 sales tax.)

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All checks should be made payable to the Iowa State Printing Division. Send all inquiries and subscription orders to:

Department of General Services

Rules will not be accepted after 12 o’clock noon on the Friday filing deadline days unless prior approval has been received from the Administrative Rules Coordinator’s office.

If the filing deadline falls on a legal holiday, submissions made on the following Monday will be accepted.

TO: Administrative Rules Coordinators and Text Processors of State Agencies

FROM: Kathleen K. Bates, Iowa Administrative Code Editor

SUBJECT: Publication of Rules in Iowa Administrative Bulletin

The Administrative Code Division uses Interleaf 6 to publish the Iowa Administrative Bulletin and can import documents directly from most other word processing systems, including Microsoft Word, Word for Windows (Word 7 or earlier), and WordPerfect.

1. To facilitate the publication of rule–making documents, we request that you send your document(s) as an attachment(s) to an E–mail message, addressed to both of the following:

bruce.carr@legis.state.ia.us and

kathleen.bates@legis.state.ia.us

2. Alternatively, you may send a PC–compatible diskette of the rule making. Please indicate on each diskette the following information: agency name, file name, format used for exporting, and chapter(s) amended. Diskettes may be delivered to the Administrative Code Division, First Floor South, Grimes State Office Building, or included with the documents submitted to the Governor’s Administrative Rules Coordinator.

Please note that changes made prior to publication of the rule–making documents are reflected on the hard copy returned to agencies by the Governor’s office, but not on the diskettes; diskettes are returned unchanged.

Your cooperation helps us print the Bulletin more quickly and cost–effectively than was previously possible and is greatly appreciated.

Containing: Iowa Administrative Code (updated through December 2000)
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For free brochures and order forms contact:

Legislative Service Bureau
Attn: Ms. Stephanie Runde
State Capitol
Des Moines, Iowa 50319
Telephone: (515)281–3566 Fax: (515)281–8027
lsbinfo@legis.state.ia.us

The Administrative Rules Review Committee will hold its regular statutory meeting on Tuesday, September 11, 2001, at 10 a.m. and Wednesday, September 12, 2001, at 9 a.m. in Room 116, State Capitol, Des Moines, Iowa. The following rules will be reviewed:

HUMAN SERVICES DEPARTMENT[441] (Cont’d)

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.

Divisions (boards, commissions, etc.) are indented and set out in lowercase type under their statutory “umbrellas.”

Other autonomous agencies which were not included in the original reorganization legislation as “umbrella” agencies are included alphabetically in small capitals at the left–hand margin, e.g., BEEF INDUSTRY COUNCIL, IOWA[101].

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

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]

INFORMATION TECHNOLOGY DEPARTMENT[471]

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 sections 524.213 and 17A.9A and Executive Order Number 11, the Banking Division hereby gives Notice of Intended Action to adopt Chapter 12, “Uniform Waiver and Variance Rules,” Iowa Administrative Code.

These rules describe the procedures for applying for, issuing, or denying waivers and variances from Division rules. The purpose of these rules is to comply with Iowa Code section 17A.9A and Executive Order Number 11 which requires state agencies to adopt a uniform waiver rule.

Public comments concerning the proposed rules will be accepted until 4:30 p.m. on September 11, 2001. Interested persons may submit written or oral comments to the Superintendent of Banking, Banking Division, Department of Commerce, 200 East Grand Avenue, Suite 300, Des Moines, Iowa 50309–1827; telephone (515)281–4014.

Also, a public hearing will be held on Tuesday, September 11, 2001, at 10 a.m. in the Banking Division Conference Room at 200 East Grand Avenue, Des Moines, Iowa. Persons may present their views at this public hearing either orally or in writing. Persons who wish to make oral presentations at the public hearing should contact the Superintendent of Banking at least one day prior to the date of the public hearing.

These rules are intended to implement Iowa Code section 17A.9A and Executive Order Number 11.

The following new chapter is proposed.

CHAPTER 12
UNIFORM WAIVER AND VARIANCE RULES

187—12.1(17A,ExecOrd11) Scope of chapter. This chapter outlines a uniform process for the granting of waivers or variances from rules adopted by the superintendent in situations where no other more specifically applicable law provides for waivers. The intent of this chapter is to allow persons to seek exceptions to the application of rules issued by the superintendent. This chapter shall not apply to rules that merely define the meaning of a statute or other provision of law or precedent if the division does not possess delegated authority to bind the courts to any extent with its definition. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

12.1(1) Definitions.

“Person” means an individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any legal entity.

“Superintendent” means the superintendent of banking appointed by the governor to direct and regulate banks pursuant to Iowa Code chapter 524.

“Waiver or variance” means an agency action which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person.

12.1(2) Applicability.

a. The superintendent may grant a waiver or variance from a rule adopted by the superintendent only if (1) the superintendent has jurisdiction over the rule; (2) no statute or rule otherwise controls the granting of a waiver or variance from the rule from which waiver or variance is requested; and (3) the requested waiver or variance is consistent with applicable statutes, constitutional provisions, or other provisions of law.

b. No waiver or variance may be granted from a requirement which is imposed by statute.

187—12.2(17A,ExecOrd11) Superintendent discretion. The decision on whether the circumstances justify the granting of a waiver or variance shall be made at the discretion of the superintendent upon consideration of all relevant factors. Each petition for a waiver or variance shall be evaluated by the superintendent based on the unique, individual circumstances set out in the petition.

12.2(1) Criteria for waiver or variance. The superintendent may, in response to a completed petition or on the superintendent’s own motion, grant a waiver or variance from a rule, in whole or in part, as applied to the circumstances of a specified situation if the superintendent finds all of the following:

a. The application of the rule would result in an undue hardship on the person for whom the waiver or variance is requested;

b. The waiver or variance from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

c. The provisions of the rule subject to the petition for waiver are not specifically mandated by statute or another provision of law; and

d. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver or variance is requested.

In determining whether a waiver or variance should be granted, the superintendent shall consider the public interest, policies and legislative intent of the statute on which the rule is based. When the rule from which a waiver or variance is sought establishes administrative deadlines, the superintendent shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

12.2(2) Special waiver or variance rules not precluded. These uniform waiver and variance rules shall not preclude the superintendent from granting waivers or variances in other contexts if a statute or other rule authorizes the superintendent to do so and the superintendent deems it appropriate to do so.

12.3(1) Application. All petitions for waiver or variance must be submitted in writing to the Banking Division, 200 East Grand Avenue, Suite 300, Des Moines, Iowa 50309. If the petition relates to a pending contested case, a copy of the petition shall also be filed in the contested case proceeding.

12.3(2) Content of petition. A petition for waiver or variance shall include the following information where applicable and known to the requester (for an example of a petition for waiver or variance, see Exhibit A at the end of this chapter):

a. A description and citation of the specific rule from which a waiver or variance is requested.

b. The specific waiver or variance requested, including the precise scope and operative period that the waiver or variance will extend.

c. The relevant facts that the petitioner believes would justify a waiver or variance under each of the four criteria specified in subrule 12.2(1).

d. A signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver or variance.

e. A history of any prior contacts between the superintendent and the petitioner relating to the regulated activity, license, grant, loan or other financial assistance affected by the proposed waiver or variance, including a description of each affected license, grant, loan or other financial assistance held by the requester, any notices of violation, contested case hearings, or investigative or examination reports relating to the regulated activity, license, grant or loan within the past five years.

f. Any information known to the requester regarding the treatment of similar cases by the superintendent.

g. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver or variance.

h. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

i. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver or variance.

j. Signed releases of information authorizing persons with knowledge regarding the request to furnish the superintendent with information relevant to the waiver or variance.

12.3(3) Burden of persuasion. When a petition is filed for a waiver or variance from a rule, the burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the superintendent should exercise the superintendent’s discretion to grant the petitioner a waiver or variance.

187—12.4(17A,ExecOrd11) Notice. The superintendent shall acknowledge a petition upon receipt. The superintendent shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the superintendent may give notice to other persons. To accomplish this notice provision, the superintendent may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the superintendent attesting that notice has been provided.

12.5(1) Additional information. Prior to issuing an order granting or denying a waiver or variance, the superintendent may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the superintendent may, on the superintendent’s own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the superintendent or the superintendent’s designee.

12.5(2) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply in three situations: (a) to any petition for a waiver or variance of rule filed within a contested case; (b) when the superintendent so provides by rule or order; or (c) when a statute so requires.

12.5(3) Ruling. An order granting or denying a waiver or variance shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative period of the waiver if one is issued.

12.5(4) Conditions. The superintendent may place any condition on a waiver or variance that the superintendent finds desirable to protect the public health, safety, and welfare.

12.5(5) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

12.5(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the superintendent, a waiver may be renewed if the superintendent finds that grounds for a waiver continue to exist.

12.5(7) Time for ruling. The superintendent shall grant or deny a petition for a waiver or variance as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the superintendent shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

12.5(8) When deemed denied. Failure of the superintendent to grant or deny a petition within the required time period shall be deemed a denial of that petition by the superintendent.

12.5(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

187—12.6(17A,ExecOrd11) Public availability. All orders granting or denying waivers and variances under this chapter shall be indexed, filed and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver or variance and orders granting or denying a waiver or variance petition are public records under Iowa Code chapter 22. Some petitions or orders may contain in–formation that the superintendent is authorized or required to keep confidential. The superintendent may accordingly redact confidential information from petitions or orders prior to public inspection.

187—12.7(17A,ExecOrd11) Voiding or cancellation. A waiver or variance is void if the material facts upon which the request or petition is based are not true or if material facts have been withheld. A waiver or variance issued by the superintendent pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and opportunity for hearing, the superintendent issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with any conditions contained in the order.

187—12.8(17A,ExecOrd11) Violations. Violation of conditions in the waiver or variance order is the equivalent of violation of the particular rule for which the waiver or variance is granted and is subject to the same remedies or penalties.

187—12.9(17A,ExecOrd11) Defense. After the superintendent issues an order granting a waiver or variance, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

187—12.10(17A,ExecOrd11) Appeals. Granting or denying a request for waiver or variance is final agency action under Iowa Code chapter 17A. An appeal to district court shall be taken within 30 days of the issuance of the order in response to the request unless a contrary time is provided by rule or statute.

187—12.11(17A,ExecOrd11) Summary reports. Semiannually, the superintendent shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the superintendent’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

Exhibit A
Sample Petition (Request) for Waiver/Variance

A request for waiver or variance from a rule adopted by the superintendent shall include the following information in the petition for waiver or variance where applicable and known:

a. Provide the petitioner’s (person asking for a waiver or variance) name, address, and telephone number.

b. Describe and cite the specific rule from which a waiver or variance is requested.

c. Describe the specific waiver or variance requested; include the exact scope and operative time period that the waiver or variance will extend.

d. Explain the important facts that the petitioner believes justify a waiver or variance. Include in your answer (1) why applying the rule will result in undue hardship on the petitioner; and (2) how granting the waiver or variance will not prejudice the substantial legal rights of any person; and (3) that the provisions of the rule subject to the petition for waiver are not specifically mandated by statute or another provision of law; and (4) where applicable, how substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver or variance is requested.

e. Provide a history of prior contacts between the superintendent and petitioner relating to the regulated activity, license, grant, loan or other financial assistance that would be affected by the waiver or variance; include a description of each affected license, grant, loan or other financial assistance held by the petitioner, any notices of violation, contested case hearings, or investigative or examination reports relating to the regulated activity, license, grant or loan within the past five years.

f. Provide information known to the petitioner regarding the treatment by the superintendent of similar cases.

g. Provide the name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver or variance.

h. Provide the name, address, and telephone number of any person or entity that would be adversely affected or disadvantaged by the granting of the waiver or variance.

i. Provide the name, address, and telephone number of any person with knowledge of the relevant or important facts relating to the requested waiver or variance.

j. Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the superintendent with information relevant to the waiver or variance.

I hereby attest to the accuracy and truthfulness of the above information.

_____________________________ _______________

Petitioner’s signature Date

Petitioner should note the following when requesting or petitioning for a waiver or variance:

1. The petitioner has the burden of proving to the superintendent, by clear and convincing evidence, the following: (a) application of the rule to the petitioner would result in an undue hardship on the petitioner; and (b) waiver or variance in the specific case would not prejudice the substantial legal rights of any person; and (c) the provisions of the rule subject to the petition for waiver are not specifically mandated by statute or another provision of law; and (d) where applicable, how substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver or variance is requested.

2. The superintendent may request additional information from or request an informal meeting with the petitioner prior to issuing a ruling granting or denying a request for waiver or variance.

3. All petitions for waiver or variance must be submitted in writing to the Banking Division, 200 East Grand Avenue, Suite 300, Des Moines, Iowa 50309. If the petition relates to a pending contested case, a copy of the petition shall also be filed in the contested case proceeding.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

Pursuant to 361—subrule 12.2(1), Iowa Administrative Code, the Executive Council gives Notice that the CivilReparations Trust Fund balance as of June 30, 2001, was $2,010.00. Money in the Civil Reparations Trust Fundis available for use for indigent civil litigation programsor insurance assistance programs. Application forms are available in the office of the State Treasurer by contacting GeorgAnna Madsen, Administrative Secretary, State Capitol, Room 114, Des Moines, Iowa 50319; telephone (515)281–5368. Applications must be filed on the thirtieth day after the date of publication of this Notice in the Iowa Administrative Bulletin, or on the thirtieth day after the date affixed to the Notice sent by first–class mail, whicheveris later. Any person/company that would like to receive future notices should make request in writing to the above–mentioned contact. Rules regarding the Civil Reparations Trust Fund can be found at 361 IAC Chapter 12.

Pursuant to the authority of Iowa Code section 458A.4, the Director of the Department of Natural Resources gives Notice of Intended Action to amend Chapter 50, “General,” and Chapter 51, “Oil, Gas, and Metallic Minerals,” Iowa Administrative Code.

The purpose of this rule making is to make minor clarifications to the existing rule language. This action is being taken as part of the Department’s administrative rules review process related to the Governor’s Executive Order Number 8.

Any person may make written suggestions or comments on the proposed amendments on or before September 11, 2001. Written comments should be directed to Don Koch, Department of Natural Resources, 109 Trowbridge Hall, Iowa City, Iowa 52242–1319; fax (319)335–2754.

A public hearing will be held on September 11, 2001, at1 p.m. in the Conference Room, Trowbridge Hall, University of Iowa, Iowa City, Iowa, at which time comments may be submitted orally or in writing.

Any persons who intend to attend a public hearing and have special requirements, such as those relating to hearing or mobility, should contact the Department of Natural Resources to advise the Department of any specific needs.

These amendments will not impact small businesses.

These amendments are intended to implement Iowa Code section 458A.4 and chapter 460A.

The following amendments are proposed.

ITEM 1. Amend rule 565—50.1(17A,84,305), introductory paragraph, as follows:

565—50.1(17A,84,305 458A,460A) Bureau responsibilities. The geological survey bureau (GSB) of the energy and geological resources division of the department has the responsibility to collect, manage, interpret, and report geological and hydrologic information that is relevant to prudent development, management, and conservation of the state’s natural resources. Iowa has significant water, mineral, rock, soil and energy resources, but they are finite; they are distributed unevenly in terms of quantity and quality; and often they are vulnerable to contamination and misuse. The GSB provides technical information that is basic to resolution of natural resource issues.

ITEM 2. Amend rule 565—50.2(17A,84) as follows:

565—50.2(17A,84 458A) Oil, gas, and metallic minerals. The GSB also assists the department in administering the oil, gas, and metallic minerals program requirements of Iowa Code chapter 84 458A, as implemented in 565—Chapter 51 of these rules.

ITEM 3. Amend subrule 51.1(2) as follows:

51.1(2) “Artesian water” shall mean underground water that is confined by impervious material under pressure sufficient to raise it above the upper level of the saturated material in which it lies if this is penetrated by wells or natural fissures.

ITEM 4. Amend subrule 51.6(8), paragraph “h,” as follows:

h. Data on perforating, acidizing, fracturing, shooting, and testing.

ITEM 5. Amend rule 565—51.7(84) as follows:

565—51.7(84 458A) Identification of wells. Every producible well shall be identified by a sign, posted on the derrick or not more than twenty (20) feet from the well. Such signs shall be of durable construction and the lettering thereon shall be kept in a legible condition and shall be large enough to be legible under normal conditions at a distance of fifty (50) feet. The wells on each lease or property shall be numbered in nonrepetitive, logical, and distinctive sequence, unless some other system of numbering was adopted by the owner prior to the adoption of these rules. Each sign shall show the number of the well, the name of the lease (which shall be different or distinctive for each lease), the name of the lessee, owner, or operator, and the permit number, and the location by quarter, section, township, and range. The signs shall be displayed for each drilling well when so required by the department.

ITEM 6. Amend rule 565—51.11(84) as follows:

565—51.11(84 458A) Notification of fire, breaks, leaks,or blowouts. All persons controlling or operating any oil and gas wells or pipelines, or receiving tanks, storage tanks, orreceiving and storage receptacles into which crude oil is produced, received, or stored, or through which oil or gas ispiped or transported, shall notify the department of fire, breaks, leaks or blowouts as soon as possible but not later than six (6) hours after the incident occurs or is discovered, inaccordance with Iowa Code section 455B.386 (telephone: (515)281–8694). A written report, giving full details concerning all fires which occur at such oil or gas wells or tanks or receptacles on their property, all tanks or receptacles struck by lightning and any other fire which destroys oil or gas, and any breaks or leaks in or from tanks or receptacles and pipelines from which oil or gas is escaping or has escaped shall be submitted to the department within thirty (30) days. In all reports of fires, breaks, leaks, or escapes, or other accidents of this nature, the location of the well, tank, receptacle, or line break shall be given by section, township, range, and property so that the exact location thereof can be readily located on the ground. The report shall likewise specify what steps have been taken or are in progress to remedy the situation reported, and shall detail the quantity of oil or gas lost, destroyed, or permitted to escape. In case any tank or receptacle is permitted to run over, the escape thus occurring shall be reported as in the case of a leak.

ITEM 7. Amend subrule 51.15(1) as follows:

51.15(1) Notice of intent to abandon and plug. Notice of the proposed method of abandoning and plugging any well drilled in connection with oil or gas operations or metallic mineral exploration or production must be filed on a form prescribed by the council department, and approval obtained from the office of the state geologist prior to commencing operations. Time must be allowed for a department representative to be present at the plugging operations, if so desired by the state geologist. Where the time required to file notice and obtain approval in writing would constitute an undue hardship, verbal permission to proceed may be granted, but in any case, the form must be filed.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 50, “Application for Assistance,” Chapter 75, “Conditions of Eligibility,” and Chapter 76, “Application and Investigation,” appearing in the Iowa Administrative Code.

These amendments make technical changes to the application and eligibility determination process to the Medicaid program as follows:

• Replace various application and review forms with a simplified and shortened Health Services Application and provide that the simplified and shortened application form will also be used for the Medically Needy recertification. The General Assembly directed the Department in House File 732, section 7, subsection 14, to simplify the Medically Needy recertification process. The use of the revised Health Services Application for recertification reduces the paperwork for recertification.

• Delete obsolete references to the X–PERT system and to forms used by the X–PERT system.

• Delete references to retrospective budgeting. The Medicaid program now uses prospective budgeting for determining eligibility and benefits.

• Update some form numbers and cross references to the Medically Needy program.

• Replace obsolete references to the Family Investment Program with the Family Medical Assistance Program.

These amendments do not provide for waivers in specified situations because they are technical in nature and confer a benefit on the applicants. Applicants may apply for a waiver under the Department’s general rule on exceptions at rule 441—1.8(217).

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before September 12, 2001.

These amendments are intended to implement Iowa Code sections 249.4 and 249A.4.

The following amendments are proposed.

ITEM 1. Amend subrule 50.2(3) as follows:

50.2(3) Any person applying for payment for residential care shall make application at a local or area office of the department of human services or at the residential care facility where the person resides. Any person applying for a dependent person allowance shall make application at a local or area office of the department. Any person applying for payment for a protective living arrangement or in–home, health–related care shall make application at a local or area office of the department. An application may also be filed directly with an income maintenance worker at any departmental satellite office or any disproportionate share hospital, federally qualified health center or other facility in which outstationing activities are provided.

The application shall be made on the Application forMedical Assistance or State Supplementary Assistance, PA–1107–0, or the Application for Assistance, Part 1, Form 470–3112, or Form 470–3122 (Spanish) Health Services Application, Form 470–2927. The application shall be signed by the applicant or the authorized representative. Someone acting responsibly for an incapacitated, incompetent, or deceased person may sign the application on the person’s behalf. Applicants whose cases are selected for the X–PERT system but whose eligibility cannot be determined through X–PERT may be requested to complete Form PA–1107–0. For cases selected for the X–PERT system, Part 2 of theapplication is the Summary of Facts, Form 470–3114, produced at the interview. The Summary of Facts, Form 470– 3114, is attached to the Summary Signature Page, Form 470–3113 or Form 470–3123 (Spanish). Eligibility does not exist until the Summary Signature Page, Form 470–3113 or Form 470–3123 (Spanish) is signed by the applicant, guardian, conservator or representative and returned to the local or area office within five working days.

a. to d. No change.

ITEM 2. Amend subrule 50.4(3) as follows:

50.4(3) For purposes of an annual review to be per–formed by the department, Form 470–3118, Medically Needy Recertification/State Supplementary and Medicaid Review 470–2927, Health Services Application, shall be completed.

ITEM 3. Rescind and reserve subrule 50.4(4).

ITEM 4. Amend subrule 75.1(35) as follows:

Amend paragraph “i” as follows:

i. Reviews. Reviews of eligibility shall be made for SSI–related, CMAP–related, and FMAP–related medically needy recipients with a zero spenddown as often as circumstances indicate but in no instance shall the period of time between reviews exceed 12 months.

SSI–related, CMAP–related, and FMAP–related medically needy persons shall complete Form 470–3118, Medically Needy Recertification/State Supplementary and Medicaid Review 470–2927, Health Services Application, as part of the review process when requested to do so by the county office.

Amend paragraph “j,” subparagraph (1), as follows:

(1) The Medically Needy Recertification/State Supplementary and Medicaid Review Health Services Application, Form 470–3118 470–2927, shall be used to determine eligibility for SSI–related medically needy when an SSI recipient has been determined to be ineligible for SSI due to excess income or resources in one or more months after the effective date of the SSI eligibility decision.

Amend paragraph “k” as follows:

k. Recertifications. A new application shall be made when the certification period has expired and there has been a break in assistance as defined at rule 441—75.25(249A). When the certification period has expired and there has not been a break in assistance, the person shall use the Medically Needy Rcertification/State Supplementary and Medicaid Review Health Services Application, Form 470–3118 470– 2927, to be recertified. This form shall be treated as an application. For cases on the X–PERT system, if an interview is required as specified at subparagraph 75.1(35)“j”(2), the applicant may complete Form 470–3112 or 470–3122 (Spanish). When the applicant completes Form 470–3112 or Form 470–3122 (Spanish), the Summary of Facts, Form 470–3114, shall be completed and attached to the Summary Signature Page, Form 470–3113 or Form 470–3123 (Spanish), which has been signed and returned to the local or area office.

ITEM 5. Amend subrule 75.21(5), paragraph “d,” as follows:

d. The premium is used to meet a spenddown obligation under the medically needy program, as provided in 441— Chapter 86 subrule 75.1(35), when all persons in the household are eligible or potentially eligible only under the medically needy program. When some of the household members are eligible for full Medicaid benefits under coverage groups other than medically needy, the premium shall be paid if it is determined to be cost–effective when considering only the persons receiving full Medicaid coverage. In those cases, the premium shall not be allowed as a deduction to meet the spenddown obligation for those persons in the household participating in the medically needy program.

ITEM 6. Amend subrule 75.22(1), paragraph “c,” as follows:

c. The person shall not be eligible for Medicaid. The person shall be required to apply for Medicaid benefits when it appears Medicaid eligibility may exist. Persons who are required to meet a spenddown obligation under the medically needy program, as provided in 441—Chapter 86 subrule 75.1(35), are not considered Medicaid–eligible for the purpose of establishing eligibility under these provisions.

When Medicaid eligibility is attained, premium payments shall be made under the provisions of rule 441— 75.21(249A) if all criteria of that rule are met.

ITEM 7. Amend rule 441—75.25(249A) by rescinding the definition of “X–PERT.”

ITEM 8. Amend rule 441—76.1(249A), introductory paragraphs, as follows:

441—76.1(249A) Application. An application for family medical assistance–related Medicaid programs shall be submitted on the Public Assistance Application, Form PA–2207–0 470–0462 or Form PA–2230–0 470–0466 (Spanish), the Health Services Application, Form 470–2927, the Application for Assistance, Part 1, Form 470–3112 or Form 470–3122 (Spanish), or the Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470–3526, and the Supplement to the Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470–3564. The Medically Needy Recertification/State Supplementary and Medicaid Review Health Services Application, Form 470–3118 470–2927, shall be used instead of Form 470–3112 or 470–3122 (Spanish) for persons applying for assistance under the medically needy program as provided at 441—subrule 75.1(35) if an interview is not required.

An application for SSI–related Medicaid shall be submitted on the Application for Medical Assistance or State Supplementary Assistance, Form PA–1107–0, or Application for Assistance, Part 1, Form 470–3112 or Form 470–3122 (Spanish) Health Services Application, Form 470–2927. The Medically Needy Recertification/State Supplementary and Medicaid Review, Form 470–3118, The Health Services Application, Form 470–2927, shall be used instead of Form 470–3112 or 470–3122 (Spanish) for persons applying forassistance under the medically needy program as provided at 441—subrule 75.1(35) if an interview is not required.

A person who is a recipient of supplemental security income (SSI) benefits shall not be required to complete a separate Medicaid application. If the county office does not have all information necessary to establish that an SSI recipient meets all Medicaid eligibility requirements, the SSI recipient may be required to complete Form 470–2304 or 470–0364, Medicaid Information Questionnaire for SSI Persons, and may be required to attend an interview to clarify information on this form.

An application for Medicaid for persons in foster care shall be submitted on Form 470–2779, Foster Care Medicaid Application Form 470–2927, Health Services Application.

ITEM 9. Amend subrule 76.1(2) as follows:

76.1(2) Date and method of filing application. An application is considered filed on the date an identifiable application, Form 470–0442, 470–0462, 470–0466 (Spanish), or 470–2927, or Form 470–3112 or 470–3122 (Spanish), is received and date–stamped: (1) in any local or area office of the department, or (2) by an income maintenance worker in any satellite office of the department, or (3) by a designated worker in a disproportionate share hospital, federally qualified health center, or other facility in which outstationing activities are provided, or (4) by the third–party administrator who has contracted with the department to administer the healthy and well kids in Iowa (HAWK–I) program as provided in 441—Chapter 86. An identifiable application, Form 470–2927, which is filed to apply for FMAP or FMAP–related Medicaid at a WIC office, well child health clinic, maternal health clinic, or the office of a qualified provider for presumptive eligibility for pregnant women shall be considered filed on the date received and date–stamped in one of the offices. An application so received shall be forwarded within two working days to the department office responsible for completion of the eligibility determination. When a Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470– 3526, is filed with the third–party administrator and subsequently referred to the department for a Medicaid eligibility determination, the date the application is received and date–stamped by the third–party administrator shall be the filing date. A faxed application is considered filed on the date the faxed application is received in one of the places described above, if the fax is received during normal business hours. If the fax is received after normal business hours, such as evenings, weekends, or holidays, the faxed application shall be considered received on the next normal business day. Before the faxed application can be approved, the original application with the applicant’s original signature must be received by the department.

An identifiable application is an application containing a legible name, address and signature. If an authorized representative signed the application on behalf of an applicant, the original signature of the applicant or the responsible person must be on the application before the application can be approved. For FMAP and FMAP–related Medicaid, the original signature of each and every parent or stepparent in the home must be on the application before the application can be approved.

ITEM 10. Amend rule 441—76.7(249A) as follows:

441—76.7(249A) Reinvestigation. Reinvestigation shall be made as often as circumstances indicate but in no instance shall the period of time between reinvestigations exceed 12 months.

The recipient shall supply, insofar as the recipient is able, additional information needed to establish eligibility within five working days from the date a written request is issued. The recipient shall give written permission for the release of information when the recipient is unable to furnish information needed to establish eligibility. Failure to supply the information or refusal to authorize the county office to secure information from other sources shall serve as a basis for cancellation of Medicaid.

Eligibility criteria for persons whose eligibility for Medicaid is related to the family medical assistance program shall be reviewed according to policies found in rule 441— 75.52(249A).

Persons whose eligibility for Medicaid is related to supplemental security income shall complete Form 470–3118, Medically Needy Recertification/State Supplementary and Medicaid Review 470–2927, Health Services Application, as part of the reinvestigation process when requested to do so by the county office.

The review for foster children or children in subsidized adoption shall be completed on Form 470–2914, Foster Care and Subsidized Adoption Medicaid Review 470–2927, Health Services Application, according to the time schedule of the family medical assistance or supplemental security income program for disabled children, as applicable.

ITEM 11. Amend subrule 76.10(5) by rescinding paragraph “c.”

ITEM 12. Amend subrule 76.12(7), paragraph “b,” subparagraph (2), as follows:

(2) Creation of an undue hardship for the person seeking a waiver of estate recovery. Undue hardship exists when total household income is less than 200 percent of the poverty level for a household of the same size, total household resources do not exceed $10,000, and application of estate recovery would result in deprivation of food, clothing, shelter, or medical care such that life or health would be endangered as determined by the department on a case–by–case basis. For this purpose, income and resources shall be defined as under the family investment program family medical assistance program.

ITEM 13. Rescind and reserve rule 441—76.13(249A).

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services proposes to amend Chapter 53, “Rent Subsidy Program,” appearing in the Iowa Administrative Code.

These amendments revise eligibility requirements for the Rent Subsidy Program to add children receiving residential–based supported community living services under the HCBS Mental Retardation waiver program. The Seventy–ninth General Assembly directed that the Department may make subsidy funds available to children receiving services under an HCBS waiver for individuals with mental retardation in residential–based supported community living within available funding.

These amendments also correct departmental addresses.

These amendments do not provide for waivers in specified situations because these amendments confer a benefit by increasing eligibility for the Rent Subsidy Program.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before September 12, 2001.

These amendments are intended to implement Iowa Code section 217.6 and 2001 Iowa Acts, House File 732, section 11, subsection 3, paragraph “b.”

The following amendments are proposed.

ITEM 1. Amend 441—Chapter 53, Preamble, as follows:

PREAMBLE

This chapter defines and structures the rent subsidyprogram for persons who participate in a home– andcommunity–based service (HCBS) waiver program and who were:

1. Discharged Were discharged from a medical institution in which they have resided,

2. At Are at risk of institutional placement, or

3. Able Were able to leave a medical institution by use of services provided under an HCBS waiver upon turning 18 years of age during the last year of their institutional stay. , or

This program is designed to provide rent assistance to these persons to help them live successfully in their own home and community. An eligible person may receive assistance in meeting rental expense and, in the initial two months of eligibility, in purchasing necessary household furnishings and supplies.

ITEM 2. Amend rule 441—53.1(78GA,ch203) by adopting the following new definitions in alphabetical order:

“Child” or “children” means a person or persons under 18 years of age.

“Residential–based supported community living services” means residential–based supported community living services as defined in 441—subrule 78.41(10).

ITEM 3. Amend rule 441—53.2(78GA,ch203) as follows:

Amend subrules 53.2(1) through 53.2(3) as follows:

53.2(1) HCBS recipient. The person shall be an adult recipient of one of the home– and community–based services waiver programs or a child receiving residential–based supported community living services under the mental retardation home– and community–based services waiver program.

53.2(2) Discharged from a medical institution. Exceptas provided in subrules 53.2(4) and 53.2(5), and except for children receiving residential–based supported communityliving services under the mental retardation home– andcommunity–based services waiver program, the person shall have been discharged from a medical institution on or after July 1, 1995, and immediately prior to receiving HCBS services.

53.2(3) Demonstrated need. To demonstrate need, adult applicants must provide evidence that they are responsible for paying more than 30 percent of their income for rent and that they are not receiving and are ineligible for other rental assistance. In the case of children receiving residential–based supported community living services under the mental retardation home– and community–based services waiver program, they or their families or guardians must provide evidence that the children are not receiving and are ineligible for other rental assistance and that more than 30 percent of the children’s income is obligated for rent.

This program may not be used to substitute for any other subsidy that a person had been receiving at the time of or prior to the time of application to this program. Persons receiving rental assistance at the time of or prior to the time of application to this program shall not be eligible.

Amend subrule 53.2(4), introductory paragraph, as follows:

53.2(4) Risk of institutional placement. Up to 100 persons adults who can avoid placement in a medical institution by accessing this rent subsidy program and by use of services provided under an HCBS waiver shall be eligible for rental assistance. Applicants must meet all eligibility criteria of this program, except the requirements of subrule 53.2(2), and be able to demonstrate both of the following:

Amend subrule 53.2(7) as follows:

53.2(7) Responsible for rent. The person Adult program participants shall be financially responsible for rent or housing costs. In the case of children receiving residential–based supported community living services under the mental retardation home– and community–based services waiver program, they or their families must demonstrate this financial responsibility.

ITEM 4. Amend rule 441—53.3(78GA,ch203), introductory paragraph, as follows:

441—53.3(78GA,ch203) Application. Applications for the rent subsidy program may be obtained at any county office of the department. Applications shall be submitted to the Department of Human Services, Division of Mental Health and Developmental Disabilities, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114.

ITEM 5. Amend subrule 53.5(2) as follows:

53.5(2) Review packet. The division shall send a review packet, which shall include instructions and necessary forms for verification of continuing eligibility, to all recipients of subsidy payments at least 60 calendar days prior to the deadline date for annual redetermination of eligibility. The completed Form 470–3302, Application for HCBS Rent Subsidy and Household Assistance, and required verification materials shall be submitted annually to the Department of Human Services, Division of Mental Health and Developmental Disabilities, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. If the signed application and verification of continuing eligibility are not received by the division by the thirtieth day following the date the review packet is sent, the person’s subsidy shall be terminated.

ITEM 6. Amend the implementation clause following 441—Chapter 53 as follows:

These rules are intended to implement Iowa Code section 217.6 and 1999 Iowa Acts, chapter 203, section 11, subsection 3. 2001 Iowa Acts, House File 732, section 11, subsection 3, paragraph “b.”

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services proposes to amend Chapter 57, “Interim Assistance Reimbursement,” appearing in the Iowa Administrative Code.

These amendments update policy governing the Interim Assistance Reimbursement program to reflect changes in federal law and general procedures.

The Federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104–193) changed theinitial date that federal Supplemental Security Income (SSI) payments begin for eligible clients. This change affects the interim period eligible for reimbursement under the Inter–im Assistance Reimbursement program. P.L. 104–193 also changed the way past due monthly benefits are paid to SSI eligibles, which affects how county agencies receive their interim assistance reimbursement check from the Social Security Administration. If past due monthly benefits equal or exceed 12 times the maximum monthly benefits payable to an SSI eligible, the payments are made to the individual in installments. These changes bring rules into conformance with current policy.

These amendments do not provide for waivers in specified situations because the changes are required by the Federal Personal Responsibility and Work Opportunity Reconciliation Act with no provision for waivers.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before September 12, 2001.

These amendments are intended to implement Iowa Code chapter 249 and 1984 Iowa Acts, chapter 1310, section 9.

The following amendments are proposed.

ITEM 1. Amend rule 441—57.1(249) as follows:

Amend the definitions of “county agency,” “initial payment,” “initial posteligibility payment,” “interim period,” and “SSI,” as follows:

“County agency” means a county relief or veteran affairs agency or county subdivision under the jurisdiction of the county board of supervisors which furnishes relief in the form of cash or vendor payments to or in behalf of needy individuals in accordance with established standards under the provisions of Iowa Code chapter 250 35B or 252.

“Initial payment” is the amount of benefits determined by the Secretary Commissioner to be payable to an eligible individual (including any retroactive amounts) at the time the individual is first determined to be eligible under Title XVI of the Act. It does not include any emergency advance payment, any presumptive disability or blindness payments, or any immediate payments authorized under Section 1631 of the Act.

“Initial posteligibility payment” means the amount of benefits determined by the Secretary Commissioner to be payable to an eligible individual (including any retroactive amounts) at the time the individual is first determined eligible under Title XVI of the Act following a period of suspension or termination. This term does not include any emergency advance payments, any presumptive disability or blindness payments, or any immediate payments authorized under Section 1631 of the Act.

“Interim period” is the time span beginning with (1) the day on which the individual filed an application for benefits, and was found eligible, and ending with (and including) the month the individual’s benefits began, and (2) during the period, beginning with the day the individual’s benefits were reinstated after a period of suspension or termination, and ending with (and including) the month the individual’s benefits were reinstated means the period (1) beginning with the month following the month in which the individual filed an application for SSI benefits, for which the individual was found to be eligible, and ending with (and including) the month the individual’s benefits began, or (2) beginning the day the person’s SSI benefits were reinstated after a period of suspension or termination, and ending with (and including) the month the individual’s SSI benefits were resumed. The interim period does not include any periods during which the individual is underpaid by the Social Security Administration due to that agency’s failure to make a timely modification of the individual’s SSI benefit or for any other reason.

“SSI” means supplemental security income for the aged, blind, and disabled which is a federal cash assistance program under Title XVI of the Social Security Act.

Rescind the definition of “secretary.”

Adopt the following new definition in alphabetical order:

“Commissioner” means the Commissioner of the Social Security Administration or the Commissioner’s delegate.

ITEM 2. Amend rule 441—57.2(249) as follows:

Amend the introductory paragraph as follows:

441—57.2(249) Requirements for reimbursement. The county agency must have a written agreement with the department of human services in order to receive reimbursement for interim assistance payments. The agreement must be on Form PA–6110 470–1948, Interim Assistance Reimbursement Agreement, or Form 470–3857, Interim Assistance Reimbursement Agreement (Veteran Affairs). This agreement will provide that:

Amend subrules 57.2(1), 57.2(4), 57.2(5), and 57.2(8) as follows:

57.2(1) The county agency will secure written authorization from the individual for the Secretary Commissioner to withhold the individual’s initial payment or initial posteligibility payment and make these payments payable to the county agency using Form 470–1950, Initial Interim Assistance Reimbursement Authorization, or Form 470–2551, Posteligibility Interim Assistance Reimbursement Authorization. These forms shall also be used by the The individual shall also use these forms to indicate an intent to apply for SSI benefits. The county agencies are designated by the Secretary Commissioner to accept these forms which protect the individual’s filing date for SSI benefits.

57.2(4) The county agency will provide the individual with a written explanation of the apportionment on Form PA–6108 470–1949, Interim Assistance Notice of Apportionment, showing the amount of the payment received by the county agency from the Social Security Administration, the amount retained by the county agency for reimbursement and the excess amount, if any, due the individual and provide the individual with the right to a hearing before the county board of supervisors or the county commission of veteran affairs on disputes arising from the apportionment of the payment.

57.2(5) The county agency shall maintain a file for each individual who has received interim assistance and maintain adequate records of all transactions made relating to interim assistance and the apportionment of the individual’s initial payment. The following records shall be maintained for each individual:

a. Identification. Name, social security number, address, telephone number.

b. Assistance furnished. Date paid, amount of payment, to whom paid, needs covered by the payment, county warrant number.

c. Reimbursement check. Date received from the Social Security Administration, amount of the check, amount withheld as reimbursement, amount paid to the individual, county warrant number, date paid to the individual.

d. Disputes. Date received, issue, action taken, resolution.

e. Documentation. Original Copy of authorization form executed by the individual, apportionment document received by the Social Security Administration, notice of apportionment forwarded to the individual, all pertinent correspondence to and from the individual, copy of SSI award notice, a copy of correspondence related to vendor payments made.

Records shall be maintained for a period of five years subsequent to the date of receipt by the county agency of interim assistance reimbursement and shall be available to the department of human services or the Social Security Administration on request.

57.2(8) The county agency or the department of human services may terminate the agreement at any time upon 30 days’ written notice to the other party. If the agreement is terminated by either party the department of human services and the county agency agree that all cases for which the county agency has obtained Form PA–6109 470–1950, Initial Interim Assistance Reimbursement Authorization, or Form 470–2551, Posteligibility Interim Assistance Reimbursement Authorization, shall be processed by the county agency in accordance with the agreement.

ITEM 3. Amend rule 441—57.6(249) as follows:

441—57.6(249) Notice of interim assistance reimbursement eligibility and accountability. The Social Security Administration will forward to the county Form SSA–8125, SSI Supplemental Security Income Notice of Interim Assistance Reimbursement Eligibility and Accountability Report, indicating the disposition of the individual’s SSI claim (i.e., denial or allowance). This form also provides the county agency with a method of accounting on an individual case basis for the disposition of interim assistance reimbursement funds received from the Social Security Administration. The county agency will receive Form SSA–8125 on every case where the individual has signed an interim assistance authorization and the authorization is processed by the Social Security Administration prior to a final determination on SSI eligibility.

ITEM 4. Amend rule 441—57.7(249A) as follows:

441—57.7(249A 249) Certificate of authority. The county agency shall submit the name, title, and signature of each official of the county agency authorized to sign the Supplemental Security Income Notice of Interim Assistance Eligibility Reimbursement, Form SSA–8125, on the Certificate of Authority, Form PA–6111 470–1947, to the regional office of the department. Form PA–6111 470–1947 shall be submitted prior to the date the agency first participates in the program and subsequently when changes in authorized officials occur.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

These amendments establish policy regarding disproportionate share payments from the Graduate Medical Education and Disproportionate Share Fund (fund) when a hospital no longer qualifies for disproportionate share payments.

The amount that would have been paid to a hospital that no longer qualifies will be removed from the fund.

The paragraph regarding automatic additions to or subtractions from the Graduate Medical Education and Disproportionate Share Fund when the average monthly Medicaid population deviates from the previous year’s averages by greater than 5 percent is rescinded.

In place of the automatic increases, increases in utilization are added to inflation as a reason that adjustments may be made, subject to legislative appropriations. The Department cannot automatically increase the amount allocated based on increased utilization if funds for such an increase have not been appropriated.

These amendments do not provide for waivers in specified situations because all hospitals should be subject to the same formula for fund payments.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before September 12, 2001.

These amendments are intended to implement Iowa Code section 249A.4.

The following amendments are proposed.

ITEM 1. Amend subrule 79.1(5), paragraph “y,” subparagraphs (2), (5), (8) and (9), as follows:

(2) Allocation to fund for direct medical education. Except as reduced pursuant to subparagraph 79.1(5)“y”(3), the total amount of funding that is allocated to the graduate medical education and disproportionate share fund for direct medical education related to inpatient services for July 1, 2000, through June 30, 2001, is $8,314,810. Adjustments may be made to this amount for inflation or utilization increases, subject to legislative appropriations. , and for utilization increases as established in paragraph 79.1(5)“z.”

(5) Allocation to fund for indirect medical education. Except as reduced pursuant to subparagraph 79.1(5)“y”(6), the total amount of funding that is allocated to the graduate medical education and disproportionate share fund for indirect medical education for July 1, 2000, through June 30, 2001, is $14,599,413. Adjustments may be made to this amount for inflation or utilization increases, subject to legislative appropriations. , and for utilization increases as established in paragraph 79.1(5)“z.”

(8) Allocation to fund for disproportionate share. The total amount of funding that is allocated to the graduate medical education and disproportionate share fund for disproportionate share payments for July 1, 2000, through June 30, 2001, is $6,978,925. Adjustments may be made to this amount for inflation or utilization increases, subject to legislative appropriations. , and for utilization increases as established in paragraph 79.1(5)“z.”

(9) Distribution to qualifying hospitals for disproportionate share. Distribution of the amount in the fund for disproportionate share shall be on a monthly basis. To determine the amount to be distributed to each qualifying hospital for disproportionate share, the following formula is used: Multiply the total of all DRG weights for claims paid July 1, 1999, through June 30, 2000, for each qualifying hospital qualifying during the fiscal year used to determine the hospital’s low–income utilization rate and the Medicaid utilization rate by each hospital’s disproportionate share rate to obtain a dollar value. The dollar values for each hospital are summed, then each hospital’s dollar value is divided by the total dollar value, resulting in a percentage. Each hospital’s percentage is multiplied by the amount allocated for disproportionate share to determine the payment to each hospital. Effective for payments from the fund for July 2003, the state fiscal year used as the source of DRG weights shall be updated to July 1, 2002, through June 30, 2003. Thereafter, the state fiscal year used as the source of DRG weights shall be updated by a three–year period effective for payments from the fund for July of every third year. In compliance with Medicaid Voluntary Contribution and Provider Specific Tax Amendments (Public Law 102–234) and 1992 Iowa Acts, chapter 1246, section 13, the total of disproportionate share payments from the fund and supplemental disproportionate share payments pursuant to paragraph 79.1(5)“ab” cannot exceed the amount of the federal cap under Public Law 102–234. If a hospital fails to qualify for disproportionate share payments from the fund due to closure or for any other reason, the amount of money that would have been paid to that hospital shall be removed from the fund.

ITEM 2. Rescind and reserve subrule 79.1(5), paragraph “z.”

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

The proposed amendments clarify policy regarding requests for prior authorization and make technical changes to the general policy that governs Medicaid providers as follows:

• Form names and numbers used by Medicaid providers are revised.

• References are updated, and outdated nomenclature is corrected.

These amendments do not provide for waivers because they only change form names and numbers, update references, and make technical corrections to outdated nomenclature.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before September 12, 2001.

These amendments are intended to implement Iowa Code section 249A.4.

The following amendments are proposed.

ITEM 1. Amend subrule 79.2(3), paragraph “g,” as follows:

g. One hundred percent review of the provider’s claim claims prior to payment.

ITEM 2. Amend rule 441—79.6(249A) as follows:

441—79.6(249A) Provider participation agreement. Providers of medical and health care wishing to participate in the program shall execute an agreement with the department on Form XIX (PA–1) 470–2965, Agreement Between Provider of Medical and Health Services and the Iowa Department of Human Services re Regarding Participation in the Medical Assistance Program.

ITEM 3. Amend rule 441—79.7(249A) as follows:

Amend subrule 79.7(4), introductory paragraph, as follows:

79.7(4) Meetings. The council shall meet at least four times each year. At least two of these meetings shall be with the department of human services. Additional meetings may be called by the chairperson, upon written request of at least 50 percent of the members or by the commissioner director of the department of human services.

Amend subrule 79.7(7), paragraph “e,” as follows:

e. The department shall present the biennial annual budget for the medical assistance program for review and comment.

ITEM 4. Amend subrules 79.8(1) and 79.8(9) as follows:

79.8(1) Requests for prior approval for any items or procedures other than prescription drugs shall be made using Form XIX P Auth 470–0829, Request for Prior Authorization. For prior authorization of prescription drugs, requests Requests not related to prior authorization for dental procedures may be made submitted by telephone, facsimile (fax) or mail. Requests for prior authorization made by fax or by mail shall be made using Form XIX Drug P Auth, Request for Drug Prior Authorization for drugs may also be made by telephone.

Requests for prior approval shall be sent to Consultec, Inc., P.O. Box 14422, Des Moines, Iowa 50306–3422. The request should include the relevant criteria applicable to the particular service, medication, or equipment, for which prior approval is sought, according to the criteria outlined in rule 441—78.28(249A). Copies of history and examination results may be attached to rather than incorporated in the letter.

79.8(9) Unless the prior authorization request is made for prescription drugs, recipients shall receive a notice of decision upon a denial of request for prior approval pursuant to 441—Chapter 7. The fiscal agent shall mail the notice of decision to the recipient, Form MA–3028, shall be mailed within five working days of the date the prior approval form is returned to the provider. In the case of prior authorization for drugs, no the fiscal agent shall not issue a notice of denial will be issued to recipients.

ITEM 5. Amend rule 441—79.14(249A) as follows:

Amend subrule 79.14(1), paragraph “a,” subparagraph (9), as follows:

(9) Inpatient and outpatient general hospitals. Inpatient and outpatient general hospitals shall also complete Form 2977, Supplemental Hospital Information Enrollment Form.

Amend subrule 79.14(6) as follows:

79.14(6) Providers approved for certification as a Medicaid provider shall complete Form 470–2965, Medicaid Provider Agreement Agreement Between Provider of Medical and Health Services and Iowa Department of Human Services Regarding Participation in Medical Assistance Program.

Pursuant to the authority of Iowa Code section 99B.13, the Department of Inspections and Appeals hereby gives Notice of Intended Action to amend Chapter 100, “Administration,” and Chapter 102, “Social Gambling,” Iowa Administrative Code.

The proposed amendments are intended to update administrative rules and implement 2000 Iowa Acts, chapter 1130. Item 1 updates language on bingo and raffle prize limits to parallel Iowa Code sections 99B.7(1)“d” and 99B.7(1)“q.” Item 2 updates an example illustrating net receipt determination to include a 5 percent, rather than a 4 percent sales tax and adds language implementing 2000 Iowa Acts, chapter 1130. This new language requires that if a licensee derives at least 90 percent of its income from gambling activities, it must distribute at least 75 percent of its net receipts to an unrelated entity. Item 3 corrects an error by updating the legal social gambling age from 18 to 21 to parallel the Iowa Code.

These amendments do not provide for waivers because amendments conform rules to statute. In addition, 2000 Iowa Acts, chapter 1130, does not provide for a waiver or variance.

Any interested person may make written comments or suggestions on the proposed amendments on or beforeSeptember 11, 2001. Written materials should be addressed to the Director, Department of Inspections and Appeals,Lucas State Office Building, East 12th and Grand Avenue, Des Moines, Iowa 50319–0083. Faxes may be sent to (515) 242–6863; E–mail may be sent to Jennifer.Fiihr@dia.state. ia.us.

These amendments are intended to implement 2000 Iowa Acts, chapter 1130, and Iowa Code chapter 99B.

The following amendments are proposed.

ITEM 1. Amend 481—100.6(99B) as follows:

481—100.6(99B) Prizes. Prizes are governed by the following standards:

100.6(1) Maximum prizes or limits are:

a. Concession licenses licensees.

Games of skill and games of chance . . $50 in merchandise

Bingo $50 in merchandise

b. Qualified organizations.

Games of skill and games of chance . . $50 in merchandise

Raffles Small raffles . . . . . . . . . . . $50 1,000 cash or merchandise

Large annual raffle Annual raffles . . . . $20,000 cash or merchandise Aggregate value of all cash and merchandise prizes must exceed $1,000

Annual raffles at a fair . . . . . . . . . . . . Aggregate valueof all cash and merchandise prizes must exceed $200

Bingo games $100 cash or merchandise

See 481—subrule 103.6(6) for exception for jackpot game.

c. Social gambling. An individual shall not win or lose more than $50 in a 24–hour period.

d. Annual game night. An individual shall not spend more than $50. There is no limit on winning.

100.6(2) If merchandise such as scholarships, airline tickets and other similar items is awarded as prizes, the merchandise shall not be converted to cash by the donor or provider. Winning lottery tickets or shares awarded as prizes may be converted to cash pursuant to lottery rules and statutes. Prizes awarded in games in which there are multiple winners are to be shared in equal proportion among the winners. However, it is permissible to round to the nearest dollar. A person shall not be required to return cash or a merchandise prize won in one game in order to play a subsequent game, nor can a person be required to play in one game in order to play in a subsequent game. No prize may be displayed which cannot be won in a single game.

This rule is intended to implement Iowa Code sections 99B.1(23) and 99B.3 and 99B.7.

ITEM 2. Amend 481—100.34(99B) as follows:

481—100.34(99B) Nature and dedication of net receipts. An applicant for a license as a qualified organization shall certify distribution of receipts. At least 75 percent of net receipts not distributed as prizes shall be dedicated and distributed to educational, civic, public, charitable, patriotic or religious uses in this state.

100.34(1) The following examples illustrate methods to determine net receipts, allowable expense, and the amount required to be dedicated and distributed.

EXAMPLE 1

When sales tax is not included in gross receipts, it need not be deducted to arrive at net receipts.

Gross receipts for quarter (excluding sales tax) $100,000

Amount awarded as prizes $ 20,000

Net receipts $ 80,000

Dedicated Minimum dedicated and distributed
(75 percent of net receipts) $ 60,000

Expenses Maximum expenses
(25 percent of net receipts) $ 20,000

EXAMPLE 2

When sales tax is included in gross receipts, it is deducted to arrive at net receipts.

Gross receipts for quarter
(including sales tax) $104,000 $105,000

Amount awarded as prizes $ 20,000

Sales tax $4,000 $ 5,000

Net receipts $ 80,000

Dedicated Minimum dedicated and distributed
(75 percent of net receipts) $ 60,000

Expenses Maximum expenses
(25 percent of net receipts) $ 20,000

At least 75 percent of the net receipts received during the quarter shall be distributed no later than 30 days following the end of each calendar quarter unless permission to do otherwise is granted requested in writing and granted by the department.

100.34(2) If a licensee receives at least 90 percent of its total income in a calendar year from charitable gambling activities, at least 75 percent of the licensee’s net receipts must be distributed to an unrelated entity by March 31 of the following year for educational, civic, public, charitable, patriotic, or religious use. An unrelated entity is one having a separate state charter and tax identification number. The following examples illustrate methods to determine if at least 75 percent of a licensee’s income must be distributed to an unrelated entity.

This rule is intended to implement Iowa Code Supplement sections 99B.1(6 16), 99B.1(18), 99B.1(24), and 99B.7(3), and 99B.7(4).

ITEM 3. Amend subrule 102.2(3) as follows:

102.2(3) No person under 18 21 years of age may participate in social gambling covered by this chapter.

Pursuant to the provisions of Iowa Code chapter 515A, the National Council on Compensation Insurance, Inc. (NCCI) submitted a rate filing on June 4, 2001. Notice of the filing was published in the Iowa Administrative Bulletin on June 27, 2001. No request for a hearing on the rate filing was received.

The NCCI rate filing of June 4, 2001, proposes an overall increase in premium level of 1.8% to reflect the impact of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition. The NCCI amended the filing on July 24, 2001, to be applicable only to new and renewal policies and to reflect an effective date of January 1, 2002. Based on an independent review of the NCCI proposal, the Commissioner finds the proposed manual rates as amended not to be excessive, inadequate, or unfairly discriminatory.

It is ordered that the June 4, 2001, rate filing as amended on July 24, 2001, is approved to be effective January 1, 2002.

Dated this 25th day of July 2001.

Pursuant to the authority of Iowa Code section 17A.3, the Department of Public Health hereby gives Notice of Intended Action to amend Chapter 174, “Agency Procedure for Rule Making,” Iowa Administrative Code.

The proposed amendments update the Department’s mailing address for sending written comments concerning rules and update the title and telephone number for the Director’s office.

Any interested person may make written commentsor suggestions on the proposed amendments on or before September 11, 2001. Such written comments should be directed to Barb Nervig, Administrative Rules Coordinator, Department of Public Health, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319. Comments may also be sent by E–mail to bnervig@idph.state.ia.us.

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

The following amendments are proposed.

Amend rule 641—174.5(17A) as follows:

174.5(1) Written comments. Strike In lieu of the words “(identify office and address) or” insert “Director’s Office, Iowa Department of Public Health, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319”.

Pursuant to Executive Order Number 8, the Department of Public Safety hereby gives notice of public hearings scheduled to consider existing rules of the Department. The Department has adopted an Administrative Rules Improvement Plan, as provided in Executive Order Number 8, which specifies a schedule for consideration of all existing rules of the Department. These hearings are being held to accept comment regarding the existing rules of the Department from any interested party, and are part of the rules assessment process outlined in Executive Order Number 8 and the Department’s Administrative Rules Improvement Plan.

The following hearings are scheduled on August 30, 2001, in the Third Floor Conference Room (West Half) in the Wallace State Office Building, East 9th and Grand, Des Moines, Iowa 50319:

The following hearings are scheduled on September 13, 2001, in the Third Floor Conference Room (West Half) in the Wallace State Office Building, East 9th and Grand, Des Moines, Iowa 50319:

Persons may present their views orally or in writing at each public hearing. Persons who wish to make oral presentations at a public hearing should contact the Agency Rules Administrator, Iowa Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, by mail,by telephone at (515)281–5524, or by electronic mail toadmrule@dps.state.ia.us, at least one day prior to the public hearing. Any written comments or information regarding these existing rules may be directed to the Agency Rules Administrator by mail or electronic mail at the addresses indicated at least one day prior to the public hearing, or submitted at the public hearing. Persons who wish to convey their views orally other than at the public hearing may contact the Agency Rules Administrator by telephone or in person at the Bureau office at least one day prior to the public hearing.

The Department’s Administrative Rules Improvement Plan, as well as copies of any of the rules to be reviewed,may be obtained from the Department’s World Wide Web site at http://www.state.ia.us/government/dps/admrule/.

In compliance with Iowa Code chapter 74A and section 12C.6, the committee composed of Treasurer of StateMichael L. Fitzgerald, Superintendent of Credit Unions James E. Forney, Superintendent of Banking Holmes Foster, and Auditor of State Richard D. Johnson have established today the following rates of interest for public obligations and special assessments. The usury rate for August is 7.25%.

INTEREST RATES FOR PUBLIC

OBLIGATIONS AND ASSESSMENTS

74A.2 Unpaid Warrants Maximum 6.0%

74A.4 Special Assessments Maximum 9.0%

RECOMMENDED for 74A.3 and 74A.7: A rate equal to 75% of the Federal Reserve monthly published indices for U.S. Government securities of comparable maturities.

The rate of interest has been determined by a committee of the state of Iowa to be the minimum interest rate that shall be paid on public funds deposited in approved financial institutions. To be eligible to accept deposits of public funds of the state of Iowa, a financial institution shall demonstrate a commitment to serve the needs of the local community in which it is chartered to do business. These needs include credit services as well as deposit services. All such financial institutions are required to provide the committee with a written description of their commitment to provide credit services in the community. This statement is available for examination by citizens.

New official state interest rates, effective August 10, 2001, setting the minimums that may be paid by Iowa depositories on public funds are listed below.

TIME DEPOSITS

7–31 days Minimum 3.30%

32–89 days Minimum 3.20%

90–179 days Minimum 3.20%

180–364 days Minimum 3.20%

One year to 397 days Minimum 3.20%

More than 397 days Minimum 3.60%

These are minimum rates only. The one year and less are four–tenths of a percent below average rates. Public body treasurers and their depositories may negotiate a higher rate according to money market rates and conditions.

Inquiries may be sent to Michael L. Fitzgerald, Treasurer of State, State Capitol, Des Moines, Iowa 50319.

Pursuant to Iowa Code sections 17A.4 and 476.1 and chapter 476A (2001), the Utilities Board (Board) gives notice that on August 3, 2001, the Board issued an order in Docket No. RMU–01–7, In re: Generation Plant Siting. The Board is proposing extensive amendments to current 199 IAC 24 to make the rules consistent with changes to Iowa Code chapter 476A enacted this legislative session in 2001 Iowa Acts, House File 577. House File 577, among other things, made significant changes to the plant siting statute.

2001 Iowa Acts, House File 577, removed some of the decision criteria from Iowa Code chapter 476A. These are: (1) existence of a comprehensive energy plan including load management, energy efficiency, and renewables; (2) consideration of purchased power; and (3) consideration of all feasible alternatives to the proposed facility including nongeneration alternatives.

The decision criteria are now: (1) willingness to construct, maintain, and operate the facility pursuant to the provisions of the certificate, and (2) being consistent with reasonable land use and environmental policies and consonant with reasonable use of air, land, and water resources. The third criterion, determination of public convenience, use, and necessity, was changed to the determination of consistency with the state’s energy and economic development policies and of no harm to service adequacy and reliability.

The major proposed rule revisions are discussed below. Rule references are to the rules as they are currently numbered for easier reference.

199 IAC 24.1(3) Policy: This subrule is renamed “cooperative agreements.” Subparagraph 24.1(3)“a”(1) is deleted as unnecessary because it discusses the Board policy that public development of information regarding the proposed facility is necessary to determine the future impacts of the facility. Subparagraph 24.1(3)“a”(2) is also deleted as unnecessary because it discusses that the plant siting proceedings be held in an expeditious and most economical manner while protecting the public interest. Subparagraph 24.1(3)“a”(3) is the only paragraph that is retained because it discusses a consolidated hearing process in which the Board enters into cooperative agreements with other agencies as contemplated in Iowa Code subsection 476A.13(1). The remaining sections that discuss applicants’ responsibilities are deleted as unnecessary under the new legislation.

199 IAC 24.2(476A) Definitions: This subrule is revised to delete areas that mention the certificate of public convenience, use, and necessity, which is no longer a decision criterion in a siting proceeding. Also, definitions of data requirements such as load curves are deleted. A definition of “public utility” that refers to Iowa Code section 476A.1 has been added.

199 IAC 24.3(2): This subrule has been revised to update the list of regulatory agencies that receive notice of the plant siting process because of their potential interest in the proceedings.

199 IAC 24.4(476A) Contents of application: This rule has significant revisions. In the “general information” subrule, language is added which requires basic and readily available information about the applicant, specifically information about its parent company and affiliates. A recent application for a merchant plant created confusion because a new corporation was formed for purposes of filing the application but the corporation’s parent was not identified. This change would eliminate the confusion.

Language has been added to require information about how the plant will be used. New language is proposed that would allow the Board to determine whether the facility will be detrimental to the existing transmission network that was built for the primary benefit of Iowa consumers. 2001 Iowa Acts, House File 577, requires that the facility not be detrimental to the provision of adequate and reliable service. The added language will assist the Board in making this determination.

Because the Board is no longer required to determine the need for the facility, subrules that required “current system information” and “future system information” are deleted. In addition, the Board is no longer required to look at the most economically feasible alternative. Therefore, the proposed amendments delete the subrule requiring information on “economic evaluation and feasibility.”

The “community impact” portion of the current rule is retained because the decision criteria require the Board to determine whether the facility will be consistent with reasonable land use and environmental policies and consonant with reasonable utilization of air, land, and water resources considering available technology and the economics of available alternatives.

The “site selection methodology” subrule is revised to keep information on the general criteria used to select the site and eminent domain requirements when selecting a site.

199 IAC 24.8(476A) Prehearing conferences: This rule has been deleted because the Board’s general procedural rules, 199 IAC 7, provide for prehearing conferences.

199 IAC 24.9(1): This subrule has been revised to include the provision (as required by 2001 Iowa Acts, House File 577) that the proceeding for the certificate may be consolidated with the contested case proceeding for determination of ratemaking principles under new Iowa Code section 476.53.

199 IAC 24.9(6): This subrule has been deleted as it is unnecessary. The Board’s rules in 199 IAC 1 provide that any member of the public may request copies of documents filed with the Board.

199 IAC 24.10(4): This subrule is proposed to be deleted as duplicative.

199 IAC 24.11(2) Facility siting criteria: Proposed revisions to this subrule reflect the new decision criteria enacted by the General Assembly.

199 IAC 24.13(3) Certificate transfer: This proposedsubrule is new. The subrule reflects current law, which allows transfer of certificates.

199 IAC 24.13(4) Application withdrawal: New language is added, consistent with 2001 Iowa Acts, House File 577, that allows for withdrawal of the application.

199 IAC 24.14(4): This proposed subrule is revised toremove the 100 MW limit on certificate exemptions and any amendments to the certificate. The 100 MW limit has been deleted in 2001 Iowa Acts, House File 577.

199 IAC 24.16(476A) Waiver: This rule has been re–vised to delete the 100 MW limit on waiver requests. Language requiring information on need is deleted as unnecessary because need is no longer a decision criterion.

Pursuant to Iowa Code sections 17A.4(1)“a” and “b,” any interested person may file a written statement of position pertaining to the proposed amendments. The statement must be filed on or before September 11, 2001, by filing an original and ten copies in a form substantially complying with 199 IAC 2.2(2). All written statements should clearly state the author’s name and address and should make specific reference to this docket. All communications should be directed to the Acting Executive Secretary, Utilities Board, 350 Maple Street, Des Moines, Iowa 50319–0069.

A public hearing to receive comments on the proposed amendments will be held at 10 a.m. on October 3, 2001, in the Board’s hearing room at the address listed above.

The Board does not find it necessary to propose a separate waiver provision in this rule making. The Board’s general waiver provision in 199 IAC 1.3(17A,474,476) is applicable to these rules.

These amendments are intended to implement Iowa Code section 476.1 and chapter 476A as amended by 2001 Iowa Acts, House File 577.

The following amendments are proposed.

ITEM 1. Amend subrule 24.1(2) as follows:

24.1(2) Purpose. The purpose of these regulations is to provide guidelines for proceedings for the determination, after consolidated hearing, whether the proposed construction of a major electric generation facility or significant alteration thereto should be issued a certificate of public convenience, use, and necessity required before such construction may commence and to state the procedures for determining compliance by the applicant with permit and licensing requirements of state regulatory agencies.

ITEM 2. Amend subrule 24.1(3) as follows:

24.1(3) Policy. Cooperative agreements.

(3) That a consolidated hearing process in which the The board, utilizing Iowa Code chapter 28E, may enters enter in–to cooperative agreements pursuant to Iowa Code chapter 28E with the appropriate state agencies that will facilitate through thorough review of all state issues arising in the certification process and will reduce the time and expense in determining, to the extent necessary, the environmental, economic, and social effects of the facility’s construction and use. Under the auspices of these 28E agreements, the board shall delegate to the various state agencies responsibility for the issuance of permits and licenses appropriate to the authority of the agency in assuring to ensure compliance with the steps in the certification process.

ITEM 3. Amend rule 199—24.2(476A) as follows:

199—24.2(476A) Definitions. As used in this chapter:

“Acid Rain Program” means the sulfur dioxide and nitrogen oxides air pollution control program established pursuant to Title IV of the Clean Air Act, 42 U.S.C. Section 7401, et seq., as amended by Pub. L. 101–549, November 15, 1990.

“Act” means Iowa Code chapter 476A entitled Electric Power Generators.

“Agency” means an agency as defined in Iowa Code section 17A.2(1).

“Allowance” means an authorization, allocated by the federal Environmental Protection Agency under the Acid Rain Program, to emit up to one ton of sulfur dioxide, during or after a specified calendar year.

“Applicant” means the person or persons who make an application for a certificate for a facility or an amendment to a certificate for a facility under the Act. For projects with more than one participant, the applicant may be that person designated by and acting on behalf of the participants.

“Application” means an application for a certificate or an amendment to a certificate submitted to the board pursuant to the Act.

“Board” means the utilities board.

“Certificate” means a certificate of public convenience, use and necessity issued by the board under the Act. as defined in Iowa Code section 476A.1.

“Contested case proceeding” means the contested case proceeding before the board prescribed by section 4 of the Act.

“Facility” means any electric power generating plant or combination of plants at a single site, owned by any person, with a maximum generator nameplate capacity of 25 megawatts of electricity or more and those associated transmission lines connecting the generating plant to either a power transmission system or an interconnected primary transmission system or both. This term includes any generation addition that increases the total maximum generator nameplate capacity at one site to 25 megawatts or more, but does not include those transmission lines beyond the generation station’s substation.

“Interested agency” means an agency, other than a regulatory agency, which the board in its discretion determines to have a legitimate interest in the disposition of the application.

“Intervenor” means a person who received notice under 24.6(2)“b,” “c,” “d,” “e,” or “f” and has filed with the board a written notice of intervention, or, in all other cases, who, upon written petition of intervention is permitted in the proceeding pursuant to 199—subrule 7.2(8).

“Participant” means any person who either jointly or severally owns or operates a proposed facility or significant alteration thereto or who has contracted or intends to contract for a purchase of electricity produced by the subject facility.

“Party” means each person or agency named or admitted as a party, including the applicant, intervenors, and consumer advocate.

“Person” means individual, corporation, cooperative, government or governmental subdivision or agency, partnership, association or other legal entity.

“Regulatory agency” means a state agency which issues licenses or permits required for the construction, operation or maintenance of a facility pursuant to statutes or rules in effect on the date on which an application for a certificate is accepted by the board.

“Significant alteration” means:

a. A change in the generic type of fuel used by the major electric generating facility; or

b. Any change in the location, construction, maintenance, or operation of equipment at an existing facility that results in a 10 percent increase or more in the maximum generator nameplate capacity of an existing facility if the increase is more than or equal to 25 megawatts.

“Site” means the land on which the generating unit of the facility, and any cooling facilities, cooling water reservoirs, security exclusion areas, and other necessary components of the facility, are proposed to be located.

“Site impact area” means the area within the state of Iowa within a ten–mile radius of the intersection of the transverse centerline axis and longitudinal centerline axis of the generator, or, all such generators where the proposed facility includes multiple generators.

“Zoning authority” means any city or county zoning authority in whose jurisdictional area a proposed facility site or portion thereof is located.

ITEM 4. Amend subrule 24.3(2), paragraphs “c” and “d,” as follows:

c. Within ten days of the receipt of application, the board shall forward copies thereof to each regulatory agency listed in the application. In addition, that part of the application responding to 24.4(1)“a” through “c” will be forwarded to such other agencies as the board deems appropriate, including the office of state archaeologist, the Iowa geological survey, the division of community action agencies of the department of human rights, and the office of historical preservation of the state historical society of Iowa as interested agencies, and also to the natural resource commission of the department of natural resources, the Iowa department of transportation, and the environmental protection division of the department of natural resources, if such have not been designated as regulatory agencies.

d. Any amendments to the application shall be filed in a manner similar to that required of the application. All information subsequently transmitted for purposes of inclusion in the application shall be by the issuance of appropriate amendments to the application which shall be in the form of page–for–page additions or substitutions properly identified as such.

ITEM 5. Amend rule 199—24.4(476A), introductory paragraph, as follows:

199—24.4(476A) Application for a certificate—contents. Each person or group of persons proposing to construct a facility after January 1, 1977, or a significant alteration to a facility shall file an application for certificate of public convenience, use, and necessity with the board, unless otherwise provided by these rules. Any such person may file its application in stages. The applicant may file a portion of an application and, in conjunction therewith, a request that the board accept such portion of the application pursuant to subrule 24.5(3) and conduct a separate phase of the proceeding with respect to issues presented by such portion of the application to the extent permitted pursuant to 24.5(3) and 24.10(476A). The purpose of this rule is to elicit the development and presentation of information sufficient to adequately facilitate comprehensive evaluation of a proposed facility’s feasibility. Nothing in this rule shall be construed to limit or in any way restrict the amount or type of information relevant to the issues in a plant–siting adjudication. Any omission or deficiency in the filed information, which is known to the applicant, shall be clearly identified by the applicant with an explanation for the noted omission or deficiency. Applicant shall indicate whether the information omitted will be supplied at a later date and, if not, shall indicate the rationale for the omission. An application shall substantially comply with the following informational requirements:

ITEM 6. Amend subrule 24.4(1) as follows:

24.4(1) In section 1, entitled, “General Information,” applicant shall include the following information:

a. Name The legal name, address, telephone number, facsimile transmission number, and E–mail address of the applicant and all other participants of the proposed facility at the time of filing, as well as the name of the person authorized to receive communications relating to the application on behalf of those persons, Iowa business address, if applicable, and principal place of business of the applicant.

b c. A complete description of the current and proposed rights of ownership in the proposed facility and current or planned purchase power contracts with respect to the proposed facility.

c d. A general site description including a legal description of the site location, a map showing the coordinates of the site and its location with respect to state, county, and other political subdivisions, and prominent features such as cities, lakes, rivers and parks within the site impact area. Applicant shall also provide a more detailed map showing the location of the facility perimeter, utility property, railroads and other transportation facilities, abutting and adjacent properties, cities, lakes, rivers, parks, other public facilities, cemeteries and places of historical significance within one mile of the site boundary.

d e. A general description of the proposed facility including a description of the principal characteristics of the facility such as major components and such information as will generally acquaint the board with the significant features of the facility, including the capacity of the proposed facility inmegawatts expressed by the contracted maximum generator nameplate MW rating, the net facility addition to the system in MW, by net to the busbar rating, and the portion (in MW) of the design capacity of the proposed facility which is proposed to be available to serve for use by each participant’s service area participant, the number and type of generating units and the type of fuel used by each, primary fuel source for each such unit, the heat rate of each generating unit in Btu/kilowatt hour over the range of its operating capacity, the function of each generating unit in applicant’s generating system, total hours of operation anticipated seasonally and annually, output during these hours, expected capacity factors, a description of the general arrangement of major structures and equipment to provide the board with an understanding of the general layout of the facility, and a schedule for the facility’s construction and utilization including the projected date significant site alteration is proposed to begin and the projected date the facility is to be placed into service. For this purpose, a group of several similar generating units operated together at the same location such that segregated records of energy output are not available shall be considered as a single unit.

e f. A general description of all raw materials, including fuel, used by the proposed facility in producing electricity and of all wastes created in the production process. In addition to describing the wastes created in the production process, the applicant shall determine annual expected sulfur dioxide emissions from the facility and provide a plan for acquiring allowances sufficient to offset these emissions. The applicant shall describe all transportation facilities currently operating that will be available to serve the proposed facility and shall describe any additional transportation facilities needed to deliver raw materials and to remove wastes.

f g. Identification, general description and chronology of all financial and other contractual commitments undertaken or planned to be undertaken with respect to the proposed facility.

g h. A general map and description of the primary transmission corridors and the approximate routing of the rights–of–way in the vicinity of settled areas, parks, recreational areas, and scenic areas and an analysis of the existing transmission network’s capability to reliably support the proposed additional generation interconnection to the network. The analysis must also show that the interconnection to the transmission system is consistent with standard utility practices and the proposed interconnection does not degrade the adequacy, reliability, or operating flexibility of the existing transmission system in the area.

h i. A The applicant, if a public utility, must include a statement of total cost to construct the proposed facility. Such cost shall include, but shall not be limited to, the cost of all electric power generating units, all electric supply lines within the facility site boundary, all electric supply lines beyond the facility site boundary with voltage of 69 kilovolts or higher used for transmitting power from the facility to the point of junction with the distribution system or with the interconnected primary transmission system, all appurtenant or miscellaneous structures used and useful in connection with said facility or any part thereof, and all rights–of–way, lands or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance or operation of said facility.

i j. The names and addresses of those owners and lessees of record or real property identified in 24.6(2)“d” and “e.”

ITEM 7. Amend subrule 24.4(2) as follows:

24.4(2) In section 2, entitled, “Regulatory Requirements,” applicant shall include the following:

a. All information related to the regulatory agency and zoning authority requirements for permits or licenses necessary to construct, operate, and maintain the facility. Any deficiencies in this information shall be clearly identified, and a schedule for submitting the omitted information shall be presented.

b. A listing of every state agency from which any approval or authorization concerning the proposed facility is required and a listing of zoning authorities.

ITEM 8. Rescind subrules 24.4(3) to 24.4(5) and renumber subrules 24.4(6) and 24.4(7) as 24.4(3) and 24.4(4).

ITEM 9. Amend renumbered subrule 24.4(3) as follows:

24.4(3) In section 6 3, entitled “Community impact,” the applicant shall include an identification and analysis of the effects the construction, operation and maintenance of the proposed facility will have on the site impact area including, but not limited to, the following:

a. A forecast of the permanent impact of the construction, operation, and maintenance of the proposed facility on commercial and industrial sectors, housing, land values, labor market, health facilities, sewage and water, fire and public protection, recreational facilities, schools and transportation facilities.

b. A forecast of any temporary stress placed upon housing, schools or other community facilities as a result of a temporary influx of workers during the construction of the proposed facility.

c. A forecast of the impact of the proposed facility on property taxes of affected taxing jurisdictions. The forecast shall include the effects on property taxes caused by all community development proximately related to the construction of the proposed facility.

d. A forecast of the impact on agricultural production and uses.

e. A forecast of the impact on open space areas and areas of significant wildlife habitat. Such forecast shall include identification and description of the impact of the proposed facility on terrestrial and aquatic plants and animals.

f. A forecast of the impact on transportation facilities.

g. A forecast of the impact on cultural resources including known archaeological, historical and architectural properties, which are on, or eligible for, the National Register of Historic Places.

h. A forecast of the impact on landmarks of historic, religious, archaeological, scenic, natural or other cultural significance. Such information shall include an assessment of the aesthetic impact of the proposed facility, applicant’s plans to coordinate with the state historical preservation office and office of state archaeologist to reduce or obviate any adverse impact; and the applicant’s plans to coordinate with the state office of disaster services in the event of accidental release of contaminants from the proposed facility.

ITEM 10. Amend renumbered subrule 24.4(4) as follows:

24.4(4) Site selection methodology. In section 7 4, entitled “Site selection methodology,” applicant shall present information related to its selection of the proposed site for the facility. Such information shall include the following:

a. The general criteria used to select alternative sites, how these criteria were measured and weighted, and reasons for selecting those criteria. and how these criteria were used to select the proposed site.

d b. A discussion of the extent to which reliance upon eminent domain powers could be reduced by use of an alternative site, alternative generation method or alternative waste handling method.

ITEM 11. Amend subrule 24.6(2), paragraphs “a” and “b,” as follows:

a. All regulatory agencies, including Iowa department of transportation, and environmental protection division and natural resource commission of the department of natural resources.

b. Interested agencies as determined by the board, including the Iowa geological survey, office of state archae–ologist, and the office of historical preservation of the state historical society of Iowa.

ITEM 12. Amend subrule 24.7(6) as follows:

24.7(6) Conduct of the meeting. A member of the board, or a hearing examiner designated by the board, shall serve as the presiding officer at the meeting and present an agenda for such meeting which shall include a summary of the legal rights of affected legal landowners. No formal record of the meeting is required. The meeting shall not be considered adversarial in nature, but rather shall have as its purpose the presentation by the applicant of its proposal, the furnishing of as an opportunity for interested members of the public to raise questions regarding the proposal, and an opportunity for the applicant to respond.

ITEM 13. Rescind rule 199—24.8(476A) and renumber rule 199—24.9(476A) as 199—24.8(476A).

ITEM 14. Amend renumbered rule 199—24.8(476A) as follows:

Amend subrule 24.8(1) as follows:

24.8(1) General. The proceedings conducted by the board pursuant to this chapter shall be treated in the same manner as a contested case pursuant to the provisions of Iowa Code chapter 17A. Except where contrary to express provisions below, the hearing procedure shall conform to the board’s rules of practice and procedure, 199—Chapter 7, IAC. The proceeding for the issuance of certificate may be consolidated with the contested case proceeding for determination of applicable ratemaking principles under Iowa Code section 476.53.

Rescind and reserve subrule 24.8(6).

ITEM 15. Renumber rules 199—24.10(476A) to 199— 24.16(476A) as 199—24.9(476A) to 199—24.15(476A).

ITEM 16. Amend renumbered subrules 24.9(1), 24.9(3) and 24.9(4) as follows:

24.9(1) By motion. The board, upon its own motion or on the motion of the applicant, may order separate phases on particular issues of the proceeding. Each phase shall be addressed to issues involved in applying one or more of the facility siting criteria set forth in board subrule 24.11 10(2) and shall result in board findings with respect thereto.

24.9(3) Procedure. Each such hearing phase shall beconducted in conformance with the requirements of24.9 8(476A) or other rules of practice and procedure designated in the applicable chapter 28E agreement.

ITEM 17. Amend renumbered subrules 24.10(2) and 24.10(5) as follows:

24.10(2) Facility siting criteria. In rendering its certification decision, the board shall consider the following criteria:

a. Whether the service and operations resulting from the construction of the facility are required by the present and future public convenience, use and necessity consistent with the legislative intent and the economic development policy of the state as expressed in Iowa Code Title I, subtitle 5, and will not be detrimental to the provision of adequate and reliable electric service. Such determination shall include: whether the existing transmission network has the capability to reliably support the proposed additional generation interconnection to the network.

b. Whether the construction, maintenance, and operation of the proposed facility will cause minimum adverse be consistent with reasonable land use, and environmental policies, and aesthetic impact and are consonant with reasonable utilization of air, land, and water resources, for beneficial purposes considering available technology and the economics of available alternatives. Such determination shall include:

(1) Whether all adverse impacts attendant the construction, maintenance and operation of the facility have been reduced to a reasonably acceptable level;

(2) Whether the proposed site represents a reasonable choice among available alternatives from a technical, social, and economic standpoint;

( 4 3) Whether the proposed facility complies with applicable city, county or airport zoning requirements, and if not, whether the location of the proposed facility at the proposed site is reasonably justified from an economic, technical, and social standpoint.

c. Whether the applicant is willing to perform the services resulting from the construction of the facility and to construct, maintain, and operate the facility pursuant to the provisions of the certificate and the Act.

d. Whether the proposed facility meets the permit and licensing requirements of regulatory agencies.

e. Requirement for good engineering practice.

(1) Whether the facility will be constructed, maintained and operated in accord with accepted good engineering practice in the electric industry to assure, as far as reasonably possible, continuity of service, and safety of persons and property.

(2) The utility applicant shall use the applicable provisions in the publications listed below as standards of accepted good practice unless otherwise ordered by the board:

(a) (1) Iowa Electrical Safety Code, as defined in IAC[199], Chapter 25 199 IAC 25.

(b) (2) Rescinded, effective 1/12/83.

(c) (3) National Electrical Code ANSI–C1–1975., as defined in 199 IAC 25.

(d) (4) Operation and Maintenance of Turbine Generators–ANSI standard C5O.30–1972.

(e) (5) Power Piping–ANSI standard B31.1–1977 1998.

24.10(5) Application approval. If the board finds, after amendment or record reopening, or both, or otherwise, that affirmative findings are appropriate, the board shall approve the application and, in accordance with 24.13 12(476A), prepare a certificate of public convenience, use, and necessity for construction of the facility.

ITEM 18. Amend renumbered subrule 24.11(2) as follows:

24.11(2) In the event the board denies an application for a certificate or an amendment to a certificate, applicants who have received permission to begin site preparation pursuant to 24.12 11(1), shall restore the site, in accordance with the board order denying the application.

ITEM 19. Amend renumbered rule 199—24.12(476A) by adopting the following new subrules:

24.12(3) Certificate transfer. A certificate may be transferred, subject to the approval of the board, to a person who agrees to comply with the terms of the certificate including any amendments to the certificate. Certificates shall be transferable by operation of law to any receiver, trustee or similar assignee under a mortgage, deed of trust or similar instrument.

24.12(4) Application withdrawal. Pursuant to Iowa Code section 476.53, a rate–regulated utility shall have the option of withdrawing its application for issuance of a certificate.

ITEM 20. Amend renumbered rule 199—24.13(476A) as follows:

24.13(1) Application for amendment.

a. Each person or group of persons proposing a significant alteration to any facility which was constructed pursuant to a certificate of public convenience, use and necessity issued by the board, shall file an application for an amendment to a certificate in lieu of an application for a certificate. of public convenience, use, and necessity.

b. Each person or group of persons proposing a significant alteration to any facility which was not constructed pursuant to a certificate of public convenience, use, and necessity issued by the board, must file an application for such certificate unless:

(1) The facility has not attained full commercial rating and has not operated in excess of 80 percent of its maximum nameplate megawatt rating for ten hours daily for 45 consecutive days; and

(2) The significant alteration requires no more land than was required for the facility, is within the scope of publicly announced plans for the facility’s construction, and entails no additional contracts for major components than those let for the facility.

24.13(2) All applications for amendment to a certificate shall be filed in accordance with 24.3(476A) and shall include:

a. A complete identification and discussion of the nature of the amendment proposed; and

b. A complete enumeration of the effects the amendment has on the accuracy of the information contained in the application for a certificate of public convenience, use and necessity filed pursuant to 24.4(476A).

24.13(3) Upon board acceptance of the application in accordance with 24.14 13(1), the board shall establish a hearing schedule. At the board’s discretion, the informational meeting and prehearing conference for this proceeding may be waived. Notice shall be in accordance with 24.6(2).

24.13(4) In the consideration of an application for a certificate, pursuant to 24.14 13(1)“b,” or amendment to a certificate, pursuant to 24.14 13(1)“a,” for an addition of less than 100 megawatts in the maximum generator nameplate capacity of the facility, there shall be a rebuttable presumption that the decision criteria of 24.11 10(2) are satisfied.

24.13(5) Amendment to a certificate. In determining whether an amendment to a certificate will be issued to the applicant, the board will be guided by the criteria set forth in 24.11 10(2) to the extent applicable and appropriate.

This rule is intended to implement Iowa Code sections 17A.3, 474.5, 476.1, and 476.2.

ITEM 21. Amend renumbered rule 199—24.15(476A) as follows:

199—24.15(476A) Waiver. The board, if it determines that the public interest would not be adversely affected, may waive any of the requirements of this chapter. for facilities with a maximum nameplate generating capacity of 100 meg–awatts or less. In determining whether the public interest would not be adversely affected, the board will consider the following factors:

1. The purpose of the facility.

2. The type of facility.

3. If the facility is for the applicant’s own needs., whether there are plans to sell excess capacity and, if so, to whom.

6 4. The effect of the facility on existing transmission systems.

7 5. Any other relevant factors.

This rule is intended to implement Iowa Code sections 476A.1, and 476A.2, and sections 476A.4, 476A.6, 476A.7 and 476A.15 as amended by 2001 Iowa Acts, House File 577.

Pursuant to Iowa Code sections 17A.4 and 476.1 and 2001 Iowa Acts, House File 577, the Utilities Board (Board) gives notice that on August 3, 2001, the Board issued an order in Docket No. RMU–01–8, In re: Competitive Bidding, “Order Commencing Rule Making,” to receive public comment on a new proposed chapter on competitive bidding to reflect changes to Iowa Code chapter 476 that were enacted in 2001 Iowa Acts, House File 577. In particular, section 12 of 2001 Iowa Acts, House File 577, allows rate–regulated public utilities that file an application to construct or lease generating plants that meet certain criteria to request that the Board specify in advance, by order issued after a contested case proceeding, the rate–making principles that will apply when the costs of the facility are included in regulated electric rates. In making this determination, the Board is required to make two findings. The second finding is the subject of these rules.

2001 Iowa Acts, House File 577, section 12, requires the Board to make a finding that “[t]he rate–regulated utility has demonstrated to the board that the public utility has considered other sources for long–term electric supply and that the facility or lease is reasonable when compared to other feasible alternative sources of supply. The rate–regulated public utility may satisfy the requirements of this subparagraph through a competitive bidding process, under rules adopted by the board, that demonstrate the facility or lease is a reasonable alternative to meet its electric supply needs.” The Board is proposing a new chapter, 199 IAC 40, for the competitive bidding rules it is required to adopt.

As indicated by the statute, the one purpose of the proposed competitive bidding rules is to provide credible evidence in a regulatory principle proceeding that the Board can rely upon in assessing the price and terms available in the long–term purchased power market. The Board may then use this evidence in determining whether the utility’s proposed build or lease arrangement for new generation is reasonable. A summary of the significant portions of the proposed chapter follows.

2001 Iowa Acts, House File 577, does not require the utilities to comply with the Board’s competitive bidding rules when conducting a solicitation for new resources either inside or outside the regulatory principle proceeding. Historically, the Board’s practice has been not to require competitive bidding for purchased power solicitation. Therefore, 199 IAC 40.1(2) makes compliance with the competitive bidding program optional. If a utility chooses, it may in a regulatory principle proceeding present other evidence to demonstrate that it has considered other sources for long–term electric supply and that the facility or lease is reasonable when compared to other feasible alternative sources of supply.

199 IAC 40.1(3) provides that, unless good cause is shown for a targeted solicitation, the utility shall use an all–source solicitation process. All–source means that bids are solicited for both demand–side and supply–side resources. All–source bidding also envisions utility–owned options. Since utility–owned resources, as well as unaffiliated supply–side resources and demand–side savings, are “feasible alternatives” to meet the utility’s resource needs, these options should be considered in the acquisition process.

The proposed rules require the utility to file build or lease cost estimates. This requirement is consistent with 2001 Iowa Acts, House File 577, and the primary purpose of the rules. The statute requires the Board to make a finding that the facility or lease is a reasonable alternative to meet the utility’s electric supply needs. The Board does not believe it is possible to make a reasonableness determination of the proposed facility or lease without estimating the cost of such facility or lease using the regulatory principles desired by the utility. It is also essential that this information be disclosed prior to the submission of competitor bids to avoid gaming of the new regulatory environment. For example, if the bids come in substantially higher than what the utility deemed it needed to build or lease, the utility may adjust its proposed regulatory principles to reflect costs envisioned by the higher bids and, as such, increase costs to ratepayers. Conversely, the utility could lower its build or lease expectations to meet the lowest bid, making the bidding process unfair to the bidders and discouraging participation.

The proposed rules envision an expedited timeline with only 15 days for objection at different stages of the process and an assumption of compliance if no objection is made. The expedited timeline reflects the current need for new resources and a desire not to hold up the process, while at the same time giving bidders sufficient time to draft their proposals.

199 IAC 40.2(1) gives the utility the option of releasing its utility–build or lease cost estimates as part of its request for proposals (in which case it would be available to all bidders) or filing the estimates with the Board seven days prior to the submission of sealed bids (in which confidentiality could be requested). By publicly filing the estimates as part of its request for proposals, the utility gives bidders a price to beat that may encourage lower bids. However, the public availability of these estimates may discourage some bidders and, as such, limit participation in the process. It is essential that the utility–build or lease estimates be filed prior to the submission of other bids to avoid manipulation of the proposed regulatory principles and gaming of the system as discussed earlier.

The proposed rules provide that an affiliate of the utility must also file its bid seven days in advance of the submission of other bids. This early submission avoids the possibility that the affiliate will receive information on the other bids prior to its own submission and adjust its bid accordingly. This requirement also creates the perception of fairness that may encourage participation in the bidding process. The cost of early submission to the utility’s affiliate is minimal.

199 IAC 40.2(1) allows the utility to submit a list of independent evaluators for review by the Board and other interested parties. Accompanying the names would be the qualifications of each evaluator, as well as disclosure of any associations the evaluator has with the utility. Parties have 15 days to object to the list. If no objections are received, the utility may choose any name off the list as its evaluator on a project–by–project basis. The utility is also required to pay the independent evaluator.

It is important to note that the independent evaluator plays only a limited role under the proposed rules. The independent evaluator’s only functions are to ensure a fair bidding process and compliance with Board rules. The independent evaluator does not evaluate the bids or assist in the selection process.

After the utility files the short–list selection of potential suppliers pursuant to proposed 199 IAC 40.2(1)“l,” the utility has control over the final selection and contract negotiations. This is appropriate because the one purpose of the rules is to obtain evidence for use in a regulatory principle proceeding. The utility will have to prove the reasonableness and prudence of its final selection in a contested case proceeding.

The filing of utility–build or lease cost estimates was discussed above.

The proposed rules provide that the function of the independent evaluator is to ensure the bidding process is fair and complies with Board rules. The evaluator must make a certification to this effect in the acquisition process. These functions are consistent with the primary purpose of the rules. In order to ensure credible evidence in the regulatory principle proceeding, the most important aspect of the solicitation is that it is conducted on a fair and impartial basis when an affiliate is bidding.

The proposed rules provide for some flexibility in the competitive bidding process. Rather than prescribing weights for certain price and nonprice factors, the proposed rules allow the utilities to establish these weights as part of the RFP process. The RFP evaluation criteria and required information, as specified in the proposed rules, are essential to constructing a knowledgeable bid.

Proposed 199 IAC 40.6(476) sets forth a specific complaint process. The independent evaluator is required to participate.

Pursuant to Iowa Code sections 17A.4(1)“a” and “b,” any interested person may file a written statement of position pertaining to the proposed rules. The statement must be filed on or before September 11, 2001, by filing an original and ten copies in a form substantially complying with 199 IAC 2.2(2). All written statements should clearly state the author’s name and address and should make specific reference to this docket. All communications should be directed to the Executive Secretary, Utilities Board, 350 Maple Street, Des Moines, Iowa 50319–0069.

A public hearing to receive comments on the proposed amendments will be held at 10 a.m. on October 30, 2001, in the Board’s hearing room at the address listed above.

These rules are intended to implement Iowa Code section 476.1 and 2001 Iowa Acts, House File 577.

The following chapter is proposed.

Adopt new 199 IAC 40 as follows:

CHAPTER 40
COMPETITIVE BIDDING PROGRAMS

40.1(1) Definitions. The following words and terms when used in these rules will have the meaning indicated below:

“Affiliate” means a party that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a rate–regulated public utility.

“Arm’s–length transaction” means a standard of conduct under which unrelated parties, each acting in its own best interest, would carry out a particular transaction. Applied to related parties, a transaction is at arm’s length if the transaction could have been made on the same terms to a disinterested third party in a bargained transaction where each party has substantially the same bargaining power.

“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an enterprise through ownership, by contract or otherwise.

“Demand–side savings” or “demand–side management” means an increase in energy efficiency, reduced demand or improved load factors resulting from hardware, equipment, devices, or practices that are installed or instituted at a customer facility. Demand–side management measures include modifications to existing demand–side management measures.

“Energy efficiency” means a decrease in electricity or gas requirements of participating customers during any selected time period, with end–use services held constant.

“RFP” means request for proposals.

“Supply–side resource” means a resource that can provide electrical energy or capacity to the utility. Supply–side resources include utility–owned generating facilities, and energy or capacity purchased from other utilities and nonutilities. Supply–side resources include modifications to existing generating facilities.

“Utility” as defined in this chapter refers to a rate–regulated electric public utility selling to retail customers in Iowa.

40.1(2) Applicability and purpose. The rules apply to any rate–regulated electric public utility choosing to establish a competitive bidding program. The rules establish minimum requirements for bidding programs used to purchase supply– or demand–side resources from other suppliers. Under these rules, bids compete not only with other bids but also with the utility’s own build or lease options. Utilities maintain the right to secure or free up electric capacity and energy through means other than a competitive bidding program.

40.1(3) General guidelines for resource acquisition. In formally soliciting bids, the utility shall use an all–source, that is, a demand–side and supply–side resource solicitation process. The all–source solicitation may include separate, parallel requests for projects that are designed to meet its resource needs. The utility may also conduct targeted solicitations upon a showing of good cause and upon approval of the board. In determining good cause for segmenting a supply–side solicitation, the board will consider whether the utility has in place a board–approved energy efficiency plan as required by Iowa Code section 476.6(19) and offers tariffed rate programs giving customers the opportunity to curtail load for compensation during times of energy or capacity scarcity. The utility, as part of any solicitation under its competitive bidding program, will provide estimates of the cost the utility would incur in building or leasing the desired resource consistent with the requirements of 199 IAC 40.3(476).

40.1(4) Waivers. The utility may file for a waiver of any or all of these bidding program requirements. In making a decision regarding the granting of a waiver, the board shall consider, among other things, the governance of the utility, the timing of the solicitation, requirements of other regulatory bodies having jurisdiction over the utility, and whether or not an affiliate of the utility is considering bidding on the project.

40.2(1) Procedures. The utility shall use the following procedures to competitively acquire supply–side resources and demand–side savings under its competitive biddingprogram. If an affiliate of the utility plans to submit bids for supply–side resources or demand–side savings it will own or operate, it shall additionally adhere to the procedures specified in 199 IAC 40.4(476).

a. If a utility determines that it has a need for additional supply–side resources or demand–side savings, it shall make a general public announcement indicating its needs and intentions. If an affiliate of the utility decides to bid once a request for proposal is announced, it will alert the manager at the public utility responsible for the request for proposal and bid process of its intention.

b. The utility shall provide a statement to the board indicating whether it prefers to acquire additional supply–side resources and demand–side savings through all–source bidding or some form of segmented bidding and the justification for such preference. As part of this statement, the utility shall disclose whether an affiliate of the utility desires, in the competitive resource acquisition process, to submit bids forsupply–side resources or demand–side savings it will own or operate. The utility shall also indicate whether it intends to publish its utility–build or lease cost estimates as part of its RFP.

c. If the utility chooses some form of segmented bidding in its statement, interested parties shall have 15 days from the filing of the statement to object in writing. Absent objection, the utility may proceed with the resource acquisition proc–ess. If objection is made, the board will decide within 15 days of the objection whether the segmented bidding should proceed.

d. If an affiliate of the utility desires to submit bids for supply–side resources, the utility shall select an independent evaluator from the board–approved list of evaluators to perform the functions specified in 199 IAC 40.4(3). The name of the independent evaluator selected for this project shall be filed with the statement to the board required in 199 IAC 40.2(1)“b.” The utility shall provide the estimated cost to utilize the services of the independent evaluator as part of its statement. The independent evaluator shall be paid by the utility.

e. If a board–approved list of independent evaluators has not been established at the time of the proposed solicitation, the utility shall file a short list of names with the board with qualifications and potential conflicts of interest as part of its statement required in 199 IAC 40.2(1)“b.” Interested parties and the board shall have 15 days to object to any names on the short list. Absent objection, the utility may proceed with any independent evaluator identified on the list. With objection, the board shall review the evaluators on the list and approve only names that it deems are independent of the utility and the bidding process and qualified to perform the functions of the independent evaluator as identified in 199 IAC 40.4(3). If the board determines none of the persons listed are sufficiently independent or qualified to perform the functions of the independent evaluator, the process will begin again with a new list from the utility.

f. The utility shall publish and circulate, pursuant to standard industry practices, an RFP(s) that complies with the requirements of 199 IAC 40.5(476). The utility shall make the RFP(s) readily available to interested persons by conspicuously posting the request on its Internet site or other public electronic bulletin board. The RFP(s) shall be filed with the project’s independent evaluator if one is required.

g. Fifteen to 30 days after publication of the RFP(s), the utility shall notice and convene a bid conference open to all potential bidders. At the bid conference, the utility shallanswer questions posed by bidders concerning the RFP(s). Bidders may petition the utility to hold more than one bid conference if needed. However, in no event shall a bid conference be scheduled later than 30 days beyond the issuance of the RFP(s). The independent evaluator, if required pursuant to 199 IAC 40.4(3), shall attend the bid conference.

h. At the conclusion of the bid conference(s), the utility shall publish and circulate, pursuant to standard industry practices, the date for submission of sealed bids. That date shall be no earlier than 30 days following the last bid conference.

i. If the utility chooses not to file with the RFP(s) the utility–build or lease cost estimates required by 199 IAC 40.4(476), it shall file such estimates with the board seven days prior to the deadline for other bidders.

j. If an affiliate of the utility desires to submit a bid for supply–side resources or demand–side savings it will own or operate, it shall submit its bid to the independent evaluator, the board, and the utility seven days prior to the deadline for other bidders.

k. After the close of the deadline for the submission of bids, the utility shall publicly open the sealed bids and shall then commence a review to determine whether the bids are responsive to the minimum bid evaluation criteria specified in the RFP(s). All responsive bids shall be evaluated in accordance with the bid evaluation criteria specified in the RFP(s).

l. Upon completing its evaluation, the utility shall file with the board a short list of bidders whose bids the utility deems are most reasonable in meeting the resource needs of the utility. The utility’s filing of its short–list selection shall include a report that is sufficiently detailed and rigorous to support those selections.

m. If an independent evaluator was required as part of the solicitation, the independent evaluator shall submit its certification of the fairness of the bidding process at the same time the utility submits its short list to the board.

n. Upon filing of the short–list selection and certification from the independent evaluator, if required pursuant to 199 IAC 40.4(3), interested parties shall have 15 days to file a complaint alleging that a bidder was excluded from the short list due to unfair treatment, significant errors in the selection process, or other similar reasons.

o. Absent complaints regarding the short–list selection, the utility may select a resource provider from the short list, choose the utility–build or lease option, or combine both options to meet its resource needs, whichever the utility deems most reasonable. Final selection and contract negotiations reside solely with the utility.

40.2(2) Evaluation of bids. The evaluation of bids submitted in a competitive bidding program must be based on the criteria identified in the utility’s request for proposal. Bids should compete not only with other bids but also with the utility’s own build or lease options, including plant life extensions, upgrades, and modifications.

40.2(3) Contract negotiations. The utility shall negotiate all contracts. A utility may negotiate a pricing structure that is suitable for the resource, considering such factors as the reliability of the resource, need for security of performance, the availability of other means of ensuring security of performance, the nature of the resource, the level of risk, and other appropriate factors. The utility shall negotiate contract terms that appropriately allocate the risks of future fuel costs and other resource costs between the resource provider and the utility.

40.2(4) Utility reporting. The utility conducting a bid solicitation under its competitive bidding program shall submit a written report to the board within 45 days of completion of its evaluation of bids. This report shall describe in detail the evaluation of bids and the utility’s comparison of the bids received to its own utility–build or lease options. The report shall also include a copy of the utility’s RFP(s), a detailed description of the utility’s bid evaluation and selection process, and copies of all bids submitted to the utility in its bid solicitation.

40.3(1) General requirements. A utility conducting a bidding program shall develop detailed cost estimates of its own build or lease options. Those options may include units jointly planned with other companies, plant upgrades or modifications, and plant extensions. The cost estimates shall be detailed and filed on both a project and per–unit basis.

40.3(2) Project cost estimates. Project cost estimates shall be current and based on the prices likely to be actually quoted by manufacturers and vendors of power plant equipment. The utility–build or lease option shall be structured on an incremental cost basis, including an allocation of common costs incurred for the project’s development. The utility shall detail in its filing the cost allocations and methodologies used for overhead costs and any joint facilities used in its estimates.

40.3(3) Per–unit cost estimates. The utility shall file estimates of per–unit costs in the same measurements or unitsexpected from other bidders on the project sufficient for the board to determine the relative costs of the utility–build or lease option versus like bids received from other bidders. The per–unit cost estimates shall clearly identify the rate–making principles used in calculating these costs.

40.3(4) Filing requirements. The utility has the option of filing the utility–build or lease cost estimates, including estimated unit costs, with the board and the independent evaluator as part of the RFP(s). Utility–build or lease cost estimates filed as part of the RFP(s) shall be open and available to all interested bidders on the project. If the utility–build or lease cost estimates are not included as part of the RFP(s), then such estimates shall be submitted to the board seven days prior to the utility’s receiving competitive bids for new electric capacity and energy.

40.4(1) General requirements. Any bid prepared by an affiliate of the utility shall comply with the selection criteria specified in the RFP(s) and with board rules governing affiliate transactions (199 IAC 31). The utility may not give preferential treatment or consideration to a bid prepared by an affiliate of the utility. To ensure a level playing field for all bidders, the utility shall comply with its code of conduct as required by 199 IAC 40.4(2) and shall hire an independent evaluator to ensure compliance with the code of conduct prior to the drafting of the RFP(s).

40.4(2) Codes of conduct. Each utility must establish a code of conduct to ensure that all transactions between the utility and its affiliates are conducted on an arm’s–length basis. The utility’s code of conduct shall be filed with the board prior to any solicitation under the utility’s competitive bidding program. At a minimum, the utility’s code of conduct shall include the following:

a. The utility shall maintain full written records and notes of all communications between the utility and the bidding affiliate and between the utility and the independent evaluator, as well as all other bid–related communications.

b. The utility shall ensure that the bidding affiliate has access only to the same bidding information at the same time as other bidders.

c. The utility’s RFP(s) and evaluation team shall not share with the bidding affiliate any information regarding the request for proposals, standard contract, drafts of either document, information contained in those documents, or any information about the preparation of those documents unless and until such information is available to all other bidders in the solicitation.

d. The utility shall establish a single point of contact for each RFP and bidding process for all questions about bids and evaluations.

e. The utility shall keep in a secure location all requests for proposals and contract drafts, related bid documents, any analyses, notes, communications, evaluations and any other written material concerning the RFP(s), standard contracts, proposals, and all other documents related to the bidding process.

f. The utility’s evaluation team members shall brief management regarding confidential information about the bidding process only on a need–to–know basis. Such briefings will not occur in general staff meetings or other group meetings.

g. The utility will make all pertinent employees aware of its procedures that must be followed between the public utility and the bidding public utility affiliate or division for confidentiality of RFP(s), standard contracts, and other documents pertinent to the bidding process.

h. The utility shall not share resources with an affiliate bidder unless such resources are also made available to other bidders.

i. The utility shall not contract for the provision of services and equipment on behalf of an affiliate bidder that are not available to other bidders.

j. The utility shall not withhold Clean Air Act emissions allowances from potential bidders to circumvent or hinder the competitive bidding process.

k. Employees of any bidding affiliate are prohibited from participating in the evaluation process.

l. All contract negotiations between the utility and the bidding affiliate shall be in writing.

40.4(3) Independent evaluator. The utility shall use an independent evaluator if there is a likelihood that an affiliate’s bid may be included among the bids to be evaluated. The utility shall maintain a written record of communications and contacts with the independent evaluator.

a. Short list of approved independent evaluators. A board–approved list of independent evaluators shall be compiled using the following process:

(1) The utility shall file with the board a list with qualifications of at least five independent evaluators it deems to be appropriate in auditing the bidding and selection process under its competitive bidding program. The utility shall reveal each listed evaluator’s associations with the utility or any of its affiliates, divisions, or subsidiaries that could create a potential conflict of interest.

(2) Upon the utility’s filing of the list, any interested party shall have 15 days to object to either the independence or the qualifications of one or more evaluators included on the list.

(3) After the time of objection has passed, the board shall approve a final list of potential evaluators that it deems to be independent and qualified to perform the functions of the independent evaluator as specified in 199 IAC 40.4(3)“b.”

b. Functions of the independent evaluator. The functions of the independent evaluator shall include the following:

(1) Determine whether the utility complied with its code of conduct as required by 199 IAC 40.4(2).

(2) Determine whether the utility’s RFP complies with the minimum requirements specified in 199 IAC 40.5(476).

(3) Determine whether the utility treated and considered its affiliate’s bid in the same manner it treated and considered other bids intended to meet the same resource needs.

(4) Determine if the transaction provides the utility’s affiliate any unfair competitive advantage by virtue of its affiliation or association with the utility.

(5) Certify with the board at the time the utility files its short list of potential providers that the process was fair and complied with the utility’s code of conduct as required by 199 IAC 40.4(2).

(6) Any other determinations or certifications the evaluator deems relevant.

199—40.5(476) Request(s) for proposals (RFPs). The request(s) for proposals shall clearly set forth the eligibility and evaluation criteria and shall specify the weight to be given to any price or nonprice selection criteria.

40.5(1) Minimum evaluation criteria. The price and nonprice factors selected for evaluation and the weightings attached to each can reasonably vary from utility to utility and project to project. However, the following factors shall be considered for each supply–side project solicitation:

a. Level and schedule of required capacity and energy payments;

b. Status of project development;

c. System fuel diversity;

d. Reliability and performance measures;

e. Firm versus variable or indexed pricing;

f. Dispatchability;

g. Project location and effect on the transmission grid;

h. Use of Iowa fuels, manpower, and other state resources;

i. Benefits to be derived by the industries and communities associated with a particular project;

j. Demonstrated financial viability of the project and the developer;

k. Developer’s prior experience in the field.

40.5(2) Contents of the request(s) for proposals. The RFP(s) shall contain sufficient information to apprise potential bidders of the utility’s criteria for evaluation of bids received as part of the competitive resource acquisition proc–ess specified in 199 IAC 40.2(476). This information shall include the bid evaluation criteria, including the weights to be assigned to each criterion, that the utility plans to use in ranking the bids received. Specific information associated with the bid evaluation criteria provided by the utility shall include, but not be limited to, the following:

a. Preferred fuel types;

b. The extent to which additional supply–side resources or demand–side savings must be located in certain geographic areas due to transmission constraints, local load condition, permitting constraints, or other factors;

c. Important transmission constraints on the utility’s system and on adjoining utility systems, and reasonable estimates of transmission costs for supply–side resources located in different areas;

d. The extent and degree to which supply–side resources must be dispatchable, including the requirement, if any, that supply–side resources be able to operate under automatic dispatch control;

e. The customer class or classes from which the utility desires to acquire demand–side savings;

f. The methodology proposed by the utility to monitor and evaluate the benefits and costs of demand–side savings and the quantity of demand–side savings sought from each class;

g. Supply–side resource reliability requirements andobjectives, and the method(s) that will be used to measure the achievement of those requirements and objectives, including the contribution of individual supply–side resources;

h. The desirability of firm pricing and contract terms of various durations;

i. The minimum bid evaluation criteria that must be met by a bidder for a bid to be considered responsive to the RFP(s). The utility shall be reasonable in its specification of minimum bid evaluation criteria and shall not artificially limit the pool of bidders through unreasonable or excessively restrictive minimum criteria;

j. The utility’s proposed standard contract(s) for the acquisition of supply–side resources and demand–side savings.

199—40.6(476) Complaints. The board shall resolve disputes between a utility and a bidder that may arise as a result of implementation of the bidding process. The independent evaluator shall participate by providing information on the bidding process including the selection of the winning bid. A complaint by a bidder concerning the utility’s decisions on the acquisition of resources in a solicitation must be filed within 15 days of the filing of the short–list selection with the board.

These rules are intended to implement Iowa Code section 476.1 and 2001 Iowa Acts, House File 577.

Pursuant to the authority of Iowa Code sections 17A.9A and 159.5(11), the Department of Agriculture and Land Stewardship hereby adopts Chapter 8, “Waiver or Variance of Rules,” Iowa Administrative Code.

Notice of Intended Action was published in the Iowa Administrative Bulletin on February 21, 2001, as ARC 0493B. No comments were received. The adopted rules are identical to the rules published under Notice. They are intended to comply with Executive Order Number 11 and with Iowa Code section 17A.9A, which provides for waivers or variances of administrative rules. The rules are based on the Attorney General’s uniform waiver rules.

These rules shall become effective on September 26, 2001.

These rules are intended to implement Iowa Code section 17A.9A and chapter 159.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these rules [Ch 8] is being omitted. These rules are identical to those published under Notice as ARC 0493B, IAB 2/21/01.

[Filed 8/3/01, effective 9/26/01]
[Published 8/22/01]

[For replacement pages for IAC, see IAC Supplement 8/22/01.]

Pursuant to the authority of Iowa Code section 17A.3, the Division of Criminal and Juvenile Justice Planning hereby adopts Chapter 9, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Number Seven, Volume XXII, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Notice of Intended Action was published in the February 21, 2001, Iowa Administrative Bulletin as ARC 0497B. A public hearing was held March 13, 2001. No public comment was received on these rules. The adopted rules are identical to those published under Notice.

These rules were approved by the Division on July 25, 2001.

These rules will become effective September 26, 2001.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these rules [Ch 9] is being omitted. These rules are identical to those published under Notice as ARC 0497B, IAB 2/21/01.

[Filed 7/27/01, effective 9/26/01]
[Published 8/22/01]

[For replacement pages for IAC, see IAC Supplement 8/22/01.]

Pursuant to the authority of Iowa Code section 147.76, the Board of Dental Examiners hereby amends Chapter 11, “Applications,” and Chapter 12, “Examinations,” Iowa Administrative Code.

The purpose of the amendments is to allow applicants for dental or dental hygiene licensure to complete either the Central Regional Dental Testing Service, Inc. (CRDTS) examination or the Western Regional Examining Board, Inc. (WREB) examination, if taken after January 1, 2001. After ongoing study and research, the Steering Committee of CRDTS has recommended that its member states accept both CRDTS and WREB examinations as a qualification for licensure. This will allow applicants for licensure additional flexibility to meet the requirements for licensure by examination. In addition, the amendments require examinees who fail the CRDTS or WREB examination to retake the entire examination. In the past, examinees were required to retake only the portion of the examination in the area of the failure. However, beginning this year, CRDTS has changed the way examinations are scored and administered, so that examinees are now given an overall comprehensive score and can no longer retake only certain portions of the examination.

These amendments are subject to waiver or variance pursuant to 650—Chapter 7.

Notice of Intended Action was published in the Iowa Administrative Bulletin on April 18, 2001, as ARC 0637B. A public hearing on the amendments was held on May 8, 2001. No oral comments on the amendments were received. One written comment was received which requested that the Board accept the WREB examination retroactive to January 2000. These amendments are identical to those published under Notice.

These amendments were approved at the July 19, 2001, regular meeting of the Board of Dental Examiners.

These amendments will become effective on September 26, 2001.

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

The following amendments are adopted.

ITEM 1. Amend rule 650—11.1(153) as follows:

650—11.1(153) Examination required for licensure to practice dentistry. Any person desiring to take the examination to qualify for licensure to practice dentistry in this state must make application to the Central Regional Dental Testing Service, Inc. (CRDTS), 1725 Gage Blvd., Topeka, Kansas 66604, or the Western Regional Examining Board, Inc. (WREB), 9201 North 25th Avenue, Suite 185, Phoenix, Arizona 85021, and meet such other requirements as CRDTS or WREB may establish for purposes of the examination.

This rule is intended to implement Iowa Code sections 147.29 and 147.34.

ITEM 2. Amend subrule 11.2(2), paragraph “d,” as follows:

d. Evidence of successful completion of the examination, with resulting scores, administered by the Central Regional Dental Testing Service, Inc., or the Western Regional Examining Board, Inc., taken after January 1, 2001.

ITEM 3. Amend rule 650—11.4(153) as follows:

650—11.4(153) Examination required for licensure to practice dental hygiene. Any person desiring to take theexamination to qualify for licensure to practice dental hygiene in this state must make an application to the Central Regional Dental Testing Service, Inc. (CRDTS), 1725 Gage Blvd., Topeka, Kansas 66604, or the Western Regional Examining Board, Inc. (WREB), 9201 North 25th Avenue, Suite 185, Phoenix, Arizona 85021, and meet such other requirements as CRDTS or WREB may establish for purposes of the examination.

This rule is intended to implement Iowa Code sections 147.29 and 147.34.

ITEM 4. Amend subrule 11.5(2), paragraph “d,” as follows:

d. Evidence of successful completion of the examination, with resulting scores, administered by the Central Regional Dental Testing Service, Inc., or the Western Regional Examining Board, Inc., taken after January 1, 2001.

ITEM 5. Amend subrules 12.1(6) and 12.1(7) as follows:

12.1(6) The Prior to April 1, 1995, the examinee must attain an average grade of not less than 70 percent on each clinical portion of the examination and 70 percent on the written portion of the examination. Effective Between April 1, 1995, and December 31, 2000, the examinee must attain an average grade of not less than 75 percent on each clinical portion of the examination and 75 percent on the written portion of the examination. Effective April 1, 1997, the written portion of Central Regional Dental Testing Service will be (CRDTS) was eliminated from the examination. Effective January 1, 2001, the examinee must attain a comprehensive score that meets the standard for passing established by CRDTS or the Western Regional Examining Board, Inc. (WREB).

12.1(7) Each examinee shall be required to perform such clinical operations as may be required by the Central Regional Dental Testing Service, Inc. or the Western Regional Examining Board, Inc. (WREB) for the purpose of sufficiently evaluating and testing the fitness of the examinee to practice dentistry.

ITEM 6. Amend rule 650—12.2(153) as follows:

12.2(1) Second examination.

a. On the second examination attempt, a dental examinee shall be required to take only those sections of the examination in which the examinee did not achieve a score of at least 70 percent. If the second examination attempt was taken after April 1, 1995, the dental examinee shall be required to take only those sections of the examination in which the examinee did not achieve a score of at least 75 percent. Beginning January 1, 2001, a dental examinee who did not achieve a comprehensive passing score on the entire examination shall be required to retake the entire examination.

b. A dental examinee who fails the second examination will be required to complete remedial education requirements set forth in 12.2(2).

12.2(2) Third examination.

a. Prior to the third examination attempt, a dental examinee must submit proof of additional formal education or clinical experience approved in advance by the board.

b. At the third examination, prior to January 1, 2001, the dental examinee will be required to complete only those sections failed on the second attempt. After January 1, 2001, the dental examinee will be required to retake the entire examination.

12.2(3) Fourth examination.

a. Prior to the fourth examination, a dental examinee must submit proof of satisfactory completion of the equivalent of an additional senior year of an approved curriculum in dentistry at a university or school with an approved curriculum.

b. At the fourth examination, the dental examinee shall be required to retake all sections of the examination.

12.2(4) Subsequent failures. For the purposes of additional study prior to retakes, the fifth examination will be considered the same as the third.

12.2(5) Failures. If a dental examinee applies for the Central Regional Dental Testing Service, Inc. or the Western Regional Examining Board, Inc. examination after having failed any other state or regional examination, the failures shall be considered Central Regional Dental Testing Service, Inc. or Western Regional Examining Board, Inc. failures for the purposes of retakes.

ITEM 7. Amend subrules 12.3(2) and 12.4(5) as follows:

12.3(2) Each examinee shall be required to perform such practical demonstrations as may be required by the Central Regional Dental Testing Service, Inc. or the Western Regional Examining Board, Inc. for the purpose of sufficiently evaluating and testing the fitness of the examinee to practice dental hygiene.

12.4(5) Failures. If a dental hygiene examinee applies for the Central Regional Dental Testing Service, Inc. or the Western Regional Examining Board, Inc. examination after having failed any other state or regional examination, the failures shall be considered Central Regional Dental Testing Service, Inc. or Western Regional Examining Board, Inc. failures for the purposes of retakes.

ITEM 8. Amend rule 650—12.5(153) as follows:

650—12.5(153) Additional requirements. Examinees for dentistry or dental hygiene shall be required to meet such other requirements as may be imposed by the Central Regional Dental Testing Service, Inc. or the Western Regional Examining Board, Inc.

[Filed 7/27/01, effective 9/26/01]

[Published 8/22/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 8/22/01.

Pursuant to the authority of Iowa Code section 147.76, the Board of Dental Examiners hereby amends Chapter 20, “Dental Assistants,” Iowa Administrative Code.

The purpose of the amendment is to change the eligibility criteria for dental assistants applying for expanded function registration beginning July 1, 2002. The amendment eliminates the requirement that a person must have either two years of experience as a registered dental assistant or be a current certified dental assistant (CDA) with six months of dental assisting experience. The amendment requires that a person have either two years of clinical dental assisting experience or be a current CDA, without any additional clinical experience. To receive the CDA credential, a person must already have a certain level of clinical experience in order to challenge the examination or have received clinical experience as part of the accredited dental assisting education program. Requiring two years of clinical dental assisting experience instead of two years of experience as a registered dental assistant will allow persons who are not CDAs to begin applying for registration in expanded functions in the year 2002 instead of 2003. In addition, the change makes the requirement consistent with the level of experience needed to challenge the Dental Assisting National Board CDA exam.

Notice of Intended Action was published in the Iowa Administrative Bulletin on May 30, 2001, as ARC 0720B. A public hearing on the amendment was held on June 19, 2001. No oral comments on the amendment were received. Three written comments on the amendment were received. The written comments requested that the Board require that a person have three years of clinical dental assisting experience or be a CDA to be eligible for expanded function registration. The amendment is identical to that published under Notice.

This amendment is subject to waiver or variance pursuant to 650—Chapter 7.

This amendment was approved at the July 19, 2001, regular meeting of the Board of Dental Examiners.

This amendment will become effective on September 26, 2001.

This amendment is intended to implement Iowa Code chapters 17A, 147 and 153.

The following amendment is adopted.

Amend subrule 20.6(3), paragraph “a,” as follows:

a. To meet the qualifications of expanded function dental assistant, applicants must:

(1) Have two years of clinical dental assisting experience as a registered dental assistant; or

(2) Be a current certified dental assistant as defined by the Dental Assisting National Board with six months of dental assisting experience; and

(3) Have successfully completed a formal program in one or more expanded functions within the previous two years of

application as an expanded function dental assistant or documentation of equivalent out–of–state registration or education.

[Filed 7/27/01, effective 9/26/01]

[Published 8/22/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 8/22/01.

Pursuant to the authority of Iowa Code section 161A.4(1), the Division of Soil Conservation hereby amends Chapter 12, “Water Protection Practices—Water Protection Fund,” Iowa Administrative Code.

These amendments make corrective changes and update technical specifications. Payment methods and the accompanying rates are clarified.

Notice of Intended Action was published in the Iowa Administrative Bulletin on June 27, 2001, as ARC 0751B.

These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code chapter 161C.

The amendments will become effective on September 26, 2001.

The following amendments are adopted.

ITEM 1. Amend subrule 12.76(1) as follows:

12.76(1) Filter strips. USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 393, January 1988 September 2000.

ITEM 2. Amend subrule 12.76(2) as follows:

12.76(2) Field borders. USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 386, July 1988 May 2001.

ITEM 3. Amend subrule 12.76(6) as follows:

12.76(6) Tile outlet from plugged agricultural drainage wells. Underground Outlet, USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 620, March 1991 December 1990.

ITEM 4. Amend subrule 12.76(8) as follows:

12.76(8) Restored or constructed wetlands in buffer systems. Wetland Restoration, Enhancement, or Creation (Acres), USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. Interim Standard 657–1, July 1992 December 2000.

ITEM 5. Amend subrule 12.76(9) as follows:

12.76(9) Bioengineering for stabilization of banks along waterways. USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 580–1, September 1983 or Section IV, Code No. 391–1, August 1999.

ITEM 6. Rescind subrule 12.82(8) and adopt the following new subrule in lieu thereof:

12.82(8) Prescribed grazing. The controlled harvest of vegetation with grazing or browsing animals that is managed with the intent to achieve a specified objective.

ITEM 7. Amend subrule 12.83(6) as follows:

12.83(6) Riparian forest buffer. USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 392, Interim 391, August 1999.

ITEM 8. Amend subrule 12.83(8) as follows:

12.83(8) Planned grazing systems Prescribed grazing. USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 556, November 1986 528A, December 1997.

ITEM 9. Amend subrule 12.83(9) as follows:

12.83(9) Conservation cover. USDA–NRCS–Iowa, Field Office Technical Guide, Section IV, Code No. 327, March 1997 May 2001.

ITEM 10. Amend subrule 12.84(1) as follows:

12.84(1) Farmstead windbreaks.

a. 75 percent of actual cost, not to exceed $12 $15 per tree and $2.25 per shrub, to establish or restore farmstead windbreaks.

b. Actual cost, not to exceed $8 per rod, for permanent fences, to protect planted area from grazing, excluding boundary and road fencing.

c. Total cost–share for establishment, restoration, and fencing for farmstead windbreaks shall not exceed $700 $1200 per windbreak.

[Filed 8/3/01, effective 9/26/01]

[Published 8/22/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 8/22/01.

Pursuant to Iowa Code sections 17A.4, 476.1, 476.2 and 476.6 (2001), the Utilities Board (Board) issued an order on July 31, 2001, in Docket No. RMU–01–1, In re: Estimation and Proration of Natural Gas Bills, “Order Adopting Amendments.” On February 21, 2001, the Board issued an order commencing a rule making to amend 199 IAC 19.3(8) to require that natural gas bills that are based upon estimated consumption, rather than actual meter readings, include actual degree–day and customer premises consumption history data in the calculation of the estimate. The proposed amendment allowed customers to provide meter readings by telephone, electronic mail, and U.S. mail. In addition, the Board proposed to amend the subrule to require utilities to notify the Board if the method of estimation changed.

The Board proposed to amend 199 IAC 19.10(3) to require that periodic changes in a rate–regulated utility’s purchased gas adjustment (PGA) rate factors be prorated to become effective with usage on or after the date of change.

Notice of Intended Action for the proposed amendments was published in the Iowa Administrative Bulletin (IAB) Vol. XXIII, No. 19 (3/21/01), p. 1470, as ARC 0552B. Written comments were to be filed on or before April 12, 2001.

Comments were filed by Claudia Wood, City of Davenport, Daniel L. Moeller, Kristie Batzkiel, Donald E. andPatricia M. Cepican, Consumer Advocate Division of the Department of Justice (Consumer Advocate), IES Utilities, Inc. and Interstate Power Company (collectively Alliant), MidAmerican Energy Company (MidAmerican), Jeff and Shirley Andersen, UtiliCorp United Inc. (UtiliCorp), and Mary Rourke.

The customers who filed comments and Consumer Advocate supported the proposed amendments to 199 IAC 19.3(8). Alliant generally supported the amendments but requested that the effective date of the amendments be delayed. MidAmerican proposed several modifications to the amendments and stated it would support the amendments with those modifications. UtiliCorp stated that it was in general compliance with the proposed amendments.

The Board has considered the comments and has determined that the amendment to 199 IAC 19.3(8) as proposed should be modified. The Board finds that MidAmerican’s recommendations are reasonable and will change the word “form” in the third sentence of the second paragraph to “meter reading information,” and will adopt MidAmerican’s language for the third paragraph. This will allow each utility to develop estimation procedures that are consistent with their billing systems and still meet the Board’s requirement that estimates reflect weather differences. The filing of the estimation procedures and changes will allow the Board to ensure that the procedures meet the requirements of the subrule.

The Board will also make the amendment effective November 1, 2001, to help address the consolidation of Alliant’s billing systems. This effective date will implement the bill estimation requirements by the next winter heating season. If a utility is not able to implement the rule changes by that date, it may file a request for a waiver.

Alliant stated that it had no problem with the proposed amendment to 199 IAC 19.10(3). MidAmerican stated that it is putting into place changes to its billing system to allow proration of customer usage between PGA factors if more than one PGA factor is effective during a billing cycle. Mid–American recommended that the Board change the proration language in the amendment. MidAmerican stated that it believed the proposed language would require it to perform physical reads each day.

UtiliCorp interpreted the proposed amendment to 199 IAC 19.10(3) to require the use of weather factors in building PGA prorating factors and if this interpretation is correct, the process would be complex and expensive. UtiliCorp stated that its current procedure was accurate and moving to a weather factor–based proration would not materially change the amounts charged to customers.

The Board has reviewed the comments concerning the proposed amendment to 199 IAC 19.10(3) and has determined that no changes need to be made in the proposed amendment. The Board finds that both MidAmerican and UtiliCorp have misinterpreted the language in the proposed amendment. The Board has approved the “for usage on and after” in tariffs and has interpreted this language to mean that prorating is required. This language has not been interpreted to require that meter readings be taken on the date of the PGA rate change and it has not been interpreted to require that the prorating include weather factors in the building of PGA prorating factors.

These amendments are intended to implement Iowa Code sections 17A.4, 476.1, 476.2 and 476.6.

These amendments will become effective November 1, 2001.

The following amendments are adopted.

ITEM 1. Amend subrule 19.3(8) as follows:

19.3(8) Readings and estimates. When a customer is connected or disconnected or the meter reading date causes a given billing period to deviate by more than 10 percent (counting only business days) from the normal meter reading period, such bill shall be prorated on a daily basis.

The utility may leave a meter reading form with the customer when access to meters cannot be gained. When access to meters cannot be gained, the utility may leave with the customer a meter reading form. The customer may provide the meter reading by telephone, electronic mail (if it is allowed by the utility), or by mail. If the form meter reading information is not returned in time for the billing operation, an estimated bill may be rendered. If an actual meter reading cannot be obtained, the utility may render an estimated bill without reading the meter or supplying a meter reading form to the customer. Only in unusual cases or when approval is obtained from the customer shall more than three consecutive estimated bills be rendered.

ITEM 2. Amend subrule 19.10(3) as follows:

19.10(3) Periodic changes to purchased gas adjustment clause. Periodic purchased gas adjustment filings shall be based on the purchased gas adjustment customer classifications and groupings previously approved by the board. Changes in the customer classification and grouping on file are not automatic and require prior approval by the board.

Periodic filings shall include all worksheets and detailed supporting data used to determine the amount of the adjustment.

Changes in factors S or C may not be made in periodic purchased gas filings except to recognize changes between pipeline and nonpipeline purchases. A change in factors D, N, or Z may be made in periodic filings and will be deemed approved if it conforms to the annual purchased gas filing or if it conforms to the principles set out in 19.10(5) and 19.10(6).

The utility shall implement automatically all purchased gas adjustment changes which result from changes Rc, Rd, Rn, or Rz equal to or greater than .5 cents per ccf or therm immediately with concurrent board notification with adequate information to calculate and support the change. Purchased gas adjustment changes of less than .5 cents per ccf or therm shall be required with concurrent board notification if the last purchased gas adjustment change occurred 30 days or more prior to the change. The purchased gas adjustment shall be calculated separately for each customer classification or grouping.

Unless otherwise ordered by the board, a rate–regulated utility’s purchased gas adjustment rate factors shall be adjusted as purchased gas costs change and shall recover from the customers only the actual costs of purchased gas and other currently incurred charges associated with the delivery, inventory or reservation of natural gas. Such periodic changes shall become effective with usage on or after the date of change.

If a supplier’s entitlement charge is zero, the same percentage of current demand charges shall be allocated to each customer class or grouping as the average of demand charges allocated during the last 12–month period for which entitlement rates were not zero. “Current demand charges” means the amount (D ? Rd) used in computing the formula set out in 19.10(1).

[Filed 8/3/01, effective 11/1/01]

[Published 8/22/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 8/22/01.