Pages 851 to 912 include ARC 2147B to ARC 2203B

Schedule for rule making 844

Publication procedures 845

Administrative rules on CD–ROM 845

Agency identification numbers 849

Notice, Renewal of certificate of registration;
alternative method for reciprocal registration;
fee for renewal on on–line system, 2.1, 2.2,
2.5, 2.7, 2.8 ARC 2178B 851

Notice, Tax credit for investments in venture
capital funds, ch 3 ARC 2199B 852

Filed, Description and clarification of city
boundary change process, rescind chs 1,
2, 3, 6; renumber chs 4, 5 as chs 10, 11;
adopt chs 1 to 9 ARC 2167B 895

Notice, Authority of commission to govern its
own meetings; description and methods of
contacting the agency, 1.1 ARC 2165B 853

Notice, Organization and operation, 1.1, 1.2
ARC 2189B 854

Notice, Elimination of rules for programs
for which there is no longer statutory
authority, rescind chs 16, 26, 28, 33, 34
ARC 2188B 855

Filed, Iowa tuition grant program 12.2(4)
ARC 2190B 896

Notice, Removal of restorations,
rescind 27.7(8) ARC 2147B 855

Filed, Emergency shelter grants program,
ch 24 ARC 2168B 896

Filed, Homeless shelter operation grants
program, ch 29 ARC 2170B 897

Notice, Denial or revocation of a license upon
proof of conviction of certain delineated
criminal offenses, 11.35, 12.2(2) ARC 2198B 856

Notice, State board of education—nonvoting
student member, 1.1 to 1.4 ARC 2176B 858

Notice, Unsafe school choice option, ch 11
ARC 2175B 858

Notice, Open enrollment, 17.4 ARC 2191B 859

Notice, Charter schools, rescind ch 68
ARC 2192B 860

Filed Emergency, State board of education—
nonvoting student member, 1.1 to 1.4
ARC 2202B 889

Filed Emergency, Open enrollment, 17.4
ARC 2203B 891

Filed, Community college faculty planning,
21.3(4) ARC 2193B 897

Filed, Criteria for and approval of Iowa teacher
intern preparation programs, 77.4, 77.5
ARC 2194B 898

Filed, Early ACCESS integrated system of early
intervention services, ch 120 ARC 2174B 898

Filed, Comity applicant experience requirements;
use of digital signatures; NCEES examination
development committee participation as
allowable professional development activity,
1.1, 4.2(5), 6.1(9), 7.3(1) ARC 2177B 899

Amended Notice, Air quality standards for
concentrated animal feeding operations;
ambient air quality standards, 20.2, 28.1
ARC 2186B 860

Notice Terminated, Animal feeding operations—
interim matrix, 65.1, 65.9(1); ch 65 appendix C
ARC 2179B 860

Notice, Beneficial use determinations: solid
by–products as resources and alternative cover
material, ch 108 ARC 2166B 861

Filed, Fugitive emissions of air pollutants not
listed in Clean Air Act, 22.100 ARC 2180B 900

Filed, Sanitary landfills—permitting, design and
operation, 100.1, 102.2(1), 102.12(10), 102.13,
102.14, 102.16; ch 103; 109.10(2); ch 110 title,
111.3 to 111.5; chs 112 to 115 ARC 2169B 900

Notice, Office space management, 3.1, 3.6
ARC 2196B 866

Notice, Supported community living services under
Medicaid home– and community–based mental
retardation and brain injury waivers, 77.37(14),
77.39(13), 78.41(1), 78.43(2) ARC 2152B 867

Notice, Medicaid—reimbursement rate for
transportation, 78.13(5) ARC 2153B 868

Notice, Medicaid—state maximum allowable cost
for specified drugs, 79.1(8) ARC 2154B 868

Filed, Assessment fee for intermediate care
facilities for the mentally retarded, ch 36,
82.5(13) ARC 2157B 901

Filed, Payment of FIP benefits by direct deposit
or electronic funds transfer, 45.21,
45.24(1)“b”(3) ARC 2160B 902

Filed Emergency, Supported community living
services under Medicaid home– and community–
based mental retardation and brain injury
waivers, 77.37(14), 77.39(13), 78.41(1),
78.43(2) ARC 2161B 891

Filed Emergency, Medicaid—reimbursement rate
for transportation, 78.13(5) ARC 2162B 893

Filed, Medicaid claims by nurse–midwives,
78.29 ARC 2155B 902

Filed, Disproportionate share payments for
children’s hospitals, 79.1(5) ARC 2156B 903

Filed Emergency, Medicaid—state maximum
allowable cost for specified drugs, 79.1(8)
ARC 2163B 893

Filed, Licensure for child–placing agencies and
foster family homes, amendments to chs 108,
113, 117, 156, 157, 200 ARC 2158B 904

Filed, Iowa senior living trust fund—administration
fee allowed for participating nursing facilities,
161.1 to 161.4 ARC 2159B 907

Notice, Organ and tissue requests and
procurement, 51.8 ARC 2172B 869

Notice, Safety standards for signs, signals and
barricades, 26.1 ARC 2164B 870

Filed Emergency, Federal standards for reporting
hearing loss, 4.3 ARC 2197B 894

Notice, Adoption by reference—rules of practice
in contested cases, 7.1 ARC 2185B 870

Notice Terminated, Elimination of catch–and–
release restriction on black bass—portions of
Cedar River, Mitchell County, 81.2(2)
ARC 2181B 871

Notice, Fishing tournaments, 88.1, 88.5
ARC 2182B 871

Notice, Nonresident deer hunting—zone license
quotas, 94.6(1) ARC 2187B 872

Notice, Wildlife importation, transportation and
disease monitoring—identification and
disposal, 104.11 ARC 2183B 872

Filed, Wild turkey spring hunting, 98.2(1),
98.6(1) ARC 2184B 908

Notice, IPERS, 21.13(13), 21.18(2), 21.35
ARC 2171B 873

Filed, Practice of tattooing, 21.1 to 22.7
ARC 2150B 909

Filed, Radiation, amendments to chs 38 to 41,
45 ARC 2148B 909

Filed, Childhood lead poisoning prevention
program, ch 72 ARC 2151B 911

Filed, Establishment of new certificate of birth
after a foreign adoption, 100.3 ARC 2149B 912

Summarized list 846

Notice, General, amendments to chs 4 to 6,
9 to 11 ARC 2195B 875

Notice of electric and natural gas delivery tax rates
and municipal electric and natural gas transfer
replacement tax rates for each competitive
service area 877

Notice, Sales tax exemption—goods used in
completion of construction contracts with
designated exempt entities as sponsors,
19.12 ARC 2201B 882

Notice, Investment tax credit for equity
investments in venture capital funds,
42.18(2), 51.21(2), 58.11(2) ARC 2200B 883

Notice, Electric franchise and related rules,
11.1, 11.2, 11.3(2), 11.5, 11.6, 11.8, 25.1,
25.2, 25.5 ARC 2173B 885

__________________________________

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.

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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.

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Containing: Iowa Administrative Code (updated through June 2002)
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Attn: Ms. Stephanie Cox
State Capitol
Des Moines, Iowa 50319
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To All Agencies:
The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(1)“b” by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.

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

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

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 for[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

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

Pursuant to the authority of Iowa Code section 544A.29, the Architectural Examining Board hereby gives Notice of Intended Action to amend Chapter 2, “Registration,” Iowa Administrative Code.

These amendments clarify the Board’s processes for renewals of individual certificates of registration and Authorizations to Practice Architecture by a Business Entity, adopt an alternative method for reciprocal registration, and implement a fee that encourages renewal via the Board’s on–line system. These amendments are subject to waiver or variance pursuant to 193—Chapter 5.

Consideration will be given to all written suggestions or comments on the proposed amendments received on or before December 31, 2002. Comments should be addressed to Glenda Loving, Architectural Examining Board, 1920 S.E. Hulsizer, Ankeny, Iowa 50021, or faxed to (515)281–7411. E–mail may be sent to glenda.loving@comm7.state.ia.us.

These amendments are intended to implement Iowa Code chapters 17A and 544A.

The following amendments are proposed.

ITEM 1. Amend rule 193B—2.1(544A,17A) by adding the following definition in alphabetical order:

“Inactive” means retired from the practice of architecture in all states of registration.

ITEM 2. Renumber current subrule 2.2(3) as 2.2(4) and adopt the following new subrule 2.2(3):

2.2(3) The board shall consider applicants who have fulfilled NCARB’s Broadly Experienced Architect requirements as substantially equivalent to the requirements outlined in subrule 2.2(2).

ITEM 3. Amend subrules 2.5(4), 2.5(5) and 2.5(6) as follows:

2.5(4) If grounds exist to deny a timely and sufficient application to renew, the board shall send written notification to the applicant by restricted certified mail, return receipt requested. Grounds may exist to deny an application to renew if, for instance, the registrant failed to satisfy the continuing education as required as a condition for registration. If the basis for denial is pending disciplinary action or disciplinary investigation which is reasonably expected to culminate in disciplinary action, the board shall proceed as provided in 193—Chapter 7. If the basis for denial is not related to a pending or imminent disciplinary action, the applicant may contest the board’s decision as provided in 193—subrule 7.39(1) 7.40(1).

2.5(5) When a registrant appears to be in violation of mandatory continuing education requirements, the board may, in lieu of proceeding to a contested case hearing on the denial of a renewal application as provided in rule 193—7.39(546, 272C) 193—7.40(546,272C), offer a registrant the opportunity to sign a consent order. While the terms of the consent order will be tailored to the specific circumstances at issue, the consent order will typically impose a penalty between $50 and $250, depending on the severity of the violation, establish deadlines for compliance, and may impose additional educational requirements on the registrant. A registrant is free to accept or reject the offer. If the offer of settlement is accepted, the registrant will be issued a renewed certificate of registration and will be subject to disciplinary action if the terms of the consent order are not complied with. If the offer of settlement is rejected, the matter will be set for hearing, if timely requested by the applicant pursuant to 193—subrule 7.39(1) 7.40(1).

2.5(6) The board shall may notify, by certified mail, return receipt requested, registrants whose certificates of registration have expired. The failure of the board to provide this courtesy notification or the failure of the registrant to receive or sign for the notification shall not extend the date of expiration.

ITEM 4. Amend subrules 2.7(4) and 2.7(5) as follows:

2.7(4) The Authorization to Practice Architecture as a Business Entity will expire on June 30 of each every other year. The initial authorization shall expire the June 30 that is more than 12 months past the date of the original application. It is the policy of the board to mail renewal Renewal application forms will be mailed to the last–known address approximately one month prior to the date of expiration. The form will request information substantially similar to the information requested in subrule 2.7(1). Failure to receive the form shall not relieve the holder of the responsibility to timely renew and pay the renewal fee.

2.7(5) The board shall may give notice by certified mail, return receipt requested, to the holder of an authorization who has failed to renew the authorization and whose authorization has expired. The failure of the board to provide this courtesy notification or the failure of the business entity to receive the notification shall not extend the date of expiration. If the holder fails to renew within 30 days of receipt of the notice, the authorization to practice as a business entity shall be canceled.

ITEM 5. Amend rule 193B—2.8(544A,17A) as follows:

193B—2.8(544A,17A) Fee schedule. Under the authority provided in Iowa Code chapter 544A, the following fees are hereby adopted:

Examination fees:

Initial application fee paid to board $100

Fees for examination subjects shall
be paid directly to the testing service
selected by NCARB

Initial registration fee $ 50

(plus $5 per month until renewal)

Reciprocal application and registration fee $200

Biennial renewal fee (Internet renewal) $200

Biennial renewal fee (retired–inactive) $ 50

Reinstatement of lapsed individual
registration (per month) $ 25

Duplicate certificate fee $ 50

Authorization to Practice as a Business Entity $ 50

Renewal of Authorization to Practice
as a Business Entity $ 50

Reinstatement of a lapsed Authorization
to Practice as a Business Entity $100

Pursuant to the authority of 2002 Iowa Acts, House File 2078, section 3, the Iowa Capital Investment Board hereby gives Notice of Intended Action to adopt Chapter 3, “Tax Credit for Investments in Venture Capital Funds,” Iowa Administrative Code.

These rules are proposed because of 2002 Iowa Acts, House File 2586.

Proposed Chapter 3 provides for an investment tax credit administered by the Iowa Capital Investment Board for investments in venture capital funds.

These rules are being filed by the Department of Revenue and Finance on behalf of the Iowa Capital Investment Board pursuant to an Administrative Services Agreement between the Department and the Board.

The proposed rules will not necessitate additional expenditures by political subdivisions or agencies and entities which contract with political subdivisions.

Any person who believes that the application of the discretionary provisions of these rules would result in hardship or injustice to that person may petition the Board for a waiver of the discretionary provisions, if any.

The Board has determined that these proposed rules may have an impact on small business. The Board has considered the factors listed in Iowa Code section 17A.4A. The Board will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than January 13, 2003, to the Iowa Capital Investment Board, in care of the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who each qualify as a small business or by an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on these proposed rules on or before January 10, 2003. Such written comments should be directed to the Iowa Capital Investment Board, in care of the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

Persons who want to convey their views orally should contact the Board, in care of the Policy Section, Compliance Division, Department of Revenue and Finance, at (515) 281–8036 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by January 3, 2003.

These rules are intended to implement Iowa Code chapter 15E as amended by 2002 Iowa Acts, House File 2586.

The following new chapter is proposed.

CHAPTER 3
TAX CREDIT FOR INVESTMENTS
IN VENTURE CAPITAL FUNDS

123—3.1(15E) Tax credit for investments in venture capital funds. For tax years beginning on or after January 1, 2002, a taxpayer may claim a tax credit against the taxpayer’s tax liability for personal net income tax imposed under Iowa Code chapter 422, division II, business tax on corporations imposed under Iowa Code chapter 422, division III, taxation of financial institutions imposed under Iowa Code chapter 422, division V, insurance companies tax imposed under Iowa Code chapter 432 or taxation of credit unions imposed under Iowa Code section 533.24, for a portion of a taxpayer’s equity investment in a venture capital fund. Natural persons and various types of legal entities, including but not limited to corporations, limited liability companies, partnerships (both general and limited), trusts and estates, shall be eligible for the investment tax credit provided for an investment in a venture capital fund. If the taxpayer that is entitled to an investment tax credit for an investment in a venture capital fund is a pass–through entity electing to have its income taxed directly to its individual owners, such as a partnership, limited liability company, S corporation, estate or trust, the pass–through entity shall allocate the allowable credit to each of the individual owners of the entity on the basis of each owner’s pro rata share of the earnings of the entity, and the individual owners may claim their respective credits on their individual income tax returns. A taxpayer shall not claim an investment tax credit for an investment in a venture capital fund if the taxpayer is a venture capital investment fund allocation manager for the Iowa fund of funds described in 2002 Iowa Acts, House File 2078, section 5, or an investor that receives a tax credit for an investment in a community–based seed capital fund as described in 2002 Iowa Acts, House File 2271, section 5. The taxpayer’s equity investment must be made in the form of cash to purchase equity in a venture capital fund.

123—3.2(15E) Definitions. The following definitions are applicable to this chapter:

“Board” means the Iowa capital investment board created under 2002 Iowa Acts, House File 2078, section 3.

“Physical presence in Iowa” includes, but is not limited to, having an office or other business location in Iowa, or having employees or representatives present in Iowa on a regular and continuing basis.

“Venture capital fund” means a private seed and venture capital partnership or entity fund that has been certified by the Iowa capital investment board.

123—3.3(15E) Verification of venture capital funds. A venture capital fund shall provide to the board information as a prerequisite to the board’s issuance of any investment tax credits to investors in such venture capital funds. The venture capital fund must provide this information within 120 days from the first date on which the equity investments qualifying for the investment tax credit have been made (or, for investments made during the 2002 calendar year, by the later of 120 days from the first date on which the investments have been made or March 31, 2003).

Application forms setting forth the information required to verify the eligibility of a venture capital fund may be obtained by contacting the Iowa capital investment board at the Iowa Department of Revenue and Finance, 1305 E. Walnut Street, Hoover State Office Building, Des Moines, Iowa 50319. The telephone number is (515)281–3204. Applications shall be submitted to the board in care of the department of revenue and finance at the address identified above.

The information required by the board to verify an eligible venture capital fund is set forth below:

1. A copy of the fund’s certificate of limited partnership, limited partnership agreement, articles of organization or operating agreement certified by the chief executive officer of the venture capital fund.

2. A signed statement, from an officer, director, manager, member or general partner of the fund, stating that the fund maintains a physical presence within Iowa.

3. A signed statement, from an officer, director, manager, member or general partner of the fund, stating that a commitment has been made by the fund to consider equity investments in businesses located within Iowa.

Upon the board’s receipt of the information and documentation necessary to demonstrate satisfaction of the criteria set forth herein, the board shall, within a reasonable period of time, determine whether a certification will be issued for the venture capital fund. If the board certifies the venture capital fund, the board shall register the fund on a registry that shall be maintained by the board. The board shall use such registry to authorize the issuance of further investment tax credits to taxpayers who make equity investments in the venture capital funds registered with the board. The board shall issue written notification to the venture capital fund that such fund has been registered as a venture capital fund with the board for the purpose of issuing investment tax credits.

123—3.4(15E) Application for the investment tax credit. Upon verification and registration by the board of a venture capital fund, a taxpayer who desires to receive an investment tax credit for an equity investment in a venture capital fund must submit an application to the board for approval and provide such other information and documentation as may be requested by the board. Application forms for the investment tax credit may be obtained by contacting the Iowa capital investment board at the Iowa Department of Revenue and Finance, 1305 E. Walnut Street, Hoover State Office Building, Des Moines, Iowa 50319. Applications shall be submitted to the board in care of the department of revenue and finance at the address identified above. Each application shall be date– and time–stamped by the department of revenue and finance in the order in which such applications are received. Applications for the investment tax credit shall be accepted by the board until March 31 of the year following the calendar year in which the taxpayer’s equity investment is made.

123—3.5(15E) Issuance and distribution of investment tax credits. Upon verification and registration by the board of a venture capital fund, the board shall issue a tax credit certificate to the applicant. The tax credit certificate shall be in a form approved by the board and shall contain the taxpayer’s name, address, and tax identification number, the amount of credit, the name of the venture capital fund, the year in which the credit may be redeemed and any other information that may be required by the department of revenue and finance. In addition, the tax credit certificate shall contain the following statement:

The Iowa Capital Investment Board has not recommended or approved this investment or passed on the merits or risks of such investment. Investors should rely solely on their own investigation and analysis and seek investment, financial, legal and tax advice before making their own decision regarding investment in this enterprise.

A tax credit is equal to 6 percent of the taxpayer’s equity investment in the venture capital fund. The aggregate amount of tax credits issued pursuant to this rule shall not exceed a total of $5 million. The applicants shall receive tax credit certificates on a first–come, first–served basis, until the amount of credits authorized for issuance has been exhausted.

123—3.6(15E) Claiming the tax credits. A taxpayer shall not claim the tax credit prior to the third tax year following the tax year in which the investment is made. An investment shall be deemed to have been made on the same date as the date of acquisition of the equity interest as determined by the Internal Revenue Code. A tax credit shall not be redeemed during any tax year beginning prior to January 1, 2005. A tax credit shall not be transferable to any other taxpayer. Any tax credit in excess of the taxpayer’s liability for the tax year may be credited to the tax liability for the following five years or until depleted, whichever is earlier. A tax credit shall not be carried back to a tax year prior to the tax year in which the taxpayer redeems the tax credit.

123—3.7(15E) Notification to the department of revenue and finance. Upon the issuance and distribution of investment tax credits for each tax year, the board shall notify the department of revenue and finance by providing copies of the tax credit certificates issued for such tax year to the department of revenue and finance. Such notification shall also include, but not be limited to, the aggregate number and amount of tax credits issued for such tax year.

123—3.8(15E) Additional information. The board retains the authority to request additional information and documentation from the venture capital fund regarding the investments made by the venture capital fund in businesses located in Iowa.

These rules are intended to implement Iowa Code chapter 15E as amended by 2002 Iowa Acts, House File 2586.

Pursuant to Iowa Code sections 216.4, 216.5(10) and 216.15(11), the Civil Rights Commission proposes to amend Chapter 1, “Rules of Practice,” Iowa Administrative Code.

These amendments are intended to implement Iowa Code section 216.4 which gives the Commission the authority to adopt rules governing its own meetings. Also, the changes implement the directive of Iowa Code section 17A.3(1)“a” that the agency give a description and set out methods of contacting the agency.

Any interested person may make written suggestions or comments on the proposed amendments on or before December 31, 2002. Such written suggestions or comments should be directed to the Civil Rights Commission, 211 East Maple, 2nd Floor, Des Moines, Iowa 50309; fax (515)242–5840.

Persons are also invited to present oral or written comments at a public hearing which will be held on December 31, 2002, at 1 p.m. in the Conference Room, Civil Rights Commission, 211 East Maple, 2nd Floor, Des Moines, Iowa 50309. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Civil Rights Commission and advise of specific needs.

These amendments are intended to implement Iowa Code sections 216.4, 216.5(10) and 216.15(11).

The following amendments are proposed.

Amend rule 161—1.1(216) to read as follows:

Amend paragraph 1.1(1)“b” as follows:

b. Location. The Iowa civil rights commission, hereinafter referred to as “commission,” is located on the second floor, 211 East Maple Street, Des Moines, Iowa 50309; telephone (515)281–4121; toll–free in Iowa only 1–800– 457–4416; facsimile transmission (fax) (515)242–5840; telecommunications device for the deaf (TDD) (515)281–8085. Office hours are 8 a.m. to 4:30 p.m. Monday through Friday.

Rescind subrule 1.1(3) and adopt the following new subrule in lieu thereof:

1.1(3) Electronic attendance of commissioners.

a. Notification. A commissioner wishing to attend the commission meeting by electronic means shall notify the executive director of this intent. The executive director will then take all reasonable measures to ensure that the necessary equipment is available at the site selected for the commission meeting. The commissioner attending by electronic means is responsible for ensuring that adequate equipment is available at the commissioner’s location.

b. Public participation. Whenever any commissioners attend by electronic means, public access to the conversation of the commission shall be allowed at the location of at least one of the commissioners. Unless good cause requires otherwise, the location where public access to the conversation is provided shall be a location reasonably accessible to the public. If the location is not reasonably accessible to the public, the nature of the good cause justifying inaccessibility shall be stated in the minutes.

c. Electronic attendance of multiple commissioners. If at the time a commissioner notifies the executive director of the intent to attend electronically that commissioner’s electronic attendance would mean that four or more commissioners would be attending separately via electronic means, then that commissioner may not attend by electronic means unless the in–person attendance of any four of the commissioners attending the meeting at any of the available meeting sites is impossible or impracticable.

d. Conducting electronic meeting. Whenever four or more commissioners are separately attending a commission meeting by electronic means, the commission shall conduct the meeting in accordance with the following requirements:

(1) The commission shall keep detailed minutes of all discussion, all persons present and all action. The commission shall electronically record all proceedings in the meeting and retain such recordings for no less than one year from the date of the meeting.

(2) The minutes of the meeting shall include a statement explaining why a meeting in person was impossible or impracticable.

(3) The public notice of the meeting shall state the location of the meeting to be the location where public access to the conversation is provided.

Pursuant to the authority of Iowa Code sections 261.3 and 261.37(5), the College Student Aid Commission proposes to amend Chapter 1, “Organization and Operation,” Iowa Administrative Code.

The proposed amendments, which clarify the rules and correct grammatical oversights, are made pursuant to Executive Order Number 9.

Interested persons may submit comments orally or in writing to the Executive Director, College Student Aid Commission, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309; telephone (515)242–3344, by 4:30 p.m. on December 31, 2002.

These amendments are intended to implement Iowa Code sections 17A.3(1)“a” and “b” and chapter 261.

The following amendments are proposed.

ITEM 1. Amend rule 283—1.1(261) as follows:

283—1.1(261) Purpose. This chapter describes the organization and , operation, and location of the Iowa college student aid commission (hereinafter generally referred to as the commission, or the ICSAC) , or the Iowa student aid commission) including the offices where, and describes the means by which, any interested person may obtain information and make submittals or requests.

ITEM 2. Amend rule 283—1.2(261) as follows:

1.2(1) Location. The commission is located in the Clemens Building, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309–3609; telephone (515) 281–3501 242–3344; Web site www.iowacollegeaid.org. Office hours are 8 a.m. to 4:30 p.m., Monday to Friday. Offices are closed on Saturdays and Sundays and on official state holidays designated in accordance with state law.

1.2(2) The commission. The commission consists of 12 members and functions under the leadership of a chairperson elected by the membership. Eight members are appointed by the governor to serve a term of four–year term terms. Three of the governor’s appointees represent the general public, one represents Iowa lending institutions, one represents Iowa independent colleges and universities, one represents Iowa community colleges, one represents the Iowa student loan liquidity corporation, and one represents Iowa postsecondary students. The board of regents, president of the senate, and speaker of the house each appoint a commission member;. and the The superintendent of the department of education is serves as a continuous member of the commission and may appoint a designee to represent the department of education.

1.2(3) Meetings. The commission shall meet at regular intervals at least six times annually. Additional meetings may be called at the discretion of the chairperson.

a. The chairperson of the commission presides at each meeting. Members of the public may be recognized at the discretion of the chairperson. All meetings are open to the public in accordance with the open meetings law, Iowa Code chapter 28A 21.

b. The commission shall give advance public notice of the time and place of each commission meeting. The notice will include the specific date, time, and place of the meeting.

c. A quorum shall consist of two–thirds of the voting members of the commission. When a quorum is present, a position is carried by an affirmative vote of the majority of commission members eligible to vote.

d. A specific time is set aside at each meeting for the public to address the board commission. As a general guideline, a limit of five minutes will be allocated for each of these presentations. If a large group seeks to address a specific issue, the chairperson may limit the number of speakers. Members of the public who wish to address the board commission during this portion of the meeting are required to fill out a card, which is available upon request, that is to be given to the commission’s confidential secretary prior to the meeting. The person’s name and the subject of the person’s remarks must be noted. To accommodate maximum public participation, members of the public are encouraged to submit the cards at least 72 hours in advance of the meeting.

1.2(4) Minutes. The minutes of all commission meetings are recorded and kept by the executive director in the commission office. Upon approval by the commission, minutes are posted on the commission’s Web site.

1.2(5) Records. The records of all of the business transacted and other information with respect to the operation of the commission are public records and are on file in the commission office. All records, except statements specified as confidential under these rules, are available for inspection during regular business hours. (Copies of records up to ten pages in number may be obtained without charge. The cost of reproduction will be charged for pages in excess of ten. The charge may be waived by the executive director if deemed advisable.)

1.2(6) Submission and requests. Inquiries, submissions, petitions, and other requests directed to the commission may be made by letter addressed to the executive director at the address listed in subrule 1.2(1). Any person may petition for a written or oral hearing before the commission. All requests for a hearing must be in writing and state the specific subject to be discussed and the reasons why a personal appearance is necessary if one is requested.

1.2(7) Advisory councils. An advisory council selected from officers of Iowa secondary schools, public area schools, Iowa independent colleges and universities, lending institutions, and state–supported universities, shall be established by the commission. Members are appointed to serve four–year terms with the exception of the elected presidents of the Iowa Counseling Association for Counseling and Development, the Iowa Association of for College Admissions Counselors Admission Counseling, and the Iowa Association of Student Financial Aid Administrators, who serve only for during their one year terms in office. The executive director of the Iowa student loan liquidity corporation shall be appointed to the council as is a permanent member. The council shall meet at least annually to review the state–supported student aid programs and make recommendations to the commission for revisions in policies and procedures.

This subrule provides schools with representation in the administration of student aid programs implemented under Iowa Code chapter 261.

Pursuant to the authority of Iowa Code section 261.3, the College Student Aid Commission proposes to rescind Chap–ter 16, “Iowa Science and Mathematics Loan Program,” Chapter 26, “Iowa Science and Mathematics Grant Program,” Chapter 28, “Access to Education Grant Program,” Chapter 33, “Graduate Student Financial Assistance Program,” and Chapter 34, “Cosmetology and Barber Grants,” Iowa Administrative Code.

This proposed amendment eliminates rules for programs for which there is no longer statutory authority and is made pursuant to Executive Order Number 9.

Interested persons may submit comments orally or in writing to the Executive Director, College Student Aid Commission, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309; telephone (515)242–3344, by 4:30 p.m. on December 31, 2002.

This amendment is intended to implement Iowa Code chapters 17A and 261.

The following amendment is proposed.

Rescind and reserve 283—Chapters 16, 26, 28, 33, and 34.

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

This amendment rescinds subrule 27.7(8), which states that “Recommending removal of restorations or removing said restorations from the nonallergic patient for the alleged purpose of removing toxic substances from the body, when such activity is initiated by the dentist, is an improper and unacceptable treatment regimen.” Board discipline of licensees on matters related to removal of these restorations will continue to be based on existing Board rules and prior adjudications in similar cases.

The Board is rescinding the subrule in light of concerns that the rule may not be sufficiently detailed to fully guide dentists in adhering to prior decisions of the Board on the removal of restorations. Rescission of the subrule will give the Board additional time to consider whether a rule is needed to set forth professional standards for removal of restorations, as established in the Board’s prior adjudications, including Board of Dental Examiners v. Hufford, 461 N.W.2d 194 (Iowa Supreme Court, 1990).

The Hufford case involved charges that a dentist had improperly diagnosed and established a treatment plan for a patient who was suffering from multiple sclerosis. Based on the determination that the patient was suffering health complications caused by her silver amalgams, the dentist extracted all her teeth and prescribed substances ostensibly used to remove mercury from her body. Although the dentist assured the patient that removal of her amalgams would improve her health and stop the progress of multiple sclerosis, the patient’s condition was exacerbated. The Board charged that the dentist had fraudulently treated the patient. The Iowa Supreme Court upheld the suspension of the dentist’s license.

A number of scientific studies have been conducted concerning the safety of mercury amalgam fillings. Several national and international organizations, including the Food and Drug Administration, United States Public Health Service, World Health Organization, National Institutes of Health, American Dental Association, and several foreign government agencies have concluded that there is no credible scientific evidence that shows that amalgams cause adverse health effects and that removing amalgams will remove toxic substances from the body. Most recently, the Food and Drug Administration concluded, “FDA believes that valid scientific evidence exists to determine the safety and effectiveness of dental amalgam.”

Although the subrule is being rescinded at this time to allow the Board to consider whether to redraft another subrule to specifically address amalgam restorations, the Board’s position concerning the removal of serviceable restorations has not changed. In the absence of this specific subrule, the Board will continue to pursue disciplinary action in appropriate cases based on the general statutes and rules administered by the Board. Under appropriate circumstances the Board is authorized to prosecute a dentist for making medical diagnoses outside the scope of the practice of dentistry, incompetent or substandard practice, fraudulent or misleading representations in the practice of dentistry, willful or gross malpractice, or subjecting a patient to needless or harmful treatment regimes.

This amendment is not subject to waiver or variance because it only rescinds an existing subrule.

Any interested person may make written comments or suggestions on the proposed amendment on or before January 7, 2003. Such written comments should be directed to Agency Rules Administrator, Board of Dental Examiners, 400 SW 8th Street, Suite D, Des Moines, Iowa 50309–4687. E–mail may also be sent to ibde@bon.state.ia.us.

Also, there will be a public hearing on January 7, 2003, beginning at 10 a.m. in the Conference Room, 400 SW 8th Street, Suite D, Des Moines, Iowa. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendment. Any person who plans to attend the public hearing and who may have special requirements, such as hearing or mobility impairments, should contact the Board and advise of specific needs.

This amendment was approved at the November 13, 2002, meeting of the Board of Dental Examiners.

This amendment is intended to implement Iowa Code chapters 147, 153, and 272C.

The following amendment is proposed.

Rescind and reserve subrule 27.7(8).

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby gives Notice of Intended Action to amend Chapter 11, “Complaints, Investigations, Contested Case Hearings,” and Chapter 12, “Criteria of Professional Practices,” Iowa Administrative Code.

These amendments set forth procedures to require the denial or revocation of a license upon proof of conviction of certain delineated criminal offenses as mandated in 2002 Iowa Acts, Senate File 2258, which amends Iowa Code section 272.2(14).

A waiver provision is not included. The Board has adopted a uniform waiver rule.

Any interested party or persons may present their views orally or in writing at the public hearing on Tuesday, January 14, 2003, at 1 p.m. in Room 3 North of the Grimes State Office Building, 400 East Grand, Des Moines, Iowa 50319.

At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments. Persons who wish to make oral presentations at the public hearing may contact the Executive Director, Board of Educational Examiners, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa 50319–0147, or at (515)281–5849, prior to the date of the public hearing.

Any person who intends to attend the public hearing and requires special accommodations for specific needs, such as a sign language interpreter, should contact the office of the Executive Director at (515)281–5849.

Any interested person may make written comments or suggestions on the proposed amendments before 4 p.m. on Friday, January 17, 2003. Written comments and suggestions should be addressed to Dr. Anne E. Kruse, Executive Director, Board of Educational Examiners, at the above address, or sent by E–mail to anne.kruse@ed.state.ia.us.

These amendments are intended to implement Iowa Code chapter 272.

The following amendments are proposed.

ITEM 1. Amend rule 282—11.35(272) as follows:

282—11.35(272) Application denial and appeal. The executive director is authorized by Iowa Code section 272.7 to grant or deny applications for licensure. If the executive director denies an application for an initial or exchange license, certificate, or authorization, the executive director shall send to the applicant by regular first–class mail written notice identifying the factual and legal basis for denying the application. If the executive director denies an application to renew an existing license, certificate, or authorization, the provisions of rule 11.36(272) shall apply.

11.35(1) Grounds Mandatory grounds for license denial or revocation. The executive director may shall deny an application, and the board shall revoke an existing license or authorization, based on the grounds set forth in Iowa Code sections section 272.2(14) and 272.6, including:

11.35(2) Conviction of a crime and founded child abuse.

1. First–, second– or third–degree sexual abuse committed on or with a person who is under the age of 18;

b. Other criminal convictions and founded child abuse. When determining whether a person should be denied licensure based on the conviction of a any other crime, including a felony, or a founded report of child abuse, the executive director and the board shall consider the following:

a. (1) The nature and seriousness of the crime or founded abuse in relation to the position sought;

b. (2) The time elapsed since the crime or founded abuse was committed;

c. (3) The degree of rehabilitation which has taken place since the crime or founded abuse was committed;

d. (4) The likelihood that the person will commit the same crime or abuse again;

e. (5) The number of criminal convictions or founded abuses committed; and

f. (6) Such additional factors as may in a particular case demonstrate mitigating circumstances or heightened risk to public safety.

11.35(3) to 11.35(5) No change.

ITEM 2. Amend subrule 12.2(2) as follows:

12.2(2) Criminal convictions and founded child abuse.

b. Other criminal convictions and founded child abuse. In determining whether a person should be denied a license or whether a licensee should be disciplined based upon a any other criminal conviction or a founded report of physical or sexual abuse of a child, the board shall consider:

a. (1) The nature and seriousness of the crime or founded abuse in relation to the position sought;

b. (2) The time elapsed since the crime or founded abuse was committed;

c. (3) The degree of rehabilitation which has taken place since the crime or founded abuse was committed;

d. (4) The likelihood that the person will commit the same crime or abuse again;

e. (5) The number of criminal convictions or founded abuses committed; and

f. (6) Such additional factors as may in a particular case demonstrate mitigating circumstances or heightened risk to public safety.

Pursuant to the authority of Iowa Code section 256.7(5), the State Board of Education hereby gives Notice of Intended Action to amend Chapter 1, “Organization and Operation,” Iowa Administrative Code.

The purpose of these amendments is to give public secondary students in Iowa a voice, although not a vote, on the State Board of Education, and to give voting Board members the benefit of the thoughts and experiences of the secondary student. The entire education community should benefit from these amendments.

These amendments implement 2002 Iowa Acts, House File 2515, sections 1 through 3. No waiver provision is included because the State Board of Education has adopted agencywide waiver rules.

Any interested person may submit oral or written suggestions or comments on the proposed amendments on or before December 31, 2002, by addressing them to Carol J. Greta, Legal Consultant, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319–0146, telephone (515)281–5295, or E–mail carol.greta@ed.state.ia.us.

There will be a public hearing on December 31, 2002, at9 a.m. in the Second Floor South Conference Room, Grimes State Office Building, Des Moines, Iowa, at which persons may present their views orally and in writing.

These amendments were also Adopted and Filed Emergency and are published herein as ARC 2202B. The content of that submission is incorporated by reference.

These amendments are intended to implement Iowa Code chapter 17A and chapter 256 as amended by 2002 Iowa Acts, House File 2515, sections 1 through 3.

Pursuant to the authority of Iowa Code section 256.7(5), the State Board of Education hereby gives Notice of Intended Action to adopt Chapter 11, “Unsafe School Choice Option,” Iowa Administrative Code.

This chapter is being proposed to update the rules in conformity with new federal legislation, the No Child Left Behind Act of 2001. This Act requires each state to establish and implement a statewide policy ensuring that a student attending a persistently dangerous public school or who becomes a victim of a violent criminal offense be allowed to attend a safe public school. No waiver provision is included because the Board has adopted agencywide waiver rules.

Any interested person may submit oral or written suggestions or comments on or before January 3, 2003, by addressing them to Linda Miller, Consultant, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319–0146; telephone (515)281–4705.

There will be a public hearing on January 3, 2003, at9:30 a.m. in the State Board Room, Grimes State Office Building, Des Moines, Iowa, at which persons may present their views orally or in writing. Persons who intend to attend the public hearing and who have special requirements such as those relating to hearing or mobility impairments should contact the Department and advise of specific needs.

This chapter is intended to implement the No Child Left Behind Act of 2001, Public Law 107–110, 115 Stat. 1425.

The following new chapter is proposed.

CHAPTER 11
UNSAFE SCHOOL CHOICE OPTION

281—11.1(PL107–110) Purpose. Under the federal No Child Left Behind Act of 2001, Section 9532, each state receiving federal funds is required to establish and implement a statewide policy requiring that a student attending a persistently dangerous public elementary school or secondary school or who becomes a victim of a violent criminal offense while in or on the grounds of a public elementary or secondary school that the student attends be allowed to attend a safe school within the district.

281—11.2(PL107–110) Definitions. For purposes of this chapter, the following definitions apply:

“Department” means the Iowa department of education.

“Forcible felony” means any crime defined in Iowa Code section 702.11. This includes felonious child endangerment, assault, murder, sexual abuse, kidnapping, robbery, arson in the first degree, or burglary in the first degree. Forcible felonies are not willful injury in violation of Iowa Code section 708.4, subsection 2; sexual abuse in the third degree committed between spouses; sexual abuse in violation of Iowa Code section 709.4, subsection 2, paragraph “c,” subparagraph (4); sexual exploitation by a counselor or therapist in violation of Iowa Code section 709.15.

“School” means an attendance center within a school district.

“School district” means a public school district in Iowa.

“School year” means from July 1 until June 30 of the following year.

281—11.3(PL107–110) Whole school option. Any student attending a persistently dangerous school as defined in this rule is eligible to transfer to a different school within the district. Transportation for students electing to transfer shall be provided according to the district’s transportation policy. The transfers may be temporary or permanent, but must be in effect as long as the student’s original school is identified as persistently dangerous.

In making the determination of whether a transfer should be temporary or permanent, the district shall consider the educational needs of the student, as well as other factors affecting the student’s ability to succeed in the student’s new school environment. The district is encouraged, but not required, to explore other appropriate options such as an agreement with a contiguous school district to accept students if there is no safe school within the transferring district.

11.3(1) A persistently dangerous school is one that meets the following criteria for three consecutive school years:

a. The school has violence–related, long–term suspensions or expulsions for more than 1 percent of the student population. Long–term suspensions or expulsions are more than ten days in length and require the action of the local school board. For purposes of this subrule, a violence–related, long–term suspension or expulsion occurs as a result of physical injury or the threat of physical injury to a student while the student is in the school building or on the grounds of the attendance center during the hours of the regular school day or while the student is in attendance at school–sponsored activities that occur during the hours before or after the regular school day under one of the following:

(1) A forcible felony as defined in rule 281— 11.2(PL107–110);

(2) Offenses, excluding simple misdemeanors, involving physical assault under Iowa Code chapter 708;

(3) Offenses, excluding simple misdemeanors, involving sexual assault under Iowa Code chapter 709;

(4) Extortion under Iowa Code section 711.4;

(5) Use of incendiary or explosive devices such as bombs under Iowa Code section 712.5;

(6) Criminal gang activity under Iowa Code section 723A;

(7) Carrying or using a weapon under Iowa Code sections 724.3 and 724.4.

b. The school has two or more students expelled for violating the federal or state gun–free school laws.

c. The school has 1 percent of the enrolled student population or five students, whichever is greater, who exercised the individual student option defined in rule 281— 11.4(PL107–110).

11.3(2) For the school year starting July 1, 2003, and in the years thereafter, a school identified as meeting the criteria in 11.3(1)“a” through “c” for one year shall be given a warning by the department. The school shall review the school’s safety plan and prevention activities.

For the school year starting July 1, 2004, and in the years thereafter, a school identified as meeting the criteria in 11.3(1)“a” through “c” for two consecutive years shall develop and implement a remedial plan. The plan shall include schoolwide efforts to support positive student behavior and improve student discipline. The department shall conduct a site visit to the school.

For the school year starting July 1, 2005, and in the years thereafter, a school identified as meeting the criteria in 11.3(1)“a” through “c” for three consecutive years is eligible to be designated as a persistently dangerous school by the department. Prior to the department’s assigning the designation, the district may submit information to the department including:

a. The school’s safety plan;

b. Local efforts to address the school’s safety concerns;

c. The school safety data reported to the state consistent with requirements of the federal Safe and Drug–Free Schools and Communities Program;

d. More current data that the school may have available but has not yet reported; and

e. Any other information deemed relevant.

Within 30 days of receipt and review of the information, the department may determine that the school demonstrates improvement and may delay the designation for one year. By July 31, the department may, upon review of information that demonstrates improvement, delay the designation for one year. The department shall determine whether the district has made sufficient progress to warrant further consideration as a persistently dangerous school.

Upon designation, the district shall adopt a corrective action plan, which shall be approved by the department. The department shall monitor the district’s timely completion of the approved plan. The department shall annually assess the school using the criteria listed in 11.3(1)“a” through “c” by July 31 to determine whether the school shall remain identified as a persistently dangerous school for the following school year.

At minimum, a district that has one or more schools identified as persistently dangerous shall, within 14 days of the designation, notify parents of each student attending the school that the school has been identified by the department as persistently dangerous. The district must offer students the opportunity to transfer to a safe public school within the district; and for those students who accept the offer, the district shall complete the transfer. A district may deny the transfer if space at the requested school is unavailable. A district shall offer the parent other available options within the district, when available.

281—11.4(PL107–110) Individual student option. Any student who becomes a victim of a violent criminal offense shall, to the extent feasible, be permitted to transfer to another school within the district. For purposes of this rule, a victim of a violent criminal offense is a student who is physically injured or threatened with physical injury as a result of the commission of one or more of the following crimes against the student while the student is in the school building or on the grounds of the attendance center.

1. A forcible felony as define in rule 281— 11.2(PL107–110);

2. Offenses, excluding simple misdemeanors, involving physical assault under Iowa Code chapter 708;

3. Offenses, excluding simple misdemeanors, involving sexual assault under Iowa Code chapter 709;

4. Extortion under Iowa Code section 711.4.

Within ten calendar days following the date of the request, a local school district shall offer an opportunity to transfer to the parent/guardian of a student who meets the definition of a victim of a violent crime.

281—11.5(PL107–110) District reporting. For purposes of federal compliance, districts shall report data and requested information related to this chapter in a manner prescribed by the department.

These rules are intended to implement Public Law 107– 110, 115 Stat. 1425.

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa State Board of Education hereby proposes to amend Chapter 17, “Open Enrollment,” Iowa Administrative Code.

The purpose of these amendments is to make the rules conform to the statute, Iowa Code section 282.18, by clarifying the open enrollment application deadline and clarifying the authority of the Department in the event of a complaint lodged with the Department by one district against another district.

A waiver provision is not included. The Department has adopted a uniform waiver rule.

Any interested person may make written suggestions or comments on the proposed amendments on or before December 31, 2002. Written materials should be directed to Carol Greta, Legal Consultant, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319–0146, by fax to (515)281–4122 or by E–mail to carol.greta@ed.state.ia.us. Persons who wish to convey their views orally should contact Carol Greta by telephone at (515)281–5295.

Persons may also present their views either orally or in writing at a public hearing to be held on December 31, 2002, at 9 a.m. in the Second Floor South Conference Room, Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa. Any person who plans to attend the public hearing and requires special accommodations for specific needs should contact Carol Greta at (515)281–5295.

These amendments were also Adopted and Filed Emergency and are published herein as ARC 2203B. The content of that submission is incorporated by reference.

These amendments are intended to implement 2002 Iowa Acts, House File 2515, section 19.

Pursuant to the authority of Iowa Code section 256.7(5), the State Board of Education hereby gives Notice of Intended Action to rescind Chapter 68, “Charter Schools,” Iowa Administrative Code.

2002 Iowa Acts, Senate File 348, permits the State Board of Education to select ten pilot charter schools. The legislation contains a contingency provision which makes the new law effective upon Iowa’s receipt of federal charter school funds. The United States Department of Education notified this agency on October 3, 2002, that the state would not receive federal funding this year.

No public hearing will be held. Written comments will be accepted until December 31, 2002. Comments may be directed to Laurie Phelan, Consultant, Bureau of Instructional Services, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319–0146. Comments may also be sent to laurie.phelan@ed.state.ia.us.

This amendment is intended to implement 2002 Iowa Acts, Senate File 348.

The following amendment is proposed.

Rescind and reserve 281—Chapter 68.

Pursuant to the provisions of Iowa Code section 455B.133, the Environmental Protection Commission hereby gives notice of intent to extend until January 6, 2003, the public comment period for proposed changes to Chapter 20, “Scope of Title—Definitions—Forms—Rules of Practice,” and Chapter 28, “Ambient Air Quality Standards,” Iowa Administrative Code.

The original Notice of Intended Action was published in the Iowa Administrative Bulletin on August 21, 2002, as ARC 1876B and was amended on October 2, 2002, as ARC 2043B. The purpose of the rule making is to establish ambient air quality standards for hydrogen sulfide and ammonia.

Comments should be submitted in writing to Bryan Bunton, Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Suite 1, Urbandale, Iowa 50322 orbryan.bunton@dnr.state.ia.us or faxed to (515)242–5094. All comments must be received no later than January 6, 2003.

Pursuant to the authority of Iowa Code section 455B.200, the Environmental Protection Commission terminates the rule making initiated by its Notice of Intended Action published in the Iowa Administrative Bulletin on August 21, 2002, as ARC 1878B, proposing to amend Chapter 65, “Animal Feeding Operations,” Iowa Administrative Code.

The proposed amendments implement an interim matrix as required in 2002 Iowa Acts, Senate File 2293. Pursuant to 2002 Iowa Acts, Senate File 2293, the interim matrix is to be applied until the master matrix is implemented on March 1, 2003.

The proposed amendments were also Adopted and Filed Emergency as ARC 1899B. The Notice was published tosolicit comments and to provide opportunity for hearing. Because no comments were received during the comment period or at the public hearing, no changes are required to the amendments that were Adopted and Filed Emergency. Therefore, there is no need to proceed with rule making for ARC 1878B.

Pursuant to the authority of Iowa Code section 455B.304, the Environmental Protection Commission hereby gives Notice of Intended Action to rescind Chapter 108, “Reuse of Solid Waste,” and adopt new Chapter 108, “Beneficial Use Determinations: Solid By–Products as Resources and Alternative Cover Material,” Iowa Administrative Code.

This proposed rule making updates and expands the rules pertaining to the beneficial reuse to incorporate new beneficial uses for solid by–products and the Department’s permitting experiences. Numerous universally approved beneficial uses are authorized in the chapter, and an application process for new beneficial use determinations has been created.

This rule making is warranted for compliance with the Governor’s Executive Order Number 8. Furthermore, the rule making acts to encourage the use of solid by–products as resources when such utilization improves, or at a minimum does not adversely affect, human health and the environment. Without this rule making, some solid by–products may be unnecessarily disposed of.

Any interested person may make written suggestions or comments on this proposed amendment prior to January 8, 2003. Such written materials should be directed to JeffMyrom, Energy and Waste Management Bureau, Department of Natural Resources, 502 East 9th Street, Des Moines, Iowa 50319; fax (515)281–8895. Persons wishing to convey their views orally should contact Jeff Myrom at (515)281– 3302.

Also, there will be a public hearing on January 8, 2003, at 10 a.m. in the Fifth Floor Conference Room of the Wallace State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendment.

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

This amendment is intended to implement Iowa Code sections 455B.304 and 455D.4.

The following amendment is proposed.

Rescind 567—Chapter 108 and adopt the following new chapter in lieu thereof:

CHAPTER 108
BENEFICIAL USE DETERMINATIONS:
SOLID BY–PRODUCTS AS RESOURCES
AND ALTERNATIVE COVER MATERIAL

567—108.1(455B,455D) Purpose. The purpose of this chapter is to establish rules for determining when a solid by–product is a resource and not a solid waste. Solid by–products determined by the department to not be a solid waste through a beneficial use determination may not be subject to all sanitary disposal project (SDP) permitting requirements. Furthermore, the purpose of this chapter is to encourage the utilization of solid by–products as resources when such utilization improves, or at a minimum does not adversely affect, human health and the environment.

108.2(1) These rules apply to industrial, commercial, and institutional generators and users or proposed users of solid by–products and to sanitary landfills utilizing or desiring to utilize alternative cover material. These rules apply to solid by–products that before receiving a beneficial use determination by the department were being disposed of as solid waste. These rules do not apply to solid by–products that have already been disposed of as solid waste by the generator.

108.2(2) These rules do not pertain to the land application of solid waste. For rules pertaining to the land application of solid waste, see 567—Chapter 121. However, for solid by–products that are land–applied pursuant to 567—Chapter 121, a variance from some or all of the requirements of 567— Chapter 121 may be gained through receipt of a beneficial use determination from the department.

108.2(3) These rules do not pertain to solid waste being processed pursuant to 567—Chapter 104. However, for solid by–products that are processed pursuant to 567—Chapter 104, a variance from some or all of the requirements of 567— Chapter 104 may be gained through receipt of a beneficial use determination from the department.

108.2(4) These rules do not pertain to solid waste composting pursuant to 567—Chapter 105. However, for solid by–products that are composted pursuant to 567—Chapter 105, a variance from some or all of the requirements of 567— Chapter 105 may be gained through receipt of a beneficial use determination from the department.

108.2(5) Beneficial use determinations granted by the department before the adoption of these rules shall remain in effect unless specifically addressed by these rules or written notification pursuant to 567—108.11(455B,455D).

108.2(6) The issuance of a beneficial use determination by the department relieves the generator and user(s) of all Iowa solid waste requirements specifically noted in the written determination. Requirements that may be relieved by a beneficial use determination may include rules, SDP permits, and permit conditions and variances. Solid by–products that have not received a beneficial use determination by the department are subject to all of Iowa’s regulations pertaining to solid waste. The issuance of a beneficial use determination by the department in no way relieves the generator or user of the responsibility of complying with all other local, state, or federal statutes, ordinances, and rules or other applicable requirements.

567—108.3(455B,455D) Definitions. For the purposes of this chapter, the following terms shall have the meaning indicated in this chapter. The definitions set out in Iowa Code section 455B.301 shall be considered to be incorporated verbatim in these rules.

“Alternative cover material” means a substitute material or mix of materials that can be utilized in lieu of soil as cover material at a sanitary landfill.

“Beneficial use” means a specific utilization of a solid by–product as a resource, that constitutes reuse rather than disposal, does not adversely affect human health or the environment, and is approved by the department.

“Beneficial use determination” means a written formal decision or rule issued by the department as approval for a solid by–product to be utilized in a specific manner as a beneficial use.

“Coal combustion by–product” means any solid by–product produced by the burning of coal, by itself or in conjunction with natural gas or other fossil fuel, which is suitable for disposal as solid waste in a sanitary landfill. Examples include boiler slag, bottom ash, fly ash, and flue gas desulfur–ization by–products from pollution control equipment. Coal combustion by–products are also referred to as coal combustion residue.

“Cover material” means soil placed as daily, intermediate, or final cover at a sanitary landfill.

“Fill material” means material that is used to raise the elevation, take up space in, or build up the level of the land. For the purposes of this chapter, fill material is not considered subbase for hard–surface road construction.

“Foundry sand” means a solid by–product from the foundry industry that is derived from molding, core–making, and casting cleaning processes and primarily contains sand, oli–vine, or clay and that is suitable for disposal as solid waste in a sanitary landfill.

“High water table” is the position of the water table which occurs in the spring in years of normal or above normal precipitation.

“Resource” means a solid by–product that can provide greater benefit to the environment or human welfare in its beneficial use as a safe and effective substitute for a raw material, fuel or energy source, or natural resource, rather than being disposed of as a solid waste in a sanitary landfill.

“Solid by–product” means a secondary material or residual, produced or created by an industrial, commercial or institutional process or activity, that has been source separated by the generating entity and that would otherwise be disposed of as solid waste. Solid by–products are composed of materials suitable for disposal as solid waste in a sanitary landfill.

“Subbase for hard–surface road construction” means material that is used in subsurface applications for the construction of roads, including their shoulders, and parking lots that have hard surfaces such as concrete or asphalt. For the purposes of this chapter, subbase for hard–surface road construction is not considered fill material.

“Suitable for disposal as solid waste in a sanitary landfill” means that the material is in compliance with all state and federal rules and regulations pertaining to what may be disposed of in an Iowa sanitary landfill. Such materials are at a minimum nonhazardous and nonradioactive, are solid or semisolid, and do not contain free liquids pursuant to the Paint Filter Liquids Test (Reference: 40 CFR 258.28).

“Vector” means a carrier organism that is capable of transmitting a pathogen from one organism to another. Vectors include, but are not limited to, birds, rats and other rodents, and insects.

“Water table” means the water surface below the ground at which the unsaturated zone ends and the saturated zone begins.

567—108.4(455B,455D) Universally approved beneficial use determinations. The following solid by–products may be utilized as resources in the specific manners listed provided that such utilization is in compliance with 567— 108.6(455B,455D) and 567—108.7(455B,455D). Unless a user is otherwise notified by the department pursuant to 567—108.11(455B,455D), such utilization does not require further approval from the department.

108.4(1) Alumina. Alumina may be used as a raw material in the manufacture of cement or concrete products.

108.4(2) Asphalt shingles. Asphalt shingles that are laboratory certified, consistent with federal regulations (Reference: Appendix A, Subpart F, 40 CFR Part 763, Section 1), as not containing more than 1 percent asbestos may be used as follows:

a. Raw material in the manufacture of asphalt products.

b. Subbase for hard–surface road construction.

c. Road surfacing granular material.

d. Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

108.4(3) Cement kiln dust. Cement kiln dust may be used as follows:

a. Raw material in the manufacture of absorbents.

b. Raw material in the manufacture of cement or concrete products.

c. Subbase for hard–surface road construction.

d. A soil amendment pursuant to 567—Chapter 121 and the rules of the Iowa department of agriculture and land stewardship or a compost amendment.

e. A stabilizer for manure and waste sludge.

f. A soil stabilizer for construction purposes.

g. Fill material pursuant to 108.6(1).

108.4(4) Coal combustion by–products.

a. Coal combustion fly ash and flue gas desulfurization by–products may be used as follows:

(1) Raw material in manufactured gypsum, wallboard, plaster, or similar product.

(2) Raw material in manufactured calcium chloride.

(3) Raw material in the manufacture of absorbents.

(4) Fill material pursuant to 108.6(1).

(5) Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

b. Coal combustion fly ash or bottom ash or boiler slag may be used as follows:

(1) Raw material in the manufacture of cement or concrete products.

(2) Raw material to be used in mineral recovery.

(3) Raw material in the manufacture of asphalt products.

(4) Raw material in plastic products.

(5) Subbase for hard–surface road construction.

(6) Soil stabilization for construction purposes.

(7) Fill material pursuant to 108.6(1).

(8) Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

c. Coal combustion bottom ash may also be used as follows:

(1) Traction agent for surfaces used by vehicles.

(2) Sandblasting abrasive.

108.4(5) Compost. Cured or finished compost, as defined in 567—Chapter 105, is not solid waste and may be used for any purpose recognized by the U.S. Composting Council or the department.

108.4(6) Foundry sand. Foundry sand may be used as follows:

a. Raw material in the manufacture of asphalt products.

b. Raw material in the manufacture of cement or concrete products.

c. Leachate control drainage material at a sanitary landfill.

d. Subbase for hard–surface road construction.

e. Fill material pursuant to 108.6(1).

f. Emergency flood control use for sandbags.

g. Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

108.4(7) Glass. Uncontaminated, unleaded glass may be used as follows:

a. Raw material in the manufacture of asphalt products.

b. Fill material pursuant to 108.6(1).

c. Sandblasting or other abrasive.

d. Leachate control drainage material at a sanitary landfill.

e. Filter media.

f. Subbase for hard–surface road construction.

g. Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

108.4(8) Gypsum and gypsum wallboard.

a. All gypsum and gypsum wallboards may be used as follows:

(1) Raw material in the manufacture of absorbents.

(2) Raw material in the manufacture of other gypsum products, wallboard, plaster, or similar products.

(3) Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

b. Gypsum and gypsum wallboard that has not been treated to be water–resistant or flame–retardant may be used as a calcium additive for agricultural use or soil amendment pursuant to 567—Chapter 121, or compost amendment.

108.4(9) Lime. Lime produced as a by–product of public water supplies may be used as follows:

a. A soil amendment pursuant to 567—Chapter 121 and the rules of the Iowa department of agriculture and land stewardship, or compost amendment.

b. Raw material in the manufacture of calcium carbonate or similar substance.

108.4(10) Lime kiln dust. Lime kiln dust may be used as follows:

a. Raw material in the manufacture of absorbents.

b. Raw material in the manufacture of cement or concrete products.

c. Subbase for hard–surface road construction.

d. A soil amendment pursuant to 567—Chapter 121 and the rules of the Iowa department of agriculture and land stewardship or a compost amendment.

e. A stabilizer for manure and waste sludge.

f. A soil stabilizer for construction purposes.

g. Fill material pursuant to 108.6(1).

108.4(11) Paper mill sludge. Uncontaminated, dewatered paper mill sludge may be used as follows:

a. A fuel or energy source.

b. Bulking agent or carbon source for composting.

c. Animal bedding.

d. Raw material in the manufacture of absorbents.

e. Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

108.4(12) Rubble. Uncontaminated rubble such as concrete, brick, asphalt pavement, soil and rock may be used for fill, landscaping, excavation or grading or as a substitute for conventional aggregate. Asphalt, however, shall not be used for any of the aforementioned uses if the use will cause the asphalt to be placed in a waterway or wetland or any waters of the state or within the high water table.

108.4(13) Sandblasting abrasives. Sandblasting abrasives that do not contain lead–based paint may be used as follows:

a. Raw material in the manufacture of cement or concrete products.

b. Raw material in the manufacture of asphalt products.

c. Subbase for hard–surface road construction.

d. Raw material in the manufacture of abrasive products.

e. Fill material pursuant to 108.6(1).

f. Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

108.4(14) Soil, including nonhazardous contaminated or treated soil.

a. Uncontaminated soil may be used for fill, landscaping, excavation or grading, or other suitable purpose.

b. Nonhazardous contaminated soils, nonhazardouspetroleum–contaminated soils, and petroleum–contaminated soils that have been decontaminated to the satisfaction of the department may be used as follows:

(1) Fill material at the original excavation site.

(2) Alternative cover material at a sanitary landfill pursuant to 567—108.8(455B,455D).

108.4(15) Tires. This chapter does not pertain to tires other than those used as alternative cover material pursuant to 567—108.8(455B,455D). Refer to 567—Chapter 117 for rules regarding the beneficial use of tires.

108.4(16) Wastewater filter sand. Wastewater filter sand may be used as follows:

a. Fill material pursuant to 108.6(1).

b. Subbase for hard–surface road construction.

108.4(17) Wood. Uncontaminated, untreated or raw wood may be used as follows:

a. A fuel or energy source.

b. Bulking agent for composting.

c. Mulch.

d. Animal bedding.

e. Raw material in the manufacture of paper products, particle board, or similar materials.

108.4(18) Wood ash. Ash from the combustion of uncontaminated, untreated or raw wood may be used as follows:

a. A soil amendment pursuant to 567—Chapter 121.

b. A carbon source for composting.

c. Raw material in the manufacture of cement or concrete products.

d. Fill material pursuant to 108.6(1).

567—108.5(455B,455D) Application requirements for beneficial use determinations other than alternative cover material. Unless the beneficial use is approved by 567— 108.4(455B,455D), the applicant shall submit the following application information to the department. The department may request that additional information be submitted in order to make a beneficial use determination. The department may also require specific conditions on a beneficial use determination and issue a temporary beneficial use determination on a trial basis.

The generator of a solid by–product may apply to the department in writing for a beneficial use determination. If the department finds the application information to be incomplete, then it shall notify the applicant in writing of that fact and of the specific deficiencies and return the application materials to the applicant within 30 days of such notification. The applicant may reapply without prejudice.

108.5(1) The name, address, and telephone number of:

a. Owner of the site where the project will be located.

b. Applicant for the beneficial use determination.

c. Official responsible for the operation of the project.

d. Professional engineer (P.E.) licensed by the state of Iowa and retained for the project, if any. The department may, at its sole discretion, require the applicant to retain a professional engineer for the project or specific parts thereof.

e. Agency to be served by the project, if any.

f. Responsible official of agency to be served.

108.5(2) A description of the solid by–product under review and its proposed use.

108.5(3) The chemical and physical characteristics of the solid by–product under review and of each type of proposed product.

108.5(4) A demonstration that there is a known or reasonably probable market for the intended use of the solid by–product under review by providing one or more of the following:

a. A contract to purchase or utilize the solid by–product for the use proposed.

b. A description of how the solid by–product will be used.

c. A demonstration that the solid by–product complies with industry standards and specifications for that product.

d. Other documentation that a market for the solid by–product exists.

108.5(5) A demonstration that the proposed use of the solid by–product will not adversely affect human health or the environment. The demonstration may include, but is not limited to, a toxicity characteristics leaching procedure (TCLP, EPA Method 1311) and total metals testing of a representative sample of the solid by–product.

108.5(6) A solid by–product management plan pursuant to 108.6(2).

108.6(1) Solid by–products beneficially used as fill material. All beneficial uses, including those listed in 567— 108.4(455B,455D) other than rubble and soil, shall comply with the following requirements, unless a variance is granted in writing by the department for a specific location, if the beneficial use entails the solid by–product’s being used as fill material:

a. Leachate characteristics of the solid by–product shall be measured by the synthetic precipitation leaching procedure (SPLP, EPA Method 1312) and shall be less than or equal to ten times the maximum contaminant levels (MCL) for drinking water. Foundry sand and coal combustion by–products may limit the SPLP analytes to total metals for drinking water.

b. Total metals testing results, which shall include thallium, shall be consistent with the department’s statewide standards for soil pursuant to 567—Chapter 137. Arsenic levels shall be consistent with the statewide standards for soil or the naturally occurring (i.e., background) arsenic levels of the soil, whichever are greater.

c. The solid by–product shall produce a fill that has a pH:

(1) Greater than or equal to 5 and less than or equal to 8 if the fill may be used as growing media either now or in the future.

(2) Greater than or equal to 5 and less than 12 if the fill is specifically intended not to be used as growing media either now or in the future. In this category of fill, materials with a pH equal to or greater than 10 but less than 12 shall be used only in areas where direct physical contact by humans for long periods of time is not expected to occur.

(3) For deep fills where only the surface may serve as growing media either now or in the future, then at a minimum the top three feet shall have a pH greater than or equal to 5 and less than or equal to 8. Fill material below the top three feet shall have a pH greater than or equal to 5 and less than or equal to 12.

d. The by–product shall not be placed in a waterway or wetland or any waters of the state or extend below or within five feet of the high water table.

e. The by–product shall not be placed within the 100–year flood plain unless in accordance with all local and department regulations including rule 567—71.5(455B).

f. The by–product shall not be placed closer than 200 feet to a sinkhole or to a well that is being used or could be used for human or livestock consumption.

g. The by–product shall not be putrescible.

108.6(2) Solid by–product management plans. All recipients of beneficial use determinations granted pursuant to 567—108.5(455B,455D) and coal combustion by–product and foundry sand beneficial uses listed in 567—108.4(455B, 455D) shall develop and maintain a solid by–product management plan that satisfies the following requirements:

a. Lists the source(s) of the solid by–product.

b. Lists procedures for periodic testing of the solid by–product to ensure that the chemical and physical composition has not changed significantly.

c. A description of storage procedures including:

(1) Storage location(s).

(2) Maximum anticipated inventory, including dimensions of any stockpiles.

(3) Run–on and run–off controls, which may include a storm water National Pollutant Discharge Elimination System (NPDES) permit.

(4) Management practices to minimize uncontrolled dispersion of the solid by–product.

(5) Maximum storage time, not to exceed six months unless authorized in writing by the department.

108.7(1) Any entity that engages in the beneficial use of a solid by–product, other than for alternative cover material, and that satisfies at least one of the following criteria shall comply with record–keeping and reporting requirements set forth in this rule:

a. The entity has been granted a beneficial use determination pursuant to 567—108.5(455B,455D).

b. The solid by–product is not rubble or soil and is being beneficially used as fill material.

c. The solid by–product is a coal combustion by–product or foundry sand.

108.7(2) Record keeping. Generators shall maintain all records related to the solid by–product management plan for a minimum duration of five years.

108.7(3) Reporting. Reports shall be filed with the department’s central office and the field office with jurisdiction over the generator as follows:

a. Unless otherwise directed by the department, generators shall submit to the department a copy of the solid by–product management plan whenever that plan is revised or within 60 days of the end of the calendar year, whichever is earlier.

b. Generators whose solid by–products are being beneficially used as fill material shall submit to the department within 60 days of the end of the calendar year the following information for each beneficial use project or activity:

(1) The location of the project.

(2) The tons of solid by–product utilized for the project.

567—108.8(455B,455D) Universally approved beneficial use determinations for alternative cover material. Unless the landfill is otherwise notified pursuant to 567— 108.11(455B,455D), the following alternative cover materials may be beneficially used as daily cover material at sanitary landfills in the manner and volume specified by sanitary landfill rules without further approval from the department. However, sanitary landfills that stockpile or store alternative cover materials on site shall amend their sanitary landfill permit accordingly. Sanitary landfills shall notify the department, and the department field office with jurisdiction over the facility, of their intent to utilize solid by–products pursuant to this rule at least 30 days prior to actual utilization of the by–products as alternative cover material.

108.8(1) Asphalt shingles. Asphalt shingles that are laboratory certified, consistent with federal regulations (Reference: Appendix A, Subpart F, 40 CFR Part 763, Section 1), as not containing more than 1 percent asbestos and are ground to an average size of 3 inches or less in any dimension may be mixed with soil in a 50/50 volume.

108.8(2) Coal combustion by–products. Coal combustion by–products may be mixed with soil in a 50/50 volume.

108.8(3) Compost. One hundred percent cured or finished compost, and compost rejects, may be used.

108.8(4) Diatomaceous earth. Diatomaceous earth may be mixed with soil in a 50/50 volume.

108.8(5) Foundry sand. Foundry sand may be mixed with soil in a 50/50 volume.

108.8(6) Glass. Glass that has been ground to an average size of ½ inch or less in any dimension may be mixed with soil in a 10 percent glass and 90 percent soil by volume mixture.

108.8(7) Gypsum and gypsum wallboard. Gypsum and gypsum wallboard that have been ground to an average size of 3 inches or less in any dimension may be mixed with soil in a 50/50 volume.

108.8(8) Paper–mill sludge. Uncontaminated, dewatered paper–mill sludge may be mixed with soil in a 50/50 volume.

108.8(9) Sandblasting abrasive. Sandblasting abrasive and residuals may be mixed with soil in a 50/50 volume.

108.8(10) Soil, contaminated or treated. Nonhazardous contaminated soils, nonhazardous petroleum–contaminated soils, and petroleum–contaminated soils that have been decontaminated to the satisfaction of the department may be mixed with soil in a 50/50 volume.

108.8(11) Tire chips. Tire chips that are an average size of 3 inches or less in any dimension may be mixed with soil in a 50/50 volume.

567—108.9(455B,455D) Beneficial use determination application requirements for alternative cover material. Unless the alternative cover material beneficial use is approved by 567—108.8(455B,455D), the applicant shall submit the following application information to the department. The department may request that additional information be submitted in order to make a beneficial use determination. The department may also require specific beneficial use determination conditions and issue a temporary beneficial use determination on a trial basis.

The proposed user of an alternative cover material may apply to the department in writing for a beneficial use determination. If the department finds the application information to be incomplete, then it shall notify the applicant in writing of that fact and of the specific deficiencies and return the application materials to the applicant within 30 days of such notification. The applicant may reapply without prejudice.

108.9(1) The name, address, and telephone number of:

a. Owner of the site where the project will be located.

b. Applicant for the beneficial use determination.

c. Official responsible for the operation of the project.

d. Professional engineer (P.E.) licensed by the state of Iowa and retained for the project, if any. The department may, at its sole discretion, require the applicant to retain a professional engineer for the project or specific parts thereof.

e. Agency to be served by the project, if any.

f. Responsible official of agency to be served.

108.9(2) A description of the proposed alternative cover material and whether it is to be used as daily, intermediate, or final cover.

108.9(3) The chemical and physical characteristics of the alternative cover material.

108.9(4) The proposed volume ratio of the alternative cover material(s) to soil or other alternative cover material(s).

108.9(5) A demonstration that there is a known or reasonably probable suitability of the alternative cover material as cover material by providing previous case studies of the alternative cover material being utilized as cover material or the following information:

a. Information on the ability of the alternative cover material to reduce or maintain current odor levels.

b. Information on the ability of the alternative cover material to reduce or deter vectors.

c. Information on the ability of the alternative cover material to reduce or maintain the current risk of fire.

d. Information on the ability of the alternative cover material to control litter and dust.

e. Information on the ability of the alternative cover material to impede the infiltration of liquids and precipitation.

f. Information on the ability of the alternative cover material to control landfill gas migration.

g. Information on the ability of the alternative cover material to provide a safe and effective working surface.

h. Information on the ability of the alternative cover material to provide effective growing media.

i. Other documentation that the alternative cover material is suitable for cover material.

108.9(6) A demonstration that the proposed use of the alternative cover material will not adversely affect human health or the environment. The demonstration may include, but is not limited to, a toxicity characteristics leaching procedure (TCLP, EPA Method 1311) analysis of a representative sample of the alternative cover material.

567—108.10(455B,455D) Beneficial use of alternative cover material and state goal progress. Alternative cover material placed at no more than the thickness required by sanitary landfill rules shall be exempt from landfill tonnage measurements used for state goal progress and waste diversion calculations.

567—108.11(455B,455D) Revocation of beneficial use determinations. The department may revoke any beneficial use determination given pursuant this chapter if it finds one or more of the following:

1. The matters serving as the basis for the department’s determination were incomplete or incorrect or are no longer valid.

2. The department finds that there has been a violation of any law, rule, permit or other authorization in its jurisdiction.

3. The department has reasonable cause to suspect a significant risk to or adverse affect on human health or the environment.

These rules are intended to implement Iowa Code sections 455B.304 and 455D.4.

Pursuant to the authority of Iowa Code sections 18.3, 18.4, 18.8 and 18.12, the Department of General Services hereby gives Notice of Intended Action to amend Chapter 3, “Capitol Complex Operations,” Iowa Administrative Code.

These amendments are proposed to standardize office space management at the seat of government in order to improve office space planning and utilization, and to promote connectivity and reuse of modular office systems. The rules outline the responsibilities of state agencies relative to use of office space assigned to them by the Department of General Services and the responsibilities of the Department to manage and coordinate changes to an agency’s use of its assigned space.

Agencies may seek waivers or variances from the provisions of these rules in accordance with the Department’s waiver rule.

Public comments concerning the proposed amendments will be accepted until 3:30 p.m. on January 6, 2003. Interested persons may submit written, oral or electronic comments by contacting Carol Stratemeyer, Department of General Services, Hoover State Office Building, Level A, Des Moines, Iowa 50319–0104; telephone (515)281–6134; fax (515)242–5974; E–mail Carol.Stratemeyer@dgs.state.ia.us.

There will be a public hearing on January 6, 2003, beginning at 11 a.m. in the Director’s Conference Room, Department of General Services, Hoover State Office Building, Level A, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and confine their remarks to the subject of the rules. Persons with special needs may contact the Department of General Services prior to the hearing if accommodations need to be made.

These amendments are intended to implement Iowa Code section 18.8.

The following amendments are proposed.

ITEM 1. Amend rule 401—3.1(18) by adding the following new definitions in alphabetical order:

“Assignment of office space” means space allocated by the department to a state agency for its use.

“Control of assigned office space” means the ability of an agency to modify its use of assigned space without consultation with the department as long as changes do not include relocating wiring, replacing, adding or deleting modular office components, or making other modifications that would affect the floor plan.

“Modular office components” means parts of a modular office system.

“Modular office systems” means standard cubicle furniture; generally, two–foot, three–foot and four–foot sections that have attached work surfaces and file storage space. Modular office systems are available in new, remanufactured and recycled condition.

“Nonstandard modular office systems” means office systems that do not meet standards set by the department of general services.

“Office furniture” means any furnishing that is free standing and does not require installation with component parts. Examples are desks, chairs, file cabinets, tables, lounge seating, and computer desks.

“Recycled modular office components” means used components that have been cleaned and have had broken parts replaced, but have not been disassembled and rebuilt.

“Remanufactured modular office components” means used components that have been disassembled, repainted or reupholstered, rebuilt, and have had broken parts replaced. Remanufactured components are intended to be like new.

“Seat of government” means office space at the capitol, other state buildings and elsewhere in the city of Des Moines for executive branch agencies, except those areas exempted by law.

“Waiver” means a waiver or variance as defined in 401— Chapter 20, Iowa Administrative Code.

ITEM 2. Adopt the following new rule:

3.6(1) Purpose. The purpose of this rule is to standardize office space management at the seat of government in order to effectively plan and utilize office space and to promote connectivity and reuse of modular office systems. The rules outline the responsibilities of state agencies relative to use of office space assigned to them by the department of general services and the responsibilities of the department to manage and coordinate changes to an agency’s use of its assigned space.

3.6(2) Scope and applicability. The department’s authority for office space assignment applies to all state office space, including leased office space, at the seat of government except for buildings and grounds described in Iowa Code section 216B.3, subsection 6; section 2.43, unnumbered paragraph 1; and any buildings under the custody and control of the Iowa public employees’ retirement system.

3.6(3) Office space standards. State agencies are required to use the following standards:

a. The department of general services has developed and shall maintain, in cooperation with state agencies, office space standards, expressed in square feet for individual offices classified by type of work, and by occupancy, expressed as the number of occupants per building floor or major unit thereof. These standards will be used to facilitate space planning, but are not intended to be applied in an exact manner to each cubicle or office. Some flexibility may be allowed in the work plan created for managing changes to use of office space to provide for unique agency needs. All office space layouts shall comply with applicable federal and state regulations and codes.

b. The department of general services has defined and shall maintain in cooperation with state agencies and Iowa Prison Industries (IPI) modular office systems standards, expressed by function and connectivity, for use by state agencies. These standards are for the purpose of facilitating reuse of modular office system components.

The requirement to follow these standards may be waived by the director when supported by a written factual and objective business case analysis that provides clear and convincing evidence to support the waiver.

3.6(4) Notification of intended office space or office systems modifications. To facilitate office space planning and cost–effective space utilization, an agency shall notify the department in writing at least 45 days prior to expected completion of the work whenever an agency becomes aware of possible modifications to an agency’s organization, programs or mission which may require a corresponding increase or decrease in an agency’s current office space requirements; or when an agency first identifies a need to modify use of assigned office space including relocating wiring, replacing, adding or deleting modular office components, or making other floor plan modifications.

3.6(5) Work plan. Upon written notification of intended office space or office systems modifications, the department of general services and the agency will negotiate and complete a work plan including but not limited to the following items:

a. A description of the intended space modification result;

b. The tasks required to achieve the intended result, such as creating construction specifications, identifying wiring needs, selection of a space planner and a moving service, and identifying related purchases;

c. The party responsible for accomplishing each task; and

d. The scheduled time line for tasks included in the design, installation (construction and move) and completion of the project.

An agency may not proceed with office space modifications in the absence of a work plan agreed to and approved in writing by the agency and the department of general services. The work plan shall be modified to reflect any changes in intended results, tasks, responsibilities and time schedule.

3.6(6) Purchase of modular office components. To obtain office furniture and modular office components, an agency may purchase standard modular office components and other furniture items from Iowa Prison Industries in accordance with Iowa Code section 904.808 without further competition.

To obtain office furniture and modular office components, an agency may purchase standard modular office components and other furniture items from a targeted small business (TSB) when the purchase will not exceed $5,000, per Iowa Code section 18.6, without further competition.

Use of a competitive selection process is required for all purchases, unless the agency chooses to use one of the procedures above. However, competitive selection may be used for any purchase. When an agency elects to obtain standard office modular components and other furniture items through the department of general services’ competitive procurement process, IPI and TSBs shall be part of the bidding process.

The portion of the work plan for purchasing modular office systems or office furniture shall allow for the issuance of purchase orders at least 30 days prior to the desired delivery date.

Regardless of how an agency purchases or obtains modular office components, the department of general services shall retain responsibility for management and coordination of office space planning.

3.6(7) Disposal of surplus office modular components, furniture and equipment. State agencies may dispose of unfit or unnecessary office modular components, furniture and equipment by contacting the state surplus office, as identified by the department; offering items in good repair to other agencies either through the department or directly to other agencies; or trading in used items when purchasing replacements.

Any costs associated with disposal of nonstandard modular office components are the responsibility of the state agency.

Pursuant to the authority of Iowa Code section 249A.4 and 2002 Iowa Acts, House File 2416, section 7, the Department of Human Services proposes to amend Chapter 77, “Conditions of Participation for Providers of Medical and Remedial Care,” and Chapter 78, “Amount, Duration, and Scope of Medical and Remedial Care,” Iowa Administrative Code.

These amendments make changes to the requirements for supported community living services under the Medicaid home– and community–based mental retardation and brain injury waivers. The amendments:

• Set identical standards for approval of living units under the two waivers.

• Set criteria for approving living units under an exception to policy, as required by 2002 Iowa Acts, House File 2416.

• Clarify that consumers living in licensed health care facilities or in settings required to be licensed as health care facilities under Iowa law are not eligible for waiver services.

• Remove the restrictions that no more than eight consumers shall reside in settings with a maximum of four living units and that the majority of living units in larger settings must be occupied by people who are not disabled. 2002 Iowa Acts, House File 2416, requires that the restrictions based on the number of consumers or living units in a setting be eliminated. Instead, these amendments require that all living units shall be “integrated with” units occupied by people who are not disabled.

• Remove provisions for approving conversion of five–bed living units licensed as residential care facilities for the mentally retarded to waiver facilities not required to be licensed, since this authority was rescinded by 2002 Iowa Acts, House File 2416, section 1.

Criteria for approval of an exception to the four–bed limit are:

• Justification of the need for the service to be provided in a larger living unit.

• Evidence that the geographic location of the program will not result in an overconcentration of such programs in the area, as required by Iowa Code section 135C.6, subsection 8.

• Verification from the Department of Inspections and Appeals that the program is not required to be licensed as a health care facility under Iowa Code chapter 135C. Providing supported community living services in any setting required to be licensed as a medical or health care facility would be contrary to the intent of home– and community–based supported community living services. (NOTE: With the passage of 2002 Iowa Acts, House File 2416, the only exceptions to licensing allowed in the Code of Iowa are for four–bed residential programs and former ICFs/MR of eight beds or less that are operating under the waiver.)

These amendments provide for waivers to the limit on the size of living units under supported community living programs through the Department’s general rule at 441— 1.8(17A,217).

The substance of these amendments is also Adopted and Filed Emergency and is published herein as ARC 2161B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Any interested person may make written comments on the proposed amendments on or before January 2, 2003. Comments should be directed to the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut Street, Des Moines, Iowa 50319– 0114. Comments may be sent by fax to (515)281–4980 or by E–mail to policyanalysis@dhs.state.ia.us.

These amendments are intended to implement Iowa Code section 249A.6 and 2002 Iowa Acts, House File 2416, division I.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 78, “Amount, Duration, and Scope of Medical and Remedial Care,” Iowa Administrative Code.

This amendment changes the rate of Medicaid reimbursement for transportation by car to 20 cents per mile, instead of the state employee rate (currently 29 cents per mile).

This amendment does not provide for waivers in specified situations because reimbursement should be equal for all recipients.

The substance of this amendment is also Adopted and Filed Emergency and is published herein as ARC 2162B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Any interested person may make written comments on the proposed amendment on or before January 2, 2003. Comments should be directed to the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut Street, Des Moines, Iowa 50319– 0114. Comments may be sent by fax to (515)281–4980 or by E–mail to policyanalysis@dhs.state.ia.us.

This amendment is intended to implement Iowa Code section 249A.4.

Pursuant to the authority of Iowa Code section 249A.4 and 2001 Iowa Acts, chapter 191, section 31, the Department of Human Services proposes to amend Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” Iowa Administrative Code.

This amendment modifies the procedures for setting the state maximum allowable cost for specified drugs under the Medicaid program. This amendment:

• Removes the minimum value of the adjustment factor for determining the state maximum allowable cost.

• Provides that the Department will set the adjustment factor in consultation with the Iowa Pharmacy Association.

• Removes the requirement to set the adjustment factor at least quarterly and makes the timing subject to the Department’s discretion.

• Removes requirements for pharmacies to submit product cost and availability information to the Department and makes submission voluntary.

This amendment does not provide for waivers in specified situations because these changes confer a benefit on providers and because all drug claims should be reimbursed on the same basis.

The substance of this amendment is also Adopted and Filed Emergency and is published herein as ARC 2163B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Any interested person may make written comments on the proposed amendment on or before January 2, 2003. Comments should be directed to the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut Street, Des Moines, Iowa 50319– 0114. Comments may be sent by fax to (515)281–4980 or by E–mail to policyanalysis@dhs.state.ia.us.

This amendment is intended to implement Iowa Code section 249A.4 and 2001 Iowa Acts, chapter 191, section 31, subsection 1.

Pursuant to the authority of Iowa Code section 10A.104(5), the Department of Inspections and Appeals hereby gives Notice of Intended Action to amend Chapter 51, “Hospitals,” Iowa Administrative Code.

The proposed amendments are intended to update the Department’s administrative rules by incorporating recent changes made in the federal certification requirements for organ and tissue requests and procurement. The proposed amendments clarify rules relating to organ and tissue requests and procurement, the determination of death of a donor, determination of medical suitability, informed consent, confidentiality, and the training of hospital personnel.

Any interested person may make written suggestions or comments on the proposed amendments on or before December 31, 2002. Such written materials should be directed to the Director, Department of Inspections and Appeals, Lucas State Office Building, 321 East 12th Street, Des Moines, Iowa 50319–0083; or faxed to (515)242–6863. E–mail should be sent to dwerning@dia.state.ia.us.

These amendments are intended to implement Iowa Code section 10A.104(5).

The following amendments are proposed.

ITEM 1. Amend subrule 51.8(1), introductory paragraph, as follows:

51.8(1) Each hospital licensed with Iowa Code chapter 135B shall have in place written policies and protocols for organ and tissue donation. Hospital policies and protocols for organ and tissue donation shall require that the patient, or appropriate person able to consent on behalf of the patient, be made aware of the option to donate as well as of the option to refuse donation and the ability, if any, to revoke consent once given.

ITEM 2. Amend paragraphs 51.8(1)“a” and “b” as follows:

a. Hospitals shall be familiar with the uniform anatomical gift law, Iowa Code chapter 142C, and shall develop policies and protocols for consent to organ and tissue donation by either the patient or an appropriate person to consent on the patient’s behalf consistent with that law’s provisions.

b. Hospital policies and protocols for organ and tissue donation shall set forth the responsibilities of the attending physician or physicians, nursing staff, and other appropriate hospital staff persons in the organ donation process. At a minimum, the policies shall set forth who in particular is authorized to make an organ or tissue donor request and that all such requests shall be made only when authorized by the attending physician or in accordance with clearly delineated written protocol approved by the hospital’s medical staff and governing board.

ITEM 3. Amend subparagraphs 51.8(1)“d”(1), (2) and (4) as follows:

(1) Where the patient is not medically suitable, as determined by the organ or tissue procurement organization;

(2) Where the hospital lacks the appropriate facilities or equipment technical capability and expertise for determining medical suitability and for maintaining the patient or the organs for the time and in the manner necessary to facilitate appropriate procurement of the organs;

(4) Where the hospital has appropriate documentation actual knowledge that the patient or the appropriate person to consent on behalf of the patient does not want to consider the donation option or that donation violates or is otherwise contrary to the religious beliefs of the patient or of the appropriate person to consent on behalf of the patient;

ITEM 4. Rescind subparagraph 51.8(1)“d”(5).

ITEM 5. Amend paragraphs 51.8(1)“e,” “f” and “h” as follows:

e. Hospital policies and protocols for organ and tissue donation shall require documentation in the patient’s medical record of the fact that a donor request was made and either accepted or refused, stating to whom the request was made and who accepted or refused; or that a donor request was not made, stating the reason why no request was made; or that a consent previously given was subsequently revoked.

f. Method and manner of consent, where consent to organ or tissue donation has been given, shall be noted in the patient’s medical record. Where revocation of consent, if applicable, occurs, the manner and method of revocation shall also be noted in the patient’s medical record.

h. Hospital policies and protocols for organ and tissue donation shall provide for ongoing communication with the patient’s family or other appropriate representatives regarding the donation process, the present status of that process and unexpected delays in the process, and family rights and responsibilities following organ or tissue donation.

ITEM 6. Amend paragraph 51.8(2)“c” as follows:

c. The surgeon performing the organ removal shall not, except in unusual and necessary circumstances, participate in the determination of brain death.

ITEM 7. Amend paragraph 51.8(3)“a” as follows:

a. No At or near the time of death or when death has occurred, no organ donor request shall be made until the patient has been determined, by the designated organ or tissue procurement organization, to be medically suitable for organ or tissue donation.

ITEM 8. Rescind paragraph 51.8(3)“b.”

ITEM 9. Amend paragraph 51.8(3)“c” as follows:

c b. Each hospital shall consult with a recognized organ procurement program or programs in establishing medical requirements for organ and tissue donation and, where necessary, in evaluating a particular patient’s suitability for donation. Where required by federal law, hospitals shall only work with organ procurement organizations designated by the Department of Health and Human Services (DHHS). Organ procurement programs maintain guidelines for determining medical suitability and generally will provide a hospital with a copy of those guidelines which may be incorporated into the hospital’s own policies and protocol for organ donation.

ITEM 10. Amend paragraphs 51.8(4)“b,” “e” and “g” as follows:

b. Hospitals with agreements an agreement with the designated one or more OPOs OPO shall take into account the terms and conditions of those agreements the agreement in developing their policies and protocols. Where required by federal law, hospitals Hospitals shall contact only the OPO designated by the federal Department of Health and Human Services.

e. The procurement process shall not occur until necessary consent by the patient or appropriate person to consent on behalf of the patient is received and documented. Also, in cases requiring the involvement of the medical examiner, release of the body must be authorized in writing by the medical examiner and documented in the patient’s medical record.

g. Where consent has been given to for organ or tissue donation, revocation of prior consent, if applicable, shall not be effective once surgical procedures have begun on either the donor or the recipient. revocation of that consent shall be consistent with the current guidelines set forth by Medicare and Medicaid programs. Revocation of prior consent shall not be effective once surgical procedures have begun on either the donor or the recipient.

ITEM 11. Amend subrule 51.8(5) as follows:

51.8(5) Informed consent. Hospital policies and protocols for organ and tissue donation shall be consistent with informed consent provisions provided by the organ procurement organization of the current guidelines set forth by Medicare and Medicaid programs.

ITEM 12. Amend subrule 51.8(6) as follows:

51.8(6) Confidentiality. Hospital policies and protocols for organ and tissue donation shall provide that donor and recipient patient–identifying information shall be kept confidential except and only to the extent necessary to assist and complete the procurement and transplant processes process. Hospital confidentiality policies for organ donor and recipient patients shall be consistent with the current guidelines set forth by Medicare and Medicaid programs.

ITEM 13. Amend subrule 51.8(7) as follows:

51.8(7) Training of hospital personnel. Hospital policies and protocols for organ and tissue donation shall include provisions for initial and ongoing training of hospital medical, nursing, and other appropriate staff persons regarding the various aspects of the organ and tissue donation and procurement process. The type and extent of training will vary from hospital to hospital, based on factors such as likelihood of medically suitable donors, capabilities for maintaining organ donors/patients, referral sources for potential organ and tissue donor candidates, and overall participation in organ and tissue procurement and transplants.

Pursuant to the authority of Iowa Code sections 88.5 and 17A.3(1), the Labor Commissioner hereby gives Notice of Intended Action to amend Chapter 26, “Construction Safety and Health Rules,” Iowa Administrative Code.

The proposed amendment adopts the safety standards for signs, signals, and barricades. This amendment revises the construction industry safety standards to require that traffic control signs, signals, barricades or devices protecting workers conform to Part VI of either the 1988 Edition of the Federal Highway Administration (FHWA) Manual on Uniform Traffic Control Devices (MUTCD) with 1993 revisions or the Millennium Edition of the FHWA MUTCD. The current standard incorporates the 1971 version of the MUTCD.

The principal reasons for the proposed adoption of this amendment are to implement Iowa Code chapter 88 and to protect the safety and health of Iowa’s workers. Adoption of this amendment is required by 29 Code of Federal Regulations Subsection 1953.23(a)(2) and Iowa Code subsection 88.5(1)“a.”

A public hearing will be held on January 3, 2003, at10 a.m. in the Stanley Room of the Iowa Workforce Development Building, 1000 E. Grand Avenue, Des Moines, Iowa. Any interested person will be given the opportunity to make an oral statement and submit documents. The facility for the oral presentations is accessible to and functional for persons with physical disabilities. Persons who have special requirements should telephone (515)242–5869 in advance to arrange access or other needed services.

Written data or arguments to be considered in adoption may be submitted by interested persons no later than January 3, 2003, to the Deputy Labor Commissioner, Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319–0209, or faxed to (515)281–7995. E–mail may be sent to kathleen.uehling@iwd.state.ia.us.

The Division has determined that this Notice of Intended Action may have an impact on small business. This amendment will not necessitate additional annual expenditures exceeding $100,000 by any one political subdivision or agency or any contractor providing services to political subdivisions or agencies.

The Division will issue a regulatory flexibility analysis as provided by Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than January 13, 2003, to the Deputy Labor Commissioner, Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319. Appropriate requests are described in Iowa Code section 17A.4A.

This amendment is intended to implement Iowa Code section 88.5.

The following amendment is proposed.

Amend rule 875—26.1(88) by inserting at the end thereof:

67 Fed. Reg. 57736 (September 12, 2002)

Pursuant to the authority of Iowa Code sections 17A.3 and 455A.5, the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 7, “Rules of Practice in Contested Cases,” Iowa Administrative Code.

This amendment proposes to adopt by reference the proposed amendments to 561—Chapter 7, “Rules of Practice in Contested Cases,” that were published under Notice of Intended Action in the November 13, 2002, Iowa Administrative Bulletin as ARC 2095B.

The purpose of the rule making published under Notice as ARC 2095B is to amend the Department’s procedural rules to conform to Iowa Code chapter 17A, to update the titles of Department officials mentioned within the rules, and to correct an error in the rules. Items 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, and 19 make changes in the rules to conform to Iowa Code chapter 17A. Items 4 and 11 update the titles of Department officials. Item 12 corrects a misstated citation.

Any interested persons may make written suggestions or comments regarding the proposed amendment on or before December 31, 2002. Written comments should be directed to Anne Preziosi, Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Urbandale, Iowa 50322; telephone (515)281–6243; fax (515)242–5094. Requests for a public hearing regarding this rule making must be submitted in writing to the above address by that date.

This amendment is intended to implement Iowa Code section 455A.5.

The following amendment is proposed.

Amend rule 571—7.1(17A) as follows:

571—7.1(17A) Adoption by reference. The commission adopts by reference 561—Chapter 7, Iowa Administrative Code, as amended on [date to be inserted].

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby terminates the rule making initiated by its Notice of Intended Action published in the Iowa Administrative Bulletin on September 4, 2002, as ARC 1953B, amending Chapter 81, “Fishing Regulations,” Iowa Administrative Code.

The Notice proposed to amend Chapter 81 by rescinding language providing for a catch–and–release restriction on black bass in a portion of the Cedar River in Mitchell County.

The Notice was published to solicit comments and to provide opportunity for a hearing. Twenty–three individuals provided comments supporting retention of the current catch–and–release regulation. No support was received for the amendment, and there is no further need to proceed with rule making for ARC 1953B.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 88, “Fishing Tournaments,” Iowa Administrative Code.

The proposed amendments eliminate the mandatory report requirement and redefine fishing tournament for the Mississippi River as 20 or more boats or 40 or more participants.

Any interested person may make written suggestions or comments on the proposed amendments on or before January 7, 2003. Such written materials should be directed to Marion Conover, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515) 281–6794. Persons who wish to convey their views orally should contact the Fisheries Bureau at (515)281–5208 or at the Bureau offices on the fourth floor of the Wallace State Office Building.

Also, there will be a public hearing on January 7, 2003, at 1 p.m. in the Fourth Floor Conference Room of the Wallace State Office Building, 502 E. 9th Street, Des Moines, Iowa.

At the public hearing, persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

Any person who intends to attend the public hearing and has special requirements such as those related to hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

These amendments are intended to implement Iowa Code section 481A.38.

The following amendments are proposed.

ITEM 1. Amend rule 571—88.1(462A,481A) as follows:

571—88.1(462A,481A) Definition. “Fishing tournament” means any organized fishing event with six or more boats or 12 or more participants or where an entry fee is charged or prizes or other inducements are awarded. , except for waters of the Mississippi River, where the number of boats shall be 20 or more and the number of participants shall be 40 or more.

ITEM 2. Rescind rule 571—88.5(462A,481A).

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 94, “Nonresident Deer Hunting,” Iowa Administrative Code.

These rules give the regulations for hunting deer and include season dates, bag limits, possession limits, shooting hours, areas open to hunting, licensing procedures, means and methods of taking, and transportation tag requirements. This amendment changes nonresident zone license quotas.

Any interested person may make written suggestions or comments on the proposed amendment on or before January 15, 2003. Such written materials should be directed to the Wildlife Bureau Chief, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319– 0034; fax (515)281–6794. Persons who wish to convey their views orally should contact the Bureau at (515)281–6156 or at the Bureau offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on January 15, 2003, at3 p.m. in the Fourth Floor East Conference Room of the Wallace State Office Building at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendment.

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

This amendment is intended to implement Iowa Code sections 481A.38, 481A.39 and 481A.48.

The following amendment is proposed.

Amend subrule 94.6(1) as follows:

94.6(1) Zone license quotas. Nonresident license quotas are as follows:

Pursuant to the authority of Iowa Code section 455A.5, the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 104, “Wildlife Importation, Transportation and Disease Monitoring,” Iowa Administrative Code.

The proposed amendment establishes appropriate methods for the disposal of disease–affected captive cervid herds and for the disposal of carcasses by the Department.

Any interested person may make written suggestions or comments on this proposed amendment prior to January 15, 2003. Such written materials should be directed to Chief, Wildlife Bureau, Department of Natural Resources, Des Moines, Iowa 50319–0034; fax (515)281–6794. Persons wishing to convey their views orally should contact the Wildlife Bureau at (515)281–6156 or on the fourth floor of the Wallace State Office Building.

Also, there will be a public hearing on January 15, 2003,at 1 p.m. in the Fourth Floor East Conference Room of the Wallace State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendment.

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

This amendment is intended to implement Iowa Code section 481A.62.

The following amendment is proposed.

Rescind rule 571—104.11(481A) and adopt the following new rule in lieu thereof:

571—104.11(481A) Identification and disposal requirements. Affected and exposed animals must remain on the premises where they are found until they are identified and disposed of in accordance with this rule.

104.11(1) The carcasses of affected or exposed animals may be disposed of at a permitted sanitary disposal project, incinerated in a department–approved incinerator, or buried on the premises. Appropriate disposal method(s) will be determined by the department. If burial is the approved method, it must be done in accordance with the following:

a. A maximum loading rate of 20 Cervidae per acre per year may be buried on the premises. Animals or parts thereof that are less than 40 pounds can be buried without regard to number.

b. The animals are buried in soils listed in tables contained in the county soil surveys and soil interpretation rec–ords (published by the U.S. Soil Conservation Service) as being moderately well drained, well drained, somewhat excessively well drained, or excessively drained.

c. The lowest elevation of the burial pit is 6 feet or less below the surface.

d. The animals are immediately covered with a minimum of 6 inches of soil and finally covered with a total minimum of 30 inches of soil.

104.11(2) In addition to the disposal methods listed in 104.11(1), the Cervidae carcasses, or portions thereof, which come into the possession of the department for the purpose of disease testing or for any other reason may be disposed of by burial on public property under the jurisdiction of the department provided that burial is done in accordance with 104.11(1)“a” through “d” and the location of burial is situated to minimize the impact on public use of the property.

Pursuant to the authority of Iowa Code section 97B.15, the Department of Personnel hereby gives Notice of Intended Action to amend Chapter 21, “Iowa Public Employees’ Retirement System,” Iowa Administrative Code.

These proposed amendments establish a new method of benefits payment, also known as level method of payment, for qualified special service members effective July 1, 2002, permitting a special service member to receive a relatively level stream of IPERS income before the age of 62 and after the age of 62 when IPERS benefits and Social Security payments are combined; further remove restrictions relating to trailing wage payments to those employees retiring effective January 1, 2003; and allow qualified pension plans maintained by public waterworks and water utilities to be merged into IPERS, if IPERS and the merging plan agree to the terms of the merger, effective July 1, 2002.

These amendments were prepared after consultation with the IPERS legal, accounting and benefits units.

There are no waiver provisions included in the proposed amendments because they confer benefits or are required by statute.

Any person may make written suggestions or comments on the proposed amendments on or before December 31, 2002. Such written suggestions or comments should be directed to the IPERS Administrative Rules Coordinator,IPERS, P.O. Box 9117, Des Moines, Iowa 50306–9117. Persons who wish to present their comments orally may contact the IPERS administrative Rules Coordinator at (515)281– 3081. Comments may also be submitted by fax to (515)281– 0045, or by E–mail to info@ipers.org.

There will be a public hearing on December 31, 2002, at9 a.m. at IPERS, 7401 Register Drive, Des Moines, Iowa, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject matter of the proposed amendments.

These amendments are intended to implement Iowa Code chapter 97B as amended by 2002 Iowa Acts, House File 2532, sections 15 and 27.

The following amendments are proposed.

ITEM 1. Amend rule 581—21.13(97B) by adopting new subrule 21.13(13) as follows:

21.13(13) Level payment choice for special service members. A level payment choice is created effective July 1, 2002. IPERS shall implement the level payment choice by preparing factors to convert nonhybrid IPERS Options 1, 2, 3, 4, and 5 to the level payment choice. The new benefit feature applies solely to special service members, and any reference to members in this subrule shall only apply to special service members.

a. Conversion rights. A special service member who qualifies for a July 2002 or later first month of entitlement (FME) may elect to retire under the regular IPERS Option 1, 2, 3, 4 or 5, and later have the member’s option converted to the level payment choice. Retroactive adjustments in monthly amounts and death benefits, without interest, shall be provided.

In order to qualify for the conversion and retroactive payments, the member must request the level payment choice in writing no later than six months after the member’s first monthly payment. If the member is married, the member’s spouse must also consent to the requested change. Election of conversion to the level payment choice shall be irrevocable upon receipt of the first payment under the level payment choice.

A member who has retired under Iowa Code section 97B.49D or under IPERS Option 6 on or after July 1, 2002, and who wishes to receive benefits under this subrule may revoke the member’s initial election and choose IPERS Option 1, 2, 3, 4, or 5, to be paid as a level payment choice. The conversion to the level payment choice under this subrule is mandatory and irrevocable.

The conversion rights granted in this subrule shall not apply to members whose FME is January 2003 and later. Those members must select the level payment choice at the time they submit an IPERS retirement application.

b. Social security retirement amount. Calculations of a member’s level payment choice shall be based on the social security retirement amount at age 62 as verified by Social Security Administration statements provided by the member. No adjustments shall be made if subsequent social security statements indicate an increase in the age 62 social security retirement amount. Verification of the social security benefits shall not precede the member’s first month of entitlement by more than 12 months.

c. Death benefit assumptions. In preparing level payment choice factors, the actuary shall assume:

(1) For IPERS Options 1 and 2, death benefits under those options shall not be reduced as a result of a member turning age 62 and having the member’s monthly allowance reduced under this subrule.

(2) For IPERS Options 4 and 5, the IPERS’ actuary shall assume that the contingent annuitant’s or beneficiary’s monthly payments and death benefits, if any, prior to the date the member attains, or would have attained, age 62 shall be based on the amount that was payable to the member for periods before the member attains, or would have attained, age 62. Beginning with the month that the member attains, or would have attained, age 62, a contingent annuitant’s or beneficiary’s monthly payments and death benefits, except death benefits under IPERS Options 1 and 2, shall be based on the reduced amount that would have been payable to the member in the month after the month that the member attained age 62.

d. Favorable experience dividends. An eligible member’s or beneficiary’s favorable experience dividend, if any, shall be based on the member’s or beneficiary’s level payment choice monthly amount as of the preceding December 31.

e. Prohibitions. The following special service members shall be prohibited from receiving benefits under this subrule:

(1) Those who retire under Iowa Code section 97B.49D.

(2) Those who retire under Option 6.

(3) Those who request a level payment amount that reflects less than a full offset for the social security retirement amount at age 62.

(4) Those reemployed in covered employment and subsequently retiring, for the period of reemployment. A member who has elected the level payment choice shall have retirement benefits calculated solely for the period of reemployment, except for vesting credit.

f. Limit on reductions. For a member who has substantial noncovered employment, the application of the level payment factors shall not reduce the monthly amount payable to a member at age 62 to less than 50 percent of the monthly amount that would have been payable under IPERS Option 2. Accordingly, payments before age 62 to such members shall be reduced in the same manner, with the corresponding adjustments made to death benefits.

ITEM 2. Amend subrule 21.18(2), as follows:

21.18(2) Effective January 1, 1993, the first month of entitlement of an employee who qualifies for retirement benefits shall be the first month after the employee is paid the last paycheck, if paid more than one calendar month after termination. If the final paycheck is paid within the month after termination, the first month of entitlement shall be the month following termination.

Notwithstanding the foregoing sentence, effective Effective January 1, 2001, employees of a school corporation who are permitted by the terms of their employment contracts to receive their annual salaries in monthly installments over periods ranging from 9 to 12 months may retire at the end of a school year and receive trailing wages through the end of the contract year if they have completely fulfilled their contract obligations at the time of retirement. For purposes of this subrule, “school corporation” means body politic described in Iowa Code sections 260C.16 (community colleges), 273.2 (area education agencies) and 273.1 (K–12 public schools). For purposes of this subrule, “trailing wages” means previously earned wage payments made to such employees of a school corporation after the first month of entitlement. Such trailing wage payments shall not result in more than one quarter of service credit being added to retiring members’ earnings records. For purposes of this subrule, “school corporation” means body politic described in Iowa Code sections 260C.16 (community colleges), 273.2 (area education agencies) and 273.1 (K–12 public schools). This exception does not apply to hourly employees, including those who make arrangements with their employers to hold back hourly wages for payment at a later date, to employees who are placed on sick or disability leave or leave of absence, or to employees who receive lump sum leave, vacation leave, early retirement incentive pay or any other lump sum payments in installments.

ITEM 3. Amend 581—Chapter 21 by adopting the following new rule 581—21.35(97B):

581—21.35(97B) Procedures for merger of qualified pension plans with IPERS. Effective January 1, 2003, IPERS will begin accepting qualified pension plans for merger into the IPERS pension plan. This merger process shall provide for the transfer of all active and inactive members, retirees, and beneficiaries of retirees of the merging plan into IPERS, except as otherwise agreed by IPERS and the merging plan.

21.35(1) The merging plan shall transfer assets to IPERS in an amount equal to the actuarial accrued liability created for IPERS as the result of the transfer of pension obligations owed to active, inactive and retired members of the merging plan. Said actuarial accrued liability shall be determined using the merging plan’s membership data, the IPERS benefit structure, and the current IPERS actuarial valuation assumptions as of the date of the transfer.

21.35(2) All years of service under the merging plan shall be recognized by IPERS for purposes of determining eligibility, vested status, and calculating IPERS benefits.

21.35(3) All wage records for current active members shall be summarized on the quarterly basis used by IPERS to determine the member’s IPERS benefits. IPERS will not independently verify wage records, but will monitor those rec–ords to ensure that IRC Section 401(a)(17) limits are not exceeded.

21.35(4) The merging plan’s actuary may determine that the accrued benefit of an active or inactive member of the merging plan exceeds the member’s accrued IPERS benefits based on the merging plan’s membership data and the IPERS benefit structure. The compensation of such individuals for any difference between the monthly benefit they accrued in the merging plan and the benefit they will have under IPERS shall be at the merging plan’s sole discretion, and IPERS shall have no liability.

21.35(5) The same methods of conversion and cash out will be used for terminated vested members with a current plan account in the merging plan and for members, if any, who previously elected to freeze their accounts in the former plan to begin participation in IPERS.

21.35(6) The merging plan’s retirees shall receive annuity payments from IPERS in the same forms and amounts as provided in the merging plan, provided those forms of payment are available under IPERS. If any retiree from the merging plan is also receiving a benefit from IPERS and the forms of benefits under the two plans differ, the retiree must agree to have the benefit payable from the merging plan converted and paid in the same form as the benefit under IPERS. Dividends for retirees transferred to IPERS shall be determined based on the first month of entitlement under the merging plan.

21.35(7) The monthly benefit payable to transferred members (excluding retirees) by IPERS may be greater or less than the monthly benefit they would have received under the merging plan. IPERS shall not be responsible for any difference in the two benefit amounts. It shall be the sole responsibility of the merging plan to ensure the protection of the accrued benefits of the merging plan’s members and beneficiaries.

21.35(8) IPERS may agree to accept in–kind transfers of assets in satisfaction of the liabilities created by the merger, but may, in IPERS’ sole discretion, decline all in–kind asset transfers and demand cash to fund the merger.

21.35(9) Mergers shall meet the following criteria:

a. There shall be no actuarial gain or loss to IPERS (defined as a change in the unfunded accrued actuarial liability) as a result of a merger with another pension plan.

b. The merging plan shall defend and hold IPERS harmless from any claims by transferred members with respect to employee contribution accounts, cut–back claims, tax issues, and any other cause of action arising hereunder that does not result from IPERS negligence or misconduct. This indemnification shall also extend to any contractual claims by the merging plan’s vendors, pending or threatened lawsuits or regulatory actions against the merging plan, and appeals by members, retirees and beneficiaries of the merging plan.

c. Prior to the merger date, the merging plan authority and IPERS shall formally agree on all material terms and conditions of the merger in writing.

d. The merging plan authority shall adopt by resolution a proposal to merge the pension plan with and into the IPERS pension plan, with IPERS as the surviving plan, which shall incorporate by reference the details of the merger expressed in the merger agreement between the merging plan andIPERS. The merging plan authority shall secure all other approvals necessary to the merger, and shall certify to IPERS that all necessary authorizations have been received.

e. All assets required to fund the transfer of liabilities created under the merger shall be transferred to IPERS within 120 days after the proposed effective date, plus an additional amount representing a 7.5 percent interest rate (or the current rate assumed by IPERS actuary in valuing assets and liabilities) commencing on the proposed effective date.

f. After the merger, the merging plan authority, as a covered employer, shall determine employee classifications and deduct and forward member and employer contributions in the same amount as required for all IPERS covered employment.

g. The merging plan authority shall transfer to IPERS in a mutually agreed upon method all employment records for active, inactive, and retired members and beneficiaries, including all tax reporting records. In addition to employment and tax reporting records, transferred electronic files shall include the same enrollment information as required under 21.6(11). Similar demographic information shall be provided to IPERS for spouses and beneficiaries.

h. The merging plan shall, prior to merger, in its sole discretion, make such amendments to its plan documents that it deems to be necessary or appropriate to accomplish the merger, provided that no such amendments shall vary the terms of the agreement to merge without the express written consent of IPERS.

i. IPERS shall, prior to merger, in its sole discretion, make such amendments to its plan documents that it deems to be necessary or appropriate to accomplish the merger, provided that no such amendments shall vary the terms of the agreement to merge without the express written consent of the merging plan.

j. The transferred records of the merging plan shall be treated as confidential records by IPERS as described in rule 581—21.23(97B).

k. The merging plan authority and its legal and actuarial advisors shall determine the excess accruals, if any, owed to any member of the merging plan transferred to IPERS; shall provide such members with the appropriate election forms and related information; and shall take all steps necessary to complete the payment of compensation to such individuals in satisfaction of the obligation to protect accrued benefits under the merging plan as described above.

l. Excluding matters relating to the distribution of excess accruals, if any, the merging plan authority, its legal counsel, and IPERS and its legal counsel shall jointly develop all required communications regarding the plan merger. IPERS shall have sole responsibility for providing benefits estimates to the merging plan members, in anticipation of the merger. Following the effective date of the merger, all member services shall be handled by IPERS.

m. Following the merger, transferred active, inactive, and retired members and beneficiaries shall be entitled to benefits, including monthly allowances, refunds, actuarial equivalent (AE), death benefits and dividends as other IPERS members having the same demographic, wage and service records.

n. The members of the merging plan who currently have binding assignments against their benefits shall continue to have those assignments administered by IPERS as described in 21.26(97B) and 21.29(97B) or as otherwise required by law.

o. The members of the merging plan currently receiving disability retirement benefits must agree to have their disability retirement benefits administered by IPERS as described under 21.22(97B) or 21.31(97B), as applicable, or those members shall not be transferred.

p. The merging plan and IPERS shall jointly agree whether the merger will be submitted to the IRS for approval.

This rule is intended to implement Iowa Code chapter 97B as amended by 2002 Iowa Acts, House File 2532, section 27.

Pursuant to the authority of Iowa Code sections 99D.7 and 99F.4, the Racing and Gaming Commission hereby gives Notice of Intended Action to amend Chapter 4, “Contested Cases and Other Proceedings,” Chapter 5, “Track and Excursion Boat Licensees’ Responsibilities,” Chapter 6, “Occupational and Vendor Licensing,” Chapter 9, “Harness Racing,” Chapter 10, “Thoroughbred and Quarter Horse Racing,” and Chapter 11, “Gambling Games,” Iowa Administrative Code.

Items 1 to 4 remove redundant language.

Item 5 clarifies the procedure that the Commission must follow when honoring a ruling from another jurisdiction.

Item 6 sets forth the procedures for service of administrative actions.

Item 7 defines a certified police officer for purposes of rule 491—5.4(99D,99F).

Item 8 defines a probationary period attached to an occupational license.

Item 9 prohibits the transfer of a racing animal to avoid application of a Commission rule.

Item 10 allows for the applicant’s forfeiture of a license fee if the applicant does not comply in the allotted amount of time.

Item 11 removes the restriction which requires that a person be a member of the United States Trotting Association in order to claim a horse.

Item 12 sets a time certain by which medication reports must be submitted to the state veterinarian.

Items 13 to 15 allow for alternate sources of funding progressive jackpots.

Any person may make written suggestions or comments on the proposed amendments on or before January 7, 2003. Written materials should be directed to the Racing and Gaming Commission, 717 E. Court, Suite B, Des Moines, Iowa 50309. Persons who wish to convey their views orally should contact the Commission office at (515)281–7352.

Also, there will be a public hearing on January 7, 2003, at 9 a.m. in the office of the Racing and Gaming Commission, 717 E. Court, Suite B, Des Moines, Iowa. Persons may present their views at the public hearing either orally or in writing.

These amendments are intended to implement Iowa Code chapters 99D and 99F.

The following amendments are proposed.

ITEM 1. Rescind and reserve subrule 4.4(1), paragraph “b.”

ITEM 2. Amend subrule 4.5(5) as follows:

4.5(5) The notice of hearing given to the license holder shall give adequate notice of the time, place and purpose of the board’s hearing, and shall specify by number the statutes or rules allegedly violated. Delivery of the notice of hearing may be executed by either personal service or certified mail with return receipt requested to the last–known address listed in the license application. If a license holder, after receiving adequate notice of a board meeting, fails to appear as summoned, the license holder will be deemed to have waived any right to appear and present evidence to the board.

ITEM 3. Rescind and reserve subrule 4.6(1), paragraph “b.”

ITEM 4. Amend subrule 4.6(5), paragraph “b,” as follows:

b. The notice of hearing given to the license holder shall give adequate notice of the time, place and purpose of the board’s hearing, and shall specify by number the statutes or rules allegedly violated. Delivery of the notice of hearing may be executed by either personal service or certified mail with return receipt requested to the last–known address listed in the license application. If a license holder, after receiving adequate notice of a board meeting, fails to appear as summoned, the license holder will be deemed to have waived any right to appear and present evidence to the board.

ITEM 5. Amend rule 491—4.8(99D,99F) by adding the following new unnumbered paragraph:

The commission and stewards shall have discretion to honor rulings from other jurisdictions regarding license suspension or revocation or the eligibility of contestants. Whenever the commission decides to honor an order from another jurisdiction, the commission representatives shall schedule a hearing at which the licensee shall be required to show cause as to why the license should not be suspended or revoked.

ITEM 6. Amend 491—Chapter 4 by adding the following new rule:

491—4.9(99D,99F) Service of administrative actions. Any administrative action taken against an applicant or occupational licensee shall be served on the applicant or occupational licensee by personal service or by certified mail with return receipt requested to the last–known address on the application.

4.9(1) If the applicant or licensee is represented by legal counsel, a copy of the written decision shall also be provided to legal counsel by regular mail. However, the applicant or licensee must still be served in accordance with this rule.

4.9(2) If the administrative action involves an alleged medication violation that could result in disqualification of a contestant, the stewards shall provide by regular mail notice of the hearing and all subsequent rulings to the owner of the contestant.

ITEM 7. Amend subrule 5.4(5), paragraph “a,” as follows:

a. Peace officer. Each licensee shall ensure that a person who is a certified peace officer is present during all gaming hours, unless permission is otherwise granted by the administrator. A certified peace officer pursuant to this rule must be employed by a law enforcement agency and have police powers.

ITEM 8. Rescind rule 491—6.7(99D,99F) and insert in lieu thereof the following new rule:

491—6.7(99D,99F) Probationary period placed on a license. The commission representative or the board may place a probationary period on a license. The terms of the probationary period shall include the effective dates, conditions placed on the licensee and any penalty for failure to follow those conditions, including fine, suspension, denial, or revocation.

ITEM 9. Amend rule 491—6.15(99D) as follows:

491—6.15(99D) Disclosure of ownership of racing animals. All entities of ownership (individual, lessee, lessor, general partnership, or corporation) and all trainers are responsible for making full and accurate disclosure of the ownership of all racing animals registered or entered for racing. Disclosure shall identify in writing all individuals or entities that, directly or indirectly, through a contract, lien, lease, partnership, stockholding, syndication, joint venture, understanding, relationship (including family relationship), present or reversionary right, title or interest, or otherwise hold any interest in a racing animal, and those individuals or entities who by virtue of any form of interest might exercise control over the racing animal or may benefit from the racing of the animal. The degree and type of ownership held by each individual person shall be designated. The transfer of a racing animal to avoid application of a commission rule or ruling is prohibited and constitutes grounds for discipline.

ITEM 10. Amend subrule 6.16(5), paragraph “c,” as follows:

c. Failure to obtain a permanent license within the designated 15 calendar days will result in forfeiture of the license fee. Failure to obtain a permanent license may also result in the automatic revocation of disqualification from license eligibility and may result in a fine or suspension for the licensee that has failed to comply.

ITEM 11. Amend subrule 9.6(15), paragraph “a,” subparagraph (1), introductory paragraph, as follows:

(1) No person may file a claim for any horse unless the person is a current active member of the U.S.T.A. and:

ITEM 12. Amend subrule 10.7(4), paragraph “c,” as follows:

c. Veterinarians must submit daily to the commission veterinarian on a prescribed form a report of all medications and other substances which the veterinarian prescribed, administered, or dispensed for racing animals registered at the current race meeting as provided in Iowa Code section 99D.25(10). Reports shall be submitted in a manner and at a time determined by the commission veterinarian not later than noon the day following the treatments being reported. Reports shall include the racing animal, trainer, medication or other substance, dosage or quantity, route of administration, date and time administered, dispensed, or prescribed.

ITEM 13. Amend rule 491—11.1(99F) by adding the following new definitions in alphabetical order:

“Government sponsored enterprise debt instrument” means a negotiable, senior, noncallable debt obligation issued by an agency of the United States or an entity sponsored by an agency of the United States that on the date of funding possesses an issuer credit rating equivalent to the highest investment grade rating given by Standard & Poor’s or Moody’s Investment Services.

“Qualified investment” means an Iowa state issued debt instrument, a United States Treasury debt instrument or a government sponsored enterprise debt obligation.

ITEM 14. Amend subrule 11.12(8), paragraph “n,” subparagraphs (3), (4), (6) and (7), as follows:

(3) The moneys in the trust fund shall consist of the sum of funds invoiced to the facilities and received by the trust from the facilities with respect to each particular system, which invoices shall be based on a designated percentage of the handle generated by all machines linked to the particular system; any income earned by the trust; and sums borrowed by the trust and any other property received by the trust. Prior to the payment of any other expenses, the trust funds shall be used to purchase Iowa state–issued debt instruments or United States Treasury debt instruments a qualified investment in sufficient amounts to ensure that the trust will have adequate moneys available in each year to make all system jackpot payments which are required under the terms of the multilink.

(4) A reserve shall be established and maintained within the trust fund sufficient to purchase any United States Treasury or Iowa state debt instruments qualified investment required as system jackpots are won (systems reserves). For purposes of this rule, the system reserves shall mean an amount equal to the sum of the present value of the aggregate remaining balances owed on all jackpots previously won by patrons on the multilink; the present value of the amount currently reflected on the system jackpot meters of the multilink; and the present value of one additional reset (start amount) on such systems.

(6) For system jackpots disbursed in periodic payments, any United States Treasury or Iowa state debt instruments qualified investment shall be purchased within 90 days following notice of the win of the system jackpot, and a copy of such debt instruments qualified investment will be provided to the commission office within 30 days of purchase. Any United States Treasury or Iowa state debt instrument qualified investment shall have a surrender value at maturity, excluding any interest paid before the maturity date, equal to or greater than the value of the corresponding periodic jackpot payment, and shall have a maturity date prior to the date the periodic jackpot payment is required to be made.

(7) The trustee(s) shall not be permitted to sell, trade, or otherwise dispose of any United States Treasury or Iowa state debt instruments qualified investments prior to maturity unless approval to do so is first obtained from the commission.

ITEM 15. Amend subrule 11.12(8), paragraph “o,” as follows:

o. For system jackpots disbursed in periodic payments, subsequent to the date of the win, a winner may be offered the option to receive, in lieu of periodic payments, a discounted single cash payment in the form of a “qualified prize option,” as that term is defined in Section 451(h) of the Internal Revenue Code. The trust administrator shall calculate the single cash payment based on the discount rate. “Discount rate” means either the current prime rate as published in the Wall Street Journal or a blended rate computed by obtaining quotes for the purchase of U.S. Government Treasury Securities qualified investments at least three times per month. The discount rate selected by the trust administrator shall be used to calculate the single cash payment for all qualified prizes that occur subsequent to the date of the selected discount rate, until a new discount rate becomes effective.

Pursuant to the authority of Iowa Code sections 437A.4 and 437A.5, the Director of Revenue and Finance hereby gives notice of the electric delivery tax rate, the municipal electric transfer replacement tax rate, the natural gas delivery tax rate, and the municipal natural gas transfer replacement tax rate for each competitive service area in the state. These rates will be used in conjunction with the number of kilowatt hours of electricity and the number of therms of natural gas delivered to consumers in calendar year 2002 by each taxpayer to determine the tax due for each taxpayer in the 2003–2004 fiscal year.