Text: HF00666 Text: HF00668 Text: HF00600 - HF00699 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 HOUSE FILE 667 1 2 1 3 AN ACT 1 4 RELATING TO THE IOWA ADMINISTRATIVE PROCEDURE ACT AND 1 5 PROVIDING AN EFFECTIVE AND APPLICABILITY DATE. 1 6 1 7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 1 8 1 9 Section 1. Section 10A.104, subsection 5, Code 1997, is 1 10 amended to read as follows: 1 11 5. Adopt rules deemed necessary for the implementation and 1 12 administration of this chapter in accordance with chapter 17A,1 13including rules governing hearing and appeal proceedings. 1 14 Sec. 2. Section 10A.106, Code 1997, is amended to read as 1 15 follows: 1 16 10A.106 DIVISIONS OF THE DEPARTMENT. 1 17 The department is comprised of the following divisions: 1 18 1.Appeals and fairAdministrative hearings division. 1 19 2. Audits division. 1 20 3. Investigations division. 1 21 4. Inspections division. 1 22 The allocation of departmental duties to the divisions of 1 23 the department in sections10A.202,10A.302, 10A.402, and 1 24 10A.502 does not prohibit the director from reallocating 1 25 departmental duties within the department. The director shall 1 26 not reallocate any of the duties of the division of 1 27 administrative hearings, created by section 10A.801, to any 1 28 other unit of the department. 1 29 Sec. 3. NEW SECTION. 10A.801 DIVISION OF ADMINISTRATIVE 1 30 HEARINGS – CREATION, POWERS, DUTIES. 1 31 1. DEFINITIONS. For purposes of this section, unless the 1 32 context otherwise requires: 1 33 a. "Administrator" means the chief administrative law 1 34 judge who shall coordinate the administration of the division. 1 35 b. "Division" means the administrative hearings division 2 1 of the department of inspections and appeals. 2 2 2. The administrator shall coordinate the division's 2 3 conduct of appeals and administrative hearings as otherwise 2 4 provided by law. 2 5 3. a. The department shall employ a sufficient number of 2 6 administrative law judges to conduct proceedings for which 2 7 agencies are required, by section 17A.11 or any other 2 8 provision of law, to use an administrative law judge employed 2 9 by the division. An administrative law judge employed by the 2 10 division shall not perform duties inconsistent with the 2 11 judge's duties and responsibilities as an administrative law 2 12 judge and shall be located in an office that is separated from 2 13 the offices of the agencies for which that person acts as a 2 14 presiding officer. Administrative law judges shall be covered 2 15 by the merit system provisions of chapter 19A. 2 16 b. The division shall facilitate, insofar as practicable, 2 17 specialization by its administrative law judges so that 2 18 particular judges may become expert in presiding over cases in 2 19 particular agencies. An agency may, by rule, identify 2 20 particular classes of its contested cases for which the 2 21 administrative law judge who acts as presiding officer shall 2 22 have specified technical expertness. After the adoption of 2 23 such a rule, the division may assign administrative law judges 2 24 to preside over those identified particular classes of 2 25 contested cases only if the administrative law judge possesses 2 26 the technical expertness specified by agency rule. The 2 27 division may charge the applicable agency for the costs of any 2 28 training required by the division's administrative law judges 2 29 to acquire or maintain the technical expertise specified by 2 30 agency rule. 2 31 4. If the division cannot furnish one of its 2 32 administrative law judges in response to an agency request, 2 33 the administrator shall designate in writing a full-time 2 34 employee of an agency other than the requesting agency to 2 35 serve as administrative law judge for the proceeding, but only 3 1 with the consent of the employing agency. The designee must 3 2 possess the same qualifications required of administrative law 3 3 judges employed by the division. 3 4 5. The division may furnish administrative law judges on a 3 5 contract basis to any governmental entity to conduct any 3 6 proceeding. 3 7 6. After the effective date of this Act, a person shall 3 8 not be newly employed by the division as an administrative law 3 9 judge to preside over contested case proceedings unless that 3 10 person has a license to practice law in this state. 3 11 7. The division shall adopt rules pursuant to this chapter 3 12 and chapter 17A to do all of the following: 3 13 a. To establish procedures for agencies to request and for 3 14 the administrator to assign administrative law judges employed 3 15 by the division. 3 16 b. To establish procedures and adopt forms, consistent 3 17 with chapter 17A and other provisions of law, to govern 3 18 administrative law judges employed by the division, but any 3 19 rules adopted under this paragraph shall be applicable to a 3 20 particular contested case proceeding only to the extent that 3 21 they are not inconsistent with the rules of the agency under 3 22 whose authority that proceeding is conducted. Nothing in this 3 23 paragraph precludes an agency from establishing procedural 3 24 requirements otherwise within its authority to govern its 3 25 contested case proceedings, including requirements with 3 26 respect to the timeliness of decisions rendered for it by 3 27 administrative law judges. 3 28 c. To establish standards and procedures for the 3 29 evaluation, training, promotion, and discipline for the 3 30 administrative law judges employed by the division. Those 3 31 procedures shall include provisions for each agency for whom a 3 32 particular administrative law judge presides to submit to the 3 33 division on a periodic basis the agency's views with respect 3 34 to the performance of that administrative law judge or the 3 35 need for specified additional training for that administrative 4 1 law judge. However, the evaluation, training, promotion, and 4 2 discipline of all administrative law judges employed by the 4 3 division shall remain solely within the authority of the 4 4 division. 4 5 d. To establish, consistent with the provisions of this 4 6 section and chapter 17A, a code of administrative judicial 4 7 conduct that is similar in function and substantially 4 8 equivalent to the Iowa code of judicial conduct, to govern the 4 9 conduct, in relation to their quasi-judicial functions in 4 10 contested cases, of all persons who act as presiding officers 4 11 under the authority of section 17A.11, subsection 1. The code 4 12 of administrative judicial conduct shall separately specify 4 13 which provisions are applicable to agency heads or members of 4 14 multimembered agency heads when they act as presiding 4 15 officers, taking into account the objectives of the code and 4 16 the fact that agency heads, unlike administrative law judges, 4 17 have other duties imposed upon them by law. The code of 4 18 administrative judicial conduct may also contain separate 4 19 provisions, that are appropriate and consistent with the 4 20 objectives of such a code, to govern the conduct of agency 4 21 heads or the members of multimember agency heads when they act 4 22 as presiding officers. However, a provision of the code of 4 23 administrative judicial conduct shall not be made applicable 4 24 to agency heads or members of multimember agency heads unless 4 25 the application of that provision to agency heads and members 4 26 of multimember agency heads has previously been approved by 4 27 the administrative rules coordinator. 4 28 e. To facilitate the performance of the responsibilities 4 29 conferred upon the division by this section, chapter 17A, and 4 30 any other provision of law. 4 31 8. The division may do all of the following: 4 32 a. Provide administrative law judges, upon request, to any 4 33 agency that is required to or wishes to utilize the services 4 34 of an administrative law judge employed by the division. 4 35 b. Maintain a staff of reporters and other personnel. 5 1 c. Administer the provisions of this section and rules 5 2 adopted under its authority. 5 3 9. The division may charge agencies for services rendered 5 4 and the payment received shall be considered repayment 5 5 receipts as defined in section 8.2. 5 6 10. Except to the extent specified otherwise by statute, 5 7 decisions of administrative law judges employed by the 5 8 division are subject to review by the agencies for which they 5 9 act as presiding officers as provided by section 17A.15 or any 5 10 other provision of law. 5 11 Sec. 4. Section 17A.2, Code 1997, is amended by adding the 5 12 following new subsection: 5 13 NEW SUBSECTION. 9A. "Provision of law" means the whole or 5 14 part of the Constitution of the United States of America or 5 15 the Constitution of the State of Iowa, or of any federal or 5 16 state statute, court rule, executive order of the governor, or 5 17 agency rule. 5 18 Sec. 5. Section 17A.2, subsection 10, unnumbered paragraph 5 19 1, Code 1997, is amended to read as follows: 5 20 "Rule" means each agency statement of general applicability 5 21 that implements, interprets, or prescribes law or policy, or 5 22 that describes the organization, procedure, or practice 5 23 requirements of any agency. Notwithstanding any other 5 24provision of lawstatute, the term includes an executive order 5 25 or directive of the governor which creates an agency or 5 26 establishes a program or which transfers a program between 5 27 agencies established by statute or rule. The term includes 5 28 the amendment or repeal of an existing rule, but does not 5 29 include: 5 30 Sec. 6. Section 17A.2, subsection 10, paragraph b, Code 5 31 1997, is amended to read as follows: 5 32 b. A declaratoryrulingorder issued pursuant to section 5 33 17A.9, or an interpretation issued by an agency with respect 5 34 to a specific set of facts and intended to apply only to that 5 35 specific set of facts. 6 1 Sec. 7. Section 17A.3, subsection 1, Code 1997, is amended 6 2 by adding the following new paragraph after paragraph b and 6 3 relettering the subsequent paragraphs: 6 4 NEW PARAGRAPH. c. As soon as feasible and to the extent 6 5 practicable, adopt rules, in addition to those otherwise 6 6 required by this chapter, embodying appropriate standards, 6 7 principles, and procedural safeguards that the agency will 6 8 apply to the law it administers. 6 9 Sec. 8. Section 17A.4, subsection 1, paragraph b, Code 6 10 1997, is amended to read as follows: 6 11 b. Afford all interested persons not less than twenty days 6 12 to submit data, views, or arguments in writing. If timely 6 13 requested in writing by twenty-five interested persons, by a 6 14 governmental subdivision, by the administrative rules review 6 15 committee, by an agency, or by an association having not less 6 16 than twenty-five members, the agency must give interested 6 17 persons an opportunity to make oral presentation. The 6 18 opportunity for oral presentation must be held at least twenty 6 19 days after publication of the notice of its time and place in 6 20 the Iowa administrative bulletin. The agency shall consider 6 21 fully all written and oral submissions respecting the proposed 6 22 rule. Within one hundred eighty days following either the 6 23 notice published according to the provisions of paragraph "a" 6 24 or within one hundred eighty days after the last date of the 6 25 oral presentations on the proposed rule, whichever is later, 6 26 the agency shall adopt a rule pursuant to the rulemaking 6 27 proceeding or shall terminate the proceeding by publishing 6 28 notice of termination in the Iowa administrative bulletin.If6 29 An agency shall include in a preamble to each rule it 6 30 adopts a brief explanation of the principal reasons for its 6 31 action and, if applicable, a brief explanation of the 6 32 principal reasons for its failure to provide in that rule for 6 33 the waiver of the rule in specified situations if no such 6 34 waiver provision is included in the rule. This explanatory 6 35 requirement does not apply when the agency adopts a rule that 7 1 only defines the meaning of a provision of law if the agency 7 2 does not possess delegated authority to bind the courts to any 7 3 extent with its definition. In addition, if requested to do 7 4 so by an interested person, either prior to adoption or within 7 5 thirty days thereafter, the agency shall issue a concise 7 6 statement of the principal reasons for and against the ruleit7 7 adopted, incorporating therein the reasons for overruling 7 8 considerations urged against the rule. This concise statement 7 9 shall be issued either at the time of the adoption of the rule 7 10 or within thirty-five days after the agency receives the 7 11 request. 7 12 Sec. 9. Section 17A.4, subsection 1, paragraph c, Code 7 13 1997, is amended by striking the paragraph. 7 14 Sec. 10. NEW SECTION. 17A.4A REGULATORY ANALYSIS. 7 15 1. An agency shall issue a regulatory analysis of a 7 16 proposed rule that complies with subsection 2, paragraph "a", 7 17 if, within thirty-two days after the published notice of 7 18 proposed rule adoption, a written request for the analysis is 7 19 submitted to the agency by the administrative rules review 7 20 committee or the administrative rules coordinator. An agency 7 21 shall issue a regulatory analysis of a proposed rule that 7 22 complies with subsection 2, paragraph "b", if the rule would 7 23 have a substantial impact on small business and if, within 7 24 thirty-two days after the published notice of proposed rule 7 25 adoption, a written request for analysis is submitted to the 7 26 agency by the administrative rules review committee, the 7 27 administrative rules coordinator, at least twenty-five persons 7 28 signing that request who each qualify as a small business or 7 29 by an organization representing at least twenty-five such 7 30 persons. If a rule has been adopted without prior notice and 7 31 an opportunity for public participation in reliance upon 7 32 section 17A.4, subsection 2, the written request for an 7 33 analysis that complies with subsection 2, paragraph "a" or 7 34 "b", may be made within seventy days of publication of the 7 35 rule. 8 1 2. a. Except to the extent that a written request for a 8 2 regulatory analysis expressly waives one or more of the 8 3 following, the regulatory analysis must contain all of the 8 4 following: 8 5 (1) A description of the classes of persons who probably 8 6 will be affected by the proposed rule, including classes that 8 7 will bear the costs of the proposed rule and classes that will 8 8 benefit from the proposed rule. 8 9 (2) A description of the probable quantitative and 8 10 qualitative impact of the proposed rule, economic or 8 11 otherwise, upon affected classes of persons, including a 8 12 description of the nature and amount of all of the different 8 13 kinds of costs that would be incurred in complying with the 8 14 proposed rule. 8 15 (3) The probable costs to the agency and to any other 8 16 agency of the implementation and enforcement of the proposed 8 17 rule and any anticipated effect on state revenues. 8 18 (4) A comparison of the probable costs and benefits of the 8 19 proposed rule to the probable costs and benefits of inaction. 8 20 (5) A determination of whether less costly methods or less 8 21 intrusive methods exist for achieving the purpose of the 8 22 proposed rule. 8 23 (6) A description of any alternative methods for achieving 8 24 the purpose of the proposed rule that were seriously 8 25 considered by the agency and the reasons why they were 8 26 rejected in favor of the proposed rule. 8 27 b. In the case of a rule that would have a substantial 8 28 impact on small business, the regulatory analysis must contain 8 29 a discussion of whether it would be feasible and practicable 8 30 to do any of the following to reduce the impact of the rule on 8 31 small business: 8 32 (1) Establish less stringent compliance or reporting 8 33 requirements in the rule for small business. 8 34 (2) Establish less stringent schedules or deadlines in the 8 35 rule for compliance or reporting requirements for small 9 1 business. 9 2 (3) Consolidate or simplify the rule's compliance or 9 3 reporting requirements for small business. 9 4 (4) Establish performance standards to replace design or 9 5 operational standards in the rule for small business. 9 6 (5) Exempt small business from any or all requirements of 9 7 the rule. 9 8 c. The agency shall reduce the impact of a proposed rule 9 9 that would have a substantial impact on small business by 9 10 using a method discussed in paragraph "b" if the agency finds 9 11 that the method is legal and feasible in meeting the statutory 9 12 objectives which are the basis of the proposed rule. 9 13 3. Each regulatory analysis must include quantifications 9 14 of the data to the extent practicable and must take account of 9 15 both short-term and long-term consequences. 9 16 4. Upon receipt by an agency of a timely request for a 9 17 regulatory analysis, the agency shall extend the period 9 18 specified in this chapter for each of the following until at 9 19 least twenty days after publication in the administrative 9 20 bulletin of a concise summary of the regulatory analysis: 9 21 a. The end of the period during which persons may make 9 22 written submissions on the proposed rule. 9 23 b. The end of the period during which an oral proceeding 9 24 may be requested. 9 25 c. The date of any required oral proceeding on the 9 26 proposed rule. 9 27 In the case of a rule adopted without prior notice and an 9 28 opportunity for public participation in reliance upon section 9 29 17A.4, subsection 2, the summary must be published within 9 30 seventy days of the request. 9 31 5. The published summary of the regulatory analysis must 9 32 also indicate where persons may obtain copies of the full text 9 33 of the regulatory analysis and where, when, and how persons 9 34 may present their views on the proposed rule and demand an 9 35 oral proceeding thereon if one is not already provided. 10 1 Agencies shall make available to the public, to the maximum 10 2 extent feasible, the published summary and the full text of 10 3 the regulatory analysis described in this subsection in an 10 4 electronic format, including, but not limited to, access to 10 5 the documents through the internet. 10 6 6. If the agency has made a good faith effort to comply 10 7 with the requirements of subsections 1 through 3, the rule may 10 8 not be invalidated on the ground that the contents of the 10 9 regulatory analysis are insufficient or inaccurate. 10 10 7. For the purpose of this section, "small business" means 10 11 any entity including but not limited to an individual, 10 12 partnership, corporation, joint venture, association, or 10 13 cooperative, to which all of the following apply: 10 14 a. It is not an affiliate or subsidiary of an entity 10 15 dominant in its field of operation. 10 16 b. It has either twenty or fewer full-time equivalent 10 17 positions or less than one million dollars in annual gross 10 18 revenues in the preceding fiscal year. 10 19 For purposes of this definition, "dominant in its field of 10 20 operation" means having more than twenty full-time equivalent 10 21 positions and more than one million dollars in annual gross 10 22 revenues, and "affiliate or subsidiary of an entity dominant 10 23 in its field of operation" means an entity which is at least 10 24 twenty percent owned by an entity dominant in its field of 10 25 operation, or by partners, officers, directors, majority 10 26 stockholders, or their equivalent, of an entity dominant in 10 27 that field of operation. 10 28 Sec. 11. Section 17A.7, Code 1997, is amended to read as 10 29 follows: 10 30 17A.7 PETITION FOR ADOPTION OF RULES AND REQUEST FOR 10 31 REVIEW OF RULES. 10 32 1. An interested person may petition an agency requesting 10 33 thepromulgationadoption, amendment, or repeal of a rule. 10 34 Each agency shall prescribe by rule the form for petitions and 10 35 the procedure for their submission, consideration, and 11 1 disposition. Within sixty days after submission of a 11 2 petition, the agency either shall deny the petition in writing 11 3 on the merits, stating its reasons for the denial, or initiate 11 4 rulemaking proceedings in accordance with section 17A.4, or 11 5 issue a rule if it is not required to be issued according to 11 6 the procedures of section 17A.4, subsection 1. 11 7 2. Any interested person, association, agency, or 11 8 political subdivision may submit a written request to the 11 9 administrative rules coordinator for an agency to conduct a 11 10 formal review of a specified rule of that agency to determine 11 11 whether the rule should be repealed or amended or a new rule 11 12 adopted instead. The administrative rules coordinator shall 11 13 determine whether the request is reasonable and does not place 11 14 an unreasonable burden upon the agency. 11 15 If the agency has not conducted such a review of the 11 16 specified rule within a period of five years prior to the 11 17 filing of the written request, and upon a determination by the 11 18 administrative rules coordinator that the request is 11 19 reasonable and does not place an unreasonable burden upon the 11 20 agency, the agency shall prepare within a reasonable time a 11 21 written report with respect to the rule summarizing the 11 22 agency's findings, its supporting reasons, and any proposed 11 23 course of action. The report must include, for the specified 11 24 rule, a concise statement of all of the following: 11 25 a. The rule's effectiveness in achieving its objectives, 11 26 including a summary of any available data supporting the 11 27 conclusions reached. 11 28 b. Written criticisms of the rule received during the 11 29 previous five years, including a summary of any petitions for 11 30 waiver of the rule tendered to the agency or granted by the 11 31 agency. 11 32 c. Alternative solutions regarding the subject matter of 11 33 the criticisms and the reasons they were rejected or the 11 34 changes made in the rule in response to those criticisms and 11 35 the reasons for the changes. 12 1 A copy of the report shall be sent to the administrative 12 2 rules review committee and the administrative rules 12 3 coordinator and shall be made available for public inspection. 12 4 Sec. 12. Section 17A.8, subsection 9, Code 1997, is 12 5 amended to read as follows: 12 6 9. Upon a vote of two-thirds of its members, the 12 7 administrative rules review committee may delay the effective 12 8 date of a rule until the adjournment of the next regular 12 9 session of the general assembly. The committee shall refer a 12 10 rule whose effective date has been delayed to the speaker of 12 11 the house of representatives and the president of the senate 12 12 who shall refer the rule to the appropriate standing 12 13 committees of the general assembly. A standing committee 12 14 shall review a rule within twenty-one days after the rule is 12 15 referred to the committee by the speaker of the house of 12 16 representatives or the president of the senate and shall take 12 17 formal committee action by sponsoring a joint resolution to 12 18 disapprove the rule, by proposing legislation relating to the 12 19 rule, or by refusing to propose a joint resolution or 12 20 legislation concerning the rule. The standing committee shall 12 21 inform the administrative rules review committee of the 12 22 committee action taken concerning the rule. If the general 12 23 assembly has not disapproved of the rule by a joint 12 24 resolution, the rule shall become effective. The speaker of 12 25 the house of representatives and the president of the senate 12 26 shall notify the administrative code editor of the final 12 27 disposition of each rule delayed pursuant to this subsection. 12 28 If a rule is disapproved, it shall not become effective and 12 29 the agency shall rescind the rule. This section shall not 12 30 apply to rules made effective under section 17A.5, subsection 12 31 2, paragraph "b". 12 32 Sec. 13. Section 17A.9, Code 1997, is amended by striking 12 33 the section and inserting in lieu thereof the following: 12 34 17A.9 DECLARATORY ORDERS. 12 35 1. Any person may petition an agency for a declaratory 13 1 order as to the applicability to specified circumstances of a 13 2 statute, rule, or order within the primary jurisdiction of the 13 3 agency. An agency shall issue a declaratory order in response 13 4 to a petition for that order unless the agency determines that 13 5 issuance of the order under the circumstances would be 13 6 contrary to a rule adopted in accordance with subsection 2. 13 7 However, an agency shall not issue a declaratory order that 13 8 would substantially prejudice the rights of a person who would 13 9 be a necessary party and who does not consent in writing to 13 10 the determination of the matter by a declaratory order 13 11 proceeding. 13 12 2. Each agency shall adopt rules that provide for the 13 13 form, contents, and filing of petitions for declaratory 13 14 orders, the procedural rights of persons in relation to the 13 15 petitions, and the disposition of the petitions. The rules 13 16 must describe the classes of circumstances in which the agency 13 17 will not issue a declaratory order and must be consistent with 13 18 the public interest and with the general policy of this 13 19 chapter to facilitate and encourage agency issuance of 13 20 reliable advice. 13 21 3. Within fifteen days after receipt of a petition for a 13 22 declaratory order, an agency shall give notice of the petition 13 23 to all persons to whom notice is required by any provision of 13 24 law and may give notice to any other persons. 13 25 4. Persons who qualify under any applicable provision of 13 26 law as an intervenor and who file timely petitions for 13 27 intervention according to agency rules may intervene in 13 28 proceedings for declaratory orders. The provisions of 13 29 sections 17A.10 through 17A.18 apply to agency proceedings for 13 30 declaratory orders only to the extent an agency so provides by 13 31 rule or order. 13 32 5. Within thirty days after receipt of a petition for a 13 33 declaratory order, an agency, in writing, shall do one of the 13 34 following: 13 35 a. Issue an order declaring the applicability of the 14 1 statute, rule, or order in question to the specified 14 2 circumstances. 14 3 b. Set the matter for specified proceedings. 14 4 c. Agree to issue a declaratory order by a specified time. 14 5 d. Decline to issue a declaratory order, stating the 14 6 reasons for its action. 14 7 6. A copy of all orders issued in response to a petition 14 8 for a declaratory order must be mailed promptly to the 14 9 petitioner and any other parties. 14 10 7. A declaratory order has the same status and binding 14 11 effect as any final order issued in a contested case 14 12 proceeding. A declaratory order must contain the names of all 14 13 parties to the proceeding on which it is based, the particular 14 14 facts on which it is based, and the reasons for its 14 15 conclusion. 14 16 8. If an agency has not issued a declaratory order within 14 17 sixty days after receipt of a petition therefor, or such later 14 18 time as agreed by the parties, the petition is deemed to have 14 19 been denied. Once a petition for a declaratory order is 14 20 deemed denied or if the agency declines to issue a declaratory 14 21 order pursuant to subsection 5, paragraph "d", a party to that 14 22 proceeding may either seek judicial review or await further 14 23 agency action with respect to its petition for a declaratory 14 24 order. 14 25 Sec. 14. NEW SECTION. 17A.10A CONTESTED CASES – NO 14 26 FACTUAL DISPUTE. 14 27 Upon petition by a party in a matter that would be a 14 28 contested case if there was a dispute over the existence of 14 29 material facts, all of the provisions of this chapter 14 30 applicable to contested cases, except those relating to 14 31 presentation of evidence, shall be applicable even though 14 32 there is no factual dispute in the particular case. 14 33 Sec. 15. Section 17A.11, Code 1997, is amended by striking 14 34 the section and inserting in lieu thereof the following: 14 35 17A.11 PRESIDING OFFICER, DISQUALIFICATION, SUBSTITUTION. 15 1 1. a. If the agency or an officer of the agency under 15 2 whose authority the contested case is to take place is a named 15 3 party to that proceeding or a real party in interest to that 15 4 proceeding the presiding officer may be, in the discretion of 15 5 the agency, either the agency, one or more members of a 15 6 multimember agency, or one or more administrative law judges 15 7 assigned by the division of administrative hearings in 15 8 accordance with the provisions of section 10A.801. However, a 15 9 party may, within a time period specified by rule, request 15 10 that the presiding officer be an administrative law judge 15 11 assigned by the division of administrative hearings. Except 15 12 as otherwise provided by statute, the agency shall grant a 15 13 request by a party for an administrative law judge unless the 15 14 agency finds, and states reasons for the finding, that any of 15 15 the following conditions exist: 15 16 (1) There is a compelling need to expedite issuance of a 15 17 final decision in order to protect the public health, safety, 15 18 or welfare. 15 19 (2) A qualified administrative law judge is unavailable to 15 20 hear the case within a reasonable time. 15 21 (3) The case involves significant policy issues of first 15 22 impression that are inextricably intertwined with the factual 15 23 issues presented. 15 24 (4) The demeanor of the witnesses is likely to be 15 25 dispositive in resolving the disputed factual issues. 15 26 (5) Funds are unavailable to pay the costs of an 15 27 administrative law judge and an intra-agency appeal. 15 28 (6) The request was not timely filed. 15 29 (7) There is other identified good cause, as specified by 15 30 rule, for denying the request. 15 31 b. If the agency or an officer of the agency under whose 15 32 authority the contested case is to take place is not a named 15 33 party to that proceeding or a real party in interest to that 15 34 proceeding the presiding officer may be, in the discretion of 15 35 the agency, either the agency, one or more members of a 16 1 multimember agency, an administrative law judge assigned by 16 2 the division of administrative hearings in accordance with the 16 3 provisions of section 10A.801, or any other qualified person 16 4 designated as a presiding officer by the agency. Any other 16 5 person designated as a presiding officer by the agency may be 16 6 employed by and officed in the agency for which that person 16 7 acts as a presiding officer, but such a person shall not 16 8 perform duties inconsistent with that person's duties and 16 9 responsibilities as a presiding officer. 16 10 c. For purposes of paragraph "a", the division of 16 11 administrative hearings established in section 10A.801 shall 16 12 be treated as a wholly separate agency from the department of 16 13 inspections and appeals. 16 14 2. Any person serving or designated to serve alone or with 16 15 others as a presiding officer is subject to disqualification 16 16 for bias, prejudice, interest, or any other cause provided in 16 17 this chapter or for which a judge is or may be disqualified. 16 18 3. Any party may timely request the disqualification of a 16 19 person as a presiding officer by filing a motion supported by 16 20 an affidavit asserting an appropriate ground for 16 21 disqualification, after receipt of notice indicating that the 16 22 person will preside or upon discovering facts establishing 16 23 grounds for disqualification, whichever is later. 16 24 4. A person whose disqualification is requested shall 16 25 determine whether to grant the request, stating facts and 16 26 reasons for the determination. 16 27 5. If a substitute is required for a person who is 16 28 disqualified or becomes unavailable for any other reason, the 16 29 substitute shall be appointed by either of the following: 16 30 a. The governor, if the disqualified or unavailable person 16 31 is an elected official. 16 32 b. The appointing authority, if the disqualified or 16 33 unavailable person is an appointed official. 16 34 6. Any action taken by a duly-appointed substitute for a 16 35 disqualified or unavailable person is as effective as if taken 17 1 by the latter. 17 2 Sec. 16. Section 17A.12, subsection 3, Code 1997, is 17 3 amended by striking the subsection and inserting in lieu 17 4 thereof the following: 17 5 3. If a party fails to appear or participate in a 17 6 contested case proceeding after proper service of notice, the 17 7 presiding officer may, if no adjournment is granted, enter a 17 8 default decision or proceed with the hearing and make a 17 9 decision in the absence of the party. The parties shall be 17 10 duly notified of the decision, together with the presiding 17 11 officer's reasons for the decision, which is the final 17 12 decision of the agency, unless within fifteen days, or such 17 13 period of time as otherwise specified by statute or rule, 17 14 after the date of notification or mailing of the decision, 17 15 further appeal is initiated. If a decision is rendered 17 16 against a party who failed to appear for the hearing and the 17 17 presiding officer is timely requested by that party to vacate 17 18 the decision for good cause, the time for initiating a further 17 19 appeal is stayed pending a determination by the presiding 17 20 officer to grant or deny the request. If adequate reasons are 17 21 provided showing good cause for the party's failure to appear, 17 22 the presiding officer shall vacate the decision and, after 17 23 proper service of notice, conduct another evidentiary hearing. 17 24 If adequate reasons are not provided showing good cause for 17 25 the party's failure to appear, the presiding officer shall 17 26 deny the motion to vacate. 17 27 Sec. 17. Section 17A.15, subsection 3, Code 1997, is 17 28 amended to read as follows: 17 29 3. When the presiding officer makes a proposed decision, 17 30 that decision then becomes the final decision of the agency 17 31 without further proceedings unless there is an appeal to, or 17 32 review on motion of, the agency within the time provided by 17 33 rule. On appeal from or review of the proposed decision, the 17 34 agency has all the power which it would have in initially 17 35 making the final decision except as it may limit the issues on 18 1 notice to the parties or by rule. The agency may reverse or 18 2 modify any finding of fact if a preponderance of the evidence 18 3 will support a determination to reverse or modify such a 18 4 finding, or may reverse or modify any conclusion of law that 18 5 the agency finds to be in error. In cases where there is an 18 6 appeal from a proposed decision or where a proposed decision 18 7 is reviewed on motion of the agency, an opportunity shall be 18 8 afforded to each party to file exceptions, present briefs and, 18 9 with the consent of the agency, present oral arguments to the 18 10 agency members who are to render the final decision. 18 11 Sec. 18. Section 17A.16, subsection 1, Code 1997, is 18 12 amended to read as follows: 18 13 1. A proposed or final decision or order in a contested 18 14 case shall be in writing or stated in the record. A proposed 18 15 or final decision shall include findings of fact and 18 16 conclusions of law, separately stated. Findings of fact, if 18 17 set forth in statutory language, shall be accompanied by a 18 18 concise and explicit statement of underlying facts supporting 18 19 the findings. The decision shall include an explanation of 18 20 why the relevant evidence in the record supports each material 18 21 finding of fact. If, in accordance with agency rules, a party 18 22 submitted proposed findings of fact, the decision shall 18 23 include a ruling upon each proposed finding. Each conclusion 18 24 of law shall be supported by cited authority or by a reasoned 18 25 opinion. Parties shall be promptly notified of each proposed 18 26 or final decision or order by the delivery to them of a copy 18 27 of such decision or order in the manner provided by section 18 28 17A.12, subsection 1. 18 29 Sec. 19. Section 17A.17, Code 1997, is amended to read as 18 30 follows: 18 31 17A.17 EX PARTE COMMUNICATIONS AND SEPARATION OF 18 32 FUNCTIONS. 18 33 1. Unless required for the disposition of ex parte matters 18 34 specifically authorized by statute,individuals assigned to18 35render a proposed or final decision or to make findings of19 1fact and conclusions of lawa presiding officer in a contested 19 2 case, shall not communicate, directly or indirectly, in 19 3 connection with any issue of fact or law in that contested 19 4 case, with any person or party, except upon notice and 19 5 opportunity for all parties to participate as shall be 19 6 provided for by agency rules. 19 7 However, without such notice and opportunity for all 19 8 parties to participate,individuals assigned to render a19 9proposed or final decision or to make findings of fact and19 10conclusions of lawa presiding officer in a contested case may 19 11 communicate with members of the agency, and may have the aid 19 12 and advice of persons other than those with a personal 19 13 interest in, or those engaged in personally investigating, 19 14 prosecuting or advocating in, either the case under 19 15 consideration or a pending factually related case involving 19 16 the same parties so long as those persons do not directly or 19 17 indirectly communicate to the presiding officer any ex parte 19 18 communications they have received of a type that the presiding 19 19 officer would be prohibited from receiving or that furnish, 19 20 augment, diminish, or modify the evidence in the record. 19 21 2. Unless required for the disposition of ex parte matters 19 22 specifically authorized by statute, parties or their 19 23 representatives in a contested case and persons with a direct 19 24 or indirect interest in such a case shall not communicate, 19 25 directly or indirectly, in connection with any issue of fact 19 26 or law in that contested case, withindividuals assigned to19 27render a proposed or final decision or to make findings of19 28fact and conclusions of lawa presiding officer in that 19 29 contested case, except upon notice and opportunity for all 19 30 parties to participate as shall be provided for by agency 19 31 rules.The agency's rules may require the recipient of a19 32prohibited communication to submit the communication if19 33written or a summary of the communication if oral for19 34inclusion in the record of the proceeding. As sanctions for19 35violations, the rules may provide for a decision against a20 1party who violates the rules; for censuring, suspending or20 2revoking a privilege to practice before the agency; and for20 3censuring, suspending or dismissing agency personnel.20 4 3. If, before serving as the presiding officer in a 20 5 contested case, a person receives an ex parte communication 20 6 relating directly to the merits of the proceeding over which 20 7 that person subsequently presides, the person, promptly after 20 8 starting to serve, shall disclose to all parties any material 20 9 factual information so received and not otherwise disclosed to 20 10 those parties pursuant to section 17A.13, subsection 2, or 20 11 through discovery. 20 12 4. A presiding officer who receives an ex parte 20 13 communication in violation of this section shall place on the 20 14 record of the pending matter all such written communications 20 15 received, all written responses to the communications, and a 20 16 memorandum stating the substance of all such oral and other 20 17 communications received, all responses made, and the identity 20 18 of each person from whom the presiding officer received a 20 19 prohibited ex parte communication, and shall advise all 20 20 parties that these matters have been placed on the record. 20 21 Any party desiring to rebut the prohibited ex parte 20 22 communication must be allowed to do so, upon requesting the 20 23 opportunity for rebuttal within ten days after notice of the 20 24 communication. 20 25 5. If the effect of an ex parte communication received in 20 26 violation of this section is so prejudicial that it cannot be 20 27 cured by the procedure in subsection 4, a presiding officer 20 28 who receives the communication shall be disqualified and the 20 29 portions of the record pertaining to the communication shall 20 30 be sealed by protective order. 20 31 6. The agency and any party may report any violation of 20 32 this section to appropriate authorities for any disciplinary 20 33 proceedings provided by law. In addition, each agency by rule 20 34 shall provide for appropriate sanctions, including default, 20 35 suspending or revoking a privilege to practice before the 21 1 agency, and censuring, suspending, or dismissing agency 21 2 personnel, for any violations of this section. 21 3 7. A party to a contested case proceeding may file a 21 4 timely and sufficient affidavit alleging a violation of any 21 5 provision of this section. The agency shall determine the 21 6 matter as part of the record in the case. When an agency in 21 7 these circumstances makes such a determination with respect to 21 8 an agency member, that determination shall be subject to de 21 9 novo judicial review in any subsequent review proceeding of 21 10 the case. 21 113.8.NoAn individual who participates in the making of 21 12 any proposed or final decision in a contested case shall not 21 13 have personally investigated, prosecuted, or advocated in 21 14 connection with that case, the specific controversy underlying 21 15 that case, or another pending factually related contested 21 16 case, or pending factually related controversy that may 21 17 culminate in a contested case, involving the same parties. 21 18Nor shall anyIn addition, such an individual shall not be 21 19 subject to the authority, direction, or discretion of any 21 20 person who has personally investigated, prosecuted, or 21 21 advocated in connection with that contested case, the specific 21 22 controversy underlying that contested case, or a pending 21 23 factually related contested case or controversy, involving the 21 24 same parties. However, this section shall not be construed to 21 25 preclude a person from serving as a presiding officer solely 21 26 because that person determined there was probable cause to 21 27 initiate the proceeding. 21 284. A party to a contested case proceeding may file a21 29timely and sufficient affidavit asserting disqualification21 30according to the provisions of subsection 3, or asserting21 31personal bias of an individual participating in the making of21 32any proposed or final decision in that case. The agency shall21 33determine the matter as part of the record in the case. When21 34an agency in these circumstances makes such a determination21 35with respect to an agency member, that determination shall be22 1subject to de novo judicial review in any subsequent review22 2proceeding of the case.22 3 Sec. 20. Section 17A.18, subsection 3, Code 1997, is 22 4 amended to read as follows: 22 5 3. No revocation, suspension, annulment or withdrawal, in 22 6 whole or in part, of any license is lawful unless, prior to 22 7 the institution of agency proceedings, the agency gave 22 8 written, timely notice by personal service as in civil actions 22 9 or by restricted certified mail to the licensee of facts or 22 10 conduct and theprovisionsprovision of law whichwarrant22 11 warrants the intended action, and the licensee was given an 22 12 opportunity to show, in an evidentiary hearing conducted 22 13 according to the provisions of this chapter for contested 22 14 cases, compliance with all lawful requirements for the 22 15 retention of the license.If the agency finds that public22 16health, safety or welfare imperatively requires emergency22 17action, and incorporates a finding to that effect in its22 18order, summary suspension of a license may be ordered pending22 19proceedings for revocation or other action. These proceedings22 20shall be promptly instituted and determined.22 21 Sec. 21. NEW SECTION. 17A.18A EMERGENCY ADJUDICATIVE 22 22 PROCEEDINGS. 22 23 1. Notwithstanding any other provision of this chapter and 22 24 to the extent consistent with the Constitution, an agency may 22 25 use emergency adjudicative proceedings in a situation 22 26 involving an immediate danger to the public health, safety, or 22 27 welfare requiring immediate agency action. 22 28 2. The agency may take only such action as is necessary to 22 29 prevent or avoid the immediate danger to the public health, 22 30 safety, or welfare that justifies use of emergency 22 31 adjudication. 22 32 3. The agency shall issue an order, including a brief 22 33 statement of findings of fact, conclusions of law, and policy 22 34 reasons for the decision if it is an exercise of the agency's 22 35 discretion, to justify the determination of an immediate 23 1 danger and the agency's decision to take the specific action. 23 2 4. The agency shall give such notice as is practicable to 23 3 persons who are required to comply with the order. The order 23 4 is effective when issued. 23 5 5. After issuing an order pursuant to this section, the 23 6 agency shall proceed as quickly as feasible to complete any 23 7 proceedings that would be required if the matter did not 23 8 involve an immediate danger. 23 9 6. The agency record consists of any documents regarding 23 10 the matter that were considered or prepared by the agency. 23 11 The agency shall maintain these documents as its official 23 12 record. 23 13 7. Unless otherwise required by a provision of law, the 23 14 agency record need not constitute the exclusive basis for 23 15 agency action in emergency adjudicative proceedings or for 23 16 judicial review thereof. 23 17 Sec. 22. Section 17A.19, subsection 1, Code 1997, is 23 18 amended to read as follows: 23 19 1. A person or party who has exhausted all adequate 23 20 administrative remedies and who is aggrieved or adversely 23 21 affected by any final agency action is entitled to judicial 23 22 review thereof under this chapter. When agency action is 23 23 pursuant to rate regulatory powers over public utilities or 23 24 common carriers and the aggrievement or adverse effect is to 23 25 the rates or charges of a public utility or common carrier, 23 26 the agency action shall not be final until all agency remedies 23 27 have been exhausted and a decision prescribing rates which 23 28 satisfy the requirements of those provisions of the Code has 23 29 been rendered. A preliminary, procedural or intermediate 23 30 agency action is immediately reviewable if all adequate 23 31 administrative remedies have been exhausted and review of the 23 32 final agency action would not provide an adequate remedy. If 23 33 a declaratoryrulingorder has not been rendered withinthirty23 34 sixty days after the filing of a petition therefor under 23 35 section 17A.9, or by such later time as agreed by the parties, 24 1 or if the agency declines to issue such a declaratoryruling24 2 order after receipt of a petition therefor, any administrative 24 3 remedy available under section 17A.9 shall be deemed 24 4 inadequate or exhausted. 24 5 Sec. 23. Section 17A.19, subsection 5, Code 1997, is 24 6 amended to read as follows: 24 7 5. a. The filing of the petition for review does not 24 8 itself stay execution or enforcement of any agency action. 24 9Upon application the agency or the reviewing court may, in24 10appropriate cases, order such a stay pending the outcome of24 11the judicial review proceedingsUnless precluded by law, the 24 12 agency may grant a stay on appropriate terms or other 24 13 temporary remedies during the pendency of judicial review. 24 14 b. A party may file an interlocutory motion in the 24 15 reviewing court, during the pendency of judicial review, 24 16 seeking review of the agency's action on an application for 24 17 stay or other temporary remedies. 24 18 c. If the agency refuses to grant an application for stay 24 19 or other temporary remedies, or application to the agency for 24 20 a stay or other temporary remedies is an inadequate remedy, 24 21 the court may grant relief but only after a consideration and 24 22 balancing of all of the following factors: 24 23 (1) The extent to which the applicant is likely to prevail 24 24 when the court finally disposes of the matter. 24 25 (2) The extent to which the applicant will suffer 24 26 irreparable injury if relief if not granted. 24 27 (3) The extent to which the grant of relief to the 24 28 applicant will substantially harm other parties to the 24 29 proceedings. 24 30 (4) The extent to which the public interest relied on by 24 31 the agency is sufficient to justify the agency's action in the 24 32 circumstances. 24 33 d. If the court determines that relief should be granted 24 34 from the agency's action on an application for stay or other 24 35 temporary remedies, the court may remand the matter to the 25 1 agency with directions to deny a stay, to grant a stay on 25 2 appropriate terms, or to grant other temporary remedies, or 25 3 the court may issue an order denying a stay, granting a stay 25 4 on appropriate terms, or granting other temporary remedies. 25 5 Sec. 24. Section 17A.19, subsection 8, Code 1997, is 25 6 amended by striking the subsection and inserting in lieu 25 7 thereof the following: 25 8 8. Except to the extent that this chapter provides 25 9 otherwise, in suits for judicial review of agency action all 25 10 of the following apply: 25 11 a. The burden of demonstrating the required prejudice and 25 12 the invalidity of agency action is on the party asserting 25 13 invalidity. 25 14 b. The validity of agency action must be determined in 25 15 accordance with the standards of review provided in this 25 16 section, as applied to the agency action at the time that 25 17 action was taken. 25 18 9. The court shall make a separate and distinct ruling on 25 19 each material issue on which the court's decision is based. 25 20 10. The court may affirm the agency action or remand to 25 21 the agency for further proceedings. The court shall reverse, 25 22 modify, or grant other appropriate relief from agency action, 25 23 equitable or legal and including declaratory relief, if it 25 24 determines that substantial rights of the person seeking 25 25 judicial relief have been prejudiced because the agency action 25 26 is any of the following: 25 27 a. Unconstitutional on its face or as applied or is based 25 28 upon a provision of law that is unconstitutional on its face 25 29 or as applied. 25 30 b. Beyond the authority delegated to the agency by any 25 31 provision of law or in violation of any provision of law. 25 32 c. Based upon an erroneous interpretation of a provision 25 33 of law whose interpretation has not clearly been vested by a 25 34 provision of law in the discretion of the agency. 25 35 d. Based upon a procedure or decision-making process 26 1 prohibited by law or was taken without following the 26 2 prescribed procedure or decision-making process. 26 3 e. The product of decision making undertaken by persons 26 4 who were improperly constituted as a decision-making body, 26 5 were motivated by an improper purpose, or were subject to 26 6 disqualification. 26 7 f. Based upon a determination of fact clearly vested by a 26 8 provision of law in the discretion of the agency that is not 26 9 supported by substantial evidence in the record before the 26 10 court when that record is viewed as a whole. For purposes of 26 11 this paragraph, the following terms have the following 26 12 meanings: 26 13 (1) "Substantial evidence" means the quantity and quality 26 14 of evidence that would be deemed sufficient by a neutral, 26 15 detached, and reasonable person, to establish the fact at 26 16 issue when the consequences resulting from the establishment 26 17 of that fact are understood to be serious and of great 26 18 importance. 26 19 (2) "Record before the court" means the agency record for 26 20 judicial review, as defined by this chapter, supplemented by 26 21 any additional evidence received by the court under the 26 22 provisions of this chapter. 26 23 (3) "When that record is viewed as a whole" means that the 26 24 adequacy of the evidence in the record before the court to 26 25 support a particular finding of fact must be judged in light 26 26 of all the relevant evidence in the record cited by any party 26 27 that detracts from that finding as well as all of the relevant 26 28 evidence in the record cited by any party that supports it, 26 29 including any determinations of veracity by the presiding 26 30 officer who personally observed the demeanor of the witnesses 26 31 and the agency's explanation of why the relevant evidence in 26 32 the record supports its material findings of fact. 26 33 g. Action other than a rule that is inconsistent with a 26 34 rule of the agency. 26 35 h. Action other than a rule that is inconsistent with the 27 1 agency's prior practice or precedents, unless the agency has 27 2 justified that inconsistency by stating credible reasons 27 3 sufficient to indicate a fair and rational basis for the 27 4 inconsistency. 27 5 i. The product of reasoning that is so illogical as to 27 6 render it wholly irrational. 27 7 j. The product of a decision-making process in which the 27 8 agency did not consider a relevant and important matter 27 9 relating to the propriety or desirability of the action in 27 10 question that a rational decision maker in similar 27 11 circumstances would have considered prior to taking that 27 12 action. 27 13 k. Not required by law and its negative impact on the 27 14 private rights affected is so grossly disproportionate to the 27 15 benefits accruing to the public interest from that action that 27 16 it must necessarily be deemed to lack any foundation in 27 17 rational agency policy. 27 18 l. Based upon an irrational, illogical, or wholly 27 19 unjustifiable interpretation of a provision of law whose 27 20 interpretation has clearly been vested by a provision of law 27 21 in the discretion of the agency. 27 22 m. Based upon an irrational, illogical, or wholly 27 23 unjustifiable application of law to fact that has clearly been 27 24 vested by a provision of law in the discretion of the agency. 27 25 n. Otherwise unreasonable, arbitrary, capricious, or an 27 26 abuse of discretion. 27 27 11. In making the determinations required by subsection 27 28 10, paragraphs "a" through "n", the court shall do all of the 27 29 following: 27 30 a. Shall not give any deference to the view of the agency 27 31 with respect to whether particular matters have been vested by 27 32 a provision of law in the discretion of the agency. 27 33 b. Should not give any deference to the view of the agency 27 34 with respect to particular matters that have not been vested 27 35 by a provision of law in the discretion of the agency. 28 1 c. Shall give appropriate deference to the view of the 28 2 agency with respect to particular matters that have been 28 3 vested by a provision of law in the discretion of the agency. 28 4 12. A defendant in a suit for civil enforcement of agency 28 5 action may defend on any of the grounds specified in 28 6 subsection 10, paragraphs "a" through "n", if that defendant, 28 7 at the time the enforcement suit was filed, would have been 28 8 entitled to rely upon any of those grounds as a basis for 28 9 invalidating the agency action in a suit for judicial review 28 10 of that action brought at the time the enforcement suit was 28 11 filed. If a suit for civil enforcement of agency action in a 28 12 contested case is filed within the time period in which the 28 13 defendant could have filed a petition for judicial review of 28 14 that agency action, and the agency subsequently dismisses its 28 15 suit for civil enforcement of that agency action against the 28 16 defendant, the defendant may, within thirty days of that 28 17 dismissal, file a petition for judicial review of the original 28 18 agency action at issue if the defendant relied upon any of the 28 19 grounds for judicial review in subsection 10, paragraphs "a" 28 20 through "n", in a responsive pleading to the enforcement 28 21 action, or if the time to file a responsive pleading had not 28 22 yet expired at the time the enforcement action was dismissed. 28 23 Sec. 25. Section 17A.23, Code 1997, is amended by adding 28 24 the following new unnumbered paragraph: 28 25 NEW UNNUMBERED PARAGRAPH. An agency shall have only that 28 26 authority or discretion delegated to or conferred upon the 28 27 agency by law and shall not expand or enlarge its authority or 28 28 discretion beyond the powers delegated to or conferred upon 28 29 the agency. 28 30 Sec. 26. Section 17A.33, Code 1997, is amended to read as 28 31 follows: 28 32 17A.33 REVIEW BY ADMINISTRATIVE RULES REVIEW COMMITTEE. 28 33 The administrative rules review committee shall review 28 34 existing rules, as time permits, to determine if there are 28 35 adverse or beneficial effects from these rules. The committee 29 1 shall give a high priority to rules that are referred to it by 29 2 small business as defined in section17A.3117A.4A. The 29 3 review of these rules shall be forwarded to the appropriate 29 4 standing committees of the house and senate. 29 5 Sec. 27. Section 19A.1A, Code 1997, is amended by adding 29 6 the following new subsection: 29 7 NEW SUBSECTION. 4. Reduction in force appeals shall be 29 8 subject to review by the director. 29 9 Sec. 28. Section 20.6, subsection 4, Code 1997, is amended 29 10 to read as follows: 29 11 4. Hold hearings and administer oaths, examine witnesses 29 12 and documents, take testimony and receive evidence, issue 29 13 subpoenas to compel the attendance of witnesses and the 29 14 production of records, and delegate such power to a member of 29 15 the board,orpersons appointed or employed by the board, 29 16 including administrative law judges, or administrative law 29 17 judges employed by the division of administrative hearings 29 18 created by section 10A.801, for the performance of its 29 19 functions. The board may petition the district court at the 29 20 seat of government or of the county where a hearing is held to 29 21 enforce a board order compelling the attendance of witnesses 29 22 and production of records. 29 23 Sec. 29. Section 86.17, subsection 1, Code 1997, is 29 24 amended to read as follows: 29 25 1.ANotwithstanding the provisions of section 17A.11, the 29 26 industrial commissioner or a deputy industrial commissioner 29 27mayshall preside over any contested case proceeding brought 29 28 under this chapter, chapter 85,or85A, or 85B in the manner 29 29 provided by chapter 17A. The deputy commissioner or the 29 30 commissioner may make such inquiriesand investigationin 29 31 contested case proceedings as shall be deemed necessary, 29 32consistent withso long as such inquiries do not violate any 29 33 of the provisions of section 17A.17. 29 34 Sec. 30. Section 137E.12, Code 1997, is amended to read as 29 35 follows: 30 1 137E.12 REVOCATION OR ORDER FOR DISCONTINUANCE. 30 2 A license issued under this chapter may be revoked by the 30 3 regulatory authority for violation by the licensee of a 30 4 provision of this chapter or an applicable rule of the 30 5 department. In lieu of license revocation, the regulatory 30 6 authority may require the immediate discontinuance of 30 7 operation of a vending machine or commissary if it finds 30 8 unsanitary conditions or other conditions which constitute a 30 9 substantial hazard to the public health. The order shall 30 10 apply only to the vending machines, commissary, or product 30 11 involved. A person whose license is revoked, or who is 30 12 ordered to discontinue the operation of a vending machine or 30 13 commissary, may appeal that decision to the director. The 30 14 director orthe chiefan administrative law judgeof the30 15departmentappointed according to the requirements of section 30 16 17A.11, subsection 1, shall schedule and hold a hearing upon 30 17 the appeal not later than thirty days from the time of 30 18 revocation or the order of discontinuance. The director or 30 19 thechiefadministrative law judge shall issue a decision 30 20 immediately following the hearing. Judicial review may be 30 21 sought in accordance withthe Iowa administrative procedure30 22Actchapter 17A. 30 23 Sec. 31. Section 148.7, subsection 3, Code 1997, is 30 24 amended to read as follows: 30 25 3. The hearing shall be before a member or members 30 26 designated by the board or before an administrative law judge 30 27 appointed by the board according to the requirements of 30 28 section 17A.11, subsection 1. The presiding board member or 30 29 administrative law judge may issue subpoenas, administer 30 30 oaths, and take or cause depositions to be taken in connection 30 31 with the hearing. The presiding board member or 30 32 administrative law judge shall issue subpoenas at the request 30 33 and on behalf of the licensee. The hearing shall be open to 30 34 the public. 30 35The compensation of the administrative law judge shall be31 1fixed by the medical examiners.The administrative law judge 31 2 shall be an attorney vested with full authority of the board 31 3 to schedule and conduct hearings. The administrative law 31 4 judge shall prepare and file with the medical examiners the 31 5 administrative law judge's findings of fact and conclusions of 31 6 law, together with a complete written transcript of all 31 7 testimony and evidence introduced at the hearing and all 31 8 exhibits, pleas, motions, objections, and rulings of the 31 9 administrative law judge. 31 10 Sec. 32. Section 169.5, subsection 9, paragraph e, Code 31 11 1997, is amended to read as follows: 31 12 e. Hold hearings on all matters properly brought before 31 13 the board and administer oaths, receive evidence, make the 31 14 necessary determinations, and enter orders consistent with the 31 15 findings. The board may require by subpoena the attendance 31 16 and testimony of witnesses and the production of papers, 31 17 records, or other documentary evidence and commission 31 18 depositions. An administrative law judge may be appointed 31 19 pursuant to section 17A.11, subsection 3to perform those 31 20 functions which properly repose in an administrative law 31 21 judge. 31 22 Sec. 33. Section 169.14, subsection 3, Code 1997, is 31 23 amended to read as follows: 31 24 3. The hearing shall be before a member or members 31 25 designated by the board or before an administrative law judge 31 26 appointed by the board according to the requirements of 31 27 section 17A.11, subsection 1. The presiding board member or 31 28 administrative law judge may issue subpoenas, administer 31 29 oaths, and take or cause depositions to be taken in connection 31 30 with the hearing. The member or officer shall issue subpoenas 31 31 at the request and on behalf of the licensee. 31 32 Sec. 34. Section 203C.10, unnumbered paragraph 2, Code 31 33 1997, is amended to read as follows: 31 34 If upon the filing of the information or complaint the 31 35 department finds that the licensee has failed to meet the 32 1 warehouse operator's obligation or otherwise has violated or 32 2 failed to comply with the provisions of this chapter or any 32 3 rule promulgated under this chapter, and if the department 32 4 finds that the public health, safety or welfare imperatively 32 5 requires emergency action, then the department without hearing 32 6 may order a summary suspension of the license in the manner 32 7 provided in section17A.1817A.18A. When so ordered, a copy 32 8 of the order of suspension shall be served upon the licensee 32 9 at the time the information or complaint is served as provided 32 10 in this section. 32 11 Sec. 35. Section 207.14, subsection 2, unnumbered 32 12 paragraph 2, Code 1997, is amended to read as follows: 32 13 If upon expiration of the time as fixed the administrator 32 14 finds in writing that the violation has not been abated, the 32 15 administrator, notwithstandingsectionsections 17A.18 and 32 16 17A.18A, shall immediately order a cessation of coal mining 32 17 and reclamation operations relating to the violation until the 32 18 order is modified, vacated, or terminated by the administrator 32 19 pursuant to procedures outlined in this section. In the order 32 20 of cessation issued by the administrator under this 32 21 subsection, the administrator shall include the steps 32 22 necessary to abate the violation in the most expeditious 32 23 manner possible. 32 24 Sec. 36. Section 216.15, subsection 3, paragraph a, Code 32 25 1997, is amended to read as follows: 32 26 a. After the filing of a verified complaint, a true copy 32 27 shall be served within twenty days by certified mail on the 32 28 person against whom the complaint is filed. An authorized 32 29 member of the commission staff shall make a prompt 32 30 investigation and shall issue a recommendation to an 32 31 administrative law judgeunder the jurisdiction ofemployed 32 32 either by the commission or by the division of administrative 32 33 hearings created by section 10A.801, who shall then issue a 32 34 determination of probable cause or no probable cause. 32 35 Sec. 37. Section 216.17, subsection 6, Code 1997, is 33 1 amended to read as follows: 33 2 6. In the enforcement proceeding the court shall determine 33 3 its order on the same basis as it would in a proceeding 33 4 reviewing commission action under section 17A.19, subsection33 58. 33 6 Sec. 38. Section 252.27, unnumbered paragraph 2, Code 33 7 1997, is amended to read as follows: 33 8 The board shall record its proceedings relating to the 33 9 provision of assistance to specific persons under this 33 10 chapter. A person who is aggrieved by a decision of the board 33 11 may appeal the decision as if it were a contested case before 33 12 an agency and as if the person had exhausted administrative 33 13 remedies in accordance with the procedures and standards in 33 14 section 17A.19, subsections 2 to812 except subsection 10, 33 15 paragraphs "b" and"c" of subsection 8"g", and section 33 16 17A.20. 33 17 Sec. 39. Section 256.7, subsection 6, Code 1997, is 33 18 amended to read as follows: 33 19 6. Hear appeals of persons aggrieved by decisions of 33 20 boards of directors of school corporations under chapter 290 33 21 and other appeals prescribed by law. The state board may 33 22 review the record and shall review the decision of the 33 23 director of the department of education or the administrative 33 24 law judge designatedby the director infor any appeals heard 33 25 and decided by the director under chapter 290, and may affirm, 33 26 modify, or vacate the decision, or may direct a rehearing 33 27 before the director. 33 28 Sec. 40. Section 368.22, Code 1997, is amended by adding 33 29 the following new subsections: 33 30 NEW SUBSECTION. 4. Subsection 9. 33 31 NEW SUBSECTION. 5. Subsection 10. 33 32 NEW SUBSECTION. 6. Subsection 11. 33 33 Sec. 41. Section 421.17, subsection 20, unnumbered 33 34 paragraph 2, Code Supplement 1997, is amended to read as 33 35 follows: 34 1 The provisions of sections 17A.10 to17A.1817A.18A 34 2 relating to contested cases shall not apply to any matters 34 3 involving the equalization of valuations of classes of 34 4 property as authorized by this chapter and chapter 441. This 34 5 exemption shall not apply to a hearing before the state board 34 6 of tax review. 34 7 Sec. 42. Section 535B.7, subsection 2, unnumbered 34 8 paragraph 1, Code 1997, is amended to read as follows: 34 9 The administrator may order an emergency suspension of a 34 10 licensee's license pursuant to section17A.18, subsection 334 11 17A.18A. A written order containing the facts or conduct 34 12 which warrants the emergency action shall be timely sent to 34 13 the licensee by restricted certified mail. Upon issuance of 34 14 the suspension order, the licensee must also be notified of 34 15 the right to an evidentiary hearing. A suspension proceeding 34 16 shall be promptly instituted and determined. 34 17 Sec. 43. Section 602.9206, unnumbered paragraph 2, Code 34 18 1997, is amended to read as follows: 34 19 A senior judge also shall be available to serve in the 34 20 capacity of administrative law judge under chapter 17Aupon34 21the request of an agency, and the supreme court may assign a 34 22 senior judge for temporary duties as an administrative law 34 23 judge. A senior judge shall not be required to serve a period 34 24 of time as an administrative law judge which, when added to 34 25 the period of time being served by the person as a judge, if 34 26 any, would exceed the maximum period of time the person agreed 34 27 to serve pursuant to section 602.9203, subsection 2. 34 28 Sec. 44. Section 903A.1, Code 1997, is amended to read as 34 29 follows: 34 30 903A.1 CONDUCT REVIEW. 34 31 The director of the Iowa department of corrections shall 34 32 appoint independent administrative law judges whose duties 34 33 shall include but are not limited to review, as provided in 34 34 section 903A.3, of the conduct of inmates in institutions 34 35 under the department. Sections 10A.801 and 17A.11 do not 35 1 apply to administrative law judges appointed pursuant to this 35 2 section. 35 3 Sec. 45. Sections 10A.201, 10A.202, 17A.31, and 17A.32, 35 4 Code 1997, are repealed. 35 5 Sec. 46. EFFECTIVE DATE. This Act takes effect July 1, 35 6 1999, and applies to agency proceedings commenced on or after 35 7 that date, except that this Act shall apply to any agency 35 8 proceedings conducted on a remand from a court or another 35 9 agency on or after that date. 35 10 35 11 35 12 35 13 RON J. CORBETT 35 14 Speaker of the House 35 15 35 16 35 17 35 18 MARY E. KRAMER 35 19 President of the Senate 35 20 35 21 I hereby certify that this bill originated in the House and 35 22 is known as House File 667, Seventy-seventh General Assembly. 35 23 35 24 35 25 35 26 ELIZABETH ISAACSON 35 27 Chief Clerk of the House 35 28 Approved , 1998 35 29 35 30 35 31 35 32 TERRY E. BRANSTAD 35 33 Governor
Text: HF00666 Text: HF00668 Text: HF00600 - HF00699 Text: HF Index Bills and Amendments: General Index Bill History: General Index
© 1998 Cornell College and League of Women Voters of Iowa
Comments about this site or page?
webmaster@legis.iowa.gov.
Please remember that the person listed above does not vote on bills. Direct all comments concerning legislation to State Legislators.
Last update: Wed Jul 1 13:43:11 CDT 1998
URL: /DOCS/GA/77GA/Legislation/HF/00600/HF00667/980422.html
jhf