CHAPTER 10
PRACTICE AND PROCEDURE BEFORE THE DEPARTMENT OF PUBLIC SAFETY
[Ch 10 as appeared in 1973 IDR, transferred to Transportation Department]
[Prior to 4/20/88, see Public Safety Department, 680—Ch 10]
661—10.1(17A) Definitions. The following definitions apply to this chapter unless otherwise specified.
“Commissioner” means the commissioner of the department of public safety.
“Department” means the department of public safety.
“Waiver” or “variance” means an action by the department which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”
661—10.2 to 10.100 Reserved.
DECLARATORY ORDERS
661—10.101(17A) Petition for declaratory order. Any person may file a petition with the department for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the department, at the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office. The department shall provide the petitioner with a file-stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

DEPARTMENT OF PUBLIC SAFETY	
Petition by (Name of Petitioner)
for a Declaratory Order on
(Cite provisions of law involved).	}	PETITION FOR
DECLARATORY ORDER	
The petition must provide the following information:
	1.	A clear and concise statement of all relevant facts on which the order is requested.
	2.	A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.
	3.	The questions petitioner wants answered, stated clearly and concisely.
	4.	The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.
	5.	The reasons for requesting the declaratory order and disclosure of the petitioner’s interest in the outcome.
	6.	A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.
	7.	The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.
	8.	Any request by petitioner for a meeting provided for by 10.107(17A).
The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative and a statement indicating the person to whom communications concerning the petition should be directed.
661—10.102(17A) Notice of petition. Within 15 days after receipt of a petition for a declaratory order, the department shall give notice of the petition to all persons not served by the petitioner pursuant to 10.106(17A) to whom notice is required by any provision of law. The department may also give notice to any other persons.
661—10.103(17A) Intervention.
	10.103(1) Any person who qualifies under any applicable provision of law as an intervenor and who files a petition for intervention within 20 days of the filing of a petition for declaratory order (after time for notice under 10.102(17A) and before 30-day time for agency action under 10.108(17A)) shall be allowed to intervene in a proceeding for a declaratory order.
	10.103(2) Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of the department.
	10.103(3) A petition for intervention shall be filed at the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. Such a petition is deemed filed when it is received by that office. The department shall provide the petitioner with a file-stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

DEPARTMENT OF PUBLIC SAFETY	
Petition by (Name of Original Petitioner)
for a Declaratory Order on (Cite provisions of law cited in original petition).	}	PETITION FOR
INTERVENTION	
The petition for intervention must provide the following information:
	1.	Facts supporting the intervenor’s standing and qualifications for intervention.
	2.	The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.
	3.	Reasons for requesting intervention and disclosure of the intervenor’s interest in the outcome.
	4.	A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.
	5.	The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, the questions presented.
	6.	Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.
The petition must be dated and signed by the intervenor or the intervenor’s representative. It must also include the name, mailing address, and telephone number of the intervenor and intervenor’s representative, and a statement indicating the person to whom communications should be directed.
661—10.104(17A) Briefs. The petitioner or any intervenor may file a brief in support of the position urged. The department may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.
661—10.105(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Director, Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319.
661—10.106(17A) Service and filing of petitions and other papers.
	10.106(1) When service required. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested persons.
	10.106(2) Filing—when required. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the department.
	10.106(3) Method of service, time of filing, and proof of mailing. Method of service, time of filing, and proof of mailing shall be as provided by rule 10.312(17A).
661—10.107(17A) Consideration. Upon request by petitioner, the department may schedule a brief and informal meeting between the original petitioner, all intervenors, and the department, a member of the department, or a member of the staff of the department, to discuss the questions raised. The department may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the department by any person.
661—10.108(17A) Action on petition.
	10.108(1) Within the time allowed by 1998 Iowa Acts, chapter 1202, section 13(5), after receipt of a petition for a declaratory order, the commissioner of public safety or the commissioner’s designee shall take action on the petition as required by 1998 Iowa Acts, chapter 1202, section 13(5).
	10.108(2) The date of issuance of an order or of a refusal to issue an order is as defined in rule 10.302(17A).
661—10.109(17A) Refusal to issue order.
	10.109(1) The department shall not issue a declaratory order where prohibited by 1998 Iowa Acts, chapter 1202, section 13(1), and may refuse to issue a declaratory order on some or all questions raised for the following reasons:
	1.	The petition does not substantially comply with the required form.
	2.	The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the department to issue an order.
	3.	The department does not have jurisdiction over the questions presented in the petition.
	4.	The questions presented by the petition are also presented in a current rule making, contested case, or other agency or judicial proceeding, that may definitively resolve them.
	5.	The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.
	6.	The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.
	7.	There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.
	8.	The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge an agency decision already made.
	9.	The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.
	10.	The petitioner requests the department to determine whether a statute is unconstitutional on its face.
	11.	The petition relates to any criminal investigation.
	12.	The petition concerns any procedure or practice of the department or any other agency related to initiation or conduct of criminal investigations or referral of matters for possible criminal investigation or prosecution.
	10.109(2) A refusal to issue a declaratory order shall indicate the specific grounds for the refusal, unless it pertains to a matter under criminal investigation, or which has been referred for possible criminal prosecution, in which event no information which might compromise the investigation or prosecution shall be released to the petitioner or any intervenor. A refusal to issue a declaratory order constitutes final agency action on the petition.
	10.109(3) Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.
661—10.110(17A) Contents of declaratory order—effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, the specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion.
A declaratory order is effective on the date of issuance.
661—10.111(17A) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to each original petitioner and to each intervenor.
661—10.112(17A) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on the department, the petitioner, and any intervenors who consent to be bound and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based. As to all other persons, a declaratory order serves only as precedent and is not binding on the department. The issuance of a declaratory order constitutes final agency action on the petition.
661—10.113 to 10.200 Reserved.
agency procedure for rule making
661—10.201(17A) Applicability. Except to the extent otherwise expressly provided by statute, all rules adopted by the department are subject to the provisions of Iowa Code chapter 17A, the Iowa administrative procedure Act, and the provisions of this chapter.
661—10.202(17A) Advice on possible rules before notice of proposed rule adoption. In addition to seeking information by other methods, the department may, before publication of a Notice of Intended Action under Iowa Code section 17A.4(1)“a,” solicit comments from the public on a subject matter of possible rule making by the department by causing notice to be published in the Iowa Administrative Bulletin of the subject matter and indicating where, when, and how persons may comment.
661—10.203(17A) Public rule-making docket.
	10.203(1) Docket maintained. The department shall maintain a current public rule-making docket.
	10.203(2) Anticipated rule making. The rule-making docket shall list each anticipated rule-making proceeding. A rule-making proceeding is deemed “anticipated” from the time a draft of proposed rules is distributed for internal discussion within the department, with the approval of the commissioner of public safety. For each anticipated rule-making proceeding the docket shall contain a listing of the precise subject matter which may be submitted for consideration by the rule-making authority for subsequent proposal under the provisions of Iowa Code section 17A.4(1)“a,” the name and address of department personnel with whom persons may communicate with respect to the matter, and an indication of the present status within the department of that possible rule. The department may also include in the docket other subjects upon which public comment is desired.
	10.203(3) Pending rule-making proceedings. The rule-making docket shall list each pending rule-making proceeding. A rule-making proceeding is pending from the time it is commenced, by publication in the Iowa Administrative Bulletin of a Notice of Intended Action pursuant to Iowa Code section 17A.4(1)“a,” to the time it is terminated, by publication of a Notice of Termination in the Iowa Administrative Bulletin or the rule becoming effective. For each rule-making proceeding, the docket shall indicate:
	a. 	The subject matter of the proposed rule;
	b. 	A citation to all published notices relating to the proceeding;
	c. 	Where written submissions on the proposed rule may be inspected;
	d. 	The time during which written submissions may be made;
	e. 	The names of persons who have made written requests for an opportunity to make oral presentations on the proposed rule, where those requests may be inspected, and where and when oral presentations may be made;
	f. 	Whether a written request for the issuance of a regulatory analysis, or a concise statement of reasons, has been filed, whether such an analysis or statement or a fiscal impact statement has been issued, and where any such written request, analysis, or statement may be inspected;
	g. 	The current status of the proposed rule and any department determinations with respect thereto;
	h. 	Any known timetable for department decisions or other action in the proceeding;
	i. 	The date of the rule’s adoption;
	j. 	The date of the rule’s filing, indexing, and publication;
	k. 	The date on which the rule will become effective; and
	l. 	Where the rule-making record may be inspected.
661—10.204(17A) Notice of proposed rule making.
	10.204(1) Contents. At least 35 days before the adoption of a rule the department shall cause Notice of Intended Action to be published in the Iowa Administrative Bulletin. The Notice of Intended Action shall include:
	a. 	A brief explanation of the purpose of the proposed rule;
	b. 	The specific legal authority for the proposed rule;
	c. 	Except to the extent impracticable, the text of the proposed rule;
	d. 	Where, when, and how persons may present their views on the proposed rule; and
	e. 	Where, when, and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.
Where inclusion of the complete text of a proposed rule in the Notice of Intended Action is impracticable, the department shall include in the notice a statement fully describing the specific subject matter of the omitted portion of the text of the proposed rule, the specific issues to be addressed by that omitted text of the proposed rule, and the range of possible choices being considered by the department for the resolution of each of those issues.
	10.204(2) Incorporation by reference. A proposed rule may incorporate other materials by reference only if it complies with all of the requirements applicable to the incorporation by reference of other materials in an adopted rule that are contained in subrule 10.212(2) of this chapter.
	10.204(3) Copies of notices. Persons desiring to receive copies of future Notices of Intended Action by subscription must file with the Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, a written request indicating the name and address to which such notices should be sent. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the department shall mail or electronically transmit a copy of that notice to subscribers who have filed a written request for either mailing or electronic transmittal with the department for Notices of Intended Action. The written request shall be accompanied by payment of the subscription price which may cover the full cost of the subscription service, including its administrative overhead and the cost of copying and mailing the Notices of Intended Action for a period of one year. The price for such a subscription can be obtained from the Plans and Research Bureau, Department of Public Safety, at the address above, by telephone at (515)281-5042, or by electronic mail via the Internet at admrule@dps.state.ia.us.
661—10.205(17A) Public participation.
	10.205(1) Written comments. For at least 20 days after publication of the Notice of Intended Action, persons may submit argument, data, and views, in writing, on the proposed rule. Such written submissions should identify the proposed rule to which they relate and should be submitted to the Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, or the person or office designated in the Notice of Intended Action.
	10.205(2) Oral proceedings. The department may, at any time, schedule an oral proceeding on a proposed rule. The department shall schedule an oral proceeding on a proposed rule if, within 20 days after the published Notice of Intended Action, a written request for an opportunity to make oral presentations is submitted to the department by the administrative rules review committee, a governmental subdivision, an agency, an association having not less than 25 members, or at least 25 persons. That request must also contain the following additional information:
	1.	A request by one or more individual persons must be signed by each of them and include the address and telephone number of each of them.
	2.	A request by an association must be signed by an officer or designee of the association and must contain a statement that the association has at least 25 members and the address and telephone number of the person signing that request.
	3.	A request by an agency or governmental subdivision must be signed by an official having authority to act on behalf of the entity and must contain the address and telephone number of the person signing that request.
	10.205(3) Conduct of oral proceedings.
	a. 	Applicability. This subrule applies only to those oral rule-making proceedings in which an opportunity to make oral presentations is authorized or required by Iowa Code section 17A.4(1)“b” as amended by 1998 Iowa Acts, chapter 1202, section 8, or this chapter.
	b. 	Scheduling and notice. An oral proceeding on a proposed rule may be held in one or more locations and shall not be held earlier than 20 days after notice of its location and time is published in the Iowa Administrative Bulletin. That notice shall also identify the proposed rule by ARC number and citation to the Iowa Administrative Bulletin.
	c. 	Presiding officer. The commissioner of public safety or the commissioner’s designee shall preside at the oral proceeding on a proposed rule. If the commissioner does not preside, the presiding officer shall prepare a memorandum for consideration by the department summarizing the contents of the presentations made at the oral proceeding unless the commissioner determines that such a memorandum is unnecessary. If the oral proceeding relates to rule making which falls within the authority of an official other than the commissioner, the oral proceeding shall be presided over by the official with rule-making authority or that official’s designee.
	d. 	Conduct of proceeding. At an oral proceeding on a proposed rule, persons may make oral statements and make documentary and physical submissions, which may include data, views, comments or arguments concerning the proposed rule. Persons wishing to make oral presentations at such a proceeding are encouraged to notify the agency at least one business day prior to the proceeding and indicate the general subject of their presentations. At the proceeding, those who participate shall indicate their names and addresses, identify any persons or organizations they may represent, and provide any other information relating to their participation deemed appropriate by the presiding officer. Oral proceedings shall be open to the public and shall be recorded by stenographic or electronic means.
	(1)	At the beginning of the oral proceeding, the presiding officer shall give a brief synopsis of the proposed rule, a statement of the statutory authority for the proposed rule, and the reasons for the agency decision to propose the rule. The presiding officer may place time limitations on individual oral presentations when necessary to ensure the orderly and expeditious conduct of the oral proceeding. To encourage joint oral presentations and to avoid repetition, additional time may be provided for persons whose presentations represent the views of other individuals as well as their own views.
	(2)	Persons making oral presentations are encouraged to summarize matters which have already been submitted in writing.
	(3)	The presiding officer shall have the authority to take any reasonable action necessary for the orderly conduct of the meeting.
	(4)	Physical and documentary submissions presented by participants in the oral proceeding shall be submitted to the presiding officer. Such submissions become the property of the agency.
	(5)	The oral proceeding may be continued by the presiding officer to a later time without notice other than by announcement at the hearing.
	(6)	Participants in an oral proceeding shall not be required to take an oath or to submit to cross-examination. However, the presiding officer in an oral proceeding may question participants and permit the questioning of participants by other representatives of the department who may be present about any matter relating to that rule-making proceeding, including any prior written submissions made by those participants in that proceeding; but no participant shall be required to answer any question.
	(7)	The presiding officer in an oral proceeding may permit rebuttal statements and request the filing of written statements subsequent to the adjournment of the oral presentations.
	10.205(4) Additional information. In addition to receiving written comments and oral presentations on a proposed rule according to the provisions of this rule, the department may obtain information concerning a proposed rule through any other lawful means deemed appropriate under the circumstances.
	10.205(5) Accessibility. The department shall schedule oral proceedings in rooms accessible to and functional for persons with physical disabilities. Persons who have special requirements should contact the Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, in advance to arrange access or other needed services.
661—10.206(17A) Regulatory analysis.
	10.206(1) Definition of small business. A “small business” is defined in 1998 Iowa Acts, chapter 1202, section 10(7).
	10.206(2) Mailing list. Small businesses or organizations of small businesses may be registered on the department’s small business impact list by making a written application addressed to Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. The application for registration shall state:
	a. 	The name of the small business or organization of small businesses;
	b. 	Its address;
	c. 	The name of a person authorized to transact business for the applicant;
	d. 	A description of the applicant’s business or organization. An organization representing 25 or more persons who qualify as a small business shall indicate that fact.
	e. 	Whether the registrant desires copies of Notices of Intended Action at cost, or desires advance notice of the subject of all or some specific category of proposed rule making affecting small business.
The department may at any time request additional information from the applicant to determine whether the applicant is qualified as a small business or as an organization of 25 or more small businesses. The department may periodically send a letter to each registered small business or organization of small businesses asking whether that business or organization wishes to remain on the registration list. The name of a small business or organization of small businesses will be removed from the list if a negative response is received, or if no response is received within 30 days after the letter is sent.
	10.206(3) Time of mailing. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the department shall mail to all registered small businesses or organizations of small businesses, in accordance with their request, either a copy of the Notice of Intended Action or notice of the subject of that proposed rule making. In the case of a rule that may have an impact on small business adopted in reliance upon Iowa Code section 17A.4(2), the department shall mail notice of the adopted rule to registered businesses or organizations prior to the time the adopted rule is published in the Iowa Administrative Bulletin.
	10.206(4) Qualified requesters for regulatory analysis—economic impact. The department shall issue a regulatory analysis of a proposed rule that conforms to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2a), after a proper request from:
	a. 	The administrative rules coordinator;
	b. 	The administrative rules review committee.
	10.206(5) Qualified requesters for regulatory analysis— business impact. The department shall issue a regulatory analysis of a proposed rule that conforms to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2b), after a proper request from:
	a. 	The administrative rules review committee;
	b. 	The administrative rules coordinator;
	c. 	At least 25 or more persons who sign the request provided that each represents a different small business;
	d. 	An organization representing at least 25 small businesses. That organization shall list the name, address and telephone number of not less than 25 small businesses it represents.
	10.206(6) Time period for analysis. Upon receipt of a timely request for a regulatory analysis, the department shall adhere to the time lines described in 1998 Iowa Acts, chapter 1202, section 10(4).
	10.206(7) Contents of request. A request for a regulatory analysis is made when it is mailed or delivered to the Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. The request shall be in writing and satisfy the requirements of 1998 Iowa Acts, chapter 1202, section 10(1).
	10.206(8) Contents of concise summary. The contents of the concise summary shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10(4,5).
	10.206(9) Publication of a concise summary. The department shall make available, to the maximum extent feasible, copies of the published summary in conformance with 1998 Iowa Acts, chapter 1202, section 10(5).
	10.206(10) Regulatory analysis contents—rules review committee or rules coordinator. When a regulatory analysis is issued in response to a written request from the administrative rules review committee or the administrative rules coordinator, the regulatory analysis shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2a), unless a written request expressly waives one or more of the items listed in the section.
	10.206(11) Regulatory analysis contents—substantial impact on small business. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, the administrative rules coordinator, at least 25 persons signing that request who each qualify as a small business or by an organization representing at least 25 small businesses, the regulatory analysis shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10(2b).
661—10.207(17A,25B) Fiscal impact statement.
	10.207(1) A proposed rule that mandates additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services must be accompanied by a fiscal impact statement outlining the costs associated with the rule. A fiscal impact statement must satisfy the requirements of Iowa Code section 25B.6.
	10.207(2) If the department determines at the time it adopts a rule that the fiscal impact statement upon which the rule is based contains errors, the department shall, at the same time, issue a corrected fiscal impact statement and publish the corrected fiscal impact statement in the Iowa Administrative Bulletin.
661—10.208(17A) Time and manner of rule adoption.
	10.208(1) Time of adoption. The department shall not adopt a rule until the period for making written submissions and oral presentations has expired. Within 180 days after the later of the publication of the Notice of Intended Action, or the end of oral proceedings thereon, the department shall adopt a rule pursuant to the rule-making proceeding or terminate the proceeding by publication of a notice to that effect in the Iowa Administrative Bulletin.
	10.208(2) Consideration of public comment. Before the adoption of a rule, the department shall consider fully all of the written submissions and oral submissions received in that rule-making proceeding or any memorandum summarizing such oral submissions, and any regulatory analysis or fiscal impact statement issued in that rule-making proceeding.
	10.208(3) Reliance on department expertise. Except as otherwise provided by law, the department may use its own experience, technical competence, specialized knowledge, and judgment in the adoption of a rule.
661—10.209(17A) Variance between adopted rule and published notice of proposed rule adoption.
	10.209(1) The department shall not adopt a rule that differs from the rule proposed in the Notice of Intended Action on which the rule is based unless:
	a. 	The differences are within the scope of the subject matter announced in the Notice of Intended Action and are in character with the issues raised in that notice; and
	b. 	The differences are a logical outgrowth of the contents of that Notice of Intended Action and the comments submitted in response thereto; and
	c. 	The Notice of Intended Action provided fair warning that the outcome of that rule-making proceeding could be the rule in question.
	10.209(2) In determining whether the Notice of Intended Action provided fair warning that the outcome of that rule-making proceeding could be the rule in question, the department shall consider the following factors:
	a. 	The extent to which persons who will be affected by the rule should have understood that the rule-making proceeding on which it is based could affect their interests;
	b. 	The extent to which the subject matter of the rule or the issues determined by the rule are different from the subject matter or issues contained in the Notice of Intended Action; and
	c. 	The extent to which the effects of the rule differ from the effects of the proposed rule contained in the Notice of Intended Action.
	10.209(3) The department shall commence a rule-making proceeding within 60 days of its receipt of a petition for rule making seeking the amendment or repeal of a rule that differs from the proposed rule contained in the Notice of Intended Action upon which the rule is based, unless the department finds that the differences between the adopted rule and the proposed rule are so insubstantial as to make such a rule-making proceeding wholly unnecessary. A copy of any such finding and the petition to which it responds shall be sent to petitioner, the administrative rules coordinator, and the administrative rules review committee, within three days of its issuance.
	10.209(4) Concurrent rule-making proceedings. Nothing in this rule disturbs the discretion of the department to initiate, concurrently, several different rule-making proceedings on the same subject with several different published Notices of Intended Action.
661—10.210(17A) Exemptions from public rule-making procedures.
	10.210(1) Omission of notice and comment. To the extent the department for good cause finds that public notice and participation are unnecessary, impracticable, or contrary to the public interest in the process of adopting a particular rule, the department may adopt that rule without publishing advance Notice of Intended Action in the Iowa Administrative Bulletin and without providing for written or oral public submissions prior to its adoption. The department shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.
	10.210(2) Reserved.
	10.210(3) Public proceedings on rules adopted without them. The department may, at any time, commence a standard rule-making proceeding for the adoption of a rule that is identical or similar to a rule it adopts in reliance upon subrule 10.210(1). Upon written petition by a governmental subdivision, the administrative rules review committee, the department, the administrative rules coordinator, an association having not less than 25 members, or at least 25 persons, the department shall commence a standard rule-making proceeding for any rule specified in the petition that was adopted in reliance upon subrule 10.210(1). Such a petition must be filed within one year of the publication of the specified rule in the Iowa Administrative Bulletin as an adopted rule. The rule-making proceeding on that rule must be commenced within 60 days of the receipt of such a petition. After a standard rule-making proceeding commenced pursuant to this subrule, the department may either readopt the rule it adopted without benefit of all usual procedures on the basis of subrule 10.210(1), or may take any other lawful action, including the amendment or repeal of the rule in question, with whatever further proceedings are appropriate.
661—10.211(17A) Concise statement of reasons.
	10.211(1) General. When requested by a person, either prior to the adoption of a rule or within 30 days after its publication in the Iowa Administrative Bulletin as an adopted rule, the department shall issue a concise statement of reasons for the rule. Requests for such a statement must be in writing and be delivered to the Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. The request should indicate whether the statement is sought for all or only a specified part of the rule. Requests will be considered made on the date received.
	10.211(2) Contents. The concise statement of reasons shall contain:
	a. 	The reasons for adopting the rule;
	b. 	An indication of any change between the text of the proposed rule contained in the published Notice of Intended Action and the text of the rule as finally adopted, with the reasons for any such change;
	c. 	The principal reasons urged in the rule-making proceeding for and against the rule, and the department’s reasons for overruling the arguments made against the rule.
	10.211(3) Time of issuance. After a proper request, the department shall issue a concise statement of reasons by the later of the time the rule is adopted or 35 days after receipt of the request.
661—10.212(17A) Contents, style, and form of rule.
	10.212(1) Contents. Each rule adopted by the department shall contain the text of the rule and, in addition:
	a. 	The date the department adopted the rule;
	b. 	A brief explanation of the principal reasons for the rule-making action if such reasons are required by 1998 Iowa Acts, chapter 1202, section 8, or the department in its discretion decides to include such reasons;
	c. 	A reference to all rules repealed, amended, or suspended by the rule;
	d. 	A reference to the specific statutory or other authority authorizing adoption of the rule;
	e. 	Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule;
	f. 	The effective date of the rule.
	10.212(2) Incorporation by reference. The department may incorporate by reference in a proposed or adopted rule, and without causing publication of the incorporated matter in full, all or any part of a code, standard, rule, or other matter if the department finds that the incorporation of its text in the department proposed or adopted rule would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in the department proposed or adopted rule shall fully and precisely identify the incorporated matter by location, title, citation, date, and edition, if any; shall briefly indicate the precise subject and the general contents of the incorporated matter; and shall state that the proposed or adopted rule does not include any later amendments or editions of the incorporated matter. The department may incorporate such matter by reference in a proposed or adopted rule only if the department makes copies of it readily available to the public. The rule shall state how and where copies of the incorporated matter may be obtained at cost from the department, and how and where copies may be obtained from the agency, organization, association, or persons originally issuing that matter. The department shall retain permanently a copy of any materials incorporated by reference in a rule of the department.
If the department adopts standards by reference to another publication, it shall provide a copy of the publication containing the standards to the administrative rules coordinator for deposit in the state law library and may make the standards available electronically.
	10.212(3) References to materials not published in full. When the administrative code editor decides to omit the full text of a proposed or adopted rule because publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient, the department shall prepare and submit to the administrative code editor for inclusion in the Iowa Administrative Bulletin and Iowa Administrative Code a summary statement describing the specific subject matter of the omitted material. This summary statement shall include the title and a brief description sufficient to inform the public of the specific nature and subject matter of the proposed or adopted rules, and of significant issues involved in these rules. The summary statement shall also describe how a copy of the full text of the proposed or adopted rule, including any unpublished matter and any matter incorporated by reference, may be obtained from the department. The department will provide a copy of that full text, at actual cost, upon request and shall make copies of the full text available for review at the state law library and may make the standards available electronically.
At the request of the administrative code editor, the department shall provide a proposed statement explaining why publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient.
	10.212(4) Style and form. In preparing its rules, the department shall follow the uniform numbering system, form, and style prescribed by the administrative rules coordinator.
661—10.213(17A) Agency rule-making record.
	10.213(1) Requirement. The department shall maintain an official rule-making record for each rule it proposes by publication in the Iowa Administrative Bulletin of a Notice of Intended Action, or adopts. The rule-making record and materials incorporated by reference must be available for public inspection.
	10.213(2) Contents. The department rule-making record shall contain:
	a. 	Copies of all publications in the Iowa Administrative Bulletin with respect to the rule or the proceeding upon which the rule is based and any file-stamped copies of department submissions to the administrative rules coordinator concerning that rule or the proceeding upon which it is based;
	b. 	Copies of any portions of the department’s public rule-making docket containing entries relating to the rule or the proceeding upon which the rule is based;
	c. 	All written petitions, requests, and submissions received by the department, and all other written materials of a factual nature as distinguished from opinion that are relevant to the merits of the rule and that were created or compiled by the department and considered by the commissioner of public safety or other official with rule-making authority, in connection with the formulation, proposal, or adoption of the rule or the proceeding upon which the rule is based, except to the extent the department is authorized by law to keep them confidential; provided, however, that when any such materials are deleted because they are authorized by law to be kept confidential, the department shall identify in the record the particular materials deleted and state the reasons for that deletion;
	d. 	Any official transcript of oral presentations made in the proceeding upon which the rule is based or, if not transcribed, the stenographic record or electronic recording of those presentations, and any memorandum prepared by a presiding officer summarizing the contents of those presentations;
	e. 	A copy of any regulatory analysis or fiscal impact statement prepared for the proceeding upon which the rule is based;
	f. 	A copy of the rule and any concise statement of reasons prepared for that rule;
	g. 	All petitions for amendment or repeal or suspension of the rule;
	h. 	A copy of any objection to the issuance of that rule without public notice and participation that was filed pursuant to Iowa Code section 17A.4(2) by the administrative rules review committee, the governor, or the attorney general;
	i. 	A copy of any objection to the rule filed by the administrative rules review committee, the governor, or the attorney general pursuant to Iowa Code section 17A.4(4), and any department response to that objection;
	j. 	A copy of any significant written criticism of the rule, including a summary of any petitions for waiver of the rule; and
	k. 	A copy of any executive order concerning the rule.
	10.213(3) Effect of record. Except as otherwise required by a provision of law, the department rule-making record required by this rule need not constitute the exclusive basis for department action on that rule.
	10.213(4) Maintenance of record. The department shall maintain the rule-making record for a period of not less than five years from the later of the date the rule to which it pertains became effective, the date of the Notice of Intended Action, or the date of any written criticism as described in 10.213(2)“g,” “h,” “i,” or “j.”
661—10.214(17A) Filing of rules. The department shall file each rule it adopts in the office of the administrative rules coordinator. The filing must be executed as soon after adoption of the rule as is practicable. At the time of filing, each rule must have attached to it any fiscal impact statement and any concise statement of reasons that was issued with respect to that rule. If a fiscal impact statement or statement of reasons for that rule was not issued until a time subsequent to the filing of that rule, the note or statement must be attached to the filed rule within five working days after the note or statement is issued. In filing a rule, the department shall use the standard form prescribed by the administrative rules coordinator.
661—10.215(17A) Effectiveness of rules prior to publication.
	10.215(1) Grounds. The department may make a rule effective after its filing at any stated time prior to 35 days after its indexing and publication in the Iowa Administrative Bulletin if it finds that a statute so provides, the rule confers a benefit or removes a restriction on some segment of the public, or that the effective date of the rule is necessary to avoid imminent peril to the public health, safety, or welfare. The department shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.
	10.215(2) Special notice. When the department makes a rule effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3), the department shall employ all reasonable efforts to make its contents known to the persons who may be affected by that rule prior to the rule’s indexing and publication. The term “all reasonable efforts” requires the department to employ the most effective and prompt means of notice rationally calculated to inform potentially affected parties of the effectiveness of the rule that is justified and practical under the circumstances considering the various alternatives available for this purpose, the comparative costs to the department of utilizing each of those alternatives, and the harm suffered by affected persons from any lack of notice concerning the contents of the rule prior to its indexing and publication. The means that may be used for providing notice of such rules prior to their indexing and publication include, but are not limited to, any one or more of the following means: radio, newspaper, television, signs, mail, telephone, personal notice or electronic means.
A rule made effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3) shall include in that rule a statement describing the reasonable efforts that will be used to comply with the requirements of subrule 10.215(2).
661—10.216(17A) General statements of policy.
	10.216(1) Compilation, indexing, public inspection. The department shall maintain an official, current, and dated compilation that is indexed by subject, containing all of its general statements of policy within the scope of Iowa Code section 17A.2(10)“a,” “c,” “f,” “g,” “h,” “k.” Each addition to, change in, or deletion from the official compilation must also be dated, indexed, and a record thereof kept. Except for those portions containing rules governed by Iowa Code section 17A.2(7)“f,” or otherwise authorized by law to be kept confidential, the compilation must be made available for public inspection and copying.
	10.216(2) Enforcement of requirements. A general statement of policy subject to the requirements of this subsection shall not be relied on by the department to the detriment of any person who does not have actual, timely knowledge of the contents of the statement until the requirements of subrule 10.216(1) are satisfied. This provision is inapplicable to the extent necessary to avoid imminent peril to the public health, safety, or welfare.
661—10.217(17A) Review by department of rules.
	10.217(1) Any interested person, association, agency, or political subdivision may submit a written request to the administrative rules coordinator requesting the department to conduct a formal review of a specified rule. Upon approval of that request by the administrative rules coordinator, the department shall conduct a formal review of a specified rule to determine whether a new rule should be adopted instead or the rule should be amended or repealed. The department may refuse to conduct a review if it has conducted such a review of the specified rule within five years prior to the filing of the written request.
	10.217(2) In conducting the formal review, the department shall prepare within a reasonable time a written report summarizing its findings, its supporting reasons, and any proposed course of action. The report must include a concise statement of the department’s findings regarding the rule’s effectiveness in achieving its objectives, including a summary of any available supporting data. The report shall also concisely describe significant written criticisms of the rule received during the previous five years, including a summary of any petitions for waiver of the rule received by the department or granted by the department. The report shall describe alternative solutions to resolve the criticisms of the rule, the reasons any were rejected, and any changes made in the rule in response to the criticisms as well as the reasons for the changes. A copy of the department’s report shall be sent to the administrative rules review committee and the administrative rules coordinator. The report must also be available for public inspection.
661—10.218(17A) Petition for rule making. Any person or agency may file a petition for rule making with the department at the Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office. The agency must provide the petitioner with a file-stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

DEPARTMENT OF PUBLIC SAFETY	
Petition by (Name of Petitioner) for the
(adoption, amendment, or repeal)
of rules relating to (state subject matter).	}	PETITION FOR
RULE MAKING	
The petition must provide the following information:
	1.	A statement of the specific rule-making action sought by the petitioner including the text or a summary of the contents of the proposed rule or amendment to a rule and, if it is a petition to amend or repeal a rule, a citation and the relevant language to the particular portion or portions of the rule proposed to be amended or repealed.
	2.	A citation to any law deemed relevant to the agency’s authority to take the action urged or to the desirability of that action.
	3.	A brief summary of petitioner’s arguments in support of the action urged in the petition.
	4.	A brief summary of any data supporting the action urged in the petition.
	5.	The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by or interested in, the proposed action which is the subject of the petition.
	6.	Any request by petitioner for a meeting provided for by subrule 10.221(1).
	10.218(1) The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative, and a statement indicating the person to whom communications concerning the petition should be directed.
	10.218(2) The department may deny a petition because it does not substantially conform to the required form.
661—10.219(17A) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The department may request a brief from the petitioner or from any other person concerning the substance of the petition.
661—10.220(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to the Administrative Rules Coordinator, Plans and Research Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319.
661—10.221(17A) Agency consideration.
	10.221(1) Within 14 days after the filing of a petition, the department must submit a copy of the petition and any accompanying brief to the administrative rules coordinator and to the administrative rules review committee. Upon request by petitioner in the petition, the department may schedule a brief and informal meeting between the petitioner and the agency, a member of the agency, or a member of the staff of the agency, to discuss the petition. The department may request the petitioner to submit additional information or argument concerning the petition. The department may also solicit comments from any person on the substance of the petition. Also, comments on the substance of the petition may be submitted to the department by any person.
	10.221(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the department must, in writing, deny the petition, and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule-making proceedings on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date when the agency mails or delivers the required notification to petitioner.
	10.221(3) Denial of a petition because it does not substantially conform to the required form does not preclude the filing of a new petition on the same subject that seeks to eliminate the grounds for the agency’s rejection of the petition.
661—10.222(17A) Waivers of rules. This rule outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the department of public safety in situations where no other more specific procedure provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this rule with respect to any waiver from that rule. Generally, more specific procedures exist for considering waivers from rules of the state fire marshal and from provisions of the state of Iowa building code.
	10.222(1) Applicability of rule. The department may grant a waiver from a rule only if the department has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The department may not waive requirements created or duties imposed by statute.
	10.222(2) Criteria for waiver or variance. In response to a petition completed pursuant to this rule, the department may, in its sole discretion, issue an order waiving, in whole or in part, the requirements of a rule if the department finds, based on clear and convincing evidence, all of the following:
	a. 	The application of the rule would impose an undue hardship on the person for whom the waiver is requested;
	b. 	The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;
	c. 	The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and
	d. 	Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.
	10.222(3) Filing of petition. A petition for a waiver must be submitted in writing to the department as follows:
	a. 	License application. If the petition relates to a license application, the petition shall be made in accordance with the filing requirements for the license in question.
	b. 	Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.
	c. 	Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted with a caption containing the name of the entity or person for whom the waiver is requested.
	d. 	File petition. A petition is deemed filed when it is received in the department’s office. A petition should be sent to the Iowa Department of Public Safety, Attention: Agency Rules Administrator, Wallace State Office Building, East 9th and Grand, Des Moines, Iowa 50319-0040.
	10.222(4) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:
	a. 	The name, address, and telephone number of the entity or person for whom a waiver is being requested; the case number of or other reference to any related contested case; and the name, address, and telephone number of the petitioner’s legal representative, if any.
	b. 	A description of and citation to the specific rule from which a waiver is requested.
	c. 	The specific waiver requested, including the precise scope and duration.
	d. 	The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in subrule 10.222(2). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition, and a statement of reasons that the petitioner believes will justify a waiver.
	e. 	A history of any prior contacts between the department, other departments or agencies of the state of Iowa, or political subdivisions and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license or certificate held by the requester, any formal charges filed, notices of violation, contested case hearings, or investigations relating to the regulated activity or license within the last five years.
	f. 	Any information known to the requester regarding the department’s action in similar cases.
	g. 	The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.
	h. 	The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.
	i. 	The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.
	j. 	Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.
	10.222(5) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the department may, on its own motion or at the petitioner’s request, schedule a telephonic or in-person meeting between the petitioner and a representative or representatives of the department related to the waiver request.
	10.222(6) Notice. The department shall acknowledge a petition upon receipt. The department shall ensure that, within 30 days of the receipt of the petition, notice of the pending petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law, including the petitioner. In addition, the department may give notice to other persons. To accomplish this notice provision, the department may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law, and provide a written statement to the department attesting that notice has been provided.
	10.222(7) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case, and shall otherwise apply to department proceedings for a waiver only when the department so provides by rule or order or is required to do so by statute.
	10.222(8) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person or legal entity and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.
	a. 	Departmental discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the department, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the department based on the unique, individual circumstances set out in the petition.
	b. 	Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the department should exercise its discretion to grant a waiver from a rule.
	c. 	Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.
	d. 	Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the department shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.
	e. 	Conditions. The department may place on a waiver any condition that the department finds desirable to protect the public health, safety, and welfare.
	f. 	Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the department, a waiver may be renewed if the department finds that grounds for a waiver continue to exist.
	g. 	Time for ruling. The department shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the department shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.
	h. 	When deemed denied. Failure of the department to grant or deny a petition within the required time period shall be deemed a denial of that petition by the department. However, the department shall remain responsible for issuing an order denying a waiver.
	i. 	Service of order. Within seven days of its issuance, any order issued under this rule shall be transmitted or delivered to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.
	10.222(9) All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the department is authorized or required to keep confidential. The department may accordingly redact confidential information from petitions or orders prior to public inspection.
	10.222(10) Summary reports. Semiannually, the department shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the department’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.
	10.222(11) Cancellation of a waiver. A waiver issued by the department pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the department issues an order finding any of the following:
	a. 	The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or
	b. 	The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or
	c. 	The subject of the waiver order has failed to comply with all conditions contained in the order.
	10.222(12) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.
	10.222(13) Defense. After the department issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein only for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.
	10.222(14) Judicial review. Judicial review of the department’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.
	10.222(15) Sample petition for waiver. A petition for waiver filed in accordance with this chapter must meet the requirements specified herein and must substantially conform to the following form:

BEFORE THE IOWA DEPARTMENT OF PUBLIC SAFETY	
Petition by (name of petitioner) for the
waiver/variance of (insert rule citation)
relating to (insert the subject matter).	}	PETITION FOR
WAIVER/VARIANCE	
	1.	Provide the name, address, and telephone number of the petitioner (person asking for a waiver or variance). Also provide the name, address, and telephone number of the petitioner’s legal representative, if applicable, and a statement indicating the person to whom communications concerning the petition should be directed.
	2.	Describe and cite the specific rule from which a waiver is requested.
	3.	Describe the specific waiver requested, including the precise scope and time period for which the waiver will extend.
	4.	Explain the relevant facts and reasons that the petitioner believes justify a waiver. Include in the answer all of the following:
	●	Why applying the rule would result in undue hardship to the petitioner;
	●	Why waiving the rule would not prejudice the substantial legal rights of any person;
	●	Whether the provisions of the rule subject to the waiver are specifically mandated by statute or another provision of law; and
	●	How substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.
5. Provide a history of any prior contacts between the department, other departments or agencies of the state of Iowa, or political subdivisions and petitioner relating to the regulated activity or license that would be affected by the waiver. Include a description of each affected license held by the petitioner, any formal charges filed, any notices of violation, any contested case hearings held, or any investigations related to the regulated activity, license, registration, certification, or permit.
	6.	Provide information known to the petitioner regarding the department’s action in similar cases.
	7.	Provide the name, address, and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of the petition.
	8.	Provide the name, address, and telephone number of any person or entity that would be adversely affected by the granting of the waiver or variance.
	9.	Provide the name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.
	10.	Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.
I hereby attest to the accuracy and truthfulness of the above information.

Petitioner’s signature	 	Date	
This rule is intended to implement Iowa Code section 17A.22.
661—10.223 to 10.300 Reserved.
CONTESTED CASES
661—10.301(17A) Scope and applicability. Rules 661—10.301(17A) to 10.332(17A) apply to contested case proceedings conducted by the department.
661—10.302(17A) Definitions. Except where otherwise specifically defined by law:
“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under 1998 Iowa Acts, chapter 1202, section 14.
“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.
“Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.
“Presiding officer” means the commissioner of public safety or other person designated by the commissioner to preside over a contested case proceeding.
“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which the commissioner of public safety did not preside.
661—10.303(17A) Time requirements.
	10.303(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).
	10.303(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute or by other provision of law. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.
661—10.304(17A) Requests for contested case proceeding. Any person claiming an entitlement to a contested case proceeding shall file a written request for such a proceeding within the time specified by the particular rules or statutes governing the subject matter or, in the absence of such law, the time specified in the agency action in question.
The request for a contested case proceeding should state the name and address of the requester, identify the specific agency action which is disputed, and where the requester is represented by a lawyer identify the provisions of law or precedent requiring or authorizing the holding of a contested case proceeding in the particular circumstances involved, and include a short and plain statement of the issues of material fact in dispute.
Requests for contested case proceedings shall be filed with the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319.
661—10.305(17A) Notice of hearing.
	10.305(1) Delivery. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery may be executed by:
	a. 	Personal service as provided in the Iowa Rules of Civil Procedure; or
	b. 	Certified mail, return receipt requested; or
	c. 	First-class mail; or
	d. 	Publication, as provided in the Iowa Rules of Civil Procedure.
	10.305(2) Contents. The notice of hearing shall contain the following information:
	a. 	A statement of the time, place, and nature of the hearing;
	b. 	A statement of the legal authority and jurisdiction under which the hearing is to be held;
	c. 	A reference to the particular sections of the statutes and rules involved;
	d. 	A short and plain statement of the matters asserted. If the department or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished;
	e. 	Identification of all parties including the name, address and telephone number of the person who will act as advocate for the department or the state and of parties’ counsel where known;
	f. 	Reference to the procedural rules governing conduct of the contested case proceeding;
	g. 	Reference to the procedural rules governing informal settlement;
	h. 	Identification of the presiding officer, if known. If not known, a description of who will serve as presiding officer; and
	i. 	Notification of the time period in which a party may request, pursuant to 1998 Iowa Acts, chapter 1202, section 15(1), and rule 10.306(17A), that the presiding officer be an administrative law judge.
661—10.306(17A) Presiding officer.
	10.306(1) Any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within 20 days after service of a notice of hearing which identifies or describes the presiding officer as the agency head.
	10.306(2) The commissioner of public safety or the commissioner’s designee may deny the request only upon a finding that one or more of the following apply:
	a. 	Neither the department nor any officer of the agency under whose authority the contested case is to take place is a named party to the proceeding or a real party in interest to that proceeding.
	b. 	There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.
	c. 	An administrative law judge is unavailable to hear the case within a reasonable time.
	d. 	The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.
	e. 	The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.
	f. 	Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.
	g. 	The request was not timely filed.
	h. 	The request is not consistent with a specified statute.
	10.306(3) The commissioner or the commissioner’s designee shall issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed. If the ruling is contingent upon the availability of an administrative law judge with the qualifications identified in subrule 10.306(4), the parties shall be notified at least 10 days prior to hearing if a qualified administrative law judge will not be available.
	10.306(4) Reserved.
	10.306(5) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the agency. A party must seek any available intra-agency appeal in order to exhaust adequate administrative remedies.
	10.306(6) Unless otherwise provided by law, the commissioner, when reviewing a proposed decision upon intra-agency appeal, shall have the powers of and shall comply with the provisions of this chapter which apply to presiding officers.
661—10.307(17A) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the department in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.
661—10.308(17A) Telephone proceedings. The presiding officer may resolve preliminary procedural motions by telephone conference in which all parties have an opportunity to participate. Other telephone proceedings may be held with the consent of all parties. The presiding officer will determine the location of the parties and witnesses for telephone hearings. The convenience of the witnesses or parties, as well as the nature of the case, will be considered when location is chosen.
661—10.309(17A) Disqualification.
	10.309(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:
	a. 	Has a personal bias or prejudice concerning a party or a representative of a party;
	b. 	Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;
	c. 	Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;
	d. 	Has acted as counsel to any person who is a private party to that proceeding within the past two years;
	e. 	Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;
	f. 	Has a spouse or relative within the third degree of relationship that: (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or
	g. 	Has any other legally sufficient cause to withdraw from participation in the decision making in that case.
	10.309(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case. Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17 as amended by 1998 Iowa Acts, chapter 1202, section 19, and subrules 10.309(3) and 10.323(9).
	10.309(3) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.
	10.309(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 10.309(1), the party shall file a motion supported by an affidavit pursuant to 1998 Iowa Acts, chapter 1202, section 19(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party.
If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must establish the grounds by the introduction of evidence into the record.
If the presiding officer determines that disqualification is appropriate, the presiding officer or other person shall withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer shall enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal under rule 10.325(17A) and seek a stay under rule 10.329(17A).
661—10.310(17A) Consolidation—severance.
	10.310(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where: (a) the matters at issue involve common parties or common questions of fact or law; (b) consolidation would expedite and simplify consideration of the issues involved; and (c) consolidation would not adversely affect the rights of any of the parties to those proceedings.
	10.310(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.
661—10.311(17A) Pleadings. Formal pleadings are not required in cases initiated by a notice of appeal or a notice of claim. However, the presiding officer may order the parties to file formal pleadings in any case.
661—10.312(17A) Service and filing of pleadings and other papers.
	10.312(1) When service required. Except where otherwise provided by law, every pleading, motion, document, or other paper filed in a contested case proceeding and every paper relating to discovery in such a proceeding shall be served upon each of the parties of record to the proceeding, including the person designated as advocate or prosecutor for the state or the department, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.
	10.312(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last-known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.
	10.312(3) Filing—when required. After the notice of hearing, all pleadings, motions, documents or other papers in a contested case proceeding shall be filed with the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. All pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the department.
	10.312(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, delivered to an established courier service for immediate delivery to that office, or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.
	10.312(5) Proof of mailing. Proof of mailing includes either: a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:

 	I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or state interoffice mail).	
 	(Date)	(Signature)	
661—10.313(17A) Discovery.
	10.313(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.
	10.313(2) Any motion relating to discovery shall allege that the moving party has previously made a good-faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 10.313(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.
	10.313(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.
661—10.314(17A) Subpoenas.
	10.314(1) Issuance.
	a. 	An agency subpoena shall be issued to a party on request. Such a request must be in writing. In the absence of good cause for permitting later action, a request for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address, and telephone number of the requesting party.
	b. 	Except to the extent otherwise provided by law, parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.
	10.314(2) Motion to quash or modify. The presiding officer may quash or modify a subpoena for any lawful reason upon motion in accordance with the Iowa Rules of Civil Procedure. A motion to quash or modify a subpoena shall be set for argument promptly.
661—10.315(17A) Motions.
	10.315(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.
	10.315(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by rules of the department or the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.
	10.315(3) The presiding officer may schedule oral argument on any motion.
	10.315(4) Motions pertaining to the hearing must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by administrative rule or an order of the presiding officer.
661—10.316(17A) Prehearing conference.
	10.316(1) Any party may request a prehearing conference. A written request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion shall be filed not less than seven days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date.
Written notice of the prehearing conference shall be given by the presiding officer to all parties. For good cause the presiding officer may permit variances from this rule.
	10.316(2) Each party shall bring to the prehearing conference:
	a. 	A final list of the witnesses who the party anticipates will testify at hearing. Witnesses not listed may be excluded from testifying unless there was good cause for the failure to include their names; and
	b. 	A final list of exhibits which the party anticipates will be introduced at hearing. Exhibits other than rebuttal exhibits that are not listed may be excluded from admission into evidence unless there was good cause for the failure to include them.
	c. 	Witness or exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.
	10.316(3) In addition to the requirements of subrule 10.316(2), the parties at a prehearing conference may:
	a. 	Enter into stipulations of law or fact;
	b. 	Enter into stipulations on the admissibility of exhibits;
	c. 	Identify matters which the parties intend to request be officially noticed;
	d. 	Enter into stipulations for waiver of any provision of law; and
	e. 	Consider any additional matters which will expedite the hearing.
	10.316(4) Prehearing conferences shall be conducted by telephone unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists in advance of a telephone prehearing conference.
661—10.317(17A) Continuances. Unless otherwise provided, applications for continuances shall be made to the presiding officer.
	10.317(1) A written application for a continuance shall:
	a. 	Be made at the earliest possible time and no less than seven days before the hearing except in case of unanticipated emergencies;
	b. 	State the specific reasons for the request; and
	c. 	Be signed by the requesting party or the party’s representative.
An oral application for a continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within five days after the oral request unless that requirement is waived by the presiding officer. No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible. The department may waive notice of such requests for a particular case or an entire class of cases.
	10.317(2) In determining whether to grant a continuance, the presiding officer may consider:
	a. 	Prior continuances;
	b. 	The interests of all parties;
	c. 	The likelihood of informal settlement;
	d. 	The existence of an emergency;
	e. 	Any objection;
	f. 	Any applicable time requirements;
	g. 	The existence of a conflict in the schedules of counsel, parties, or witnesses;
	h. 	The timeliness of the request; and
	i. 	Other relevant factors.
The presiding officer may require documentation of any grounds for continuance.
661—10.318(17A) Withdrawals. A party requesting a contested case proceeding may withdraw that request prior to the hearing. Unless otherwise provided, a withdrawal shall be with prejudice.
661—10.319(17A) Intervention.
	10.319(1) Motion. A motion for leave to intervene in a contested case proceeding shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.
	10.319(2) When filed. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor shall be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances which would delay the proceeding will ordinarily be denied.
	10.319(3) Grounds for intervention. The movant shall demonstrate that: (a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; (b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and (c) the interests of the movant are not adequately represented by existing parties.
	10.319(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.
661—10.320(17A) Hearing procedures.
	10.320(1) The presiding officer presides at the hearing, and may rule on motions, require briefs, issue a proposed decision, and issue such orders and rulings as will ensure the orderly conduct of the proceedings.
	10.320(2) All objections shall be timely made and stated on the record.
	10.320(3) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations, or associations may be represented by any member, officer, director, or duly authorized agent. Any party may be represented by an attorney or another person authorized by law.
	10.320(4) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.
	10.320(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.
	10.320(6) Witnesses may be sequestered during the hearing.
	10.320(7) The presiding officer shall conduct the hearing in the following manner:
	a. 	The presiding officer shall give an opening statement briefly describing the nature of the proceedings;
	b. 	The parties shall be given an opportunity to present opening statements;
	c. 	Parties shall present their cases in the sequence determined by the presiding officer;
	d. 	Each witness shall be sworn or affirmed by the presiding officer or the court reporter, and be subject to examination and cross-examination. The presiding officer may limit questioning in a manner consistent with law;
	e. 	When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.
661—10.321(17A) Evidence.
	10.321(1) The presiding officer shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.
	10.321(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.
	10.321(3) Evidence in the proceeding shall be confined to the issues as to which the parties received notice prior to the hearing unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.
	10.321(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties.
All exhibits admitted into evidence shall be appropriately marked and be made part of the record.
	10.321(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.
	10.321(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.
661—10.322(17A) Default.
	10.322(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.
	10.322(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested the contested case proceeding and has failed to file a required pleading or has failed to appear after proper service.
	10.322(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within 15 days, or other period of time specified by statute or rule, after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 10.327(17A). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.
	10.322(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.
	10.322(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days, or other time specified by the presiding officer, to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.
	10.322(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 236.
	10.322(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 10.325(17A).
	10.322(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer shall issue another notice of hearing and the contested case shall proceed accordingly.
	10.322(9) A default decision may award any relief consistent with the request for relief made in the petition and embraced in its issues but, unless the defaulting party has appeared, it cannot exceed the relief demanded.
	10.322(10) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 10.329(17A).
661—10.323(17A) Ex parte communication.
	10.323(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the notice of hearing, there shall be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. This does not prohibit persons jointly assigned such tasks from communicating with each other. Nothing in this provision is intended to preclude the presiding officer from communicating with members of the agency or seeking the advice or help of persons other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 10.309(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.
	10.323(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending.
	10.323(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.
	10.323(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications shall be provided in compliance with rule 10.312(17A) and may be supplemented by telephone, facsimile, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.
	10.323(5) Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.
	10.323(6) The commissioner of public safety or other persons may be present in deliberations or otherwise advise the presiding officer without notice or opportunity for parties to participate as long as they are not disqualified from participating in the making of a proposed or final decision under any provision of law and they comply with subrule 10.323(1).
	10.323(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible, and shall notify other parties when seeking to continue hearings or other deadlines pursuant to rule 10.317(17A).
	10.323(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified. If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order or disclosed, as determined by the presiding officer. If the presiding officer determines that disqualification is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.
	10.323(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.
	10.323(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the agency. Violation of ex parte communication prohibitions by department personnel shall be reported to the Internal Affairs Bureau, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, for possible sanctions including censure, suspension, dismissal, or other disciplinary action.
661—10.324(17A) Recording costs. Upon request, the department shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.
Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means shall bear the cost of that recordation, unless otherwise provided by law.
661—10.325(17A) Interlocutory appeals. Upon written request of a party or on the commissioner’s own motion, the commissioner of public safety may review an interlocutory order of the presiding officer. In determining whether to do so, the commissioner shall weigh the extent to which its granting the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by the agency at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of hearing, whichever is first.
661—10.326(17A) Final decision.
	10.326(1) When commissioner of public safety presides over the reception of evidence at the hearing, the commissioner’s decision is a final decision.
	10.326(2) When the commissioner does not preside at the reception of evidence, the presiding officer shall make a proposed decision. The proposed decision becomes the final decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the department within the time provided in rule 10.327(17A).
661—10.327(17A) Appeals and review.
	10.327(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the commissioner of public safety within 30 days after issuance of the proposed decision.
	10.327(2) Review. The commissioner may initiate review of a proposed decision on the commissioner’s own motion at any time within 30 days following the issuance of such a decision.
	10.327(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify:
	a. 	The parties initiating the appeal;
	b. 	The proposed decision or order appealed from;
	c. 	The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;
	d. 	The relief sought;
	e. 	The grounds for relief.
	10.327(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal or, by a nonappealing party, within 14 days of service of the notice of appeal. The commissioner may remand a case to the presiding officer for further hearing or may preside at the taking of additional evidence.
	10.327(5) Scheduling. The department shall issue a schedule for consideration of the appeal.
	10.327(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 20 days thereafter, any party may file a responsive brief. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall be filed with the briefs.
The commissioner may resolve the appeal on the briefs or provide an opportunity for oral argument. The commissioner may shorten or extend the briefing period as appropriate.
661—10.328(17A) Applications for rehearing.
	10.328(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.
	10.328(2) Content of application.
	a. 	The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the agency decision on the existing record and whether, on the basis of the grounds enumerated in subrule 10.327(4), the applicant requests an opportunity to submit additional evidence.
	b. 	Substantially state in separate numbered paragraphs the following:
	(1)	Clear and concise statements of the reasons for requesting a rehearing and each and every error which the party alleges to have been committed during the contested case proceedings;
	(2)	Clear and concise statements of all relevant facts upon which the party relies;
	(3)	Refer to any particular statute or statutes and any rule or rules involved;
	(4)	The signature of the party or that of the representative.
	10.328(3) Time of filing. The application shall be filed with the Administrative Services Division, Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, within 20 days after issuance of the final decision.
	10.328(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein. If the application does not contain a certificate of service, the department shall serve copies on all parties.
	10.328(5) Disposition. Any application for a rehearing shall be deemed denied unless the agency grants the application within 20 days after its filing.
661—10.329(17A) Stays of agency actions.
	10.329(1) When available.
	a. 	Any party to a contested case proceeding may petition the department for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the agency. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The commissioner may rule on the stay or authorize the presiding officer to do so.
	b. 	Any party to a contested case proceeding may petition the department for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy.
	10.329(2) When granted. In determining whether to grant a stay, the presiding officer or commissioner shall consider the factors listed in 1998 Iowa Acts, chapter 1202, section 23(5c).
	10.329(3) Vacation. A stay may be vacated by the issuing authority upon application of the department or any other party.
661—10.330(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.
661—10.331(17A) Emergency adjudicative proceedings.
	10.331(1) Necessary emergency action. To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare and, consistent with the Constitution and other provisions of law, the department may issue a written order in compliance with 1998 Iowa Acts, chapter 1202, section 21, to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the agency by emergency adjudicative order. Before issuing an emergency adjudicative order the agency shall consider factors including, but not limited to, the following:
	a. 	Whether there has been a sufficient factual investigation to ensure that the department is proceeding on the basis of reliable information;
	b. 	Whether the specific circumstances which pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing;
	c. 	Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare;
	d. 	Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and
	e. 	Whether the specific action contemplated by the department is necessary to avoid the immediate danger.
	10.331(2) Issuance of order.
	a. 	An emergency adjudicative order shall contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger in the department’s decision to take immediate action.
	b. 	The written emergency adjudicative order shall be immediately delivered to persons who are required to comply with the order by utilizing one or more of the following procedures:
	(1)	Personal delivery;
	(2)	Certified mail, return receipt requested, to the last address on file with the department;
	(3)	Certified mail to the last address on file with the department;
	(4)	First-class mail to the last address on file with the department; or
	(5)	Fax. Fax may be used as the sole method of delivery if the person required to comply with the order has filed a written request that department orders be sent by fax and has provided a fax number for that purpose.
	c. 	To the degree practicable, the department shall select the procedure for providing written notice that best ensures prompt, reliable delivery.
	10.331(3) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order issues, the department shall make reasonable immediate efforts to contact by telephone the persons who are required to comply with the order.
	10.331(4) Completion of proceedings. After the issuance of an emergency adjudicative order, the department shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.
Issuance of a written emergency adjudicative order shall include notification of the date on which agency proceedings are scheduled for completion. After issuance of an emergency adjudicative order, continuance of further agency proceedings to a later date will be granted only in compelling circumstances upon application in writing.
661—10.332(17A) Burden of proof. Unless otherwise provided by law, the burden of proof in all contested case proceedings in which the department is a party shall be on the petitioner.
These rules are intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202.
[Filed June 30, 1975]
[Filed 6/7/79, Notice 5/2/79—published 6/27/79, effective 8/2/79]
[Filed 4/1/88, Notice 9/23/87—published 4/20/88, effective 5/25/88]
[Filed 4/30/99, Notice 3/24/99—published 5/19/99, effective 7/1/99]
[Filed 10/5/01, Notice 5/30/01—published 10/31/01, effective 1/1/02]