Proposing rulemaking related to complaints and providing an opportunity for public comment
The Civil Rights Commission hereby proposes to rescind Chapter 3, “Complaint Process,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Executive Order 10.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 216.Purpose and Summary The purpose of proposed Chapter 3 is to implement the Iowa Civil Rights Act by providing parameters and expectations regarding the complaint process for discrimination complaints.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any, pursuant to 161—Chapter 15.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Commission no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Jacob Bennington Iowa Civil Rights Commission 6200 Park Avenue, Suite 100 Des Moines, Iowa 50321 Phone: 515.281.4482 Email: jacob.bennington@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 10 a.m. 6200 Park Avenue, Suite 100 Des Moines, Iowa February 16, 2024 10 a.m. 6200 Park Avenue, Suite 100 Des Moines, Iowa Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Commission and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 161—Chapter 3 and adopt the following new chapter in lieu thereof: CHAPTER 3COMPLAINT PROCESS161—3.1(216) Initiation of complaint. 3.1(1) Contents of complaint. Each complaint should contain the following: a. The full name, address, and phone number of the person making the charge; b. The full name and address of each respondent; c. A clear and concise statement of the facts constituting each alleged discriminatory practice, including pertinent dates, where known; d. Where employment discrimination is alleged, the approximate number of respondent’s employees. 3.1(2) Technical defects in complaint. A complaint is sufficient when it includes a written statement that identifies the parties and generally describes the alleged discriminatory actions or practices. Complaints may be amended to cure technical defects or omissions including verification. Such amendments will relate back to the date the complaint was filed.161—3.2(216) Timely filing of the complaint. 3.2(1) All alleged continuous violations that constitute a pattern or practice are timely if the most recent act occurred within 300 days of filing the complaint. 3.2(2) The 300-day filing period is subject to waiver, estoppel, and equitable tolling. Equitable tolling depends upon the facts and circumstances of the case and suspends the running of the filing period for as long as the grounds for tolling exist. 161—3.3(216) Jurisdictional review. Upon receipt of a submitted complaint form, the executive director or designee shall review the form to determine whether the commission has jurisdiction. A no jurisdiction determination constitutes a final agency action for purposes of judicial review.161—3.4(216) Amendment process. 3.4(1) Amendment of complaint. a. Complaints or any part thereof may be amended by the complainant or commission prior to the contested case hearing. Complaints may be amended to include additional allegations discovered during investigation. The issues at the contested case hearing shall include facts uncovered during investigation and are not limited to the allegations in the original complaint. b. Amendments alleging additional discriminatory acts or practices that do not relate back to the original complaint will only be permitted if the amended complaint could have been filed as a timely complaint on the date the amended complaint was filed. c. At the contested case hearing, the administrative law judge may amend the complaint at the administrative law judge’s discretion. Where an amendment is made, the administrative law judge may grant the respondent a continuance if needed to prepare to defend the amended charge. 3.4(2) Amendments adding successor respondents. The complainant or the commission may at any time amend a complaint to add an alleged successor as a respondent. If a successor is added after issuance of the notice of hearing, the administrative law judge may grant a continuance to allow the successor to prepare its defense.161—3.5(216) Notice of the complaint. Within 20 days after jurisdiction is established, the commission will serve a copy of the complaint upon the respondent by mail or electronic mail. In the absence of a response from the first named respondent within 90 days, the commission shall serve the complaint on the first named respondent by certified mail within 20 days and inform the complainant by letter of the acknowledgment of the right to withdraw the complaint or to request an administrative release to commence the complainant’s own action in Iowa district court in accordance with Iowa Code section 216.16. 161—3.6(216) Preservation of records. 3.6(1) Duty to preserve. When a complaint has been served on a respondent, the respondent shall preserve all records relevant to the investigation until the complaint is finally adjudicated, including but not limited to: a. Any books, papers, documents, applications, forms, or records of any form that are relevant to the scope of the investigation. b. Records relating to other employees, applicants, or members holding or seeking positions similar to that held or sought by the complainant. c. Records relating to other applicants for the same position or membership as the complainant. 3.6(2) Failure to preserve. At a contested hearing, the administrative law judge may determine that a party or agent of the party destroyed evidence relevant to the investigation. The administrative law judge may determine that the destroyed evidence was adverse to the party or agent who destroyed the evidence. The administrative law judge shall determine whether the destruction was done at a time when the party knew or should have known that the evidence destroyed was relevant to the investigation and whether the explanation for the destruction is unsatisfactory.161—3.7() Reserved.161—3.8() Reserved.161—3.9() Reserved.161—3.10() Reserved.161—3.11() Reserved.161—3.12(216) Mediation. Mediation is available to all parties irrespective of representation by counsel. Mediation may encompass all issues in the case that could be investigated. If the parties agree to seek and obtain a global settlement not limited to a resolution of the civil rights issues, the mediation may be expanded to include these collateral claims.161—3.13() Reserved.161—3.14(216) Document submission process. 3.14(1) Methods of filing. Any document, including a complaint of discrimination, may be filed by any one of the following methods: a. By in-person delivery to the commission office during set office hours. b. By regular or certified mail. c. By fax. For fax transmissions, the sender may be billed a reasonable fee for each page in excess of five pages. d. By electronic mail to the commission-established email address. 3.14(2) Date of filing. The date on which any document is deemed to be filed with the commission is determined according to the following: a. Any document received by in-person delivery will be filed as of the date of in-person delivery. b. Any document received by U.S. mail will be filed as of the mailing date pursuant to subrule 3.14(3). c. Any document received by fax will be filed as of the date shown on the face of the fax. d. Any document received by electronic mail will be filed as of the date received. 3.14(3) Proof of mailing. Proof of mailing includes 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: “The undersigned certifies 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 Iowa Civil Rights Commission, 400 E. 14th Street, Des Moines, Iowa 50319, and to the names and addresses of the persons listed below by depositing a copy thereof (in a United States post office mailbox with correct postage properly affixed or state interoffice mail). (Date) (Signature).” 3.14(4) Conflict among proofs of mailing. The date of mailing is the date shown by the postmark. In the absence of a legible postmark, the date of mailing is the date shown by the postage meter mark. In the absence of both a legible postmark and a legible postage meter mark, the date of mailing is the date shown by the affidavit, certificate, or certification of mailing.161—3.15() Reserved.161—3.16() Reserved.161—3.17() Reserved.161—3.18() Reserved.161—3.19() Reserved.161—3.20() Reserved.161—3.21() Reserved.161—3.22() Reserved.161—3.23() Reserved.161—3.24() Reserved.161—3.25() Reserved.161—3.26(216) Initial investigation of complaint—tier one investigation. 3.26(1) Questionnaire. After receipt of a complaint, the commission may mail to the parties written questionnaires. The complainant and respondent may provide responses in person, by mail, or by electronic mail. 3.26(2) Responses to the questionnaire. a. Questionnaire responses can include written position statements. Questionnaire responses must be accompanied by supportive evidence. Attorney arguments are not considered admissible evidence. Supportive evidence should reflect how the complainant was treated and how individuals similarly situated to the complainant were treated. b. Questionnaire responses are due 30 days from the mailing of the questionnaire. One oral or written request for an extension of 30 days or less will be granted on an informal basis without notice to the nonrequesting party. A party may assume the 30-day extension request is approved, unless otherwise notified. Any further request for extension may be subject to review by the executive director or designee and will be granted upon a showing of extenuating circumstances. 3.26(3) Failure to respond. a. Complainant.A complaint may be administratively closed if a complainant fails to respond to questionnaires. b. Respondent.A complaint may proceed to further investigation if the respondent fails to submit questionnaire responses with supportive evidence. 3.26(4) Suggested procedure in answering questionnaires will be provided in the cover letter of the questionnaires. 3.26(5) The tier one investigation process will determine whether further investigation is needed. If further investigation is not warranted, the complaint will be administratively closed. Further processing is warranted when the submitted information indicates a reasonable possibility of a probable cause determination or the legal issues in the complaint need development. 3.26(6) An administrative closure resulting from the preliminary screening determination is an evaluation of the probable merits of the case. 3.26(7) The commission may issue an investigation information request (IIR) after the issuance of the preliminary case report. 161—3.27() Reserved.161—3.28() Reserved.161—3.29() Reserved.161—3.30() Reserved.161—3.31() Reserved.161—3.32(216) Secondary investigative process—tier two investigation. 3.32(1) After a preliminary screening determination concludes further investigation is warranted, the complaint shall be referred to designated staff for further investigation of the allegations of illegal discrimination, known as a tier two investigation. 3.32(2) Staff shall review any documents submitted in response to an initial information request and any other documentation submitted by the parties prior to the initiation of the tier two investigation. 3.32(3) At the discretion of the investigator, further steps may be taken, including party or witness interviews or the issuance of additional information requests or subpoenas.161—3.33(216) Conclusion of investigation. Following the conclusion of a tier two investigation, staff may issue an investigative analysis (IA). The IA will result in one of the following:- An investigative closure,
- A probable cause or no probable cause recommendation to an administrative law judge, or
- A no jurisdiction determination.
Proposing rulemaking related to discrimination in employment and providing an opportunity for public comment
The Civil Rights Commission hereby proposes to rescind Chapter 8, “Discrimination in Employment,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Executive Order 10.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 216.Purpose and Summary The purpose of proposed Chapter 8 is to implement the Iowa Civil Rights Act by providing parameters and expectations regarding the complaint process for discrimination complaints in employment based on protected bases.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any, pursuant to 161—Chapter 15.Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Commission no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Jacob Bennington Iowa Civil Rights Commission 6200 Park Avenue, Suite 100 Des Moines, Iowa 50321 Phone: 515.281.4482 Email: jacob.bennington@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 10 a.m. 6200 Park Avenue, Suite 100 Des Moines, Iowa February 16, 2024 10 a.m. 6200 Park Avenue, Suite 100 Des Moines, Iowa Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Commission and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 161—Chapter 8 and adopt the following new chapter in lieu thereof: CHAPTER 8DISCRIMINATION IN EMPLOYMENT161—8.1(216) Definitions. "Has a record of such an impairment" means having a history of, or being misclassified as having, a mental or physical impairment that substantially limits a major life activity. "Major life activities" includes but is not limited to caring for oneself, manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. "Physical or mental impairment" includes:- Physiological disorders or conditions, cosmetic disfigurements, or anatomical loss affecting any of the following systems: neurological; musculoskeletal; special sense organs; respiratory and speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic or lymphatic; skin; and endocrine; or
- Mental or psychological disorders such as intellectual disabilities, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
- The perception of having an impairment that substantially limits major life activities; or
- Having an impairment that substantially limits major life activities because of others’ attitudes toward the impairment.
Proposing rulemaking related to students first act—education savings accounts and providing an opportunity for public comment
The State Board of Education hereby proposes to amend Chapter 20, “Students First Act—Education Savings Accounts,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 257.11B as enacted by 2023 Iowa Acts, House File 68.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 257.11B as enacted by 2023 Iowa Acts, House File 68.Purpose and Summary The current definition of “annual income” in subrule 20.1(1) refers to “net income.” The Department of Education has received technical assistance to ensure that the term “net income” will no longer appear in the pertinent provisions of the Iowa Code. The technical correction proposed by this rulemaking addresses this change in a nonsubstantive manner.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Thomas A. Mayes Department of Education Grimes State Office Building, Second Floor 400 East 14th Street Des Moines, Iowa 50319-0146 Phone: 515.281.8661 Email: thomas.mayes@iowa.gov Public Hearing No public hearing is scheduled at this time. As provided in Iowa Code section 17A.4(1)“b,” an oral presentation regarding this rulemaking may be demanded by 25 interested persons, a governmental subdivision, the Administrative Rules Review Committee, an agency, or an association having 25 or more members. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Amend subrule 20.1(1) as follows: 20.1(1) “Annual income” means the same as “net income” as defined in Iowa Code section 422.7 in effect for the year preceding an applicationline 4 of the 2023 IA 1040 (Iowa taxable income). In calculating annual income, the department shall use information from the last year’s state tax form and need not include income of individuals who have no legal obligation to provide support to the student unless said individual is married to the parent or guardian who is responsible for financially supporting the student. If “annual income” cannot be clearly determined through review of the submitted tax return, the department director has authority to request additional information and determine eligibility. The department director may consider income reductions after the filing of the preceding year’s tax return. This subrule applies only for school years beginning July 1, 2023, and July 1, 2024; it will cease to be applicable by operation of law on July 1, 2025.ARC 7205CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to operations and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 1, “Operation of Environmental Protection Commission,” Iowa Administrative Code, and to adopt a new Chapter 1 with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 17A.3 and 455A.6.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapters 17A and 455A.Purpose and Summary Chapter 1 governs the conduct, structure, and business operations of the Commission. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Specifically, the proposed new chapter reduces and consolidates the rules. This is accomplished by rescinding outdated provisions and by removing those redundant to statute, including particular provisions around conflict of interest found in Iowa Code chapter 68B and associated rules. The proposed chapter has also been streamlined as much as possible, stating the conduct, structure, and business operations of the Commission more succinctly and clearly than before.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department of Natural Resources (Department) for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 26, 2024. Comments should be submitted electronically to Kelli Book via email and include “EPC Chapter 1 comments” in the subject of the email. Comments should be directed to: Kelli Book Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Fax: 515.725.8201 Email: kelli.book@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk and be directed to the appropriate hearing location: January 17, 2024 1 to 2 p.m. DNR—Conference Room 5 West Wallace State Office Building Des Moines, Iowa January 24, 2024 9 to 10 a.m. DNR—Conference Room 5 East Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. The hearings will also be available online. A virtual link will be provided to those who make a request to take part in the hearings virtually. The request for the link shall be submitted to Ms. Book prior to the meeting date. Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 1 and adopt the following new chapter in lieu thereof: CHAPTER 1TITLE IGENERALOPERATION OF ENVIRONMENTAL PROTECTION COMMISSION[Prior to 12/3/86, see Water, Air and Waste Management[900] Ch 2]567—1.1(17A,455A) Scope. This chapter governs the conduct of business by the environmental protection commission. Rulemaking proceedings and contested case proceedings are governed by other departmental rules.567—1.2(17A,455A) Meeting location and notification. 1.2(1) Time of meetings. The commission generally meets monthly, but is required to meet at least quarterly. The director, chairperson, or a majority of commissioners may establish meetings. 1.2(2) Notification of meetings. The director will provide public notice of all meeting dates, locations, and agendas. a. Notice of meetings is given by posting the agenda. The agenda lists the time, date, location, and topics to be discussed at the meeting. The agenda may include a specific time for the public to address the commission on any issue related to the duties and responsibilities of the commission, except as otherwise provided in these rules. b. The agenda for each meeting will be posted at the department’s main headquarters and on the department’s website. The agenda will be provided to anyone who files a request with the department. The final agenda will be posted at least 24 hours prior to the meeting, unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible will be given. Any additions to the agenda after posting and distribution will be posted at least 24 hours prior to the meeting, unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible will be given. The commission may adopt additions to the agenda at the meeting only if good cause exists requiring expeditious discussion or action. The reasons and circumstances necessitating agenda additions, or those given less than 24 hours’ notice by posting, shall be stated in the minutes of the meeting. c. Written materials provided to the commission with the agenda may be examined by the public. Copies of the materials may be distributed at the discretion of the director. The director may require a fee to cover the reasonable cost to the department to provide the copies, in accordance with rules of the department.567—1.3(17A,455A) Attendance and participation by the public. 1.3(1) Attendance. All meetings are open to the public. The commission may exclude the public from portions of the meeting in accordance with Iowa Code section 21.5. 1.3(2) Participation. a. Items on agenda.Presentations to the commission may be made at the discretion of the chairperson. b. Items not on agenda.The commission will not act on a matter not on the agenda, except in accordance with paragraph 1.2(2)“b.” Persons who wish to address the commission on a matter not on the agenda should file a request with the director to place that matter on the agenda of the subsequent meeting. c. Meeting decorum.The chairperson may limit participation as necessary for the orderly conduct of agency business. Cameras and recording devices may be used during meetings provided they do not interfere with the orderly conduct of the meeting. The chairperson may order the use of these devices discontinued if they cause interference and may exclude those persons who fail to comply with that order.567—1.4(17A,455A) Quorum and voting requirements. 1.4(1) Quorum. Five or more commissioners present at a meeting constitute a quorum. 1.4(2) Voting. a. Voting requirements if eight or nine commissioners are currently appointed.If eight or nine commissioners are currently appointed to the environmental protection commission by the governor, then the affirmative votes of five or more commissioners shall be required to act on any matter within the jurisdiction of the commission. b. Voting requirements if seven or fewer commissioners are currently appointed.If seven or fewer commissioners are currently appointed to the environmental protection commission by the governor, then the affirmative votes of four or more commissioners shall be required to act on any matter within the jurisdiction of the commission. c. Voting requirements to go into closed session.Notwithstanding paragraph 1.4(2)“a” or 1.4(2)“b,” a vote to go into closed session shall require the concurrence of six or more members of the commission or the concurrence of all members present if fewer than six members are present.567—1.5(17A,455A) Conduct of meeting. 1.5(1) General. Meetings will be conducted in accordance with Robert’s Rules of Order unless otherwise provided in these rules. Voting will be by voice or by roll call. Voting will be by voice unless a voice vote is inconclusive, a member of the commission requests a roll call, or the vote is on a motion to close a portion of a meeting. The chairperson will announce the result of the vote. 1.5(2) Voice votes. All commission members present should respond when a voice vote is taken. a. All members present will be recorded as voting aye on any motion when there are no nay votes or abstentions heard. b. Any member who abstains will state at the time of the vote the reason for abstaining. The abstention and the reason for it will be recorded in the minutes. 1.5(3) Provision of information. The chairperson may recognize any agency staff member for the provision of information relative to an agenda item.567—1.6(17A,455A) Minutes, transcripts, and recordings of meetings. 1.6(1) Audio recordings. The director may record each meeting and shall record each closed session. 1.6(2) Minutes. The director will keep minutes of each meeting. Minutes will be reviewed and approved by the commission. 567—1.7(17A,455A) Officers and duties. 1.7(1) Officers. The officers of the commission are the chairperson, the vice chairperson, and the secretary. 1.7(2) Duties. The chairperson will preside at meetings and will exercise the powers conferred upon the chairperson. The vice chairperson will perform the duties of the chairperson when the chairperson is absent or when directed by the chairperson. The secretary will make recommendations to the commission on approval or revision of the minutes and act as parliamentarian. 1.7(3) Elections. Officers will be elected annually during May. 1.7(4) Succession. a. If the chairperson does not serve out the elected term, the vice chairperson will succeed the chairperson for the remainder of the term. A special election will be held to elect a new vice chairperson to serve the remainder of the term. b. If the vice chairperson does not serve out the elected term, a special election will be held to elect a new vice chairperson to serve the remainder of the term. c. If the secretary does not serve out the elected term, a special election will be held to elect a new secretary to serve the remainder of the term.567—1.8(17A,455A) Sales and leases of goods and services. 1.8(1) Sales and leases. The general provisions for the sales and leases of goods and services by commission members is governed by rule 351—6.11(68B). 1.8(2) Consent by rule. The commission concludes that sales or leases of goods or services described in this paragraph do not, as a class, constitute the sale or lease of a good or service which affects an official’s functions. Application and department approval are not required for these sales or leases unless there are unique facts surrounding a particular sale or lease which would cause that sale or lease to affect the official’s duties or functions, would give the buyer an advantage in its dealings with the department, or would otherwise present a conflict of interest.Sales or leases for which consent is granted by rule are: a. Nonrecurring sale or lease of goods and services if the official is not engaged for profit in the business of selling or leasing those goods or services. b. Sale or lease of farm products at market prices to a buyer ordinarily engaged in the business of purchasing farm products. c. Sale or lease of goods to general public at an established retail or consignment shop. d. Sale or lease of legal, mechanical, or other services at market or customary prices. However, if an official’s client or customer has a matter for decision before the commission, the official shall not participate in the discussion and voting on that matter unless consent has been obtained. e. Sale or lease of goods at wholesale prices to a buyer ordinarily engaged in the business of purchasing wholesale goods for retail sale. f. Sale or lease of creative works of art, including but not limited to sculpture and literary products, at market, auction, or negotiated prices. However, if an official’s customer has a matter for decision before the commission directly or indirectly involving that good, the official shall not participate in the discussion and voting on that matter unless consent has been obtained. g. Sale or lease of goods to general public at market or franchiser-established prices. However, if an official’s customer has a matter for decision before the commission, the official shall not participate in the discussion and voting on that matter unless consent has been obtained. These rules are intended to implement Iowa Code sections 17A.3(1)“a” and 455A.6.ARC 7206CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to inspections, compliance, self-audits, and enforcement and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 3, “Submission of Information and Complaints—Investigations,” and Chapter 10, “Administrative Penalties”; to adopt a new Chapter 10, “Complaints, Audits, Enforcement Options and Administrative Penalties”; and to rescind Chapter 12, “Environmental Self-Audits,” and Chapter 17, “Compliance and Enforcement Procedures,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 17A.3, 455B.105(3), 455B.109 and 455K.12.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes this Notice of Intended Action to rescind Chapters 3, 12, and 17 and to rescind and replace Chapter 10. Chapters 3, 12, and 17 govern environmental inspections, compliance, self-audits, and enforcement. Chapter 10 contains rules for assessing administrative penalties in enforcement actions. All of the chapters are proposed to be edited for length and clarity and consolidated into new Chapter 10. In more detail, the proposed new Chapter 10 will: (1) provide guidelines for submitting and responding to complaints; (2) provide the procedures for self-disclosures of environmental violations, which may result in immunity from administrative penalties; (3) identify the Department of Natural Resources’ (Department’s) compliance and enforcement framework; and (4) provide the policies and procedures for the assessment of administrative penalties. Consistent with Executive Order 10 and the five-year review of rules in Iowa Code section 17A.7(2), all of these chapters are edited for length and clarity. Additionally, several provisions in the merged chapters are repetitive to underlying statute and are proposed to be removed.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 26, 2024. Comments should be submitted electronically to Kelli Book via email and include “Chapter 10 comments” in the subject of the email. Comments should be directed to: Kelli Book Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Fax: 515.725.8201 Email: kelli.book@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival at the January 16, 2024, hearing, attendees should proceed to the fourth floor to check in at the Department reception desk and be directed to the appropriate hearing location: January 16, 2024 1:30 to 3:30 p.m. DNR—Conference Room 5 East Wallace State Office Building Des Moines, Iowa January 25, 2024 10 to 11:30 a.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. The January 25, 2024, hearing will be a virtual meeting only. A link for the virtual meeting will be provided to those who make a request to take part in the virtual hearing. The request for the link shall be submitted to Ms. Book via email by 8 a.m. on January 25, 2024. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 3. ITEM 2. Rescind 567—Chapter 10 and adopt the following new chapter in lieu thereof: CHAPTER 10COMPLAINTS, AUDITS, ENFORCEMENT OPTIONS AND ADMINISTRATIVE PENALTIESDIVISION I COMPLAINTS AND INVESTIGATIONS567—10.1(455B) Complaints and investigations. The process to submit a complaint and to investigate a complaint is as follows: 10.1(1) Submission requirements and investigations. Complaints concerning alleged violations of departmental statutes or rules should be submitted to the appropriate department office, and the nature of the complaint must be summarized in a concise manner. Complaints will be investigated by the department if it appears that an investigation is needed to ensure compliance with applicable departmental statutes or rules. 10.1(2) Known source of complaints. In the case of a known complainant, the appropriate department office shall notify the complainant of the investigation results or of its decision not to investigate the complaint. 10.1(3) Anonymous complaints. Complaints may be submitted by anonymous sources and will be handled as discretionary investigations. In these cases, the department will not be able to notify the complainants of the results of the investigations. This rule is intended to implement Iowa Code sections 455B.105(3) and 17A.3(1).567—10.2() Reserved.567—10.3() Reserved.567—10.4() Reserved.567—10.5() Reserved.567—10.6() Reserved.567—10.7() Reserved.567—10.8() Reserved.567—10.9() Reserved.DIVISION IIENVIRONMENTAL AUDITS567—10.10(455K) Environmental audits. This part sets forth rules governing voluntary disclosure of environmental noncompliance discovered as a result of an environmental self-audit conducted by or on behalf of a facility owner or operator under the provisions of Iowa Code chapter 455K.567—10.11(455K) Notice of audit. 10.11(1) If a notice of audit is provided to the department, it must be submitted in writing and include the following information: a. The name and location (address and city) of the facility to be audited; b. The description of the facility or portion of the facility, activity, operation or management system to be audited, including applicable department permits or registration numbers; c. The anticipated audit initiation date (day, month, and year); d. The general scope of audit, with sufficient detail to determine if discovered violations would be included. If the scope of the audit changes before it is completed, an amended notice shall be submitted promptly; e. The names of the persons conducting the audit; and f. The anticipated audit completion date, not to exceed six calendar months. 10.11(2) The department will provide written acknowledgment of receipt for notices of audit, which will include an assigned identification number.567—10.12(455K) Request for extension. If notice of audit is given to the department, the audit must be completed within a reasonable time, not to exceed six calendar months from the date the notice of audit is received by the department unless a written request for extension has been filed with and granted by the department. 10.12(1) A request for extension must be filed in writing with the department at least 30 calendar days prior to expiration of the initial six-month period and provide sufficient information for the department to determine whether reasonable grounds exist to grant an extension. 10.12(2) The department will provide written determination either granting or denying a request for extension within 15 calendar days of receipt.567—10.13(455K) Disclosure of violation. An owner or operator wishing to take advantage of the immunity provisions of Iowa Code chapter 455K must make a prompt voluntary disclosure to the department regarding an environmental violation which is discovered through an environmental audit. 10.13(1) A disclosure of violation must be sent to the department in writing and include the following information: a. Reference to the date of the relevant notice of audit and assigned identification number; b. Time of initiation and completion of the audit, if applicable; c. The names of the person or persons conducting the audit; d. Affirmative assertion that a violation has been discovered; e. Description of the violation and reason for believing a violation exists; f. Date of discovery of the violation and interim measures, if applicable, to abate the violation; g. Duration of the violation if it can be determined; and h. The status and schedule of proposed final corrective measures, if applicable. 10.13(2) The department will provide written acknowledgement of receipt of a disclosure of violation, which will include either concurrence or rejection of the proposed final corrective measures and schedule.567—10.14(455K) Public information. A notice of audit, request for extension, and disclosure of violation documents are considered public information. Copies of the environmental audit report should not be submitted to the department. These rules are intended to implement Iowa Code chapter 455K.567—10.15() Reserved.567—10.16() Reserved.567—10.17() Reserved.567—10.18() Reserved.567—10.19() Reserved.DIVISION III ENFORCEMENT OPTIONS567—10.20(455B) Enforcement options. In addition to administrative and civil actions for monetary penalty, the following enforcement options are available to the department to obtain information and seek compliance. 10.20(1) Informal meeting. Department staff may attempt to resolve a potential violation or obtain additional information with an informal meeting. The discussion will usually focus on corrective actions to be taken, and in most instances, only department staff and the facility representative will be present. 10.20(2) Letter of inquiry (LOI). The purpose of an LOI is to allow the regulated entity the opportunity to provide information that would be helpful for a determination of whether a violation has occurred. 10.20(3) Letter of noncompliance (LNC). An LNC may be used when no environmental harm or threat to human health or safety has occurred or is imminent, the regulated entity is not a repeat offender, the corrective action is not deemed an emergency, or the violation is considered insignificant. The letter is intended to provide the regulated entity with an opportunity to correct the identified deficiencies prior to further enforcement activity. In an LNC, the department may suggest remedial measures, set a date for returning to compliance, or request a response from the regulated entity within a specific time period as to how the identified problems will be resolved. 10.20(4) Notice of violation (NOV). When the other compliance and enforcement activities described in this division are not appropriate for a violation, or when the regulated entity has not returned to compliance, the department may issue an NOV. An NOV may be used when environmental harm or a threat to human health or safety has occurred or is imminent, a regulated entity is a repeat offender, a corrective action is deemed an emergency, or a violation is considered significant. An NOV identifies the nature of the violation and any required corrective action.567—10.21(455B) Options to respond. Upon receiving an LOI, LNC, or NOV, a regulated entity has the option to respond to the department, even if a response is not specifically requested. In responding to an LNC or NOV, the regulated entity should clearly outline any disagreements with the LNC or NOV, provide any pertinent additional information, describe any current or planned corrective action, and provide a schedule for returning to compliance. The department will review written information submitted in response to the compliance and enforcement procedures described in this part and will include this information in the file of record. Nothing in this chapter adds to or takes away from the appeal rights provided in Iowa Code chapter 17A.567—10.22(455B) Department discretion. At the department’s sole discretion, the department may follow the compliance and enforcement procedures described in this part, commence with an LNC or NOV, or forego these options and commence with an administrative action, or the department may request referral to the attorney general. These rules are intended to implement Iowa Code sections 455B.105(3) and 17A.3(1).567—10.23() Reserved.567—10.24() Reserved.567—10.25() Reserved.567—10.26() Reserved.567—10.27() Reserved.567—10.28() Reserved.567—10.29() Reserved.DIVISION IVADMINISTRATIVE PENALTIES567—10.30(455B) Criteria for screening and assessing administrative penalties. All formal enforcement actions are processed through the environmental protection division administrator of the department. The administrator shall screen each case to determine the most equitable and efficient means of redressing and abating a violation. In screening a violation to determine which cases may be appropriate for administrative assessment of penalties or for purposes of assessing administrative penalties, the department will consider among other relevant factors the following: 10.30(1) Economic benefit. Costs saved or likely to be saved by a violator’s noncompliance. Where a violator realizes an economic benefit through the violation or by not taking timely compliance or corrective measures, the department shall take enforcement action which includes penalties to offset the economic benefit. Reasonable estimates of economic benefit should be made where clear data are not available. 10.30(2) Gravity of the violation. Factors include but are not limited to: a. The actual or threatened harm to the environment or public health and safety. b. Involvement of toxic or hazardous substances or potential long-term effects of the violation. c. The degree to which ambient or source-specific standards are exceeded, where pertinent. d. Federal program priorities, size of facility, or other pertinent factors. e. Whether the violation is repeated or whether it violates an administrative or court order. f. Whether the type of violation threatens the integrity of a regulatory program. g. Expenses or efforts by the government in detecting, documenting, or responding to a violation. 10.30(3) Culpability. Factors include but are not limited to: a. The degree of intent or negligence. The standard of care required by the laws of the state of Iowa will be considered. b. Whether the case involves false reporting of required information, or tampering with monitoring devices. c. Whether the violator has taken remedial measures or mitigated the harm caused by the violation. 10.30(4) Deterrent. Whether the assessment of administrative penalties appears to be the only or most appropriate way to deter future violations, either by the person involved or by others similarly situated. 10.30(5) Other relevant factors. The department will consider other relevant factors which arise from the circumstances of each case. 10.30(6) Department discretion. This screening procedure shall not limit the discretion of the department to refer any case to the attorney general for legal action, nor does this procedure require the commission or the director to pursue an administrative remedy before seeking a remedy in the courts of this state.567—10.31(455B) Assessment of administrative penalties. Except for operator discipline, administrative penalties shall be assessed through issuance of an administrative order or an administrative consent order of the director which recites the facts and the legal requirements which have been violated, and a general rationale for the prescribed penalty. 10.31(1) Administrative order or administrative consent order. An administrative order or administrative consent order may include cumulative penalties up to $10,000 for multiple violations and may be combined with any other order authorized by statute for mandatory or prohibitory injunctive conditions. The administrative order is subject to contested case and appellate review. Operator discipline is governed by 567—Chapter 81. 10.31(2) Determination of amount. The amount of penalty for each day of violation shall be determined from evaluation of the factors outlined in rule 567—10.30(455B). The actual or reasonably estimated economic benefit shall always be assessed. These rules are intended to implement Iowa Code section 455B.109. ITEM 3. Rescind and reserve 567—Chapter 12. ITEM 4. Rescind and reserve 567—Chapter 17.ARC 7207CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to delegation of construction permitting authority and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 9, “Delegation of Construction Permitting Authority,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455B.105 and 455B.173.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary This proposed rulemaking will rescind Chapter 9. Importantly, the delegated authority program of Iowa Code section 455.183 will remain in full force and effect through the direct implementation of the statute. The intended benefit of the chapter was to provide a framework for the water supply and wastewater extension delegated authority program in Iowa Code section 455B.183. However, the chapter is unnecessary for the implementation of the program due to the self-enacting nature of the Iowa Code provisions and the existence of statewide engineering design standards for drinking water and wastewater. The Department of Natural Resources (Department) intends to provide guidance to local permitting authorities to help the authorities’ proper implementation of the Iowa Code.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this proposed rulemaking must be received by the Department no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Adam Schnieders Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: adam.schnieders@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing must contact Adam Schnieders via email. A virtual meeting link and conference call number will be provided prior to the hearing. Persons who wish to make comments at the public hearing must submit a request to Mr. Schnieders prior to the hearing to facilitate an orderly hearing. January 18, 2024 11 a.m. to 12 noonVia video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 9.ARC 7222CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to tax certification of pollution control or recycling property and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 11, “Tax Certification of Pollution Control or Recycling Property,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 427.1(19)“d.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 427.1(19).Purpose and Summary Chapter 11 clarifies the process and eligibility criteria for properties to obtain a pollution control or recycling certification from the Department of Natural Resources (Department). This certification allows the owner to apply for a property tax exemption through their local county assessor’s office. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), Chapter 11 was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 567—Chapter 10.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 17, 2024. Comments should be directed to: Amie Davidson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: amie.davidson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via video/conference call as follows. Persons who wish to attend a conference call should contact Amie Davidson via email. A conference call number will be provided prior to the hearings. Persons who wish to make oral comments at a conference call public hearing must submit a request to Ms. Davidson prior to the hearing to facilitate an orderly hearing. January 16, 2024 1 p.m. Via video/conference call January 17, 2024 11 a.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 11 and adopt the following new chapter in lieu thereof: CHAPTER 11TAX CERTIFICATION OF POLLUTION CONTROL OR RECYCLING PROPERTY[Prior Rules on the subject, DEQ Chs 12 and 23][Prior to 12/3/86, Water, Air and Waste Management[900]][Prior to 10/19/88, Environmental Protection Commission 567—Ch 8]567—11.1(427) Form. All requests for the department to certify air or water pollution control recycling property pursuant to Iowa Code section 427.1(19) shall be submitted on a form prescribed by the department. Through these forms, the department may request any information necessary to make a determination under 567—11.5(427).567—11.2(427) Time of submission. A request may be submitted at any time. Taxpayers are reminded that failure to dispatch a request sufficiently in advance of the February 1 deadline for filing with the assessing authority may cause the applicant to fail to qualify for the first possible annual exemption.567—11.3(427) Notice. The department shall notify the taxpayer of the decision within ten days of receipt of a complete request. The notice shall include either the certificate if the decision is to certify the property as requested, or a concise statement of reasons for denial if the decision is to deny the request or to certify a lesser portion of the property than requested. The determination of the department to deny or grant only a portion of the request may be appealed to the commission pursuant to 567—Chapter 7.567—11.4(427) Issuance. Upon the decision of the department or the commission on appeal to certify all or any portion of the property for which a request has been made, two copies of the certificate will be signed by the director or the director’s designee and mailed to the taxpayer. The certificate shall describe the property certified and state the date on which the department certified the property.567—11.5(427) Criteria for determining eligibility. 11.5(1) General. Property that has been installed and is used primarily to meet an effluent standard, a water quality standard, or an emission standard or to control hydrocarbons, fugitive dust, odors or other air contaminants in a reasonably adequate manner shall be considered to be used primarily to control or abate pollution of the water or air of the state. Property that has been installed to meet a standard more stringent than an emission or water quality standard shall be considered to be used primarily to enhance the quality of the water or air of the state. Personal property or improvements to real property as defined by Iowa Code section 427A.1 or any portion of the property used primarily in the manufacturing process and resulting directly in the conversion of waste plastic, wastepaper products, waste paperboard, waste glass, or waste wood into new raw materials or products composed primarily of recycled material shall be considered recycling property. Each request will be considered in the context of its particular circumstances.In the event that such property also serves other purposes or uses of productive benefit to the owner of the property, only such portion of the assessed valuation thereof as may reasonably be calculated to be necessary for and devoted to the control or abatement of pollution, to the enhancement of the quality of the air or water of this state, or for recycling shall be exempt from taxation. 11.5(2) Denial. Property may be denied certification if it is not being operated in compliance with the rules of the department so as to effectively control or abate pollution or enhance the quality of the air or water of the state, or recycle property into new raw materials or products composed primarily of recycled material. Property that was constructed or installed without permits required from the department will be denied certification unless and until such time as the property has received after-the-fact approval from the department. These rules are intended to implement Iowa Code section 427.1(19).ARC 7208CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to environmental covenants and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 14, “Environmental Covenants,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455A.6.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary This proposed rulemaking will rescind and reserve Chapter 14. The Uniform Environmental Covenants Act found in Iowa Code chapter 455I is self-enacting. Therefore, rules are neither necessary nor expressly authorized. Rescinding this chapter will not impact the Department of Natural Resources’ (Department’s) ability to enter into effective environmental covenants with interested landowners. Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 17, 2024. Comments should be directed to: Keith Wilken Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: keith.wilken@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held by conference call as follows. Persons who wish to attend the conference call should contact Keith Wilken via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at the conference call public hearing must submit a request to Mr. Wilken prior to the hearing to facilitate an orderly hearing. January 17, 2024 11 a.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 14.ARC 7225CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to cross-media electronic reporting and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 15, “Cross-Media Electronic Reporting,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code chapter 554D and section 455B.105.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 15. The proposed Chapter 15 will include an updated and streamlined rule for the implementation of the federal Cross-Media Electronic Reporting Rule (CROMERR). The CROMERR requirements are established in 40 Code of Federal Regulations (CFR) Part 3. The requirements apply to persons and signatories who submit electronic reports or other documents to the Department of Natural Resources (Department) to satisfy requirements of 40 CFR for authorized environmental programs.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Jim McGraw Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: jim.mcgraw@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Jim McGraw via email or by phone at 515.689.1439. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at either of the public hearings must submit a request to Mr. McGraw prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearings and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 15 and adopt the following new chapter in lieu thereof: CHAPTER 15CROSS-MEDIA ELECTRONIC REPORTING567—15.1(455B,554D) Purpose. This rule implements 40 CFR Part 3, the federal cross-media electronic reporting rule (CROMERR), as amended through November 17, 2009. 15.1(1) Applicability. The provisions of 40 CFR Sections 3.1 and 3.2 are adopted by reference. 15.1(2) Definitions. a. For the purpose of this chapter, the following definitions in 40 CFR Section 3.3 are adopted by reference: “Authorized program,” “Copy of record,” “Electronic document,” “Electronic document receiving system,” “Electronic signature,” “Electronic signature agreement,” “Electronic signature device,” “Federal program,” “Handwritten signature,” and “Valid electronic signature.” b. The following definition applies to this chapter: "Authorized signatory" means an individual authorized to sign documents under one or more authorized programs, in accordance with the specific requirements of each authorized program, and who signs a document submitted to one of the department’s electronic document receiving systems pursuant to an electronic signature agreement. 15.1(3) Use of electronic document receiving systems. a. Website announcement.When the director has announced on the department’s website that electronic documents are being accepted in lieu of paper to satisfy requirements under one or more authorized programs, individuals who submit such electronic documents must use the CROMERR-compliant electronic document receiving system or systems as specified by the department. b. Submittals requiring signature.Any electronic document submitted to the department must bear a valid electronic signature of an authorized signatory, if that signatory would be required under an authorized program to sign the paper document for which the electronic document substitutes. c. Submittals not requiring signature.If no signature is required under an authorized program, individuals may submit electronic documents in lieu of paper to satisfy requirements of such programs through one or more of the department’s CROMERR-compliant electronic document receiving systems without an electronic signature or an electronic signature agreement. 15.1(4) Electronic signature agreement (ESA). a. Agreement to be executed.In order to sign and submit electronic documents in one of the departments’ CROMERR-compliant electronic document receiving systems, a signatory must execute an ESA specific to that electronic document receiving system. b. Form and content of agreement.All ESAs shall include the information and follow the format defined by the department in the specific CROMERR-compliant electronic document receiving system. c. Verification.The identity and signature authority of each individual submitting an ESA shall be verified by the state of Iowa or by a third-party signature verification service. After verification, the department shall notify an individual electronically that electronic documents may be signed and submitted in a specific CROMERR-compliant electronic document receiving system. d. Certification.Each document submission authorized by an electronic signature shall contain the following statement: “I certify under penalty of law that I have had the opportunity to review, in human-readable format, the content of the electronic document to which I here certify and attest, and I further certify under penalty of law that, based on the information and belief formed after reasonable inquiry, the statements and information contained in this submission are true, accurate, and complete. I understand that making any false statement, representation, or certification of this submission may result in criminal penalties.” 15.1(5) Valid electronic signature. a. Signatory.An authorized signatory may not allow another individual to use the electronic signature device unique to the authorized signatory’s electronic signature. b. Unique signature device.When the electronic signature device is used to create an individual’s electronic signature, the code or mechanism must be unique to that individual at the time the signature is created and the individual must be uniquely entitled to use it. The signatory shall: (1) Protect the electronic signature device from compromise; and (2) Report to the department, within one business day of discovery, any evidence that the security of the device or the signatory’s electronic signature has been compromised. 15.1(6) Effect of electronic signature and enforcement. The provisions of 40 CFR Section 3.4 are adopted by reference. This chapter is intended to implement Iowa Code section 455B.105 and chapter 554D.ARC 7221CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to revocation, suspension, and nonrenewal of license for failure to pay state liabilities and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 16, “Revocation, Suspension, and Nonrenewal of License for Failure to Pay State Liabilities,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455A.6.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and reserve Chapter 16. This chapter is unnecessary. It is duplicative of underlying state law (Iowa Code section 272D.8(2)) and of other related rules promulgated by the Department of Natural Resources (Department) (561—Chapter 15). Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Tamara McIntosh Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: tamara.mcintosh@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk and be directed to the appropriate hearing location: January 16, 2024 1 to 2 p.m. Conference Room 4 East Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 16.ARC 7210CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to scope of title and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 20, “Scope of Title—Definitions,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133(3).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 20. This chapter sets forth the scope of title and the definitions applicable to air quality rules in Chapters 20 through 35. After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that the scope of title is no longer needed because the information is generally covered in Chapters 1 through 19. Further, the Department concluded that the relevant definitions would be more appropriately placed in the subject matter chapters, specifically Chapters 21, 22, and 23. Notices of Intended Action to rescind and adopt new Chapters 21 (ARC 7209C, IAB 12/27/23), 22 (ARC 7228C, IAB 12/27/23), and 23 (ARC 7215C, IAB 12/27/23) that include the appropriate definitions are proposed concurrently with this rulemaking. Rescission of Chapter 20 is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 20.ARC 7209CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to emissions and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 21, “Compliance,” and to adopt a new Chapter 21, “Compliance, Excess Emissions, and Measurement of Emissions,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 21. The proposed Chapter 21 will include the revised provisions for air quality compliance, excess emissions, and measurement of emissions, which are currently set forth in Chapter 21, “Compliance,” Chapter 24, “Excess Emission,” Chapter 25 “Measurement of Emissions,” Chapter 26, “Prevention of Air Pollution Emergency Episodes,” and Chapter 29, “Qualification in Visual Determination of the Opacity of Emissions.” After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that the rules in Chapters 21, 24, 25, 26, and 29 should be updated and placed in one chapter, specifically the new Chapter 21. Notices of Intended Action to rescind Chapters 25 (ARC 7218C, IAB 12/27/23), 26 (ARC 7224C, IAB 12/27/23), and 29 (ARC 7216C, IAB 12/27/23) are proposed concurrently with this rulemaking. An additional Notice is proposed concurrently to rescind Chapter 24 and adopt a new Chapter 24 (ARC 7213C, IAB 12/27/23) consisting of the provisions for air operating permits. New Chapter 21 will help to protect air quality for Iowa’s citizens by ensuring that emissions reporting, monitoring, and compliance continue and that the rules prescribing these activities are clear, current, and consolidated.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Christine Paulson via email. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make oral comments at either of the public hearings must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearings and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 21 and adopt the following new chapter in lieu thereof: CHAPTER 21COMPLIANCE, EXCESS EMISSIONS, AND MEASUREMENT OF EMISSIONS[Prior to 7/1/83, DEQ Chs 2 and 6][Prior to 12/3/86, Water, Air and Waste Management[900]]567—21.1(455B) Definitions and compliance requirements. For the purpose of these rules and the rules in 567—Chapters 20 through 35, the following terms shall, unless otherwise noted, have the meaning indicated in this chapter. Additional definitions potentially applicable to this chapter are set forth in 567—Chapters 22 and 23. The definitions set out in Iowa Code sections 455B.101, 455B.131, and 455B.411 are incorporated verbatim into these rules. "Air pollution alert" means the action condition declared when the concentrations of air contaminants reach the level at which the first-stage control actions are to begin. "Air pollution emergency" means the action condition declared when the air quality is continuing to degrade to a level that should never be reached, and that the most stringent control actions are necessary. "Air pollution episode" means a combination of forecast or actual meteorological conditions and emissions of air contaminants that may or do present an imminent and substantial endangerment to the health of persons, during which the chief meteorological factors are the absence of winds that disperse air contaminants horizontally and a stable atmospheric layer that tends to inhibit vertical mixing through relatively deep layers. "Air pollution forecast" means an air stagnation advisory issued to the department, the commission, and appropriate air pollution control agencies by an authorized Air Stagnation Advisory Office of the National Weather Service predicting that meteorological conditions conducive to an air pollution episode may be imminent. This advisory may be followed by a prediction of the duration and termination of such meteorological conditions. "Air pollution warning" means the action condition declared when the air quality is continuing to degrade from the levels classified as an air pollution alert, and where control actions in addition to those conducted under an air pollution alert are necessary. "Equipment" means equipment capable of emitting air contaminants to produce air pollution. "Excess emission" means any emission that exceeds any applicable emission standard prescribed in 567—Chapter 23 or 567—22.4(455B), 567—22.5(455B), 567—31.3(455B), or 567—33.3(455B) or any emission limit specified in a permit or order. "Existing equipment" means equipment, machines, devices, or installations that were in operation prior to September 23, 1970. "Malfunction" means any sudden and unavoidable failure of control equipment or of a process to operate in a normal manner. Any failure that is caused entirely or in part by poor maintenance, careless operation, lack of an adequate maintenance program, or any other preventable upset condition or preventable equipment breakdown shall not be considered a malfunction. "New equipment" means, except for any equipment or modified equipment to which 567—subrule 23.1(2) applies, any equipment or control equipment not under construction or for which components have not been purchased on or before September 23, 1970, and any equipment that is altered or modified after such date, which may cause, eliminate, reduce, or control the emission of air contaminants. "Opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background. "Shutdown" means the cessation of operation of any control equipment or process equipment or process for any purpose. "Startup" means the setting into operation of any control equipment or process equipment or process for any purpose. 21.1(1) New equipment. All new equipment and all new control equipment, as defined herein, installed in this state shall perform in conformance with applicable emission standards specified in 567—Chapter 23. 21.1(2) Existing equipment. All existing equipment, as defined herein, shall be operated in conformance with applicable emission standards specified in 567—Chapter 23 or as otherwise specified herein, except that the performance standards specified in 567—subrule 23.1(2) shall not apply to existing equipment. 21.1(3) Emissions inventory. The person responsible for equipment as defined herein shall provide information on fuel use, materials processed, air contaminants emitted (including greenhouse gases as “greenhouse gas” is defined in 567—22.1(455B)), estimated rate of emissions, periods of emissions, or other air pollution information to the director upon the director’s written request for use in compiling and maintaining an emissions inventory for evaluation of the air pollution situation in the state and its various parts. The information requested shall be submitted in the electronic format specified by the department, if electronic submittal is provided. All information in regard to both actual and allowable emissions shall be public records, and any publication of such data shall be limited to actual and allowable air contaminant emissions. 21.1(4) Reserved. 21.1(5) Public availability of data. Emission data obtained from owners or operators of stationary sources under the provisions of 21.1(3) and any correlations with applicable emission limitations or other control measures will be made available to the public on the department’s website and upon request. 21.1(6) Maintenance of record. Each owner or operator of any stationary source, as defined herein, shall, upon notification from the director, maintain records of the nature and amounts of air contaminant emissions from such source and any other information as may be deemed necessary by the commission to determine whether such source is in compliance with the applicable emission limitations or other control measures. The information recorded shall be summarized and reported monthly to the director on forms furnished by the department. The initial reporting period shall commence 60 days from the date the director issues notification of the recordkeeping requirements. Records shall be retained by the owner or operator for two years after the date on which the pertinent report is submitted.567—21.2(455B) Variances. 21.2(1) Application for variances. A person may make an application for a variance from applicable rules or standards specified in this title. a. Contents.Each application for a variance shall be submitted to the director and state the following: (1) The name, address, email address, and telephone number of the person submitting the application or, if such person is a legal entity, the name and address of the individual authorized to accept service of process on its behalf and the name of the person in charge of the premises where the pertinent activities are conducted. (2) The type of business or activity involved. (3) The nature of the operation or process involved, including information on the air contaminants emitted and the estimated amount and rate of discharge of such emissions. (4) The exact location of the operation or process involved. (5) The reason or reasons for considering that compliance with the provisions specified in these rules will produce serious hardship without equal or greater benefits to the public, and the reasons why no other reasonable method can be used for such operations without resulting in a hazard to health or property. (6) Each application shall contain certification of truth and accuracy by a responsible official as defined in 567—24.100(455B). This certification shall state that, based on information and belief formed after reasonable inquiry, the statements and information provided are true and accurate. b. Variance extension.A person may make an application for a variance extension prior to expiration of an approved variance. 21.2(2) Processing of applications. Each application for a variance and its supporting material shall be reviewed, and an investigation of the facilities shall be made, by the department for evaluation of the following: a. Whether or not the emissions involved will produce the following effects: (1) Endanger or tend to endanger the health of persons residing in or otherwise occupying the area affected by said emissions. (2) Create or tend to create safety hazards, such as (but not limited to) interference with traffic due to reduced visibility. (3) Damage or tend to damage any property on land that is affected by said emissions and under other ownership. b. The reason or reasons for considering that compliance with the provisions specified in these rules will produce serious hardship without equal or greater benefits to the public, and the reasons why no other reasonable method can be used for such operations without resulting in a hazard to health or property. 21.2(3) Trial burns for alternative fuels. An alternative fuel shall be defined as a fuel for which the emissions from combusting the fuel are not known and shall exclude natural gas, coal, liquid propane, and all petroleum distillates. a. Variance from construction permit.The director may grant a variance for the purpose of testing an alternative fuel and quantifying the emissions from the alternative fuel, except as prohibited under 21.2(4)“c.” b. Baseline testing.In addition to submitting the information required in 21.2(1), the applicant may be required to submit baseline emission data for all applicable pollutants as a condition of approval. c. Source testing.Emissions testing deemed necessary for any pollutant may be required as a condition of the variance and shall be conducted in accordance with 21.10(7)“a.” 21.2(4) Decision. a. Granting of variance.The director shall grant a variance when the director concludes that the action is appropriate. The variance may be granted subject to conditions specified by the director. The director shall specify the time intervals as are considered appropriate for submission of reports on the progress attained. b. Denial of variance.The director shall deny a variance when the director concludes that the action is appropriate. The applicant may request a review hearing before the commission if the application is denied. c. Ineligibility for variance.The director shall not grant a variance from any of the following requirements: (1) Case-by-case maximum achievable control technology (MACT), 567—paragraph 22.1(1)“b”; (2) Prevention of significant deterioration (PSD), 567—Chapter 33, to the extent that variances may not be granted from the preconstruction review and permitting program specified under 567—Chapter 33 (formerly 567—22.4(455B)), or from any PSD requirement contained in a PSD permit issued under 567—Chapter 33, or from any PSD requirement contained in a PSD permit issued under 40 CFR Section 51.166 or 52.21; (3) New source performance standards, 567—subrule 23.1(2); (4) Emission standards for hazardous air pollutants, 567—subrule 23.1(3); (5) Emission standards for hazardous air pollutants for source categories, 567—subrule 23.1(4); or (6) Emission guidelines, 567—subrule 23.1(5).567—21.3() Reserved.567—21.4(455B) Circumvention of rules. No person shall build, erect, install, or use any article, machine, equipment, or other contrivance that conceals an emission that would otherwise constitute violation of these rules.567—21.5(455B) Evidence used in establishing that a violation has occurred or is occurring. Notwithstanding any other provisions of these rules, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of any provisions herein. 21.5(1) Information from the use of the following methods is presumptively credible evidence of whether a violation has occurred at a source. The following testing, monitoring, or information-gathering methods are presumptively credible testing, monitoring, or information-gathering methods: a. A monitoring method approved for the source and incorporated in an operating permit pursuant to 567—Chapter 24; b. Compliance test methods specified in 567—21.10(455B); c. Testing or monitoring methods approved for the source in a construction permit issued pursuant to 567—Chapter 22; d. Any monitoring or testing methods provided in these rules; or e. Other testing, monitoring, or information-gathering methods that produce information comparable to that produced by any method in this subrule. 21.5(2) Reserved.567—21.6(455B) Temporary electricity generation for disaster situations. An electric utility may operate generators at an electric utility substation with a total combined capacity not to exceed two megawatts in capacity for a period of not longer than ten calendar days and only for the purpose of providing electricity generation in the event of a sudden and unforeseen disaster that has disabled standard transmission of electricity to the public. Department approval shall be required if the electric utility intends to operate generators for a period longer than ten calendar days. The electric utility shall provide an oral report to the appropriate department field office and to the department’s air quality bureau and shall specify the anticipated duration within eight hours of commencing use of a generator or at the start of the first working day following the placement of a generator at each site. A written report shall be submitted to the department within 30 calendar days following the cessation of use of the generators. The written report shall state the nature of the sudden and unforeseen disaster, the location of each site, the number of generators used, the capacity of the generators used, the fuel type of the generators, and the duration of use of each generator. For purposes of this rule, the definition of “disaster” shall be as defined in Iowa Code section 29C.2(4), and a disaster may occur before, with, or without a gubernatorial or federal disaster proclamation.567—21.7(455B) Excess emission reporting. 21.7(1) Excess emission during periods of startup, shutdown, or cleaning of control equipment. Excess emission during a period of startup, shutdown, or cleaning of control equipment is not a violation of the emission standard if the startup, shutdown, or cleaning is accomplished expeditiously and in a manner consistent with good practice for minimizing emissions. Cleaning of control equipment that does not require the shutdown of the process equipment shall be limited to one six-minute period per one-hour period. 21.7(2) Initial report of excess emission. a. An incident of excess emission (other than an incident of excess emission during a period of startup, shutdown, or cleaning) shall be reported to the appropriate regional office of the department within eight hours of the onset of the incident or at the start of the first working day following the onset of the incident. The reporting exemption for an incident of excess emission during startup, shutdown, or cleaning does not relieve the owner or operator of a source with continuous monitoring equipment of the obligation of submitting reports required in 21.10(6). b. An initial report of excess emission is not required for a source with operational continuous monitoring equipment (as specified in 21.10(1)) if the incident of excess emission continues for less than 30 minutes and does not exceed the applicable emission standard by more than 10 percent or the applicable visible emission standard by more than 10 percent opacity. c. The initial report shall be made by electronic mail (email), in person, or by telephone and shall include at a minimum the following: (1) The identity of the equipment or source operation from which the excess emission originated and the associated stack or emission point. (2) The estimated quantity of the excess emission. (3) The time and expected duration of the excess emission. (4) The cause of the excess emission. (5) The steps being taken to remedy the excess emission. (6) The steps being taken to limit the excess emission in the interim period. 21.7(3) Written report of excess emission. A written report of an incident of excess emission shall be submitted as a follow-up to all required initial reports to the department within seven days of the onset of the upset condition, and shall include as a minimum the following: a. The identity of the equipment or source operation point from which the excess emission originated and the associated stack or emission point. b. The estimated quantity of the excess emission. c. The time and duration of the excess emission. d. The cause of the excess emission. e. The steps that were taken to remedy and to prevent the recurrence of the incident of excess emission. f. The steps that were taken to limit the excess emission. g. If the owner claims that the excess emission was due to malfunction, documentation to support this claim. 21.7(4) Excess emissions. An incident of excess emission (other than an incident during startup, shutdown, or cleaning of control equipment) is a violation. If the owner or operator of a source maintains that the incident of excess emission was due to a malfunction, the owner or operator must show that the conditions that caused the incident of excess emission were not preventable by reasonable maintenance and control measures. Determination of any subsequent enforcement action will be made following review of this report. If excess emissions are occurring, either the control equipment causing the excess emission shall be repaired in an expeditious manner or the process generating the emissions shall be shut down within a reasonable period of time. An expeditious manner is the time necessary to determine the cause of the excess emissions and to correct it within a reasonable period of time. A reasonable period of time is eight hours plus the period of time required to shut down the process without damaging the process equipment or control equipment. In the case of an electric utility, a reasonable period of time is eight hours plus the period of time until comparable generating capacity is available to meet consumer demand with the affected unit out of service, unless the director shall, upon investigation, reasonably determine that continued operation constitutes an unjustifiable environmental hazard, issue an order that such operation is not in the public interest, and require a process shutdown to commence immediately.567—21.8(455B) Maintenance and repair requirements. 21.8(1) Maintenance and repair. The owner or operator of any equipment or control equipment shall: a. Maintain and operate the equipment or control equipment at all times in a manner consistent with good practice for minimizing emissions. b. Remedy any cause of excess emissions in an expeditious manner. c. Minimize the amount and duration of any excess emission to the maximum extent possible during periods of such emissions. These measures may include but not be limited to the use of clean fuels, production cutbacks, or the use of alternate process units or, in the case of utilities, purchase of electrical power until repairs are completed. d. Implement measures contained in any contingency plan prepared in accordance with 21.8(2)“c.” e. Schedule, at a minimum, routine maintenance of equipment or control equipment during periods of process shutdown to the maximum extent possible. 21.8(2) Maintenance plans. A maintenance plan will be required for equipment or control equipment where in the judgment of the director a continued pattern of excess emissions indicative of inadequate operation and maintenance is occurring. The maintenance plan shall include but not be limited to the following: a. A complete preventive maintenance schedule, including identification of the persons responsible for inspecting, maintaining, and repairing control equipment, a description of the items or conditions that will be inspected, the frequency of these inspections or repairs, and an identification of the replacement parts that will be maintained in inventory for quick replacement. b. An identification of the equipment and air pollution control equipment operating variables that will be monitored in order to detect a malfunction or failure, the normal operating range of these variables, and a description of the method of monitoring and surveillance procedures. c. A contingency plan for minimizing the amount and duration of any excess emissions to the maximum extent possible during periods of such emissions.567—21.9(455B) Compliance with other requirements. The excess emissions provisions in 567—21.7(455B) and 567—21.8(455B) do not relieve the owner or operator of an emissions source subject to the new source performance standards (567—subrule 23.1(2)), the national emissions standards for hazardous air pollutants (567—subrule 23.1(3)), or the national emissions standards for hazardous air pollutants for source categories (567—subrule 23.1(4)) from complying with those requirements.567—21.10(455B) Testing and sampling of new and existing equipment. 21.10(1) Continuous monitoring of opacity from coal-fired steam generating units. The owner or operator of any coal-fired or coal-gas-fired steam generating unit with a rated capacity of greater than 250 million Btu per hour heat input shall install, calibrate, maintain, and operate continuous monitoring equipment to monitor opacity. If an exhaust services more than one steam generating unit as defined in the preceding sentence, the owner has the option of installing opacity monitoring equipment on each unit or on the common stack. Such monitoring equipment shall conform to performance specifications specified in 21.10(9) and shall be operational within 18 months of the date these rules become effective. The director may require the owner or operator of any coal-fired or coal-gas-fired steam generating unit to install, calibrate, maintain, and operate continuous monitoring equipment to monitor opacity whenever the compliance status, history of operations, ambient air quality in the vicinity surrounding the generator, or the type of control equipment utilized would warrant such monitoring. 21.10(2) and 21.10(3) Reserved. 21.10(4) Continuous monitoring of sulfur dioxide from sulfuric acid plants. The owner or operator of any sulfuric acid plant of greater than 300 tons per day production capacity, the production being expressed as 100 percent acid, shall install, calibrate, maintain, and operate continuous monitoring equipment to monitor sulfur dioxide emissions. The monitoring equipment shall conform to the minimum performance specifications specified in 21.10(9) and shall be operational within 18 months of the date these rules become effective. 21.10(5) Maintenance of records of continuous monitors. The owner or operator of any facility that is required to install, calibrate, maintain, and operate continuous monitoring equipment shall maintain, for a minimum of two years, a file of all information pertinent to each monitoring system present at the facility. Such information must include but is not limited to all emissions data (raw data, adjusted data, and any or all adjusted factors used to convert emissions from units of measurement to units of the applicable standard), performance evaluations, calibrations and zero checks, and records of all malfunctions of monitoring equipment or source and repair procedures performed. 21.10(6) Reporting of continuous monitoring information. The owner or operator of any facility required to install a continuous monitoring system or systems shall provide quarterly reports to the director, no later than 30 calendar days following the end of the calendar quarter, on forms provided by the director. This provision shall not excuse compliance with more stringent applicable reporting requirements. All periods of recorded emissions in excess of the applicable standards, the results of all calibrations and zero checks and performance evaluations occurring during the reporting period, the number of hours that the source was operated while the monitoring equipment was not in operation, and any periods of monitoring equipment malfunctions or source upsets and any apparent reasons for these malfunctions and upsets shall be included in the report. 21.10(7) Tests by owner. The owner of new or existing equipment or the owner’s authorized agent shall conduct emission tests to determine compliance with applicable rules in accordance with these requirements. a. General.The owner of new or existing equipment or the owner’s authorized agent shall notify the department in writing not less than 30 days before a required test or before a performance evaluation of a continuous emission monitor to determine compliance with applicable requirements of 567—Chapter 23 or a permit condition. Such notice shall include the time, the date, the place, the name of the person who will conduct the tests, and other information as required by the department. If the owner or operator does not provide timely notice to the department, the department may not consider the test results or performance evaluation results to be a valid demonstration of compliance with applicable rules or permit conditions. Upon written request, the department may allow a notification period of less than 30 days. At the department’s request, a pretest meeting shall be held not later than 15 days before the owner or operator conducts the compliance demonstration. A testing protocol shall be submitted to the department for review no later than 15 days before the owner or operator conducts the compliance demonstration. A representative of the department shall be permitted to witness the tests. Results of the tests shall be submitted in writing to the director in the form of a comprehensive report within six weeks (42 days) of the completion of the testing. b. New equipment.Unless otherwise specified by the department, all new equipment shall be tested by the owner or the owner’s authorized agent to determine compliance with applicable emission limits. Tests conducted to demonstrate compliance with the requirements of the rules or a permit shall be conducted within 60 days of achieving maximum production but no later than 180 days of startup, unless a shorter time frame is specified in the permit. c. Existing equipment.The director may require the owner or the owner’s authorized agent to conduct an emission test on any equipment if the director has reason to believe that the equipment does not comply with applicable requirements. Grounds for requiring such a demonstration of compliance include a modification of control or process equipment, age of equipment, or observation of opacities or other parameters outside the range of those indicative of properly maintained and operated equipment. Testing may be required as necessary to determine actual emissions from a source where that source is believed to have a significant impact on the public health or ambient air quality of an area. The director shall provide the owner or agent not less than 30 days to perform the compliance demonstration and shall provide written notice of the requirement. 21.10(8) Tests by department. Representatives of the department may conduct separate and additional air contaminant emission tests and continuous monitor performance tests of an installation on behalf of the state and at the expense of the state. Sampling holes, safe scaffolding, and pertinent allied facilities, but not instruments or sensing devices, as needed, shall be requested in writing by the director and shall be provided by and at the expense of the owner of the installation at such points as specified in the request. The owner shall provide a suitable power source to the point or points of testing so that sampling instruments can be operated as required. Analytical results shall be furnished to the owner. 21.10(9) Methods and procedures. Stack sampling and associated analytical methods used to evaluate compliance with emission limitations of 567—Chapter 23 or a permit condition are as follows: a. Performance test (stack test).A stack test shall be conducted according to the U.S. Environmental Protection Agency (EPA) reference methods as specified in 40 CFR 51, Appendix M (as amended or corrected through March 29, 2023); 40 CFR 60, Appendix A (as amended or corrected through March 29, 2023); 40 CFR 61, Appendix B (as amended or corrected through October 7, 2020); and 40 CFR 63, Appendix A (as amended or corrected through March 29, 2023). Each test shall consist of at least three separate one-hour test runs. Unless otherwise specified by the department, EPA method, or regulation, compliance shall be assessed on the basis of the arithmetic mean of the emissions measured in the three test runs. The owner of the equipment or the owner’s authorized agent may use an alternative methodology if the methodology is approved by the department in writing before testing. b. Continuous monitoring systems.Minimum performance specifications and quality assurance procedures for performance evaluations of continuous monitoring systems are as specified in 40 CFR 60, Appendix B (as amended or corrected through June 28, 2023); 40 CFR 60, Appendix F (as amended or corrected through March 29, 2023); 40 CFR 75, Appendix A (as amended or corrected through August 30, 2016); 40 CFR 75, Appendix B (as amended or corrected through August 30, 2016); and 40 CFR 75, Appendix F (as amended or corrected through August 30, 2016). The owner of the equipment or the owner’s authorized agent may use an alternative methodology for continuous monitoring systems if the methodology is approved by the department in writing before the minimum performance specifications and quality assurance procedures are conducted. c. Permit and compliance demonstration requirements.After October 24, 2012, all stack sampling and associated analytical methods used to evaluate compliance with emission limitations of 567—Chapter 23 or required in a permit issued by the department pursuant to 567—Chapter 22 or 33 shall be conducted using the methodology referenced in this rule. If stack sampling was required for a compliance demonstration pursuant to 567—Chapter 23 or for a performance test required in a permit issued by the department pursuant to 567—Chapter 22 or 33 before October 24, 2012, and the demonstration or test was not required to be completed before October 24, 2012, then the methodology referenced in this subrule applies retroactively. 21.10(10) Exemptions from continuous monitoring requirements. a. The owner or operator of any source is exempt if it can be demonstrated that any of the conditions set forth in this subrule are met with the provision that periodic recertification of the existence of these conditions can be requested. (1) An affected source is subject to a new source performance standard. (2) Reserved. (3) An affected steam generator is scheduled to be retired from service within five years of the date these rules become effective. b. The director may provide a temporary exemption from the monitoring and reporting requirements during any period of monitoring system malfunction, provided that the source owner or operator shows, to the satisfaction of the director, that the malfunction was unavoidable and is being repaired as expeditiously as practical. 21.10(11) Extensions. The owner or operator of any source may request an extension of time provided for installation of the required monitor by demonstrating to the director that good faith efforts have been made to obtain and install the monitor in the prescribed time.567—21.11(455B) Continuous emission monitoring under the acid rain program. The continuous emission monitoring requirements for affected units under the acid rain program as provided in 40 CFR Part 75, including Appendices A, B, F, and K, as amended through August 30, 2016, are adopted by reference.567—21.12(455B) Affected sources subject to Section 112(g). The owner or operator of an affected source subject to the requirements of the federal Clean Air Act, Section 112(g), shall comply with the requirements contained in permits issued by the department under 567—Chapters 22 and 33.567—21.13(455B) Methodology and qualified observer. The federal method for visual determination of opacity of emissions and requirements for qualified observers as defined in 40 CFR Part 60, Appendix A, Method 9, as amended through November 14, 1990, is adopted by reference.To qualify as an observer, a candidate must, after meeting the requirements established in 40 CFR Part 60, Appendix A, Method 9, have on record with the department a minimum of 250 readings of black plumes and 250 readings of white plumes, taken at approved smoke reading courses.567—21.14(455B) Prevention of air pollution emergency episodes—general. The provisions for the purpose specified in 40 CFR Part 51, Appendix L, 1.0, are adopted by reference. For purposes of this chapter, adoption by reference of any portion of 40 CFR Part 51, Appendix L, is, unless otherwise noted, as amended through July 1, 1987.567—21.15(455B) Episode criteria. 21.15(1) Evaluation. Conditions justifying the proclamation of an air pollution alert, air pollution warning, or air pollution emergency shall be deemed to exist whenever the commission or the director determines that the meteorological conditions are such that the accumulation of air contaminants in any place is reaching, or has reached, levels that could, if sustained or exceeded, lead to a substantial threat to the health of persons. 21.15(2) Air pollution forecast. Initial consideration of air pollution episode activities will be activated by receipt from the National Weather Service of an air pollution forecast. Receipt of such a forecast shall be the basis for activities such as, but not limited to, increased monitoring of the air contaminants in the area involved. 21.15(3) Declaration. In making determinations for the declaration of an air pollution episode condition, the commission or the director will be guided by the criteria stated in the following paragraphs: a. Air pollution alert.The provisions for an air pollution alert as specified in 40 CFR Part 51, Appendix L, 1.1(b), are adopted by reference. b. Air pollution warning.The provisions for an air pollution warning as specified in 40 CFR Part 51, Appendix L, 1.1(c), are adopted by reference. c. Air pollution emergency.The provisions for air pollution emergency as specified in 40 CFR Part 51, Appendix L, 1.1(d), are adopted by reference. d. Termination.Once declared, any status reached by application of these criteria will remain in effect until the criteria for that level are no longer met. As meteorological factors and air contaminants change, an appropriate change in episode level will be declared.567—21.16(455B) Preplanned abatement strategies. The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, 1.3(a), are adopted by reference. 21.16(1) Plan preparation. a. Any person responsible for the operation of a source of air contaminants as set forth in Tables I through III shall prepare standby plans for reducing the emission of air contaminants, which will be implemented upon the declaration of an air pollution episode and continued for the duration of the declared episode. b. The provisions for plan preparation as specified in 40 CFR Part 51, Appendix L, 1.3(b), are adopted by reference. 21.16(2) Plan content. The provisions for plan content as specified in 40 CFR Part 51, Appendix L, 1.3(c), are adopted by reference. 21.16(3) Review of plans. Standby plans as required by this subrule shall be submitted to the director on or before January 1, 1973. Each standby plan shall be subject to review. If, in the opinion of the director, a standby plan does not provide for adequate reduction of emissions, the director may disapprove the plan, state the reasons for disapproval, and order the preparation of an amended standby plan within a time period specified in the order. The action of the director in securing a modification of a standby plan may be appealed to the commission. 21.16(4) Availability. The provisions for availability as specified in 40 CFR Part 51, Appendix L, 1.3(d), are adopted by reference.567—21.17(455B) Actions taken during episodes. 21.17(1) Emission reduction activities. Any person responsible for the operation of a source of air contaminants as set forth in Tables I through III, herein, that is located within the area involved shall follow the actions specified below during periods of an air pollution alert, air pollution warning, or air pollution emergency as may be declared. a. Air pollution alert.The provisions for an air pollution alert as specified in 40 CFR Part 51, Appendix L, 1.2(a), are adopted by reference. b. Air pollution warning.The provisions for air pollution warning as specified in 40 CFR Part 51, Appendix L, 1.2(b), are adopted by reference. c. Air pollution emergency.The provisions for air pollution emergency as specified in 40 CFR Part 51, Appendix L, 1.2(c), are adopted by reference. d. Special conditions.The provisions for special conditions as specified in 40 CFR Part 51, Appendix L, 1.2(d), are adopted by reference. 21.17(2) Reserved.TABLE IABATEMENT STRATEGIES EMISSION REDUCTION ACTIONS ALERT LEVEL GENERAL The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, Table I, Part A, are adopted by reference. SOURCE CURTAILMENT The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, Table I, Part B, are adopted by reference. TABLE IIABATEMENT STRATEGIES EMISSION REDUCTION ACTIONS WARNING LEVEL GENERAL The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, Table II, Part A, are adopted by reference. SOURCE CURTAILMENT The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, Table II, Part B, are adopted by reference. TABLE IIIABATEMENT STRATEGIES EMISSION REDUCTION ACTIONS EMERGENCY LEVEL GENERAL The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, Table III, Part A, are adopted by reference. SOURCE CURTAILMENT The provisions for planned strategies as specified in 40 CFR Part 51, Appendix L, Table III, Part B, are adopted by reference. These rules are intended to implement Iowa Code section 455B.133.ARC 7228CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to controlling air pollution and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 22, “Controlling Pollution,” and to adopt a new Chapter 22, “Controlling Air Pollution,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 22. The proposed new Chapter 22 will include the revised provisions for air quality construction permitting, as well as applicable air quality definitions currently set forth in Chapter 20, “Scope of Title—Definitions,” and adoption of the National Ambient Air Quality Standards (NAAQS) currently set forth in Chapter 28, “Ambient Air Quality Standards.” After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that the rules in Chapters 22 and 28, as well as the appropriate definitions in Chapter 20, should be updated and placed in one chapter, specifically new Chapter 22. The Department also concluded that the rules for operating permits currently in Chapter 22 should be moved to another chapter that includes only these provisions. Notices of Intended Action to rescind Chapters 20 and 28 are being proposed concurrently with this rulemaking (ARCs 7210C and 7220C, IAB 12/27/23). An additional Notice of Intended Action is being proposed concurrently to rescind Chapter 24 and adopt a new Chapter 24 consisting of the provisions for operating permits (ARC 7213C, IAB 12/27/23). New Chapter 22 will help to protect air quality for Iowa’s citizens by ensuring that new and modified stationary sources of air pollution continue to demonstrate through the construction permitting process that the proposed project emissions, when considered in conjunction with existing air emissions, will not impact the attainment or maintenance of the NAAQS. Further, new Chapter 22 will provide businesses and the public with clear, current, and consolidated permitting requirements. Citations to definitions in Chapters 21 and 24 are to the definitions proposed in the concurrent Notices of Intended Action for those chapters.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa.Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at either of the public hearings must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearings and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 22 and adopt the following new chapter in lieu thereof: CHAPTER 22CONTROLLING AIR POLLUTION567—22.1(455B) Definitions and permit requirements for new or existing stationary sources. For the purpose of these rules and the rules in 567—Chapters 20 through 35, the following terms shall, unless otherwise noted, have the meaning indicated in this chapter. Additional definitions potentially applicable to this chapter are set forth in 567—Chapters 21 and 23. The definitions set out in Iowa Code sections 455B.101, 455B.131, and 455B.411 are incorporated verbatim in these rules. "12-month rolling period" means a period of 12 consecutive months determined on a rolling basis with a new 12-month period beginning on the first day of each calendar month. "Act" means the Clean Air Act (42 U.S.C. Sections 7401, et seq.), as amended through November 15, 1990. "Air quality standard" means an allowable level of air contaminant or atmospheric air concentration established by the commission. "Ambient air" means that portion of the atmosphere, external to buildings, to which the general public has access. "Anaerobic lagoon," for purposes of air quality rules in 567—Chapters 20 through 35, means an impoundment, the primary function of which is to store and stabilize organic wastes. The impoundment is designed to receive wastes on a regular basis and the design waste loading rates are such that the predominant biological activity in the impoundment will be anaerobic. An anaerobic lagoon does not include:- A runoff control basin that collects and stores only precipitation-induced runoff from an open feedlot feeding operation; or
- A waste slurry storage basin that receives waste discharges from confinement feeding operations and that is designed for complete removal of accumulated wastes from the basin at least semiannually; or
- Any anaerobic treatment system that includes collection and treatment facilities for all off-gases.
- For purposes of the air quality rules contained in Title II, and unless otherwise specified, diesel fuel may contain a blend of up to 2.0 percent biodiesel fuel, by volume, as “biodiesel fuel” is defined in this rule.
- The department shall consider air pollutant emissions calculations for the biodiesel fuel blends specified in paragraph “1” to be equivalent to the air pollutant emissions calculations for unblended diesel fuel.
- Construction permits or operating permits issued under 567—Chapter 22 that restrict equipment fuel use to diesel fuel shall be considered by the department to include the biodiesel fuel blends specified in paragraph “1,” unless otherwise specified or in a permit issued under this chapter.
- Peaking units at electric utilities.
- Generators at industrial facilities that typically operate at low rates but are not confined to emergency purposes.
- Any standby generators that are used during time periods when power is available from the electric utility.
- Performance test (stack test). A stack test shall be conducted according to EPA reference methods specified in 40 CFR 51, Appendix M (as amended or corrected through March 29, 2023); 40 CFR 60, Appendix A (as amended or corrected through March 29, 2023); 40 CFR 61, Appendix B (as amended or corrected through October 7, 2020); and 40 CFR 63, Appendix A (as amended or corrected through March 29, 2023).
- Continuous monitoring systems. Minimum performance specifications and quality assurance procedures for performance evaluations of continuous monitoring systems are as specified in 40 CFR 60, Appendix B (as amended or corrected through June 28, 2023); 40 CFR 60, Appendix F (as amended or corrected through March 29, 2023); 40 CFR 75, Appendix A (as amended or corrected through August 30, 2016); 40 CFR 75, Appendix B (as amended or corrected through August 30, 2016); and 40 CFR 75, Appendix F (as amended or corrected through August 30, 2016).
- For purposes of the air quality rules contained in Title II, and unless otherwise specified, number 1 fuel oil or number 2 fuel oil may contain a blend of up to 2.0 percent biodiesel fuel, by volume, as “biodiesel fuel” is defined in this rule.
- The department shall consider air pollutant emissions calculations for the biodiesel fuel blends specified in paragraph “1” to be equivalent to the air pollutant emissions calculations for unblended number 1 fuel oil or unblended number 2 fuel oil.
- Construction permits or operating permits issued under this chapter that restrict equipment fuel use to number 1 fuel oil or number 2 fuel oil shall be considered by the department to include the biodiesel fuel blends specified in paragraph “1,” unless otherwise specified or in a permit issued under this chapter.
- 500 hours of operation annually, if the generator has actually been operated less than 500 hours per year for the past five years.
- 8,760 hours of operation annually, if the generator has actually been operated more than 500 hours in one of the past five years.
- The number of hours specified in a state or federally enforceable limit.
- Receives more than 50 percent of its grain, as “grain” is defined in this subrule, from farmers in the immediate vicinity during harvest season;
- Is not located at any wheat flour mill, wet corn mill, dry corn mill (human consumption), rice mill, or soybean oil extraction plant.
- Receives 50 percent or less of its grain, as “grain” is defined in this subrule, from farmers in the immediate vicinity during harvest season;
- Has a permanent storage capacity of less than or equal to 2.5 million U.S. bushels, as “permanent storage capacity” is defined in this subrule;
- Is not located at any wheat flour mill, wet corn mill, dry corn mill (human consumption), rice mill, or soybean oil extraction plant.
- Receives 50 percent or less of its grain, as “grain” is defined in this subrule, from farmers in the immediate vicinity during harvest season;
- Has a permanent storage capacity of more than 88,100 m3 (2.5 million U.S. bushels), as “permanent storage capacity” is defined in this subrule;
- Is not located at an animal food manufacturer, pet food manufacturer, cereal manufacturer, brewery, or livestock feedlot;
- Is not located at any wheat flour mill, wet corn mill, dry corn mill (human consumption), rice mill, or soybean oil extraction plant.
Proposing rulemaking related to air emission standards and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 23, “Emission Standards for Contaminants,” and adopt a new Chapter 23, “Air Emission Standards,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 23. The proposed new Chapter 23 will include the revised provisions for air emission standards, as well as several air quality definitions currently set forth in Chapter 20, “Scope of Title—Definitions.” After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that new Chapter 23 should include an improved and streamlined format for adoption by reference of federal New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP). New Chapter 23 will also continue to provide the general emissions rates for criteria pollutants, such as particulate matter and sulfur dioxide, established to implement the National Ambient Air Quality Standards (NAAQS). Additionally, the Department concluded that the definitions in Chapter 20 would be more appropriately placed in subject matter chapters, such as new Chapter 23. A Notice of Intended Action to rescind Chapter 20 is being proposed concurrently with this rulemaking (ARC 7210C, IAB 12/27/23). New Chapter 23 will help to protect air quality for Iowa’s citizens by ensuring that regulated Iowa facilities are meeting the NAAQS, NSPS, and NESHAP. New Chapter 23 will also provide businesses and the public with clear, current, and consolidated air emissions requirements.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa.Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at either of the public hearings must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearings and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 23 and adopt the following new chapter in lieu thereof: CHAPTER 23AIR EMISSION STANDARDS567—23.1(455B) Emission standards. 23.1(1) In general. The federal standards of performance for new stationary sources (new source performance standards) shall be applicable as specified in 23.1(2). The federal standards for hazardous air pollutants (national emission standards for hazardous air pollutants) shall be applicable as specified in 23.1(3). The federal standards for hazardous air pollutants for source categories (national emission standards for hazardous air pollutants for source categories) shall be applicable as specified in 23.1(4). The federal emission guidelines (emission guidelines) shall be applicable as specified in 23.1(5). Compliance with emission standards specified elsewhere in this chapter shall be in accordance with 567—Chapter 21. 23.1(2) New source performance standards. The federal standards of performance for new stationary sources, as defined in 40 Code of Federal Regulations Part 60 as amended or corrected through June 28, 2023, are adopted by reference, except §60.530 through §60.539b (Part 60, Subpart AAA), and shall apply to the following affected facilities. The corresponding 40 CFR Part 60 subpart designation is provided in the table below. A different date for adoption by reference may be included with the subpart designation in the table. Reference test methods (Appendix A), performance specifications (Appendix B), determination of emission rate change (Appendix C), quality assurance procedures (Appendix F) and the general provisions (Subpart A) of 40 CFR Part 60 also apply to the affected facilities.Federal New Source Performance Standards (NSPS) Adopted by Reference in 23.1(2) 23.1(2) paragraph Affected source category 40 CFR Part 60 Subpart Date of adoption (if different than 23.1(2) introductory paragraph) or note if federal standard is not adoptedaFossil fuel-fired steam generatorsD1/20/2011bIncineratorsEN/AcPortland cement plantsFN/AdNitric acid plantsGN/AeSulfuric acid plantsHN/AfHot mix asphalt plantsIN/AgPetroleum refineriesJ - JaNot adopted. No facilities in Iowa. Paragraph reserved.hSecondary lead smeltersLNot adopted. No facilities in Iowa. Paragraph reserved.iSecondary brass and bronze ingot production plantsMN/AjIron and steel plantsNN/AkSewage treatment plantsO and Subpart E of 40 CFR 503N/AlSteel plantsAAN/AmPrimary copper smeltersPNot adopted. No facilities in Iowa. Paragraph reserved.nPrimary zinc smeltersQNot adopted. No facilities in Iowa. Paragraph reserved.oPrimary lead smeltersRNot adopted. No facilities in Iowa. Paragraph reserved.pPrimary aluminum reduction plantsSNot adopted. No facilities in Iowa. Paragraph reserved.qWet process phosphoric acid plants in the phosphate fertilizer industryTN/ArSuperphosphoric acid plants in the phosphate fertilizer industryUN/AsDiammonium phosphate plants in the phosphate fertilizer industryVN/AtTriple super phosphate plants in the phosphate fertilizer industryWN/AuGranular triple superphosphate storage facilities in the phosphate fertilizer industryXN/AvCoal preparation plantsYN/AwFerroalloy productionZN/AxKraft pulp millsBBFebruary 27, 2014yLime manufacturing plantsHHN/AzElectric utility steam generating unitsDaJanuary 20, 2011aaStationary gas turbinesGGN/AbbPetroleum storage vesselsKN/AccPetroleum storage vesselsKaN/AddGlass manufacturing plantsCCN/AeeAutomobile and light-duty truck surface coating operations at assembly plantsMMN/AffAmmonium sulfate manufacturePPN/AggSurface coating of metal furnitureEEN/AhhLead-acid battery manufacturing plantsKKFebruary 27, 2014iiPhosphate rock plantsNNN/AjjGraphic arts industryQQN/AkkIndustrial surface coatingSSN/AllMetal coil surface coatingTTN/AmmAsphalt processing and asphalt roofing manufacturingUUN/AnnEquipment leaks of volatile organic compounds (VOC) in the synthetic organic chemicals manufacturing industryVV and VVaN/AooBeverage can surface coatingWWN/AppBulk gasoline terminalsXXN/AqqPressure sensitive tape and label surface coating operationsRRN/ArrMetallic mineral processing plantsLLN/AssSynthetic fiber production facilitiesHHHN/AttEquipment leaks of VOC in petroleum refineriesGGGN/AuuFlexible vinyl and urethane coating and printingFFFN/AvvPetroleum dry cleanersJJJN/AwwElectric arc furnaces and argon-oxygen decarburization vessels constructed after August 17, 1983AAaN/AxxWool fiberglass insulation manufacturing plantsPPPN/AyyIron and steel plantsNaN/AzzEquipment leaks of VOC from on-shore natural gas processing plantsKKKN/AaaaOn-shore natural gas processing: SO2 emissionsLLLN/AbbbNonmetallic mineral processing plantsOOON/AcccIndustrial-commercial-institutional steam generating unitsDbJanuary 20, 2011dddVolatile organic liquid storage vesselsKbN/AeeeRubber tire manufacturing plantsBBBN/AfffIndustrial surface coating: surface coating of plastic parts for business machinesTTT and TTTaN/AgggVOC emissions from petroleum refinery wastewater systemsQQQN/AhhhMagnetic tape coating facilitiesSSSN/AiiiPolymeric coating of supporting substratesVVVN/AjjjVOC emissions from synthetic organic chemical manufacturing industry air oxidation unit processesIIIN/AkkkVOC emissions from synthetic organic chemical manufacturing industry distillation operationsNNNN/AlllSmall industrial-commercial-institutional steam generating unitsDcJanuary 20, 2011mmmVOC emissions from the polymer manufacturing industryDDDN/AnnnMunicipal waste combustorsEaN/AoooGrain elevatorsDDN/ApppMineral processing plantsUUUN/AqqqVOC emissions from synthetic organic chemical manufacturing industry reactor processesRRRN/ArrrMunicipal solid waste landfills, as defined by 40 CFR 60.751WWWApril 10, 2000sssMunicipal waste combustorsEbN/AtttHospital/medical/infectious waste incinerators (HMIWI)Ec (partial adoption)*N/AuuuNew small municipal waste combustion unitsAAAAN/AvvvCommercial and industrial solid waste incinerationCCCCDecember 1, 2000wwwOther solid waste incineration (OSWI) unitsEEEEN/AxxxReservedN/AN/AyyyStationary compression ignition internal combustion enginesIIIIN/AzzzStationary spark ignition internal combustion enginesJJJJN/AaaaaStationary combustion turbinesKKKKN/AbbbbNitric acid plantsGaN/AccccSewage sludge incineration unitsLLLLN/A*The provisions in 60.50c(a) through (h) (exceptions to Subpart Ec requirements) and 60.51(c) (Subpart Ec definitions) are adopted by reference. No other provisions of Subpart Ec are adopted. 23.1(3) Emission standards for hazardous air pollutants. The federal standards for emissions of hazardous air pollutants, 40 Code of Federal Regulations Part 61 as amended or corrected through October 7, 2020, and 40 CFR Part 503 as adopted on August 4, 1999, are adopted by reference, except 40 CFR §61.20 to §61.26, §61.90 to §61.97, §61.100 to §61.108, §61.120 to §61.127, §61.190 to §61.193, §61.200 to §61.205, §61.220 to §61.225, and §61.250 to §61.256, and shall apply to the following affected pollutants and facilities and activities listed below. The corresponding 40 CFR Part 61 subpart designation is provided in the table below. A different date for adoption by reference may be included with the subpart designation in the table. Reference test methods (Appendix B), compliance status information requirements (Appendix A), quality assurance procedures (Appendix C) and the general provisions (Subpart A) of Part 61 also apply to the affected activities or facilities.Federal Emission Standards for Hazardous Air Pollutants (NESHAP) Adopted by Reference in 23.1(3) 23.1(3) paragraph Affected source category 40 CFR Part 61 Subpart Adopted Date of adoption (if different than 23.1(3) introductory paragraph) or note if standard is not adoptedaAsbestosMN/AbBerylliumCNot adopted. No facilities in Iowa. Paragraph reserved.cBeryllium rocket motor firingDNot adopted. No facilities in Iowa. Paragraph reserved.dMercuryEN/AeVinyl chlorideFN/AfEquipment leaks of benzene (fugitive emission sources)JN/AgEquipment leaks of volatile hazardous air pollutants (fugitive emission sources)VN/AhInorganic arsenic emissions from arsenic trioxide and metallic arsenic production facilitiesPNot adopted. No facilities in Iowa. Paragraph reserved.iInorganic arsenic emissions from glass manufacturing plantsNN/AjInorganic arsenic emissions from primary copper smeltersONot adopted. No facilities in Iowa. Paragraph reserved.kBenzene emissions from coke by-product recovery plantsLN/AlBenzene emissions from benzene storage vesselsYN/AmBenzene emissions from benzene transfer operationsBBN/AnBenzene waste operationsFFN/A 23.1(4) Emission standards for hazardous air pollutants for source categories. The federal standards for emissions of hazardous air pollutants for source categories, 40 Code of Federal Regulations Part 63 as amended or corrected through March 29, 2023, are adopted by reference, except those provisions that cannot be delegated to the states. The corresponding 40 CFR Part 63 subpart designation is provided in the table below. A different date for adoption by reference may be included with the subpart designation in the table. 40 CFR Part 63, Subpart B, incorporates the requirements of Clean Air Act Sections 112(g) and 112(j) and does not adopt standards for a specific affected facility. Test methods (Appendix A), sources defined for early reduction provisions (Appendix B), and determination of the fraction biodegraded (Fbio) in the biological treatment unit (Appendix C) of Part 63 also apply to the affected activities or facilities. For the purpose of this subrule and the rules in 567—Chapters 20 through 35, the following terms shall, unless otherwise noted, have the meaning indicated in this subrule. "Hazardous air pollutant" "HAP" means the same as “hazardous air pollutant” set forth in 567—24.100(455B). "Major source" means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless a lesser quantity is established, or in the case of radionuclides, where different criteria are employed. “Area source” means any stationary source of hazardous air pollutants that is not a “major source.” "Maximum achievable control technology (MACT) emission limitation for existing sources," as this definition is set forth in 40 CFR Subpart B, section 63.51, is adopted by reference. "Maximum achievable control technology (MACT) emission limitation for new sources," as this definition is set forth in 40 CFR Subpart B, section 63.51, is adopted by reference. "Maximum achievable control technology (MACT) floor," as this definition is set forth in 40 CFR Subpart B, section 63.51, is adopted by reference.23.1(4)“a,” general provisions (Subpart A) of Part 63, shall apply to owners or operators who are subject to subsequent subparts of 40 CFR Part 63 (except when otherwise specified in a particular subpart or in a relevant standard) as adopted by reference in the table below.Federal Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories Adopted by Reference in 23.1(4) 23.1(4) paragraph Affected source category 40 CFR Part 63 Subpart Adopted Date of adoption (if different than 23.1(4) introductory paragraph) or note if standard is not adoptedaGeneral provisionsAN/AbRequirements for control technology determinations for major sources in accordance with Clean Air Act Sections 112(g) and 112(j)BN/AcReservedN/AN/AdCompliance extensions for early reductions of hazardous air pollutantsDN/AeReservedN/AN/AfEmission standards for organic hazardous air pollutants from the synthetic chemical manufacturing industryFN/AgEmission standards for organic hazardous air pollutants from the synthetic organic chemical manufacturing industry for process vents, storage vessels, transfer operations, and wastewaterGN/AhEmission standards for organic hazardous air pollutants for equipment leaksHN/AiEmission standards for organic hazardous air pollutants for certain processes subject to negotiated regulation for equipment leaksIN/AjEmission standards for hazardous air pollutants for polyvinyl chloride and copolymers productionSubparts J and HHHHHHHNot adopted. No facilities in Iowa. Paragraph reserved.kReservedN/AN/AlEmission standards for coke oven batteriesLN/AmPerchloroethylene air emission standards for dry cleaning facilitiesMN/AnEmission standards for chromium emissions from hard and decorative chromium electroplating and chromium anodizing tanksNN/AoEmission standards for hazardous air pollutants for ethylene oxide commercial sterilization and fumigation operationsON/ApReservedN/AN/AqEmission standards for hazardous air pollutants for industrial process cooling towersQN/ArEmission standards for hazardous air pollutants for gasoline distribution: (Stage 1)RN/AsEmission standards for hazardous air pollutants for pulp and paper (noncombustion)SN/AtEmission standards for hazardous air pollutants: halogenated solvent cleaningTN/AuEmission standards for hazardous air pollutants: Group I polymers and resinsUN/AvReservedN/AN/AwEmission standards for hazardous air pollutants for epoxy resins production and nonnylon polyamides productionWN/AxNational emission standards for hazardous air pollutants from secondary lead smeltingXNot adopted. No facilities in Iowa. Paragraph reserved.yEmission standards for marine tank vessel loading operationsYN/AzReservedN/AN/AaaEmission standards for hazardous air pollutants for phosphoric acid manufacturingAAN/AabEmission standards for hazardous air pollutants for phosphate fertilizers productionBBN/AacNational emission standards for hazardous air pollutants: petroleum refineriesCCNot adopted. No facilities in Iowa. Paragraph reserved.adEmission standards for hazardous air pollutants for off-site waste and recovery operationsDDN/AaeEmission standards for magnetic tape manufacturing operationsEEN/AafReservedN/AN/AagNational emission standards for hazardous air pollutants for source categories: aerospace manufacturing and rework facilitiesGGN/AahEmission standards for hazardous air pollutants for oil and natural gas productionHHN/AaiEmission standards for hazardous air pollutants for shipbuilding and ship repair (surface coating) operationsIINot adopted. No facilities in Iowa. Paragraph reserved.ajEmission standards for hazardous air pollutants for HAP emissions from wood furniture manufacturing operationsJJN/AakEmission standards for hazardous air pollutants for the printing and publishing industryKKN/AalEmission standards for hazardous air pollutants for primary aluminum reduction plantsLLNot adopted. No facilities in Iowa. Paragraph reserved.amEmission standards for hazardous air pollutants for chemical recovery combustion sources at kraft, soda, sulfite, and stand-alone semichemical pulp millsMMOctober 11, 2017anReservedN/AN/AaoEmission standards for tanks—level 1OON/AapEmission standards for containersPPN/AaqEmission standards for surface impoundmentsQQN/AarEmission standards for individual drain systemsRRN/AasEmission standards for closed vent systems, control devices, recovery devices and routing to a fuel gas system or a processSSN/AatEmission standards for equipment leaks—control level 1TTN/AauEmission standards for equipment leaks—control level 2 standardsUUN/AavEmission standards for oil-water separators and organic-water separatorsVVN/AawEmission standards for storage vessels (tanks)—control level 2WWN/AaxEmission standards for ethylene manufacturing process units: heat exchange systems and waste operationsXXN/AayEmission standards for hazardous air pollutants: generic maximum achievable control technology (generic MACT)YYOctober 8, 2014az to bbReservedN/AN/AbcEmission standards for hazardous air pollutants for steel pickling—HCL process facilities and hydrochloric acid regeneration plantsCCCNot adopted. No facilities in Iowa. Paragraph reserved.bdEmission standards for hazardous air pollutants for mineral wool productionDDDN/AbeEmission standards for hazardous air pollutants from hazardous waste combustorsEEEN/AbfReservedN/AN/AbgEmission standards for hazardous air pollutants for pharmaceutical manufacturingGGGN/AbhEmission standards for hazardous air pollutants for natural gas transmission and storageHHHN/AbiEmission standards for hazardous air pollutants for flexible polyurethane foam productionIIIN/AbjEmission standards for hazardous air pollutants: Group IV polymers and resinsJJJN/AbkReservedN/AN/AblEmission standards for hazardous air pollutants for Portland cement manufacturing operationsLLLN/AbmEmission standards for hazardous air pollutants for pesticide active ingredient productionMMMN/AbnEmission standards for hazardous air pollutants for wool fiberglass manufacturingNNNN/AboEmission standards for hazardous air pollutants for amino/phenolic resins productionOOON/AbpEmission standards for hazardous air pollutants for polyether polyols productionPPPN/AbqEmission standards for hazardous air pollutants for primary copper smeltingQQQNot adopted. No facilities in Iowa. Paragraph reserved.brEmission standards for hazardous air pollutants for secondary aluminum productionRRRN/AbsReservedN/AN/AbtEmission standards for hazardous air pollutants for primary lead smeltingTTTNot adopted. No facilities in Iowa. Paragraph reserved.buEmission standards for hazardous air pollutants for petroleum refineries: catalytic cracking units, catalytic reforming units, and sulfur recovery unitsUUUNot adopted. No facilities in Iowa. Paragraph reserved.bvEmission standards for hazardous air pollutants: publicly owned treatment works (POTW)VVVN/AbwReservedN/AN/AbxEmission standards for hazardous air pollutants for ferroalloys production: ferromanganese and silicomanganeseXXXNot adopted. No facilities in Iowa. Paragraph reserved.by and bzReservedN/AN/AcaEmission standards for hazardous air pollutants: municipal solid waste landfillsAAAAApril 20, 2006cbReservedN/AN/AccEmission standards for hazardous air pollutants for the manufacturing of nutritional yeastCCCCN/AcdEmission standards for hazardous air pollutants for plywood and composite wood products (formerly plywood and particle board manufacturing)DDDDOctober 29, 2007ceEmission standards for hazardous air pollutants for organic liquids distribution (non-gasoline)EEEEJuly 17, 2008cfEmission standards for hazardous air pollutants for miscellaneous organic chemical (MON) manufacturingFFFFJuly 14, 2006cgEmission standards for hazardous air pollutants for solvent extraction for vegetable oil productionGGGGN/AchEmission standards for hazardous air pollutants for wet-formed fiberglass mat productionHHHHN/AciEmission standards for hazardous air pollutants for surface coating of automobiles and light-duty trucksIIIIN/AcjEmission standards for hazardous air pollutants: paper and other web coatingJJJJN/AckEmission standards for hazardous air pollutants for surface coating of metal cansKKKKN/AclReservedN/AN/AcmEmission standards for hazardous air pollutants for surface coating of miscellaneous metal parts and productsMMMMN/AcnEmission standards for hazardous air pollutants: surface coating of large appliancesNNNNN/AcoEmission standards for hazardous air pollutants for printing, coating, and dyeing of fabrics and other textilesOOOON/AcpEmission standards for surface coating of plastic parts and productsPPPPN/AcqEmission standards for hazardous air pollutants for surface coating of wood building productsQQQQN/AcrEmission standards for hazardous air pollutants: surface coating of metal furnitureRRRRN/AcsEmission standards for hazardous air pollutants: surface coating of metal coilSSSSN/ActEmission standards for hazardous air pollutants for leather finishing operationsTTTTN/AcuEmission standards for hazardous air pollutants for cellulose products manufacturingUUUUN/AcvEmission standards for hazardous air pollutants for boat manufacturingVVVVN/AcwEmission standards for hazardous air pollutants: reinforced plastic composites productionWWWWN/AcxEmission standards for hazardous air pollutants: rubber tire manufacturingXXXXN/AcyEmission standards for hazardous air pollutants for stationary combustion turbinesYYYYNovember 19, 2020czEmission standards for stationary reciprocating internal combustion enginesZZZZN/AdaEmission standards for hazardous air pollutants for lime manufacturing plantsAAAAAApril 20, 2006dbEmission standards for hazardous air pollutants: semiconductor manufacturingBBBBBN/AdcEmission standards for hazardous air pollutants for coke ovens: pushing, quenching, and battery stacksCCCCCN/AddEmission standards for industrial, commercial and institutional boilers and process heatersDDDDDNot adopted. Paragraph reserved.deEmission standards for hazardous air pollutants for iron and steel foundriesEEEEEN/AdfEmission standards for hazardous air pollutants for integrated iron and steel manufacturingFFFFFJuly 13, 2006dgEmission standards for hazardous air pollutants: site remediationGGGGGNovember 29, 2006dhEmission standards for hazardous air pollutants for miscellaneous coating manufacturingHHHHHN/AdiEmission standards for mercury emissions from mercury cell chlor-alkali plantsIIIIIN/AdjEmission standards for hazardous air pollutants for brick and structural clay products manufacturingJJJJJNot adopted. No facilities in Iowa. Paragraph reserved.dkEmission standards for hazardous air pollutants for clay ceramics manufacturingKKKKKNot adopted. No facilities in Iowa. Paragraph reserved.dlEmission standards for hazardous air pollutants: asphalt processing and asphalt roofing manufacturingLLLLLN/AdmEmission standards for hazardous air pollutants: flexible polyurethane foam fabrication operationsMMMMMN/AdnEmission standards for hazardous air pollutants: hydrochloric acid productionNNNNNN/AdoReservedN/AN/AdpEmission standards for hazardous air pollutants: engine test cells/standsPPPPPN/AdqEmission standards for hazardous air pollutants for friction materials manufacturing facilitiesQQQQQN/AdrEmission standards for hazardous air pollutants: taconite iron ore processingRRRRRNot adopted. No facilities in Iowa. Paragraph reserved.dsEmission standards for hazardous air pollutants for refractory products manufacturingSSSSSN/AdtEmission standards for hazardous air pollutants: primary magnesium refiningTTTTTNot adopted. No facilities in Iowa. Paragraph reserved.du and dvReservedN/AN/AdwEmission standards for hazardous air pollutants for hospital ethylene oxide sterilizer area sourcesWWWWWN/AdxReservedN/AN/AdyEmission standards for hazardous air pollutants for electric arc furnace steelmaking area sourcesYYYYYN/AdzEmission standards for hazardous air pollutants for iron and steel foundry area sourcesZZZZZN/AeaReservedN/AN/AebEmission standards for hazardous air pollutants for gasoline distribution area sources: bulk terminals, bulk plants and pipeline facilitiesBBBBBBN/AecEmission standards for hazardous air pollutants for area sources: gasoline dispensing facilitiesCCCCCCN/Aed to egReservedN/AN/AehEmission standards for hazardous air pollutants for area sources: paint stripping and miscellaneous surface coating operationsHHHHHHN/AeiReservedN/AN/AejEmission standards for hazardous air pollutants for area sources: industrial, commercial, and institutional boilersJJJJJJN/AekReservedN/AN/AelEmission standards for hazardous air pollutants for acrylic and modacrylic fibers production area sourcesLLLLLLN/AemEmission standards for hazardous air pollutants for carbon black production area sourcesMMMMMMN/AenEmission standards for hazardous air pollutants for chemical manufacturing of chromium compounds area sourcesNNNNNNN/AeoEmission standards for hazardous air pollutants for flexible polyurethane foam production and fabrication area sourcesOOOOOON/AepEmission standards for hazardous air pollutants for lead acid battery manufacturing area sourcesPPPPPPNovember 19, 2020eqEmission standards for hazardous air pollutants for wood preserving area sourcesQQQQQQN/AerEmission standards for hazardous air pollutants for clay ceramics manufacturing area sourcesRRRRRRN/AesEmission standards for hazardous air pollutants for glass manufacturing area sourcesSSSSSSN/AetEmissions standards for hazardous air pollutants for secondary nonferrous metals processing area sourcesTTTTTTN/AeuReservedN/AN/AevEmission standards for hazardous air pollutants for area sourcesVVVVVVN/AewEmission standards for hazardous air pollutants for area sources: plating and polishingWWWWWWN/AexEmission standards for hazardous air pollutants for area sources: metal fabrication and finishingXXXXXXN/AeyReservedN/AN/AezEmission standards for hazardous air pollutants for area sources: aluminum, copper, and other nonferrous foundriesZZZZZZN/AfaReservedN/AN/AfbNational emission standards for hazardous air pollutants for area sources: chemical preparations industryBBBBBBBN/AfcEmission standards for hazardous air pollutants for area sources: paint and allied products manufacturingCCCCCCCN/AfdEmission standards for hazardous air pollutants for area sources: prepared feeds manufacturingDDDDDDDN/A 23.1(5) Emission guidelines. The emission guidelines and compliance times for existing sources, as defined in 40 Code of Federal Regulations Part 60 as amended through March 21, 2011, shall apply to the following affected facilities. The corresponding 40 CFR Part 60 subpart designation is in parentheses. A different CFR reference and date for adoption by reference may be included with the subpart designation indicated in the paragraphs of this subrule. The control of the designated pollutants will be in accordance with federal standards established in Sections 111 and 129 of the Act and 40 CFR Part 60, Subpart B (Adoption and Submittal of State Plans for Designated Facilities), and the applicable subpart(s) for the existing source. Reference test methods (Appendix A), performance specifications (Appendix B), determination of emission rate change (Appendix C), quality assurance procedures (Appendix F) and the general provisions (Subpart A) of 40 CFR Part 60, as adopted by reference in 23.1(2), also apply to the affected facilities. a. Emission guidelines for municipal solid waste landfills (Subpart Cc).Emission guidelines and compliance times for the control of certain designated pollutants from designated municipal solid waste landfills shall be in accordance with federal standards established in Subparts Cc (Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills) and WWW (Standards of Performance for Municipal Solid Waste Landfills) of 40 CFR Part 60 as amended through April 10, 2000. (1) Definitions. For the purpose of 23.1(5)“a,” the definitions have the same meaning given to them in the Act and 40 CFR Part 60, Subparts A (General Provisions), B, and WWW, if not defined in this subparagraph. "Municipal solid waste landfill" "MSW landfill" means an entire disposal facility in a contiguous geographical space where household waste is placed in or on land. An MSW landfill may also receive other types of RCRA Subtitle D wastes such as commercial solid waste, nonhazardous sludge, and industrial solid waste. Portions of an MSW landfill may be separated by access roads. An MSW landfill may be publicly or privately owned. An MSW landfill may be a new MSW landfill, an existing MSW landfill or a lateral expansion. (2) Designated facilities.- The designated facility to which the emission guidelines apply is each existing MSW landfill for which construction, reconstruction or modification was commenced before May 30, 1991.
- Physical or operational changes made to an existing MSW landfill solely to comply with an emission guideline are not considered a modification or reconstruction and would not subject an existing MSW landfill to the requirements of 40 CFR Part 60, Subpart WWW (40 CFR 60.750).
- For MSW landfills subject to 567—24.101(455B) only because of applicability to 23.1(5)“a”(2), the following apply for obtaining and maintaining a Title V operating permit under 567—24.104(455B):
- The owner or operator of an MSW landfill with a design capacity less than 2.5 million megagrams or 2.5 million cubic meters is not required to obtain an operating permit for the landfill.
- The owner or operator of an MSW landfill with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters on or before June 22, 1998, becomes subject to the requirements of 567—subrule 24.105(1) on September 20, 1998. This requires the landfill to submit a Title V permit application to the air quality bureau, department of natural resources, no later than September 20, 1999.
- The owner or operator of a closed MSW landfill does not have to maintain an operating permit for the landfill if either of the following conditions are met: the landfill was never subject to the requirement for a control system under 23.1(5)“a”(3), or the owner or operator meets the conditions for control system removal specified in 40 CFR §60.752(b)(2)(v).
- MSW landfill emissions at each MSW landfill meeting the conditions below shall be controlled. A design capacity report must be submitted to the director by November 18, 1997.The landfill has accepted waste at any time since November 8, 1987, or has additional design capacity available for future waste deposition.The landfill has a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters. The landfill may calculate design capacity in either megagrams or cubic meters for comparison with the exemption values. Any density conversions shall be documented and submitted with the report. All calculations used to determine the maximum design capacity must be included in the design capacity report.The landfill has a nonmethane organic compound (NMOC) emission rate of 50 megagrams per year or more. If the MSW landfill’s design capacity exceeds the established thresholds in 23.1(5)“a”(3)“1,” the NMOC emission rate calculations must be provided with the design capacity report.
- The planning and installation of a collection and control system shall meet the conditions provided in 40 CFR 60.752(b)(2) at each MSW landfill meeting the conditions in 23.1(5)“a”(3)“1.”
- MSW landfill emissions collected through the use of control devices must meet the following requirements, except as provided in 40 CFR 60.24 after approval by the director and U.S. Environmental Protection Agency:An open flare designed and operated in accordance with the parameters established in 40 CFR 60.18; a control system designed and operated to reduce NMOC by 98 weight percent; or an enclosed combustor designed and operated to reduce the outlet NMOC concentration to 20 parts per million as hexane by volume, dry basis at 3 percent oxygen, or less.
- The calculation of the landfill NMOC emission rate listed in 40 CFR 60.754, as applicable, to determine whether the landfill meets the condition in 23.1(5)“a”(3)“3”;
- The operational standards in 40 CFR 60.753;
- The compliance provisions in 40 CFR 60.755; and
- The monitoring provisions in 40 CFR 60.756.
- Except as provided for under 23.1(5)“a”(6)“2,” planning, awarding of contracts, and installation of MSW landfill air emission collection and control equipment capable of meeting the emission guidelines established under 23.1(5)“a”(3) shall be accomplished within 30 months after the date the initial NMOC emission rate report shows NMOC emissions greater than or equal to 50 megagrams per year.
- For each existing MSW landfill meeting the conditions in 23.1(5)“a”(3)“1” whose NMOC emission rate is less than 50 megagrams per year on August 20, 1997, installation of collection and control systems capable of meeting emission guidelines in 23.1(5)“a”(3) shall be accomplished within 30 months of the date when the condition in 23.1(5)“a”(3)“1” is met (i.e., the date of the first annual nonmethane organic compounds emission rate which equals or exceeds 50 megagrams per year).
- Use, where practical, of water or chemicals for control of dusts in the demolition of existing buildings or structures, construction operations, the grading of roads or the clearing of land.
- Application of suitable materials, such as but not limited to asphalt, oil, water or chemicals on unpaved roads, material stockpiles, race tracks and other surfaces which can give rise to airborne dusts.
- Installation and use of containment or control equipment, to enclose or otherwise limit the emissions resulting from the handling and transfer of dusty materials, such as but not limited to grain, fertilizer or limestone.
- Covering, at all times when in motion, open-bodied vehicles transporting materials likely to give rise to airborne dusts.
- Prompt removal of earth or other material from paved streets or to which earth or other material has been transported by trucking or earth-moving equipment, erosion by water or other means.
- Reducing the speed of vehicles traveling over on-property surfaces as necessary to minimize the generation of airborne dusts.
Proposing rulemaking related to operating permits and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 24, “Excess Emission,” and to adopt a new Chapter 24, “Operating Permits,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 24. The current chapter establishes the standards for the reporting of air quality excess emissions and required equipment maintenance and repair. After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that rules for excess emissions would be more appropriately placed in another subject matter chapter, specifically Chapter 21. A Notice of Intended Action to rescind and adopt a new Chapter 21 (ARC 7209C, IAB 12/27/23) that includes updated provisions from Chapter 24 is proposed concurrently with this rulemaking. The proposed Chapter 24 consists of the rules for air operating permits, which are currently set forth in Chapter 22, and includes updated and streamlined provisions for Title V Operating Permits, Acid Rain Permits, and Small Source Operating Permits. These requirements are established under the U.S. Clean Air Act, Sections 501 through 507 (42 U.S.C. §7661 through §7661f) and Iowa Code section 455B.133. Operating permits help to protect air quality for Iowa’s citizens by ensuring that emissions equipment continues to perform as designed.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at either of the public hearings must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 24 and adopt the following new chapter in lieu thereof: CHAPTER 24OPERATING PERMITS[Prior to IAB [AF date], subject appeared in Ch 22][Prior to 7/1/83, DEQ Ch 3][Prior to 12/3/86, Water, Air and Waste Management[900]]567—24.1() Reserved.567—24.2() Reserved.567—24.3() Reserved.567—24.4() Reserved.567—24.5() Reserved.567—24.6() Reserved.567—24.7() Reserved.567—24.8() Reserved.567—24.9() Reserved.567—24.10() Reserved.567—24.11() Reserved.567—24.12() Reserved.567—24.13() Reserved.567—24.14() Reserved.567—24.15() Reserved.567—24.16() Reserved.567—24.17() Reserved.567—24.18() Reserved.567—24.19() Reserved.567—24.20() Reserved.567—24.21() Reserved.567—24.22() Reserved.567—24.23() Reserved.567—24.24() Reserved.567—24.25() Reserved.567—24.26() Reserved.567—24.27() Reserved.567—24.28() Reserved.567—24.29() Reserved.567—24.30() Reserved.567—24.31() Reserved.567—24.32() Reserved.567—24.33() Reserved.567—24.34() Reserved.567—24.35() Reserved.567—24.36() Reserved.567—24.37() Reserved.567—24.38() Reserved.567—24.39() Reserved.567—24.40() Reserved.567—24.41() Reserved.567—24.42() Reserved.567—24.43() Reserved.567—24.44() Reserved.567—24.45() Reserved.567—24.46() Reserved.567—24.47() Reserved.567—24.48() Reserved.567—24.49() Reserved.567—24.50() Reserved.567—24.51() Reserved.567—24.52() Reserved.567—24.53() Reserved.567—24.54() Reserved.567—24.55() Reserved.567—24.56() Reserved.567—24.57() Reserved.567—24.58() Reserved.567—24.59() Reserved.567—24.60() Reserved.567—24.61() Reserved.567—24.62() Reserved.567—24.63() Reserved.567—24.64() Reserved.567—24.65() Reserved.567—24.66() Reserved.567—24.67() Reserved.567—24.68() Reserved.567—24.69() Reserved.567—24.70() Reserved.567—24.71() Reserved.567—24.72() Reserved.567—24.73() Reserved.567—24.74() Reserved.567—24.75() Reserved.567—24.76() Reserved.567—24.77() Reserved.567—24.78() Reserved.567—24.79() Reserved.567—24.80() Reserved.567—24.81() Reserved.567—24.82() Reserved.567—24.83() Reserved.567—24.84() Reserved.567—24.85() Reserved.567—24.86() Reserved.567—24.87() Reserved.567—24.88() Reserved.567—24.89() Reserved.567—24.90() Reserved.567—24.91() Reserved.567—24.92() Reserved.567—24.93() Reserved.567—24.94() Reserved.567—24.95() Reserved.567—24.96() Reserved.567—24.97() Reserved.567—24.98() Reserved.567—24.99() Reserved.567—24.100(455B) Title V operating permits—definitions. For purposes of this chapter and unless otherwise stated, the following terms shall have the meaning indicated in this rule: "12-month rolling period" means the same as defined in 567—22.1(455B). "40 CFR Part 70" means Part 70 or any specific section within Part 70 that is cited in this chapter, as amended through May 6, 2020, unless otherwise noted. "40 CFR Part 72" means Part 72 or any specific section within Part 72 that is cited in this chapter, as amended through March 28, 2011, unless otherwise noted. "Act" means the U.S. Clean Air Act (42 U.S.C. §7401, et seq.), as amended through November 15, 1990. "Actual emissions" means the actual rate of emissions of a pollutant from an emissions unit, as determined in accordance with the following:- In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period that immediately precedes that date and that is representative of normal source operations. The director may allow the use of a different time period upon a demonstration that it is more representative of normal source operations. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored or combusted during the selected time period. Actual emissions for acid rain-affected sources are calculated using a one-year period.
- Lacking specific information to the contrary, the director may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.
- For any emissions unit which has not begun normal operations on a particular date, actual emissions shall equal the potential to emit of the unit on that date.
- For purposes of calculating early reductions of hazardous air pollutants, actual emissions shall not include excess emissions resulting from a malfunction or from startups and shutdowns associated with a malfunction.
- The applicable new source performance standards or national emissions standards for hazardous air pollutants, contained in 567—subrules 23.1(2), 23.1(3), and 23.1(4);
- The applicable existing source emission standard contained in 567—Chapter 23; or
- The emissions rate specified in the air construction permit for the source.
- A major stationary source of air pollutants, as defined in Section 302 of the Act, that directly emits or has the potential to emit 100 tons per year (tpy) or more of any air pollutant subject to regulation (including any major source of fugitive emissions of any such pollutant). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source for the purposes of Section 302(j) of the Act, unless the source belongs to one of the stationary source categories listed in this chapter.
- A major source of hazardous air pollutants according to Section 112 of the Act as follows:
- For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, 10 tpy or more of any hazardous air pollutant that has been listed pursuant to Section 112(b) of the Act and these rules or 25 tpy or more of any combination of such hazardous air pollutants. Notwithstanding the previous sentence, emissions from any oil or gas exploration or production well (with its associated equipment) and emission from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources.
- For Title V purposes, all fugitive emissions of hazardous air pollutants are to be considered in determining whether a stationary source is a major source.
- For radionuclides, “major source” shall have the meaning specified by the Administrator by rule.
- A major stationary source as defined in Part D of Title I of the Act, including:
- For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of volatile organic compounds or oxides of nitrogen in areas classified or treated as classified as “marginal” or “moderate,” 50 tpy or more in areas classified or treated as classified as “serious,” 25 tpy or more in areas classified or treated as classified as “severe” and 10 tpy or more in areas classified or treated as classified as “extreme”; except that the references in this paragraph to 100, 50, 25, and 10 tpy of nitrogen oxides shall not apply with respect to any source for which the Administrator has made a finding, under Section 182(f)(1) or (2) of the Act, that requirements under Section 182(f) of the Act do not apply;
- For ozone transport regions established pursuant to Section 184 of the Act, sources with potential to emit 50 tpy or more of volatile organic compounds;
- For carbon monoxide nonattainment areas (1) that are classified or treated as classified as “serious” and (2) in which stationary sources contribute significantly to carbon monoxide levels, and sources with the potential to emit 50 tpy or more of carbon monoxide;
- For particulate matter (PM10), nonattainment areas classified or treated as classified as “serious,” sources with the potential to emit 70 tpy or more of PM10.
- For the purposes of defining “major source,” a stationary source or group of stationary sources shall be considered part of a single industrial grouping if all of the pollutant emitting activities at such source or group of sources on contiguous or adjacent properties belong to the same major group (i.e., all have the same two-digit code) as described in the Standard Industrial Classification Manual, 1987.
- 500 hours of operation annually, if the generator has actually been operated less than 500 hours per year for the past five years;
- 8,760 hours of operation annually, if the generator has actually been operated more than 500 hours in one of the past five years; or
- The number of hours specified in a state or federally enforceable limit.
- Nitrogen oxides or any volatile organic compounds;
- Any pollutant for which a national ambient air quality standard has been promulgated;
- Any pollutant that is subject to any standard promulgated under Section 111 of the Act;
- Any Class I or II substance subject to a standard promulgated under or established by Title VI of the Act; or
- Any pollutant subject to a standard promulgated under Section 112 or other requirements established under Section 112 of the Act, including Sections 112(g), (j), and (r) of the Act, including the following:
- Any pollutant subject to requirements under Section 112(j) of the Act. If the Administrator fails to promulgate a standard by the date established pursuant to Section 112(e) of the Act, any pollutant for which a subject source would be major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to Section 112(e) of the Act; and
- Any pollutant for which the requirements of Section 112(g)(2) of the Act have been met, but only with respect to the individual source subject to the Section 112(g)(2) requirement.
- With respect to Title V, particulate matter, except for PM10, is not considered a regulated air pollutant for the purpose of determining whether a source is considered to be a major source.
- Carbon monoxide;
- Particulate matter, excluding PM10;
- Any pollutant that is a regulated air pollutant solely because it is a Class I or II substance subject to a standard promulgated under or established by Title VI of the Act;
- Any pollutant that is a regulated pollutant solely because it is subject to a standard or regulation under Section 112(r) of the Act;
- Greenhouse gas, as defined in 567—22.1(455B).
- For a corporation: a president, secretary, treasurer, or vice president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:
- The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or
- The delegation of authority to such representative is approved in advance by the permitting authority;
- For a partnership or sole proprietorship: a general partner or the proprietor, respectively;
- For a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. For the purposes of this chapter, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional Administrator of EPA); or
- For Title IV affected sources:
- The designated representative insofar as actions, standards, requirements, or prohibitions under Title IV of the Act or the regulations promulgated thereunder are concerned; and
- The designated representative for any other purposes under this chapter or the Act.
- Coal cleaning plants with thermal dryers;
- Kraft pulp mills;
- Portland cement plants;
- Primary zinc smelters;
- Iron and steel mills;
- Primary aluminum ore reduction plants;
- Primary copper smelters;
- Municipal incinerators capable of charging more than 250 tons of refuse per day;
- Hydrofluoric, sulfuric, or nitric acid plants;
- Petroleum refineries;
- Lime plants;
- Phosphate rock processing plants;
- Coke oven batteries;
- Sulfur recovery plants;
- Carbon black plants using the furnace process;
- Primary lead smelters;
- Fuel conversion plants;
- Sintering plants;
- Secondary metal production plants;
- Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in North American Industry Classification System (NAICS) code 325193 or 312140;
- Fossil-fuel boilers, or combinations thereof, totaling more than 250 million Btu per hour heat input;
- Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;
- Taconite ore processing plants;
- Glass fiber processing plants;
- Charcoal production plants;
- Fossil fuel-fired steam electric plants of more than 250 million Btu per hour heat input;
- Any other stationary source category, that as of August 7, 1980, is regulated under Section 111 or 112 of the Act.
Proposing rulemaking related to measurement of emissions and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 25, “Measurement of Emissions,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 25. This chapter establishes the state and federal standards for testing and monitoring air emissions. After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that reference to rules for the measurement of emissions would be more appropriately placed in another subject matter chapter, specifically Chapter 21. A Notice of Intended Action to rescind and adopt a new Chapter 21 that includes updated provisions from Chapter 25 is being proposed concurrently with this rulemaking (ARC 7209C, IAB 12/27/23). Rescission of Chapter 25 is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 25.ARC 7224CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to air pollution emergency episodes and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 26, “Prevention of Air Pollution Emergency Episodes,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 26. This chapter establishes Iowa’s plans and procedures to prevent air pollution emergencies, as required by the U.S. Clean Air Act and codified in 40 Code of Federal Regulations Part 51, Appendix L. After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that rules for the prevention of air pollution emergency episodes would be more appropriately placed in another subject matter chapter, specifically Chapter 21. A Notice of Intended Action to rescind and adopt a new Chapter 21 that includes updated provisions from Chapter 26 is being proposed concurrently with this rulemaking (ARC 7209C, IAB 12/27/23). Rescission of Chapter 26 is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 26.ARC 7226CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to certificate of acceptance and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 27, “Certificate of Acceptance,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.145.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 27. The proposed Chapter 27 includes updated and streamlined rules. Chapter 27 provides political subdivisions, such as municipalities and counties, with the conditions necessary to obtain and maintain a certificate of acceptance (delegation) of a local air pollution control program. The Linn County and Polk County local air programs are currently the only two local air programs in Iowa with certificates of acceptance.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department of Natural Resources (Department) for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Jim McGraw Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: jim.mcgraw@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Jim McGraw via email or by phone at 515.689.1439. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at either of the public hearings must submit a request to Mr. McGraw prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearings and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 27 and adopt the following new chapter in lieu thereof: CHAPTER 27CERTIFICATE OF ACCEPTANCE[Prior to 7/1/83, DEQ Ch 9][Prior to 12/3/86, Water, Air and Waste Management[900]]567—27.1(455B) General. Political subdivisions shall meet the conditions specified in this chapter if the political subdivisions pursue acceptance of the local air pollution control program and to obtain a certificate of acceptance from the director, as provided in Iowa Code section 455B.145.567—27.2(455B) Certificate of acceptance. The governing body of a political subdivision may make application for a certificate of acceptance. 27.2(1) Forms. Each application for a certificate of acceptance shall be submitted to the director on forms available from the department. 27.2(2) Processing of applications. The director shall make an investigation of the program or portion of a program covered by an application for a certificate of acceptance to evaluate conformance with applicable provisions of Iowa Code section 455B.145. a. Granting of certificate.A certificate of acceptance may be granted by the director if the program is consistent with Iowa Code chapter 455B, division II, and the rules established in this chapter. b. Review of program.The director shall provide for a review of the program activities at intervals as the director prescribes for evaluation of the continuation of the certificate. Following the review, the director may continue the certificate in effect or suspend the certificate, in conformance with Iowa Code sections 455B.134(12) and 455B.145.567—27.3(455B) Ordinance or regulations. 27.3(1) Legal aspects. Each local control program considered for a certificate of acceptance must be conducted under an appropriate ordinance or set of regulations, as specified in Iowa Code section 455B.145 and this rule. 27.3(2) Legal authority. The ordinance or regulations shall provide authority to the local control agency as follows: a. Scope of control.Authority and responsibility for air pollution control within the entire area included in the jurisdiction involved. b. Degree of control.Authority to prevent, abate and control air pollution from all sources within its area of jurisdiction, in accordance with requirements consistent with the provisions specified in these rules. c. Enforcement.Legal authority to enforce its requirements and standards. d. Inspection and tests.Legal authority to make inspections, perform emission tests and obtain data, reports or other information relating to sources of air pollution that may be necessary to prepare air contaminant emission inventories, and to evaluate control measures needed to meet specified goals. 27.3(3) Control of air pollution. The ordinance or regulations shall contain provisions applicable to the control or prohibition of emissions of air contaminants as listed below. a. Emission control.Requirements specifying maximum concentrations, density or rates of discharge of emissions of air contaminants from specified sources. (1) These requirements may be included in the ordinance or regulations, or in standards adopted by the local control agency under the authority granted by such ordinance or regulations. (2) These requirements shall not establish an emission standard for any specific source that is in excess of the emission standard specified in 567—Chapter 23 for that source. b. Prohibition of emissions.Provisions prohibiting the installation of equipment having a potential for air pollution without adequate control equipment. Such restriction may be included in the building code applicable to the jurisdiction covered by the local control agency. c. Open burning.Provisions prohibiting open burning, including backyard burning, in urban areas within the jurisdiction of the local control agency. (1) Provisions relating to backyard burning may consist of a program requiring the prohibition of such burning within a reasonable period of time. (2) Provisions applicable to open burning may include a variance procedure, so long as no variance that would prevent the attainment or maintenance of ambient air quality standards for suspended particulates and carbon monoxide is issued. d. Requirements for permits.Provisions requiring installation and operating permits for all new or altered equipment capable of emitting air contaminants into the atmosphere installed within the jurisdiction of the local control agency. 27.3(4) Enforcement. The ordinance or regulations of the local control agency shall include an effective mechanism for enforcing the provisions specified thereunder, as listed below. a. Procedures.The local control ordinance or regulations shall specify that any violation of its provisions is subject to civil and criminal penalties. b. Penalties.The penalties specified in such ordinance or regulations shall include fines, injunctive relief and sealing of equipment found to be not in compliance with applicable provisions of the ordinance or regulations. c. Procedures for granting variances or extensions of time to attain compliance status.The local control agency shall maintain on file a record of the names, addresses, sources of emissions, types of emissions, rates of emissions, reason for granting, conditions and length of time specified, relating to all variances or extension of time granted and shall make such records available to the commission or the department upon request.567—27.4(455B) Administrative organization. 27.4(1) Administrative facilities. Each local control program considered for a certificate of acceptance must have the administrative facilities necessary for effective operation of such program including, but not limited to, those listed below. a. Agency.Designation of a legally constituted body within the organizational structure of the applicable political subdivision or combination of political subdivisions, as the administrative authority for the local control program. b. Procedures.Adoption of definite administrative procedures for developing, promulgating and enforcing requirements and standards for air pollution control within the jurisdiction of the local control agency. c. Staff.Employment of a technical and clerical staff deemed adequate to conduct the air pollution control activities in the local control program. (1) Key technical staff personnel shall have received training or experience in air quality management program procedures. (2) At least one member of the technical staff shall be assigned full-time duty in the operation of the local control program. 27.4(2) Financial support. Each local control program considered for a certificate of acceptance shall have adequate financial support for the operation of effective program activities. 27.4(3) Physical facilities. Each local control program considered for a certificate of acceptance must have the physical facilities necessary for the operation of effective program activities, including those listed below. a. Office space.Sufficient office space and equipment to accommodate the members of the technical and clerical staff. b. Laboratory facilities.The laboratory space and equipment shall be adequate for the effective exercise of the specific functions required in the operation of the local control program. c. Transportation facilities. These facilities shall include provisions for transportation of personnel to service air monitoring equipment, visits to sources of emissions for investigative purposes and other appropriate program activities.567—27.5(455B) Program activities. Each local control program considered for a certificate of acceptance must conduct air pollution control activities adequate to provide adequate control of air pollution within the jurisdiction of the local control program, including, but not limited to, those listed below. In conducting these program activities, the local control agency shall make every effort to meet the specified ambient air quality objectives applicable to the state of Iowa. 27.5(1) Evaluation of problems. Conduct activities to determine the actual and potential air pollution problems within the jurisdiction of the local control agency, and comparison of the present air quality in that jurisdiction with the air quality standards and objectives promulgated for this state. The air quality within the jurisdiction shall be determined by an air monitoring program, using sampling techniques and laboratory determinations compatible with those used in the air pollution control program of this state. The air monitoring program of the local control agency shall give attention to the air contaminants considered to be indices of pollution in this state. 27.5(2) Control activities. Conduct activities to abate or control emissions of air contaminants from existing equipment or from new or altered equipment located within the jurisdiction of the local control agency. a. A program of plant inspections shall be conducted with respect to control of emissions from existing equipment. These activities should include the collection of data related to the types of emissions and the rate of discharge of emissions from each source involved, along with stack sampling when deemed appropriate. b. Procedures for plan review and the issuing of permits relating to the installation or alteration such that the emission of air contaminants is significantly altered, shall be conducted with respect to control of emissions from new or altered sources. These procedures may include provisions for permits relating to the use of the equipment involved. These rules are intended to implement Iowa Code sections 455B.133, 455B.143, and 455B.145.ARC 7220CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to ambient air quality standards and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 28, “Ambient Air Quality Standards,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133(3).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 28. This chapter establishes that the State of Iowa ambient air quality standards shall be the National Ambient Air Quality Standards (NAAQS). The NAAQS consist of both primary and secondary standards for six criteria air pollutants, as published in 40 Code of Federal Regulations Part 50. After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that reference to the adoption of the NAAQS would be more appropriately placed in the subject matter chapter, specifically Chapter 22. A Notice of Intended Action to rescind and adopt a new Chapter 22 that includes the adoption of the NAAQS is being proposed concurrently with this rulemaking (ARC 7228C, IAB 12/27/23). Rescission of Chapter 28 is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 28.ARC 7216CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to opacity of emissions and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 29, “Qualification in Visual Determination of the Opacity of Emissions,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 29. This chapter establishes the federal reference method for the determination of the opacity of emissions (visible emissions) and the requirements for qualified observers. After a review consistent with Executive Order 10, the Department of Natural Resources (Department) determined that rules for the qualification in visual determination of the opacity of emissions would be more appropriately placed in another subject matter chapter, specifically Chapter 21. A Notice of Intended Action to rescind and adopt a new Chapter 21 that includes updated provisions from Chapter 29 is being proposed concurrently with this rulemaking (ARC 7209C, IAB 12/27/23). Rescission of Chapter 29 is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at a public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 29.ARC 7219CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to fees and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 30, “Fees,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455B.133, 455B.133B and 455B.133C.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 30. The proposed chapter will include updated and streamlined rules for air quality fees. In more detail, Chapter 30 defines specific air quality fees owed by air contaminant sources. These fees directly support the air quality program, which exists to prevent, abate, and control air pollution in the state of Iowa. The Air Contaminant Source Fund (Iowa Code section 455B.133B) was established to receive emissions and operating permit fees. The Air Quality Fund (Iowa Code section 455B.133C) was established to receive construction permit and asbestos notifications fees. Citations to definitions in Chapter 22 are to the definitions proposed in the concurrent Notice of Intended Action for that chapter (ARC 7228C, IAB 12/27/23).Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department of Natural Resources (Department) for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Wendy Walker Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: wendy.walker@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a public hearing should contact Wendy Walker via email or by phone at 515.725.9570. A virtual meeting link and conference call number will be provided prior to the hearings. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the air quality public input webpage (iowadnr.gov/airpublicinput). Persons who wish to make comments at a public hearing must submit a request to Ms. Walker prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in a hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 30 and adopt the following new chapter in lieu thereof: CHAPTER 30FEES567—30.1(455B) Purpose. This chapter sets forth requirements to pay fees for specified activities. The department shall not initiate review and processing of an application submittal from a minor source until all required fees have been paid to the department. Fees are nonrefundable, except as provided in 30.1(4). 30.1(1) Definition. For purposes of this chapter, the following definition shall apply: "Application submittal" means one or more applications required under 567—22.1(455B) and submitted at the same time or required to be submitted under 567—22.4(455B), 567—22.5(455B), 567—Chapter 31 or 567—Chapter 33. 30.1(2) Duty to correct errors. If an owner, an operator, or the department finds an error in a fee assessed or collected under this chapter, the owner or operator shall submit to the department revised forms making the necessary corrections to the fee and shall submit the correct fee. Corrected forms shall be submitted as soon as possible after the error is discovered or upon notification by the department. If the error correction results in a determination by the department that a fee was overpaid or that a duplicate fee was submitted, the department will return the overpaid balance of the fee to the applicant. 30.1(3) Exemption to fee requirements for administrative amendments. A fee shall not be required for any of the following: a. Corrections of typographical errors; b. Corrections of word processing errors; c. Changes in the name, address, or telephone number of any person identified in a permit, or similar minor administrative changes at the source; and d. Changes in ownership or operational control of a source where the department determines that no other change in the permit is necessary, provided that a written agreement that contains a specific date for transfer of permit responsibility and coverage, and liability between the current permittee and the new permittee has been submitted to the department. 30.1(4) Refund of application fee minus administrative cost for permit applications at minor sources. The department may refund the application fee minus administrative costs if the owner or operator requests to withdraw the application prior to commencement of the technical review of the application.567—30.2(455B) Fees associated with new source review applications. Each owner or operator required to provide an application submittal, including air quality modeling as applicable; registration; permit by rule; and template under 567—subrule 22.1(1), 567—22.4(455B), 567—22.5(455B), 567—22.8(455B), 567—22.10(455B), 567—Chapter 31 or 567—Chapter 33, shall pay fees as specified in the fee schedule approved by the commission and posted on the department’s website. Fees shall be submitted with forms supplied by the department. 30.2(1) Payment of regulatory applicability determination fee. Each owner or operator requesting a regulatory applicability determination, as specified in 567—paragraph 22.1(3)“a,” shall pay fees as specified in the fee schedule approved by the commission and posted on the department’s website. Fees shall be submitted with forms provided by the department. 30.2(2) Reserved.567—30.3(455B) Fees associated with asbestos demolition or renovation notification. 30.3(1) Payment of fees established. The owner or operator of a site subject to the national emission standard for hazardous air pollutants (NESHAP) for asbestos notifications, adopted by reference in 567—paragraph 23.1(3)“a,” shall submit a fee with each required original or each annual notification for each demolition or renovation, including abatement. Fees shall be paid as specified in the fee schedule approved by the commission and posted on the department’s website. Fees shall be submitted with the notification forms provided by the department. 30.3(2) Fee not required. A fee shall not be required for the following: a. Notifications when the total amount of asbestos to be removed or disturbed is less than 260 linear feet, less than 160 square feet, and less than 35 cubic feet of facility components and is below the reporting thresholds as defined in 40 CFR 61.145 as amended on January 16, 1991; b. Notifications of training fires as required in 567—paragraph 23.2(3)“g”; c. Controlled burning of demolished buildings as required in 567—paragraph 23.2(3)“j”; d. Revised, canceled, and courtesy notifications. A revision to a previously submitted courtesy notification due to applicability of the notification requirements in 567—paragraph 23.1(3)“a” is considered an original notification and is subject to the fee requirements of 30.3(1).567—30.4(455B) Fees associated with Title V operating permits. 30.4(1) Payment of Title V application fee. Each owner or operator required to apply for a Title V permit, or a renewal of a Title V permit, shall pay fees as specified in the fee schedule approved by the commission and posted on the department’s website. Fees shall be submitted with forms supplied by the department. 30.4(2) Payment of Title V annual emissions fee. a. Fee required.Any person required to obtain a Title V permit shall pay an annual fee based on the first 4,000 tons of each regulated air pollutant and shall be paid on or before July 1 of each year. The Title V emissions fee shall be based on actual emissions required to be included in the Title V operating permit application and the annual emissions statement for the previous calendar year. The commission shall not set the fee higher than $70 per ton without adopting the change pursuant to formal rulemaking. b. Fee and documentation due dates.The fee shall be submitted annually by July 1 with forms specified by the department. c. Operation in Iowa.The fee for a portable emissions unit or stationary source that operates both in Iowa and out of state shall be calculated only for emissions from the source while it is operating in Iowa. d. Title V exempted stationary sources.No fee shall be required for emissions until the year in which sources exempted under 567—subrules 24.102(1) and 24.102(2) are required to apply for a Title V permit. Fees shall be paid for the emission year preceding the year in which the application is due and thereafter. e. Insignificant activities.No fee shall be required for insignificant activities as defined in 567—24.103(455B).567—30.5(455B) Fee stakeholder meetings. Prior to each March commission meeting, the director shall convene fee stakeholder meetings as specified in Iowa Code sections 455B.133B and 455B.133C for the purposes of reviewing a draft budget and providing recommendations to the department regarding establishing or adjusting fees. Any stakeholder may attend the fee stakeholder meetings. The meetings will be open to the public. The date of each meeting shall be posted on the department’s website 14 days prior to the meeting.567—30.6(455B) Process to establish or adjust fees and notification of fee rates. 30.6(1) Setting the fees. The department shall submit the proposed budget and fees for major and minor source construction permit programs, the Title V operating permit program, and the asbestos NESHAP program for the following fiscal year to the commission no later than the March commission meeting of each year, at which time the proposal will be available for public comment until such time as the commission acts on the proposal or until the May commission meeting, whichever occurs first. The department’s calculated estimate for each fee shall not produce total revenues in excess of limits specified in Iowa Code sections 455B.133B and 455B.133C during any fiscal year. If an established fee amount must be adjusted, the commission shall set the fees no later than the May commission meeting of each year.Adjusted or established fees shall become effective on July 1. A fee not adjusted by the commission shall remain in effect as previously established until the fee is adjusted by the commission. 30.6(2) Fee types and dollar caps on fee types. The commission may set fees for the fee types and activities specified in this subrule and shall not set a fee in the fee schedule higher than the levels specified in this subrule without adopting the change pursuant to formal rulemaking: a. New source review applications from major sources, which may include: (1) Review of each application for a construction permit: $115 per hour; (2) Review of each application for a prevention of significant deterioration permit: $115 per hour; (3) Review of each plantwide applicability limit request, renewal, or reopening: $115 per hour; (4) Review of each regulatory applicability determination: $115 per hour; and (5) Air quality modeling review: $90 per hour. b. New source review applications from minor sources, which may include: (1) Each application for a construction permit: $385; (2) Each application for a registration permit: $100; (3) Each application for a permit by rule: $100; and (4) Each application for a permit template: $100. c. Asbestos notifications: $100. d. Review of each initial or renewal Title V operating permit application: $100 per hour. e. Title V annual emissions: $70 per ton. 30.6(3) Notification of fee schedule. Following the initial setting of any fee by the commission, the department shall make available to the public a fee schedule at least 30 days prior to its effective date. If any established fee amount is adjusted, the department shall make available to the public a revised fee schedule at least 30 days prior to its effective date. The fee schedule shall be posted on the department’s website. These rules are intended to implement Iowa Code sections 455B.133, 455B.133B, and 455B.133C.ARC 7211CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to nonattainment new source review and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 31, “Nonattainment Areas,” and to adopt a new Chapter 31, “Nonattainment New Source Review,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 31. The proposed Chapter 31 will include updated and streamlined rules for permitting requirements relating to nonattainment areas. Chapter 31 establishes the requirements for the preconstruction review and permitting program applicable to new or modified major stationary sources of air pollutants in areas that do not meet the National Ambient Air Quality Standards (NAAQS). Areas where the NAAQS are not being met are referred to as nonattainment areas. These requirements are established under Part D of Title I of the U.S. Clean Air Act (CAA), federal regulations, and Iowa Code section 455B.133. The nonattainment new source review rules work in conjunction with emissions control plans developed for areas that have been designated as nonattainment. Combined, these rules ensure that the air quality in a nonattainment area do not further deteriorate due to the construction of new or modified sources of air emissions.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department of Natural Resources (Department) for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at a public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 31 and adopt the following new chapter in lieu thereof: CHAPTER 31NONATTAINMENT NEW SOURCE REVIEW567—31.1(455B) Permit requirements relating to nonattainment areas. 31.1(1) This chapter implements the nonattainment new source review (NNSR) program contained in Part D of Title I of the federal Clean Air Act and as promulgated under 40 CFR §51.165 as amended through March 30, 2011, and 40 CFR Part 51, Appendix S, as amended through July 1, 2011. 31.1(2) The NNSR program is a preconstruction review and permitting program applicable to new or modified major stationary sources of air pollutants regulated under Part D of Title I of the federal Clean Air Act as amended through November 15, 1990. The NNSR program applies only in areas that do not meet the national ambient air quality standards (NAAQS). 31.1(3) Section 107(d) of the federal Clean Air Act, 42 U.S.C. §7457(d), requires each state to submit to the Administrator of the federal Environmental Protection Agency a list of areas that exceed the NAAQS, that are lower than those standards, or that cannot be classified on the basis of current data. 31.1(4) A list of Iowa’s nonattainment area designations is found at 40 CFR §81.316. An owner or operator required to apply for a construction permit under this chapter or requesting a plantwide applicability limit (PAL) shall submit fees as required in 567—Chapter 30.567—31.2() Reserved.567—31.3(455B) Nonattainment new source review (NNSR) requirements for areas designated nonattainment. 31.3(1) Definitions. For the purpose of NNSR, the following definitions shall apply: "Act" means the Clean Air Act, 42 U.S.C. §7401, et seq., as amended through November 15, 1990. "Actual emissions" means:- The actual rate of emissions of a regulated new source review (NSR) pollutant from an emissions unit, as determined in accordance with paragraphs “2” through “4,” except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under 567—31.9(455B). Instead, the definitions of projected actual emissions and baseline actual emissions shall apply for those purposes.
- In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period that precedes the particular date and that is representative of normal source operation. The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.
- The department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.
- For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.
- The applicable standards as set forth in 567—subrules 23.1(2) through 23.1(5) (new source performance standards, emissions standards for hazardous air pollutants, and federal emissions guidelines) or an applicable federal standard not adopted by the state, as set forth in 40 CFR Parts 60, 61 and 63;
- The state implementation plan (SIP) emissions limitation, including those with a future compliance date; or
- The emissions rate specified as an enforceable permit condition, including those with a future compliance date.
- For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the five-year period immediately preceding when the owner or operator begins actual construction of the project. The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation.
- The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.
- The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above an emissions limitation that was legally enforceable during the consecutive 24-month period.
- For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.
- The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph “1”(b) of this definition.
- For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the ten-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date on which a complete permit application is received by the department for a permit required either under this rule or under a plan approved by the Administrator, whichever is earlier, except that the ten-year period shall not include any period earlier than November 15, 1990.
- The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.
- The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.
- The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the Administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the state has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 31.3(3)“b”(7).
- For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.
- The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs “2”(b) and “2”(c) of this definition.
- For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero, and thereafter, for all other purposes, shall equal the unit’s potential to emit.
- For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph “1,” for other existing emissions units in accordance with the procedures contained in paragraph “2,” and for a new emissions unit in accordance with the procedures contained in paragraph “3.”
- Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or
- Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.
- A new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than two years from the date such emissions unit first operated.
- An existing emissions unit is any emissions unit that does not meet the requirements in paragraph “1” of this definition. A replacement unit is an existing emissions unit.
- The most stringent emissions limitation that is contained in the implementation plan of any state for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or
- The most stringent emissions limitation that is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within a stationary source. In no event shall the application of the term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.
- Any significant emissions increase from any emissions units or net emissions increase at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone.
- A physical change or change in the method of operation shall not include:
- Routine maintenance, repair, and replacement;
- Use of an alternative fuel or raw material by reason of an order under Sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;
- Use of an alternative fuel by reason of an order or rule Section 125 of the Act;
- Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;
- Use of an alternative fuel or raw material by a stationary source that the source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition that was established after December 12, 1976, pursuant to 40 CFR §52.21 or under regulations approved pursuant to 40 CFR Subpart I or §51.166; or the source is approved to use under any permit issued under regulations approved pursuant to this rule;
- An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition that was established after December 21, 1976, pursuant to 40 CFR §52.21 or regulations approved pursuant to 40 CFR Part 51, Subpart I, or 40 CFR §51.166;
- Any change in ownership at a stationary source;
- Reserved.
- The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with the SIP, and other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is terminated.
- This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under 567—31.9(455B) for a PAL for that pollutant. Instead, the definition in 567—31.9(455B) shall apply.
- For the purpose of applying the requirements of 31.3(8) to modifications at major stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions, whether or not subject to Subpart 2, Part D, Title I of the Act, any significant net emissions increase of nitrogen oxides is considered significant for ozone.
- Any physical change in, or change in the method of operation of, a major stationary source of volatile organic compounds that results in any increase in emissions of volatile organic compounds from any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered a significant net emissions increase and a major modification for ozone, if the major stationary source is located in an extreme ozone nonattainment area that is subject to Subpart 2, Part D, Title I of the Act.
- Any stationary source of air pollutants that emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant, except that lower emissions thresholds shall apply in areas subject to Subpart 2, Subpart 3, or Subpart 4 of Part D, Title I of the Act, according to definitions in 31.3(1).
- 50 tons per year of volatile organic compounds in any serious ozone nonattainment area.
- 50 tons per year of volatile organic compounds in an area within an ozone transport region, except for any severe or extreme ozone nonattainment area.
- 25 tons per year of volatile organic compounds in any severe ozone nonattainment area.
- 10 tons per year of volatile organic compounds in any extreme ozone nonattainment area.
- 50 tons per year of carbon monoxide in any serious nonattainment area for carbon monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area (as determined under rules issued by the Administrator as amended through [the effective date of these rules]).
- 70 tons per year of PM10 in any serious nonattainment area for PM10.
- For the purposes of applying the requirements of 31.3(8) to stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, any stationary source that emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that the following emission thresholds apply in areas subject to Subpart 2 of Part D, Title I of the Act:
- 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as marginal or moderate.
- 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as a transitional, submarginal, or incomplete or no data area, when such area is located in an ozone transport region.
- 100 tons per year or more of nitrogen oxides in any area designated under Section 107(d) of the Act as attainment or unclassifiable for ozone that is located in an ozone transport region.
- 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone.
- 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone.
- 10 tons per year or more of nitrogen oxides in any extreme nonattainment area for ozone.
- Any physical change that would occur at a stationary source not qualifying under 31.3(1) as a major stationary source, if the change would constitute a major stationary source by itself.
- A major stationary source that is major for volatile organic compounds shall be considered major for ozone.
- The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this rule whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources: coal cleaning plants (with thermal dryers); kraft pulp mills; Portland cement plants; primary zinc smelters; iron and steel mills; primary aluminum ore reduction plants; primary copper smelters; municipal incinerators capable of charging more than 250 tons of refuse per day; hydrofluoric, sulfuric, or nitric acid plants; petroleum refineries; lime plants; phosphate rock processing plants; coke oven batteries; sulfur recovery plants; carbon black plants (furnace process); primary lead smelters; fuel conversion plants; sintering plants; secondary metal production plants; chemical process plants (the term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in North American Industry Classification System (NAICS) codes 325193 or 312140); fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; taconite ore processing plants; glass fiber processing plants; charcoal production plants; fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; and any other stationary source category that, as of August 7, 1980, is being regulated under Section 111 or 112 of the Act.
- An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if the increase or decrease in actual emissions occurs between the date five years before construction on the particular change commences and the date that the increase from the particular change occurs.
- An increase or decrease in actual emissions is creditable only if:
- The increase or decrease in actual emissions occurs within the contemporaneous time period, as noted in paragraph “1” of this definition; and
- The department has not relied on the increase or decrease in actual emissions in issuing a permit for the source under this rule, which permit is in effect when the increase in actual emissions from the particular change occurs.
- Reserved.
- An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.
- A decrease in actual emissions is creditable only to the extent that:
- The old level of actual emission or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;
- It is enforceable as a practical matter at and after the time that actual construction on the particular change begins;
- The department has not relied on a decrease in actual emissions in issuing any permit under regulations approved pursuant to 40 CFR Part 51, Subpart I, or has not relied on a decrease in actual emissions in demonstrating attainment or reasonable further progress; and
- The decrease in actual emissions has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.
- An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.
- Actual emissions shall not apply for determining creditable increases and decreases or after a change.
- Shall consider all relevant information including, but not limited to, historical operational data, the company’s own representations, the company’s expected business activity and the company’s highest projections of business activity, the company’s filings with the state or federal regulatory authorities, and compliance plans under the approved plan; and
- Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and
- Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit’s emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or
- In lieu of using the method set out in paragraphs “1” through “3,” may elect to use the emissions unit’s potential to emit, in tons per year.
- Nitrogen oxides or any volatile organic compounds;
- Any pollutant for which a national ambient air quality standard has been promulgated;
- Any pollutant that is identified as a constituent or precursor of a general pollutant listed under paragraph “1” or “2,” provided that such constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors identified by the Administrator for purposes of NSR are the following:
- Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone nonattainment areas.
- Sulfur dioxide is a precursor to PM2.5 in all PM2.5 nonattainment areas.
- Nitrogen oxides are presumed to be precursors to PM2.5 in all PM2.5 nonattainment areas, unless the department demonstrates to the EPA’s satisfaction or the EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to the area’s ambient PM2.5 concentrations.
- Volatile organic compounds and ammonia are presumed not to be precursors to PM2.5 in any PM2.5 nonattainment area, unless the department demonstrates to the EPA’s satisfaction or the EPA demonstrates that emissions of volatile organic compounds or ammonia from sources in a specific area are a significant contributor to that area’s ambient PM2.5 concentrations; or
- PM2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures.
- The emissions unit is a reconstructed unit within the meaning of 40 CFR §60.15(b)(1) as amended through December 16, 1975, or the emissions unit completely takes the place of an existing emissions unit.
- The emissions unit is identical to or functionally equivalent to the replaced emissions unit.
- The replacement does not alter the basic design parameters of the process unit.
- The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.
- In reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant Emission Rate
- Carbon monoxide: 100 tons per year (tpy)
- Nitrogen oxides: 40 tpy
- Sulfur dioxide: 40 tpy
- Ozone: 40 tpy of volatile organic compounds or nitrogen oxides
- Lead: 0.6 tpy
- PM10: 15 tpy
- PM2.5: 10 tpy of direct PM2.5 emissions, 40 tpy of sulfur dioxide emissions, or 40 tpy of nitrogen oxide emissions unless the department demonstrates to the EPA’s satisfaction that the emissions of nitrogen oxides from sources in a specific area are not a significant contributor to the area’s ambient PM2.5 concentrations.
- Notwithstanding the significant emissions rate for ozone, “significant” means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of volatile organic compounds that would result from any physical change in, or change in the method of operation of, a major stationary source locating in a serious or severe ozone nonattainment area that is subject to Subpart 2, Part D, Title I of the Act, if such emissions increase of volatile organic compounds exceeds 25 tons per year.
- For the purposes of applying the requirements of 31.3(8) to modifications at major stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, the significant emission rates and other requirements for volatile organic compounds in paragraphs “1,” “2,” and “5” shall apply to nitrogen oxides emissions.
- Notwithstanding the significant emissions rate for carbon monoxide, “significant” means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of carbon monoxide that would result from any physical change in, or change in the method of operation of, a major stationary source in a serious nonattainment area for carbon monoxide if such increase equals or exceeds 50 tons per year, provided the department has determined that stationary sources contribute significantly to carbon monoxide levels in that area.
- Notwithstanding the significant emissions rates for ozone under paragraphs “1” and “2,” any increase in actual emissions of volatile organic compounds from any emissions unit at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area that is subject to Subpart 2, Part D, Title I of the Act shall be considered a significant net emissions increase.
Proposing rulemaking related to animal feeding operations field study and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 32, “Animal Feeding Operations Field Study,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 32. This chapter specifies how the Department of Natural Resources (Department) would conduct a field study to measure the levels of hydrogen sulfide, ammonia and odor near animal feeding operations. The required field study took place between 2003-2005, and the final report was issued in January 2006. The final report and associated study documents are available on the Department’s website at iowadnr.gov/Environmental-Protection/Air-Quality/Animal-Feeding-Operations. A complete chapter rescission is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 32.ARC 7223CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to special regulations and construction permit requirements for major stationary sources and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 33, “Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration (PSD) of Air Quality,” and to adopt a new Chapter 33, “Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration (PSD),” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and adopt a new Chapter 33. The proposed Chapter 33 will include updated and streamlined rules for the Prevention of Significant Deterioration (PSD). The PSD program establishes the requirements for the preconstruction review and permitting program applicable to new or modified major stationary sources of air pollutants. These requirements are established under the U.S. Clean Air Act, Section 110(a)(2)(C) (42 USC §7410), and Iowa Code section 455B.133 to prevent significant deterioration of air quality. The PSD permits help ensure that large facilities with higher emitting equipment meet the National Ambient Air Quality Standards and other associated requirements to protect Iowa’s air quality while ensuring that economic growth can continue.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department of Natural Resources (Department) for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearings should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to each hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at either of the public hearings must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call January 30, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearings and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 33 and adopt the following new chapter in lieu thereof: CHAPTER 33CONSTRUCTION PERMIT REQUIREMENTS FOR MAJOR STATIONARY SOURCES— PREVENTION OF SIGNIFICANT DETERIORATION (PSD)567—33.1(455B) Purpose. This chapter implements the major new source review (NSR) program contained in Part C of Title I of the federal Clean Air Act as amended on November 15, 1990, and as promulgated under 40 CFR 51.166 and 52.21. This is a preconstruction review and permitting program applicable to new or modified major stationary sources of air pollutants regulated under Part C of the Clean Air Act as amended on November 15, 1990. In areas that do not meet the national ambient air quality standards (NAAQS), the nonattainment new source review (NNSR) program applies. The rules for the NNSR program are set forth in 567—Chapter 31. In areas that meet the NAAQS, the prevention of significant deterioration (PSD) program applies. Collectively, the NNSR and PSD programs are referred to as the major NSR program. An owner or operator required to apply for a construction permit under 567—Chapter 33 shall submit fees as specified in 567—Chapter 30.Rule 567—33.2(455B) is reserved.Rule 567—33.3(455B) sets forth the definitions, standards and permitting requirements that are specific to the PSD program.Rules 567—33.4(455B) through 567—33.8(455B) are reserved.Rule 567—33.9(455B) includes the conditions under which a source subject to PSD may obtain a plantwide applicability limitation (PAL) on emissions. An owner or operator requesting a PAL under 567—33.9(455B) shall submit fees as required in 567—Chapter 30.In addition to the requirements in this chapter, stationary sources may also be subject to the permitting requirements in 567—Chapter 22 and the rules for Title V operating permits in 567—Chapter 24.567—33.2() Reserved.567—33.3(455B) PSD construction permit requirements for major stationary sources. 33.3(1) Definitions. Definitions included in this subrule apply to the provisions set forth in this rule (PSD program requirements). For purposes of this rule and unless otherwise noted, the definitions herein apply. Definitions that are adopted by reference from 40 CFR 51.166 or 52.21 are as amended through July 19, 2021, unless otherwise noted. The following phrases contained in 40 CFR 51.166 are not adopted by reference: “it shall also provide that,” “mechanism whereby,” “the plan may provide that,” “the plan provides that,” “the plan shall provide,” and “the plan shall provide that.” Additionally, the term “the plan” shall mean “State Implementation Plan” or “SIP.”For purposes of this rule, the following terms have the meanings indicated in this subrule: "Act" means the Clean Air Act, 42 U.S.C. Sections 7401, et seq., as amended through November 15, 1990. "Actual emissions" means:- The actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with paragraphs “2” through “4,” except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under 567—33.9(455B). Instead, the requirements specified under the definitions for “projected actual emissions” and “baseline actual emissions” shall apply for those purposes.
- In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period that precedes the particular date and that is representative of normal source operation. The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.
- The department may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.
- For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.
- The applicable standards as set forth in 567—subrules 23.1(2) through 23.1(5) (new source performance standards, emissions standards for hazardous air pollutants, and federal emissions guidelines) or an applicable federal standard not adopted by the state, as set forth in 40 CFR Parts 60, 61 and 63;
- The applicable SIP emissions limitation, including those with a future compliance date; or
- The emissions rate specified as an enforceable permit condition, including those with a future compliance date.
- For any existing electric utility steam generating unit, “baseline actual emissions” means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the five-year period immediately preceding the date on which the owner or operator begins actual construction of the project. The department shall allow the use of a different time period upon a determination that it is more representative of normal source operation.
- The average rate shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns, and malfunctions.
- The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above an emissions limitation that was legally enforceable during the consecutive 24-month period.
- For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR pollutant.
- The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph “1”(b).
- For an existing emissions unit, other than an electric utility steam generating unit, “baseline actual emissions” means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the ten-year period immediately preceding either the date on which the owner or operator begins actual construction of the project, or the date on which a complete permit application is received by the department for a permit required either under this chapter or under a SIP approved by the Administrator, whichever is earlier, except that the ten-year period shall not include any period earlier than November 15, 1990.
- The average rate shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns, and malfunctions.
- The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above an emissions limitation that was legally enforceable during the consecutive 24-month period.
- The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emissions limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emissions limitation is part of a maximum achievable control technology standard that the Administrator proposed or promulgated under 40 CFR Part 63, the baseline actual emissions need only be adjusted if the state has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 40 CFR 51.165(a)(3)(ii)(G) as amended through November 29, 2005.
- For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period may be used for each regulated NSR pollutant.
- The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs “2”(b) and “2”(c).
- For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit.
- For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph “1,” for other existing emissions units in accordance with the procedures contained in paragraph “2,” and for a new emissions unit in accordance with the procedures contained in paragraph “3.”
- Any intrastate area (and every part thereof) designated as attainment or unclassifiable under Section 107(d)(1)(A)(ii) or (iii) of the Act in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact for the pollutant for which the baseline date is established, as follows: equal to or greater than 1 μg/m3 (annual average) for sulfur dioxide (SO2), nitrogen dioxide (NO2) or PM10; or equal to or greater than 0.3 μg/m3 (annual average) for PM2.5.
- Area redesignations under Section 107(d)(1)(A)(ii) or (iii) of the Act cannot intersect or be smaller than the area of impact of any major stationary source or major modification that establishes a minor source baseline date or is subject to regulations specified in this rule, in 40 CFR 52.21 (PSD requirements), or in department rules approved by EPA and published in 40 CFR Part 51, Subpart I, as amended through October 20, 2010, and would be constructed in the same state as the state proposing the redesignation.
- Any baseline area established originally for the total suspended particulate increments shall remain in effect and shall apply for purposes of determining the amount of available PM10 increments, except that such baseline area shall not remain in effect if the permitting authority rescinds the corresponding minor source baseline date in accordance with the definition of “baseline date” specified in this subrule.
- The ambient concentration level that exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include:
- The actual emissions representative of sources in existence on the applicable minor source baseline date, except as provided in paragraph “2”;
- The allowable emissions of major stationary sources that commenced construction before the major source baseline date but were not in operation by the applicable minor source baseline date.
- The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):
- Actual emissions from any major stationary source on which construction commenced after the major source baseline date; and
- Actual emissions increases and decreases at any stationary source occurring after the minor source baseline date.
- Either “major source baseline date” or “minor source baseline date” as follows:
- The “major source baseline date” means, in the case of PM10 and sulfur dioxide, January 6, 1975; in the case of nitrogen dioxide, February 8, 1988; and in the case of PM2.5, October 20, 2010.
- The “minor source baseline date” means the earliest date after the trigger date on which a major stationary source or a major modification subject to 40 CFR 52.21 as amended through October 20, 2010, or subject to this rule (PSD program requirements), or subject to a department rule approved by EPA and published in 40 CFR Part 51, Subpart I, as amended through October 20, 2010, submits a complete application under the relevant regulations. The trigger date for PM10 and sulfur dioxide is August 7, 1977. For nitrogen dioxide, the trigger date is February 8, 1988. For PM2.5, the trigger date is October 20, 2011.
- The “baseline date” is established for each pollutant for which increments or other equivalent measures have been established if:
- The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under Section 107(d)(1)(A)(ii) or (iii) of the Act for the pollutant on the date of its complete application under 40 CFR 52.21 as amended through October 20, 2010, or under regulations specified in this rule (PSD program requirements); and
- In the case of a major stationary source, the pollutant would be emitted in significant amounts, or in the case of a major modification, there would be a significant net emissions increase of the pollutant.
- Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or
- Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.
- A new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than two years from the date such emissions unit first operated.
- An existing emissions unit is any emissions unit that does not meet the requirements in paragraph “1.” A replacement unit is an existing emissions unit.
- Any significant emissions increase from any emissions units or net emissions increase at a major stationary source that is significant for volatile organic compounds or NOx shall be considered significant for ozone.
- A physical change or change in the method of operation shall not include:
- Routine maintenance, repair and replacement;
- Use of an alternative fuel or raw material by reason of any order under Section 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;
- Use of an alternative fuel by reason of an order or rule under Section 125 of the Act;
- Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;
- Use of an alternative fuel or raw material by a stationary source that the source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition, or that the source is approved to use under any federally enforceable permit condition;
- An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition that was established after January 6, 1975;
- Any change in ownership at a stationary source;
- Reserved.
- The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with the requirements within the SIP; and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after the project is terminated;
- The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis;
- The reactivation of a very clean coal-fired electric utility steam generating unit.
- This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under 567—33.9(455B) for a PAL for that pollutant. Instead, the definition under 567—33.9(455B) shall apply.
- (a) Any one of the following stationary sources of air pollutants that emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant:
- Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input;
- Coal cleaning plants (with thermal dryers);
- Kraft pulp mills;
- Portland cement plants;
- Primary zinc smelters;
- Iron and steel mill plants;
- Primary aluminum ore reduction plants;
- Primary copper smelters;
- Municipal incinerators capable of charging more than 50 tons of refuse per day;
- Hydrofluoric, sulfuric, and nitric acid plants;
- Petroleum refineries;
- Lime plants;
- Phosphate rock processing plants;
- Coke oven batteries;
- Sulfur recovery plants;
- Carbon black plants (furnace process);
- Primary lead smelters;
- Fuel conversion plants;
- Sintering plants;
- Secondary metal production plants;
- Chemical process plants (which does not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS code 325193 or 312140);
- Fossil-fuel boilers (or combinations thereof) totaling more than 250 million British thermal units per hour heat input;
- Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;
- Taconite ore processing plants;
- Glass fiber processing plants; and
- Charcoal production plants.
- Notwithstanding the stationary source size specified in paragraph “1”(a), any stationary source that emits, or has the potential to emit, 250 tons per year or more of a regulated NSR pollutant; or
- Any physical change that would occur at a stationary source not otherwise qualifying under this definition as a major stationary source if the change would constitute a major stationary source by itself.
- A major source that is major for volatile organic compounds or NOx shall be considered major for ozone.
- The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this rule whether it is a major stationary source, unless the source belongs to one of the categories of stationary sources listed in paragraph “1”(a) or to any other stationary source category that, as of August 7, 1980, is being regulated under Section 111 or 112 of the Act.
- An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if the increase or decrease in actual emissions occurs between the date five years before construction on the particular change commences and the date that the increase from the particular change occurs.
- An increase or decrease in actual emissions is creditable only if:
- The increase or decrease in actual emissions occurs within the contemporaneous time period, as noted in paragraph “1” of this definition; and
- The department has not relied on the increase or decrease in actual emissions in issuing a permit for the source under this rule, which permit is in effect when the increase in actual emissions from the particular change occurs.
- An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if the increase or decrease in actual emissions is required to be considered in calculating the amount of maximum allowable increases remaining available.
- An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.
- A decrease in actual emissions is creditable only to the extent that:
- The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;
- The decrease in actual emissions is enforceable as a practical matter at and after the time that actual construction on the particular change begins; and
- The decrease in actual emissions has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change.
- An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.
- The definition of “actual emissions,” paragraph “2,” shall not apply for determining creditable increases and decreases.
- Shall consider all relevant information including, but not limited to, historical operational data, the company’s own representations, the company’s expected business activity and the company’s highest projections of business activity, the company’s filings with the state or federal regulatory authorities, and compliance plans under the approved plan; and
- Shall include fugitive emissions to the extent quantifiable and emissions associated with startups, shutdowns, and malfunctions; and
- Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit’s emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or
- In lieu of using the method set out in paragraphs “1” through “3,” may elect to use the emissions unit’s potential to emit, in tons per year.
- Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator:
- Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and unclassifiable areas;
- Sulfur dioxide is a precursor to PM2.5 in all attainment and unclassifiable areas;
- Nitrogen oxides are presumed to be precursors to PM2.5 in all attainment and unclassifiable areas, unless the department demonstrates to EPA’s satisfaction or EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to the area’s ambient PM2.5 concentrations;
- Volatile organic compounds are presumed not to be precursors to PM2.5 in any attainment and unclassifiable areas, unless the department demonstrates to EPA’s satisfaction or EPA demonstrates that emissions of volatile organic compounds from sources in a specific area are a significant contributor to that area’s ambient PM2.5 concentrations;
- Any pollutant that is subject to any standard promulgated under Section 111 of the Act;
- Any Class I or Class II substance subject to a standard promulgated under or established by Title VI of the Act; or
- Any pollutant that otherwise is subject to regulation under the Act as defined in 33.3(1), definition of “subject to regulation.”
- Notwithstanding paragraphs “1” through “4,” the definition of “regulated NSR pollutant” shall not include any or all hazardous air pollutants that are either listed in Section 112 of the Act or added to the list pursuant to Section 112(b)(2) of the Act and that have not been delisted pursuant to Section 112(b)(3) of the Act, unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under Section 108 of the Act.
- Particulate matter (PM) emissions, PM2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity that condense to form particulate matter at ambient temperatures.
- The emissions unit is a reconstructed unit within the meaning of 40 CFR 60.15(b)(1) as amended through December 16, 1975, or the emissions unit completely takes the place of an existing emissions unit.
- The emissions unit is identical to or functionally equivalent to the replaced emissions unit.
- The replacement does not change the basic design parameter(s) of the process unit.
- The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.
- In reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate
- Carbon monoxide: 100 tons per year (tpy)
- Nitrogen oxides: 40 tpy
- Sulfur dioxide: 40 tpy
- Particulate matter: 25 tpy of particulate matter emissions
- PM10: 15 tpy
- PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions (unless the department demonstrates to EPA’s satisfaction that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to the area’s ambient PM2.5 concentrations)
- Ozone: 40 tpy of volatile organic compounds or NOx
- Lead: 0.6 tpy
- Fluorides: 3 tpy
- Sulfuric acid mist: 7 tpy
- Hydrogen sulfide (H2S): 10 tpy
- Total reduced sulfur (including H2S): 10 tpy
- Reduced sulfur compounds (including H2S): 10 tpy
- Municipal waste combustor organics (measured as total tetra- through octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 × 10-6 megagrams per year (3.5 × 10-6 tons per year)
- Municipal waste combustor metals (measured as particulate matter): 14 megagrams per year (15 tons per year)
- Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tons per year)
- Municipal solid waste landfill emissions (measured as nonmethane organic compounds): 45 megagrams per year (50 tons per year)
- “Significant” means, for purposes of this rule and in reference to a net emissions increase or the potential of a source to emit a regulated NSR pollutant not listed in paragraph “1,” any emissions rate.
- Notwithstanding paragraph “1,” “significant,” for purposes of this rule, means any emissions rate or any net emissions increase associated with a major stationary source or major modification that would construct within ten kilometers of a Class I area and have an impact on such area equal to or greater than 1 μg/m3 (24-hour average).
- Greenhouse gases (GHGs), the air pollutant defined in 40 CFR 86.1818-12(a) (as amended through September 15, 2011) as the aggregate group of six greenhouse gases that includes carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall not be subject to regulation except as provided in paragraph “4,” and shall not be subject to regulation if the stationary source maintains its total sourcewide emissions below the GHG PAL level, meets the requirements in 567—33.9(455B), and complies with the PAL permit containing the GHG PAL.
- For purposes of paragraphs “3” and “4,” the term “tpy CO2 equivalent emissions (CO2e)” shall represent an amount of GHGs emitted and shall be computed as follows:
- Multiply the mass amount of emissions (tpy) for each of the six greenhouse gases in the pollutant GHGs by the associated global warming potential of the gas published at 40 CFR Part 98, Subpart A, Table A-1, “Global Warming Potentials,” (as amended through December 24, 2014). For purposes of this definition, prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of non-fossilized and biodegradable organic material originating from plants, animals, or microorganisms (including products, by-products, residues and waste from agriculture, forestry and related industries as well as the non-fossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of non-fossilized and biodegradable organic material).
- Sum the resultant value from paragraph (a) for each gas to compute a tpy CO2e.
- The term “emissions increase,” as used in this paragraph and in paragraph “4,” shall mean that both a significant emissions increase (as calculated using the procedures specified in 33.3(2)“c” through “h”) and a significant net emissions increase (as specified in 33.3(1), in the definitions of “net emissions increase” and “significant”) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO2e and shall be calculated assuming the pollutant GHGs are a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO2e rather than calculated by applying the value specified in 33.3(1), in paragraph “2” of the definition of “significant.”
- Beginning January 2, 2011, the pollutant GHGs are subject to regulation if:
- The stationary source is a new major stationary source for a regulated NSR pollutant that is not a GHG, and also will emit or will have the potential to emit 75,000 tpy CO2e or more, or
- The stationary source is an existing major stationary source for a regulated NSR pollutant that is not a GHG, and also will have an emissions increase of a regulated NSR pollutant and an emissions increase of 75,000 tpy CO2e or more.
Proposing rulemaking related to air quality emissions trading programs and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 34, “Provisions for Air Quality Emissions Trading Programs,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 34. This chapter implemented the federal air emissions trading programs to reduce emissions of specific air pollutants. The air emissions trading programs included in Chapter 34 have either been replaced by other programs or are no longer applicable. Over time, nearly all of the provisions within this chapter have been rescinded. A complete chapter rescission is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department of Natural Resources (Department) for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to participate in the hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 34.ARC 7217CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to air emissions reduction assistance program and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 35, “Air Emissions Reduction Assistance Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455B.133.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 35. This chapter specified the process for the Department of Natural Resources (Department) to provide financial assistance to eligible applicants to reduce air pollution. The rules in Chapter 35 were developed in 2009 in response to grant funds made available to the Department under the American Recovery and Reinvestment Act (ARRA). The rules assisted the Department in creating and implementing the Reduce Iowa Diesel Exhaust (RIDE) grant program. The RIDE program ended in 2011 when the ARRA grant was closed. Rescinding Chapter 35 is therefore appropriate.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 29, 2024. Comments should be directed to: Christine Paulson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: christine.paulson@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the public hearing should contact Christine Paulson via email or by phone at 515.725.9510. A virtual meeting link and conference call number will be provided prior to the hearing. The public hearing information will also be provided through the Air Quality e-newsletter (GovDelivery) and on the Department’s webpage at iowadnr.gov/Environmental-Protection/Air-Quality/Public-Participation (scroll down to Public Input and click on Executive Order 10 Implementation). Persons who wish to make comments at the public hearing must submit a request to Ms. Paulson prior to the hearing to facilitate an orderly hearing. January 29, 2024 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing or vision impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 567—Chapter 35.ARC 7214CEnvironmental Protection Commission[567]Notice of Intended ActionProposing rulemaking related to animal feeding operations and providing an opportunity for public comment
The Environmental Protection Commission (Commission) hereby proposes to rescind Chapter 65, “Animal Feeding Operations,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 459.103, 459.301, 459A.104 and 459B.104.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 455B.103, 455B.134, 455B.171, 459.103, 459.301, 459A.104 and 459B.104.Purpose and Summary Chapter 65 regulates animal feeding operations (AFOs). The chapter regulates the siting, construction, and operation of all types of AFO structures and associated facilities. This proposed rulemaking reduces and consolidates the AFO regulations. This is accomplished by rescinding redundant or outdated provisions. The rules also adopt a floodplain siting map as required by state law. The proposed rulemaking will make the rules more intuitive and easier to read and understand. For example, rules applicable to all AFOs have been consolidated into a single division rather than repeated multiple times throughout the chapter. Rules have been streamlined as much as possible, stating the requirements more succinctly and clearly. Antiquated rules have been removed. The proposed rulemaking includes two other notable changes. First, the rules formally adopt a floodplains map into the AFO Siting Atlas. This is required by Iowa Code section 459.301(5)“a.” This addresses the focus of the May 2022 rulemaking petition filed by the Iowa Environmental Council and the Environmental Law and Policy Center. Second, the Director’s discretion rule provisions have been removed. In 2006, the Attorney General’s Office advised the Commission and the Department of Natural Resources (Department) that the rule provisions were beyond the underlying statutory authority. That same year, the Administrative Rules Review Committee objected to the rule provisions on similar grounds. As such, the rule provisions have never been used and were appropriately removed from the chapter.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 561—Chapter 10. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on February 23, 2024. Comments should be directed to: Kelli Book Iowa Department of Natural Resources Wallace State Office Building 502 East 9th Street Des Moines, Iowa 50319 Fax: 515.725.8201 Email: afo@dnr.iowa.govPublic Hearing Two public hearings will be held on the following dates: February 14, 2024 1:30 to 3:30 p.m. Auditorium Wallace State Office Building Des Moines, Iowa February 19, 2024 1:30 to 3:30 p.m. Via video/conference call The February 19, 2024, hearing will be a virtual meeting only. A link for the virtual meeting will be provided to those who make a request to take part in the virtual hearing. The request for the link shall be submitted to afo@dnr.iowa.gov by 9 a.m. on February 19, 2024. Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 567—Chapter 65 and adopt the following new chapter in lieu thereof: CHAPTER 65ANIMAL FEEDING OPERATIONSDIVISION IGENERAL PROVISIONSThe provisions in Division I apply to all confinement feeding operations, open feedlot operations, animal truck washes, dry bedded confinement feeding operations, and associated manure and waste storage structures, unless otherwise noted in this chapter.The following acronyms will be used throughout this chapter: "AFO" means animal feeding operation. "CAFO" means concentrated animal feeding operation. "MMP" means manure management plan. "NMP" means nutrient management plan. "NPDES" means National Pollutant Discharge Elimination System.567—65.1(455B,459,459A,459B) Definitions and incorporation by reference. In addition to the definitions in Iowa Code sections 455B.101, 455B.171, 459.102, 459A.102, and 459B.102 and in 567—Chapter 60, the following definitions shall apply to this chapter: 65.1(1) Definitions. "Abandoned AFO structure" means the AFO structure has been razed, removed from the site of an AFO, filled in with earth, or converted to uses other than an AFO structure so that it cannot be used as an AFO structure without significant reconstruction. "Adjacent" for open feedlot operation. Two or more open feedlot operations are defined as adjacent if both of the following occur:- At least one open feedlot operation structure is constructed on or after July 17, 2002; and
- An open feedlot operation structure that is part of one open feedlot operation is separated by less than 1,250 feet from an open feedlot operation structure that is part of the other open feedlot operation.
- 1,250 feet for a confinement feeding operation having an animal unit capacity of less than 1,250 animal units for swine maintained as part of a farrowing and gestating operation, less than 2,700 animal units for swine maintained as part of a farrow-to-finish operation, less than 4,000 animal units for cattle maintained as part of a cattle operation, or less than 3,000 animal units for any other confinement feeding operation, or for a confinement feeding operation consisting of dry bedded confinement feeding operation structures.
- 1,500 feet for a confinement feeding operation having an animal unit capacity of 1,250 or more but less than 2,000 animal units for swine maintained as part of a swine farrowing and gestating operation, 2,700 or more but less than 5,400 animal units for swine maintained as part of a farrow-to-finish operation, 4,000 or more but less than 6,500 animal units for cattle maintained as part of a cattle operation, or for any other confinement feeding operation having an animal unit capacity of 3,000 or more but less than 5,000 animal units.
- 2,500 feet for a confinement feeding operation having an animal unit capacity of 2,000 or more animal units for swine maintained as part of a swine farrowing and gestating operation, 5,400 or more animal units for swine maintained as part of a farrow-to-finish operation, or 6,500 or more animal units for cattle maintained as part of a cattle operation, or for any other confinement feeding operation with 5,000 or more animal units.
- 1,250 feet for confinement feeding operations having a combined animal unit capacity of less than 1,000 animal units.
- 2,500 feet for confinement feeding operations having a combined animal unit capacity of 1,000 or more animal units.
- The distances in paragraphs “1” and “2” above shall only be used to determine that two or more confinement feeding operations are adjacent if at least one confinement feeding operation structure is constructed or expanded on or after May 21, 1998.
- A runoff control basin or a settled open feedlot effluent basin that collects and stores only precipitation-induced runoff from an open feedlot operation.
- An anaerobic treatment system that includes collection and treatment facilities for all off gases.
- The animals in the open feedlot operation and any adjacent confinement feeding operation are all in the same category of animals as used in the definitions of “large CAFO” and “medium CAFO” in 40 CFR Part 122;
- The closest open feedlot operation structure is separated by less than 1,250 feet from the closest confinement feeding operation structure; and
- The open feedlot operation and the confinement feeding operation are under common ownership or management.
- For a confinement feeding operation structure constructed before [the effective date of these rules] that has not been expanded, “common ownership” means the ownership of a confinement feeding operation as a sole proprietor, or a majority ownership interest held by a person, in each of two or more confinement feeding operations as a joint tenant, tenant in common, shareholder, partner, member, beneficiary, or other equity interest holder. The majority ownership interest is a common ownership interest when it is held directly, indirectly through a spouse or dependent child, or both. This exception shall not apply to a confinement feeding structure or operation expanded after [the effective date of these rules], instead, the 10 percent or more ownership interest standard shall apply.
- This definition shall not apply to a dry bedded confinement feeding operation that is subject to the common ownership requirements in Iowa Code section 459B.103(3)“a”(3) nor to an open feedlot operation as defined in this rule.
- A sole proprietor;
- A joint tenant or tenant in common; or
- A holder of a majority equity interest in a business association as defined in Iowa Code section 202B.102, including as a shareholder, partner, member, beneficiary, or other equity interest holder.
- For purposes of water quality regulation, Iowa Code section 459.301 provides that two or more AFOs under common ownership or management are deemed to be a single AFO if they are adjacent or utilize a common area or system for manure disposal. For purposes of the air quality-related separation distances in Iowa Code section 459.202, Iowa Code section 459.201 provides that two or more AFOs under common ownership or management are deemed to be a single AFO if they are adjacent or utilize a common system for manure storage. The distinction is due to regulation of AFOs for water quality purposes under the Act. 40 CFR 122.23 sets out the requirements for an AFO and requires that two or more AFOs under common ownership be considered a single operation if they adjoin each other or if they use a common area or system for disposal of wastes. However, this federal regulation does not control regulation of AFOs for the purposes of the separation distances in Iowa Code section 459.202, and therefore the definition is not required by federal law to include common areas for manure disposal.
- To determine if two or more AFOs are deemed to be one AFO, the first test is whether the AFOs are under common ownership or management. If they are not under common ownership or management, they are not one AFO. For purposes of water quality regulation, the second test is whether the two AFOs are adjacent or utilize a common area or system for manure disposal. If the two operations are not adjacent and do not use a common area or system for manure disposal, they are not one AFO. For purposes of the air quality-related separation distances in Iowa Code section 459.202, the second test is whether the two AFOs are adjacent or utilize a common system for manure storage. If the two operations are not adjacent and do not use the same system for manure storage, they are not one AFO.
- A common area or system for manure disposal includes but is not limited to use of the same manure storage structure, confinement feeding operation structure, egg washwater storage structure, stockpile, permanent manure transfer piping system or center pivot irrigation system. A common area or system for manure disposal does not include manure application fields included in a manure management plan or anaerobic digester system.
- State wildlife and waterfowl refuges listed in 571—subrules 52.1(2) and 52.1(3);
- Recreation areas, state parks, state parks managed by another governmental agency, and state preserves as listed in rule 571—61.2(461A);
- County parks and recreation areas as provided in subrule 65.1(2);
- National wildlife refuges listed as follows: Union Slough National Wildlife Refuge, DeSoto National Wildlife Refuge, Boyer Chute National Wildlife Refuge, Upper Mississippi River National Wildlife and Fish Refuge, Driftless Area National Wildlife Refuge, Neal Smith National Wildlife Refuge, and Port Louisa National Wildlife Refuge;
- National monuments and national historic sites listed as follows: Effigy Mounds National Monument and Herbert Hoover National Historic Site;
- Parks in Iowa that are under the federal jurisdiction listed with the United States Army Corps of Engineers as provided in subrule 65.1(2).
- The manure does not flow perceptibly under pressure.
- The manure is not capable of being transported through a mechanical pumping device designed to move a liquid.
- The manure contains bedding.
- The manure does not flow perceptibly under pressure.
- The manure is not capable of being transported through a mechanical pumping device designed to move a liquid.
- The constituent molecules of the manure do not flow freely among themselves but may show a tendency to separate under stress.
- The manure flows perceptibly under pressure.
- The manure is capable of being transported through a mechanical pumping device designated to move a liquid.
- The constituent molecules of the liquid manure flow freely among themselves and show a tendency to separate under stress.
- 5,333 or more for animals other than swine as part of a farrowing and gestating operation or farrow-to-finish operation or cattle as part of a cattle operation.
- 2,500 or more for a swine farrowing and gestating operation, not including replacement breeding swine if the following apply:
- The replacement breeding swine are raised at the confinement feeding operation; and
- The replacement breeding swine are used in the farrowing and gestation operation.
- 5,400 or more for a swine farrow-to-finish operation.
- 8,500 or more for a confinement feeding operation maintaining cattle.
- Impermeable to precipitation.
- Constructed using wood, steel, aluminum, vinyl, plastic, or other similar materials.
- Constructed with walls or other means to prevent precipitation-induced surface runoff from contacting the stockpile.
- Used as a place of habitation for humans on a permanent and frequent basis.
- Not readily mobile.
- Connected to a permanent source of electricity, a permanent private water supply or a public water supply system and a permanent domestic sewage disposal system including a private, semipublic or public sewage disposal system.
- Assessed and taxed as real property.
- The solids do not flow perceptibly under pressure.
- The solids are not capable of being transported through a mechanical pumping device designed to move a liquid.
- The constituent molecules of the solids do not flow freely among themselves but do show the tendency to separate under stress.
- The animal truck wash facility and all single-unit trucks, truck-tractors, semitrailers, or trailers that are washed at the facility are owned by the same person; and
- The average total per-day volume of washwater used by the animal truck wash facility does not exceed 2,000 gallons as calculated on a monthly basis.
- A confinement feeding operation with an animal unit capacity of 1,250 or more animal units for swine maintained as part of a swine farrowing and gestating operation.
- A confinement feeding operation with an animal unit capacity of 2,750 or more animal units for swine maintained as part of a swine farrow-to-finish operation.
- A confinement feeding operation with an animal unit capacity of 4,000 or more animal units for cattle maintained as part of a cattle operation.
- Any other confinement feeding operation with an animal unit capacity of 3,000 or more animal units.
- 40 CFR 122.21, application for a permit.
- 40 CFR 122.23, CAFOs.
- 40 CFR 122.42(e), additional conditions applicable to specified categories of NPDES permits.
- 40 CFR 122.63(h), minor modification of permits.
- 40 CFR Part 412, CAFO point source category.
Proposing rulemaking related to operation and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 1, “Operation of Natural Resource Commission,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 17A.3 and 455A.5.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapters 17A and 455A.Purpose and Summary Chapter 1 governs the conduct, structure, and business operations of the Commission. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Specifically, the proposed new chapter reduces and consolidates the rules. This is accomplished by rescinding outdated provisions and by removing those redundant to statute, including particular provisions around conflict of interest found in Iowa Code chapter 68B and associated rules. The proposed chapter has also been streamlined as much as possible, stating the conduct, structure, and business operations of the Commission more succinctly and clearly than before.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the of Natural Resources (Department) no later than 4:30 p.m. on January 26, 2024. Comments should be submitted electronically to Kelli Book via email and include “NRC Chapter 1 comments” in the subject of the email. Comments should be directed to: Kelli Book Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: kelli.book@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held via conference call as follows. The hearings will also be available online. A virtual link will be provided to those who make a request to take part in a hearing virtually. The request for the link shall be submitted to Ms. Book prior to the meeting date. January 17, 2024 2 to 3 p.m. Conference Room 5W Wallace State Office Building Des Moines, Iowa January 24, 2024 10 to 11 a.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 1 and adopt the following new chapter in lieu thereof: CHAPTER 1TITLE IGENERALOPERATION OF NATURAL RESOURCE COMMISSION571—1.1(17A,455A) Scope. This chapter governs the conduct of business by the natural resource commission. Rulemaking proceedings and contested case proceedings are governed by other departmental rules.571—1.2(17A,455A) Meeting location and notification. 1.2(1) Time of meetings. The commission generally meets monthly, but is required to meet at least quarterly. The director, chairperson, or a majority of the commission may establish meetings. 1.2(2) Notification of meetings. The director will provide public notice of all meeting dates, locations, and agendas. Notice of meetings is given by posting the agenda. The agenda lists the time, date, location, and topics to be discussed at the meeting. The agenda may include a specific time for the public to address the commission on any issue related to the duties and responsibilities of the commission, except as otherwise provided in these rules. a. The agenda for each meeting will be posted at the department’s main office and on the department’s website. The agenda will be provided to anyone who files a request with the department. The final agenda will be posted at least 24 hours prior to the meeting, unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible will be given. Any additions to the agenda after posting and distribution will be posted at least 24 hours prior to the meeting, unless for good cause such notice is impossible or impractical, in which case as much notice as is reasonably possible will be given. The commission may adopt additions to the agenda at the meeting only if good cause exists requiring expeditious discussion or action. The reasons and circumstances necessitating agenda additions, or those given less than 24 hours’ notice by posting, shall be stated in the minutes of the meeting. b. Written materials provided to the commission with the agenda may be examined by the public. Copies of the materials may be distributed at the discretion of the director. The director may require a fee to cover the reasonable cost to the department to provide the copies, in accordance with rules of the department.571—1.3(17A,455A) Attendance and participation by the public. 1.3(1) Attendance. All meetings are open to the public. The commission may exclude the public from portions of the meeting in accordance with Iowa Code section 21.5. 1.3(2) Participation. a. Items on agenda.Presentations to the commission may be made at the discretion of the chairperson. b. Items not on agenda.The commission will not act on a matter not on the agenda, except in accordance with paragraph 1.2(2)“b.” Persons who wish to address the commission on a matter not on the agenda should file a request with the director to place that matter on the agenda of the subsequent meeting. c. Meeting decorum.The chairperson may limit participation as necessary for the orderly conduct of agency business. Cameras and recording devices may be used during meetings provided they do not interfere with the orderly conduct of the meeting. The chairperson may order the use of these devices discontinued if they cause interference and may exclude those persons who fail to comply with that order.571—1.4(17A,455A) Quorum and voting requirements. 1.4(1) Quorum. Two-thirds of the members of the commission constitutes a quorum. 1.4(2) Voting. The concurrence of a majority of the commission members is required to determine any matter before the commission for action, except for a vote to go into closed session which requires the concurrence of two-thirds of the members of the commission.571—1.5(17A,455A) Conduct of meeting. 1.5(1) General. Meetings will be conducted in accordance with Robert’s Rules of Order unless otherwise provided in these rules. Voting will be by voice or by roll call. Voting will be by voice unless a voice vote is inconclusive, a member of the commission requests a roll call, or the vote is on a motion to close a portion of a meeting. The chairperson will announce the result of the vote. 1.5(2) Voice votes. All commission members present should respond when a voice vote is taken. a. All members present will be recorded as voting aye on any motion when there are no nay votes or abstentions heard. b. Any member who abstains will state at the time of the vote the reason for abstaining. The abstention and the reason for it will be recorded in the minutes. 1.5(3) Provision of information. The chairperson may recognize any agency staff member for the provision of information relative to an agenda item.571—1.6(17A,455A) Minutes, transcripts, and recordings of meetings. 1.6(1) Audio recordings. The director may record each meeting and shall record each closed session. 1.6(2) Minutes. The director will keep minutes of each meeting. Minutes will be reviewed and approved by the commission.571—1.7(17A,455A) Officers and duties. 1.7(1) Officers. The officers of the commission are the chairperson, the vice chairperson, and the secretary. 1.7(2) Duties. The chairperson will preside at meetings and will exercise the powers conferred upon the chairperson. The vice chairperson will perform the duties of the chairperson when the chairperson is absent or when directed by the chairperson. The secretary will make recommendations to the commission on approval or revision of the minutes and act as parliamentarian. 1.7(3) Elections. Officers will be elected annually during May. 1.7(4) Succession. a. If the chairperson does not serve out the elected term, the vice chairperson will succeed the chairperson for the remainder of the term. A special election will be held to elect a new vice chairperson to serve the remainder of the term. b. If the vice chairperson does not serve out the elected term, a special election will be held to elect a new vice chairperson to serve the remainder of the term. c. If the secretary does not serve out the elected term, a special election will be held to elect a new secretary to serve the remainder of the term.571—1.8(17A,455A) Sales and leases of goods and services. 1.8(1) Sales and leases. The general provisions for the sales and leases of goods and services by commission members is governed by rule 351—6.11(68B). 1.8(2) Consent by rule. The commission concludes that sales or leases of goods or services described in this paragraph do not, as a class, constitute the sale or lease of a good or service which affects an official’s functions. Application and department approval are not required for these sales or leases unless there are unique facts surrounding a particular sale or lease which would cause that sale or lease to affect the official’s duties or functions, would give the buyer an advantage in its dealings with the department, or would otherwise present a conflict of interest.Sales or leases for which consent is granted by rule are: a. Nonrecurring sale or lease of goods and services if the official is not engaged for profit in the business of selling or leasing those goods or services. b. Sale or lease of farm products at market prices to a buyer ordinarily engaged in the business of purchasing farm products. c. Sale or lease of goods to general public at an established retail or consignment shop. d. Sale or lease of legal, mechanical, or other services at market or customary prices. However, if an official’s client or customer has a matter for decision before the commission, the official shall not participate in the discussion and voting on that matter unless consent has been obtained. e. Sale or lease of goods at wholesale prices to a buyer ordinarily engaged in the business of purchasing wholesale goods for retail sale. f. Sale or lease of creative works of art, including but not limited to sculpture and literary products, at market, auction, or negotiated prices. However, if an official’s customer has a matter for decision before the commission directly or indirectly involving that good, the official shall not participate in the discussion and voting on that matter unless consent has been obtained. g. Sale or lease of goods to general public at market or franchiser-established prices. However, if an official’s customer has a matter for decision before the commission, the official shall not participate in the discussion and voting on that matter unless consent has been obtained. These rules are intended to implement Iowa Code sections 17A.3(1)“a” and 455A.5.ARC 7250CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to forfeited property and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 10, “Forfeited Property,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455A.5(6)“a.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7(2) and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind and reserve Chapter 10. This chapter is unnecessary. It is duplicative of state law (Iowa Code sections 481A.13A, 483A.32, and 482A.33 and chapter 809) that sufficiently details the process for disposing of seized or forfeited property used in fish and game crimes. Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Craig Cutts Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: craig.cutts@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 10.ARC 7234CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to conservation education and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 12, “Conservation Education,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 321G.2, 321G.23, 321I.2, 321I.25, 462A.12A, 481A.17 and 483A.27.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 321G.2, 321G.23, 321I.2, 321I.25, 462A.12A, 481A.17 and 483A.27.Purpose and Summary Proposed Chapter 12 sets forth the curriculum and course standards for the Department of Natural Resources’ (Department’s) recreation education courses and shooting sports programs. It also establishes eligibility and responsibilities for coaches, instructors, and mentors to teach, advise, and train others in these recreational programs. The recreation education courses cover all-terrain vehicle riding, boating, hunter education, bow hunter education, fur harvester education, snowmobiling, and snow groomer operator education. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17.7(2), this chapter was edited for length, redundancy, and clarity. Additionally, all provisions related to the Resource Enhancement and Protection (REAP) conservation education program have been removed. Those rules will be promulgated with other REAP rules in new Chapter 33 (ARC 7236C, IAB 12/27/23), which is being proposed concurrently with this rulemaking.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Megan Wisecup Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: megan.wisecup@dnr.iowa.govPublic Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 12 and adopt the following new chapter in lieu thereof: CHAPTER 12CONSERVATION EDUCATIONDIVISION IMENTOR AND VOLUNTEER INSTRUCTOR CERTIFICATION AND DECERTIFICATION PROCEDURES571—12.1() Reserved.571—12.2() Reserved.571—12.3() Reserved.571—12.4() Reserved.571—12.5() Reserved.571—12.6() Reserved.571—12.7() Reserved.571—12.8() Reserved.571—12.9() Reserved.571—12.10() Reserved.571—12.11() Reserved.571—12.12() Reserved.571—12.13() Reserved.571—12.14() Reserved.571—12.15() Reserved.571—12.16() Reserved.571—12.17() Reserved.571—12.18() Reserved.571—12.19() Reserved.571—12.20(321G,321I,462A,483A) Purpose. Pursuant to Iowa Code sections 321G.23, 321G.24, 321I.25, 321I.26, 462A.12(6), 462A.12A, and 483A.27(8), these rules set forth curriculum and course standards for the department’s recreation education courses and provisions for certification of volunteer instructors and approved mentors to teach, advise, and train others.571—12.21(321G,321I,462A,483A) Definitions. For the purpose of this division: "Certified instructor" means a person who meets all criteria in rule 571—12.23(321G,321I,462A,483A) and the specifics contained in each education program’s Instructor Policies and Procedures Manual and who wishes to voluntarily teach an education course. "Education course" means the department’s bow hunter, fur harvester, mentor, snowmobile, all-terrain vehicle (ATV), boating, snow groomer operator, and hunter education programs. "Mentor" means a person skilled and knowledgeable in a particular activity or subject area and who has been approved by the department or a recognized partner organization to teach, advise, and train others in that activity or subject area. "Online event and instructor management system" means a web-based application that tracks student data, allows students to register for courses, allows certified instructors to list their course offerings and to track volunteer hours and program details, and displays downloadable files. "Outdoor skills specialist" means a person who manages and trains volunteers and mentors to participate in the recreation education programs of the department. "Program coordinator" means a person assigned to coordinate instructor certification and development activities, develop curriculum standards for the programs, conduct outreach for the programs, train volunteer instructors and mentors and evaluate their skills, and serve as the primary contact for information about the programs.571—12.22(321G,321I,462A,483A) Mentor and certified instructor application process. 12.22(1) Application procedures. a. The instructor or mentor applicant must request an application by contacting a program coordinator or outdoor skills specialist. b. The instructor or mentor applicant must provide all information requested on the application or the department may reject the application. c. The application will remain on file until the instructor or mentor applicant meets all the requirements in rule 571—12.23(321G,321I,462A,483A). d. Once the instructor applicant successfully completes all required training and meets all required qualifications, the program coordinator or outdoor skills specialist shall document that all certification requirements have been met and shall issue a certified instructor identification card to the applicant. e. Once the mentor applicant meets all required qualifications, the program coordinator or outdoor skills specialist will notify the successful applicant and provide the applicant with guidance on the process to begin mentoring. 12.22(2) Acceptance of mentor or certified instructor applications. If the number of existing certified instructors or mentors in one or more of the education courses meets demand, the department may choose not to accept new applications.571—12.23(321G,321I,462A,483A) Requirements for instructor certification and mentoring. 12.23(1) Minimum requirements. The conditions listed in this rule must be satisfied before an instructor applicant may become a certified instructor or an approved mentor. Failure to meet these requirements shall result in the denial of the application. The applicant will be notified of the denial by the program coordinator or outdoor skills specialist. The applicant must: a. Submit an application as provided by the department. b. Be at least 18 years of age. 12.23(2) Additional certified instructor requirements. Instructor applicants must also complete the following: a. A training and certification course for the ATV, boating, hunter, bow hunter, fur harvester, snowmobile, and snow groomer operator education programs. Instructor training courses shall review policies and procedures of the department, required recordkeeping and paperwork, education course material, teaching techniques, and criteria for evaluating the performance of student skills. b. The specific education course the instructor will be teaching. c. An apprenticeship for the specific education program that the instructor will be teaching. The apprenticeship shall consist of either teaching a simulated class to other instructor applicants or assisting a certified instructor to prepare and present an education course to students. The hunter education program apprenticeship must be completed within one year of attending the certified instructor training course. 12.23(3) Background check. The instructor or mentor applicant must authorize a background check that includes, but may not be limited to, a criminal history check. A record of a felony conviction will disqualify the applicant. A record of a misdemeanor within the last three years may disqualify the instructor applicant, except for simple misdemeanors under Iowa Code chapter 321 or its counterparts in other states. 12.23(4) Fish and wildlife violation check. The applicant may be disqualified if the instructor applicant has accumulated any habitual offender points pursuant to rule 571—15.16(483A) within the last five years or had a license suspended by a court of law or the department.571—12.24(321G,321I,462A,483A) Mentor and certified instructor responsibilities and requirements. 12.24(1) A mentor or certified instructor has the following responsibilities: a. To follow all administrative rules and applicable policies and procedures as set forth by the department for the specified education program. b. To assist in the recruitment of additional instructors and mentors. c. To recruit and train students or mentees. d. To actively promote and publicize the education courses and mentorship opportunities. A course must be posted at least 30 days prior to the start date. e. To maintain order and discipline in the learning environment at all times. f. To accurately and completely fill out forms and reports within the online event and instructor management system, or on paper forms if applicable. g. To teach the education course or perform the mentorship role as prescribed by the department. 12.24(2) A certified instructor must teach a minimum of one course every two years. If this requirement is not met, the instructor’s certification may be revoked after notification by certified mail. If an instructor’s certification is revoked due to inactivity, the instructor may reapply pursuant to rule 571—12.22(321G,321I,462A,483A). Based upon the period of inactivity, some of the requirements in rule 571—12.23(321G,321I,462A,483A) may be waived by the program coordinator or outdoor skills specialist. 12.24(3) A certified hunter, bow hunter, or fur harvester education instructor must attend one continuing education instructor workshop every two years. A certified ATV, boating, snowmobile, or snow groomer operator education instructor must attend one continuing education workshop every three years. 12.24(4) A certified instructor or mentor shall represent the department in a professional and positive manner that supports the department’s goals and mission. The certified instructor or mentor shall avoid even the appearance of impropriety while instructing or mentoring students. 12.24(5) A certified instructor must teach the education course with another adult present unless prior approval is obtained from the department. It is the department’s preference that the certified instructor is assisted by another certified instructor. A noncertified assistant over 18 years of age may assist and must meet the same standards and expectations for character and behavior as the department has for its instructors and mentors. The certified instructor is responsible for the conduct of the noncertified assistant. The certified instructor is subject to suspension or revocation of certification based upon the actions of the noncertified assistant. A parent or legal guardian of a student in the class who is present as a direct result of the student’s participation is not eligible to assist with the class.This subrule does not apply to a conservation officer or any other department representative who is teaching an education course alone. 12.24(6) A certified instructor shall not use private residences for classes and shall limit instruction to public buildings or facilities unless a private, nonresidence venue is approved beforehand by the program coordinator or outdoor skills specialist. 12.24(7) All recreation education courses shall be made available to the public except for special circumstances that are preapproved by the department, such as courses being held in conjunction with schools, camps, and other special events.571—12.25(321G,321I,462A,483A) Grounds for revocation or suspension of instructor certification or a mentor’s approved status. The department may, at any time, seek to revoke or suspend the mentor status or instructor certification of any person who:- Fails to meet the instructor or mentor responsibilities and requirements as outlined in rule 571—12.24(321G,321I,462A,483A).
- Fails to follow the policies and procedures of the department.
- Falsifies any information that may be required by the department. Falsifying information is understood to mean purposefully supplying information that is inaccurate or misleading or the intentional omission of information.
- Handles any equipment in an unsafe manner, or allows any student or other instructor to handle equipment in a reckless or unsafe manner.
- Is convicted of or forfeits a bond for any fish and game, snowmobile, ATV, or navigation violation of this state or any other state. Anyone who has a privilege to operate a motor vehicle suspended, barred, or revoked shall not be eligible to be an instructor for the snowmobile, ATV, or snow groomer operator education programs.
- Uses profanity or inappropriate language, such as any type of lewd, sexist, or racial references or generalities; engages in any kind of discriminatory conduct due to race, color, national origin, religion, sex, age, disability, or sexual orientation; or otherwise acts in an unprofessional manner.
- Engages in the physical punishment of a student, including the use of unreasonable or unnecessary physical force or physical contact made with the intent to cause pain, or any type of indecent contact with a child as defined by the Iowa Code.
- Participates in a course while under the influence of alcohol or any illegal drug or while ingesting prescription medication in a manner contrary to the dosing directions given by the prescribing physician. The physician shall be a licensed physician, osteopathic physician, physician assistant, or advanced registered nurse practitioner.
- Has substantiated complaints filed against the instructor by the public, department personnel, or another certified instructor.
- Is under investigation for committing, is in the process of a judicial proceeding based on the allegation of committing, or is convicted of committing a felony or a misdemeanor as defined in the statutes of this state or another state, except for simple misdemeanors under Iowa Code chapter 321 or its counterparts in other states. Every certified instructor or mentor is subject to a criminal history check and conservation violation check at any time during the instructor’s or mentor’s tenure as an instructor or mentor.
- Receives compensation directly or indirectly from students for time spent preparing for or participating in an education course or mentorship.
- Teaches an education course without another adult present without prior department approval.
Proposing rulemaking related to permits and easements for construction on public lands and waters and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 13, “Permits and Easements for Construction and Related Activities on Public Lands and Waters,” and adopt a new Chapter 13, “Permits and Easements for Construction and Other Activities on Public Lands and Waters,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a,” 461A.4(1)“b,” 461A.25(2) and 462A.3.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 461A.4 and 462A.3.Purpose and Summary Chapter 13 is being rescinded and replaced to remove obsolete, ineffective, excessively burdensome, or redundant administrative rules. This rulemaking is being proposed pursuant to Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2). Chapter 13 provides a process for permitting construction and other activities that alter the physical characteristics of public lands and waters under the jurisdiction of the Commission. The Commission holds lands and waters under its jurisdiction in public trust and protects the interests of all citizens in those lands and waters. These proposed rules establish procedures and regulate the evaluation and issuance of permits for covered activities, which are generally referred to as sovereign lands construction permits. They also establish procedures for issuance of easements to public utilities and political subdivisions for activities that are determined to have a permanent effect on use and enjoyment of public lands and waters under Commission jurisdiction. The proposed rulemaking removes redundancies, improves clarity, and corrects typos relative to the existing chapter.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa.Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Casey Laskowski Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: casey.laskowski@dnr.iowa.govPublic Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Casey Laskowski via email. A conference call number will be provided prior to each hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call January 30, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 13 and adopt the following new chapter in lieu thereof: CHAPTER 13PERMITS AND EASEMENTS FOR CONSTRUCTION AND OTHER ACTIVITIES ON PUBLIC LANDS AND WATERS571—13.1(455A,461A,462A) Purpose. The commission holds lands and waters under its jurisdiction in public trust and protects the interests of all citizens in these lands and waters. 13.1(1) These rules establish procedures and regulate the evaluation and issuance of permits for construction or other activities that alter the physical characteristics of public lands and waters under the jurisdiction of the commission, including those activities that occur over or under such lands and waters. However, these rules do not apply to activities accomplished by the department and its agents that would only temporarily alter the characteristics of public lands and waters and that would be considered management practices. 13.1(2) These rules also establish procedures for issuance of easements to public utilities and political subdivisions for activities that are determined to have a permanent effect on use and enjoyment of public lands and waters under the jurisdiction of the commission. 13.1(3) These rules do not apply to: a. Impoundments regulated under Iowa Code chapter 462A. b. Docks regulated under 571—Chapter 16, except as specified herein, c. Stationary blinds regulated under rule 571—51.6(481A).571—13.2(455A,461A,462A) Affected public lands and waters. These rules are applicable to all fee title lands and waters under the jurisdiction of the commission; dedicated lands and waters under the jurisdiction of the commission and managed by the commission for public access to a meandered sovereign lake or meandered sovereign river; meandered sovereign lakes; meandered sovereign rivers; and sovereign islands, except those portions of the Iowa River and the Mississippi River where title has been conveyed to charter cities.571—13.3(455A,461A) Definitions. For the purposes of this chapter, the following definitions shall apply: "Applicant" means a person who applies for a permit or easement pursuant to these rules. "Authorized agent" means a person, designated by the applicant, who shall be responsible to perform part or all of the proposed activity and who certifies the application according to subrule 13.9(2). "Canal" means a narrow strip of water, artificially made, between two water bodies described in rule 571—13.2(455A,461A,462A). "Cantilever access structure" means a structure constructed for improving the proximity of access to a lake or river, that has a support footing located entirely on littoral or riparian land above the ordinary high water mark (OHWM), and that extends from the footing and is completely suspended above the water at normal water elevation with no occupation of the lakebed or riverbed. "Channel" means a narrow body of water that may be natural or artificially made. "Charter cities" means the city of Wapello operating under special charter enacted in 1856; the city of Camanche operating under special charter enacted in 1857; the city of Davenport by chapter 84, Acts of the 47th General Assembly; the cities of Burlington, Clinton, Dubuque, Fort Madison, Keokuk, and Muscatine by chapter 249, Acts of the 51st General Assembly; and the city of Le Claire by chapter 383, Acts of the 58th General Assembly. "Commercial boat ramp" means a boat ramp installed or maintained as part of a business to provide access to a public water body where use of the ramp is available to the general public. "Commission" means the natural resource commission. "Department" means the department of natural resources. "Director" means the director of the department of natural resources or the director’s designee. "Easement" means an easement authorized under Iowa Code section 461A.25. "Fee title lands and waters" means lands and waters for which title is acquired by deed or testamentary devise. "Lease" means a lease authorized under Iowa Code section 461A.25. "Littoral land" means land abutting a lake. "Meandered sovereign lakes" means those lakes which, at the time of the original federal government surveys, were surveyed as navigable and important water bodies and were transferred to the states upon their admission to the union to be transferred or retained by the public in accordance with the laws of the respective states. A list of these lakes is available on the department’s website. "Meandered sovereign rivers" means those rivers which, at the time of the original federal government surveys, were surveyed as navigable and important water bodies and were transferred to the states upon their admission to the union to be transferred or retained by the public in accordance with the laws of the respective states upon their admission to the union. A list of such rivers is available on the department’s website. "Native stone riprap" means broken limestone, dolomite, quartzite or fieldstone meeting Iowa department of transportation specification 4130, Class D (Iowa department of transportation’s standard specifications for highway and bridge construction, 2015 edition). "Ordinary high water mark" "OHWM" means the boundary between meandered sovereign lakes and rivers, except the Mississippi River, and littoral or riparian property. The OHWM is the limit where high water occupies the land so long and continuously as to wrest terrestrial vegetation from the soil or saturate the root zone and destroy its value for agricultural purposes. The OHWM is the boundary between upland and wetland as defined by the 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Midwest Region (Version 2.0). For Storm Lake in Buena Vista County and Clear Lake in Cerro Gordo County, the elevation has been established by adjudication. "Ordinary high water mark of the Mississippi River" means the elevation, as defined by criteria in the Code of Federal Regulations, 33 CFR Part 328.3 (November 13, 1986), promulgated by the U.S. Army Corps of Engineers, where the water exists at or below such elevation 75 percent of the time as shown by water stage records since construction of the locks and dams in the river. "Permit" means a sovereign lands construction permit issued pursuant to this chapter. "Permittee" means a person who receives a permit pursuant to these rules, which may also include the authorized agent if designated pursuant to these rules. "Person" means the same as defined in Iowa Code section 4.1. "Public boat ramp" means a boat ramp constructed to provide public access from public land to a water body. "Public lands" means land under the jurisdiction of the commission that is owned by the state or that has been dedicated for public access to a meandered sovereign lake or meandered sovereign river. "Public waters" means a water body under the jurisdiction of the commission that is owned by the state or that has been dedicated for public access to a meandered sovereign lake or meandered sovereign river. "Riparian land" means land abutting a river. "Sovereign island" means an island located within a sovereign meandered lake or a sovereign meandered river that was transferred to the state upon its admission to the union and whose title continues to be retained by the state. "Standard riprap" means broken stone, dolomite, quartzite, fieldstone, or broken concrete meeting Iowa department of transportation specification 4130, Class D (Iowa department of transportation’s standard specifications for highway and bridge construction, 2015 edition). Broken concrete shall not have reinforcing materials protruding from the surface of the riprap. Standard riprap shall not include petroleum-based materials.DIVISION IPERMITS571—13.4(455A,461A) Permits required. 13.4(1) General. No person shall temporarily or permanently place or build any structure or alter the characteristics of public lands or waters under the jurisdiction of or managed by the commission without a permit issued by the department prior to commencement of such activities as provided in the rules of this chapter. 13.4(2) Hazardous conditions. Trees, rock, brush or other natural materials located on sovereign or dedicated lands may be removed by persons without a permit issued pursuant to these rules only after the department, in its sole discretion, determines and evidences in writing that a hazard or other detrimental condition exists and that the proposed mitigative activity is appropriate. Such activity shall be limited only to the work required to address the immediate hazard or other detrimental condition. Any removal allowed by this rule shall conform to the requirements enumerated by the department regarding such removal, or the removal shall be deemed an unauthorized action resulting in damage to public lands and waters. Persons proposing to remove hazards must contact a local department official and request an exception to a permit. The department official shall inspect the hazard and provide written authorization to proceed or shall require the person to apply for a permit.571—13.5(455A,461A) Interest in real estate. A permit shall be construed to do no more than give the permit holder a license to alter an area as specifically set forth in the permit. The permit creates no interest, personal or real, in the real estate covered by the permit.571—13.6(455A,461A,462A) Evaluation. 13.6(1) In considering complete applications, the department will evaluate the impact of the proposed activities on public use and enjoyment of public lands or waters, on the natural resources in the areas within and surrounding the proposed activities, and the department’s present and future intended management for the area against the applicant’s identified and reasonable need to undertake the proposed activities and the viable alternatives that may exist with respect to the proposed activities. 13.6(2) In no event shall the department issue a permit for activities that: a. May result in the taking, possession, transport, import, export, processing, selling, buying, transporting, or receiving any species of fish, plants or wildlife appearing on lists referenced in Iowa Code section 481B.5, unless the permittee meets one of the exemptions enumerated in rule 571—77.4(481B). b. Have not received floodplain permits pursuant to Iowa Code chapter 455B and 567—Chapters 70 through 76, if applicable. c. May impact a littoral or riparian property owner without the express written permission of the littoral or riparian property owner. d. Do not comply with the review standards defined in rule 571—13.7(455A,461A,462A). e. Interfere with department obligations or limitations related to federal funds or agreements or other restrictive covenants that may be applicable to the affected area. f. Allow fill to be placed beyond the OHWM of waters described in rule 571—13.2(455A,461A,462A) for purposes of regaining land lost due to erosion. 13.6(3) The department may withhold a permit when the applicant has not obtained all other required permits or licenses necessary to construct and operate the proposed activity.571—13.7(455A,461A,462A) Review standards. Department staff shall conduct an environmental review of the application. In completing the environmental review, different bureaus and staff members of the department will provide input based on law, professional judgment, data and accepted scientific theory. The following standards shall apply to permits issued under the rules of this chapter: 13.7(1) Uses of public lands and waters. Development of public lands and public waters permitted by these rules shall be limited to projects that meet all of the following criteria. The projects: a. Are built to minimally impact the natural resources of public recreational use and navigation on such lands and waters. Specifically, applicants must demonstrate that the project accomplishes all of the following: (1) Does not negatively impact water quality in or around the proposed permitted area. (2) Minimizes erosion and sedimentation in or around the proposed area. (3) Minimizes detrimental impacts to biological and botanical resources in or around the proposed area, including upland, wetland and sensitive areas and unique community structures. (4) Complies with laws and regulations related to threatened and endangered species, through both federal and state programs. b. Utilize the smallest amount of public lands and public waters. c. Do not convert the public lands and public waters to an exclusive or private use. d. Are the only viable method for conducting the activities, and no viable alternatives to constructing on public lands exist. 13.7(2) Shoreline erosion protection and retaining walls. Shoreline erosion protection activities may be permitted if the activities are in compliance with rule 571—13.6(455A,461A,462A) and the following additional standards: a. Shoreline erosion protection activities on meandered sovereign lakes shall be limited to placement of native stone riprap, extending to a maximum of four feet horizontally within or below the elevation contour line of the OHWM. Placement of earth fill within the OHWM shall not be allowed. Retaining walls, sheet piling, gabions or other retaining structures shall be placed above the OHWM. When such retaining structures are placed at the OHWM, they must be faced with native stone riprap. b. Shoreline erosion protection activities on meandered sovereign rivers, except the Mississippi River, shall be limited to placement of approved in-stream erosion control structures or native stone or standard riprap. Riprap shall extend riverward from the OHWM and may not exceed a slope of two feet horizontal to one foot vertical (2:1). Placement of earth fill below the OHWM shall not be allowed. Retaining walls, sheet piling, gabions or other retaining structures shall not be placed within the OHWM. When such retaining structures are placed at the OHWM, they must be faced with riprap. c. Shoreline erosion protection activities on the Mississippi River shall be limited to placement of approved in-stream erosion control structures or native stone riprap. Riprap shall extend riverward from the OHWM and may not exceed a slope of two feet horizontal to one foot vertical (2:1). Placement of earth fill within the OHWM shall not be allowed. Retaining walls, sheet piling, gabions or other retaining structures shall not be placed within the OHWM. When such retaining structures are placed at the OHWM, they must be faced with native stone riprap. d. Retaining walls on all meandered sovereign lakes and meandered sovereign rivers. The landowner shall maintain the wall system at all times and take corrective measures to eliminate any nuisance condition, repair deterioration of the structure, eliminate erosion around the structure, and repair damage to the structure caused by the action of the water or ice. When a retaining wall or other structure placed on the shoreline prevents the public from traversing the shoreline, the landowner shall grant the public a license to walk from the landowner’s property within 15 feet of the top of the wall or structure for the purpose of traversing the shoreline.Notwithstanding the prohibitions in this subrule, nothing in this subrule shall prohibit activities that would be part of habitat development or natural resources mitigation projects constructed or approved by a political subdivision of the state and subject to review under these rules. 13.7(3) Quality of the applicant. Applicants or authorized agents who have a current violation for another project are not eligible for consideration for a permit under these rules unless and until all other noncompliant projects have been remediated and any enforcement actions related to the same have been resolved or satisfied. 13.7(4) Cantilever access structures. Permanent cantilever access structures that lawfully existed and were lawfully permitted under prior sovereign lands construction permit rules as of April 15, 2009, shall be deemed lawfully permitted under these rules. All cantilever access structures that were not lawfully installed prior to April 15, 2009, or were installed after April 15, 2009, shall be regulated as docks by 571—Chapter 16. 13.7(5) Beaches, canals, commercial boat ramps, and channels. Permits may be granted to maintain existing beaches, canals, and channels lawfully installed as of April 15, 2009, to ensure the navigation and safety of those existing lawful beaches, canals, and channels. The department shall not permit new beaches, canals, commercial boat ramps or artificial channels or expansion of existing beaches, canals, commercial boat ramps or artificial channels, except that the department may permit new beaches, canals, commercial boat ramps and artificial channels and expansions of existing beaches, canals, commercial boat ramps and artificial channels when such establishment or expansion would be under the jurisdiction of a political subdivision of the state, would be accomplished to provide public access to the water, and would meet the review standards established by these rules.571—13.8(455A,461A) Leases or easements as a condition of permits. If a permitted structure or its use will have a continuing impact on the availability or desirability of public lands or public waters, the permit shall be conditioned on the requirement that the permittee obtain a lease or easement under Division II of this chapter. However, a lease or easement shall not be required for proposed activities that are wholly within the scope of the permittee’s littoral or riparian rights.571—13.9(455A,461A,462A) Permit application. Applicants shall apply for permits using an application form provided by the department. Permit application resources can be found on the Permit and Environmental Review Management Tool (PERMT) at programs.iowadnr.gov/permt/. Applicants shall state the need for the proposed construction or use, the availability of alternatives, and the measures proposed to prevent, minimize or mitigate adverse impacts to natural resources or public use of the affected area. The department reserves the right to refuse to review incomplete applications. Each application, including all amendments, shall be signed by the applicant and authorized agent if one shall be so appointed by the applicant. The applicant’s signature shall acknowledge that the application is accurate and made in good faith. 13.9(1) For purposes of this rule, the department will deem an application complete if the application meets all of the following criteria. The application: a. Is provided on the department’s form, and all fields are completed and legible; b. Includes the name(s), mailing address and telephone number of the applicant(s) and authorized agent(s), if applicable; c. Describes the proposed activity, including: (1) Physical address and legal description of the location where the proposed activity is to occur; a written description of existing natural and man-made structures and features; an aerial photograph, if possible or available; and a ground-level photograph(s) showing the area where the activity is proposed to occur; (2) Schematic or design plans, including cross sections and plan views, that accurately and clearly depict the proposed activities; (3) Description of the construction methods used to complete the project, the methods used to transport material to the site, and the type and amount of material to be used; (4) Description of measures proposed to prevent or minimize adverse impacts on the property in the proposed area; (5) Description of any borrows or disposal sites, including the location of any borrows or disposal sites and the type and amount of material to be borrowed or disposed of in them; d. Includes identification of the OHWM, if the proposed activities are in or near a meandered sovereign lake or meandered sovereign river; e. Describes alternative plans to undertake the activity that may be available to the applicant; f. Identifies the need for the proposed activity in the proposed project area; g. Provides a statement of consent for the department to enter the property during the term of the proposed permit. 13.9(2) For applications that provide for an authorized agent to perform part or all of the proposed activities, the following additional information shall be required to constitute a complete application: a. Statement signed by the authorized agent and applicant; b. Statement signed by the authorized agent acknowledging that the authorized agent is aware of such designation and is responsible to complete the identified work; and c. Description of the work to be completed by the authorized agent.571—13.10(455A,461A) Additional information or analysis required for permit review. 13.10(1) The director may require an applicant to provide additional information, at the applicant’s sole cost, necessary to complete review of the application, including but not limited to study of alternatives to construction on public lands and waters, social and environmental impacts of the proposed activities, professional surveys to establish the social and environmental impacts of the proposed activities, professional land surveys to delineate or show real property boundaries and other characteristics, and a professional real estate appraisal of the value that a permit may convey. 13.10(2) If the applicant does not respond to a request for additional information within 90 days of such request being made by the department, the department may withdraw the application from consideration and the applicant must reapply for the permit. 13.10(3) When the director determines that the proposed activity will significantly affect the public interest, the director may hold a public meeting in the vicinity of the proposed activity. When a public meeting is held, the director shall consider public input in conjunction with other information collected or provided as part of the application review when acting on a permit application.571—13.11(455A,461A) Permit issued or denied. The department shall promptly review all permit applications, and the director shall issue a permit or deny all or part of an application upon completion of review. A permit may include specified conditions denying the application in part and the reasons for the conditions. The denial of a permit may include a proposed removal order. A permit denial shall be final agency action, unless the unsuccessful applicant otherwise has a constitutional right to a contested case, in which case an administrative appeal pursuant to procedures in 571—Chapter 7 shall be available. The unsuccessful applicant’s request for a contested case may include a request for a waiver under the provisions of Iowa Code section 17A.9A and 571—Chapter 11. The decision of the presiding officer in a contested case shall constitute final agency action.571—13.12(455A,461A) Authorized agent. When an authorized agent is designated on the application for a permit and acknowledges the same, that authorized agent shall be responsible in the same manner as the permittee to comply with the terms of the permit issued.571—13.13(455A,461A) Inspection. The department may inspect the location during the term of the permit to ensure that the permitted activities comply with the terms of the permit. The permittee shall grant the department the right to access the permitted activities for purposes of inspecting the permitted activities during the term of the permit. If the permittee denies permission for entry, the department may obtain an order from the Iowa district court for the county in which the permitted activities or the majority of the permitted activities occur, as needed, to enable the department to carry out its inspection duty. The intent of the inspection is to evaluate compliance with permit conditions and the impact to the natural resources and the public’s recreational use of the area.571—13.14(455A,461A) Additional information or analysis required during term of the permit. The director may require a permittee to provide additional information, at the permittee’s sole cost, necessary to ensure that the permittee is complying with the terms of the permit, including but not limited to social and environmental impacts of the activities, professional surveys to establish the social and environmental impacts of the activities, professional land surveys to delineate or show real property boundaries and other characteristics, and a professional real estate appraisal of the value that a permit may convey or has conveyed.571—13.15(455A,461A) Violations; types of enforcement actions; citation and notice of violation. 13.15(1) Violations. a. A person shall be in violation of these rules and Iowa Code section 461A.4 in the event the person does any of the following: (1) Performs construction on or undertakes other activities that alter the physical characteristics of public lands or waters under the jurisdiction of or managed by the commission without a permit required by these rules; (2) Performs such work out of conformance with specific requirements enumerated in a permit issued in accordance with these rules; or (3) Fails to comply with an order of the commission under these rules. b. Each day of a violation shall be considered a separate offense. 13.15(2) Types of enforcement actions. A person who violates these rules shall be subject to either of the following: a. Criminal enforcement.A peace officer of the state may issue a citation for each offense. A person who is found guilty of violating these rules shall be charged with a simple misdemeanor for each violation. b. Civil enforcement.A civil penalty may be assessed in conformance with Iowa Code section 461A.5B and rule 571—13.17(455A,461A). Written notice of the violation(s) shall be given to the person against whom disciplinary action is being considered. The notice shall state the informal and formal procedures available for determining the matter. If agreement as to appropriate disciplinary sanction, if any, can be reached between the director and the person against whom disciplinary action is being considered, a written stipulation and settlement between the department and the person shall be entered. Such a settlement shall take into account how the corrective actions described in subrule 13.15(3) shall be accomplished. In addition, the stipulation and settlement shall recite the basic facts and violations alleged, any facts brought forth by the person, and the reasons for the particular sanctions imposed. If an agreement as to appropriate disciplinary action, if any, cannot be reached, the director may issue an administrative order as described in rule 571—13.17(455A,461A). 13.15(3) Actions to be taken upon receipt of citation or notice of violation. A person who has violated these rules shall cease the specified unauthorized activity upon receipt of a citation or as may be stipulated in the notice of violation. The notice of violation or a written notice accompanying the citation from the department shall require the person to take one or more of the following actions within a specified time: a. Apply for a permit to authorize completion of construction or maintenance and use, as applicable; b. Remove materials and restore the affected area to the condition that existed before commencement of the unauthorized activity; c. Remediate the affected area in a manner and according to a plan approved by the department. The department may enforce such a remediation at the expense of the permittee, adjacent landowner or culpable party.571—13.16(455A,461A) Removal orders. If the violation includes the unauthorized placement of materials or personal property on the public lands or public waters under the jurisdiction of the commission, and the person, who may include a permittee or authorized agent but may not, fails to comply with the action required by the notice, the director may cause a proposed removal order to be issued to the person responsible for such placement. The proposed removal order shall specify the removal action required and include notice of the right to an administrative appeal including a contested case hearing under procedures in 571—Chapter 7. The proposed decision in a contested case may be appealed to the commission under 571—Chapter 7. If there is no appeal from a proposed decision that includes a removal requirement, the proposed decision shall be presented to the director for review and adoption. A removal order approved by the director shall constitute final agency action under Iowa Code sections 461A.4 and 461A.5A and may be enforced through an original action in equity filed in a district court of the state by the attorney general on behalf of the department and the commission.571—13.17(455A,461A) Civil penalties. The department may assess a civil penalty of up to $5,000 per offense for each violation of these rules, provided the department does not utilize a criminal citation for a violation. Each day the violation continues shall be a separate offense or violation. Penalties shall be assessed through issuance of an administrative order of the director which recites the facts and the legal requirements that have been violated and a general rationale for the prescribed fines. The order also may be combined with any other order authorized by statute for mandatory or prohibitory injunctive conditions and is subject to normal contested case and appellate review under procedures in 571—Chapter 7. The proposed decision in a contested case may be appealed to the commission under 571—Chapter 7. The commission may refer orders that include singular or cumulative penalties over $10,000 to the attorney general’s office.571—13.18(455A,461A) Report of completion. Once an approved activity is completed, the permittee shall notify the department through PERMT using the project’s PERMT identification number created through the original application process. The activity shall be subject to final approval before the department determines that the conditions of the permit have been met.571—13.19(455A,461A) Final inspection. Once the permittee notifies the department pursuant to rule 571—13.18(455A,461A), the department shall inspect the permitted area to ensure that the permittee has complied with the terms of the permit. Such inspection shall occur within 60 days of the department’s receipt of the notice provided pursuant to rule 571—13.18(455A,461A). In the event the department does not provide final inspection within 60 days of the department’s receipt of the notice provided pursuant to rule 571—13.18(455A,461A), the permittee shall be deemed compliant and the permit shall expire. The intent of this inspection is to evaluate compliance with permit conditions and the impacts to the natural resources and the public’s recreational use of the area.571—13.20(455A,461A) Permit extensions. Prior to the expiration of a permit, a permittee or an authorized agent may submit a written request by email to the department for an extension of the permit. In evaluating whether to grant the extension, the department will consider the work completed, the work to be performed, the extent to which the permit extension is needed and the extent to which the permittee has made efforts to meet the obligations of the original permit. The department reserves the right to modify the conditions of a permit as part of any extension. An extension granted by this rule is not a project modification.571—13.21(455A,461A) Project modifications. If projects are modified to the extent that the additional or modified work would not be allowed within the original permit, the permittee must apply for a new permit for the additional or modified work.571—13.22(455A,461A) Transferability. Permits are transferable only upon written approval of the department and only after the department is satisfied that the permitted activities will not change and the new permittee would be eligible to receive a permit under subrule 13.7(3).571—13.23() Reserved.571—13.24() Reserved.571—13.25() Reserved.571—13.26() Reserved.571—13.27() Reserved.571—13.28() Reserved.571—13.29() Reserved.571—13.30() Reserved.571—13.31() Reserved.571—13.32() Reserved.571—13.33() Reserved.571—13.34() Reserved.571—13.35() Reserved.571—13.36() Reserved.571—13.37() Reserved.571—13.38() Reserved.571—13.39() Reserved.571—13.40() Reserved.571—13.41() Reserved.571—13.42() Reserved.571—13.43() Reserved.571—13.44() Reserved.571—13.45() Reserved.571—13.46() Reserved.571—13.47() Reserved.571—13.48() Reserved.571—13.49() Reserved.571—13.50() Reserved.DIVISION IILEASES AND EASEMENTS571—13.51(455A,461A) Leases. Where a permitted structure or related activity will have a continuing impact on the availability or desirability of public lands or public waters or exceeds the scope of littoral or riparian rights, the permittee must enter into a lease covering the area affected by the construction. Fees for leases shall be determined by 571—Chapter 17 or other methods approved by the commission and executed pursuant to Iowa Code section 461A.25. Requests for leases shall be made on the form and shall include the information required by rule 571—13.9(455A,461A,462A) under Division I of this chapter. The department may grant a lease if, in the department’s sole discretion, the lease will not impair the state’s intended use of the area during the term of the lease; the lease will not negatively impact a federal interest, including related deed restrictions, related to the area during the term of the lease; and the lease will not result in an exclusive use.571—13.52(455A,461A) Easements. The director may grant an easement to political subdivisions and utility companies pursuant to Iowa Code section 461A.25, provided the following terms are met: 13.52(1) Requests for easements shall be made on the form and shall include the information required by rule 571—13.9(455A,461A,462A) under Division I of this chapter. The department may grant an easement if, in the department’s sole discretion, the easement will not impair the state’s intended use of the area during the term of the easement or the easement will not negatively impact a federal interest, including related deed restrictions, related to the area during the term of the agreement. 13.52(2) The value of an easement shall be determined by the director based upon a real estate appraisal or other method approved by the commission, as evidenced in the meeting minutes thereof. In addition to fees for easements, the director may assess the applicant for the reasonable transaction costs associated with the issuing of an easement including the cost of appraisals, other methods of establishing values, and land surveys. In determining the fee for an easement, the department may consider the value the proposed activity may contribute to the department’s management of the affected property. 13.52(3) Recipients of any easements granted pursuant to this rule shall assume liability for structures installed pursuant to such easement and shall comply with the standards enumerated in rule 571—13.7(455A,461A,462A), as applicable, in the sole discretion of the department.571—13.53(455A,461A) Appeals. The department and the commission are under no legal obligation to provide any person a legal interest in property under the jurisdiction of the commission. An applicant may appeal to the director a decision of the department regarding leases and easements and request that the director reconsider a condition of an easement or a lease or a denial of an easement or a lease. The determination of the director shall be final agency action. These rules are intended to implement Iowa Code sections 455A.5, 461A.4, 461A.5A, 461A.5B, 461A.6, 461A.18, 461A.25 and 462A.3.ARC 7246CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to concessions and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 14, “Concessions,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 461A.3 and 461A.4.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 461A.3 and 461A.4.Purpose and Summary This proposed rulemaking establishes rules governing the advertising and notice procedure, bidding process, evaluation and selection of a concessionaire, and other contract terms related to concession operations in Iowa state parks and recreation areas. This proposed rulemaking would allow for longer-term/larger scope concession contracts, which will provide more security and efficiency for the concessionaires. It will also provide additional visitor services and experiences in parks and recreation areas while decreasing the amount of time Department of Natural Resources (Department) staff spend on paperwork and evaluation of concessionaires/vendors. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Specifically, there were provisions in this chapter that were outdated or repetitive to statute. These provisions have been removed from the new version. Additionally, the length of the contract term for concessions was extended.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 31, 2024. Comments should be directed to: Kim Bohlen Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: kim.bohlen@dnr.iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows. The hearings will also be available online. Persons who wish to attend the conference call or Google Meet virtual meeting should contact Kim Bohlen via email. January 30, 2024 12 noon to 1 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 31, 2024 4 to 5 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 14 and adopt the following new chapter in lieu thereof: CHAPTER 14TITLE IILICENSES, PERMITS AND CONCESSION CONTRACTSCONCESSIONS571—14.1(461A) Definitions. "Concessionaire" means a person or firm granted a contract to operate a concession in a state park or recreation area. The concessionaire is an independent contractor and not an employee or agent of the department. "Concession operation" means operating a business within a concession area in a state park or recreation area including, but not limited to, boat rental, snack food sales, beach operation, and sale of fishing bait and tackle. "Department" means the same as defined in Iowa Code section 461A.1(2). "Director" means the same as defined in Iowa Code section 461A.1(3). "Friends group or organization" means an organization incorporated under Iowa Code chapter 504 as a not-for-profit group which has been formed solely for the purposes of promoting and enhancing a particular state park, recreation area, or the Iowa state park system, or any combination of the three. "Gross receipts" means the total amount received, excluding sales tax, realized by or accruing to the concessionaire from all sales, for cash or credit, of services, accommodations, materials, or other merchandise pursuant to rights granted in the contract, including gross receipts of subconcessionaires. All moneys paid into coin-operated devices, except telephones, shall be included in gross receipts. "New concession" means the right to establish a concession operation in an area that does not currently have a concessionaire or an area where the department wishes to invite bids for a mobile type concession operation. "Newspaper" means the same as described in Iowa Code section 618.3.571—14.2(461A) Advertising or notice procedure. 14.2(1) New concession. a. Advertising. When the department desires to obtain a new concession operation to offer multiple concession services in an area, the department shall advertise the request for proposals on the targeted small business website and the department’s requests for proposals website. The department shall advertise a notice for the request for proposals in one newspaper of statewide circulation and in at least one newspaper designated by the county to be used for official publications in the county in which the state park or recreation area is located. b. The notice shall state the following: (1) The names and location of the area(s) in which concession operations are available. (2) The general types of services the department would expect a concessionaire to furnish. (3) How to obtain the request for proposals information. (4) The deadline for submission of proposals to the department. c. The department shall allow a minimum of 15 days between the date of publication of advertisements and the deadline for submission of proposals. d. The request for proposals shall include the following information: (1) A scope of work that contains detailed information regarding the types of services expected to be offered by the concessionaire and the history of the gross receipts reported for the previous five operating years by the prior concessionaire (if applicable); bid terms acceptable to the department; the name, address, and telephone number of the person to contact regarding the request for proposals; and the date and time by which the proposals must be received by the department. (2) A map of the park in which the concession operation is proposed. (3) A sample of the contract the successful bidder will be expected to sign. (4) Samples of report forms that the concessionaire must submit to the department while the concession is in operation. 14.2(2) Renewal of existing concession operation. a. The department may, at its option, mutually agree with the concessionaire to renew a contract during or at the end of its term. A concessionaire may request renewal during the term of a contract after a minimum of three years of concession operation and a minimum of six months prior to expiration of the existing contract. The provisions of the renewal contract shall be negotiated between the department and the concessionaire. Should either party choose not to renew the contract, appropriate notice shall be sent to the other party four months prior to the expiration date of the existing contract, and the department may advertise for bids in accordance with this chapter. b. The department shall publish a notice of intent to renew a concession contract that has been negotiated in accordance with paragraph 14.2(2)“a.” The notice shall be published in the same manner as provided in paragraph 14.2(1)“a” and shall solicit public comments regarding the renewal. c. The department director shall, upon review of comments received, determine whether to solicit bids or proceed with the renewal of the existing contract and shall notify the concessionaire of the decision in writing. If the director denies the renewal request, the existing concessionaire may request a contested case proceeding pursuant to Iowa Code chapter 17A.571—14.3(461A) Bidding process. 14.3(1) Proposals. Persons interested in operating a concession in a state park or recreation area shall submit a proposal in the format requested in the request for proposals. It is the bidder’s responsibility to inspect the area proposed for concession operation and be fully aware of the condition and physical layout of the area. The proposal shall also include an explanation of any proposed operation not mentioned in the request for proposals. Concession facilities shall be bid on an “as is” basis unless the department agrees in writing to undertake certain improvements. a. The department reserves the right to reject any or all bids. b. If no bids are received for a concession operation, the department may: (1) Readvertise for bids; or (2) Contact interested persons and attempt to negotiate a contract; or (3) Determine that there will be no concession operation in that particular area that year. 14.3(2) Vending machines. a. Placement of vending machines in state parks and recreation areas shall not be subject to the advertising and bidding process established by this chapter. b. Vending machines may be placed in state parks and recreation areas only by the publisher or distributor of the newspaper to be sold, the distributor of the soft drink to be sold in the machines, or by private vending machine companies. c. Companies placing vending machines in state parks and recreation areas must submit a proposal to the department that states the location, number, and type of vending machines to be placed; the price(s) that will be charged to the public; and the proposed fee or commission to be paid to the state. d. Any fees or commissions to be paid by the vendor to the state shall be paid directly to the department’s central office in Des Moines, Iowa. e. The department will not install new electrical lines, concrete pads, or any other items needed to enable installation of vending machines. 14.3(3) Firewood sales. a. Firewood sales contracts shall not be subject to the advertising and bidding process established by this chapter. b. Persons interested in selling firewood in a state park or recreation area that has no other concessionaire, or if the concessionaire has declined the opportunity to sell firewood, shall submit a request to the department that identifies the area(s) where the firewood would be sold, the price to be charged to the public, and the proposed fee or commission to be paid to the state. c. All firewood sold or distributed in state parks and recreation areas shall be accompanied with a firewood label that meets labeling requirements identified in rule 21—46.16(177A). d. All firewood that originates from a quarantined area and that is sold or distributed in state parks and recreation areas must be certified by the United States Department of Agriculture to show that the firewood has been processed or treated according to applicable federal regulations. 14.3(4) Friends group or organization. a. Concession contracts with a friends group or organization, as defined in rule 571—14.1(461A), in state parks and recreation areas shall not be subject to the advertising and bidding process established by this chapter. b. A friends group or organization shall submit a proposal to operate a concession operation at a particular state park or recreation area. The proposal shall state the services to be provided, the proposed hours of operation, and proposed staffing. c. All net proceeds from the sale of merchandise and other concession services shall be spent on state park or recreation area improvement projects.571—14.4(461A) Selection of a concessionaire. The department shall select the concessionaire it determines to be best suited for a concession operation in a state park or recreation area upon evaluation of the following information:- The services proposed in the concession operation.
- The concessionaire’s managerial experience and other concession-related experience.
- The concessionaire’s financial stability, based upon a review of the concessionaire’s existing profitability, equity, available cash, and other applicable financial data.
- The annual lease payment bid.
- The length of contract proposed.
- A check of all business and personal references given in the proposal.
- The use of environmentally friendly practices and materials including, but not limited to, participation in recycling programs, use of items that contain recycled-content materials, use of energy-efficient appliances and equipment, and light pollution reduction.
- The results of a criminal background check and driver’s license record check.
Proposing rulemaking related to general license regulations and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 15, “General License Regulations,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 456A.24(14), 481A.134, 481A.135, 483A.1, 483A.9A and 483A.10.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 456A.24(14), 481A.134, 481A.135, 483A.1, 483A.9A and 483A.10.Purpose and Summary Chapter 15 governs hunting, fishing, and trapping license sales, fees, general administration, and a framework for license revocation and suspensions. Iowa law requires that most individuals obtain a license prior to engaging in fish- and game-based recreational pursuits. Chapter 15 ensures efficient, timely, and consistent license administration. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Specifically, there were numerous provisions in this chapter that were repetitive of statute or of rules elsewhere. There were other provisions that were outdated, such as those related to paper licenses and traditional wet ink signatures. These provisions have been removed from the new version of the chapter.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Mark Warren Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: mark.warren@dnr.iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 12 noon Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 15 and adopt the following new chapter in lieu thereof: CHAPTER 15GENERAL LICENSE REGULATIONS[Prior to 12/31/86, see Conservation Commission[290] Chs 17, 66, 67, and 75]571—15.1(483A) Scope. The purpose of this chapter is to provide rules for license fees, sales, refunds and administration; implement the wildlife violator compact and penalties for multiple offenses; and administer special licenses available for hunting and fishing.DIVISION ILICENSE SALES, REFUNDS AND ADMINISTRATION571—15.2(483A) Definitions. For the purposes of this division, the following definitions shall apply, in addition to those found in Iowa Code chapter 483A: "Administration fee" means the fee collected by the department to pay a portion of the cost of administering the sale of licenses through electronic means. "Immediate family member" means the spouse, a domestic partner, and all minor children of the licensee or person seeking a license. "Licensee" means a person who applies for and receives a license under these rules from the department. "Retail" means the sale of goods or commodities to the ultimate consumer, as opposed to the sale of goods or commodities for further distribution or processing. "Wholesale" means the sale of goods or commodities for resale by a retailer, as opposed to the sale of goods or commodities to the ultimate consumer.571—15.3(483A) Form of licenses. Every license shall contain a general description of the licensee. At the time of application, the applicant for a license must provide the applicant’s date of birth and either a social security number or a valid Iowa driver’s license number. The license shall be signed by the applicant and shall clearly indicate the privilege granted.571—15.4(483A) Administration fee. An administration fee of $1.50 per privilege purchased shall be collected from the purchaser at the time of purchase, except upon the issuance of free landowner deer and turkey hunting licenses, free annual hunting and fishing licenses, free annual fishing licenses, free group home fishing licenses, and boat registrations, renewals, transfers, and duplicates. An administrative fee of $3.65 will be collected from the purchaser at the time of boat registration, renewal, transfer, and duplicate purchases.571—15.5(483A) Electronic license sales. 15.5(1) Designation as license agent. The director may designate a retail business establishment, an office of a governmental entity, or a nonprofit corporation as an agent of electronically issued licenses in accordance with the provisions of this rule. 15.5(2) Application. Application forms to sell electronically issued licenses may be secured by a written or in-person request to the Licensing Section, Department of Natural Resources, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319-0034. The following information must be provided on the application form: a. The legal name, address, and telephone number of the entity applying for designation; b. The hours open for business and general service to the public; c. A brief statement of the nature of the business or service provided by the applicant; d. Type of Internet connection (dial up or high speed) used for accessing the electronic licensing system; and e. A signature by an owner, partner, authorized corporate official, or public official of the entity applying for designation. 15.5(3) Application review. a. The department shall approve or deny the application to sell electronically issued licenses based upon the following criteria: (1) The need for a license agent in the area; (2) The hours open for business or general service to the public; (3) The potential volume of license sales; (4) The apparent financial stability and longevity of the applicant; (5) The number of point-of-sale (POS) terminals available to the department; and (6) Type of Internet connection (dial up or high speed) used for accessing the electronic licensing system. b. If necessary, the department may utilize a waiting list for license agent designation. The order of priority for the waiting list will be determined by the time of submittal of a complete and correct application and receipt of the required security deposit, as outlined in the application. 15.5(4) Issuance of electronic licensing equipment. Upon the director’s approval of an application under this rule and designation of a license agent for electronic license sales, the equipment necessary to conduct such sales will be issued to the license agent by the department subject to the following terms and conditions: a. Prior to the issuance of the electronic licensing equipment, the approved license agent shall furnish to the department an equipment security deposit in an amount to be determined by the department. b. Prior to the issuance of the electronic licensing equipment, the approved license agent shall enter into an electronic license sales agreement with the department which sets forth the terms and conditions of such sales, including the authorized amounts to be retained by the license agent. c. Prior to the issuance of the electronic licensing equipment, the approved license agent shall furnish to the department a signed authorization agreement for electronic funds transfer pursuant to subrule 15.5(5). d. Electronic licensing equipment and supplies must be stored in a manner to provide protection from damage, theft, and unauthorized access. Any damage to or loss of equipment or loss of moneys derived from license sales is the responsibility of the license agent. e. Upon termination of the agreement by either party, all equipment and supplies, as outlined in the agreement, must be returned to the department. Failure to return equipment and supplies in a usable condition, excluding normal wear and tear, will result in the forfeiture of deposit in addition to any other remedies available to the department by law. 15.5(5) License fees. All moneys received from the sale of licenses, less and except the agreed-upon service fee, must be immediately deposited and held in trust for the department. a. All license agents must furnish to the department a signed authorization agreement for electronic funds transfer authorizing access by the department to a bank account for electronic transfer of license fees received by the license agent. b. The amount of money due for accumulated sales will be drawn electronically by the department on a weekly basis. The license agent shall be given notice of the amount to be withdrawn at least two business days before the actual transfer of funds occurs. The license agent is responsible for ensuring that enough money is in the account to cover the amount due. c. License agents may accept or decline payment in any manner other than cash, such as personal checks or credit cards, at their discretion. Checks or credit payments must be made payable to the license agent, not to the department. The license agent shall be responsible for ensuring that the license fee is deposited in the electronic transfer account, regardless of the payment or nonpayment status of any check accepted by the license agent. 15.5(6) Termination. Upon the termination of the electronic license sales agreement pursuant to subrule 15.5(7) or 15.5(8), the department may disconnect or otherwise block the license agent’s access to the electronic licensing system. 15.5(7) Equipment shut down and termination. The department reserves the right to disconnect the license agent’s access to the electronic licensing system or terminate the license agent’s electronic license sales agreement for cause. Cause shall include, but is not limited to, the following: a. Failing to deposit license fees into the electronic transfer account in a sum sufficient to cover the amount due for accumulated sales; b. Charging or collecting any fees in excess of those authorized by law; c. Discriminating in the sale of a license in violation of state or federal law; d. Knowingly making a false entry concerning any license sold or knowingly issuing a license to a person who is not eligible for the license issued; e. Using license sale proceeds, other than the service fee, for personal or business purposes; f. Disconnecting or blocking access to the electronic licensing system for a period of 30 days or more; or g. Violating any of these rules or the terms of the electronic license sales agreement. Repeated violations of these rules may result in termination of the license agent’s electronic license sales agreement. 15.5(8) Voluntary termination. A license agent may terminate its designation and the electronic license sales agreement at its discretion by providing written notice to the department. Voluntary termination shall become effective 30 days after the department’s receipt of notice.571—15.6(483A) Refund or change requests for special deer and turkey hunting licenses and general licenses. 15.6(1) Death of licensee. The fee for a deer or turkey hunting license will be refunded to the licensee’s estate when a licensee’s death predates the season for which the license was issued and a written request from the licensee’s spouse, executor or estate administrator is received by the department within 90 days of the last date of the season for which the license was issued. 15.6(2) Military duty. The fee for a deer or turkey hunting license will be refunded if the licensee is a member of the armed forces and is either deployed or activated for a national or state emergency during the season for which the license was issued. A written refund request must be received by the department within 90 days of the last date of the season for which the license was issued. 15.6(3) License changes. The department will attempt to change a licensee’s choice of season or type of license if a written request is received by the licensing section prior to the start of the established season. 15.6(4) Other refund requests. Except as previously described in this rule, the department will not issue refunds for any licenses.571—15.7(483A) Proof of residency required. The department shall have the authority to require persons applying for or who have received resident licenses to provide additional information to determine the person’s principal and primary residence or domicile and residency status. Whether a person was issued resident or nonresident licenses by the department in previous years shall not be a determining factor of residency. Persons required to provide additional information under this rule shall be notified in writing by the department and shall have 60 days to submit all required information to the department.571—15.8(483A) Residency status determination. Upon receipt of information requested from the person, the department may determine whether the person is a resident or a nonresident for purposes of these rules and Iowa Code chapter 483A. The department shall provide the person with written notice of the finding.571—15.9(483A) Suspension or revocation of licenses when nonresidents obtain resident licenses. 15.9(1) Suspension or revocation of license. If the department finds that a nonresident has obtained a resident license, the department shall provide written notice of intent to revoke and suspend hunting, fishing, or trapping licenses as provided in 571—Chapter 7. If the person requests a hearing, it shall be conducted in accordance with 571—Chapter 7. 15.9(2) Dates of suspension or revocation. The suspension or revocation shall be effective upon failure of the person to request a hearing within 30 days of the notice described in subrule 15.9(1) or upon issuance of an order affirming the department’s intent to suspend or revoke the license after the hearing. The person shall immediately surrender all licenses and shall not apply for or obtain new licenses for the full term of the suspension or revocation.571—15.10(483A) Licenses—fees. Except as otherwise provided by law, a person shall not fish, trap, hunt, harvest, pursue, catch, kill, take in any manner, use, have possession of, sell, or transport all or a part of any wild animal, bird, game, turtle, or fish, the protection and regulation of which is desirable for the conservation of resources of the state, without first obtaining a license for that purpose and paying a fee as follows: 15.10(1) Residents. a. Fishing license, annual — $20. b. Fishing license, three-year — $60. c. Fishing license, seven-day — $13.50. d. Fishing license, one-day — $8.50. e. Third-line fishing permit, annual — $12. f. Fishing license, lifetime, 65 years of age or older — $59.50. g. Fishing license, lifetime, disabled veteran or POW — $5. h. Paddlefish fishing license, annual — $23.50. i. Trout fishing fee — $12.50. j. Boundary waters sport trotline license, annual — $24. k. Hunting license, annual — $20. l. Hunting license, annual, including the wildlife habitat fee — $33. m. Hunting license, three-year, including the wildlife habitat fee — $99. n. Hunting license, lifetime, 65 years of age or older — $59.50. o. Combination hunting and fishing license, annual, including the wildlife habitat fee — $53. p. Combination hunting and fishing license, lifetime, disabled veteran or POW — $5. q. Deer hunting license — $30. r. First antlerless deer license — $25.50. s. Additional antlerless deer license — $12. t. Wildlife habitat fee — $13. u. Migratory game bird fee — $10. v. Wild turkey hunting license — $26.50. w. Fur harvester license, annual — $24. x. Fur harvester license, annual, including the wildlife habitat fee — $37. y. Fur harvester license, annual, under 16 years of age — $5.50. z. Fur harvester license, lifetime, 65 years of age or older — $59.50. aa. Fur dealer license, annual — $264. bb. Aquaculture unit license, annual — $30. cc. Retail bait dealer license, annual — $36. dd. Wholesale bait dealer license, annual — $146.50. ee. Game breeder license, annual — $18. ff. Taxidermy license, annual — $18. gg. Trout fishing license, lifetime, 65 years of age or older — $63. hh. Trout fishing license, lifetime, disabled veteran — $63. ii. Fishing license, annual, veteran — $5. jj. Combination hunting and fishing license, annual, veteran — $5. 15.10(2) Nonresidents. a. Fishing license, annual — $46. b. Fishing license, seven-day — $35.50. c. Fishing license, three-day — $18.50. d. Fishing license, one-day — $10. e. Third-line fishing permit, annual — $12. f. Paddlefish fishing license, annual — $47. g. Trout fishing fee — $15.50. h. Boundary waters sport trotline license, annual — $47.50. i. Hunting license, annual — $129. j. Hunting license, annual, including the wildlife habitat fee — $142. k. Hunting license, annual, under 18 years of age — $30. l. Hunting license, annual, under 18 years of age, including the wildlife habitat fee — $43. m. Hunting license, five-day (not applicable to deer or wild turkey seasons) — $75. n. Hunting license, five-day, including the wildlife habitat fee (not applicable to deer or wild turkey seasons) — $88. o. Deer hunting license, antlered or any-sex deer — $345.50. p. Deer hunting license, antlerless-deer-only, required with the purchase of an antlered or any-sex deer hunting license — $146.50. q. Deer hunting license, antlerless-deer-only — $263.50. r. Preference point issued under Iowa Code section 483A.7(3)“b” or 483A.8(3)“e” — $58.50. s. Holiday deer hunting license issued under Iowa Code section 483A.8(6), antlerless-deer-only — $88. t. Wildlife habitat fee — $13. u. Migratory game bird fee — $10. v. Wild turkey hunting license, annual — $117. w. Fur harvester license, annual — $232. x. Fur harvester license, annual, including the wildlife habitat fee — $245. y. Fur dealer license, annual — $586.50. z. Fur dealer license, one-day, one location — $292.50. aa. Location permit for fur dealer — $66. bb. Aquaculture unit license, annual — $66. cc. Retail bait dealer license, annual — $146.50. dd. Wholesale bait dealer license, annual — $292.50. ee. Game breeder license, annual — $30.50. ff. Taxidermy license, annual — $30.50.571—15.11() Reserved.571—15.12() Reserved.571—15.13() Reserved.571—15.14() Reserved.571—15.15() Reserved.DIVISION IIMULTIPLE OFFENDER AND WILDLIFE VIOLATOR COMPACT571—15.16(481A,481B,482,483A,484A,484B) Multiple offenders—revocation and suspension of hunting, fishing, and trapping privileges from those persons who are determined to be multiple offenders. 15.16(1) Definitions. For the purpose of this rule, the following definitions shall apply: "Department" means the Department of Natural Resources, Wallace State Office Building, 502 East 9th Street, Des Moines, Iowa 50319-0034. "Multiple offender" means any person who has equaled or exceeded five points for convictions in Iowa Code chapters 481A, 481B, 482, 483A, 484A, 484B, and 716 during a consecutive three-year period as provided in subrule 15.16(3). "Revocation" means the taking or cancellation of an existing license or privilege. "Suspension" means to bar or exclude one from applying for or acquiring licenses or privileges for future seasons. 15.16(2) Recordkeeping procedures. For the purpose of administering this rule, it shall be the responsibility of the clerk of district court for each county to deliver, on a monthly basis, disposition reports of each charge filed under Iowa Code chapters 456A, 481A, 481B, 482, 483A, 484A, 484B, and 716 to the department. Dispositions and orders of the court of all cases filed on the chapters listed in this subrule shall be sent to the department regardless of the jurisdiction or the department of the initiating officer. a. License suspensions.In the event of a license suspension pursuant to Iowa Code section 481A.133, the clerk of court shall immediately notify the department. b. Entering information.Upon receipt of the disposition information from the clerks of court, the department will, on a monthly basis, enter this information into a licensed system that is directly accessible to all law enforcement agencies of the state. c. Disposition report information.Information from the disposition report that will be entered into an electronic license system which includes but may not be limited to the following: (1) County of violation, (2) Name of defendant, (3) Address of defendant, (4) Social security or driver’s license number, (5) Date of birth, (6) Race, (7) Sex, (8) Height, (9) Weight, (10) Date and time of violation, (11) Charge and Iowa Code section, (12) Officer name/C-number who filed charge, and (13) Date of conviction. 15.16(3) Point values assigned to convictions. Point values for convictions shall be assessed as stated in this subrule. Multiple citations and convictions of the same offense will be added as separate convictions: a. Convictions of the following offenses shall have a point value of three: (1) Illegal sale of birds, game, fish, or bait. (2) More than the possession or bag limit for any species of game or fish. (3) Hunting, trapping, or fishing during the closed season. (4) Hunting by artificial light. (5) Hunting from aircraft, snowmobiles, all-terrain vehicles or motor vehicle. (6) Any violation involving threatened or endangered species. (7) Any violations of Iowa Code chapter 482, except Iowa Code sections 482.6 and 482.14. (8) Any violation of nonresident license requirements. (9) No fur dealer license (resident or nonresident). (10) Illegal taking or possession of protected nongame species. (11) The unlawful taking of any fish, turtle, game, or fur-bearing animal. (12) Illegal taking, possession, or transporting of a raptor. (13) Hunting, fishing, or trapping while under license suspension or revocation. (14) Illegal removal of fish, minnows, frogs, or other aquatic wildlife from a state fish hatchery. (15) Any fur dealer violations except failure to submit a timely annual report. (16) Any resident or nonresident making false claims to obtain a license. (17) Illegal taking or possession of hen pheasant. (18) Applying for or acquiring a license while under suspension or revocation. (19) Taking game from the wild—see Iowa Code section 481A.61. (20) Violation of Iowa Code sections 483A.27(7) and 483A.27A. (21) Any violation of Iowa Code section 716.8 while hunting, fishing, or trapping. b. Convictions of the following offenses shall have a point value of two: (1) Hunting, fishing, or trapping on a refuge. (2) Illegal possession of fur, fish, turtle, or game. (3) Chasing wildlife from or disturbing dens. (4) Trapping within 200 yards of an occupied building or private drive. (5) Possession of undersized or oversized fish. (6) Shooting within 200 yards of occupied building or feedlot. (7) No valid resident license relating to deer, turkey, or paddlefish. (8) Illegal importation of fur, fish, or game. (9) Failure to exhibit catch to an officer. (10) Trapping or poisoning game birds, or poisoning game animals. (11) Violations pertaining to private fish hatcheries and aquaculture. (12) Violations of the fur dealers reporting requirements. (13) Violation of Iowa Code section 481A.126 pertaining to taxidermy. (14) Loaded gun in a vehicle. (15) Attempting to unlawfully take any fish, turtle, game, or fur-bearing animals. (16) Attempting to take game before or after legal shooting hours. (17) Wanton waste of fish, game or fur-bearing animals. (18) Illegal discharge of a firearm pursuant to Iowa Code section 481A.54. (19) Any violation of Iowa Code section 482.14 pertaining to commercial fishing. (20) Failure to tag deer, turkey, or paddlefish. (21) Applying for or obtaining more than the legal number of licenses allowed for deer or turkey. (22) Illegal transportation of game, fish or furbearers. (23) Violation of Iowa Code section 483A.27, except Iowa Code section 483A.27(7). c. All other convictions of provisions in Iowa Code chapters 481A, 481B, 482, 483A, 484A, and 484B shall have a point value of one. 15.16(4) Length of suspension or revocation. a. The term of license suspension or revocation shall be determined by the total points accumulated during any consecutive three-year period, according to the following: 5 points through 8 points is one year, 9 points through 12 points is two years, and 13 points or over is three years. b. Any person convicted of a violation of any provision of Iowa Code chapters 481A, 481B, 482, 483A, 484A, and 484B under the circumstances described in Iowa Code section 481A.135(2) shall have an additional suspension of one year. Any person convicted of a violation of any provision of Iowa Code chapters 481A, 481B, 482, 483A, 484A, and 484B under the circumstances described in Iowa Code section 481A.135(3) shall have an additional suspension of two years. Any person convicted of a violation of any provision of Iowa Code chapters 481A, 481B, 482, 483A, 484A, and 484B under the circumstances described in Iowa Code section 481A.135(4) shall have an additional suspension of three years. The foregoing provisions apply whether or not a person has been found guilty of a simple misdemeanor, serious misdemeanor or aggravated misdemeanor pursuant to Iowa Code sections 481A.135(2), 481A.135(3) and 481A.135(4). If a magistrate suspends the privilege of a defendant to procure another license and the conviction contributes to the accumulation of a point total that requires the department to initiate a suspension, the term of suspension shall run consecutively up to a maximum of five years. After a five-year suspension, remaining time will be calculated at a concurrent rate. 15.16(5) Points applicable toward suspension or revocation. If a person pleads guilty or is found guilty of an offense for which points have been established by this rule but is given a suspended sentence or deferred sentence by the court as defined in Iowa Code section 907.1, the assigned points will become part of that person’s violation record and apply toward a department suspension or revocation. 15.16(6) Notification of intent to suspend and revoke license. If a person reaches a total of five or more points, the department shall provide written notice of intent to revoke and suspend hunting, fishing, or trapping licenses as provided in 571—Chapter 7. If the person requests a hearing, it shall be conducted in accordance with 571—Chapter 7. 15.16(7) Dates of suspension or revocation. The suspension or revocation shall be effective upon failure of the person to request a hearing within 30 days of the notice described in subrule 15.16(6) or upon issuance of an order affirming the department’s intent to suspend or revoke the license after the hearing. The person shall immediately surrender all licenses and shall not apply for or obtain new licenses for the full term of the suspension or revocation.571—15.17(456A) Wildlife violator compact. The department has entered into the wildlife violator compact (the compact) with other states for the uniform enforcement of license suspensions. The compact, a copy of which may be obtained by contacting the department’s law enforcement bureau, is adopted herein by reference. The procedures set forth in this rule shall apply to license suspensions pursuant to the wildlife violator compact. 15.17(1) Definitions. For purposes of this rule, the following definitions shall apply: "Compliance" with respect to a citation means the act of answering a citation through an appearance in a court or through the payment of all fines, costs, and surcharges, if any. "Department" means the Iowa department of natural resources. "Issuing state" means a participating state that issues a fish or wildlife citation to a person. "Participating state" means any state which enacts legislation to become a member of the wildlife violator compact. Iowa is a participating state pursuant to Iowa Code section 456A.24(14). 15.17(2) Suspension of licenses for noncompliance. Upon the receipt of a valid notice of failure to comply, as defined in the compact, the department shall issue a notice of suspension to the Iowa resident. The notice of suspension shall: a. Indicate that all department-issued hunting (including furbearer) or fishing licenses shall be suspended, effective 30 days from the receipt of the notice, unless the department receives proof of compliance. b. Inform the violator of the facts behind the suspension with special emphasis on the procedures to be followed in resolving the matter with the court in the issuing state. Accurate information in regard to the court (name, address, telephone number) must be provided in the notice of suspension. c. Notify the license holder of the right to appeal the notice of suspension within 30 days of receipt. Said appeal shall be conducted pursuant to 571—Chapter 7 but shall be limited to the issues of whether the person so notified has a pending charge in the issuing state, whether the person has previously received notice of the violation from the issuing state, and whether the pending charge is subject to a license suspension for failure to comply pursuant to the terms of the compact. d. Notify the license holder that, prior to the effective date of suspension, a person may avoid suspension through an appearance in the court with jurisdiction over the underlying violations or through the payment of all fines, costs, and surcharges associated with the violations. e. Indicate that, once a suspension has become effective, the suspension may only be lifted upon the final resolution of the underlying violations. 15.17(3) Reinstatement of licenses. Any license suspended pursuant to this rule may be reinstated upon the receipt of an acknowledgement of compliance from the issuing state, a copy of a court judgment, or a certificate from the court with jurisdiction over the underlying violations and the payment of applicable Iowa license fees. 15.17(4) Issuance of notice of failure to comply. When a nonresident is issued a citation by the state of Iowa for violations of any provisions under the jurisdiction of the natural resource commission which is covered by the suspension procedures of the compact and fails to timely resolve said citation by payment of applicable fines or by properly contesting the citation through the courts, the department shall issue a notice of failure to comply. a. The notice of failure to comply shall be delivered to the violator by certified mail, return receipt requested, or by personal service. b. The notice of failure to comply shall provide the violator with 14 days to comply with the terms of the citation. The violator may avoid the imposition of the suspension by answering a citation through an appearance in a court or through the payment of all fines, costs, and surcharges, if any. c. If the violator fails to achieve compliance, as defined in this rule, within 14 days of receipt of the notice of failure to comply, the department shall forward a copy of the notice of failure to comply to the home state of the violator. 15.17(5) Issuance of acknowledgement of compliance. When a person who has previously been issued a notice of failure to comply achieves compliance, as defined in this rule, the department shall issue an acknowledgement of compliance to the person who was issued the notice of failure to comply. 15.17(6) Reciprocal recognition of suspensions. Upon receipt of notification from a state that is a member of the wildlife violator compact that the state has suspended or revoked any person’s hunting or fishing license privileges, the department shall: a. Enter the person’s identifying information into the records of the department. b. Deny all applications for licenses to the person for the term of the suspension or until the department is notified by the suspending state that the suspension has been lifted.571—15.18() Reserved.571—15.19() Reserved.571—15.20() Reserved.DIVISION IIISPECIAL LICENSES571—15.21(483A) Fishing license exemption for patients of substance abuse facilities. 15.21(1) Definition. For the purpose of this rule, the definition of “substance abuse facility” is identical to the definition of “facility” in Iowa Code section 125.2(8). 15.21(2) Procedure. Each substance abuse facility may apply to the department of natural resources for a license exempting patients from the fishing license requirement while fishing as a supervised group as follows: a. Application shall be made on a form provided by the department and shall include the name, address and telephone number of the substance abuse facility including the name of the contact person. A general description of the type of services or care offered by the facility must be included as well as the expected number of participants in the fishing program and the water bodies to be fished. b. A license will be issued to qualifying substance abuse facilities and will be valid for all patients under the care of that facility. c. Patients of the substance abuse facility must be supervised by an employee of the facility while fishing without a license pursuant to this rule. An employee of the substance abuse facility must have the license in possession while supervising the fishing activity of patients. d. Notwithstanding the provisions of this rule, each employee of the substance abuse facility must possess a valid fishing license while participating in fishing.571—15.22(481A) Authorization to use a crossbow for deer and turkey hunting during the bow season by handicapped individuals. 15.22(1) Definitions. For the purpose of this rule: "Bow and arrow" means a compound, recurve, or longbow. "Crossbow" means a weapon consisting of a bow mounted transversely on a stock or frame and designed to fire a bolt, arrow, or quarrel by the release of the bow string, which is controlled by a mechanical or electric trigger and a working safety. "Handicapped" means a person possessing a physical impairment of the upper extremities that makes a person physically incapable of shooting a bow and arrow. This includes difficulty in lifting and reaching with arms as well as difficulty in handling and fingering. 15.22(2) Application for crossbow permit. An individual requesting use of a crossbow for hunting deer or turkey must submit an application for a crossbow permit on forms provided by the department. The application must include a statement signed by the applicant’s physician declaring that the individual is not physically capable of shooting a bow and arrow. The physician shall be a licensed physician, osteopathic physician, physician assistant, or advanced registered nurse practitioner. A first-time applicant must submit the crossbow permit application no later than ten days before the last day of the license application period for the season the person intends to hunt. 15.22(3) Crossbow permit—issuance and use. Approved applicants will be issued a permit authorizing the individual to hunt deer and turkey with a crossbow. The crossbow permit must be carried with the license and on the person while hunting deer and turkey and must be exhibited to a conservation officer upon request. 15.22(4) Validity and forfeiture of permit. A permit authorizing the use of a crossbow for hunting deer and turkey will be valid for as long as the person is incapable of shooting a bow and arrow. If a conservation officer has probable cause to believe the person’s handicapped status has improved, making it possible for the person to shoot a bow and arrow, the department may, upon the officer’s request, require the person to obtain in writing a current physician’s statement. The physician shall be a licensed physician, osteopathic physician, physician assistant, or advanced registered nurse practitioner.If the person is unable to obtain a current physician’s statement confirming that the person is incapable of shooting a bow and arrow, the department may initiate action to revoke the permit pursuant to 571—Chapter 7. 15.22(5) Restrictions. Crossbows equipped with pistol grips and designed to be fired with one hand are illegal for taking or attempting to take deer or turkey. All projectiles used in conjunction with a crossbow for deer hunting must be equipped with a broadhead.571—15.23(483A) Free hunting and fishing license for low-income persons 65 years of age and older or low-income persons who are permanently disabled. 15.23(1) Purpose. Pursuant to Iowa Code section 483A.24(15), the department of natural resources will issue a free annual combination hunting and fishing license to low-income persons who meet the age status or permanently disabled status as defined. 15.23(2) Definitions. "Age status" means a person who has achieved the sixty-fifth birthday. "Low-income person" means a person who is a recipient of a program administered by the state department of human services for persons who meet low-income guidelines. "Permanently disabled" means a person who meets the definition in Iowa Code section 483A.4. 15.23(3) Procedure. Each person shall apply to the department of natural resources for a license as follows: a. Application shall be made on a form provided by the department and shall include the name, address, height, weight, color of eyes and hair, date of birth, and gender of the applicant. In addition, applicants shall include a copy of an official document such as a birth certificate if claiming age status, or a copy of an award letter from the Social Security Administration or private pension plan if claiming permanent disabled status. The application shall include an authorization allowing the department of health and human services to verify the applicant’s household income if proof of income is provided through the department of health and human services. b. The free annual hunting and fishing combination license will be issued by the department upon verification of program eligibility. The license issued under this rule will be valid until January 10 of the subsequent year. Proof of eligibility must be submitted each year in order to obtain a free license. c. A person whose income falls below the federal poverty guidelines may apply for this license by providing either of the following: (1) A current Notice of Decision letter. For purposes of this rule, a “current Notice of Decision letter” shall mean a letter from the department of health and human services dated in the month the application is received or dated in the five months immediately preceding the month the application is received that describes the applicant’s monthly or annual household income. (2) If a person does not have a Notice of Decision letter as described in subparagraph 15.23(3)“c”(1), a document shall be provided that states that the applicant’s annual income does not exceed the federal poverty limit for the current year and lists income from all sources, including but not limited to any wages or compensation, social security, retirement income, dividends and interest, cash gifts, rents and royalties, or other cash income. In addition, the applicant shall provide documentation of such income by submitting a copy of the applicant’s most recently filed state or federal income tax return to the department. In the event an applicant does not have a tax return that was filed within the last year because the applicant’s income level does not require the filing of a tax return, the applicant shall so notify the department, shall provide to the department bank statements, social security statements or other relevant income documentation identified by the department, and shall meet with the department to verify income eligibility under this rule.Federal poverty guidelines are published in February of each year and will be the income standard for applicants from that time until the guidelines are available in the subsequent year. The guidelines will be shown on the application and will be available upon request from the department. 15.23(4) Revocation. Any license issued pursuant to rule 571—15.23(483A) may be revoked, in whole or in part, by written notice, if the director determines that a license holder had provided false information to obtain a license under this chapter or has violated any provision of this chapter and that continuation of the license is not in the public interest. Such revocation shall become effective upon a date specified in the notice. The notice shall state the extent of the revocation and the reasons for the action. Within 30 days following receipt of the notice of a revocation, the license holder may file a notice of appeal, requesting a contested case hearing pursuant to 561—Chapter 7. The notice of appeal shall specify the basis for requesting that the license be reinstated.571—15.24(483A) Free annual fishing license for persons who have severe physical or mental disabilities. 15.24(1) Purpose. Pursuant to Iowa Code section 483A.24(9), the department of natural resources will issue a free annual fishing license to Iowa residents 16 or more years of age who have severe mental or physical disabilities who meet the definition of “severe mental disability” or “severe physical disability” in subrule 15.24(2). 15.24(2) Definitions. For the purposes of this rule, the following definitions apply: "Severe mental disability" means a person who has severe, chronic conditions in all of the following areas which:- Are attributable to a mental impairment or combination of mental and physical impairments;
- Result in substantial functional limitations in three or more of the following areas of major life activities: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency;
- Reflect the person’s need for a combination and sequence of services that are individually planned and coordinated; and
- Requires the full-time assistance of another person to maintain a safe presence in the outdoors.
Proposing rulemaking related to structures on public waters and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 16, “Docks and Other Structures on Public Waters,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 461A.4 and 462A.3.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 461A.4, 461A.11, 461A.18, 462A.27 and 462A.32.Purpose and Summary Proposed Chapter 16 regulates docks on water bodies open to the public for boating or other recreational uses. This includes a permitting system for docks operated by residential owners, commercial entities, and governmental subdivisions. The proposed chapter also contains the rules for the Department of Natural Resources’ (Department’s) dock management area (DMA) program. The primary purposes of the proposed chapter are to balance the needs of dock owners with those of the general public on public lakes and to reduce conflicts between neighboring dock owners. Additionally, the DMA program provides dock access to members of the public who are not riparian property owners.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 31, 2024. Comments should be directed to: Craig Cutts Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: craig.cutts@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. The hearings will also be available online. Persons who wish to attend the conference call or Google Meet virtual meeting should contact Craig Cutts via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at the conference call public hearing must submit a request to Mr. Cutts prior to the hearing to facilitate an orderly hearing. January 30, 2024 12 noon to 1 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 31, 2024 4 to 5 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 16 and adopt the following new chapter in lieu thereof: CHAPTER 16DOCKS AND OTHER STRUCTURES ON PUBLIC WATERS571—16.1(461A,462A) Definitions. "Artificial lake" means all river impoundments and all other impoundments of water to which the public has a right of access from land or from a navigable stream inlet. Examples are Lake Panorama, Lake Delhi, Lake Nashua, and Lake Macbride. "Boat" means “watercraft” as defined in Iowa Code section 462A.2. "Boat hoist" "lift" means a structure placed in the water or below the ordinary high-water mark for boat storage, including platforms for storage of personal watercraft. For the purposes of this chapter, a boat hoist that is designed to store up to two small vessels such as personal watercraft or one-person sailboats may be treated as a single hoist. For the purposes of this chapter, storage of stand-up paddleboards on racks above the platform of a dock is not counted as a boat hoist or lift; however, a rack for storage of canoes or kayaks is a boat hoist. "Catwalk" means a platform no more than four feet wide installed to provide access from a dock to a moored boat or boat hoist. "Commercial dock" means a dock used as part of a business, including a dock extending from residential property if one or more mooring spaces at the dock are rented for a fee. A dock maintenance fee charged by a property owners’ association to its members is not a basis to classify a dock as commercial. This definition is not applicable to docks in dock management areas or concession operations administered by the department. "Commission" means the natural resource commission. "Common dock" means a dock serving two or more adjoining shoreline properties. "Department" means the department of natural resources. "Director" means the director of the department of natural resources or the director’s designee. "Dock" means a platform-type structure extending from shoreline property over a public water body, including but not limited to platforms that provide access to boats moored on the water body. "Dock management area" "DMA" means an area designated by the department in the bed of a water body adjoining a state park, wildlife management area, or recreation area or adjoining a strip of land that was dedicated to the public and is subject to the jurisdiction of the department pursuant to Iowa Code section 461A.11(2). A dock management area as designated by the department includes an area adjoining public land from which docks extend. "Impoundment" means a body of water formed by constructing a dam across a waterway. "Public dock" means a dock constructed and maintained to provide public access from public land to a water body. "Public land" means land that is owned by the state, a city, or a county or land that has been dedicated for public access to a public water body. "Public water body" is a water body to which the public has a right of access. "Rental" means taking compensation, trading, or bartering for the usage of a slip or hoist on a Class I or Class III dock, including the rental of a vehicle parking spot that includes the privilege of using a hoist or slip on a Class I or Class III dock. "Shoreline property" means a parcel of property adjoining (littoral to) a lake or adjoining (riparian to) a river or other navigable stream. "Slip" means a mooring space, usually adjacent to a dock, sometimes accessed by a catwalk. "Water body" means a river or other stream, a natural lake, an artificial lake or other impoundment, or an excavated pit.DIVISION IPRIVATE, COMMERCIAL AND PUBLIC DOCKS571—16.2(461A,462A) Scope of division and classes of permits. Permits are required for docks on all water bodies open to the public for boating or other recreational uses. This division governs permits for all types of docks except docks in dock management areas designated by the department. Classes of permits are designated as follows: Class I permits authorize standard private docks, other private docks in specified areas, and docks permitted by the U.S. Army Corps of Engineers; Class II permits authorize docks that are managed by governmental entities and extend from shoreline property owned by those governmental entities; Class III permits authorize nonstandard private docks; and Class IV permits authorize commercial docks. A dock that involves placement of fill or construction of a permanent structure in a state-owned public water body also requires a construction permit issued under 571—Chapter 13. A dock issued a permit by the U.S. Army Corps of Engineers, located on a water body managed by the U.S. Army Corps of Engineers, does not require a state dock permit under this chapter.571—16.3(461A,462A) Standard requirements for all docks. All docks are subject to the following requirements: 16.3(1) Adverse impacts on aquatic ecosystem. All docks, hoists, slips and related structures shall be located, sized, configured, constructed and installed to limit their adverse impacts on the aquatic ecosystem. In areas of sensitive aquatic habitat, docks and hoists shall be located, configured, constructed and installed to minimize harm to aquatic habitat. Other restrictions may be placed on docks that are in a state-protected waters area as necessary to protect the natural features of the designated area. 16.3(2) Adverse impacts on public access for recreational use. A dock shall not be configured to enclose an area of a public water body and create a private water area or otherwise adversely affect public recreational use of the water body. Where walking or wading parallel to the shore below the ordinary high-water mark would be physically practical except for the obstruction created by a dock, the dock owner shall not prevent a person from stepping on or over the dock to bypass the obstruction. 16.3(3) Location and offsets. To the extent practical, a dock and boat hoists shall be placed near the center of the shoreline property frontage and installed perpendicular to the ordinary high-water mark to maximize offsets from neighboring properties. Each dock, hoist, moored vessel and other permitted structure shall be offset a minimum of five feet from an adjoining property line and five feet from the projection of a line perpendicular from the ordinary high-water mark at the common boundary with adjoining shoreline property as determined by the department. A minimum gap of ten feet shall be maintained between adjoining docks (including “L” or “T” or catwalk segments), hoists or moored boats. Where projection of a line perpendicular from the ordinary high-water mark is impractical, it is the intent of this rule that a ten-foot gap be maintained in a manner that is equitable to each adjoining shoreline property owner. 16.3(4) Length. A dock shall not extend farther from the water’s edge than the distance necessary for reasonable access to the water body in relation to characteristics of the water body in the vicinity of the dock site and the impacts on the water body and other users. Access to maintain one or more boats in water with a minimum depth of three feet shall be considered sufficient access. 16.3(5) Display of 911 address. Each dock owner shall display the 911 address, including the street and city, assigned to the property served by the dock. The owner of a dock authorized by an individual permit shall also display the dock permit number. The information shall be displayed in block letters and numbers at least one inch high in a color contrasting with the background, on the water end of the dock, facing away from shore, and shall be plainly visible. 16.3(6) Winter removal. Each dock must be removed from public waters before December 15 of each year and shall not be reinstalled until the following spring unless the removal requirement is waived by a condition of a dock permit or by rule 571—16.18(461A,462A). 16.3(7) No enclosure of private docks. Private docks and docks in dock management areas shall not be enclosed by roofs or sides. Hoists may be enclosed by roofs and sides constructed of soft-sided natural fiber or synthetic fiber materials for the purpose of protecting watercraft. 16.3(8) Materials and flotation specifications. Every new floating structure authorized by this chapter shall use flotation methods and devices of a type constructed of low-density, closed-cell rigid plastic foam; high-impact polyethylene fiberglass material; wood products pressure-treated with a product approved by the United States Environmental Protection Agency for aquatic use; or other inert materials to provide flotation. Synthetic (such as plastic or fiberglass) or metal containers not originally manufactured as flotation devices may be used as dock flotation devices if they have been cleaned of any product residue, sealed and watertight, and filled with a closed-cell rigid plastic foam. 16.3(9) Flow of water. All docks shall be constructed and placed in a manner that allows the free flow of water beneath them. 16.3(10) Excavation, fill and aquatic vegetation removal prohibited. No bed material may be excavated or fill placed, and no aquatic vegetation may be removed below the ordinary high-water mark of a water body in association with construction of a dock unless excavation, placement of fill, or aquatic vegetation removal is specifically authorized by a construction permit issued under 571—Chapter 13. 16.3(11) Storage, use, and dispensing of fuel. The storage, use, and dispensing of any fuel on a dock on or over a public water body or adjacent public land shall be in compliance with Iowa Code chapter 101 and administrative rules that implement Iowa Code chapter 101. 16.3(12) Electrical service. Any electrical service on or leading to any dock used for storage or dispensing of fuel must comply with the National Electrical Code, 2023 edition. All electrical service leading to docks shall include ground fault circuit interrupter protection. 16.3(13) Anchoring of river docks. All river docks must be securely anchored to prevent them from becoming floating hazards during times of high river flows. The riparian owner is responsible for dock retrieval and removal when necessary to prevent or remove a navigation hazard. 16.3(14) Access for inspection. A dock, boat hoist, raft, platform, mooring buoy or any other structure on a public water body may be physically inspected at any time by a representative of the department as needed to determine whether it was placed and is maintained in a manner consistent with the requirements in these rules or with a permit issued under these rules.571—16.4(461A,462A) Class I permits for standard private docks. This rule establishes criteria and procedures for Class I permits for private docks qualifying as standard docks under criteria in this rule and for certain other docks in areas listed in this rule. 16.4(1) Criteria for standard docks. A Class I permit for a standard dock may authorize a total of one dock and up to two hoists serving one residence. It may authorize a common dock serving two or more residences located on adjoining shoreline properties. A common dock may include up to three hoists per shoreline property and be eligible for a Class I dock permit. The dock must extend from shoreline property on which one or more of the residences are located and must meet all of the following criteria: a. Dock length limits.A dock on a natural lake may extend the greater of 100 feet from the water’s edge or far enough so that the outer 50 feet of the dock is in 3 feet of water up to a maximum of 300 feet from the water’s edge. These lengths shall be measured from the water’s edge when the dock is installed. A dock on an artificial lake or river may extend the lesser of 50 feet from the water’s edge or one-fourth of the width of the waterway measured from the water’s edge when the dock is installed. However, the department may give notice to a property owner that a shorter dock length is necessary to avoid interference with navigation or an adjoining property owner’s access. The width of an “L” or “T” segment at the outer end of a dock is included in measuring the length of the dock. b. Width and configuration of docks on natural lakes.A dock on a natural lake may have no more than one “L” or “T” segment. The total length of the “L” or “T” segment facing opposite from shore may not be greater than 20 feet including the width of the dock. The total area of the “L” or “T” segment may not exceed 200 square feet. That part of the main dock forming the center of a “T” segment or an extension of an “L” segment is included in measuring the area of the “T” or “L” segment. No other part of the dock may be more than six feet wide. Catwalks shall be at least two feet wide and considered as part of the dock. Catwalks shall be limited in length as in an “L” or “T” segment of the dock construction and may not extend beyond the width of the hoist, except that a catwalk may be extended around the hoist for access to the hoist. c. Compliance with standard requirements.The dock and associated hoists must comply with the standard requirements in rule 571—16.3(461A,462A) for all docks. d. Other structures not authorized.A Class I permit does not authorize placement of any other anchored or floating structure, such as a swim raft. 16.4(2) Class I permits for private docks in other specified areas. This subrule authorizes issuance of Class I permits for private docks in certain areas where circumstances, including narrowness of the water areas specified below, require different dock and hoist configurations. In the following areas, docks that fail to comply with the offset or ten-foot gap requirement in subrule 16.3(3) but that meet other standard dock requirements in rule 571—16.3(461A,462A) are eligible for a Class I permit, unless they obstruct navigation or an adjoining property owner’s access: canals off West Okoboji Lake; Okoboji Harbor; inside harbor of Harbourage at Clear Lake; Venetian Village Canal at Clear Lake; Cottage Reserve on Lake Macbride; Lake Panorama; canals at Lake Manawa; and Lake Delhi. 16.4(3) Procedures for issuance of Class I dock permits. The owner of a standard dock eligible for a Class I permit under the criteria in subrule 16.4(1) or a dock in an area specified in subrule 16.4(2) shall apply for a Class I dock permit via the department’s website. The applicant shall certify that the dock meets the criteria for a Class I permit. The department shall approve the application based on the applicant’s certification and shall assign a permit number, which may be a series of numbers or letters or a combination of numbers and letters. The applicant is responsible for obtaining stickers with the permit numbers and letters, for attaching them to the end of the dock facing opposite from the shoreline, and for displaying the 911 address as provided in subrule 16.3(5). Class I dock permits authorized by this rule are issued without administrative fee and remain valid until the property is sold or transferred. In the event the property is sold or transferred, the new owner may request to transfer the Class I dock permit as provided in subrule 16.11(1). A Class I dock permit shall be valid only while dock and hoists comply with the criteria for a Class I permit.571—16.5(461A,462A) Class II permits for docks authorized by governmental entities that own or otherwise control shoreline property. This rule authorizes issuance of a Class II dock permit to a governmental entity for docks authorized by that entity to extend from public land owned or controlled by the entity. A Class II permit may include all docks and hoists authorized by a governmental entity on one water body. The Class II dock permit shall require that all docks comply with the standard requirements in rule 571—16.3(461A,462A). Class II permits may include exceptions as needed to provide continuing authorization for docks and hoists that were lawfully installed and maintained before the effective date of certain requirements as set forth in this rule. A dock on a natural lake may extend the greater of 100 feet from the water’s edge or far enough so that the outer 80 feet of the dock is in 3 feet of water up to a maximum of 300 feet from the water’s edge. These lengths shall be measured from the water’s edge when the dock is installed. The governmental entity authorizing maintenance of a dock and boat hoists shall be responsible for enforcing the standard requirements and length limit. The department reserves authority to determine whether the requirements of rule 571—16.3(461A,462A) and the length limit are met upon complaint of a person who claims that a public or private right is adversely affected by a permitted dock. If the department determines that a dock or hoist must be moved or removed from the water body because of an adverse effect, the department shall issue an administrative order to the governmental entity that is authorizing maintenance or use of the dock and to the person who is maintaining or using the dock. Issuance of the administrative order shall trigger a right of the governmental entity and the affected person to a contested case. If shoreline property is public land but there is uncertainty concerning the relationship between the authority of the governmental entity and the authority of the department, the Class II permit shall include a recital concerning the relative authorities of the department and the permittee. Class II permits are issued without fee and are valid until a classification change is made.571—16.6(461A,462A) Class III permits for nonstandard private docks. All private docks that are not authorized by Class I or Class II permits shall require a Class III dock permit. In determining whether to issue a Class III permit for a private dock or to condition the permit by denying an application in part, the department shall apply the following criteria: 16.6(1) A Class III private dock permit shall require docks or hoists to be in compliance with requirements in rule 571—16.3(461A,462A), except as provided in rule 571—16.8(461A,462A). 16.6(2) An individual private dock on a natural lake may be permitted by a Class III permit to extend 100 feet from the water’s edge or far enough so that the outer 80 feet of the dock is in 3 feet of water when the dock is installed. These lengths shall be measured from the water’s edge when the dock is installed. If the water level declines after installation, additional segments may be installed during the season as needed to maintain 80 feet of dock in 3 feet of water, up to a maximum length of 300 feet from the water’s edge. However, the department may give notice to a permittee that a shorter dock length is required to avoid interference with navigation or an adjoining property owner’s access. The maximum permitted length of an individual private dock on an artificial lake or river is the lesser of 50 feet from the water’s edge or one-fourth of the width of the waterway measured from the water’s edge at normal water levels. The width of an “L” or “T” segment at the outer end of a dock is included in measuring the length of the dock. 16.6(3) The maximum number of hoists authorized by a Class III permit for an individual private dock is one hoist for every 10 feet of shoreline. 16.6(4) A Class III permit for an individual private dock on a natural lake may not authorize “L” or “T” segments containing more than a total of 240 square feet including the area of the adjoining parts of the main dock. 16.6(5) An individual private dock may be exempted by permit condition from the winter removal requirement in appropriate circumstances under criteria in rule 571—16.12(461A,462A).571—16.7(461A,462A) Class IV permits for commercial docks. In determining whether to issue a Class IV permit for a commercial dock or to condition the permit by denying an application in part, the department shall apply the following criteria: 16.7(1) A Class IV permit shall require docks or hoists to be in compliance with requirements in rule 571—16.3(461A,462A), except as provided in rule 571—16.8(461A,462A). Greater offsets may be required for new commercial docks or hoists if needed to minimize boat traffic and congestion that spills over in front of other shoreline property not owned or controlled by the applicant. 16.7(2) A commercial dock on a natural lake may be permitted to extend a maximum of 300 feet from the water’s edge. However, the applicant must provide justification for a length greater than 150 feet and demonstrate that there are no appropriate alternatives available. 16.7(3) The maximum number of hoists or slips authorized by a permit for a commercial dock is one hoist or slip for every ten feet of shoreline. This limit shall not apply where a business operated on the shoreline property primarily involves boat sales, rentals, storage, or other boat services. In calculating the hoist limit, courtesy hoists shall not be counted if they are provided without charge to boaters to temporarily moor their boats while they go ashore to access services at a business on the shoreline property. 16.7(4) A permit for a commercial dock shall not be issued or the permit will include restrictions as needed to prevent uses of the dock that would be incompatible with zoning of the shoreline property from which the dock extends (including special use exceptions or variances recognized by the local governing body). However, a change in local zoning ordinance or termination of a local variance or special use exception shall not automatically be a ground for the department to revoke or refuse to renew a dock permit. 16.7(5) Authorization for roofs or sides on commercial docks or slips may be restricted as needed to minimize adverse visual impact on owners of other property and the public. 16.7(6) Each mooring site (slip) shall be marked by an identifying number or letter, in block style at least 3 inches high, of contrasting color, and located uniformly near the vessel’s bow.571—16.8(461A,462A) Exceptions for renewal of Class III and Class IV permits for existing docks. This rule provides certain exceptions to length limits, hoist limits and platform size limits for docks and hoists that lawfully existed before the effective date of the limits. Criteria for exceptions to offset requirements are separately listed in subrule 16.8(2). Exceptions under this this rule are granted at the discretion of the department. 16.8(1) Class III and Class IV permits shall include exceptions as needed to provide continuing authorization for docks and hoists that were lawfully installed and maintained before the effective date of certain requirements as set forth in this rule. Permits shall include exceptions to the length limits in subrules 16.6(2) and 16.7(2) for docks up to 300 feet long that were lawfully installed and maintained before the effective date of the length limits. Permits shall include exceptions to the hoist limit in subrules 16.6(3) and 16.7(3), and to the platform size limit in subrule 16.6(4) for docks and hoists that were lawfully installed and maintained before the effective date of the limits. Any exceptions granted for such docks will expire upon sale or transfer of the property. 16.8(2) An exception to the offset requirements in subrule 16.3(3) shall be granted if the applicant can satisfy all three of the following criteria: a. The lack of offset on one side of the property is compensated for by a larger offset on the other side of the property; b. The applicant provides the department with a copy of the written consent of each affected adjoining property owner or an affidavit attesting that the affected adjacent property owner named in the affidavit has verbally given the applicant consent for the requested exception, or provides adequate documentation that the adjoining shoreline parcel is burdened by restrictive covenants, easements, or other valid use restrictions that impose on the owner of the parcel an obligation to tolerate docks and hoists that would otherwise violate the offset or gap requirements in subrule 16.3(3); and c. The applicant demonstrates that no other dock or hoist configuration is physically practical.571—16.9(461A,462A) Initial decision and right of appeal. The decision on an application for a Class II, Class III or Class IV permit shall be provided in writing and may grant the permit, grant the permit with specific conditions, or deny the permit. If the decision is to deny the permit or to issue a permit with specific conditions that deny the application in part, the written decision shall include notice of the applicant’s right to request a contested case under 571—Chapter 7. An applicant’s request for a contested case may include a request for a waiver under the provisions of Iowa Code section 17A.9A and 571—Chapter 11.571—16.10(461A,462A) Application and administrative fees. 16.10(1) The applicant for a Class II, Class III or Class IV permit shall apply via the department’s website. If the applicant for a Class III or Class IV permit is not the owner of the shoreline property from which the dock extends, the applicant shall identify the contractual relationship between the applicant and each property owner and shall submit as part of the application the written consent from each owner. The application shall be accompanied by plans and drawings that accurately show the size and location of each boat hoist, slip, platform, catwalk, buoy, or other structure to be maintained in front of the shoreline property. Docks in front of nonadjoining shoreline properties on the same water body owned by the same person or legal entity may be included in one application. An application for renewal of a permit for an existing dock and hoists must specifically describe each requested modification. The applicant shall submit an administrative fee with the application. The application will be assigned to a conservation officer to investigate. 16.10(2) The Class III permit application fee shall be $125 for one or more individual private docks. The Class IV permit application fee shall be $250 for one or more commercial docks. A Class III permittee shall pay an annual administrative fee of $50 for each hoist or slip in excess of a total of four hoists or slips. A Class IV permittee shall pay an annual administrative fee of $50 for each hoist or slip in excess of a total of six hoists or slips, except for each hoist or slip designated in the permit as courtesy mooring for customers and affixed with a sign identifying it as a courtesy hoist or slip. The hoist/slip fee is due on March 1 of each year or whenever a permit is modified by adding a hoist or slip. Any fees owed to the department shall be paid in full prior to the installation of any portion of an individual private dock or commercial dock and before a boat is placed in a hoist or slip. The department may waive the permit application fee if the application is for a minor modification of an existing permit without an extension of the term of the permit.571—16.11(461A,462A) Duration and transferability of permits; refund of application fees; suspension, modification, or revocation of permits; complaint investigation; property line location. 16.11(1) Duration and transferability of dock permits; administrative fee refunds. With the exception of Class I dock permits, each dock permit shall be issued for a term of five years unless a shorter term is needed due to specified circumstances. The administrative fee paid with an application is nonrefundable unless the application is withdrawn before the department incurs administrative expense in investigating the application. A dock permit is transferable to a new owner of the shoreline property upon request to the department by the new owner; however, if the permit contains exceptions pursuant to rule 571—16.8(461A,462A), those exceptions shall expire upon transfer, and the new owner shall immediately bring the dock into compliance with all current rules. 16.11(2) Suspension, modification, or revocation of permits. A dock permit may be modified, suspended, or revoked, in whole or in part, by written notice served in compliance with Iowa Code section 17A.18, if the director determines that the dock is a hazard to other users of the water body, that a violation of any terms or conditions of the permit has occurred, or that continuation of the permit is contrary to the public interest. Such modification, suspension, or revocation is effective upon a date specified in the notice. The notice shall state the extent of the modification, suspension, or revocation, the reasons for the action, and any corrective or preventative measures to be taken by the permittee to bring the dock, structure, or activity into compliance. Within 30 days following receipt of the notice of a revocation or modification, or during the course of a suspension, the permittee may request a hearing in order to present information demonstrating that the alleged violation did not occur or that required corrective and preventative measures have been taken, or to present any other information relevant to a decision as to whether the permit should be reinstated, modified, or revoked. The hearing shall be conducted as prescribed by 571—Chapter 7. After completion of the hearing, a final decision will be made concerning the status of the permit. In the event that no hearing is requested, notices of modification and revocation shall remain in effect, and suspended permits shall be reinstated, modified, or revoked. These procedures are not intended to limit the authority of a department law enforcement officer to issue a citation for a violation of a provision of Iowa Code chapter 461A or 462A, or a provision in this chapter. 16.11(3) Investigation of complaints. Any person adversely affected by a permitted dock or associated boat hoist may request, in writing, an investigation and a hearing to reconsider the permit. Requests for hearings shall specify adverse effects on the complainant and shall be made in accordance with procedures described in 571—Chapter 7. 16.11(4) Determining property boundaries. An applicant for a permit, a permittee, and an owner of shoreline property adjoining property of an applicant or permittee are responsible for determining the accurate location of common boundaries of their respective properties.571—16.12(461A,462A) Exemptions from winter removal requirement. This rule provides for exemptions from the general requirement in Iowa Code section 462A.27 that nonpermanent structures be removed on or before December 15 of each year. Docks and other structures subject to destruction or damage by ice movement must be removed. Where a dock may be left in ice without damage to the dock, it must have reflective material visible from all directions to operators of snowmobiles, other motorized machines, or wind-propelled vessels lawfully operated on the frozen surface of the water body. Generally, ice damage is greatest on Iowa’s rivers and natural lakes. Docks must be removed by December 15 of each year unless they have the required reflective materials and are specifically exempted by a condition of a dock permit or are located in one of the areas listed as follows: artificial lakes; Upper Gar Lake; canals off West Okoboji Lake; Okoboji Harbor; Lazy Lagoon portion of Triboji dock management area; Smith’s Bay on West Okoboji Lake; area between the trestle and U.S. Highway 71 bridges on Okoboji lakes; Templar Park on Big Spirit Lake; Venetian Village Canal and Harbourage Inlet on Clear Lake; Casino Bay of Storm Lake; Black Hawk Marina at Black Hawk Lake; and canals off Lake Manawa and Carter Lake. A permit shall not authorize an exception from the winter removal requirement unless the applicant provides adequate documentation that the dock will not be damaged by normal ice movement.571—16.13(461A,462A) General conditions of all dock permits. All dock permits, unless specifically excepted by another provision of this chapter, shall include the following conditions of approval: 16.13(1) The permit creates no interests, personal or real, in the real estate below the ordinary high-water mark nor does it relieve the requirement to obtain federal or local authorization when required by law for such activity. The permit does not authorize the permittee to prevent the public from using areas of the water body adjacent to the permitted structure. However, a lawfully permitted private dock or commercial dock is property of the permittee. Use of the dock is reserved to the permittee and the permittee’s invitees, subject to the public right of passage stated in subrule 16.3(2). 16.13(2) A permit is valid only while the permittee has the necessary permissions to use the adjoining shoreline property from which the dock projects. 16.13(3) The permittee shall not charge a fee for use of the dock or associated structure unless: the permit is for a commercial dock; the fee is expressly authorized by the permit; or the permittee is a homeowners association and the fee is for recovery of expenses incurred in providing access to association members.571—16.14(461A,462A) Permit criteria for rafts, platforms, or other structures. A raft, platform, or other structure maintained on a public water body requires authorization in a permit. The raft, platform, or other structure may not be placed more than 250 feet from the shoreline, shall be equipped with reflectors that are visible from approaching boats, and shall be subject to the winter removal requirement unless specifically exempted by the permit.DIVISION IIDOCK MANAGEMENT AREAS571—16.15(461A) Designation or modification of dock management areas. 16.15(1) Purposes and status of dock management areas. The director may designate an area of public land under the commission’s jurisdiction and adjoining water as a dock management area. The primary purpose of dock management areas is to accommodate requests for boating access from owners of properties that are close to a water body but do not include riparian or littoral property rights. Dock permittees have priority use of the docks for mooring of vessels. However, the docks may be used by members of the public at their own risk for fishing and emergency mooring when public use does not interfere with the permittee’s use. Other uses allowed by the permittee shall be the responsibility of the permittee. 16.15(2) Criteria for designation or enlargement. In designating a dock management area or authorizing enlargement of an existing dock management area, the director shall apply the following criteria: a. The shoreline property in question shall be public land and shall have been developed and managed for recreational access to water or determined by the department to be suitable for such access. b. The establishment or enlargement of a dock management area shall not adversely affect other public recreational use of the water body. c. A dock management area shall not be established or enlarged where depth or bottom configuration is incompatible with the placement of docks. d. A dock management area shall not be established or enlarged where fish and wildlife habitat, other natural resources or scenic features would be disturbed by the presence of docks. e. Documentation of need for a new or larger dock management area and the lack of adverse impacts of the proposal must be sufficient to clearly outweigh and overcome a presumption against increasing the number or size of dock management areas.571—16.16(461A) Procedures and policies for dock site permits and hoist or slip assignments in dock management areas. 16.16(1) Application permit and slip assignment. A dock site permit authorizes a person to install and maintain a dock in a designated dock management area. Each permit shall identify the number of hoists or slips to be included for storage of boats at the dock. A separate hoist or slip assignment will be issued for each hoist or slip space at the dock. For purposes of these dock management area rules, “permittee” means the person(s) to whom a dock site permit is issued and the person(s) to whom each hoist or slip assignment is issued. Application forms for dock site permits and hoist or slip assignments in a dock management area shall be made available at a nearby DNR office. 16.16(2) Priority selection process. Dock site permits and hoist or slip assignments shall be available to all members of the public through a selection process based on the following order of priorities. A waiting list shall be established that follows the same order of priorities. First priority is for owners of residences adjoining or immediately across a street from the public land; second priority is for owners of other residences within the housing association or subdivision adjoining or immediately across a street from the public land; third priority is for all other Iowa residents; fourth priority is for nonresidents. The order of priorities, changes in the number of residential units per dock site, and changes in the number of vessels per residential unit will be made effective as existing permits expire. A permittee who has a valid hoist or slip assignment will not lose their assignment to a new higher priority applicant if the permit is renewed prior to it expiring at the end of the five-year term and payment is received by the deadline established in rule 571—16.19(461A). If the permittee fails to renew the permit, the permittee may be placed on the waiting list and the highest person on the waiting list will be offered the open hoist or slip assignment. Any permittee who moves to a new residence may be considered a new applicant when the current permit expires at the end of the five-year term. The permittee will be placed on the waiting list based on the new address, and the highest person on the waiting list will be offered the open hoist or slip assignment. For purposes of these dock management area rules, “residence” means a single residential living unit, which may be a rental unit. Notwithstanding these priorities, if property in the first or second priority category is redeveloped with higher density residential living units, there is no assurance that dock, hoist or slip space will be available to accommodate such increased density before other property included in the first or second priority categories.571—16.17(461A) Standard requirements for dock management area docks. Docks in dock management areas shall conform to the following requirements: 16.17(1) Occupancy of docks. At least two residences shall share a dock. The department may require that more residences share a dock if there is a waiting list including people in the first or second priority categories established in rule 571—16.16(461A). A maximum of six residences shall share a dock. 16.17(2) Spacing and alignment. Dock sites where feasible shall be at least 50 feet apart. 16.17(3) Dimensions. a. Length.A dock may extend the greater of 100 feet from the water’s edge or far enough so that the outer 80 feet of the dock is in 3 feet of water up to a maximum of 300 feet, but the dock shall be no longer than the length for which the applicant provides justification, and the length shall be stated in the permit. b. Width.Docks shall be at least four feet wide and no more than six feet wide. 16.17(4) Configuration. a. “L” or “T” segments.A dock shall have no more than one “L” or “T” segment. The total length of the “L” or “T” segment facing opposite from shore shall not be greater than 20 feet including the width of the dock. The total area of the “L” or “T” segment shall not exceed 200 square feet. That part of the main dock forming the center of a “T” segment or an extension of an “L” segment shall be included in measuring the area of the “T” or “L” segment. A smaller platform size limit may be required at locations specified by the department as having limited available space. b. Catwalks.Catwalks shall be at least two feet wide and considered as part of the dock. The length limit for an “L” or “T” segment stated in paragraph “a” shall be applicable to each catwalk. A catwalk shall not extend beyond the width of the hoist. c. Hoists.A hoist or other boat storage structure shall not be placed adjacent to any “L” or “T” segment of a dock or adjacent to any other part of a dock that is more than six feet wide. The hoist shall not exceed ten feet in width at locations specified by the department as having limited available space. 16.17(5) Exceptions for certain dock management areas. Notwithstanding other provisions in this rule, in artificially constructed lagoon or harbor areas, the configuration and dimensions of the docks, catwalks and hoists shall be determined by the department on an individual basis, taking into consideration the physical characteristics of the area, the mooring pattern of boats and public safety. Except at Lake Macbride, the Clear Lake Harbourage, and Lake Odessa, a maximum of two residences, each in accordance with 571—16.16(461A), shall share a single dock site. 16.17(6) Display of dock management area sign, DMA name and dock site number. The end of the dock facing the water shall be marked with the DMA name and dock number as assigned by the department. Each hoist shall also be marked with the hoist assignee’s last name and dock site number in two-inch block letters on one of the upright poles. The dock site permittee shall be responsible for installing and maintaining a sign provided by DNR at the landward entrance to the dock. The sign shall state that the dock is privately constructed; it shall include a caution to members of the public with the statement “use at your own risk”; and it shall include the statement “no diving” with a drawing of a diver over which is superimposed the universal no symbol (a circle with a diagonal slash through it). 16.17(7) Other requirements. Standard requirements found in rule 571—16.3(461A,462A) shall apply to all docks in a dock management area except requirements relating to property line offsets and display of information.571—16.18(461A) Dock management area permit restrictions and conditions. The following conditions and restrictions shall apply to docks in a dock management area. 16.18(1) Use of dock for mooring. Only the persons named as permittees shall have use of the dock for mooring. All vessels must be registered to the permittees and listed on the dock management area permit. A dock site permit or hoist/slip assignment may authorize an exception to allow a vessel of a tenant of the permittee’s residential rental unit. 16.18(2) Equitable sharing of dock costs. Permittees shall agree on the equitable sharing of the cost of construction, installation, maintenance and removal of the dock and any other component of the dock. In no case shall a dock owner collect more money from hoist/slip permittees than is needed to cover legitimate dock costs nor make a profit from operating the dock. Doing so is grounds for suspension and/or revocation of the dock permit. 16.18(3) Number of assignments allowed. Only one dock assignment may be allocated to a residence. 16.18(4) Number of hoists allowed. Each permittee may be limited to one hoist for one vessel. The number of hoists and vessels for each permittee should be limited, especially when there is a waiting list that includes people in the first or second priority category established in rule 571—16.16(461A). 16.18(5) Nontransferability of dock permits and privileges. Dock permits and hoist or slip assignments shall not be transferred, assigned or conveyed by the permittee to any other person. 16.18(6) Liability insurance. Prior to constructing a dock or installing hoists, the dock site permittee shall provide proof of a current liability insurance policy in the amount of $1 million. 16.18(7) Winter storage of docks, catwalks and hoists on public property. Winter storage of docks, catwalks and hoists on public property shall not be allowed unless specifically authorized by a dock site permit or hoist assignment. Docks, hoists and catwalks shall be stored at locations determined by the state parks bureau district supervisor as appropriate for an individual dock management area. A dock, catwalk or hoist stored on public land without authorization from the department may be removed by the department at the owner’s expense. 16.18(8) Land use restrictions. Nothing shall be constructed or placed on public land adjacent to any dock in a dock management area under this rule unless the construction or placement is a necessary appurtenance to the dock as determined by the director. 16.18(9) Expiration of permits. The term of a dock site permit and a hoist or slip assignment shall not exceed five years. Renewals shall be requested on a current application form. A permit expires when the permittee fails to apply for renewal prior to the current permit’s expiration date. 16.18(10) Cancellation for nonuse. A dock site permit or hoist/slip assignment may be canceled for nonuse if the dock or hoist/slip is not used at least one time each calendar year in order to provide space for applicants on a waiting list. 16.18(11) Other permit restrictions and conditions. All restrictions and conditions in rule 571—16.13(461A,462A), except subrule 16.13(2), shall apply to all docks in a dock management area.571—16.19(461A) Fees for docks in dock management areas. Payment of the annual dock site permit fee shall be made upon application. Payment of the annual hoist or slip fee shall be made upon application for the hoist or slip assignment. These fees may be paid in a lump sum in advance for the term of the permit or assignment. Failure to pay the annual fee by April 1 of any year may result in revocation or cancellation of the permit or assignment. Payment of any dock management area fee under this rule shall be made to the department of natural resources as specified in the permit. Annual fees are as follows:Dock Fee Hoist FeeBeed’s Lake $100 $50Black Hawk Lake Marina $200 $50Black Hawk Lake/Denison $200 $50Black Hawk North Shore $200 $50Blue Lake $100 $50Clear Lake Ventura Heights $250 $50Clear Lake Harbourage $600 $100 - hoist or slip feeClear Lake North Shore $250 $50East Okoboji Beach $250 $50Triboji Lakeshore $250 $50Triboji Lazy Lagoon $250 $50 - hoist or slip feePillsbury Point $250 $50Lower Pine Lake $100 $50Lake Macbride The Pines $600 $100 - slip feeLake Macbride Lakecrest $600 $100 - slip feeRice Lake $100 $50Union Grove $100 $50Lake Odessa $100 $25571—16.20(461A) Suspension, modification or revocation of dock management area permits. A dock management area permit may be modified, suspended, or revoked, in whole or in part, by written notice, if the director determines that the dock is not safe, that a violation of any terms or conditions of the permit or these rules has occurred, or that continuation of the permit is not in the public interest. Such modification, suspension, or revocation shall become effective upon a date specified in the notice. The notice shall state the extent of the modification, suspension, or revocation, the reasons for the action, and any corrective or preventative measures to be taken by the permittee to bring the dock, structure, or activity into compliance. Within 30 days following receipt of the notice of a revocation or modification, or during the course of a suspension, the permittee may file a notice of appeal, requesting a contested case pursuant to 571—Chapter 7. The notice of appeal shall specify the basis for requesting that the permit be reinstated.571—16.21(461A) Persons affected by DMA permit—hearing request. Any person who claims that riparian or littoral property rights are adversely affected by a DMA dock site permit may request, in writing, a hearing to reconsider the permit. Requests for hearings shall show cause and shall be made in accordance with procedures described in 571—Chapter 7. These rules are intended to implement Iowa Code sections 461A.4, 461A.11, 461A.18, 462A.27 and 462A.32.ARC 7242CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to leases and permits and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 17, “Barge Fleeting Regulations,” and to adopt a new Chapter 17, “Leases and Permits,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a” and 461A.4(1)“b.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 461A.4, 461A.18, 461A.25 and 462A.32.Purpose and Summary Proposed Chapter 17 represents a consolidation of current Chapters 17, 18, and 19. The new chapter does the following: 1. Regulates the practice of barge fleeting in order to protect public and private rights and interest in Iowa’s public waters under the Commission’s jurisdiction (current Chapter 17). 2. Provides a lease fee structure for public use of state-owned lands under Commission jurisdiction. These lands are occasionally encroached upon by members of the public, sometimes inadvertently and other times for a specific permitted purpose. The fee structure compensates the public for the occupation of state-owned land through a lease (current Chapter 18). 3. Regulates the removal of sand and gravel from state-owned property under Commission jurisdiction. This is accomplished via a permitting and fee system that compensates the public for the commercialization of public resources and ensures that waterways do not suffer permanent damage and remain ecologically intact, and that public recreational use is not adversely affected (current Chapter 19). The Department of Natural Resources (Department) believes that consolidating these chapters will simplify the rules by eliminating language that is common to multiple chapters. This consolidation is consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2). The subjects of these chapters are logically grouped together because they all involve permitting activities on, or the leasing of, state-owned lands and waters.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Nathan Schmitz Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: nathan.schmitz@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Nathan Schmitz via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at a conference call public hearing must submit a request to Nathan Schmitz prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call January 30, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 17 and adopt the following new chapter in lieu thereof: CHAPTER 17LEASES AND PERMITS[Prior to 12/31/86, Conservation Commission[290] Ch 54][Prior to [AF publication date], subject appeared in Chs 17, 18 and 19] 571—17.1(461A) Purpose. The purpose of these rules is to regulate the practices of leasing of state-owned land, barge fleeting, and permitting of sand and gravel removal in order to protect public and private rights and interests in public waters of the state of Iowa under the jurisdiction of the commission; to protect public health, safety, and welfare; and to protect fish and wildlife habitat.571—17.2(461A) Definitions. For the purposes of this chapter, the following definitions apply: "Commission" means the natural resource commission. "Deadman" means an anchor buried in the upland adjacent to a fleeting area. "Department" means the department of natural resources. "Director" means the director of the department of natural resources or the director’s designee. "Dolphins" means a closely grouped cluster of piles driven into the bed of a waterway and tied together so the group acts as a unit to withstand lateral forces from vessels or other floating objects. "Fleeting area" means an area within defined boundaries used to provide barge mooring service and to accommodate ancillary harbor towing under care of a fleet operator. The term does not include momentary anchoring or tying off of tows in transit and under care of the line haul towboat. "Lease" means a lease as authorized under Iowa Code section 461A.25. "Material" means any size particle of sand, gravel, or stone. "Mooring barge" means a barge held in place by anchors or spuds and used to moor other barges during their stay in the fleeting area. "Mooring cell" means a sheet pile structure, usually filled with earth, stone, or concrete, used to hold barges or other vessels in place. "Permit" means an agreement authorized under Iowa Code section 461A.53. "Person" means any individual, firm, partnership, joint venture, joint stock company, association, public or private corporation, municipality, cooperative, estate, trust, receiver, executor, administrator, or fiduciary and any representative appointed by order of any court or otherwise acting on behalf of others. "Riparian rights" means the legal rights that assure the owner of land abutting a stream or lake access to or use of the water. "State-owned lands and waters" means lands and waters acquired by the state by fee title and sovereign lands and waters. "Watercraft" means any vessel that through the buoyant force of water floats upon the water and is capable of carrying one or more persons.571—17.3(461A) Application for lease or permit. An applicant for, or a renewal of, a lease or permit shall submit an application to the department on forms provided by the department.571—17.4(461A) Lease and permit approval. If the director determines that there is not a material issue concerning whether the application complies with applicable criteria in these rules, a lease will be presented to the commission for further consideration. Upon approval of the commission, the lease will be presented to the executive council for final consideration. Permits will be signed by the director or designee.571—17.5(461A) Fee adjustments. Beginning January 1, 2024, and on each subsequent January 1, the lease or permit fee shall be adjusted on a cumulative basis by the percentage of the Consumer Price Index annual rate for the previous year for the Midwest Urban Region, published by the U.S. Department of Labor, Bureau of Labor Statistics. This change in fee will be applied when leases or permits are created or renewed.571—17.6(461A) Renewals of leases or permits. The permit or lease holder shall request renewal of the lease or permit no less than six months prior to its expiration or risk loss of operator’s right to the area. The appropriate application fee must accompany the application documents. A lease or permit shall remain in force during the processing of an application for renewal, including any appeals process.571—17.7(461A) Disputes concerning leases. Contested case procedures are not applicable to disputes concerning leases under this chapter, except as set forth in rule 571—17.8(461A) and subrule 17.10(9). A commission decision whether or not to recommend a lease or a particular condition of a lease is final agency action, subject to the right of an applicant or other affected person to file with the director a written request for reconsideration by the commission. The director must receive the request for reconsideration within 30 days after the commission’s decision on a proposed lease. A commission decision to recommend a lease will be forwarded to the executive council of Iowa for approval after 30 days following the commission’s decision unless the director has been notified of a written request for reconsideration or the filing of a petition for judicial review of the commission’s recommendation.571—17.8(461A) Termination for cause. Permits or leases may be terminated by the director at any time if a permit or lease holder fails to fulfill the obligations under the permit or lease in a timely and proper manner, or if a permit or lease holder violates any of the terms and conditions of the permit or lease. Termination proceedings shall be in compliance with Iowa Code chapter 17A and 571—Chapter 7. Upon termination or expiration of the permit or lease, the permit or lease holder shall immediately stop all operations and remove all equipment from the lands and waters covered by the permit or lease within a time frame designated in the notice of termination. In the event of failure of the permit or lease holder to remove all equipment from the premises within such time period, the director shall have the right to remove the equipment at the expense of the permit or lease holder.571—17.9(461A) Lease fees for state-owned property, riverbed, lakebed, and waterfront lands. The following guidelines are for the purpose of expediting the administration of applications for lease and use of land under the jurisdiction of the natural resource commission, excepting those lands leased for agricultural purposes, commercial concession agreements, and agreements covering the removal of sand, gravel, and other natural materials. 17.9(1) Annual lease fee. Beginning January 1, 2024, the fee for leases shall be $0.0600 per square foot. Leases deemed commercial by the commission will have a minimum lease value of $300, and those deemed nonprofit or noncommercial by the commission will have a minimum lease value of $150. 17.9(2) Administration fee. All nonfleeting leases shall be assessed a one-time charge of 18 percent to cover the department’s cost of inspecting lease sites, reviewing applications, preparing leases, and administering the lease program. 17.9(3) Exceptions to standard lease fee. When persons apply for permission to convert or have converted state property under the jurisdiction of the commission to personal use and the commission determines that leasing is an appropriate alternative to removal or that the above rates are not appropriate, the annual lease fee shall be determined by the commission. When determining the fee, the commission may consider availability of the property for public use, the type of personal use being made of the property, appraisal, effect on the natural resources and other items appropriate for the area involved.571—17.10(461A) Barge fleeting regulations. The purpose of this rule is to regulate the practice of barge fleeting in order to protect public and private rights and interest in public waters of the state of Iowa under the jurisdiction of the commission. 17.10(1) Applicability. This rule is applicable to all public waters under the jurisdiction of the commission except that portion of the Mississippi River conveyed to certain cities by 1945 Iowa Acts, chapter 249; 1961 Iowa Acts, chapter 299; or special charters enacted by the Legislature in 1856 and 1857. This rule regulates the use of those waters for barge fleeting, including the installation of structures, physical site modification such as dredging, and operation of fleeting equipment and maneuvering of barges within the fleet. 17.10(2) Barge fleeting leases. A person shall not assert any exclusive privilege to conduct barge fleeting and mooring service for hire, or not for hire, and shall not prevent or obstruct any lawful use of navigable waters under the jurisdiction of the commission except within a fleeting area leased by the executive council of Iowa or at a loading or off-loading facility necessary to carry on commerce, provided the facility is constructed in compliance with Iowa department of transportation, U.S. Army Corps of Engineers, and all other applicable permits and regulations. 17.10(3) Restricted areas. Leases shall not be issued for a fleeting area in the following locations unless the department, subject to the approval of the commission, determines that fleeting in such areas is not contrary to the purpose of these rules as stated in rule 571—17.1(461A): a. A site subject to unusual hazards including but not limited to high wind, strong current, violent ice movement, and hydraulic surges during the time fleeting operations are proposed to be carried out. b. A site receiving high use for recreation, sport fishing, or commercial fishing, unless the fleeting area can be placed or structured to be compatible with such uses. c. A site immediately adjacent to industries or other facilities, which, together with fleeting operations, present a substantial risk of fire, explosion, water pollution, or other serious safety hazards. d. A site where fleeting area activities would restrict or interfere with or have a substantial adverse effect on the use and enjoyment of an area owned by federal, state, or local government, including but not limited to public parks, game refuges, forests, or recreation areas used for access to docks, slips, harbors, marinas, boat launching ramps or unique biological or physical features of the river valley itself. e. A site immediately adjacent to or over a dam, sill, lock, breakwater, revetment, navigation aid, or wing dam. f. A site within established navigation channels for commercial or recreational vessels. g. A site within the approach area for a lock portion of a dam structure. h. A site adjacent to bridges or vessel approach areas to bridges. 17.10(4) Prohibited areas. Leases shall not be issued for a fleeting area in the following locations: a. A site that will have a substantial adverse effect on fish or wildlife (mussels, fish spawning, waterfowl, or furbearer) habitat due to dredging, propeller wash or other activity related to fleeting. b. A site that would have an adverse impact on documented threatened and endangered species. c. A site adjacent to national monuments or registered landmarks. 17.10(5) Riparian rights. A fleeting area shall not be leased in any location that would interfere with the rights and privileges of the riparian property owner except with written permission of the riparian property owner. 17.10(6) Standards. The following standards shall apply to operation of fleeting areas: a. A fleeting lease shall be construed to do no more than give the operator the right to designate and improve an area to be utilized for fleeting. The lease creates no interest, personal or real, in the real estate below the ordinary high-water mark except as provided in the lease. b. Improvements in fleeting areas shall be limited to items such as construction of dolphins, mooring cells, deadmen, mooring barge anchors, and other similar methods of ensuring retention of barges if approved by the department. Improvements shall be constructed in a manner consistent with engineering standards of the U.S. Army Corps of Engineers. Structures associated with barge fleeting leases will be covered by the fees of the barge fleeting lease. c. Fleeting activities within leased fleeting areas shall be limited to barge mooring service, ancillary harbor towing and minor barge repair or servicing. No washing or cleaning of barges is permitted, unless conducted in compliance with the requirements of Iowa Code chapter 455B, the washing activities will not have a substantial adverse effect on fish or wildlife (mussels, fish spawning, waterfowl, or furbearer) habitat, and the department specifically approves the cleaning activity. d. Barges shall not be moored to trees or other natural features of an area except with the approval of the riparian property owner or during an emergency. e. Barge fleeting shall be conducted in a manner that minimizes bank erosion attributable to the fleeting operation. f. Leased fleeting areas may be used for navigation and recreational pursuits such as boating and fishing only to the extent that such use does not interfere with fleeting activities. Other waterway users shall not obstruct barge fleeting activities within leased fleeting areas. g. The right of entry of barges into a fleeting area may be refused by: (1) The operator. (2) The department, after conferring with the operator, when there is an imminent hazard to the public interest or to public health, safety or welfare. h. The operator shall, at all times, be responsible for the safety and security of the barges in the fleeting area and shall take reasonable precautions to eliminate hazards to boaters or other persons in the fleeting area. i. Lights or other warning devices as required by state and federal navigation regulations shall mark moored or fleeted barges. j. The operator shall notify the department of the current name, address, and day and evening telephone numbers of the individual directly responsible for supervising the fleeting area who is to be notified in case of emergency. k. A lease issued under this chapter may not be exercised until all other necessary permits or approvals have been issued by local, state or federal agencies having jurisdiction over the lease area. 17.10(7) Application review and approval. The following process applies to barge fleeting lease applications: a. Upon receipt of a barge fleeting lease application that complies with the requirements of rule 571—17.3(461A), the department will review the application to determine whether the application complies with applicable criteria in these rules. In order to determine such compliance, the applicant may be required, at the applicant’s expense, to provide the department with anchor design criteria, underwater surveys, and dives necessary to determine compliance. b. Upon determination that an application complies with applicable criteria in these rules, the department staff shall give notice of receipt of the application through publication of one public notice that will be published in a newspaper as defined in Iowa Code section 618.3 where the proposed fleeting area is located or other approved outlets. The notice shall briefly describe the location and nature of the proposed fleeting area, identify the department rules that are pertinent to the application, state whether the application is a new lease or renewal, and provide that a hearing will be scheduled if the director determines that there is a material issue concerning whether the application complies with applicable criteria in these rules. The notice shall allow interested persons 30 days from the date of publication to submit comments or a request for hearing, and shall state that a request for hearing must be supported by documentation of potential adverse effects of the proposed fleeting facility on an affected or aggrieved person. Notice will also be sent by first-class ordinary mail or an equivalent method of service to the directors of the Iowa department of transportation and the Iowa department of economic development, the Iowa secretary of agriculture, the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and the U.S. Coast Guard. 17.10(8) Barge fleeting lease fees. The following fees shall be paid to the department by applicants and lessees: a. An annual lease fee based on the dimensions of the area leased as a fleeting area. Beginning January 1, 2024, the rate for the annual lease fee shall be $4.38 per 100 square feet. b. A fee of $1,000 for the cost of review, issuance, and administration of a lease is required at the time of application for a new or renewal lease. 17.10(9) Nonuse. Failure by an operator to substantially exercise the rights granted in a lease issued under this chapter within a period of two years from the issuance of the lease shall render the lease null and void unless extended by the department. Failure by an operator to substantially exercise the rights granted in a lease issued under this chapter for any period of two consecutive years shall create a rebuttable presumption that the operator intends to abandon and forfeit the lease and shall be cause for a review of the lease by the department. The operator may request a contested case proceeding in accordance with Iowa Code chapter 17A and 571—Chapter 7.571—17.11(461A) Sand and gravel permits. This rule provides the procedures for obtaining a permit for removal of sand and gravel from state-owned lands and waters under the jurisdiction of the department and the rules associated with the holding of a permit. 17.11(1) Permit applications. Applications for permits must be accompanied by an application for a sovereign lands permit pursuant to 571—Chapter 13. Applications will be accepted at any time throughout the year. The permit for sand and gravel will run concurrently with the sovereign lands permit. If more than one application for a permit site is received, issuance will be determined by written sealed bids. Bids shall be based on royalty rates. Bids submitted with a royalty rate less than the current rate will not be accepted. The permit shall be issued to the applicant submitting the highest royalty rate bid. 17.11(2) Application fee. The applicant for a sand and gravel permit shall submit a fee of $100 for the cost of inspection and issuance of each permit. 17.11(3) Insurance. Prior to issuance of permits, approved applicants shall provide the department a certificate of insurance, covering the entire permit term, to jointly and severally indemnify and hold harmless the state of Iowa and its agencies, officials, and employees from and against all liability, loss, damage or expense that may arise in consequence of issuance of the permit. 17.11(4) Surety bonds. Prior to issuance of permits, approved applicants shall provide to the department a surety bond in the amount of $5,000 covering the term of the permit. The surety bond shall guarantee payment to the state of Iowa for all material removed under the permit within 60 days after expiration of the permit, unless the permit holder renews the permit within 30 days of said expiration date, and for the recovery of any costs associated with reclamation or other environmental mitigation required as a condition of issued permits. 17.11(5) Permit conditions and operating procedures. The following shall apply to all sand and gravel permits: a. Permits require a sovereign lands permit and will run concurrently with that sovereign lands permit. b. The size and configuration of permit sites shall be as designated by the director. The maximum continuous length of a river or stream covered by each permit shall be 4,500 lineal feet. c. Removal operations authorized by permits shall not be performed within 30 feet of the existing bank or breach the bank at any location along any lake, stream or river unless written permission is obtained from the director prior to performance of such operations. d. Removal operations authorized by permits shall not obstruct the flow of water to the extent of preventing its ultimate passage to its usual course below the lands and waters covered by the permits and shall not prevent movement of watercraft through such waters. e. All equipment at permit sites that is on the surface of water or above or under the water shall be marked to be visible 24 hours per day. Any structure or other device below the water must be marked to indicate to watercraft operators where safe passage may occur. All markings shall conform to the uniform waterway marking system and be provided and installed by permit holders. f. Permit sites may be inspected by the director at any time during the permit term in order to verify compliance with permit terms and conditions, or thereafter until final payment is made under a terminated permit. Permit holders shall keep a daily record of the amount of material removed in the manner described by the director. All such records shall be open to inspection by the director at all times. g. Permit holders shall furnish an itemized statement of material removal operations to the director within ten days after the last day of each calendar month. Statements shall also be filed in months when no materials are removed. Reporting procedures may be modified on a case-by-case basis at the discretion of the director, to accommodate differences in material removal or operation methods. However, reporting periods shall not be greater than one-month intervals. Permit holders shall notify the department ten days prior to the initial start of removal operations or whenever the previous monthly statement indicated no materials were removed. Each cubic yard of sand, gravel, and stone removed under permits shall be considered to weigh 3,000 pounds. Statements shall be submitted on forms furnished by the department and shall indicate the following: (1) Hours of removal operations performed each day on lands and waters covered by the permit. (2) Tons of material removed from the lands and waters covered by the permit each day. (3) Tons of material, from all sources, stockpiled at the operations site at the end of the month. h. Royalty payments. Permit holders shall make royalty payments on a monthly basis for all material removed from permit sites within ten days after the last day of each calendar month. Monthly royalty payments shall be calculated using the tonnage of material removed as reported on the monthly statement. The royalty rate shall be $0.2500 cents per ton or the rate determined by sealed bids. These rules are intended to implement Iowa Code sections 461A.4, 461A.18, 461A.25, 461A.52, 461A.53, 461A.55 to 461A.57, and 462A.32.ARC 7252CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to rental fee schedule and sand and gravel permits and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 18, “Rental Fee Schedule for State-Owned Property, Riverbed, Lakebed, and Waterfront Lands,” and Chapter 19, “Sand and Gravel Permits,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a,” 455A.5(6)“e,” and 461A.4.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 461A.4, 461A.25, 462A.52, 462A.53 and 462A.55 through 462A.57.Purpose and Summary Chapter 18 and 19 are both proposed for rescission based on the Department of Natural Resources’ (Department’s) Executive Order 10 (January 10, 2023) review. However, the substance of these chapters will be retained in some form and consolidated with other related chapters. In more detail, Chapter 18 provides a fee schedule for leases of state-owned property under Commission jurisdiction. Additionally, when state-owned property is encroached upon, this chapter provides the lease fee as compensation as an alternative to requiring removal of the encroachment. This chapter was edited for length and clarity and incorporated into new Chapter 17 (ARC 7242C, IAB 12/27/23). Chapter 19 provides the procedures for individuals and businesses to obtain a permit for removal of sand and gravel from state-owned lands and waters under the jurisdiction of the Commission and the rules associated with the holding of a permit. The purpose of these rules is to ensure that the waterways are protected from permanent damage, that they remain ecologically intact, and that public recreational use is not adversely affected. This chapter was edited for length and clarity and incorporated into new Chapter 17.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Nathan Schmitz Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: nathan.schmitz@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Nathan Schmitz via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at a conference call public hearing must submit a request to Nathan Schmitz prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 18. ITEM 2. Rescind and reserve 571—Chapter 19.ARC 7230CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to manufacturer’s certificate of origin and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 20, “Manufacturer’s Certificate of Origin,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 462A.3.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 462A.3, 462A.77 and 462A.79.Purpose and Summary Proposed Chapter 20 defines the required elements of a manufacturer’s certificate of origin for vessels that must be titled within the state. It also prescribes the procedures related to use and recording of the certificate of origin by purchasers and county recorders when titling a vessel. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17.7(2), this chapter was edited for length and clarity. Specifically, provisions in this chapter that were repetitive of statute or to rules elsewhere or that referenced outdated departmental forms are proposed to be removed.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Susan Stocker Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Fax: 515.725.8201 Email: susan.stocker@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m.Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 20 and adopt the following new chapter in lieu thereof: CHAPTER 20MANUFACTURER’S CERTIFICATE OF ORIGIN571—20.1(462A) Definitions. As used in this chapter, unless the context clearly requires a different meaning: "At retail" means to dispose of a vessel to a person who will devote it to a consumer use. "Beam or width" means the transverse distance between the outer sides of the boat at the widest point excluding handles and other similar fittings, attachments, and extensions. "Capacity plate" means the U.S. Coast Guard capacity plate bearing the information required by federal regulations governing boats and associated equipment. It shall not mean capacity plate information furnished by the boating industry association, national marine manufacturers association, or any similar organization. "Department" means department of natural resources. "Essential parts" means all integral and body parts of a vessel required to be titled under Iowa Code chapter 462A, the removal, alteration, or substitution of which would tend to conceal the identity of the vessel or substantially alter its appearance, model, type, or mode or method of operation. "Length" means the straight line horizontal measurement of the overall length from the foremost part of the boat to the aftermost part of the boat, measured from end to end over the deck excluding sheer, and measured parallel to the centerline. Bow sprits, bumpkins, rudders, outboard motor brackets, handles, and other similar fittings, attachments, and extensions are not included in the measurement. "Manufacturer’s certificate of origin" means a certification signed by the manufacturer or importer that the vessel described has been transferred to the person or dealer named and that the transfer is the first transfer of the vessel in ordinary trade or commerce. The terms “manufacturer’s certificate,” “importer’s certificate,” “manufacturer’s statement,” “MSO,” and “MCO” shall be synonymous with the term “manufacturer’s certificate of origin.” "New vessel" means every vessel that has not been sold at retail and not previously titled in this state or any other state. "Person" means an individual, partnership, firm, corporation, or association. "Reconstructed vessel" means every vessel of a type required to be titled under Iowa Code chapter 462A materially altered by the removal, addition, or substitution of essential parts, new or used. "Specially constructed vessel" means every vessel of a type required to be titled under Iowa Code chapter 462A, not originally constructed under a distinctive name, make, model, or type by a generally recognized manufacturer of vessels and not materially altered from its original construction.571—20.2(462A) Applicability. This chapter applies to all vessels required to be titled under Iowa Code chapter 462A.571—20.3(462A) Certificate of origin—content. The following information shall be furnished, required, and stated in the certificate of origin. 20.3(1) Date of transfer. 20.3(2) Invoice number that covers the transfer of this particular vessel. 20.3(3) Name and complete address of dealer to whom the boat is being transferred. 20.3(4) Trade name and model of vessel. 20.3(5) Model year of vessel. 20.3(6) Manufacturer’s hull identification number (HIN) or serial number of hull if HIN is not available. 20.3(7) The type of boat, hull material, propulsion type, fuel type (if applicable), and engine drive type shall be listed in accordance with current United States Coast Guard requirements as specified in the Code of Federal Regulations. 20.3(8) Length overall in feet and inches (exact measurement required). For pontoon boats and houseboats, this shall be the deck measurement. 20.3(9) U.S. Coast Guard capacity plate information (where applicable). a. Maximum horsepower rating. b. Maximum persons capacity in whole persons. c. Maximum weight capacity (persons, motor, gear, etc.). 20.3(10) A certification by the manufacturer that this is the first transfer of a new vessel and that all information given is true and accurate. 20.3(11) Manufacturing firm name and complete address. 20.3(12) Signature and title of authorized person. 20.3(13) Information regarding assignment of the vessel to facilitate transferring it from the dealer to the purchaser. The information shall consist of: a. The purchaser’s name and address. b. Certification that the vessel is new and has never been registered in this or any other state. c. Signature of authorized agent or dealer.571—20.4(462A) Procedure—dealer. 20.4(1) Upon sale of a vessel, the dealer shall complete the first assignment information required on the reverse of the certificate of origin. 20.4(2) The dealer shall deliver the certificate of origin to the purchaser along with a bill of sale or receipt showing that the person has purchased the vessel for consumer use.571—20.5(462A) Procedure—purchaser. 20.5(1) The purchaser shall utilize the information contained on the certificate of origin to complete the information required on the application for vessel title. 20.5(2) The purchaser shall surrender the certificate of origin to the county recorder upon applying for a vessel title.571—20.6(462A) Procedure—county recorder. 20.6(1) The county recorder shall verify that the information contained in the application and the certificate of origin correspond and shall utilize that information so far as possible in issuing the vessel title. 20.6(2) The county recorder shall retain the certificate of origin as a part of the permanent record of that vessel’s title transactions.571—20.7(462A) Vessel titling. A person shall not title a vessel after December 31, 1987, without furnishing to the county recorder a manufacturer’s certificate of origin. These rules are intended to implement Iowa Code sections 462A.3, 462A.77 and 462A.79.ARC 7247CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to habitat lease program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 21, “Agricultural Lease Program,” and to adopt a new Chapter 21, “Habitat Lease Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a,” 456A.24(5) and 456A.38.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 456A.24(2), 456A.24(5), 456A.38 and 461A.25.Purpose and Summary Proposed Chapter 21 regulates the Department of Natural Resources’ (Department’s) Habitat Lease and Beginning Farmer Program. The purpose of this program is to provide an economic opportunity to a local farmer while simultaneously enhancing habitat for wildlife and providing recreational opportunities to the public.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa.Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 31, 2024. Comments should be directed to: Nathan Schmitz Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: nathan.schmitz@dnr.iowa.govPublic Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Nathan Schmitz via email. A conference call number will be provided prior to each hearing. Persons who wish to make oral comments at a conference call public hearing must submit a request to Nathan Schmitz prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call January 30, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 21 and adopt the following new chapter in lieu thereof: CHAPTER 21TITLE IIIASSISTANCE PROGRAMSHABITAT LEASE PROGRAM571—21.1(456A) Purpose. The purpose of the habitat lease program is to enhance habitat for wildlife in the state of Iowa, thereby providing recreational opportunities to the public. Utilization of habitat leases provides practices which are essential to successful wildlife habitat management and vegetation management and reduces associated operating expenses.571—21.2(456A) Definitions. "Cash rent" means an agreed-upon sum of money to be paid to the department. "Crop share" means a sum of money to be paid to the department based upon the value of an agreed-upon portion of the harvested crop at the local market price on the date the crop is harvested. "Crop year" means a one-year period terminating each February 28. "Department" means the department of natural resources. "Director" means the director of the department of natural resources or a designee. "Land manager" means the department employee or authorized agent responsible for managing a particular area under department jurisdiction. "Lease" means the written form used to enter into an agreement whereby an operator is authorized to engage in farming operations on land under the jurisdiction of the department according to stated terms and conditions. "Operator" means any party who enters into a lease with the department as provided in these rules. "Program" means the lease to beginning farmers program as provided in Iowa Code section 456A.38. "Sovereign land" means state-owned land within the ordinary high-water mark of meandered rivers and lakes where ownership was transferred directly from the United States to the state of Iowa upon its admission to the union.571—21.3(456A) Habitat lease policy. The policy of the department is to lease agricultural land under its jurisdiction so as to protect and enhance natural resources and to provide public use opportunities. Generally accepted farming practices will be followed so long as they are commensurate with good resource management practices. All leases shall be in writing. 21.3(1) Agricultural land use. Leased agricultural land is subject to any practice necessary to enable the department to carry out its resource management and subject to recreational use by the public according to the laws of the state of Iowa. Operators shall not inhibit any lawful use of the land by the public including, but not limited to, use by the public for hunting and fishing as described by the rules of the department and the laws of the state of Iowa, except as otherwise may be agreed to between the department and the operator. 21.3(2) Soil conservation. Farming practices shall not exceed compliance-based soil loss limits as established by the USDA Natural Resource Conservation Service or the local soil and water conservation district. 21.3(3) Lease basis. Leases shall be in writing on a cash rent basis, except a crop share basis may be utilized when determined to be in the state’s best interest. 21.3(4) United States Department of Agriculture programs. The inclusion, by the operator, of land under lease in any U.S. Department of Agriculture program will be allowed only if it is compatible with the department’s management plan established for said land.571—21.4(456A) Lease to beginning farmers program. 21.4(1) Beginning farmers program. This program shall be implemented in accordance with Iowa Code section 456A.38. 21.4(2) Establishing annual lease payments. Iowa Code section 456A.38(3)“d” provides criteria the department uses to determine lease payment amounts, including, but not limited to, the cost of the establishment or maintenance of water quality practices, wildlife habitat, vegetation management, or food plots, if applicable.571—21.5(456A) Alternative lease procedures. In the event that no beginning farmer seeks to participate in the program, or no beginning farmer is found qualified to participate in the program for a given lease, the following procedures shall be followed by the department in administering the habitat lease program. 21.5(1) Advertising for bids. A notice advertising for bids shall be published in at least one local newspaper. 21.5(2) Prebid informational meeting. A prebid informational meeting may be held when the land manager determines that a meeting is in the state’s best interest. Notice of a prebid informational meeting shall be included in the advertisement for bids and in the written instructions to bidders. The meeting shall be held no later than one week prior to the bid opening. If a prebid meeting is required, bidders must attend to qualify to submit a bid. 21.5(3) Form of bid. Written sealed bids shall be utilized. 21.5(4) Public bid opening. All sealed bids shall be publicly opened as stated in the notice for bids. The results of the bids shall be made available to any interested party. 21.5(5) Awarding of lease. The amount of the bid, past experience with the bidder, the bidder’s ability to comply with the terms of the lease, and the bidder’s ability to perform the required farming practices shall be considered. The department reserves the right to waive technicalities and reject any or all bids not in the best interest of the state of Iowa. 21.5(6) Negotiated leases. The land manager may negotiate a lease with any prospective operator, subject to approval of the director, in any of the following instances: a. No bids are received. b. Gross annual rent is $5,000 or less. c. Where land acquired by the department is subject to an existing tenancy. d. To synchronize the lease period of newly leased areas with other leases in the same management unit. e. Where a proposed lease includes only land not accessible to equipment necessary to perform the required farming operations, except over privately owned land, provided the prospective operator possesses legal access to the leased land over said privately owned land. f. Where the director authorizes a lease as a condition of a land purchase or trade.571—21.6(456A) Terms applicable to all habitat leases. The following terms and conditions apply to all department habitat leases entered into pursuant to rule 571—21.4(456A) or 571—21.5(456A). 21.6(1) Final approval of award. All awards of leases shall be approved by the director. Additionally, awards of all leases on sovereign land shall be subject to approval by the state executive council on recommendation of the natural resource commission. 21.6(2) Payment of cash rent. The operator shall pay a minimum of 10 percent of the total gross rent at the time of the signing of the lease and the balance for each crop year on or before December 1, or the operator shall pay 50 percent of the total annual rent each April 1 and the balance for each crop year on or before December 1. The appropriate minimum payment shall be determined by the land manager. 21.6(3) Payment of crop share rent. The operator shall pay the total annual rent on December 1 or at the time of harvest, whichever is later. 21.6(4) Termination. In accordance with Iowa Code section 562.6, the lease shall serve as the written agreement fixing the time of termination of the tenancy. The lease shall terminate at the end of the agreed-upon lease term without notice. If the department requires leased land for other conservation purposes during the term of the lease, the operator shall relinquish all rights under the existing lease, upon demand by the director, at the end of the current crop year. 21.6(5) Termination for cause. If the operator fails to comply with any of the terms of the lease, the department may serve notice on the operator demanding redress within a specified period of time. If compliance is not made within the specified period, the department may proceed to collect any moneys which may be due and payable during the crop year in which the lease is terminated and may void the remainder of the lease. Further, the department may have a landlord’s lien as set out by Iowa Code chapter 570. 21.6(6) Previous agreements. The department shall recognize legal agreements regarding habitat leases which are in effect at the time the department acquires jurisdiction to the land covered by those legal agreements. 21.6(7) Amendment to lease. Amendments to any lease shall be evidenced by written instruments attached to and made a part of the lease. Final approval of amendments shall be made by the director. These rules are intended to implement Iowa Code sections 456A.24(2), 456A.24(5), 456A.38, and 461A.25.ARC 7251CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to the habitat and public access program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 22, “Wildlife Habitat on Private Lands Promotion Program and Habitat and Public Access Program,” and to adopt a new Chapter 22, “Habitat and Public Access Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 483A.3B(3)“c”(1).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 483A.3B(3).Purpose and Summary The Commission proposes to readopt rules governing the State’s popular Iowa Habitat and Access Program (IHAP). IHAP provides technical assistance for the development and management of wildlife habitat as well as financial incentives to landowners in exchange for public hunting access. Since its creation in 2011, IHAP has had 274 properties enrolled, providing 40,190 acres of public recreational access. Currently, there are approximately 238 properties enrolled, providing around 33,407 acres of access. IHAP is funded by a federal grant awarded by the U.S. Department of Agriculture and from a portion of state-based wildlife habitat fees. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Nick Baumgarten Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: nick.baumgarten@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 22 and adopt the following new chapter in lieu thereof: CHAPTER 22HABITAT AND PUBLIC ACCESS PROGRAM[Prior to 12/31/86, Conservation Commission[290] Ch 22]571—22.1(456A,483A) Purpose and authority. These rules set forth the procedures to open private lands to public hunting, while providing grant funds to create, manage, and enhance wildlife habitat.571—22.2(456A,483A) Eligibility. In order to be eligible for this program, an applicant shall: 22.2(1) Have land in Iowa that already contains wildlife habitat or be willing to allow development of wildlife habitat; 22.2(2) Enter into an agreement with the department; and 22.2(3) Allow public access for hunting without charge on at least 40 acres.571—22.3(456A,483A) Application procedures. Applications will be accepted only from those eligible pursuant to rule 571—22.2(456A,483A). 22.3(1) Applications. Applications must be submitted on forms furnished by the department. Landowners will be notified in writing within 30 days of submission of an application whether they have been accepted into the program. 22.3(2) Project review and selection. Projects will be selected based on the ranked scoring criteria in the application, which prioritize sites with the greatest chance of benefiting wildlife populations and providing adequate recreational hunting opportunities. The criteria include, but are not necessarily limited to, the site’s habitat potential, site suitability, priority locations, and other relevant habitat and hunting access factors.571—22.4(456A,483A) Agreements. 22.4(1) The commission shall enter into an agreement with approved landowners to carry out the purposes of this program. 22.4(2) Enrolled lands are subject to game management area hunting rules as contained in 571—Chapter 51. Access and boundary signs shall be placed and maintained on enrolled lands by the department.571—22.5(456A,483A) Cost reimbursement. Whenever a landowner has been found to be in violation of an agreement or terminates the agreement early, the landowner shall reimburse the state a prorated amount of the value of wildlife habitat improvement work completed on the property divided by the entire agreement period multiplied by the unfulfilled years of the agreement, e.g., (total dollars ÷ total years) × unfulfilled years = prorated amount owed. Additionally, the landowner may be assessed early termination penalties that the department may be required to pay a contractor performing the wildlife habitat improvement work on the property. These rules are intended to implement Iowa Code section 483A.3B(3).ARC 7235CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to wildlife habitat promotion and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 23, “Wildlife Habitat Promotion With Local Entities Program,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455A.5(6)“a.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 483A.3.Purpose and Summary Proposed Chapter 23 establishes the procedures to provide local entities with their share of wildlife habitat stamp revenues. The wildlife habitat stamp is a required purchase in conjunction with most hunting and trapping licenses. By law, the stamp dollars are to be spent, in part, via an allotment to local entities. The proposed rules set forth a grant program to distribute these funds and specify application procedures, eligible projects, grant award criteria, payment terms, and other general grant administration terms. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Kelsey Fleming Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: kelsey.fleming@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 23 and adopt the following new chapter in lieu thereof: CHAPTER 23WILDLIFE HABITAT PROMOTION WITH LOCAL ENTITIES PROGRAM[Prior to 12/31/86, Conservation Commission[290]]571—23.1(483A) Purpose and definition. The purpose of this chapter is to designate procedures for allotments of wildlife habitat stamp revenues to local entities. These funds must be used specifically for the acquisition of whole or partial interests in land from willing sellers for use as wildlife habitats, and the development and enhancement of wildlife lands and habitat areas. The department will administer the stamp funds for the purposes as stated in the law at both the state and local levels. The following definition applies in these rules: "Waiver of retroactivity" means approval by the department for an applicant to purchase land prior to the next round of wildlife habitat fund application reviews. The waiver allows the applicant to remain eligible for the next round of wildlife habitat funds when extenuating circumstances exist that require an immediate purchase of the subject property by the applicant or a third party that will hold the property until funds become available to the applicant.571—23.2(483A) Availability of funds. Habitat stamp funds are dependent on stamp sales. The amount of moneys available at any time will be determined by revenues received by the department. Final stamp sales for each calendar year will be determined by July 1 of the following year. 23.2(1) Local share. Funds available for local entities shall be specified in the department’s budget in accordance with legislative appropriations. Funds will be made available during a fiscal year of July 1 to June 30. 23.2(2) Distribution. After deducting 5 percent to be held for contingencies, the remaining local share will be available on a semiannual basis each year.571—23.3(483A) Project limitations. Because of administrative costs, no application for assistance totaling less than $3,000 (total project cost—$4,000) will be considered.571—23.4(483A) Eligibility for cost-sharing assistance. No project shall be eligible for cost sharing unless it is specifically approved by the commission, or the applicant has received a written waiver of retroactivity from the director, prior to its initiation. A project shall not be eligible for cost sharing unless public hunting and trapping will be allowed; however, the review and selection committee may recommend for commission approval projects with restrictions on hunting and trapping under exceptional circumstances, such as waterfowl refuges. Fees charged for recreational purposes will not be allowed on land purchased or developed with wildlife habitat funds. Wildlife habitat promotion funds shall not be used to fund mitigation lands or banks, or other lands, to satisfy mitigation requirements. Only the following types of project expenditures will be eligible for cost-sharing assistance: 23.4(1) Acquisition projects. Lands or rights thereto to be acquired in fee or by any other instrument shall be appraised by a competent appraiser and the appraisal approved by the department staff. Applicants whose applications have been approved for funding must submit an appraisal that meets the Uniform Appraisal Standards for Federal Land Acquisitions “Yellow Book” (2016). The appraisal requirements may be waived when the staff determines that they are impractical for a specific project. Cost sharing will not be approved for more than 75 percent of the approved appraised value. Acquisition projects are eligible for either cost sharing by direct payments as described in subrule 23.10(3) or by reimbursement to local entities. When a county receives or will receive financial income directly or indirectly from sources that would have been paid to the previous landowner as a result of a purchase agreement or other title transfer action, 75 percent of that income will be transferred to the department unless the grantee has demonstrated and committed to habitat development projects or additional acquisitions on the project site to be funded from the income received. The project review and selection committee must recommend, and the director and commission must approve, plans for the expenditure of income. In the absence of acceptable wildlife habitat development or acquisition plans, the county will transfer 75 percent of income received to the department as it is received. The department will credit that income to the county apportionment of the wildlife habitat stamp fund as described in subrule 23.2(1). The schedule of those reimbursements from a county to the state will be included in the project agreement. 23.4(2) Development and enhancement projects. Equipment purchases are not eligible. Donated labor, materials and equipment use, and force account labor and equipment use shall not be eligible for cost-sharing assistance. Force account means the agency’s own labor and equipment use. Development projects are limited to lands legally controlled by the grantee for the expected life of the project. Development projects are eligible only for reimbursement of reasonable costs actually incurred and paid by the public agency. 571—23.5(483A) Application for assistance. 23.5(1) Form. Applications shall be submitted on forms provided by the department. 23.5(2) Time of submission. The department shall publish on its website the date and time for submitting a funding proposal, providing at least 90 days’ notice. Applications must be submitted to the department as described on the website. Local entities can obtain a waiver so that acquisition projects may be approved for retroactive payments, provided that funds are available and the project meets all other criteria. 23.5(3) Local funding. By signing the application, the applicant agency is certifying that all required match has been identified and is committed and available for the project. An applicant shall certify in writing that it has the 25 percent match committed and available, by signing on the signature block provided on the application, and shall state the means of providing for the local share. All necessary approvals for acquisition and financing shall be included with the application. All financial income received directly or indirectly from sources that would have been paid to the previous landowner as a result of a purchase agreement or other title transfer action will be completely documented in the application.571—23.6(483A) Project review and selection. 23.6(1) Review and selection committee. a. A review and selection committee, hereinafter referred to as the committee, composed of one person appointed by the director to represent the department and designated by the director as chairperson and four persons appointed by the director to represent county conservation boards shall recommend grant applications and amendments for funding. Additionally, there shall be at least two alternates designated by the director to represent the county conservation boards in the event of a conflict of interest. b. Conflict of interest. An individual who is a member, volunteer, or employee of a county conservation board that has submitted a project shall not serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place. 23.6(2) Application rating system. The committee will apply a numerical rating system to each grant application that is considered for fund assistance that will be posted on the department’s website, providing at least 90 days’ notice. The following criteria, with a weight factor for each, will be considered:Wildlife habitat needs2Existing or potential habitat quality3Species diversity1Each criterion will be given a score of from 0 to 10 that is then multiplied by the weight factor. Four additional criteria will be considered in the rating system: a. Prior assistance.Any applicant who has never received a prior grant for acquisition of land will be given a bonus of five points. b. Active projects.Any applicant who has one or more active projects at the time of application rating will be assessed five penalty points for each project that has not been completed. A project is deemed closed after the project has had a final inspection, all funds have been paid and, in the case of acquisition, the title has been transferred from the seller. c. Urgency.Projects may be given one or two bonus points if there is a strong urgency to acquire lands that might otherwise be lost. d. Cost-effectiveness.Projects will be given one point if the grant amount requested is at least 35 percent less than the appraised amount or two points if at least 45 percent less than the appraised amount.All points will be totaled for each application, and those applications receiving the highest scores will be recommended for fund assistance to the extent of the allotment for each semiannual period, except that any project scoring a total of not more than 45 points will not be funded. 23.6(3) Applications not selected for fund assistance. All applications not selected for fund assistance will be retained on file for consideration and possible funding for three consecutive review periods or until a request for withdrawal is received from the applicant. 23.6(4) Rating system not used. The rating system will not be applied during any semiannual period in which the total grant request, including backlogged applications, is less than the allotment. Applications will be reviewed only to determine eligibility and overall desirability, and to ascertain that they meet minimum scoring requirements. 23.6(5) Rating of scores for tiebreakers. If two or more projects receive the same score, the committee shall use the points awarded to the highest weighted factor and so forth, beginning with existing or potential habitat quality, to determine which project has a higher rank. If after considering the existing or potential habitat quality points the project scores remain tied, the committee will then consider the points awarded for species diversity. If after considering the species diversity points the project scores remain tied, the committee will then consider the points awarded for wildlife habitat needs.571—23.7(483A) Commission review. The commission will review committee recommendations semiannually at the next following commission meeting. The commission may accept or reject any application recommended for funding.571—23.8(483A) Grant amendments. Projects for which grants have been approved may be amended, if funds are available, to increase or decrease project scope or to increase or decrease project costs and fund assistance. Project changes must be approved by the selection committee and then by the director prior to their inception. Amendments to increase project costs and fund assistance due to cost overruns will not be approved if the work has already been performed.571—23.9(483A) Timely commencement of projects. Projects for which grants are approved shall be commenced within six months of the date upon which the grantee is notified that the project is approved, or at another date agreed upon by both parties. Failure to do so may be cause for termination of the project and cancellation of the grant by the commission. Each project will be assigned a project period. Extensions will only be granted in case of extenuating circumstances.571—23.10(483A) Payments. 23.10(1) Grant amount. Grant recipients will be paid 75 percent of all eligible costs incurred on a project up to the amount of the grant unless otherwise specified in the project agreement. 23.10(2) Project billings. Grant recipients shall submit billings for reimbursements or cost sharing on forms provided by the department. 23.10(3) Acquisition projects. If clearly requested in the project application and the applicant has shown good cause for such procedure, the department may approve direct payment to the seller of the state’s share provided that marketable fee simple title, free and clear of all liens and encumbrances or material objections, is obtained by the local entity at the time of payments and state funds are then available. 23.10(4) Development projects. On approved development projects, payment will be made by the department only as reimbursement for funds already expended by the local entity.571—23.11(483A) Recordkeeping and retention. A grant recipient shall keep adequate records relating to its administration of a project, particularly relating to all incurred costs and direct or indirect income from other sources that normally would have been paid to the previous landowner resulting from a purchase agreement or other title transfer action. A copy of the county’s audits particularly showing such income and disbursements for the grant period will be submitted to the department’s budget and grants bureau. These records shall be available for audit by appropriate personnel of the department and the state auditor’s office. All records shall be retained in accordance with state laws.571—23.12(483A) Penalties. Whenever any property, real or personal, acquired or developed with habitat stamp fund assistance passes from the control of the grantee or is used for other purposes that conflict with the project purpose, it will be considered an unlawful use of the funds. The department shall notify the local entity of any such violation. 23.12(1) Remedy. Funds used unlawfully must be returned to the department for inclusion in the wildlife habitat stamp fund, or a property of equal value at current market prices and with commensurate benefits to wildlife must be acquired with local, non-cost-shared funds to replace it. Such replacement must be approved by the commission. The local entity shall have a period of two years after notification by the department in which to correct the unlawful use of funds. The remedies provided by this rule are in addition to others provided by law. 23.12(2) Land disposal. Whenever it has been determined and agreed upon by the grantee and the commission that land acquired or developed with habitat stamp fund assistance is no longer of value for the project purpose, or that the local entity has other good cause, the land, with the approval of the commission, may be disposed of and the proceeds thereof used to acquire or develop an area of equal value, or 75 percent of the proceeds shall be returned to the state for inclusion in the wildlife habitat stamp fund. 23.12(3) Ineligibility. Whenever a local agency is in violation of this rule or the grant agreement, it shall be ineligible for further assistance until the matter has been resolved to the satisfaction of the commission. These rules are intended to implement Iowa Code section 483A.3.ARC 7256CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to blufflands protection and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 24, “Blufflands Protection Program and Revolving Loan Fund,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 161A.80A.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 161A.80A.Purpose and Summary Proposed Chapter 24 consists of rules implementing a revolving loan fund for the protection of significant blufflands along the Mississippi and Missouri Rivers. These rules are required by state law. The rules specify loan application and approval processes, loan terms, and land management requirements. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Kelly Smith Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: kelly.smith@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 24 and adopt the following new chapter in lieu thereof: CHAPTER 24BLUFFLANDS PROTECTION PROGRAM AND REVOLVING LOAN FUND571—24.1(161A) Definitions. For the purpose of this rule: "Fund" means the bluffland protection revolving fund established in Iowa Code section 161A.80A. "State-owned lands" means lands in which the state holds the fee title through acquisition and lands in which the state holds title by virtue of its sovereignty, including the beds of the Mississippi River and Missouri River.571—24.2(161A) Types of acquisitions. Acquisition must be fee simple and title to lands purchased must be free of encumbrances, unless approved by the director on the recommendation of the attorney general. Loan applicants shall submit an abstract of title to lands to be purchased with loans from the fund for examination by the attorney general prior to issuance of any loan.571—24.3(161A) Application for loans. Conservation organizations shall apply for loans on forms available on the department’s website.571—24.4(161A) Approval of loan applications. The director shall appoint a committee to review and evaluate loan applications. The committee shall make appropriate recommendations to the director.571—24.5(161A) Interest and other terms of loan agreements. Loans shall be for a maximum term of five years with payment due at the end of the loan term. At the end of the loan term, an appropriate conservation easement approved by the department shall be in effect unless the fee title is conveyed to a public entity in trust to be held for conservation purposes. Simple interest at an annual rate of 4 percent shall accrue on the principal amount of the loan and shall be payable with the principal at the end of the loan term. However, interest shall be waived for the period commencing with the effective date of an approved conservation easement. All interest shall be waived if the fee title is conveyed to a public entity in trust for conservation purposes. The loan agreement and documents establishing security for the loan shall be in a form approved by the department and the attorney general. The applicant shall execute and deliver a first mortgage in favor of the state of Iowa acting through the department of natural resources or provide equivalent security to secure the principal and interest due on the loan. The mortgage shall contain provisions for foreclosure in accordance with Iowa Code chapter 654.571—24.6(161A) Eligible expenditures with loan funds. Loan funds shall be limited to the following: land purchase, usual and customary incidental costs (not including personnel, staff time, and administrative overhead), land appraisal fees and land survey fees.571—24.7(161A) Custody and management of land during loan term. Loan recipients must hold title to blufflands acquired throughout the term of the loan. Where practicable, lands purchased with loan funds shall be available for public use under terms and conditions stated in the loan agreement. If the bluffland is sold before the end of the loan term, it must first be offered to a governmental entity. If no governmental entity agrees to purchase the land, it may be sold to a private buyer provided title is first encumbered by a conservation easement granted to the conservation organization or the state of Iowa or its political subdivisions. The easements shall ensure that the natural, scenic or cultural resources of the bluffland are permanently protected. If the bluffland is sold before the end of the loan term, the loan balance shall become due immediately at the time of sale. A loan recipient may enter into agreements, at any time, with governmental entities for the care, management and public use of lands purchased with loan funds.571—24.8(161A) Loans not to exceed appraised value. Loans from the fund shall not exceed the appraised value of the land to be acquired plus approved incidental expenses listed in rule 571—24.6(161A). These rules are intended to implement Iowa Code sections 161A.80A and 161A.80B.ARC 7254CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to certification of land as native prairie or wildlife habitat and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 25, “Certification of Land as Native Prairie or Wildlife Habitat,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 427.1(23) and 427.1(24).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 427.1(23) and 427.1(24).Purpose and Summary Chapter 25 establishes criteria for land to qualify for native prairie and wildlife habitat property tax exemptions. It also establishes land certification and decertification procedures. The criteria and evaluation procedure ensures that tax exempt lands are providing the public and environmental benefits the tax break is intended to reward. Properties will be evaluated consistent with these proposed rules by the Department of Natural Resources (Department) and, if eligible, officially certified. Property tax exemptions will be granted by the county assessor based on the Department’s certification. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This proposed rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Monica Thelen Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: monica.thelen@dnr.iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m.Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 25 and adopt the following new chapter in lieu thereof: CHAPTER 25CERTIFICATION OF LAND AS NATIVE PRAIRIE OR WILDLIFE HABITAT[Prior to 12/31/86, Conservation Commission[290] Ch 25]571—25.1(427) Purpose. The purpose of this chapter is to define lands that qualify for native prairie and wildlife habitat property tax exemptions and to provide procedures whereby owners may have them certified as such.571—25.2(427) Definitions. Before lands will be certified as either “native prairie” or “wildlife habitat” under Iowa Code section 427.1, they must meet the criteria of the following definitions: "Native prairie" is defined as those lands that have never been cultivated, are unimproved, and are natural or restored grasslands wherein at least 50 percent of the plant canopy is a mixture of grass and forb species that were found originally on Iowa’s prairie lands. "Wildlife habitat" is defined as those parcels of agricultural land of two acres or less, composed of native species having adequate ground cover, that are devoted exclusively for use as habitat for wildlife and are protected from all other economic uses of any kind.571—25.3(427) Restrictions. Lands classified as native prairie or wildlife habitat under this rule shall not be used for economic gain of any type. This includes the storage of equipment, machinery, and crops, or receiving lease or rental payments. There shall not be any buildings, used or unused, on the tax parcel containing the exempted area.571—25.4(427) Maintenance. Maintenance activities, including burning, chemical treatment, or selective brush removal, may be performed on native prairies if approved by the county conservation board or by the department of natural resources in areas not served by a county conservation board. Similar activities, as well as seedings and plantings, may be performed on wildlife habitats if approved by the department of natural resources.571—25.5(427) Certification. In order to have lands certified as native prairie or wildlife habitat, the taxpayer must make an application to the department of natural resources on forms made available by the department. The application shall describe and locate the property to be exempted on a map. 571—25.6(427) Decertification. Whenever land certified as natural prairie or as wildlife habitat is used for economic gain or otherwise becomes ineligible for tax-exempt status, the Department shall notify the appropriate assessor. These rules are intended to implement Iowa Code section 427.1.ARC 7253CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to relocation assistance and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 26, “Relocation Assistance,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code chapter 316.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary Chapter 26 sets forth the policy and procedures to be followed regarding relocation assistance for those being displaced by a Department of Natural Resources’ (Department’s) land acquisition. This chapter will be repealed in its entirety. The Department has determined that the contents of this chapter are duplicative of Iowa Code chapter 316 and the federal Uniform Relocation Assistance and Real Property Acquisition Act. Rescission of this chapter will have no material change on departmental policy. The Department’s operations will continue to be governed by applicable state and federal laws. Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This proposed rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 23, 2024. Comments should be directed to: Travis Baker Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: travis.baker@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the conference call should contact Travis Baker via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at the conference call public hearing must submit a request to Travis Baker prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 26.ARC 7232CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to land and water conservation fund program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 27, “Lands and Waters Conservation Fund Program,” and to adopt a new Chapter 27, “Land and Water Conservation Fund Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455A.5(6)“a.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 456A.27 to 456A.35.Purpose and Summary This proposed rulemaking contains the implementation rules for the Land and Water Conservation Fund (LWCF), a federal cost-share program for outdoor recreational resources. This rulemaking establishes eligible participants (county conservation boards and incorporated cities), provides the procedure for the application and approval process, lists eligible uses, and outlines required tracking and documentation of spending. This rulemaking ensures the federal funds are spent in a manner consistent with federal requirements. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Specifically, there were provisions in this chapter that were outdated, duplicative, and unnecessary. These provisions are proposed to be removed from the new chapter.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 31, 2024. Comments should be directed to: Jessica Flatt Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: jessica.flatt@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. The hearings will also be available online. Persons who wish to attend a conference call or Google Meet virtual meeting should contact Jessica Flatt via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at the conference call public hearing must submit a request to Ms. Flatt prior to the hearing to facilitate an orderly hearing. January 30, 2024 12 noon to 1 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 31, 2024 4 to 5 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 27 and adopt the following new chapter in lieu thereof: CHAPTER 27LAND AND WATER CONSERVATION FUND PROGRAM571—27.1(456A) Purpose. The purposes of the federal Land and Water Conservation Fund, hereinafter referred to as the LWCF, are as stated in Section 1(b) of the Land and Water Conservation Fund Act of 1965 (54 U.S.C. §200301). The Iowa department of natural resources, hereinafter referred to as the department, acting through its director, will administer the LWCF for the same purposes at the state and local levels. All state and local projects will comply with the federal statute and program guidelines.571—27.2(456A) Apportionment distribution. 27.2(1) Iowa apportionment. The state expects to receive an annual apportionment from the LWCF. This annual apportionment, after deducting any amount necessary to cover the department’s costs of administering the program and state outdoor recreation planning costs, shall be divided into two shares for state and local entity grants with the local entity share being not less than 50 percent. 27.2(2) Local share. The local share of the annual LWCF apportionment shall be available for local entity grants on an annual basis.571—27.3(456A) Eligibility requirements. The following eligibility requirements shall apply to local entities: 27.3(1) Participation in the LWCF shall be limited to county conservation boards and incorporated cities. 27.3(2) A local entity shall have assessed outdoor recreation supplies, demands and needs and shall have allowed for input by affected citizens within the service area of any proposed project. Applications shall include documentation of these planning processes.571—27.4(456A) Assistance ceiling. Local entities are eligible to receive annual assistance from the LWCF of up to $250,000 per proposal. No grant shall be approved that exceeds the allotment for the review period. 571—27.5(456A) Grant application submission. 27.5(1) Form of application. Grant applications for both state and local projects shall be on forms and follow guidelines provided by the department. Projects selected for funding with land and water conservation assistance must be in accordance with state comprehensive outdoor recreation plan (SCORP) priorities. 27.5(2) Application timing. For local projects, grant applications shall be reviewed and selected for funding on an annual basis as provided in subrule 27.2(2). The department shall publish on its website the date and time for submitting a funding proposal, providing at least 90 days’ notice. Applications must be submitted to the department as described on the website. State projects will be reviewed, evaluated and submitted to the National Park Service for approval as soon as practicable upon notification of Iowa’s apportionment. 27.5(3) Local funding. An applicant shall certify that it has committed its share of project costs. Cash donations must be on deposit and a bond issue must have been passed by the electorate if such passage is necessary if either or both is a source of local funding. 27.5(4) Development project application. An application for a development project grant shall include development on only one project site with the exception that an application may include development of a like nature only on several sites.571—27.6(456A) Project review and selection. 27.6(1) Review and selection committee for local projects. a. A five-member review and selection committee, hereinafter referred to as the committee, shall be composed of three staff members of the department as appointed by the director, one member appointed by the director with input from the Iowa association of county conservation boards, and one member appointed by the director with input from the Iowa league of cities and the Iowa parks and recreation association. Additionally, there shall be at least two alternates designated by the director with input from both associations and the league of cities. The committee shall determine which grant applications shall be selected for funding at the local level. b. Conflict of interest. An individual who is a member, volunteer, or employee of an entity that has submitted a project shall not serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place. 27.6(2) Consideration withheld. The committee will not consider any application that, on the date of the selection session, is not complete, or for which additional pertinent information has been requested and not received. 27.6(3) Open project selection process for local projects. The department will create an open project selection process in program guidelines published at least 90 days prior to a grant application due date. The project selection process rating system will include, at minimum, the following components: objective criteria and standards based on local need and priorities identified in SCORP, process for public participation, assurances that the distribution of LWCF assistance is accomplished in a nondiscriminatory manner and conformance to LWCF eligibility and evaluation criteria. 27.6(4) Open project selection process for state projects. State projects are chosen by the department based on priorities and funding.571—27.7(456A) Public participation for local projects. All grant applicants will be advised of the time and place of the grant review session. A time period for public comment will be allowed at the review session. 571—27.8(456A) Director’s review. The director will review, amend, reject, or approve committee recommendations after each review period for local projects. Appeals of the director’s decision may be made to the commission.571—27.9(456A) Federal review. All applications selected for fund assistance shall be submitted to the administering federal agency for final review and grant approval.571—27.10(456A) Grant amendments. Projects for which grants have been approved may be amended. Amendments to increase project costs and fund assistance due to cost overruns will not be approved.571—27.11(456A) Timely commencement of projects and project period. Grant recipients are expected to carry out their projects in an expeditious manner. Physical work on the project shall commence within one calendar year of the federal award date. Failure to do so may be cause for termination of the project and cancellation of the grant. Project period is assigned by federal statute.571—27.12(456A) Reimbursements. 27.12(1) Grant amount. Grant recipients are reimbursed up to 50 percent of all eligible costs incurred on a project up to the amount of the grant. 27.12(2) Project billings. The following information applies to local grants only. Grant recipients shall submit billings for reimbursements on forms provided by the department or through a cover letter. No more than two project billings shall be allowed. A final billing shall be submitted within 90 days following project completion. 27.12(3) Documentation. Grant recipients shall provide documentation as required by the department to substantiate all costs incurred on a project.571—27.13(456A) Recordkeeping and retention. A grant recipient shall keep adequate records relating to its administration of a project, particularly relating to all incurred costs. These records shall be available for audit by appropriate personnel of the department, the state auditor’s office and the U.S. Department of the Interior. These rules are intended to implement Iowa Code sections 456A.27 through 456A.33, 456A.34, and 456A.35.ARC 7244CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to the all-terrain vehicle registration revenue grant program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 28, “All-Terrain Vehicle Registration Revenue Cost-Share Program,” and adopt a new Chapter 28, “All-Terrain Vehicle Registration Revenue Grant Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 321I.2.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 321I.8.Purpose and Summary This proposed rulemaking establishes rules for the all-terrain vehicle registration grant program. The rulemaking identifies eligible participants (political subdivisions and incorporated private organizations), provides the procedure for the grant application and approval process, lists eligible uses, and outlines required tracking and documentation of spending. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Specifically, there were provisions in this chapter that were outdated, duplicative, and unnecessary. These provisions have been removed from the new version. Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 31, 2024. Comments should be directed to: Jessica Flatt Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: jessica.flatt@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. The hearings will also be available online. Persons who wish to attend the conference call or Google Meet virtual meeting should contact Jessica Flatt via email. January 30, 2024 12 noon to 1 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 31, 2024 4 to 5 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearings and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 28 and adopt the following new chapter in lieu thereof: CHAPTER 28ALL-TERRAIN VEHICLE REGISTRATION REVENUE GRANT PROGRAM571—28.1(321I) Definitions. "All-terrain vehicle (ATV)" means the same as defined in Iowa Code section 321I.1. "Commission" means the same as defined in Iowa Code section 321I.1. "Department" means the same as defined in Iowa Code section 321I.1. "Designated riding area" means the same as defined in Iowa Code section 321I.1. "Director" means the same as defined in Iowa Code section 321I.1. "High-quality natural area" means an area that includes high-quality native plant communities, highly restorable native plant communities or an area that provides critical wildlife habitat. An on-site evaluation by qualified person(s) for each proposed site is necessary in making this determination. "Local share" means those funds available for use by incorporated organizations or other public agencies through cost-sharing, grants, subgrants or contracts. "Previously disturbed" means an area where the plant community has been severely disturbed and has not recovered or the natural (native) plant biota is nearly gone. Such an area has been so heavily disturbed that the plant community structure has been severely altered and few or no higher plants of the original community remain. Examples are newly cleared land, cropland, severely overgrazed pasture or second-growth forest, quarries, mines, and sand pits. "Sponsor" means the incorporated organization or other public agency receiving funding from the all-terrain fund grant program through an agreement to acquire, develop, maintain or otherwise improve designated riding areas and trails. "State share" means those funds that may be used by the state for administration, law enforcement, or other expenses related to the program.571—28.2(321I) Purpose and intent. This program provides funds from the all-terrain vehicle registration fund to political subdivisions and incorporated private organizations for the acquisition of land, development and maintenance of designated riding areas and trails, and facilities for such use on lands which may be in other than state ownership. This chapter is intended to clarify procedures in Iowa Code section 321I.8 and to execute agreements between the department and sponsors, under the authority of the director. All designated riding areas, trails and facilities established or maintained using revenues under this program shall be open to use by the general public.571—28.3(321I) Distribution of funds. The local share of state all-terrain vehicle registration funds as established in Iowa Code section 321I.8 and this rule shall be distributed in accordance with this chapter and upon execution of agreements. The local share of the registration fund shall be at least 50 percent of appropriate registration revenues. The remaining revenues shall be known as the state share. State share funds shall not exceed 50 percent of the total registration revenue generated for the program per fiscal year.571—28.4(321I) Application procedures. 28.4(1) Forms. Applications for local share moneys shall be made on forms available from the department. The application must be completed and signed by the chairperson or chief executive officer of the applying sponsor. The application must be accompanied by a copy of the minutes of the sponsoring organization meeting at which the request was approved. 28.4(2) Grant application submission. The process of applying for a grant shall follow guidelines, and the application shall be on form(s) provided by the department. The department shall publish on its website the date and time for submitting an application, providing at least 90 days’ notice. Applications must be submitted to the department as described on the website. Applications will be posted on the department’s website, at minimum, at least once per year.571—28.5(321I) Review and selection committee. 28.5(1) The committee responsible for reviewing, ranking and selecting projects to receive funding from the local share of the all-terrain vehicle registration revenue shall be comprised of two representatives appointed by the president of the Iowa Off-Highway Vehicle Association and three department representatives appointed by the director. 28.5(2) The review and selection committee shall meet in a manner as determined by the department within 30 days following the application deadline. Applications eligible for funding will be reviewed and ranked by the committee. The committee’s recommendations will be submitted to the director for approval.571—28.6(321I) Director’s review of approved projects. The director shall review, amend, reject or approve committee selections. Appeals of the director’s decision may be made to the commission. Applicants shall be notified of their grant status in writing within 30 days after the review and selection committee meeting.571—28.7(321I) Project selection criteria. In reviewing projects to receive available funding, the following minimum criteria shall be used:- Projects proposing maintenance and operation of existing designated riding areas and trails.
- Development within existing designated riding areas or trails.
- Projects having documented local support and involvement.
- Acquisition and development projects located in areas of high demand with preference given to projects with the most long-term, stable management plan and that have the least adverse environmental and social impacts.
Proposing rulemaking related to local recreation infrastructure grants and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 29, “Local Recreation Infrastructure Grants Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in 1998 Iowa Acts, Senate File 2381.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary Chapter 29 contains rules for a local recreational facility grant fund. The grant provided state cost sharing to certain entities to fund restoration or construction of recreational complexes or facilities. Money was appropriated in 1998 to fund this grant program, and the funds were distributed in conformance with the rules. This program has been dormant for many years. Accordingly, these rules can be rescinded.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Tamara McIntosh Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: tamara.mcintosh@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 29.ARC 7237CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to waters cost-share and grant programs and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 30, “Waters Cost-Share and Grant Programs,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a,” 461A.4(1)“b” and 462A.3(2).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapters 455A, 461A and 462A and section 452A.79A.Purpose and Summary Proposed Chapter 30 creates a cost-share partnership between state and local public entities to acquire or develop public recreational boating accesses to Iowa waters, to plan and develop constructed water trail amenities, and to implement safety projects at low-head dams. These grant programs benefit dam owners, anglers, paddlers, boaters, tubers, and other recreational users of public waters in Iowa. Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Nate Hoogeveen Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Fax: 515.725.8201 Email: nate.hoogeveen@dnr.iowa.govPublic Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Nate Hoogeveen via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at a conference call public hearing must submit a request to Mr. Hoogeveen prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call January 30, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 30 and adopt the following new chapter in lieu thereof: CHAPTER 30WATERS COST-SHARE AND GRANT PROGRAMS [Prior to 12/31/86, Conservation Commission[290] Ch 79]DIVISION IWATER RECREATION ACCESS COST-SHARE PROGRAM571—30.1(452A) Title and purpose. This division provides rules for the water recreation access cost-share program. The purpose of this division is to define procedures for cost sharing between state and local public agencies to provide for the acquisition or development of public recreational boating accesses to Iowa waters.571—30.2(452A) Availability of funds. Moneys derived from the excise tax on the sale of motor fuel used in watercraft under Iowa Code section 452A.79 are deposited as a “marine fuel tax” and are subject to appropriation by the general assembly to the department of natural resources. Each year, as part of its approval of the department’s capital improvement plan, the commission may designate an amount to be available for this program.571—30.3(452A) Eligibility of development projects. Projects proposing to develop properties or facilities for the purposes of providing or enhancing recreational boating access consistent with Iowa Code section 452A.79A may apply for funding. Additional eligibility guidance or requirements may be provided during the application process described in 571—30.9(452A).571—30.4(452A) Eligibility of acquisition projects. Projects proposing to acquire land for recreational boating/canoeing access are eligible to apply for water access funding. Costs for a department-approved appraisal report and the cost of surveys necessary to determine acreage and establish boundaries are also eligible for assistance on those projects approved for funding. Additional eligibility guidance or requirements may be provided during the application process described in 571—30.8(452A).571—30.5() Reserved.571—30.6(452A) Waiver of retroactivity. In case of extreme urgency involving land acquisition, a grant applicant may formally request a written waiver of retroactivity that, if granted by the director of the department of natural resources, will permit the applicant to acquire the real property immediately without jeopardizing the applicant’s chances of receiving a grant. However, the granting of the waiver in no way implies or guarantees that any subsequent grant application covering the acquisition will be selected for funding by the water access committee. The request for the waiver must include justification regarding the urgency of the acquisition, a description of the land to be acquired, and a county map on which the land to be acquired is located. Acceptable justification would include situations in which land is to be sold at auction or by sealed bids or when the landowner requires immediate purchase.571—30.7(452A) Establishing project priorities. The director shall appoint a six-member water access committee representing a cross section of department responsibilities for the purpose of reviewing and establishing priorities for cost sharing.571—30.8(452A) Application procedures. Applications for funds shall be reviewed and selected for funding at least once per year. The department shall publish on its website the date and time for submitting a funding proposal, providing at least 90 days’ notice. Applications must be submitted to the department as described on the website.571—30.9(452A) Cost-sharing rates. All projects approved for assistance will normally be cost-shared at a 75 percent state/25 percent local ratio. Exceptions to the normal funding formula may occur under the following conditions: 30.9(1) Where a local public agency agrees under terms of a long-term agreement to assume maintenance and operation of a department of natural resources water access facility, the approved development or improvements needed on that facility may be funded at up to 100 percent. 30.9(2) Where feasible and practical, the department will provide funds to cover 100 percent of materials needed for a development project if the local subdivision agrees to provide 100 percent of the labor and equipment to complete that development. 30.9(3) Where joint use will be made of a project by commercial interests as well as by recreational boaters, only that portion of a project attributable to the use by recreational boaters will be cost-shared through this program. 30.9(4) When, at the discretion of the director, some alternate funding level is deemed appropriate.571—30.10(452A) Joint sponsorship. Two or more local public agencies may join together to carry out a water access project. However, for the purposes of the grant program, the committee will accept only one local agency as the prime project sponsor. Any written agreements between the local agencies involved in any joint venture will be made a part of any grant application. The application rating system will be applied only to the prime sponsor. The project agreement will be negotiated with the prime sponsor and reimbursements will be paid to it.571—30.11(452A) Control of project site. In order for a project site to be eligible for a development grant, it must be under the physical control of the grant applicant, either by fee title, lease, management agreement, or easement. The term of a lease, management agreement, or easement must be commensurate with the life expectancy of the proposed development.571—30.12(452A) Project agreements. 30.12(1) A cooperative agreement approved by the director between the department and the local grant recipient describing the work to be accomplished and specifying the amount of the grant and the project completion date will be negotiated as soon as possible after a grant has been approved. Maximum time period for project completion shall be two years for acquisition or development projects, unless an extension approved by the director is authorized. However, agreements covering land acquisition will be dependent upon receipt of a department-approved appraisal report since assistance will be based on the approved appraised valuation or the actual purchase price, whichever is the lesser. Approved development projects costing over $25,000 must have plans certified by a registered engineer before an agreement will be issued. 30.12(2) Cooperative agreements between the department and the local project sponsor may be amended to increase or decrease project scope or to increase or decrease project costs and fund assistance. Any increase in fund assistance will be subject to the availability of funds. Amendments to increase scope or fund assistance must be approved by the director before work is commenced or additional costs incurred. A project sponsor may request amendment of the agreement for a previously completed project to allow commercial use under the conditions specified in 30.9(3). The director shall have the authority to approve such amendments. 30.12(3) All approved projects, except those in which the project is owned by the state and managed by a local entity, having a grant request in excess of $25,000 will be presented to the natural resource commission members for their information prior to project initiation. The commissioners may act to disapprove or modify projects.571—30.13(452A) Reimbursement procedures. Financial assistance from the water access fund will typically be in the form of reimbursement grants, which will be made on the basis of the approved percentage of all eligible expenditures up to the amount of the approved grant.Reimbursement requests will be submitted on project billing forms provided by the department. 30.13(1) For acquisition projects, one copy each of the following additional documentation will be required: a. Deed. b. Invoices or bills for any appraisal or survey expense. c. All applicable canceled checks or warrants. d. A certificate of title prepared by the agency’s official legal officer. 30.13(2) For development projects, grant recipients shall provide documentation as required by the department to substantiate all project expenditures. 30.13(3) Reimbursements will be made on real estate contract payments using the following procedures: a. The grant recipient will submit to the department a copy of the real estate contract, which must stipulate that the grant recipient will get physical control of the property on or before the date the first contract payment is made. b. The grant recipient will submit to the department a copy of any approval that it is required to obtain from any governing body to enter into a real estate contract. c. The grant recipient will submit to the department an up-to-date title opinion from its official legal officer indicating that the landowner has and can convey clear title to the grant recipient. d. The grant recipient will submit a project billing with photocopy of the canceled warrant when claiming reimbursement. e. When final payment has been made and title obtained, the grant recipient will submit to the department a copy of the deed and a certificate of title from its official legal officer. Only one reimbursement request may be submitted if the total project cost is $10,000 or less. If more than $10,000, no more than two reimbursement requests may be submitted.A final reimbursement request shall be submitted within 90 days following the completion date indicated on the cooperative agreement. Failure to do so may be cause for termination of the project with no further reimbursement to the grant recipient.Ten percent of the total reimbursement due any grant recipient for a development project will be withheld pending a final site inspection or until any irregularities discovered as a result of a final inspection have been resolved. Final site inspections will be conducted by assigned department staff within 30 days of notification by project sponsor that a project is completed.571—30.14() Reserved.571—30.15() Reserved.571—30.16() Reserved.571—30.17() Reserved.571—30.18() Reserved.571—30.19() Reserved.571—30.20() Reserved.571—30.21() Reserved.571—30.22() Reserved.571—30.23() Reserved.571—30.24() Reserved.571—30.25() Reserved.571—30.26() Reserved.571—30.27() Reserved.571—30.28() Reserved.571—30.29() Reserved.571—30.30() Reserved.571—30.31() Reserved.571—30.32() Reserved.571—30.33() Reserved.571—30.34() Reserved.571—30.35() Reserved.571—30.36() Reserved.571—30.37() Reserved.571—30.38() Reserved.571—30.39() Reserved.571—30.40() Reserved.571—30.41() Reserved.571—30.42() Reserved.571—30.43() Reserved.571—30.44() Reserved.571—30.45() Reserved.571—30.46() Reserved.571—30.47() Reserved.571—30.48() Reserved.571—30.49() Reserved.571—30.50() Reserved. These rules are intended to implement Iowa Code section 452A.79.DIVISION IIWATER TRAILS DEVELOPMENT PROGRAM AND LOW-HEAD DAM PUBLIC HAZARD PROGRAM 571—30.51(455A,461A,462A) Definitions. For purposes of this division, the following definitions shall apply: "Commission" means the natural resource commission. "Coordinator" means the staff person of the department responsible for implementing this division. "Department" means the department of natural resources. "Director" means the director of the department of natural resources. "Low-head dam" means a uniform structure across a river or stream that causes an impoundment upstream, with a recirculating current downstream. "Navigable waters" means all lakes, rivers, and streams that can support a vessel capable of carrying one or more persons during a total of six months period in one out of every ten years. "Scoring committee" means the water trails scoring committee, which consists of the coordinator, two department staff members appointed by the director, and two representatives and two alternates of the water recreation community selected by the director. "Sponsor" means an eligible applicant, as described in these rules. "Water trail" means a point-to-point travel system on a navigable water and a recommended route connecting the points.571—30.52(455A,461A,462A) Purpose and intent. The water trails development program and the low-head dam public hazard program provide funds to assist development of local water trails on navigable waters of the state of Iowa and to support safety projects for low-head dams in the state of Iowa. The programs will be available to fund two types of projects: those that enhance water trails development and recreation and those that are limited to projects that primarily enhance dam safety in order to reduce drownings.571—30.53(455A,461A,462A) Program descriptions. 30.53(1) Water trails development program. The department will provide funds to cities and counties in the state of Iowa to plan and develop water trails throughout the state. The goal of the water trails development program is to assist and encourage the development of community-driven water trails that provide features described in statewide and local plans and herein. 30.53(2) Low-head dam public hazard program. The department will provide funds to dam owners, including counties, cities, state agencies, cooperatives, and individuals, within Iowa to undertake projects that warn the general public about drowning hazards related to low-head dams or that remove or otherwise modify low-head dams to create a safer experience on Iowa’s navigable waters and enhance fish passage, aquatic habitat, and navigation.571—30.54(455A,461A,462A) Application. The coordinator may announce the availability of funds for the programs, designate a time and place for receiving proposals, identify any additional requirements to those enumerated in this division for successful applications, and provide at least 90 days for sponsors to submit such proposals.571—30.55(455A,461A,462A) Grant requirements. By submitting a proposal pursuant to this division, a sponsor will agree to the following terms and conditions: 30.55(1) Agreements. Before funds are disbursed, the sponsor will enter into a project agreement with the department. The agreement shall detail and further define the relationship of the parties. 30.55(2) Timely commencement of projects. Funds must be completely expended within two years of the award. If the sponsor is not able to complete a project within the original time period, the sponsor must seek and receive a written extension from the department to receive reimbursements for expended funds. Any advanced funds must be returned after either the completion date or extension date if the department determines the project cannot be completed in a timely manner. 30.55(3) Expenditures. The sponsor shall expend all funds in accordance with the sponsor’s governance documents, which may include applicable provisions of the Iowa Code. 30.55(4) Recordkeeping. The sponsor shall keep all project records for three years after the final report is completed. These records are to be available for audit by the state. 30.55(5) Permits and licenses. The sponsor must obtain any and all required licenses and permits from federal, state, and local authorities before commencing any activity pursuant to a grant award. 30.55(6) Control of project site. The sponsor must demonstrate that the project site or sites are under the physical control of the sponsor or its partners, either by fee title, lease, management agreement, or easement. The sponsor assumes long-term maintenance of the integrity of the project and shall enter into such agreements with landowners or other relevant parties as may be necessary to ensure such long-term maintenance.571—30.56() Reserved.571—30.57(455A,461A,462A) Proposal evaluation. 30.57(1) Proposals will be evaluated by the scoring committees for each program. 30.57(2) Conflict of interest. An individual who is a member, volunteer, or employee of an entity that has submitted a project shall not serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place.571—30.58(455A,461A,462A) Sponsor eligibility. 30.58(1) Water trails development program. The water trails development program is limited to local divisions of Iowa government. 30.58(2) Low-head dam public hazard program. The low-head dam public hazard program is available to dam owners or their agents, including counties, cities, state agencies, cooperatives, nonprofit organizations, and individuals.571—30.59(455A,461A,462A) Project eligibility. 30.59(1) Water trails development program. The scoring committee will evaluate proposals for water trails development projects. Eligible projects may include master planning, engineering, and development such as water accesses with parking and related easement and property acquisition; navigational, interpretive, and warning signs; portages to aid navigation or avoid hazards; related amenities adjacent to the water trail such as access roads, canoe and bike racks, restrooms, picnic areas, campsites, and water-accessible cabins; and promotional, educational, and educational materials such as mapping, brochures, kiosks, display panels, and online information. 30.59(2) Low-head dam public hazard program. The scoring committee will evaluate proposals for projects that enhance safety and fish passage at low-head dams on or adjacent to navigable waters in Iowa. The department may divide grants into categories and scoring criteria corresponding to project types, such as warning signage, feasibility studies, engineering, and construction.571—30.60(455A,461A,462A) Cost-share requirements. 30.60(1) Water trails development program. Grant proposals for water trails development projects require a minimum of 20 percent cost share of the total project to be provided by the sponsor. 30.60(2) Low-head dam public hazard program. Grant proposals for low-head dam safety and mitigation projects require a minimum of 50 percent cost share of the total project to be provided by the sponsor.571—30.61(455A,461A,462A) Evaluation criteria. 30.61(1) Water trails development program. The scoring committee will prioritize projects based on impacts for public use, local and private resource contributions, support of statewide and local plans and guidelines, public acceptance, safety, location on a designated or planned water trail, and annual priorities established by the coordinator. 30.61(2) Low-head dam public hazard program. The scoring committee will prioritize projects based on public safety, stream health, fish passage, aesthetic, recreational and navigational improvements, urgency of failure, local contributions and stakeholder support, and appropriate cost and scale. These rules are intended to implement Iowa Code chapters 455A, 461A, and 462A and section 464A.11 and 2008 Iowa Acts, House File 2700.ARC 7229CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to the publicly owned lakes watershed program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 31, “Publicly Owned Lakes Program,” and to adopt a new Chapter 31, “Publicly Owned Lakes Watershed Program,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 456A.24(5) and 456A.33A.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 456A.33A.Purpose and Summary Chapter 31 provides the procedure to establish a priority list of watersheds above significant public lakes where private landowners are eligible to receive cost-share moneys to establish soil and water conservation practices. For larger context, as part of annual appropriations to the Iowa Department of Agriculture and Land Stewardship, the State allocates cost-share moneys for approved soil and water conservation practices on watersheds above certain publicly owned lakes. These areas must first be identified on a priority list established by the Department of Natural Resources (Department). These practices provide a benefit to the landowner through soil conservation and to the public through improved water quality in the affected public lakes. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: George Antoniou Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: george.antoniou@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact George Antoniou via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at a conference call public hearing must submit a request to Mr. Antoniou prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call January 30, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 31 and adopt the following new chapter in lieu thereof: CHAPTER 31PUBLICLY OWNED LAKES WATERSHED PROGRAM[Prior to 12/31/86, Conservation Commission[290] Ch 76]571—31.1(456A) Purpose. The purpose of this chapter is to set forth the policy and procedures to be utilized by the department of natural resources to establish a priority list of watersheds above significant public lakes where private landowners are eligible to receive cost-share moneys to establish soil and water conservation practices pursuant to Iowa Code chapter 161A.571—31.2(456A) Definitions. "Commission" means the natural resource commission. "Department" means the department of natural resources. "Division" means the department of agriculture and land stewardship, division of soil conservation and water quality. "Program" means the publicly owned lakes watershed program. "Significant public lake" means a lake meeting the criteria set forth in Iowa Code section 456A.33B(1)“c.” "Watershed" means those lands that drain into a significant public lake.571—31.3(456A) Priority of watersheds. Pursuant to Iowa Code section 456A.33A, the commission shall annually establish a priority list of watersheds above existing or proposed significant public lakes.571—31.4(456A) Application. Applications shall be submitted annually, as specified by the division. The division will then forward received applications to the department for determination of program eligibility. The department will review applications based on compliance with application requirements. These rules are intended to implement Iowa Code section 456A.33A.ARC 7241CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to private open space lands and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 32, “Private Open Space Lands,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 9H.5(1)“b” and 17A.7(2).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 17A.7 and Executive Order 10 (January 10, 2023).Purpose and Summary The Commission proposes to rescind Chapter 32. The underlying statutes have changed over time, and the Department of Natural Resources’ (Department’s) historical role has been removed. Therefore, this chapter is no longer necessary.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Monica Thelen Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: monica.thelen@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 32.ARC 7236CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to resources enhancement and protection program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 33, “Resource Enhancement and Protection Program: County, City and Private Open Spaces Grant Programs,” and to adopt a new Chapter 33, “Resource Enhancement and Protection Program: County, City, Private Open Spaces and Conservation Education Grant Programs,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code chapter 455A.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 455A, subchapter II.Purpose and Summary Proposed Chapter 33 consolidates the processes and requirements for entities to receive funding through the private cost-sharing funds in the county, city, private open spaces, and conservation education grant programs of the Resource Enhancement and Protection Fund. These provisions were formerly in Chapter 12, Division I, and Chapter 33. They will now be located in new Chapter 33. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Additionally, several provisions in the merged chapters were repetitive of underlying statute and have been removed.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 26, 2024. Comments should be directed to: Michelle Wilson Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: michelle.wilson@dnr.iowa.govPublic Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival for the in-person hearing, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. The January 25, 2024, hearing will be a virtual meeting only. Persons who wish to attend the conference call should contact Michelle Wilson via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at the conference call public hearing must submit a request to Ms. Wilson by 9 a.m. on January 25, 2024, to facilitate an orderly hearing. January 18, 2024 1:30 to 3:30 p.m. Conference Room 5W Wallace State Office Building Des Moines, Iowa January 25, 2024 1:30 to 3:30 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 33 and adopt the following new chapter in lieu thereof: CHAPTER 33RESOURCE ENHANCEMENT AND PROTECTION PROGRAM: COUNTY, CITY, PRIVATE OPEN SPACES AND CONSERVATION EDUCATION GRANT PROGRAMSDIVISION IGENERAL PROVISIONS571—33.1(455A) Purpose. The purpose of these rules is to define procedures for the administration of the private cost-sharing funds within the open spaces account, the county conservation account, the city park and open spaces account, and the conservation education grant program of the resource enhancement and protection (REAP) fund.571—33.2(455A) Resource enhancement policy. The REAP program and its various elements shall constitute a long-term integrated effort to wisely use and protect Iowa’s natural resources through the acquisition and management of public lands; the upgrading of public park and preserve facilities; environmental education, monitoring, and research; and other environmentally sound means. Expenditure of funds from the county conservation account, the city park and open spaces account and the private cost-sharing portion of the open spaces account shall be in accord with this policy.571—33.3(455A) Definition. In addition to the definitions in Iowa Code section 455A.1, the following definition shall apply to this chapter: "Open spaces" means those natural or cultural resource areas that contain natural vegetation, fish, or wildlife, or have historic, scenic, recreation and education value. Examples of open spaces in cities and towns include, but are not limited to, parks, riverfronts and town squares. In rural areas, open spaces include, but are not limited to, such areas as woodlands, prairies, marshlands, river corridors, lake shores, parks and wildlife areas.571—33.4(455A) Grant applications, general procedures. 33.4(1) Applications for all grant programs shall be made on forms provided by the department. 33.4(2) Applications shall provide sufficient detail as to clearly describe the scope of the project. Any application that is not complete at the time of project review and scoring, or for which additional pertinent information has been requested and not received, shall not be considered for funding. 33.4(3) Application deadlines are the same for county, city, and private open space grant programs. Applications will be reviewed and projects selected for funding at least once per year. The department shall publish on its website the date and time for submitting a funding proposal, providing at least 90 days’ notice. Applications must be submitted to the department as described on the website. 33.4(4) Joint applications are permitted. One entity must serve as the primary applicant. Joint projects sponsored by entities competing for funds from different REAP accounts (e.g., a joint city/county project) are allowable. Applications must clearly spell out the respective shares of project costs to be derived from various REAP accounts if the project is approved for funding. Any cooperative agreement between joint applicants must be provided as a part of the application. 33.4(5) Applicants shall not use other department grants, such as land and water conservation fund or wildlife habitat promotion with local entities, as leveraged funds for a project requesting REAP funds. Likewise, REAP funds shall not be used as matching funds for applications to other grants.571—33.5(455A) Appraisals. Appraisal reports must be approved or disapproved in writing by the director. Grants may include incidental costs associated with the acquisition, including, but not limited to, costs for appraisals, abstracts, prorated taxes, deed tax stamps, recording fees and any necessary surveys and fencing.571—33.6(455A) Groundwater hazard statements. Grantees must obtain a properly completed groundwater hazard statement on all proposed acquisitions before the acquisition is completed. The statement must be filed with the department and county recorder pursuant to Iowa Code section 558.69. Prior to the acquisition of any property that has an abandoned or unused well, hazardous waste disposal site, solid waste disposal site, or underground storage tank, the grantee must file with the department a plan that details how these conditions will be managed to best protect the environment. This plan must be approved in writing by the director before the land is acquired.571—33.7(455A) Rating systems not used. During any funding cycle when total grant requests are less than the allotment available, the rating system need not be applied. All applications will be reviewed by the appropriate committee for eligibility to ensure they meet minimum scoring requirements and to ensure consistency with program policy and purposes.571—33.8(455A) Applications not selected for grants. All applications for projects considered eligible but not scoring high enough to be awarded a grant immediately will be retained by the department until two months prior to the next regular submittal date during which time they may be funded. If not approved for funding by that time, applicants will be notified by the department in writing. The original application will be returned to applicants only upon request. The applicant may resubmit the project or an amended version of the project for scoring and consideration during the next application cycle by resubmitting an original or amended application and five copies by the respective deadline.571—33.9(455A) Similar development projects. An application for a development project grant may include development on more than one area if that development is of a like type (e.g., tree and shrub plantings).571—33.10(455A) Timely commencement and completion of projects. Grant recipients are expected to commence and complete projects in a timely and expeditious manner. A project period commensurate with the work to be accomplished will be established and included in the project agreement. Project sponsors may receive up to 90 percent of approved grant funds at the start of the project period. Failure to initiate the project or to complete it in a timely manner may be cause for termination of the project, return of unused grant funds at the time of termination, and cancellation of the grant by the department.571—33.11(455A) Waivers of retroactivity. Normally, grants for acquisitions or developments completed prior to application scoring will not be approved. However, an applicant may make written request for a waiver of retroactivity to allow project elements to be considered for grant assistance. Waivers will be granted in writing by the director and receipt of a waiver does not ensure funding, but only ensures that the project will be considered for funding along with all other applications.571—33.12(455A) Project amendments. Projects for which grants have been approved may be amended, if funds are available, to increase or decrease project scope or to increase or decrease project costs and grant amount. All amendments must be approved by the appropriate project review and selection committee and by the director. Amendments that result in an increase in the cost of the project in excess of $25,000 or 25 percent of the approved cost, whichever is greater, or that involve a change in the project purpose also must be approved by the commission.571—33.13(455A) Recordkeeping and retention. Grant recipients shall keep adequate records relating to the administration of a project, particularly relating to all incurred expenses. These records shall be available for audit by representatives of the department and the state auditor’s office. All records shall be retained in accordance with state laws.571—33.14(455A) Penalties. Whenever any property, real or personal, acquired or developed with REAP funds passes from the control of the grantee or is used for purposes other than the approved project purpose, it will be considered an unlawful use of the funds. If a grantee desires to use the approved funds for a purpose other than the approved project purpose that is an approved use of funds under the provisions of Iowa Code chapter 455A and these rules, the grantee shall seek an amendment to the project purpose by following the provisions provided in this rule. The department shall notify the grantee of any such violation. 33.14(1) Remedy. Funds used without authorization, for purposes other than the approved project purpose, or unlawfully must be returned to the department for deposit in the account of the REAP fund from which they were originally apportioned. In the case of diversion of property acquired with REAP fund assistance, property of equal value at current market prices and with similar open space benefits may be acquired with local, nongrant funds to replace it. Such replacement must be approved by the appropriate review and selection committee and the director. In the case of diversion of personal property, the grantee shall remit to the department at the current valuation of the real estate. The grantee shall have a period of two years after notification by the department in which to correct the unlawful use of funds. The remedies provided in this subrule are in addition to others provided by law. 33.14(2) Land disposal. Whenever the department, and, if a city or county, the grantee, determine that land acquired or developed with REAP fund assistance is no longer of value for the program purposes, or that the grantee can show good cause why the land should no longer be used in accord with the approved project purpose, the land may be disposed of with the director’s approval and the proceeds therefrom used to acquire or develop an area of equal value, or the grantee shall remit to the department funds at the current valuation of the real estate for inclusion in the account from which the grant was originally made. If land acquired through the private grant program is determined to be no longer of interest by the state, the proposed dispersal of the property shall be reviewed by the grantee, and the grantee shall have the first right of refusal on an option to take title to the property in question. For projects that only received developmental money, the life of the project is deemed closed after a period of 20 years from the date of the original grant; repayment of the grant will not be required. 33.14(3) Ineligibility. Whenever the director determines that a grantee is in violation of this rule or in violation or noncompliance with other grants administered by the department, that grantee shall be ineligible for further assistance until the matter has been resolved to the satisfaction of the commission.571—33.15(455A) Public communications. Grant recipients shall participate in public communications activities to inform the public of the REAP program and of their particular project. The project will not be considered successfully completed, for purposes of this rule, until evidence is provided to the department REAP coordinator that the following requirements have been met. The remaining 10 percent payment of the grant total will not be issued until such evidence has been provided. Evidence includes but is not limited to photographs showing sign placement, newspaper or magazine clippings, printed brochures or flyers available to the public, exhibits for public display and other related materials. Information gathered from site inspections by the department may also be considered acceptable evidence. 33.15(1) Signs. Grant recipients are required to adequately display the 12-inch by 12-inch REAP signs, provided by the department at no charge, on project locations where appropriate so that users of the project can readily see that REAP is at least partially responsible for the project. The REAP signs will be maintained and replaced as necessary as long as the department has signs available. 33.15(2) Dedication ceremony. Grant recipients shall hold a public meeting or event to dedicate the project. Information provided during the event shall include information in regard to the REAP program and its role in supporting the project. This information shall also be provided to local news media by use of a news release. Local and state elected officials shall be invited to attend and participate. 33.15(3) Grants include public communications plan. A description of the public communications plan shall be included in every project submitted as a grant request. Grant recipients shall carry out the plan if their project is funded.DIVISION IICOUNTY GRANTS571—33.16(455A) County conservation account. All funds allocated to counties under this program may be used for land easements or acquisitions, capital improvements, stabilization and protection of resources, repair and upgrading of facilities, environmental education, and equipment; except as restricted by Iowa Code section 455A.19. 33.16(1) Expenditure guidelines. All expenditures and restrictions shall be in accordance with Iowa Code section 455A.19. Expenditure of funds for personnel costs are allowed by Iowa Code section 455A.19, but only when personnel are clearly directed toward the purpose and policy of the REAP program. Personnel costs are not allowable under the competitive grant program. Up to 20 percent of a total project’s cost may be used to cover costs of engineering and design work or other consultant fees directly associated with the project. 33.16(2) Competitive grant project planning and review committee. a. The makeup of this committee is as follows: two representatives of the department appointed by the director; two county conservation board directors appointed by the director of the department with input from the Iowa association of county conservation boards; and one member selected every three years by a majority vote of the director’s appointees. Additionally, there shall be at least two alternates designated by the director with input from the Iowa association of county conservation boards. The members shall select a chairperson at the first meeting during each calendar year. Terms of appointment to the committee shall be on a three-year staggered term basis. b. Conflict of interest. An individual who is a member, volunteer, or employee of an entity that has submitted a project shall not serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place. 33.16(3) Competitive grant project selection criteria. Under the competitive grant program, a project planning and review committee shall establish criteria and scoring systems to be utilized in project evaluation. The criteria and scoring system shall be submitted to the director and natural resource commission for approval. Criteria and scoring systems must be distributed to all counties at least 90 days prior to the project application deadline. In order to be eligible for award, an applicant must receive, at a minimum, 50 percent of the total allowable points. 33.16(4) Availability of funds. Those funds allocated on a per capita basis and those awarded in the competitive grant program shall be allocated only to counties dedicating property tax revenue at least equal to 22 cents per $1,000 of the assessed value of the county’s taxable property to conservation purposes. Annual certification from the county auditor of each county shall be made on forms provided by the department. The certification shall include information on total assessed value of taxable property in the county; budget of the county conservation board, including a distinction of that which is derived from sources other than property taxes; and a schedule of expenditures and staffing. A copy of this certification must be filed with the director. REAP program funds received shall not reduce or replace county tax revenues appropriated for county conservation purposes. a. County conservation purposes include and are limited to the following activities and responsibilities: (1) Operation and maintenance of real property and equipment under the jurisdiction and control of the county conservation board, and utilized by the public for museums, parks, preserves, parkways, playgrounds, recreational centers, county forests, county wildlife areas, establishment and maintenance of natural parks, multipurpose trails, restroom facilities, shelter houses and picnic facilities and other county conservation and recreational purposes as provided in Iowa Code section 350.4. (2) The acquisition and development of real estate utilized for purposes authorized by Iowa Code chapter 350. The cost of planning, engineering or architectural services directly related to acquisition and development is allowable as a county conservation purpose. (3) The county conservation board’s share of joint operations of facilities and programs as described in Iowa Code section 350.7. The cost of the county’s weed control program, as required by Iowa Code chapter 317, may specifically be included as a county conservation purpose if the county conservation board director or a member of the county conservation board staff is appointed county weed commissioner by the board of supervisors, and is given full authority to plan and accomplish an environmentally sound vegetative management program. (4) The administration of the county conservation program, including and limited to the expenses of board members, salary and expenses of the county conservation board director, and related clerical, technical and support costs charged directly to the county conservation board’s budget. (5) Any reimbursement from the county conservation board’s budget for the actual expense of county-owned equipment, use of county equipment operators, supplies, and materials of the county, or the reasonable value of county real estate made available for the use of the county conservation board as provided by Iowa Code section 350.7. Such reimbursements shall be supported by daily time and activity records detailing the hourly charge for equipment and operator use, the specific quantities and cost of materials used, or a fee appraisal prepared by an independent fee appraiser and approved by the director. (6) No other costs, including indirect costs as computed for purposes of federal grant programs or distribution of general county overhead, are allowable as a county conservation purpose. b. Reserved. 33.16(5) Certification procedures. The annual certification that a county is dedicating property tax revenue at least equal to 22 cents per $1,000 of the assessed value of the county’s taxable property to conservation purposes shall be submitted by the county auditor to the department on forms provided by the department. Certification is based upon actual expenditures for conservation purposes during the previous fiscal year. Submission of a certification by October 1 of any year will qualify the county for per capita funds held in reserve for that county and establish eligibility for participation in the competitive grant program. The certification will remain in effect through June 30 of the following year. Counties that fail to meet this requirement for any given fiscal year are ineligible for that fiscal year. A county that is ineligible can reestablish eligibility for a future fiscal year through the certification process. a. The levy of property taxes for county conservation board purposes shall be calculated in the following manner. First, the actual expenditures for all county conservation purposes for the fiscal year shall be determined. Next, the total of all receipts derived from county conservation activities and all grants and donations received or billed for from whatever source for county conservation purposes shall be determined. The total of all receipts and grants shall then be subtracted from the total expenditures. This result shall then be divided by the total taxable value of all county property to determine the amount per thousand dollars utilized to support county conservation purposes. b. Transfers of property tax receipts to the reserve account established under Iowa Code section 350.6 shall be included as expenditures in the fiscal year that transfers occur for purposes of the calculation of the certified levy. Withdrawals from the reserve account and expenditures and receipts reflected in the special resource enhancement account created as provided in Iowa Code section 455A.19 shall not be included in the calculation of the certified levy. c. If a dispute arises over the appropriateness of a county expenditure as a county conservation purpose or the accuracy and correctness of the certified levy by the county auditor, the director shall notify the state auditor and request that a recommendation be included in the next audit report. Upon receipt of the audit report, the director shall make a final determination and adjust subsequent distributions to the county or request reimbursement from the county as necessary. 33.16(6) Fund distribution schedule. Funds from the county resource account that are distributed on a per capita and per county basis shall be distributed by the department to each eligible county quarterly. 33.16(7) Special account. Each county board of supervisors shall create a special resource enhancement account in the office of the county treasurer, and the county treasurer shall credit all REAP funds from the state to that account. a. REAP funds received by the county shall not be used to fund any program or activity that was funded in prior years by other county revenues. Expansion of previously funded programs is permitted. Each county board director, as part of financial documentation regarding the special resource enhancement and reserve accounts, shall document that county expenditures of REAP funds supported only programs and activities not funded in prior years by county revenues other than REAP funds. For purposes of this documentation, expenditures from the special resource enhancement account for land acquisition shall be viewed as a new program and not a continuation of previous land acquisition programs. Expenditures from the special resource enhancement account for routine maintenance of facilities must involve only facilities previously constructed or otherwise acquired with REAP funds. REAP funds may be used for renovation, expansion or upgrading of facilities regardless of the source of funding for the original facilities, except as prohibited by Iowa Code section 455A.19. Likewise, expenditures from the special resource enhancement account for equipment, supplies, materials, or staff salaries must directly relate to the establishment or expansion of programs or activities with REAP funds, and such programs or activities shall not have been previously funded with other county revenues. b. Failure to adequately document expenditures from the special resource enhancement account or to provide the documentation as previously described regarding these expenditures upon request by the state auditor or department staff will result in the county losing its eligibility to receive per capita and competitive grants from the REAP program for a period of one to three years. A county that loses its eligibility may reestablish its eligibility by certifying that the county tax dollars dedicated to county conservation purposes during the previous fiscal year were at least 22 cents per $1,000 of assessed taxable property.DIVISION IIICITY GRANTS571—33.17(455A) Competitive grants to cities. Fifteen percent of available funds in the REAP fund (after the $350,000 annual allocation to the conservation education board and 1 percent of revenues to the fund are allocated to the administration fund) shall be allocated annually to the city park and open spaces grant account. That 15 percent shall be divided into three portions according to the percentage of the state’s urban population in each category, with each portion available on a competitive basis to cities falling within one of the following three size categories: (1) cities of less than 2,000; (2) cities between 2,000 and 25,000; and (3) cities larger than 25,000. Funds shall be initially apportioned to each category as per this rule. If at the time of project review and scoring there are funds available in any category that exceed the requests for grants in that category, those funds may, at the director’s discretion, be transferred to another category where requests exceed the funds available. 33.17(1) Eligible sponsors. Any incorporated city or town in the state may make application for a grant. 33.17(2) Grant ceilings. Incorporated cities and towns are eligible to receive annual grants from the REAP fund in accordance with the following schedule:Population Maximum0 — 1,000 $ 50,0001,001 — 5,000 75,0005,001 — 10,000 100,00010,001 — 25,000 125,00025,001 — 50,000 150,00050,001 — 75,000 200,000over 75,000 300,000The grant ceiling may be waived upon approval by the director if (1) the project is regional in nature or is projected to serve a minimum of 100,000 people; or (2) the project cannot be staged over a multiyear period so that a separate grant application might be submitted each year. 33.17(3) Review and selection committee. a. The director shall appoint a five-member review and selection committee to evaluate project applications. This committee shall include one member representing each of the three size classes of cities (e.g., one from a city of less than 2,000, one from a city of 2,000 to 25,000, and one from a city of more than 25,000). The director shall request a list of candidates from the Iowa league of cities and Iowa parks and recreation association. The remaining two members of the committee shall be a representative of the department and an at-large member. Additionally, there shall be at least two alternates designated by the director from the candidates list provided by the Iowa league of cities and the Iowa parks and recreation association. The committee shall elect its own chairperson from its members. Members shall serve three-year staggered terms. b. Conflict of interest. An individual who is a member, volunteer, or employee of an entity that has submitted a project shall not serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place. 33.17(4) Project selection criteria. A project planning and review committee shall establish criteria and scoring systems to be utilized in project evaluation. The criteria and scoring system shall be submitted to the director and natural resource commission for approval. Criteria and scoring systems must be distributed to all counties at least 90 days prior to the project application deadline. In order to be eligible for award, an applicant must receive, at a minimum, 50 percent of the total allowable points. DIVISION IVPRIVATE GRANTS571—33.18(455A) Private cost-sharing program. At least 10 percent of the funds placed in the open spaces account shall be made available for cost sharing with private entities for cost sharing at a maximum level of 75 percent. 33.18(1) Protection defined. Protection is defined as the purchase of all or a portion of the rights associated with ownership of real property so as to ensure that open space values associated with that property are protected in perpetuity. Protection methods, in order of preference, include, but are not limited to, fee title acquisition, purchase of easements, or other mechanisms that provide long-term assurance of open space protection. Title for acquired properties shall be vested in the state of Iowa, and projects must be consistent with priorities established by the department. 33.18(2) Eligibility to participate. Any trust, foundation, incorporated conservation organization, private individual, corporation or other nongovernmental group able to provide funds or interest in land sufficient to equal at least 25 percent of a proposed protection project may submit or cause to have submitted a project for funding consideration. Except however, a private organization established to benefit a specific governmental entity is not eligible to submit a project. Governmental entities are also not eligible to submit a project. 33.18(3) Grant amount. The department will provide grants for up to 75 percent of the appraised cost of the land plus incidental acquisition costs. Costs in excess of these must be borne by the grantee. 33.18(4) Project review and selection committee. a. The director shall appoint a committee to review and score projects. The committee shall include the following: three persons representing the private sector and two alternates selected from a pool of potential names as submitted to the director by the various private eligible groups; administrator of the conservation and recreation division of the department, or the administrator’s designee; and the bureau chiefs of the department’s wildlife bureau and parks, forests, and preserves bureau or their designees. The committee shall elect its own chairperson from its members. The committee will report to the director the order in which proposed projects were ranked using criteria as specified in subrule 33.18(5). b. Conflict of interest. An individual who is a member, volunteer, or employee of an entity that has submitted a project shall not serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place. 33.18(5) Project selection criteria. A project planning and review committee shall establish criteria and scoring systems to be utilized in project evaluation. The criteria and scoring system shall be submitted to the director and natural resource commission for approval. Criteria and scoring systems must be distributed to all counties at least 90 days prior to the project application deadline. In order to be eligible for award, an applicant must receive, at a minimum, 50 percent of the total allowable points. 33.18(6) Department rejection of applications. The director may remove from consideration by the project review and selection committee any application for funding the acquisition of property that the department determines is not in the state’s best interest for the department to manage. The department’s basis for determining such interest may include, but not be limited to, inaccessibility to the project area, environmental contamination and unacceptable use restrictions, management cost, the proximity to other governmental entities that may impose use restrictions or special tax assessments on the area, or lack of conformance with priorities established by the department. Examples of use restrictions can include prohibitions on hunting, trapping, timber harvest, vegetation management, and easements that affect the range of public use and activities that could otherwise be allowed. 33.18(7) Certification of availability of funds. Applicants must certify at the time of application that sufficient funds, land, letter of credit, or other acceptable financial instrument is available from private sources to cover the private share of the project. 33.18(8) Acquisition responsibilities and process. The grantee is responsible for obtaining an appraisal that is approvable by the department and for obtaining the director’s written approval of that appraisal. The grantee is responsible for negotiating an option to purchase the property with the seller. If the option contains any requirements for action by the department or restrictions on the use of the land, those requirements or restrictions must be approved by the director and the commission before they are incorporated into the option. The grantee is responsible for closing the transaction, recording the transaction with the appropriate county recorder, and providing the department with a copy of the deed naming the department as owner and a title vesting certificate. The director may, under special conditions, allow title to be vested in the name of a city or county. Necessary assurances may include the placement of special conditions on that title, the existence of an approved, long-term management agreement or other measures as deemed appropriate by the commission. The department may provide assistance at the request of the grantee, or at the director’s recommendation.DIVISION VCONSERVATION EDUCATION BOARD571—33.19(455A) Conservation education program policy. The conservation education program board shall constitute a long-term integrated effort to support conservation education for Iowa educators and students. To support this policy, the board may establish guidelines from time to time to direct applicants to priority areas for funding and shall give preference to grants that meet these guidelines. The board may provide funding for activities that expand the impact of the project and provide accessibility for widespread adoption of programs for implementation by others. The board may provide funding for tracking of project implementation and evaluation. 33.19(1) Conservation education program board. The board will review and amend, as needed, the review and selection criteria for competitive grants and policies of conduct. 33.19(2) Definitions. The following definitions shall apply to this division: "Board" means REAP conservation education program board. "Conservation education programs" means programs developed for formal (K-12 students), nonformal (preschool, adult and continuing education) and higher education (postsecondary and adult) programs, within the subject areas of natural resource conservation and environmental protection. "Educator" means any person who teaches environmental/conservation education. This may apply to certified teachers, governmental or private naturalists, education specialists, or others so determined by the board. "Environmental/conservation education materials" means materials that are developed or produced that provide knowledge, skills, processes and strategies that enhance Iowa citizens’ understanding of natural resources conservation and environmental issues. "Stipends for Iowa educators who participate in innovative conservation education programs" may include tuition costs; acceptable food and lodging costs; substitute teacher costs; mileage expenses or separate allowances when applicable for educators to attend board-approved environmental/conservation education workshops, in-service programs and conferences; and other costs as approved by the board.571—33.20(455A) Eligibility for funds. In years in which funds are made available, grant applications may be submitted by institutions of higher learning; government agencies, including local school districts; nonpublic schools; area education agencies; organizations; and individuals with an Iowa residence. Preference shall be given to Iowa participants.571—33.21(455A) Grant applications, general procedures. 33.21(1) Applications for all grant programs shall be made on forms provided by the department. 33.21(2) The board shall establish criteria and scoring systems to be utilized in the project evaluation and approved during a regularly scheduled board meeting. Criteria and scoring systems must be distributed to all potential applicants at least 90 days prior to the project application deadline. 33.21(3) Joint applications are permitted. One entity must serve as the primary applicant. Joint projects sponsored by entities (e.g., an organization or institution, and an area education agency) competing for funds from different REAP accounts are allowable. Applications must clearly spell out the respective shares of project costs to be derived from various REAP accounts if the project is approved for funding. Any cooperative agreement between joint applicants must be provided as a part of the application. 33.21(4) Similar development projects. An application for a conservation education program grant may serve more than one target population (e.g., scouting and K-6 classrooms).571—33.22(455A) Grantee responsibilities. 33.22(1) Timely completion of projects. Projects are expected to be completed in a 12-month time period; however, up to 18 months may be allowed by the board for grants difficult to accomplish in 12 months. The board may consider extending the time period of a grant upon request. 33.22(2) Recordkeeping and retention. Grant recipients shall keep adequate records relating to the administration of a project, particularly all incurred expenses. These records shall be available for audit by representatives of the department and the state auditor’s office. All records shall be retained in accordance with state laws. 33.22(3) Midterm and final reports. Grantees shall provide midterm and final reports that include information detailing progress toward goals and objectives, expenditures and services on forms provided for those reports. The reports shall clearly identify the status of fundraising relevant to the approved project and problems that may cause a delay in completing the project within the approved project period. Failure to submit reports by the due date shall result in suspension of financial payments to the grantee until the time that the report is received. Grants are considered active until the board notifies the grantee that the grant has been terminated or completed by the terms of the grant. At the completion of the project and prior to the final payment, a final written report shall be submitted by the grantee to the board. The final 10 percent payment shall be withheld pending this report, which shall include a 75- to 100-word summary of project results. This summary will be posted on the state environmental education website. No new awards shall be made for continuation programs when there are delinquent reports from prior grants. 33.22(4) Contract revisions. The grantee shall immediately inform the board of any revisions in the project budget in excess of 10 percent of a line item. The board and the grantee may negotiate a revision to the contract to allow for expansion or modification of services, but shall not increase the total amount of the grant. The board retains the authority to approve or deny contract revisions. 33.22(5) Nonapplication of copyright. Program materials developed from REAP funds for conservation education materials shall bear the REAP logo. However, materials developed under this grant shall not be copyrighted by the grantee unless the board gives permission. 33.22(6) Restrictions. Funds allocated under this chapter shall not be used for out-of-state travel or equipment, such as typewriters, computers, and hardware, or for construction, renovation, or remodeling costs unless specifically approved by the board.571—33.23(455A) Board review and approval. The board or its designee shall review and rank projects for funding, and funds shall be awarded on a competitive basis. If delegated, the reviewing, scoring and ranking of projects will be presented to the board as recommendations. The board may approve or deny funding for any project or part thereof. 33.23(1) In each year that funds are made available by the Iowa legislature, payments shall be as follows: a. For grant periods in excess of 90 days, up to 50 percent shall be paid at the beginning of the grant period, up to 40 percent at the midpoint of the grant period, and the balance upon successful completion as determined by the board. b. For grant periods of fewer than 90 days, 75 percent shall be paid at the beginning of the grant period and the balance at successful completion as determined by the board. 33.23(2) The board shall notify successful applicants and shall provide a contract for signature. This contract shall be signed by an official with authority to bind the applicant and shall be returned to the department prior to the award of any funds under this program.571—33.24(455A) Waivers of retroactivity. Normally, grant program developments completed prior to application scoring will not be approved. However, an applicant may make written request for a waiver of retroactivity to allow project elements to be considered for grant assistance. Waivers will be issued in writing by the board. Receipt of a waiver does not ensure funding, but only ensures that the project will be considered for funding along with all other applications.571—33.25(455A) Penalties. Whenever any property, real or personal, acquired or developed with REAP funds passes from the control of the grantee or is used for purposes other than the approved project purpose, it will be considered an unlawful use of the funds. If a grantee desires to use the approved funds for a purpose other than the approved project purpose, the grantee shall seek an amendment to the project purpose. The board shall notify the grantee of any apparent violation.571—33.26(455A) Remedy. Funds used unlawfully, without authorization, or for other than the approved project purpose shall be returned to the department within the period specified by the board or director. The remedies provided in this rule are in addition to others provided by law.571—33.27(455A) Termination for convenience. The contract may be terminated in whole or in part when both parties agree that the continuation of the project would not produce beneficial results commensurate with the future expenditure of funds. The parties shall agree upon the termination conditions, including the effective date, and, in the case of partial terminations, the portion to be terminated. The grantee shall not incur new obligations for the terminated portion after the effective date and shall cancel as many outstanding obligations as possible.571—33.28(455A) Termination for cause. The contract may be terminated in whole or in part at any time before the date of completion whenever it is determined by the board that the grantee has failed to comply substantially with the conditions of the contract. The grantee shall be notified in writing by the department of the reasons for the termination and the effective date. The department shall administer the conservation education grants contingent upon their availability. If there is a lack of funds necessary to fulfill the fiscal responsibility of the conservation education grants, the contracts shall be terminated or renegotiated. The board may terminate or renegotiate a contract upon 30 days’ notice when there is a reduction of funds by executive order. The grantee shall not incur new obligations for the terminated portion after the effective date and shall cancel as many outstanding obligations as possible. 33.28(1) Failure to initiate or complete project. Failure to initiate or complete the project in a timely manner shall be cause for termination of the project by the board. The grantee shall return unused grant funds at the time of termination. 33.28(2) Ineligibility. Whenever the board determines that a grantee is in violation of these rules, that grantee shall be ineligible for further assistance until the matter has been resolved to the satisfaction of the board.571—33.29(455A) Responsibility of grantee at termination. Within 45 days of the termination, the grantee shall supply the department with a financial statement detailing all costs up to the effective date of the termination. If the grantee expends moneys for other than specified budget items approved by the board, the grantee shall return moneys for unapproved expenditures.571—33.30(455A) Appeals. Appeals to the decisions on grant awards shall be filed with the director of the department. The letter of appeal shall be filed within ten working days of receipt of notice of decision and shall be based on a contention that the process was arbitrary; was conducted outside of statutory authority; violated state or federal law, policy, or rule; did not provide adequate public notice or was altered without adequate public notice; or involved conflict of interest by staff or board members. The director of the department shall notify the board of the appeal. The board may submit evidence in support of its decision within ten days of notice from the director. The director shall issue a decision within a reasonable time following receipt of the appeal. These rules are intended to implement Iowa Code sections 455A.19 and 455A.21.ARC 7231CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to the community forestry grant program and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 34, “Community Forestry Grant Program (CFGP),” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code section 455A.5(6)“a.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 461A and section 456A.24(13).Purpose and Summary The purpose of this chapter is to define the cost-sharing procedures between state and local public agencies or volunteer organizations to fund community tree planting projects. The Commission proposes to rescind the chapter because the program can be run with more flexibility without these rules under the terms of the underlying federal grants and the accompanying grant agreements signed by recipients and the Department of Natural Resources (Department).Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 23, 2024. Comments should be directed to: Jeff Goerndt Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: jeff.goerndt@dnr.iowa.gov Public Hearing A public hearing at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend the conference call should contact Jeff Goerndt via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at the conference call public hearing must submit a request to Mr. Goerndt prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at the public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend the hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 34.ARC 7240CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to fish habitat promotion and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 35, “Fish Habitat Promotion for County Conservation Boards,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a” and 483A.3A.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 483A.3A.Purpose and Summary Proposed Chapter 35 implements a grant program where fishing license fee funds are used by county conservation boards to conduct projects that provide access to, protection of, or enhancement of fish habitat for anglers. The Department of Natural Resources (Department) is directed to implement this program by the Iowa Code. Counties may voluntarily participate in this grant program, incurring the costs of staff time and required cost sharing. This proposed chapter benefits anglers by distributing grant funds for projects throughout the state. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17.7(2), this chapter was edited for length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 30, 2024. Comments should be directed to: Randy Schultz Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: randy.schultz@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally will be held via conference call as follows. Persons who wish to attend a conference call should contact Randall Schultz via email. A conference call number will be provided prior to the hearing. Persons who wish to make oral comments at a conference call public hearing must submit a request to Randall Schultz prior to the hearing to facilitate an orderly hearing. January 23, 2024 12 noon to 1 p.m. Via video/conference call January 30, 2024 12 noon to 1 p.m. Via video/conference call Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 35 and adopt the following new chapter in lieu thereof: CHAPTER 35FISH HABITAT PROMOTION FOR COUNTY CONSERVATION BOARDS571—35.1(483A) Purpose and definitions. The purpose of this chapter is to designate procedures for the allotment of fish habitat revenue to county conservation boards. These funds shall be used specifically to acquire from willing sellers whole or partial interest in land for use as or for protection of fish habitats and to develop and enhance fishable waters and habitat areas.The following definitions apply in these rules: "Commission" means the natural resource commission. "County" means a county conservation board. "Department" means the department of natural resources. "Director" means the director of the department of natural resources. "District" means a county conservation district.571—35.2(483A) Availability of funds. Fish habitat funds are dependent on sales. Revenues received by the department determine the amount of moneys available at any time. 35.2(1) Local share. Funds available for county conservation boards shall be specified in the department’s budget in accordance with legislative appropriations. At least 50 percent of the fish habitat revenue will be apportioned to county conservation boards. 35.2(2) Distribution. After deduction of 5 percent to be held for contingencies, the remaining local share will be available on an annual basis. The department shall divide fish habitat funds equally among the districts. The districts have two years to obligate fish habitat funds once the funds are made available. After two years, the department will apportion all unobligated funds equally among the districts.571—35.3(483A) Program eligibility. All counties are eligible to participate in this program.571—35.4(483A) Eligibility for cost-sharing assistance. A project is not eligible for cost sharing unless the commission specifically approves the project or the applicant has received a written waiver of retroactivity from the director prior to the project’s initiation. A project must allow for public fishing to be eligible for cost sharing; however, the review and selection committee as described in subrule 35.6(1) may recommend for commission approval projects with restrictions on boating. 35.4(1) Acquisition projects. A licensed appraiser shall appraise lands or rights thereto to be acquired, and the appraisal shall be approved by department staff. The appraisal requirement may be waived when the staff determines that it is impractical for a specific project. The cost share shall not be approved for more than 90 percent of the approved appraised value. Acquisition projects are eligible for cost share either by direct payment as described in subrule 35.11(6) or by reimbursement to counties. 35.4(2) Eligible acquisition activities. a. Acquisition for pond and lake construction. b. Acquisition of fishable streams, ponds and lakes. c. Acquisition for watershed protection. 35.4(3) Development projects. Eligible expenditures for development projects include, but are not limited to, preliminary expenses, contracts, the purchase of materials and supplies, rentals, and extra labor that is hired only for the specific project. The purchase of equipment is not an eligible expenditure. Donated labor, materials and equipment-use and use of a county’s own labor and equipment are not eligible for cost-share assistance. Development projects are limited to lands legally controlled by the county for the expected life of the project. Development projects are eligible only for reimbursement of reasonable costs actually incurred and paid by the county. 35.4(4) Enhancement projects. For purposes of this rule, “enhancement” is considered to be synonymous with “development.” Eligible enhancement activities include: a. Physical placement of fish habitats in ponds, lakes, pits and streams. b. Armoring of pond, lake, pit and stream shores. c. Construction of aeration systems. d. Dredging of ponds or lakes. e. Construction of ponds and lakes. f. Construction of sediment-retaining basins. g. Repair of lake dam/outlets. h. Manipulation of fish populations and aquatic vegetation. i. Removal of dams. j. Construction of fish ladders. k. Construction of fish barriers. l. Construction of rock-faced jetties. 35.4(5) Project income. When, as a result of a purchase agreement or other title transfer action involving cost sharing with fish habitat funds, a county directly or indirectly receives financial income that would have been paid to the previous landowner, 90 percent of that income shall be transferred to the department unless the county has identified and committed to habitat development projects or additional acquisitions on the project site to be funded from the income received. The project review and selection committee shall recommend, and the director and commission shall approve, plans for the expenditure of income received pursuant to this subrule. In the absence of acceptable fish habitat development or acquisition plans, the county shall transfer to the department 90 percent of the income received as it is received. The department shall credit that income to the county’s apportionment of the fish habitat fund as described in subrule 35.2(1). The schedule of those reimbursements from a county to the state shall be included in the project agreement.571—35.5(483A) Application for assistance. Applications must contain sufficient detail as to clearly describe the scope of the project and how the area will be managed. 35.5(1) Form. Applications must be submitted on forms provided by the department. 35.5(2) Time of submission. Applications for funds will be reviewed and selected for funding at least once per year. The department will publish on its website the date and time for submitting a funding proposal, providing at least 90 days’ notice. Applications must be submitted to the department as described on the website. Upon timely notice to eligible recipients, additional selection periods may be scheduled if necessary to expedite the distribution of funds. In emergencies, a county may request a waiver so that an acquisition project may be approved for retroactive payments if funds are available and the project meets all other criteria. 35.5(3) Joint applications. Joint applications are permitted. One county shall serve as the primary applicant. A joint application shall clearly describe the respective share of project costs for each county named. Any cooperative agreement between the counties named shall be provided as a part of the application. 35.5(4) County funding. An applicant shall certify that it has committed its share of project costs and that these funds are available and shall state the means of providing for the county share. All necessary approvals for acquisition and financing shall be included with the application. All financial income received directly or indirectly that would have been paid to the previous landowner as a result of a purchase agreement or other title transfer action shall be completely documented in the application. 35.5(5) Multiple development projects. An application for development project assistance may include development on more than one area if the development is of a like nature.571—35.6(483A) Project review and selection. 35.6(1) Review and selection committee. a. Each district shall have a review and selection committee, hereinafter referred to as the committee. Each committee shall be composed of at least five county directors or their designees, with at least two designated alternates. Each district’s committee shall determine which grant applications and amendment requests are selected for funding. For advisory purposes only, a department biologist or designee shall be present during review and selection of grant applications and amendment requests. b. Conflict of interest. An individual who is a member, volunteer, or employee of an entity that has submitted a project cannot serve on the scoring committee during that award cycle. Instead, one of the alternates shall review and score in the individual’s place. 35.6(2) Consideration withheld. The committee shall not consider any application that on the date of the selection session is incomplete or for which additional pertinent information has been requested but not received. 35.6(3) Application rating system. The committee shall apply a rating system to each grant application considered for fund assistance. The department shall develop the rating system. The rating system shall be used to rate each application, and those applications receiving the highest ratings shall be selected for fund assistance to the extent of the allotment for each annual period. If the amount of grant moneys available exceeds that requested, applications will be reviewed only to determine eligibility.571—35.7(483A) Commission review. The director shall present the committees’ recommendations to the commission at its next meeting following the rating of projects for funding. The commission may approve or disapprove funding for any project on the list.571—35.8(483A) Grant amendments. If funds are available, projects for which grants have been approved may be amended to increase or decrease project scope or to increase or decrease project costs and fund assistance. The director shall approve project changes prior to their inception. Amendments to increase project costs and fund assistance due to cost overruns shall not be approved if funds have already been committed or the work has already been performed.571—35.9(483A) Timely commencement of projects. Grant recipients are expected to carry out their projects in an expeditious manner. A project for which a grant is approved shall be commenced within six months of the date upon which the grantee is notified that the project is approved, or at another date agreed upon by both parties. Failure to do so may be cause for termination of the project and cancellation of the grant by the commission.571—35.10(483A) Project period. A project period that is commensurate with the work to be accomplished shall be assigned to each project. Extensions may be granted only in case of extenuating circumstances.571—35.11(483A) Payments. 35.11(1) Grant amount. Grant recipients will be paid 90 percent of all eligible costs incurred on a project up to the amount of the grant unless otherwise specified in the project agreement. 35.11(2) Project billings. Grant recipients shall submit billings for reimbursement or cost sharing on forms provided by the commission. 35.11(3) Project billing frequency. Project billings shall be submitted on the following basis: a. Up to $10,000 total project cost—one billing. b. Over $10,000 total project cost—no more than two billings. 35.11(4) Documentation. Grant recipients shall provide documentation to substantiate all costs incurred on a project as may be required by the department. 35.11(5) Development projects. Eighty percent of the approved local share may be paid to the county when requested, but not earlier than start-up of the project. The department, pending successful completion and final inspection of the project, shall withhold 20 percent of the local share until any irregularities discovered as a result of a final site inspection have been resolved. 35.11(6) Acquisition projects. The department may make payment directly to a property seller pursuant to the following criteria: a. The county requests direct payment in the project application and shows good cause for such procedure; b. The seller provides to the county a marketable fee simple title, free and clear of all liens and encumbrances or material objections at the time of payment; and c. Sufficient program funds are available at the time of transfer.571—35.12(483A) Recordkeeping and retention. A grant recipient shall keep adequate records relating to its administration of a project, particularly relating to all incurred costs and direct or indirect income that normally would have been paid to the previous landowner as a result of a purchase agreement or other title transfer action. A copy of the county’s audits showing such income and disbursements for the grant period shall be submitted to the department’s budget and grant bureau. These records shall be available for audit by appropriate personnel of the department and the state auditor’s office. All records shall be retained in accordance with state law.571—35.13(483A) Penalties. Whenever any real or personal property acquired or developed with fish habitat fund assistance passes from the control of the grantee or is used for other purposes that conflict with the project purpose, it shall be considered an unlawful use of the funds. The department shall notify the county of any such violation. 35.13(1) Remedy. Funds thus used unlawfully shall be returned to the department for inclusion in the fish habitat fund, or local, non-cost-shared funds shall be used to acquire a replacement property of equal value at current market prices and with commensurate benefits to fish. The replacement property must be approved by the commission. The county shall have a period of two years after notification by the department in which to correct the unlawful use of funds. The remedies provided by this subrule are in addition to others provided by law. 35.13(2) Land disposal. Whenever it has been determined and agreed upon by the grantee and the commission that land acquired or developed with fish habitat fund assistance is no longer of value for the project purpose or that the county has other good cause, the commission may authorize that the land be disposed of and the proceeds thereof used to acquire or develop an area of equal value or that 90 percent of the proceeds be returned to the state for inclusion in the fish habitat fund. 35.13(3) Ineligibility. If the department determines that a county has unlawfully used fish habitat funds, the county shall be ineligible for further assistance until the matter has been resolved to the satisfaction of the commission. These rules are intended to implement Iowa Code section 483A.3A.ARC 7238CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to waterfowl and coot hunting seasons and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 91, “Waterfowl and Coot Hunting Seasons,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 456A.24(14), 481A.134, 481A.135, 483A.1, 483A.9A and 483A.10.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 456A.24(14), 481A.134, 481A.135, 483A.1, 483A.9A and 483A.10.Purpose and Summary Proposed Chapter 91 establishes and organizes waterfowl and coot hunting seasons as required by law. Waterfowl and coot hunting are exciting recreational opportunities for licensed hunters. More importantly, Iowa relies upon hunters to help manage the state’s wildlife, including migratory waterfowl, which are held in trust for the people and required by law to be managed for posterity. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), this chapter was edited for length and clarity. Several long provisions identifying in narrative form areas that are either open or closed to hunting have been removed and replaced with a more user-friendly visual map available on the Department of Natural Resources’ (Department’s) website.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit written comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Orrin Jones Iowa Department of Natural Resources 1203 North Shore Drive Clear Lake, Iowa 50428 Fax: 641.357.5523 Email: orrin.jones@dnr.iowa.govPublic Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 571—Chapter 91 and adopt the following new chapter in lieu thereof: CHAPTER 91WATERFOWL AND COOT HUNTING SEASONS571—91.1(481A) Duck hunting. 91.1(1) Zone boundaries. Zone boundaries are as specified in the November 2023 Waterfowl Hunting Map Book published on the department of natural resources’ (department’s) website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 1 “Waterfowl Hunting Zones.” 91.1(2) Season dates - north zone. Special September teal season: September 1 through September 16. For all ducks: The first segment of the season will begin on the Saturday nearest September 30 and run for seven days. The second segment of the season will open on the Saturday nearest October 13 and continue for 53 consecutive days. 91.1(3) Season dates - central zone. Special September teal season: September 1 through September 16. For all ducks: The first segment of the season will begin on the Saturday nearest October 6 and run for seven days. The second segment of the season will open on the Saturday nearest October 20 and continue for 53 consecutive days. 91.1(4) Season dates - south zone. Special September teal season: September 1 through September 16. For all ducks: The first segment of the season will begin on the Saturday nearest October 13 and run for seven days. The second segment of the season will open on the Saturday nearest October 27 and continue for 53 consecutive days. 91.1(5) Bag limit. Bag limits for all species are as adopted by the U.S. Fish and Wildlife Service. The daily bag limit for scaup will be one for the first 15 days of the duck hunting season and two for the remaining 45 days. 91.1(6) Possession limit. For the special September teal season and for all ducks: Possession limit is three times the daily bag limit. 91.1(7) Shooting hours. For the special September teal season: Shooting hours are sunrise to sunset each day. For all ducks: Shooting hours are one-half hour before sunrise to sunset each day.571—91.2(481A) Coots (split season). 91.2(1) Same as duck season dates and shooting hours. 91.2(2) Bag and possession limits. Daily bag limit is 15 and possession limit is three times the daily bag limit.571—91.3(481A) Goose hunting. 91.3(1) Zone boundaries. Zone boundaries are as specified in the November 2023 Waterfowl Hunting Map Book published on the department’s website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 1 “Waterfowl Hunting Zones.” 91.3(2) Season dates - north zone. For all geese: The first segment of the regular goose season will begin on the Saturday nearest September 23 and run for a 16-day period. The second segment of the goose season will open on the Saturday nearest October 13 and continue for 53 consecutive days. The goose season will reopen on the Saturday nearest December 13 and remain continuously open until the total number of days used for goose hunting reaches 107. 91.3(3) Season dates - central zone. For all geese: The first segment of the regular goose season will begin on the Saturday nearest September 30 and run for a 16-day period. The second segment of the goose season will open on the Saturday nearest October 20 and continue for 53 consecutive days. The goose season will reopen on the Saturday nearest December 20 and remain continuously open until the total number of days used for goose hunting reaches 107. 91.3(4) Season dates - south zone. For all geese: The first segment of the regular goose season will begin on the Saturday nearest October 6 and run for a 16-day period. The second segment of the goose season will open on the Saturday nearest October 27 and continue for 53 consecutive days. The goose season will reopen on the Saturday nearest December 27 and remain continuously open until the total number of days used for goose hunting reaches 107. 91.3(5) Bag limit. The daily bag limit for dark geese (Canada geese, white-fronted geese, brant and any other geese that are not light geese) is five and may include no more than two Canada geese during the first segment of the statewide season and no more than three Canada geese during the remainder of the statewide season. The daily bag limit for light geese (white and blue-phase snow geese and Ross’ geese) is 20. 91.3(6) Possession limit. The possession limit is three times the daily bag limit for Canada geese, brant and white-fronted geese. There is no possession limit for light geese. 91.3(7) Shooting hours. Shooting hours are one-half hour before sunrise until sunset each day. 91.3(8) Light goose conservation order season. Only light geese (white and blue-phase snow geese and Ross’ geese) may be taken under a conservation order from the U.S. Fish and Wildlife Service beginning the day after the regular goose season closes and continuing until May 1. a. Zone boundaries.Statewide. b. Shooting hours.One-half hour before sunrise to one-half hour after sunset. c. Bag limit.No bag limit. d. Possession limit.No possession limit. e. Other regulations.Methods of take approved by the U.S. Fish and Wildlife Service for hunting light geese during the conservation order season shall be permitted. 91.3(9) Metropolitan goose hunting seasons and specified areas. a. Season dates.The second Saturday in September for nine consecutive days. b. Bag limit.Daily bag limit is five Canada geese. c. Possession limit.Three times the daily bag limit. d. Specified areas. (1) Cedar Rapids/Iowa City. Areas are as specified in the November 2023 Waterfowl Hunting Map Book published on the department’s website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 2 “Metropolitan Goose Hunting Areas.” (2) Des Moines. Areas are as specified in the November 2023 Waterfowl Hunting Map Book published on the department’s website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 2 “Metropolitan Goose Hunting Areas.” (3) Cedar Falls/Waterloo. Areas are as specified in the November 2023 Waterfowl Hunting Map Book published on the department’s website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 2 “Metropolitan Goose Hunting Areas.”571—91.4(481A) Closed areas. Waterfowl and coots may be hunted statewide except in specific areas. 91.4(1) Waterfowl and coots. There shall be no open season for ducks, coots and geese as specified in the November 2023 Waterfowl Hunting Map Book published on the department’s website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 3 “Areas Closed to Waterfowl Hunting.” 91.4(2) Canada geese. There shall be no open season on Canada geese in certain areas described as specified in the November 2023 Waterfowl Hunting Map Book published on the department’s website (www.iowadnr.gov/Hunting/Migratory-Game-Birds), chapter 4 “Areas Closed to Canada Goose Hunting.” 571—91.5(481A) Canada goose hunting within closed areas. 91.5(1) Closed areas. All areas are as described in subrule 91.4(2). a. Purpose.The hunting of Canada geese in closed areas is being undertaken to allow landowners or tenants who farm in these closed areas to hunt Canada geese on land they own or farm in the closed area. b. Criteria. (1) Landowners and tenants who own or farm land in the closed areas will be permitted to hunt Canada geese in the closed areas. (2) Landowners and those individuals named on the permit according to the criteria specified in subparagraph 91.5(1)“b”(9) will be permitted to hunt in the closed area. Tenants may obtain a permit instead of the landowner if the landowner transfers this privilege to the tenant. Landowners may choose, at their discretion, to include the tenant and those individuals of the tenant’s family specified in subparagraph 91.5(1)“b”(9) on their permit. Assigned permits must be signed by both the permittee and the landowner assigning the permit. (3) Landowners must hold title to, or tenants must farm by a rent/share/lease arrangement, at least eight acres inside the closed area to qualify for a permit. (4) No more than one permit will be issued to corporations, estates, or other legal associations that jointly own land in the closed area. No individual may obtain more than two permits nor may an individual be named as a participant on more than two permits. (5) Persons holding a permit can hunt with those individuals named on their permit as specified in subparagraph 91.5(1)“b”(9) on any property they own (or rent/share/lease in the case of tenants) in the closed area provided their activity complies with all other regulations governing hunting. Nothing herein shall permit the hunting of Canada geese on public property within the closed area. (6) Persons hunting under this permit must adhere to all municipal, county, state and federal regulations that are applicable to hunting and specifically applicable to Canada goose hunting. Hunting as authorized by this rule shall not be used to stir or rally waterfowl. (7) Hunting within the closed area will be allowed through October 31. (8) Permit holders will be allowed to take eight Canada geese per year in the closed area. (9) Permits will be issued only to individual landowners or tenants; however, permit holders must specify, when requesting a permit, the names of all other individuals qualified to hunt on the permit. Individuals qualified to hunt on the permit shall include the landowners or tenants and their spouses, domestic partners, parents, grandparents, children, children’s spouses, grandchildren, siblings and siblings’ spouses only. c. Procedures. (1) Permits can be obtained from the local conservation officer or wildlife unit headquarters within the closed area no later than 48 hours before the first Canada goose season opens. The permit will be issued to an individual landowner or tenant and must list the names of all individuals who may hunt with the permittee. The permit will also contain a description of the property covered by the permit. The permit must be carried by a member of the hunting party whose name is listed on the permit. Conservation officers will keep a record of permittees and locations of properties that are covered by permits. (2) Eight consecutively numbered tags will be issued with each permit. Geese will be tagged around the leg immediately upon being reduced to possession and will remain tagged until delivered to the person’s abode. (3) No one may attempt to take Canada geese under this permit unless the person possesses an unused tag for the current year. (4) No landowner or tenant shall be responsible or liable for violations committed by other individuals listed on the permit issued to the landowner or tenant.571—91.6(481A,483A) Youth waterfowl hunt. A special youth waterfowl hunt will be held the weekend before the first segment of the regular duck season in each duck hunting zone. Youth hunters must be residents of Iowa as defined in Iowa Code section 483A.1A and less than 16 years old. Each youth hunter must be accompanied by an adult 18 years old or older. The youth hunter does not need to have a hunting license or stamps. The adult must have a valid hunting license and habitat stamp if normally required to have them to hunt and a state waterfowl stamp. Only the youth hunter may shoot ducks and coots. The adult may hunt for any game birds for which the season is open. The daily bag and possession limits are the same as for the regular waterfowl season, as defined in rule 571—91.1(481A). All other hunting regulations in effect for the regular waterfowl season apply to the youth hunt. These rules are intended to implement Iowa Code sections 481A.38, 481A.39, 481A.48(2), and 483A.2.ARC 7239CNatural Resource Commission[571]Notice of Intended ActionProposing rulemaking related to deer hunting and providing an opportunity for public comment
The Natural Resource Commission (Commission) hereby proposes to rescind Chapter 94, “Nonresident Deer Hunting,” and Chapter 106, “Deer Hunting by Residents,” and to adopt a new Chapter 106, “Deer Hunting,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 455A.5(6)“a,” 481A.39, 481A.48, 481C.2(3), 483A.8 and 483A.24.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 481C and sections 481A.38, 481A.48, 483A.8 and 483A.24.Purpose and Summary Proposed Chapter 106 governs deer hunting by residents and nonresidents in the state of Iowa. This chapter sets forth season dates, bag limits, possession limits, shooting hours, areas open to hunting, licensing procedures, means and methods of take, and transportation and reporting requirements. Chapter 106 also addresses landowner/tenant deer license application procedure, timing, and general eligibility as well as the state’s deer depredation program. Consistent with Executive Order 10 (January 10, 2023) and the five-year review of rules in Iowa Code section 17A.7(2), current Chapter 94 (nonresident deer hunting) and current Chapter 106 (resident deer hunting; landowner/tenant; deer depredation) are proposed to be merged and strategically consolidated into this new chapter. The newly revised deer hunting chapter was also edited for overall length and clarity.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found. Waivers This rulemaking is subject to the waiver provisions of 571—Chapter 11. Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Commission for a waiver of the discretionary provisions, if any.Public Comment Any interested person may submit comments concerning this proposed rulemaking. Written comments in response to this rulemaking must be received by the Department of Natural Resources (Department) no later than 4:30 p.m. on January 18, 2024. Comments should be directed to: Chris Ensminger Iowa Department of Natural Resources Wallace State Office Building 502 East Ninth Street Des Moines, Iowa 50319 Email: chris.ensminger@dnr.iowa.gov Public Hearing Two public hearings at which persons may present their views orally or in writing will be held as follows. Upon arrival, attendees should proceed to the fourth floor to check in at the Department reception desk to sign in and be directed to the appropriate hearing location. January 16, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa January 18, 2024 1 to 2 p.m. Conference Room 4E Wallace State Office Building Des Moines, Iowa Persons who wish to make oral comments at a public hearing will be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 571—Chapter 94. ITEM 2. Rescind 571—Chapter 106 and adopt the following new chapter in lieu thereof: CHAPTER 106DEER HUNTING[Prior to 12/31/86, Conservation Commission[290] Ch 106]PART IDEER HUNTING571—106.1(481A) Licenses. When hunting deer, all hunters must have in their possession a valid deer hunting license and a valid resident or nonresident hunting license and must have paid the habitat fee (if normally required to have a hunting license and to pay the habitat fee to hunt). 106.1(1) Types of resident licenses. a. General deer licenses.General deer licenses shall be valid for taking deer in one season selected at the time the license is purchased. General deer licenses shall be valid for taking deer of either sex except in counties designated by the natural resource commission (commission) during the first regular gun season when the general deer license will be valid for taking deer with at least one forked antler. Paid general deer licenses shall be valid statewide except where prohibited in deer population management zones established under 571—Chapter 105. Free general deer licenses shall be valid for taking deer of either sex only on the farm unit of an eligible landowner or tenant in the season or seasons selected at the time the license is obtained. b. Antlerless-deer-only licenses.Antlerless-deer-only licenses shall be valid for taking deer that have no forked antler. Paid antlerless-deer-only licenses shall be valid in one county or in one deer population management zone and in one season as selected at the time the license is purchased. Free and reduced-fee antlerless-deer-only licenses shall be valid on the farm unit of an eligible landowner or tenant in the season or seasons selected at the time the license is obtained. c. Bow season licenses.General deer and antlerless-deer-only licenses, paid or free, shall be valid in both segments of the bow season. d. Regular gun season licenses.Paid general deer and antlerless-deer-only licenses shall be valid in either the first or the second regular gun season, as designated on the license. Free general deer licenses and antlerless-deer-only licenses shall be valid in both the first and second regular gun seasons. e. Muzzleloader season licenses.General deer and antlerless-deer-only licenses, paid or free, shall be valid in either the early or the late muzzleloader season, as designated on the license. 106.1(2) January antlerless-deer-only resident licenses. a. Population management season.Licenses for the population management January antlerless-deer-only season may be issued for counties designated by the commission following a 30-day public comment period. Population management January antlerless-deer-only licenses shall be issued for a county only when a minimum of 100 antlerless-deer-only licenses, as described in 106.10(5), remain unsold in that county as of the third Monday in December. If 100 or more antlerless-deer-only licenses remain unsold for a given county as of the third Monday in December, those remaining antlerless-deer-only licenses shall be made available for the population management January antlerless-deer-only season in that county until the relevant antlerless-deer-only quota as described in 106.10(5) is met. b. Excess tag season.Licenses for the excess tag January antlerless-deer-only season may be issued in any county. Excess tag January antlerless-deer-only licenses shall be issued for a county only when a minimum of one antlerless-deer-only license, as described in 106.10(5), remains unsold for a given county through January 10. Remaining antlerless-deer-only licenses shall be made available starting on January 11 for the excess tag January antlerless-deer-only season in that county until the relevant antlerless-deer-only quota as described in 106.10(5) is met. 106.1(3) Types of nonresident licenses. a. Any-deer licenses.Any-deer licenses shall be valid for taking deer of either sex in the zone and season designated by the hunter when the application is submitted as described in 571—106.8(483A). b. Mandatory antlerless-deer-only licenses.Each hunter who is successful in drawing an any-deer license must also purchase an antlerless-deer-only license for the same zone and season as the any-deer license. If the hunter is unsuccessful in drawing an any-deer license, neither the any-deer nor antlerless-deer-only license will be issued. Antlerless-deer-only licenses shall be valid for taking deer that have no forked antler. c. Optional antlerless-deer-only licenses.A hunter who is not successful in drawing an any-deer license may purchase an antlerless-deer-only license as described in 571—106.8(483A). d. Bow season license.Bow and arrow deer licenses shall be valid for deer of either sex or antlerless deer during the bow season and in the zone designated by the hunter at the time the application is submitted. e. Regular gun season license.Regular gun season licenses will be issued for deer of either sex or antlerless deer. Regular gun season licenses will be issued by zone and season and will be valid in the zone and season designated by the hunter when the application is submitted. f. Muzzleloader season license.Muzzleloader season licenses will be issued for deer of either sex or antlerless deer and shall be valid only during the muzzleloader season and in the zone designated by the hunter when the application is submitted. g. Excess tag January antlerless-deer-only license.Beginning on January 11, nonresident hunters may obtain antlerless-deer-only licenses for the excess tag January antlerless-deer-only season specified in 106.2(4). Licenses will be available only in those counties specified in 106.10(3) until the quota provided in 106.10(5) is filled. All regulations specified in Chapter 106 for the January antlerless deer season for resident hunters including limits, shooting hours, method of take, tagging and reporting requirements will also apply to nonresident hunters during this season. h. Special licenses.The commission shall issue licenses in conformance with Iowa Code section 483A.24(12) to nonresidents 21 years of age or younger who have a severe physical disability or who have been diagnosed with a terminal illness. A person applying for this license must provide a completed form obtained from the department of natural resources. The application shall be certified by the applicant’s attending physician with an original signature and declare that the applicant has a severe physical disability or a terminal illness using the criteria listed in 571—Chapter 15. A medical statement from the applicant’s attending physician that specifies criteria met shall be on 8½" × 11" letterhead stationery. The attending physician shall be a currently practicing doctor of medicine, doctor of osteopathy, physician assistant or nurse practitioner.571—106.2(481A) Season dates. Deer may be taken only during the following seasons: 106.2(1) Bow season. Deer may be taken in accordance with the type of license issued from October 1 through the Friday before the first Saturday in December and from the Monday following the third Saturday in December through January 10 of the following year. 106.2(2) Regular gun seasons. Deer may be taken in accordance with the type, season and zone designated on the license from the first Saturday in December and continuing for five consecutive days (first regular gun season) or from the second Saturday in December and continuing for nine consecutive days (second regular gun season). 106.2(3) Muzzleloader seasons. Deer may be taken in accordance with the type, season and zone designated on the license from the Saturday closest to October 14 and continuing for nine consecutive days (early muzzleloader season) or from the Monday following the third Saturday in December through January 10 of the following year (late muzzleloader season). 106.2(4) Resident population management and excess tag January antlerless-deer-only seasons. Deer may be taken in accordance with the type, season, and zone designated on the license from January 11 through the second Sunday following that date.571—106.3(481A) Shooting hours. Legal shooting hours shall be from one-half hour before sunrise to one-half hour after sunset in all seasons.571—106.4(481A) Limits. 106.4(1) Bow season. The daily bag limit is one deer per license. The possession limit is one deer per license. 106.4(2) Muzzleloader seasons. The daily bag limit is one deer per license. The possession limit is one deer per license. 106.4(3) Regular gun seasons. The bag limit is one deer per license. The possession limit is one deer per license. 106.4(4) Resident population management and excess tag January antlerless-deer-only seasons. The bag limit is one deer per license. The possession limit is one deer per license. 106.4(5) Maximum annual possession limit. The maximum annual possession limit for a deer hunter is one deer for each legal license and transportation tag obtained.571—106.5(481A) Areas closed to hunting. There shall be no open seasons for hunting deer on the county roads immediately adjacent to or through Union Slough National Wildlife Refuge, Kossuth County, where posted accordingly. There shall be no open seasons for hunting deer on all portions of rights-of-way on Interstate Highways 29, 35, 80 and 380.571—106.6(483A) Nonresident zones open to hunting. Licenses will be valid only in designated areas as follows: 106.6(1) Nonresident zone boundaries. As specified in the nonresident deer hunting zones map (dated December 2023) published on the department’s website (www.iowadnr.gov/Hunting/Deer-Hunting) “Nonresident Deer Hunting Zones.” 106.6(2) Reserved.571—106.7(483A) Nonresident license quotas. A limited number of nonresident deer licenses will be issued in zones as follows: 106.7(1) Zone license quotas. Nonresident license quotas are as follows:Any-sex licenses MandatoryAntlerless-deer-only OptionalAntlerless-deer-onlyAll MethodsBowZone 1 90 31 90Zone 2 90 31 90Zone 3 560 196 560Zone 4 1280 448 1280Zone 5 1600 560 1600Zone 6 800 280 800Zone 7 360 126 360Zone 8 240 84 240Zone 9 880 308 880Zone 10 100 35 100 Total 6000 2099 60003500 106.7(2) Quota applicability. The license quota issued for each zone will be the quota for all bow, regular gun and muzzleloader season licenses combined. No more than 6,000 any-deer licenses and 6,000 mandatory antlerless-deer-only licenses will be issued for all methods of take combined, for the entire state. Of the 6,000 any-deer and 6,000 mandatory antlerless-deer-only licenses, no more than 35 percent in any zone can be bow licenses. A maximum of 4,500 optional antlerless-deer-only licenses will be issued on a county-by-county basis. The licenses will be divided between the counties in the same proportion as resident antlerless-deer-only licenses. Hunters must designate a zone or county and season when purchasing the license and hunt only in that zone or county and season.571—106.8(483A) Nonresident application procedure. Applications for nonresident deer hunting licenses must be made through the electronic licensing system for Iowa (ELSI) telephone order system or the ELSI Internet license sales website. 106.8(1) Any-deer licenses. Applications for any-deer and mandatory antlerless-deer-only licenses will be accepted from the first Saturday in May through the first Sunday in June. No one may submit more than one application during the application period. Hunters may apply as individuals or as a group of up to 15 applicants. All members of a group will be accepted or rejected together in the drawing. If applications have been sold in excess of the license quota for any zone or season, a drawing will be held to determine which applicants receive licenses. Licenses or refunds of license fees will be mailed to applicants after the drawing is completed. License agent writing fees, department administrative fees and telephone order charges will not be refunded. If any zone’s license quota for any-deer and mandatory antlerless-deer-only licenses has not been filled, the excess any-deer and mandatory antlerless-deer-only licenses will be sold on a first-come, first-served basis through the ELSI telephone ordering system or the ELSI Internet license sales website. Excess any-deer and mandatory antlerless-deer-only licenses will be sold beginning the last Saturday in July until the quota has been filled or the last day of the hunting period for which the license is valid, whichever occurs first. Members of a group that are rejected may purchase licenses individually if excess any-deer and mandatory antlerless-deer-only licenses or optional antlerless-deer-only licenses are available. 106.8(2) Optional antlerless-deer-only licenses. Optional antlerless-deer-only licenses must be purchased through the ELSI telephone ordering system or the ELSI Internet license sales website. Licenses for taking only antlerless deer will be available on the same date as excess any-deer licenses are sold as explained in 106.8(1). Optional antlerless-deer-only licenses will only be issued for one of the two regular gun seasons and for qualified disabled hunters (571—106.15(481A)). They will be sold first-come, first-served until the county quota is filled, or until the last day of the season for which a license is valid. If optional antlerless-deer-only licenses are still available on December 15, they may be purchased by nonresidents to hunt during the period from December 24 through January 2. These licenses will be available to nonresidents who have not purchased a nonresident deer license during one of the current deer seasons. The hunter must have in possession a valid nonresident small game hunting license and proof of having paid the current year’s wildlife habitat fee. Optional antlerless-deer-only licenses will be valid only in the season and county designated by the hunter at the time the license is purchased. a. Nonresident landowners.Nonresidents who own land in Iowa will have preference in obtaining optional antlerless-deer-only licenses. Nonresidents must qualify as landowners following the criteria stated in 106.17(1) and 106.17(3) through 106.17(6), except that nonresident tenants and family members of nonresident landowners and tenants do not qualify and nonresident optional antlerless-deer-only licenses will not be free of charge. If a farm unit is owned jointly by more than one nonresident, only one owner may claim landowner preference in the same year. Nonresidents who own land jointly with a resident do not qualify for preference. Nonresidents who have provided proof to the department that they own land in Iowa and meet the qualifying criteria may purchase an optional antlerless-deer-only license for one of the two regular gun seasons when excess any-deer licenses go on sale or for the holiday season beginning December 15. Such proof must be provided before an optional antlerless-deer-only license can be purchased and must be resubmitted each year in which an optional antlerless-deer-only license is purchased. These licenses do not count against the county quota. b. Nonresident proof of land ownership.Nonresidents who request preference for optional antlerless-deer-only licenses will be required to submit a copy of their state of Iowa property tax statement for the current year or sign an affidavit that lists the legal description of their land, date purchased, and book and page number, or instrument number, where the deed is recorded. 106.8(3) Preference points. Each individual applicant who is unsuccessful in the drawing for an any-deer license will be assigned one preference point for each year that the individual is unsuccessful. If a person who was unsuccessful in the drawing purchases a leftover license within four weeks, the person will receive a refund for the cost of the preference point. Preference points will not accrue in a year in which an applicant fails to apply, but the applicant will retain any preference points previously earned. Preference points will apply only to obtaining any-deer licenses. Once an applicant receives an any-deer nonresident deer hunting license, all preference points will be removed until the applicant is again unsuccessful in a drawing or purchases a preference point as described in 106.8(4). Preference points will apply to any zone or season for which a hunter applies. The first drawing for any-deer licenses each year will be made from the pool of applicants with the most preference points. If licenses are still available after the first drawing, subsequent drawings will be made from pools of applicants with successively fewer preference points and continue until the any-deer license quota is reached or all applicants have received licenses. Applicants who apply as a group will be included in a pool of applicants with the same number of preference points as that of the member of the group with the fewest preference points assigned. 106.8(4) Purchasing preference points. A nonresident who does not want to hunt in the current year may purchase one preference point per calendar year. The preference point will apply to the next year’s drawing for any-deer licenses. The preference point will be treated in the same manner as preference points obtained by hunters who are unsuccessful in the any-deer license drawing. A nonresident may not purchase a preference point and apply for an any-deer license in the same calendar year. Preference points may be purchased only during the application period for any-deer licenses.571—106.9(481A) Free and reduced-fee deer licenses for resident landowners and tenants. A maximum of one free general deer license, two free antlerless-deer-only licenses, and two reduced-fee antlerless-deer-only licenses may be issued to a qualifying landowner or eligible family member and a qualifying tenant or eligible family member. Eligibility for licenses is described in 571—106.17(481A). The free general deer license shall be available for one of the following seasons: the youth/disabled hunter season (if eligible), bow season, early muzzleloader season, late muzzleloader season, or first and second regular gun seasons. One free antlerless-deer-only license shall be available for one of the following seasons: youth/disabled hunter season (if eligible), bow season, early muzzleloader season, late muzzleloader season, or first and second regular gun seasons. The second free antlerless-deer-only license shall be valid only for the January antlerless-deer-only season and will be available only if a portion of the farm unit lies within a county where paid antlerless-deer-only licenses are available during that season. Each reduced-fee antlerless-deer-only license shall be valid for one of the following seasons: youth/disabled hunter season (if eligible), bow season, early muzzleloader season, late muzzleloader season, first and second regular gun seasons, or January antlerless-deer-only seasons. January antlerless-deer-only licenses will be available only if a portion of the farm unit is located in a county where paid antlerless-deer-only licenses are available in that season.571—106.10(481A) Resident paid deer license quotas and restrictions. Paid deer licenses, including antlerless-deer-only licenses, will be restricted in the type and number that may be purchased. 106.10(1) Paid general deer licenses. Residents may purchase no more than two paid general deer licenses, one for the bow season and one for one of the following seasons: early muzzleloader season, late muzzleloader season, first regular gun season, or second regular gun season. No more than 7,500 paid statewide general deer licenses will be sold for the early muzzleloader season. Fifty additional paid early muzzleloader season licenses will be sold through and will be valid only for the Iowa Army Ammunition Plant. There will be no quota on the number of paid general deer licenses issued in the bow season, late muzzleloader season, first regular gun season, or second regular gun season. 106.10(2) Paid antlerless-deer-only licenses. Paid antlerless-deer-only licenses have quotas for each county and will be sold for each county until quotas are reached. a. Paid antlerless-deer-only licenses may be purchased for any season in counties where licenses are available, except as outlined in 106.10(2)“b.” A license must be used in the season, county or deer population management area selected at the time the license is purchased. b. No one may obtain paid licenses for both the first regular gun season and second regular gun season regardless of whether the licenses are valid for any deer or antlerless deer only. Paid antlerless-deer-only licenses for the early muzzleloader season may only be purchased by hunters who have already purchased one of the 7,500 paid statewide general deer licenses. Hunters who purchase one of the 7,500 paid statewide general deer licenses for the early muzzleloader season may not obtain paid antlerless licenses for the first or second regular gun season. c. Prior to September 15, a hunter may purchase one antlerless-deer-only license for any season for which the hunter is eligible. Beginning September 15, a hunter may purchase an unlimited number of antlerless-deer-only licenses for any season for which the hunter is eligible, as set forth in 106.10(2)“b,” until the county or population management area quotas are filled. Licenses purchased for deer population management areas will not count in the county quota. 106.10(3) Population management and excess tag January antlerless-deer-only seasons. Only antlerless-deer-only licenses, paid or free, are available in counties pursuant to the conditions described in 106.1(2). A license must be used during the population management or excess tag January antlerless-deer-only season as described in 106.2(4) and in the county or deer population management area selected at the time the license is purchased. Free antlerless-deer-only licenses shall be available only in the portion of the farm unit located in a county where paid antlerless-deer-only licenses are available during the population management or excess tag January antlerless-deer-only season. 106.10(4) Free resident landowner/tenant licenses. A person obtaining a free landowner/tenant license may purchase any combination of paid bow and paid gun licenses available to persons who are not eligible for landowner/tenant licenses as described in 571—106.17(481A). 106.10(5) Antlerless-deer-only licenses. Paid antlerless-deer-only licenses shall be available by county as designated annually by the commission. Prior to the commission designating the quotas, the department shall publish on its website (www.iowadnr.gov/Hunting/Deer-Hunting) a proposed allocation and accept public comments for at least 30 days.571—106.11(481A) Method of take. Permitted weapons and devices vary according to the type of season. 106.11(1) Bow season. Only longbow, compound, or recurve bows shooting broadhead arrows are permitted during the bow season. Arrows must be at least 18 inches long. a. Crossbows, as described in 106.11(1)“b,” may be used during the bow season in the following two situations: (1) By persons with certain afflictions of the upper body as provided in 571—15.22(481A); and (2) By persons over the age of 65 with an antlerless-deer-only license as provided in Iowa Code section 483A.8B. b. Crossbow means a weapon consisting of a bow mounted transversely on a stock or frame and designed to fire a bolt, arrow, or quarrel by the release of the bow string, which is controlled by a mechanical trigger and a working safety. Crossbows equipped with pistol grips and designed to be fired with one hand are illegal for taking or attempting to take deer. All projectiles used in conjunction with a crossbow for deer hunting must be equipped with a broadhead. c. No explosive or chemical device may be attached to any arrow, broadhead or bolt. 106.11(2) Regular gun seasons. Only the following shall be used in the regular gun season: 10-, 12-, 16-, and 20-gauge shotguns shooting single slugs; any handgun or rifle as described in Iowa Code section 481A.48; and any muzzleloaders as described in 106.11(3). 106.11(3) Muzzleloader seasons. Only muzzleloading rifles, muzzleloading muskets, muzzleloading pistols, and muzzleloading revolvers will be permitted for taking deer during the early muzzleloader season. During the late muzzleloader season, deer may be taken with a muzzleloading rifle, muzzleloading musket, muzzleloading pistol, muzzleloading revolver, any handgun as defined in 106.11(2), crossbow as described in 106.11(1)“b,” or bow as described in 106.11(1). All muzzleloaders as described in this subrule shall only shoot a single projectile between .44 and .775 of an inch. 106.11(4) January antlerless-deer-only seasons. a. Population management January antlerless-deer-only season.Bows, crossbows, shotguns, muzzleloaders, and handguns, as each is described in this rule, and rifles as described in Iowa Code section 483A.8(9) may be used during the population management January antlerless-deer-only season. b. Excess tag January antlerless-deer-only season.Only rifles as described in Iowa Code section 483A.8(9) shall be used during the excess tag January antlerless-deer-only season. 106.11(5) Prohibited weapons and devices. The use of dogs, domestic animals, bait, firearms except as provided for in this chapter, crossbows except as provided in 106.11(1), automobiles, aircraft, or any mechanical conveyance or device, including electronic calls, is prohibited, except that paraplegics and single or double amputees of the legs may hunt from any stationary motor-driven land conveyance. “Bait” means grain, fruit, vegetables, nuts, hay, salt, mineral blocks, or any other natural food materials; commercial products containing natural food materials; or by-products of such materials transported to or placed in an area for the intent of attracting wildlife. Bait does not include food placed during normal agricultural activities. “Paraplegic” means an individual with paralysis of the lower half of the body with involvement of both legs, usually due to disease of or injury to the spinal cord. It shall be unlawful for a person, while hunting deer, to carry or have in possession a rifle except as provided in 106.11(2) or 106.11(3). Only handguns as described in 106.11(2) may be used to hunt deer and only when a handgun is a lawful method of take. 106.11(6) Discharge of firearms from roadway. No person shall discharge a rifle, including a muzzleloading rifle or musket, or a handgun from a highway while deer hunting. In addition, no person shall discharge a shotgun shooting slugs from a highway north of U.S. Highway 30. A “highway” means the way between property lines open to the public for vehicle traffic, including the road ditch, as defined in Iowa Code section 321.1(78). 106.11(7) Hunting from blinds. No person shall use a blind for hunting deer during the regular gun deer seasons as defined in 106.2(2), unless such blind exhibits a solid blaze orange marking that is a minimum of 144 square inches in size and is visible in all directions. Such blaze orange shall be affixed directly on or directly on top of the blind. For the purposes of this subrule, the term “blind” is defined as an enclosure used for concealment while hunting, constructed either wholly or partially from man-made materials, and used by a person who is hunting for the purpose of hiding from sight. A blind is not a naturally occurring landscape feature or an arrangement of natural or agricultural plant material that a hunter uses for concealment. In addition to the requirements in this subrule, hunters using blinds must also satisfy the requirements of wearing blaze orange as prescribed in Iowa Code section 481A.122.571—106.12(481A) Procedures to obtain licenses. All resident deer hunting licenses must be obtained using the ELSI. Licenses may be purchased from ELSI license agents, or online at www.iowadnr.com, or by calling the ELSI telephone ordering system. 106.12(1) Licenses with quotas. All paid deer hunting licenses for which a quota is established may be obtained from the ELSI system on a first-come, first-served basis beginning August 15 until the quota fills, or through the last day of the hunting period for which the license is valid. 106.12(2) Licenses without quotas. All deer hunting licenses that have no quota may be obtained from the ELSI system beginning August 15 through the last day of the hunting period for which a license is valid. 106.12(3) Providing false information. a. Any person who provides false information about the person’s identity or eligibility for any paid or free landowner/tenant deer license and tag and who attests that the information is correct by accepting and signing the license or tag shall have the person’s hunting license revoked as a part of the sentencing for such criminal conviction, and the person shall not be issued a hunting license for one year pursuant to the authority of Iowa Code section 483A.24(2)“f” and 571—15.6(483A). b. In addition to any legal penalties that may be imposed, the obtaining of a license in violation of this rule shall invalidate that deer license and transportation tag and any other deer hunting license and transportation tag obtained during the same year.571—106.13(481A) Transportation tag. 106.13(1) Use of transportation tag. A transportation tag bearing the license number of the licensee, year of issuance, and date of kill properly shown shall be visibly attached to one leg of each antlerless deer or on the main beam between two points, if present, on one of the antlers of an antlered deer in such a manner that the tag cannot be removed without mutilating or destroying the tag. This tag shall be attached to the carcass of the deer within 15 minutes of the time the deer carcass is located after being taken or before the carcass is moved to be transported by any means from the place where the deer was taken, whichever occurs first. No person shall tag a deer with a transportation tag issued to another person or with a tag that was purchased after the deer was taken. This tag shall be proof of possession and shall remain affixed to the carcass until such time as the animal is processed for consumption. The head, and antlers if any, shall remain attached to the deer while being transported by any means whatsoever from the place where taken to the processor or commercial preservation facility or until the deer has been processed for consumption. The hunter who killed the deer must tag the deer using the transportation tag issued in that person’s name unless lawfully party hunting. 106.13(2) Party hunting. a. Resident party hunting.During the first and second regular gun seasons and the January antlerless-deer-only seasons, any resident hunter present in the hunting party may use their tag on a deer harvested by another resident. b. Nonresident party hunting.Party hunting is not allowed by nonresidents.571—106.14(481A) Resident youth deer and severely disabled hunts. 106.14(1) Licenses. a. Youth deer hunt.A youth deer license may be issued to any Iowa resident who is not over 15 years old on the day the youth obtains the license. The youth license may be paid or free to persons eligible for free licenses. If the youth obtains a free landowner/tenant license, it will count as the one free general deer license for which the youth’s family is eligible.Each participating youth must be accompanied by an adult who possesses a regular hunting license and has paid the habitat fee (if the adult is normally required to have a hunting license and to pay the habitat fee to hunt). Only one adult may participate for each youth hunter. The accompanying adult must not possess a firearm or bow and must be in the direct company of the youth at all times.A person may obtain only one youth general deer license but may also obtain any other paid or free general deer and antlerless-deer-only licenses that are available to other hunters. Antlerless-deer-only licenses must be obtained in the same manner with which other hunters obtain them, as described in 106.10(2). b. Severely disabled hunt.Any severely disabled Iowa resident meeting the requirements of Iowa Code section 321L.1(8) may be issued one general deer license to hunt deer during the youth season. A person applying for this license must either possess a disability parking permit or provide a completed form from the department of natural resources. The form must be signed by a physician verifying that the person’s disability meets the criteria defined in Iowa Code section 321L.1(8). The attending physician shall be currently practicing medicine and shall be a medical doctor, a doctor of osteopathy, a physician assistant, or a nurse practitioner. Forms are available online at www.iowadnr.gov, by visiting the Department of Natural Resources office at the Wallace State Office Building, Des Moines, Iowa, or any district office, or by calling 515.725.8200. A person between 16 and 65 years of age must also possess a regular hunting license and have paid the habitat fee to obtain a license (if normally required to have a hunting license and to pay the habitat fee to hunt). A severely disabled person obtaining this license may obtain any other paid and free general deer and antlerless-deer-only licenses that are available to other hunters. Antlerless-deer-only licenses must be obtained in the same manner by which other hunters obtain them, as described in 106.10(2). 106.14(2) Season dates. Deer of either sex may be taken statewide for 16 consecutive days beginning on the third Saturday in September. A person who is issued a youth deer hunting license and does not take a deer during the youth deer hunting season may use the deer hunting license and unused tag during any subsequent deer seasons. The license will be valid for the type of deer and in the area specified on the original license. The youth must follow all other rules specified in this chapter for each season, including method of take. If the tag is filled during any of the seasons, the license will not be valid in subsequent seasons. 106.14(3) Shooting hours. Legal shooting hours will be one-half hour before sunrise to one-half hour after sunset each day regardless of weapon used. 106.14(4) Limits and license quotas. An unlimited number of licenses may be issued. The daily and season bag and possession limit is one deer per license. A person may shoot and tag a deer only by utilizing the license and tag issued in the person’s name. 106.14(5) Method of take and other regulations. Deer may be taken with shotguns, bows, handguns, rifles, or muzzleloaders as permitted in 571—106.11(481A). Youth hunters using a handgun must be accompanied and under direct supervision throughout the hunt by a responsible person with a valid hunting license who is at least 21 years of age, with the consent of a parent or guardian. The responsible person with a valid hunting license who is at least 21 years of age shall be responsible for the conveyance of the pistol or revolver while the pistol or revolver is not actively being used for hunting. “Direct supervision” means the same as defined in Iowa Code section 483A.27A(4). All participants must meet the deer hunters’ orange apparel requirement in Iowa Code section 481A.122. All other regulations for obtaining licenses or hunting deer shall apply. 106.14(6) Procedures for obtaining licenses. Paid and free youth season licenses and licenses for severely disabled hunters may be obtained through ELSI beginning August 15 through the last day of the youth season.571—106.15(481A) Nonresident deer hunting season for severely disabled persons. 106.15(1) Licenses. A nonresident meeting the requirements of Iowa Code section 321L.1(8) may apply for or purchase a nonresident deer hunting license to participate in a special deer hunting season for severely disabled persons. Nonresidents applying for this license must have on file with the department of natural resources either a copy of a disabilities parking permit issued by a state department of transportation or an Iowa department of natural resources form signed by a physician that verifies their disability. 106.15(2) Season dates. Any deer or antlerless deer may be taken in the hunting zone indicated on the deer license during 16 consecutive days beginning the third Saturday in September. 106.15(3) Shooting hours. Legal shooting hours will be from one-half hour before sunrise until one-half hour after sunset each day regardless of the type of weapon used. 106.15(4) Limits. Daily bag and possession limit is one deer. A person may shoot and tag only one deer by utilizing the license and tag issued in the person’s name. 106.15(5) License quotas. Licenses for the special hunting season for severely disabled persons shall be issued from the quotas established in 571—106.7(483A). A special quota will not be set aside for severely disabled persons. 106.15(6) Method of take and other regulations. Deer may be taken with shotgun, bow, muzzleloading rifle or pistol as defined in 571—106.11(483A). All participants must meet the hunters’ orange apparel requirement in Iowa Code section 481A.122. All other regulations for taking deer with a gun or bow shall apply. 106.15(7) Application procedures. Persons meeting the requirements for this season must apply following the procedures described in 571—106.12(483A). A person who does not have a form on file to verify a disability will not be entered into the drawing or be allowed to purchase a license and will have the license fee refunded, less a $10 administrative fee to cover the cost of handling the application as provided in 571—subrule 15.8(1). License agent writing fees, department administrative fees, Internet sales charges and telephone order charges will not be refunded. These rules are intended to implement Iowa Code sections 481A.38, 481A.48, 483A.8, and 483A.24.PART IIDEER DEPREDATION571—106.16(481A) Deer depredation management. The deer depredation management program provides assistance to producers through technical advice and additional deer licenses and permits where the localized reduction of female deer is needed to reduce damage. Upon signing a depredation management agreement with the department, producers of agricultural or high-value horticultural crops may be issued deer depredation permits to shoot deer causing excessive crop damage. If immediate action is necessary to forestall serious damage, depredation permits may be issued before an agreement is signed. Further permits will not be authorized until an agreement is signed. 106.16(1) Method of take and other regulations. Legal weapons and restrictions will be governed by 571—106.11(481A). For deer shooting permits only, there are no shooting hour restrictions; however, taking deer with an artificial light is prohibited by Iowa Code section 481A.93. The producer or designee must meet the deer hunters’ orange apparel requirement in Iowa Code section 481A.122. 106.16(2) Eligibility. Producers growing typical agricultural crops (such as corn, soybeans, hay and oats and tree farms and other forestlands under a timber management program) and producers of high-value horticultural crops (such as Christmas trees, fruit or vegetable crops, nursery stock, and commercially grown nuts) shall be eligible to enter into depredation management agreements if these crops sustain excessive damage. a. The producer may be the landowner or a tenant, whoever has cropping rights to the land. b. Excessive damage is defined as crop losses exceeding $1,000 in a single growing season, or the likelihood that damage will exceed $1,000 if preventive action is not taken, or a documented history of at least $1,000 of damage annually in previous years. c. Producers who lease their deer hunting rights are not eligible for the deer depredation management program. 106.16(3) Depredation management plans. Upon request from a producer, field employees of the wildlife bureau will inspect and identify the type and amount of crop damage. If deer damage is not excessive, technical advice will be given to the producer on methods to reduce or prevent future damage. If damage is excessive and the producer agrees to participate, a depredation management plan will be developed by depredation biologists in consultation with the producer. a. The goal of the management plan will be to reduce damage to below excessive levels within a specified time period through a combination of producer-initiated preventive measures and the issuance of deer depredation permits. (1) Depredation plans may require preventive measures such as harassment of deer with pyrotechnics and cannons, guard dogs, temporary fencing, permanent fencing costing less than $1,000, allowing more hunters, increasing the take of antlerless deer, and other measures. (2) Depredation permits to shoot deer may be issued to Iowa residents to reduce deer numbers until long-term preventive measures become effective. Depredation permits will not be used as a long-term solution to deer damage problems. b. Depredation management plans will normally be written for a three-year period with progress reviewed annually by the department and the producer. (1) The plan will become effective when signed by the depredation biologist and the producer. (2) Plans may be modified or extended if mutually agreed upon by the department and the producer. (3) Depredation permits will not be issued after the initial term of the management plan if the producer fails to implement preventive measures outlined in the plan. 106.16(4) Depredation permits. Two types of permits may be issued under a depredation management plan. a. Deer depredation licenses. Deer depredation licenses may be sold to resident hunters only for a fee of $5 for use during one or more legal hunting seasons. Depredation licenses will be available to producers of agricultural and horticultural crops. (1) Depredation licenses will be issued up to the number specified in the management plan. (2) The landowner or an eligible family member, which shall include the landowner’s spouse or domestic partner and juvenile children, may obtain one depredation license for each season established by the commission. (3) Depredation licenses will be valid only for hunting antlerless deer, regardless of restrictions that may be imposed on regular deer hunting licenses in that county. (4) All other regulations for the hunting season specified on the license apply. (5) Depredation licenses are valid only on the land where damage is occurring and the immediately adjacent property unless the land is within a designated block hunt area as described in 106.16(4)“a”(6). Other parcels of land in the farm unit not adjacent to the parcels receiving damage will not qualify. (6) Block hunt areas are areas designated and delineated by wildlife biologists of the wildlife bureau to facilitate herd reduction in a given area where all producers may not qualify for the depredation program or in areas of persistent deer depredation. Depredation licenses issued to producers within the block hunt area are valid on all properties within the delineated boundaries. Individual landowner permission is required for hunters utilizing depredation licenses within the block hunt area boundaries. Creation of a given block hunt area does not authorize trespass. b. Deer shooting permits. Permits for shooting deer outside an established hunting season may be issued to producers of high-value horticultural crops when damage cannot be controlled in a timely manner during the hunting seasons (such as late summer buck rubs in an orchard and winter browsing in a Christmas tree plantation) and to other agricultural producers who have an approved department deer depredation plan, and on areas such as airports where public safety may be an issue. (1) Deer shooting permits will be issued for a fee of $5 to the applicant. (2) The applicant or one or more designees approved by the department may take all the deer specified on the permit. (3) Permits available to producers of high-value horticultural crops or agricultural crops may be valid for taking deer outside of a hunting season depending on the nature of the damage. The number and type of deer to be killed will be determined by a department depredation biologist and will be part of the deer depredation management plan. (4) Permits issued due to public safety concerns may be used for taking any deer, as necessary, to address unpredictable intrusion that could jeopardize public safety. Permits may be issued for an entire year (January 1 through December 31) if the facility involved signs an agreement with the department. (5) All deer killed must be recovered and processed for human consumption. (6) The times, dates, place and other restrictions on the shooting of deer will be specified on the permit. (7) Antlers from all deer recovered must be turned over to the conservation officer within 48 hours. Antlers will be disposed of according to department rules. (8) For out-of-season shooting permits, there are no shooting hour restrictions; however, taking deer with an artificial light is prohibited by Iowa Code section 481A.93. c. Depredation licenses and shooting permits will be issued in addition to any other licenses for which the hunters may be eligible. d. Depredation licenses and shooting permits will not be issued if the producer restricts the legal take of deer from the property sustaining damage by limiting hunter numbers below levels required to control the deer herd. This restriction does not apply in situations where shooting permits are issued for public safety concerns. e. A person who receives a depredation permit pursuant to this paragraph shall pay a $1 fee for each license that shall be used and is appropriated for the purpose of deer herd population management, including assisting with the cost of processing deer donated to the help us stop hunger (HUSH) program administered by the commission and a $1 writing fee for each license to the license agent.571—106.17(481A) Eligibility for free landowner/tenant deer licenses. 106.17(1) Who qualifies for free deer hunting licenses. a. Owners and tenants of a farm unit and the spouse and juvenile child of an owner or tenant who reside with the owner or tenant are eligible for free deer licenses. The owner or tenant does not have to reside on the farm unit but must be actively engaged in farming it. Nonresident landowners do not qualify. b. Juvenile child defined. “Juvenile child” means a person less than 18 years of age or a person who is 18 or 19 years of age and is in full-time attendance at an accredited school pursuing a course of study leading to a high school diploma or a high school equivalency diploma. A person 18 years of age or older who has received a high school diploma or high school equivalency diploma does not qualify. 106.17(2) Who qualifies as a tenant. A “tenant” is a person other than the landowner who is actively engaged in the operation of the farm. The tenant may be a member of the landowner’s family, including in some circumstances the landowner’s spouse or child, or a third party who is not a family member. The tenant does not have to reside on the farm unit. 106.17(3) What “actively engaged in farming” means. Landowners and tenants are “actively engaged in farming” if they personally participate in decisions about farm operations and those decisions, along with external factors such as weather and market prices, determine their profit or loss for the products they produce. Tenants qualify if they farm land owned by another and pay rent in cash or in kind. A farm manager or other third party who operates a farm for a fee or a laborer who works on the farm for a wage and is not a family member does not qualify as a tenant. 106.17(4) Landowners who qualify as active farmers. These landowners: a. Are the sole operator of a farm unit (along with immediate family members), or b. Make all decisions about farm operations, but contract for custom farming or hire labor to do some or all of the work, or c. Participate annually in decisions about farm operations such as negotiations with federal farm agencies or negotiations about cropping practices on specific fields that are rented to a tenant, or d. Raise specialty crops from operations such as orchards, nurseries, or tree farms that do not necessarily produce annual income but require annual operating decisions about maintenance or improvements, or e. May have portions of the farm enrolled in a long-term land retirement program such as the Conservation Reserve Program (CRP) as long as other farm operations occur annually, or f. Place their entire cropland in the CRP or other long-term land retirement program with no other active farming operation occurring on the farm. 106.17(5) Landowners who do not qualify. These landowners: a. Use a farm manager or other third party to operate the farm, or b. Cash rent the entire farm to a tenant who is responsible for all farm operations including following preapproved operations plans. 106.17(6) Where free licenses are valid. A free license is valid only on that portion of the farm unit that is in a zone open to deer hunting. “Farm unit” means all parcels of land in tracts of two or more contiguous acres that are operated as a unit for agricultural purposes and are under lawful control of the landowner or tenant regardless of how that land is subdivided for business purposes. Individual parcels of land do not need to be adjacent to one another to be included in the farm unit. “Agricultural purposes” includes but is not limited to field crops, livestock, horticultural crops (e.g., from nurseries, orchards, truck farms, or Christmas tree plantations), and land managed for timber production. 106.17(7) Registration of landowners and tenants. Landowners and tenants and their eligible family members who want to obtain free deer hunting licenses must register with the department before the free licenses will be issued. Procedures for registering are described in 571—95.2(481A).571—106.18(481A) Harvest reporting. Each hunter who bags a deer must report that kill according to procedures described in 571—95.1(481A). These rules are intended to implement Iowa Code chapter 481C.ARC 7354CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to filing returns and payment of tax and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 202, “Filing Returns and Payment of Tax,” Iowa Administrative Code, and adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 421.9A, 421.26, 421.28, 423.1, 423.14, 423.22, 423.31 to 423.33, 423.36, 423.45 and 423.47.Purpose and Summary The purpose of this proposed rulemaking is to rescind Chapter 202 and adopt a new Chapter 202. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. The Department also proposes new language to provide additional clarity. The chapter describes the procedures for filing sales and use tax returns. The rules are intended to help the public understand the process for filing sales and use tax returns. A Regulatory Analysis, including the proposed rule text, was published on October 18, 2023. A public hearing was held on November 8, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on November 21, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.govPublic Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 202 and adopt the following new chapter in lieu thereof: CHAPTER 202FILING RETURNS AND PAYMENT OF TAX[Prior to 7/13/22, see 701—Chapter 12]701—202.1(423) Sales and use tax return filing. 202.1(1) In general. A retailer owing $1,200 or more in sales or use tax per calendar year shall file a sales and use tax return once per month. This monthly return is due on or before the last day of the month following the end of the month in which the tax was collected. A retailer owing less than $1,200 in sales or use tax per calendar year shall file a sales and use tax return at least once per annual year, due on or before January 31 for the prior calendar year. A retailer otherwise expected to file a return annually may file a return on a monthly basis if the retailer prefers to do so. Every return shall be signed and dated. 202.1(2) New retailers. A retailer who has never held an Iowa sales or use tax permit and has never collected or accrued sales or use tax in Iowa shall indicate at the time the retailer registers for its permit whether it expects to file a return monthly or annually. 202.1(3) Changes to filing frequency. A retailer registered to file an annual sales and use tax return should update its return filing frequency as needed. The department may adjust a retailer’s filing frequency if the retailer has remitted $1,200 or more in its first year of operation in Iowa and the department has notified the retailer that it meets or exceeds the filing threshold. 202.1(4) Calculating the $1,200 filing frequency threshold. The threshold for determining whether a retailer should file a monthly or an annual sales and use tax return shall be calculated by adding sales and use taxes due in a calendar year. Other excise taxes should not be included in the calculation, even though they may be reported on the sales and use tax return. 202.1(5) Electronic filing requirement and exception. Retailers required to file a monthly sales and use tax return shall file the return through GovConnectIowa. A retailer who is unable to file a return electronically may request permission from the director to file a paper return. A retailer requesting such permission shall provide proof of its inability to file electronically. 202.1(6) Simplified electronic return due date. a. A retailer registered to collect Iowa tax through the Streamlined Sales Tax Registration System as a Model 1 seller shall file a simplified electronic return on or before the twentieth day of each month following the end of the month in which the tax was collected. b. Any other retailer using the simplified electronic return shall file the return on or before the last day of the month following the end of the month in which the tax was collected. This rule is intended to implement Iowa Code section 423.31.701—202.2(423) Reporting sales or use taxes. A taxpayer with a reporting obligation for either sales tax or use tax but not both shall affirmatively indicate on the sales and use tax return that the taxpayer has no tax to report for the appropriate tax type. A taxpayer does this by making the appropriate indication on an electronic return or by entering a zero on the taxable amount line in the tax section of a paper return for which the taxpayer does not have tax to report. A taxpayer who fails to do so will be treated as not reporting for that tax type. This rule is intended to implement Iowa Code section 423.31.701—202.3(423) Sales and use tax remittance. Sales or use tax owed by a retailer shall accompany the sales and use tax return for the period in which the tax became due. Retailers filing a monthly sales and use tax return electronically shall remit tax electronically. Retailers filing a paper return may remit tax by mail, payable to the Iowa Department of Revenue. Remittances transmitted electronically are considered to have been made on the date the remittance is completed in GovConnectIowa. This rule is intended to implement Iowa Code section 423.31.701—202.4(423) Due dates, weekends, and holidays. Due dates that fall on a Saturday, Sunday, or holiday shall be treated in accordance with Iowa Code section 421.9A. Iowa Code section 421.9A contains a definition of “holiday.” This rule is intended to implement Iowa Code section 421.9A.701—202.5(423) Consolidated returns. Two types of permit holders have the option of filing a consolidated return. The first is a permit holder with multiple locations from which taxable sales are made, and the second is certain affiliated corporations. 202.5(1) Permit holders with multiple locations. A permit holder procuring more than one permit may file a separate return for each permit or, if a request to consolidate pursuant to Iowa Code section 423.31(4) has been approved by the department, the permit holder may file one consolidated return reporting sales made at all locations for which a permit is held. 202.5(2) Affiliated corporations. Any group consisting of a parent corporation and its affiliates, which is entitled to file a consolidated return for federal income tax purposes and which makes retail sales of tangible personal property, specified digital products, or taxable services, may make an application to the director for permission to file a consolidated Iowa sales tax return. The application shall: a. Be in writing. b. Be signed by an officer of the parent company. c. Contain the business name, address, federal identification number, and Iowa sales and use tax permit number of every corporation seeking the right to file a consolidated return. d. State the initial tax period for which the right to file a consolidated return is sought. e. Be filed no later than 90 days prior to the beginning of the identified initial tax period. f. Contain any additional relevant information that the director may, in individual instances, require. 202.5(3) Requirements common to returns filed under this rule. The following provisions apply to permit holders filing consolidated returns pursuant to either subrule 202.5(1) or 202.5(2): a. Proper form.Taxpayers shall file consolidated returns through GovConnectIowa. b. Working papers.All working papers used in the preparation of the information required to complete the returns must be available for examination by the department. c. Offsetting collections among affiliates.Undercollections of sales tax at one or more locations or by one or more affiliates shall not be offset by overcollections at other locations or by other affiliates. This rule is intended to implement Iowa Code section 423.31.701—202.6(423) Direct pay permits and negotiated rate agreements. 202.6(1) Direct pay permits in general. Qualified purchasers, users, and consumers of tangible personal property, specified digital products, or taxable services pursuant to Iowa Code chapter 423 may remit tax owed directly to the department instead of having the tax collected and remitted by the seller. A qualified purchaser, user, or consumer shall not be granted or exercise this direct pay option except upon proper application to the department and only after issuance of the direct pay permit by the director of the department or personnel authorized by the director. a. Qualifications for a direct pay permit.To qualify for a direct pay permit, an applicant will meet all of the following criteria: (1) Be a purchaser, user, or consumer of tangible personal property, specified digital products, or taxable services. (2) Have an accrual of sales and use tax liability of more than $8,000 in a month. A purchaser, user, or consumer may have more than one business location and can combine the sales and use tax liabilities on consumed goods of all locations to meet the requirement of $8,000 in sales and use tax liability in a month to qualify if the records are located in a centralized location. If a purchaser, user, or consumer is combining more than one location, only one direct pay tax return for all of the combined locations needs to be filed with the department. However, local option sales tax should not be included in the tax base for determining qualification for a direct pay permit. If a purchaser, user, or consumer has more than one location, but not all locations wish to remit under a direct pay permit, the purchaser, user, or consumer will need to indicate which locations will be utilizing the direct pay permit at the time of application. (3) Remit tax and file returns pursuant to Iowa Code section 423.31. Paragraph 202.6(1)“d” contains further details. b. Nonqualifying purchases or uses.The granting of a direct pay permit is not allowed for any of the imposed taxes listed in Iowa Code section 423.36(9)“b.” c. Application and permit information.To obtain a direct pay permit, a purchaser, user, or consumer will fully and properly complete an application form prescribed by the director and provide certification that the purchaser, user, or consumer has paid sales and use tax to the department or vendors over the last two years prior to application, an average of $8,000 in a month. Upon approval, the director or personnel authorized by the director will issue a direct pay permit to qualifying applicants. The direct pay permit will contain direct pay permit identifying information, including a direct pay permit identification number. The direct pay permit should be retained by the permit holder. When purchasing from a vendor, a permit holder should give the vendor a certificate of exemption containing the information as set forth in rule 701—288.3(423). d. Remittance and reporting.Direct pay permit holders shall remit and report sales, use, and local option sales tax on a monthly basis. Remittance of tax due under a direct pay permit will begin with the first month after the direct pay permit is issued to the holder. The tax to be paid under a direct pay permit shall be remitted directly to the department by electronic funds transfer (EFT) only. A permit holder need not have remitted by EFT prior to obtaining a direct pay permit to qualify for such a permit. However, a permit holder must remit taxes due by EFT for transactions entered into on or after the date the permit is issued. All local option sales tax due must be reported and remitted at the same time as the sales and use taxes due under the direct pay permit for the corresponding tax period. However, local option sales tax should not be included in the tax base for determining qualification for a direct pay permit or frequency of remittance. Reports should be filed with the department on a monthly basis. The director may, when necessary and advisable in order to secure the collection of tax due, require an applicant for a direct pay permit or a permit holder to file with the director a qualified surety bond as set forth in Iowa Code section 423.35. A permit holder who fails to report or remit any tax when due is subject to the penalty and interest provisions set forth in Iowa Code section 421.27. e. Permit revocation and nontransferability.A direct pay permit may be used indefinitely unless it is revoked by the department. A direct pay permit is not transferable and cannot be assigned to a third party. The department may revoke a direct pay permit at any time the permit holder fails to meet the requirements for a direct pay permit, misuses the direct pay permit, or fails to comply with the provisions in Iowa Code section 423.36(9). If a direct pay permit is revoked, it is the responsibility of the prior holder of the permit to inform all vendors of the revocation so the vendors may begin to collect tax at the time of purchase. A prior permit holder is responsible for any tax, penalty, and interest due for failure to notify a vendor of revocation of a direct pay permit. f. Record-keeping requirements.The parties involved in transactions involving a direct pay permit shall have the following record-keeping duties: (1) Permit holder. The holder of a direct pay permit will retain possession of the direct pay permit and keep a record of all transactions made pursuant to the direct pay permit in compliance with rule 701—11.4(423). (2) Vendor. A vendor will retain a valid exemption certificate under rule 701—288.3(423) that is received from the direct pay permit holder and retain records of all transactions engaged in with the permit holder in which tax was not collected, in compliance with rule 701—11.4(423). A vendor’s liability for uncollected tax is governed by the liability provisions of a seller under an exemption certificate set forth in rule 701—288.3(423). 202.6(2) Negotiated rate agreements. a. In general.Any person who has been issued or who has applied for a direct pay permit may request the department to enter into a negotiated rate agreement with the permit holder or applicant. These agreements are negotiated on a case-by-case basis and, if approved by the department, allow a direct pay permit holder to pay the state sales, local option sales, or use tax on a basis calculated by agreement between the direct pay permit holder and the department. Negotiated rate agreements are not applicable to sales and use taxes set out in paragraph 202.6(1)“b,” and no negotiated rate agreement is effective for any period during which a taxpayer who is a signatory to the agreement is not a direct pay permit holder. b. Required information.All negotiated rate agreements shall contain the following information or an explanation for its omission: (1) The name of the taxpayer who has entered into the agreement with the department. (2) The name and title of each person signing the agreement and the name, telephone or fax number, and email or physical address of at least one person to be contacted if questions regarding the agreement arise. (3) The period during which the agreement is in effect, the renewal or extension rights (if any) of each party, and the effective date of the agreement. (4) The negotiated rate or rates, the classes of sales or uses to which each separate rate is applicable, any items that will be excluded from the agreement, and any circumstances that will result in a changed rate or rates or changed composition of classes to which rates are applicable. (5) Actions or circumstances that render the agreement void, or voidable at the option of either party, and the time frame in which the agreement will be voided. (6) Rights, if any, of the parties to resort to mediation or arbitration. (7) An explanation of the department’s right to audit aspects of the agreement, including any right to audit remaining after the agreement’s termination. (8) The conditions by which the agreement may be terminated and the effective date of the termination. (9) The methodology used to determine the negotiated rate and any schedules needed to verify percentages. (10) Any other matter deemed necessary to the parties’ mutual understanding of the agreement. This rule is intended to implement Iowa Code section 423.36.701—202.7(423) Regular permit holders responsible for collection of tax. A permit holder may operate by selling merchandise by trucks, canvassers, or itinerant salespeople over fixed routes within the county in which the permanent place of business is located or other counties in this state. When this occurs, the permit holder is liable for reporting and paying tax on these sales. The person doing the selling for the permit holder shall be required to have a form, either in possession or in the vehicle, that authorizes that person to collect tax. This form is obtained from the department and shall contain the name, address, and permit number of the retailer according to the records of the department. This rule is intended to implement Iowa Code sections 423.14 and 423.36.701—202.8(423) Sale of business. 202.8(1) Final return due. A retailer selling the business shall file a return within the succeeding month and pay all tax due. Any unpaid tax shall be due prior to the transfer of title of any personal property to the purchaser, and the tax becomes delinquent one month after the sale. 202.8(2) Record retention. A retailer discontinuing business shall maintain the business’s records for a period of five years from the date of discontinuing the business unless a release from this provision is given by the department. 701—subrule 285.28(2) provides for possible sales and use tax consequences relating to the sale of a business. This rule is intended to implement Iowa Code section 423.33.701—202.9(423) Bankruptcy, insolvency, or assignment for benefit of creditors. In cases of bankruptcy, insolvency or assignment for the benefit of creditors by the taxpayer, the taxpayer shall immediately file a return with the tax being due. This rule is intended to implement Iowa Code section 423.31.701—202.10(423) Vending machines and other coin-operated devices. An operator who places machines on location shall file a return that includes the sales price from sales from all machines or devices operated by the retailer in Iowa during the tax period covered by the return. The mandatory beverage container deposit required under the provisions of Iowa Code chapter 455C shall not be considered part of the sales price. This rule is intended to implement Iowa Code sections 423.1 and 423.2.701—202.11(423) Claim for refund of tax. 202.11(1) Eligibility for refund; filing claims. Refunds of tax shall be made only to those who have actually paid the tax. A person or persons may designate the retailer who collects the tax as an agent for purposes of receiving a refund of tax. A person or persons who claim a refund shall prepare and file the claim on Form IA 843, Refund Return, with the department, stating in detail the reasons and facts and, if necessary, supporting documents for which the claim for refund is based. 202.11(2) Denial of refund claim—appeal. If the claim for refund is denied, and the person wishes to appeal the denial, the department will consider an appeal to be timely if filed no later than 60 days following the date of denial. Rule 701—7.9(17A) contains more information on appeals. 202.11(3) Request for abeyance. When a person is in a position of believing that the tax, penalty, or interest paid or to be paid will be found not to be due at some later date, then in order to prevent the statute of limitations from running out, a claim for refund or credit must be filed with the department within the statutory period provided for in Iowa Code section 423.47. The claim must be filed requesting that it be held in abeyance pending the outcome of any action that will have a direct effect on the tax, penalty, or interest involved. Nonexclusive examples of such action would be court decisions, departmental orders and rulings, and commerce commission decisions.Y is audited for the same period involving identical materials used to those taxed in the audit of X. However, Y, rather than paying the assessment, takes the department through litigation and wins. The final litigation is not completed until September 30, 2023.X, on October 1, 2023, upon finding out about the decision of Y’s case, files a claim for refund relating to its audit completed in June 2017. The claim will be totally denied as beyond the three-year statute of limitations. However, if X had filed a claim along with payment of its audit in June 2017, and requested that the claim be held in abeyance pending Y’s litigation, then X would have received a full refund of its audit liability if the decision in Y’s case was also applicable to X. 202.11(4) Refund of use tax. A taxpayer will need to file an amended return in order to claim a refund of use tax. A taxpayer cannot use Form IA 843, Refund Return, to claim this refund. This rule is intended to implement Iowa Code sections 423.45 and 423.47.701—202.12(423) Immediate successor liability for unpaid tax. To ensure all sales or use tax due is paid, Iowa Code section 423.33(2) applies to a retailer selling the retailer’s business or stock of goods or ceasing the retailer’s business and the immediate successor. For the purpose of this rule, “retailer” includes all persons liable for tax under Iowa Code sections 421.26 and 423.33. 202.12(1) Immediate successors having a duty to withhold. a. An immediate successor who, pursuant to a contract of sale, pays a purchase price to a retailer in return for the transfer of a going business or a stock of goods is obligated to inquire if tax, penalty, or interest is due and to withhold a portion of the purchase price to pay the delinquent tax, penalty, or interest, if necessary. “Immediate successor” includes but is not limited to the following examples: (1) An entity resulting from the action of a sole proprietor who organizes a business in which the sole proprietor is the only or the controlling stakeholder. (2) A sole proprietorship established from an entity of which the sole proprietor was the exclusive, majority, or controlling stakeholder. b. Reserved. 202.12(2) More than one immediate successor. If a retailer sells a business or stock of goods to two or more persons, the following requirements apply: a. Sale to two or more persons.If a retailer sells a substantial portion of the business or the retail business’s stock of goods to another person who will in turn offer those goods for sale in a retail business, that person or persons are immediate successors that are jointly and severally liable. b. Purchase of differing places of business.If one retailer owns two or more places of business, each having a separate sales tax permit, each location having its own permit is a separate business and has a separate stock of goods for the purpose of determining successor liability. A person purchasing the business at one location or the stock of goods from one location would be personally liable only for the tax owed under the permit assigned to that location. 202.12(3) Sale of a retailer’s business. Usually, the sale of only the machinery or equipment used in a business without the sale or leasing of the realty of the business is not a sale of the business itself. The transfer of a retailer’s machinery or equipment and business realty to a person who continues to use the machinery, equipment, and realty for the sale of any type of tangible personal property or specified digital products constitutes the selling of the retailer’s business, and the person to whom the business is sold is an immediate successor and liable for tax. 202.12(4) Good faith. An immediate successor to a licensee’s, retailer’s, or seller’s business or stock of goods has purchased the licensee’s, retailer’s, or seller’s business or stock of goods in good faith that no delinquent tax, interest, or penalty was due and unpaid if the immediate successor demonstrates, by suitable evidence, that one of the following situations exists. a. The department has provided the immediate successor with a certified statement that no delinquent tax, interest, or penalty is unpaid. Immediate successors shall not rely upon oral statements from department personnel that no tax, interest, or penalty is unpaid. An immediate successor may request a certified statement from the department on forms provided by the department. (1) Prior to issuing a certified statement, the department may contact both the immediate successor and the licensee, retailer, or seller regarding the request for a certified statement from the department. (2) A certified statement provided by the department will be recognized by the department as valid as of the issuance of the statement. (3) A certified statement provided by the department is the preferred evidence that a purchase of a business or stock of goods was made in good faith and that no delinquent tax, interest, or penalty was due and paid. b. The immediate successor has taken in good faith a certified statement from the licensee, retailer, or seller that no delinquent tax, interest, or penalty is unpaid as of the date of purchase. (1) A “certified statement” from a licensee, retailer, or seller is a statement the truth of which is attested to before a notary public. A certified statement from a licensee, retailer, or seller will not be recognized by the department as valid unless it includes all of the following: 1. The name of the business being purchased or a description of the stock of goods being purchased. 2. The names of the licensee, retailer, or seller and the prospective purchaser(s). 3. The tax identification numbers of both the licensee, retailer, or seller and prospective purchaser(s). Entities shall include a federal employer identification number (FEIN). Individuals shall include a social security number (SSN) or individual tax identification number (ITIN). 4. An attestation signed by the licensee, retailer, or seller attesting that no delinquent tax, interest, or penalty of the retailer is unpaid as of the date of the closing of the sale. (2) A certified statement has been taken from a licensee, retailer, or seller “in good faith” if the immediate successor, in the exercise of due diligence, had no reason to believe a retailer’s statement was false or no reason to question the truth of the retailer’s statement. This rule is intended to implement Iowa Code sections 421.28 and 423.33.701—202.13(423) Officers and partners—personal liability for unpaid tax. If a retailer or purchaser fails to pay sales tax when due, any officer of a corporation or association, or any partner of a partnership, who has control of, supervision of, or the authority for remitting the sales tax payments and has a substantial legal or equitable interest in the ownership of the corporation or partnership is personally liable for payment of the tax, interest, and penalty if the failure to pay the tax is intentional. This personal liability is not applicable to sales tax due and unpaid on accounts receivable. The dissolution of a corporation, association, or partnership does not discharge a responsible person’s liability for failure to pay tax. 202.13(1) Personal liability—how determined. There are various criteria that can be used to determine which officers of a corporation have control of, supervision of, or the authority for remitting tax payments. Some criteria are: a. The duties of officers as outlined in the corporate bylaws. b. The duties that various officers have assumed in practice. c. Which officers are empowered to sign checks for the corporation. d. Which officers hire and fire employees. e. Which officers control the financial affairs of the corporation. (1) An officer in control of the financial affairs of a corporation may be characterized as one who has final control as to which of the corporation’s bills should or should not be paid and when bills that had been selected for payment will be paid. (2) “Final control” means a significant control over which bills should or should not be paid, rather than exclusive control. (3) The observations in paragraph 202.13(1)“e” are applicable to partnerships as well as corporations. 202.13(2) “Accounts receivable” described. Officers and partners are not responsible for sales tax due and owing on accounts receivable. An “account receivable” is a contractual obligation owing upon an open account. An “open account” is one that is neither finally settled nor finally closed but is still running and open to future payments or the assumption of future additional liabilities. The ordinary consumer installment contract is not an account receivable. The amount due has been finally settled and is not open to future adjustment. The usual consumer installment contract is a “note receivable” rather than an account receivable. An account receivable purchased by a factor or paid by a credit card company is, as of the date of purchase or payment, not an account receivable. An officer or partner will be liable for the value of the account receivable purchased or paid. Officers and partners have the burden of proving that tax is not due because it is a tax on an account receivable. This rule is intended to implement Iowa Code section 421.26.701—202.14(423) Sales tax or use tax paid to another state. 202.14(1) Equal or greater tax paid to another state. When a person has already paid to any other state of the United States a state sales, use, or occupational tax on specifically identified tangible personal property or taxable services on its sale or use, prior to bringing the property into Iowa, and the tax is equal to or greater than the current rate of tax imposed by the Iowa use tax law, no additional use tax is due to the state of Iowa by such person. 202.14(2) Less tax paid to another state. If the amount of tax already paid by such person to any other state of the United States on specifically identified tangible personal property or taxable services prior to bringing the property into Iowa is less than the current rate of tax imposed by Iowa law, use tax shall be due to the state of Iowa on the difference in tax paid to the foreign state and the tax due under the Iowa law. 202.14(3) Claiming exemption for tax paid. When a person claims exemption from payment of use tax on the grounds that the tax has already been paid to any other state of the United States with respect to the sale or use of the property or service in question prior to bringing the property into Iowa, the burden of proof is upon that person to show the department, county treasurer, or motor vehicle division of the Iowa department of transportation, by document, that the tax has been paid. 202.14(4) Credit not allowed against Iowa tax. Credits shall not be allowed for sales, use, or occupational tax already paid in any state of the United States against the Iowa use tax relating to the acquisition cost of property being brought into this state when such tax already paid was paid on the sales price of lease or rental payments of tangible personal property used in another state. This rule is intended to implement Iowa Code section 423.22.701—202.15(423) Registered retailers selling tangible personal property on a conditional sale contract basis. A retailer shall report and remit to the department the full amount of tax computed on the full sale price on the return for the tax period during which the sale was made. This rule is intended to implement Iowa Code sections 423.1 and 423.2.701—202.16(423) Registered vendors repossessing goods sold on a conditional sale contract basis. A registered retailer repossessing tangible personal property that has been sold on a conditional sale contract basis and remitting use tax to the department on the full purchase price may take a deduction on the retailer’s sales and use tax return for the tax period in which the goods were repossessed, in an amount equal to the credit allowed to the purchaser for the goods returned, if the retailer has returned use tax to the purchaser on the unpaid balance. This rule is intended to implement Iowa Code sections 423.1 and 423.2.ARC 7196CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to exemption certificates and providing an opportunity for public comment
The Revenue Department hereby proposes to amend Chapter 202, “Filing Returns and Payment of Tax,” and Chapter 204, “Rules Necessary to Implement the Streamlined Sales and Use Tax Agreement”; to adopt Chapter 209, “Exemption Certificates”; and to rescind Chapter 288, “Determination of a Sale and Sale Price,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.2, 423.3, 423.31, 423.45 and 423.51.Purpose and Summary The purpose of this proposed rulemaking is to adopt new rules 701—202.17(423) and 701—204.8(423), adopt new 701—Chapter 209, and rescind and reserve 701—Chapter 288. 701—Chapter 288 contained a number of rules that the Department has determined are either unnecessary, obsolete, or duplicative of statutory language and that should be rescinded. Further, the Department determined that rules on returned merchandise, freight and other transportation charges, and premiums and gifts were better suited to be included in 701—Chapters 202, 204, and 213, which align more with those rules’ subject matters. The Notice for 701—Chapter 204 (ARC 7146C, IAB 12/13/23) has already been published. The Notices for 701—Chapters 202 (ARC 7354C, IAB 12/27/23) and 213 (ARC 7375C, IAB 12/27/23) are published herein. Therefore, the rules that will be adopted and added to those chapters are included in this proposed rulemaking. Additionally, the Department determined that the rule that described the Department’s interpretation of the underlying statutes relating to the use of exemption certificates would be better suited in a chapter solely on that topic, so the Department proposes readopting and moving the rule into 701—Chapter 209, which was previously reserved, in order to provide easier accessibility to the public. The Department proposes revisions to the rule in order to provide for better organization and clarification and to remove unnecessary, obsolete, and duplicative statutory language. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m.Via video/conference call January 16, 2024 1 to 3 p.m.Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Adopt the following new rule 701—202.17(423):701—202.17(423) Returned merchandise. When merchandise is sold and returned by a customer who secures an allowance or a return of the full purchase price, the seller may deduct the amount allowed as full credit or refund, provided the merchandise is taxable merchandise and tax has been previously paid on the sales price. No allowance is to be made for the return of any merchandise that (1) is exempt from either sales or use tax, or (2) has not been reported in the taxpayer’s tax previously paid. This rule is intended to implement Iowa Code section 423.31. ITEM 2. Adopt the following new rule 701—204.8(423):701—204.8(423) Freight, other transportation charges, and exclusions from the exemption applicable to these services. The determination of whether freight and other transportation charges is subject to sales or use tax is dependent upon the terms of the sale agreement. 204.8(1) Charges separately stated. When tangible personal property or a taxable service is sold at retail in Iowa or purchased for use in Iowa and under the terms of the sale agreement the seller is to deliver the property to the buyer or the purchaser is responsible for delivery and such delivery charges are stated and agreed to in the sale agreement or the charges are separate from the sale agreement, the sales price of the freight or transportation charges is not subject to tax. This exemption does not apply to the service of transporting electrical energy or the service of transporting natural gas. 204.8(2) Charges not separately stated. When freight and other transportation charges are not separately stated in the sale agreement or are not separately sold, the sales price of the freight or transportation charges become a part of the sales price of the sale of tangible personal property or a taxable service and are subject to tax. Where a sales agreement exists, the freight and other transportation charges are subject to tax unless the freight and other transportation charges are separately contracted. If the written contract contains no provisions separately itemizing such a charge, tax is due on the full contract price with no deduction for transportation charge, regardless of whether or not such transportation charges are itemized separately on the invoice. 204.8(3) Exemption. The sales price from charges for delivery of electricity or natural gas are exempt from tax to the extent that the sales price from the sale, furnishing, or service of electricity or natural gas or its use are exempt from sales or use tax under Iowa Code chapter 423. The exclusions from this exemption relating to the transportation of natural gas and electricity are applicable to all contracts for the performance of these transportation services. Below are examples that explain some of the principal circumstances in which the transport of natural gas or electricity is a service subject to tax. 204.8(4) Applicable charges. Freight and transportation charges include, but are not limited to, the following charges or fees: freight, transportation, shipping, delivery, or trip charges. 204.8(5) Examples. This rule is intended to implement Iowa Code sections 423.2 and 423.3. ITEM 3. Adopt the following new 701—Chapter 209: CHAPTER 209EXEMPTION CERTIFICATES701—209.1(423) Exemption certificates. 209.1(1) General provisions. A valid exemption certificate, whether furnished by the department or a seller, must be fully completed, dated, and signed if a paper certificate is used. a. A fully completed exemption certificate must include the following information: (1) Name of both the purchaser and seller. (2) The purchaser’s address and type of business (e.g., retailer, manufacturer). (3) Reason for tax-exempt purchase (e.g., resale, processing). (4) When required, purchaser’s identification number, (examples include Iowa-issued sales and use tax permit, another state’s issued sales tax identification number, and Federal Employer Identification Number). b. Either a fully completed exemption certificate or capture of the data elements listed in paragraph 209.1(1)“a” must be obtained at the time of sale or within 90 days subsequent to the date of sale. c. Department-furnished exemption certificates are valid for up to three years. 209.1(2) Liability. The sales tax liability is on both the seller and purchaser; however, a seller is relieved of the liability if the seller obtains a fully completed exemption certificate or captures all the data elements listed in paragraph 209.1(1)“a.” a. If no exemption certificate or the data elements are obtained within 90 days of the sale, a seller obligated to collect tax from a purchaser is relieved of liability if the seller obtains a fully completed exemption certificate taken in good faith or provides proof the transaction was not subject to tax within 120 days of the department’s request for substantiation. b. No liability relief is available for sellers who do any of the listed activities in Iowa Code section 423.51(2). c. The purchase of tangible personal property, specified digital products, or services that are specifically exempt from tax under the Iowa Code need not be evidenced by an exemption certificate. However, if certificates are given to support these transactions, they do not relieve the purchaser of the responsibility for tax if at some later time the transaction is determined to be taxable. d. A person who is selling tangible personal property, specified digital products, or services, but who does not make any taxable sales at retail, is not required to hold a permit. When this person purchases tangible personal property, specified digital products, or services for resale, the person shall furnish a certificate in accordance with these rules to the supplier stating that the property or services was purchased for the purpose of resale. 209.1(3) Other acceptable forms. Purchasers may also use a Multistate Tax Commission’s Uniform Sales & Use Tax Resale Certificate, available at mtc.gov, or a Streamlined Sales Tax Agreement Certificate of Exemption, available on the department’s website or at streamlinedsalestax.org, as an alternative to a department-issued certificate. 209.1(4) Blanket certificates. Sellers and purchasers with a recurring business relationship, as described in Iowa Code section 423.51(3)“d,” may use blanket exemption certificates covering more than one transaction. This rule is intended to implement Iowa Code sections 423.45 and 423.51.701—209.2(423) Fuel exemption certificates. 209.2(1) Use of fuel exemption certificates. The use and acceptance of fuel exemption certificates must comply with Iowa Code section 423.45(5). For purposes of this subrule, terms mean the same as defined in Iowa Code section 423.45(5). 209.2(2) Necessary information. A fuel exemption certificate, as defined in Iowa Code section 423.45(5), must be dated and contain the following information, including, but not limited to: a. The seller’s name and address; b. The purchaser’s name and address; c. The type of fuel purchased, such as electricity or propane; d. Description of the purchaser’s business, such as farmer or manufacturer; e. A general description of the type of processing in which the fuel is consumer, such as grain drying, raising livestock, generating electricity, or the manufacture of tangible personal property; f. Claimed exemption percentage. 209.2(3) Additional documentation. The seller may demand from the purchaser additional documentation attached to the fuel exemption certificate, which is reasonably necessary to support the claim of exemption for fuel consumed in processing; however, additional documentation is not required under the circumstances listed in Iowa Code section 423.45(5)“f.” In the absence of separate metering, documentation reasonably necessary to support a claim for exemption must consist of either an electrical consultant’s survey or of a document prepared by the purchaser in accordance with the requirements of subrule 209.2(5). 209.2(4) Exemption determination. When the amount of the exemption is modified pursuant to Iowa Code section 423.45(5)“d,” a purchaser must notify the seller of any change in percentage. 209.2(5) Determining percentage of electricity used in processing. When electricity is purchased for consumption both for processing and for taxable uses, and the use of the electricity is recorded on a single meter, the purchaser must allocate the use of the electricity according to taxable and nontaxable consumption if an exemption for nontaxable use is to be claimed. The calculations that support the allocation, if properly performed, can serve as the documentation reasonably necessary to support a claim of exemption for fuel used in processing. The following method with its alternative table may be used to determine the percentage of electricity used on the farm or in a factory that is exempt by virtue of its being used in processing. Paragraph 209.2(5)“e” provides information on alternative methods of computing exempt use, including exempt use by a new business. First, the base period for the calculations must be selected. a. Ordinarily, the 12 months previous to the date upon which the exemption is calculated are used as the base period for determining the percentage of electricity exempt as used in processing. The immediately previous 12-month period is used because it is a span of time that is (1) recent enough to accurately reflect future electric usage; (2) extended enough to take into account variations in electrical usage resulting from changes in temperature occurring with the seasons; and (3) is not so long as to require unduly burdensome calculations. However, individual circumstances can dictate that a shorter or longer period than 12 months will be used or that some 12-month period other than that immediately previous to the date upon which the exemption certificate is filed, will be used. b. Calculating kilowatts used per hour by various electrical devices. The first step in computing the percentage of exemption is to determine the number of kilowatts used per hour for each device in the farm or factory. If kilowatts consumed per hour of a device’s use is not listed on the device or otherwise readily obtainable, formulas can be used to determine this information. (1) Lights. For incandescent bulbs, add rated wattages and divide by 1,000. For fluorescent lights, add rated wattages plus an additional 20 percent of rated wattages, then divide by 1,000.Incandescent Lights:Watts=Kilowatts Per Hour1,000Fluorescent and Other High Intensity Lights:Watts+.20 (Watts)=Kilowatts Per Hour1,000 (2) Devices other than lights. For these devices, use the wattage rating given by the manufacturer and divide by 1,000 to obtain approximate kilowatts used per hour of operation.Watts=Kilowatts Per Hour1,000If an appliance does not list a watt rating, tables provided by Iowa State University Cooperative Extension Service can be used especially by farmers who are attempting to compute their exempt percentage of electricity used. Persons using a table are reminded to convert watts to kilowatts before proceeding to further calculations. c. The average number of kilowatts consumed per hour of operation for any one device must next be multiplied by the total number of hours which the device is operated during the base period. A person may use intermediate calculations. (1) Example 1: Assume that a machine used in processing consumes 20 kilowatts per hour of operation. The machine is operated, during a 12-month base period, 40 hours per week during 50 weeks. The machine is not placed in operation when the factory is closed for two weeks’ vacation. Exempt use is calculated as follows: Kilowattsper hour× Hours operatedper week× Weeks operated in 12-monthperiod equals number of exempt kilowatt hoursIn this example, 20 x 40 x 50 = 40,000 exempt kilowatt hours. (2) Example 2: Assume that a grain dryer uses 30 kilowatts per hour of operation. During a 12-month base period, the grain dryer is used in processing 200 hours per month, for 3 months. The calculation for total number of kilowatt hours of exempt use for the 12-month period is as follows: Kilowattsper hour× Hours operatedper month× Number of months of exemptuse equals total number ofexempt kilowatt hoursIn this example, 30 x 200 x 3 = 18,000 exempt kilowatt hours. (3) Example: The following is a very simplified example of a worksheet for determining the percentage of electricity qualifying for exemption when a single meter records both exempt and taxable use. d. Example worksheet.The following is a simplified example of a worksheet for determining the percentage of electricity qualifying for exemption when a single meter records both exempt and taxable use. KilowattsPer Hour ofOperation Average Hoursof OperationPer 12-MonthBase Period AverageKilowatt Hours Per 12-MonthBase Period TotalAll Exempt Usage Production Machine #110100010000 Production Machine #210100010000 Other10100010000Total Exempt Usage30000(A)All Taxable Usage Air Conditioners10300030000 General Lighting10300030000 Office Equipment10300030000 Space Heaters10300030000 Other10300030000Total Taxable Usage150000(B)Total—All Usages180000(C) 30000orA=Percentage of Electricity Purchase Qualifying for Exemption=16.60%180000CThe number actually used in the base period can be determined by reference to billings for the base period. If the number of kilowatt hours calculated to have been used does not approximate the number actually used in the base period, the calculations are deficient and should be performed again. Once the precise percentage of exemption has been calculated, that percentage must be applied during any period for which a purchaser is requesting exemption. Any substantial and permanent change in the amount of electricity consumed or in the proportion of exempt and nonexempt use of electricity is an occasion for recomputing the exempt percentage and for filing a new exemption certificate. e. Alternative methods.The following are nonexclusive alternatives to the above method of determining the percentage of electricity, which is exempt because it is used in processing. (1) If currently only one meter exists to measure both exempt and nonexempt use of electricity, the most accurate method of determining exempt and nonexempt use may be separate metering of these two uses. This possibility is especially practical if all exempt use results from the activities of one machine, however large. (2) If separate metering is impossible or impractical, it may be useful to employ the services of an energy consultant. If using an energy consultant’s service is impractical, it may be possible to secure, from the manufacturer of a machine used in processing, the number of kilowatts that a machine uses per hour of operation. Often, these manufacturer’s studies give a more accurate measure of a machine’s use of electricity than the formulas set out in paragraph 209.2(5)“b” above. This circumstance is especially true with regard to large electric motors. (3) If a business is new, and no historical data exists for use in calculating exempt and nonexempt percentages of electricity or other fuel consumed, any person calculating future exempt use must make the best projections possible. If calculating future exempt use with no past historical data to serve as a basis for the calculations, it is suggested that conservative estimates of exempt use be made. Using these conservative estimates can avoid future liability for sales tax on the part of the purchaser of the electricity. Possibly, in calculating exempt use of fuel for a new business, historical data from existing similar businesses can be used if available from persons not in direct competition to the person claiming the exemption. The calculation and the exemption certificate must be updated once data from an accurate 12-month cycle, or other appropriate cycle, is available. 209.2(6) Applicability. The provisions of subrule 209.2(5) explaining the determination of the percentage exemption for electricity also apply to other types of fuel such as natural gas, LP, etc., when used for exempt purposes. This rule is intended to implement Iowa Code section 423.45.701—209.3(423) Special certificates of beer and wine wholesalers. Beer or wine purchased from a wholesaler holding a Class A or F permit has been purchased for resale if the purchaser provides the wholesaler with a retail beer or wine permit or liquor license number. A wholesaler’s record of account with an individual retailer is a complete and correct exemption certificate for the purposes of beer or wine sales and provides all the protection that the usual exemption certificate, as described in rule 701—209.1(423), provides if the record of account contains the retailer’s beer or wine permit or liquor license number and all other information concerning the account is taken in good faith by the wholesaler. For the purposes of this rule, the words “beer,” “permit,” “retailer,” “wholesaler,” and “wine” mean the same as defined in Iowa Code section 123.3. This rule is intended to implement Iowa Code section 423.45. ITEM 4. Rescind and reserve 701—Chapter 288.ARC 7197CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to purchases by businesses and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 210, “Purchases by Businesses,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 99F.10(6) and 423B.5.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.2 and 423.3.Purpose and Summary The purpose of this proposed rulemaking is to repromulgate Chapter 210. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. This chapter also includes rules that were previously in other chapters that the Department has determined are more closely related to the subject matter of this chapter. This chapter describes the Department’s interpretation of the underlying statute to help the public understand the taxability of purchases by businesses. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 10 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m.Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 210 and adopt the following new chapter in lieu thereof: CHAPTER 210PURCHASES BY BUSINESSES701—210.1(423) Wholesalers and jobbers selling at retail. Sales made by a wholesaler or jobber to a purchaser for use or consumption by the purchaser or in the purchaser’s business and not for resale are considered retail sales and subject to tax, even if sales are made at wholesale prices or in wholesale quantities. This rule is intended to implement Iowa Code section 423.2(1).701—210.2(423) Materials and supplies sold to retail stores. The sales price of materials and supplies sold to retail stores for their use and not for resale shall be subject to tax. The retail store is the final buyer and ultimate consumer of such items as fuel, cash registers, adding machines, typewriters, stationery, display fixtures and numerous other commodities that are not sold by the store to its customers. This rule is intended to implement Iowa Code section 423.2.701—210.3(423) Tangible personal property and specified digital products purchased for resale but incidentally consumed by the purchaser. A retailer engaged in the business of selling tangible personal property or specified digital products who takes merchandise from stock for personal use, consumption, or gifts shall report these items as “goods consumed” on the sales and use tax return and remit sales tax and any applicable local option sales tax on the purchase cost of the items. This rule does not authorize purchase for resale of items intended to be used by the retailer. This rule is intended to implement Iowa Code section 423.2.701—210.4(423) Property furnished without charge by employers to employees. When an employer furnishes tangible personal property, including meals, or specified digital products to employees without charge or uses merchandise for gifts or consumption, the cost to the employer of the tangible personal property or specified digital products shall be subject to sales tax and any applicable local option sales tax and reported on the employer’s return as “goods consumed” if the employer has not previously paid tax to a retailer. However, the food purchased by the employer for meals prepared for employees is not subject to tax. This rule is intended to implement Iowa Code section 423.2.701—210.5(423) Owners or operators of buildings. Owners or operators of buildings who purchase items to be used by them in maintaining the building are the users or consumers and shall pay sales tax to their suppliers. 210.5(1) When owners or operators of buildings remeter and bill their tenants for electric current, gas, or any other taxable service consumed by the tenants, such owners or operators shall be considered to be purchasing the electric current, gas, or other taxable service for resale. These owners or operators shall hold permits and shall be liable for the tax upon the sales price of the sale of such service. When the building owners or operators purchase all of the electric current, gas, or other services for resale and consume a portion in the operation of the building, they shall be liable for sales tax on that portion consumed, based upon the cost of the electric current or gas purchased for resale. 210.5(2) When the management of a building sells heat to other buildings or other persons and charges for such service as a sale of heat, such transactions are considered sales at retail and shall be subject to tax. 210.5(3) When heat is furnished to tenants as a service to them, incidental to the renting of the space, there shall be no tax. When heat is sold separately and billed to the tenants separately, such service shall be taxable. 210.5(4) When a building manager makes sales of tangible personal property, specified digital products, or taxable services at retail, the manager shall be required to procure a permit and collect and remit tax. This rule is intended to implement Iowa Code section 423.2.701—210.6(423) Blacksmith and machine shops. When a blacksmith or machine shop operator fabricates finished tangible personal property from raw materials and sells such property at retail, tax shall apply on the total charge, which includes the fabrication labor. Rule 701—211.28(423) contains information on the taxable service of machine operation. This rule is intended to implement Iowa Code section 423.2.701—210.7(423) Truckers engaged in retail business. Truckers or haulers engaged in the sale of tangible personal property to ultimate users or consumers shall be deemed as making taxable sales. This rule is intended to implement Iowa Code section 423.2.701—210.8(423) Out-of-state truckers selling at retail in Iowa. Truckers or persons engaged in the sale of tangible personal property at retail in Iowa based outside of Iowa by means of hauling the tangible personal property into the state shall collect and remit Iowa sales tax. To ensure the remission of tax on Iowa sales, the department has the statutory authority to require a bond deposit from sellers classified in this rule. This right shall be exercised when necessary. This rule is intended to implement Iowa Code section 423.2.701—210.9(423) Iowa dental laboratories. 210.9(1) Sales by dental laboratories. Iowa dental laboratories are engaged in selling tangible personal property to Iowa dentists. Such laboratories shall hold a retail sales tax permit and collect and report all tax due from dentists in all transactions involving taxable retail sales. 210.9(2) Purchases not subject to tax. Iowa dental laboratories shall not be subject to tax on those purchases of tangible personal property that form a component or integral part of new work or repair work being furnished to Iowa dentists or other dentists or would be exempt if purchased directly by the dentist’s patient. 210.9(3) Purchases subject to tax. Iowa dental laboratories are the final user or consumer of all tangible personal property, including tools, office supplies, equipment, and any other tangible personal property not otherwise exempt. Sales tax shall be remitted to its Iowa supplier when purchasing in this state, and use tax shall be remitted directly to the department when such items are purchased from out-of-state suppliers, unless the out-of-state supplier is registered with the department and collects sales or use tax for the state. This rule is intended to implement Iowa Code sections 423.2 and 423.33.701—210.10(423) Dental supply houses. Dental supply houses are engaged in selling tangible personal property to dentists and dental laboratories. Such dental supply houses shall collect and report all tax due from purchasers in all transactions involving taxable retail sales. This shall not include sales of tangible personal property that will form a component or integral part of new work or repair work being furnished to Iowa dentists or other dentists or would be exempt if sold directly to an individual. This rule is intended to implement Iowa Code section 423.2.701—210.11(423) News distributors and magazine distributors. News distributors and magazine distributors engaged in intrastate sales of magazines and periodicals in Iowa to vendors that are engaged in part-time distribution of such magazines are deemed to be making sales at retail. The sales price of such sales shall be subject to sales tax. This rule is intended to implement Iowa Code section 423.2.701—210.12(423) Magazine subscriptions by independent dealers. The sales price of the sale of subscription magazines or periodicals derived by independent distributors or dealers in the state of Iowa that secure such subscriptions as independent dealers or distributors shall be subject to tax. This rule is intended to implement Iowa Code section 423.2.701—210.13(423) Sales by finance companies. A finance company that repossesses or acquires tangible personal property or specified digital products in connection with its finance business and sells tangible personal property or specified digital products at retail in Iowa shall be required to hold a permit and remit the current rate of tax on the sales price of such sales at retail in Iowa. This rule is intended to implement Iowa Code section 423.2.701—210.14(423) Bowling. 210.14(1) Pinsetters. The rental of automatic pinsetters by bowling alley operators is subject to the imposition of sales tax since the pinsetters are not resold to patrons. Therefore, the operator of the alley is considered the consumer of the pinsetter rental. 210.14(2) Shoes. The rental of bowling shoes is subject to the imposition of sales tax as equipment rental. 210.14(3) Score sheets. The sales of bowling score sheets to operators of bowling establishments are subject to the imposition of sales tax since the operators are the consumers of such score sheets. This rule is intended to implement Iowa Code section 423.2.701—210.15(423) Various special problems relating to public utilities. 210.15(1) Late payment charges. The amount of any charge, commonly called a “late payment charge,” imposed by a public utility on its customers shall not be subject to tax if the charge is in addition to any charge for the utility’s sale of its commodity or service and is imposed solely for the privilege of deferring payment of the purchase price of the commodity or service and furthermore is separately stated and reasonable in amount. 210.15(2) Due dates. The date of the billing of charges for a public utility’s sales shall be used to determine the period in which the utility shall remit tax upon the amount charged. The utility shall remit tax upon the sales price of any bill during the period that includes the billing date. Thus, if the date of a billing is March 31 and the due date for payment of the bill without penalty is April 20, tax upon the sales price contained in the bill shall be included in the return for the first quarter of the year. The same principle shall be used to determine when tax will be included in payment of a deposit. 210.15(3) Franchise fees. In general, the amount of any franchise fee that a public utility pays to a city for the privilege of operating and that is directly or indirectly passed on to the utility’s customers shall be included in sales price subject to tax. This will be true even if the amount of the franchise fee is computed as a percentage of other sales price subject to tax and is separately stated and separately charged to the immediate consumer of the commodity or service. However, if, in the future, it becomes lawful for a city to impose a sales or use tax and such tax is imposed upon the customers of public utilities in the guise of a franchise fee, the amount of this city excise tax shall not be subject to Iowa tax if the tax imposed by the city is separately stated and separately billed. This rule is intended to implement Iowa Code section 423.2(2).701—210.16() Reserved. 701—210.17(423) Communication services furnished by hotel to its guests. When a hotel purchases telephone communication services from telephone companies and furnishes those services to guests, tax shall apply to the entire charge that the hotel makes to its guests for such communication service, regardless of whether a guest’s calls are local or long-distance within the state. However, the hotel would purchase any communication service that it furnishes for a charge to a guest exempt from tax as a service purchased for subsequent resale. This rule is intended to implement Iowa Code section 423.2(2).701—210.18(423) Explosives used in mines, quarries and elsewhere. A person engaged in the business of selling explosives to miners, quarries or others shall be subject to sales tax on the sales price from the sale of such property at retail in Iowa. The purchaser shall be liable for use tax upon all purchases for use in Iowa not subject to sales tax. This rule is intended to implement Iowa Code sections 423.2(1) and 423.5(1).701—210.19(423) Sales of signs at retail. A person engaged in selling illuminated signs, bulletins, or other stationary signs (whether manufactured by that person or by others) to users or consumers is selling tangible personal property at retail. The sales price shall be taxable, even when the sales price of the sign includes a charge for maintenance or repair service in addition to the charge for the sign. This rule is intended to implement Iowa Code sections 423.2(1) and 423.5(1).701—210.20(423) Sale, transfer or exchange of tangible personal property or taxable enumerated services between affiliated corporations. The sales price of the sale, transfer or exchange of tangible personal property or taxable services among affiliated corporations, including but not limited to a parent corporation to a subsidiary corporation, for a consideration is subject to tax. A bookkeeping entry for an “account payable” qualifies as consideration as well as the actual exchange of money or its equivalent. This rule is intended to implement Iowa Code section 423.1(50).701—210.21(423) Mergers that do not involve taxable sales of tangible personal property or services. If title to or possession of tangible personal property or ownership of services is transferred from one business to another pursuant to a statutory merger, the transfer is not a “sale” in which the sales price is subject to tax if all of the following circumstances exist: (1) the merger is pursuant to statute; (2) by the terms of that statute, the title or possession of property or services transferred passes from a merging business to a surviving business and not for any consideration; and (3) the merging business is extinguished and dissolved the moment the merger occurs and, as a result of this dissolution, cannot receive any benefit from the merger.701—210.22(422,423) Railroad rolling stock. Railroad rolling stock is that portion of railroad property that is incapable of being affixed or annexed on any one place but is wholly intended for movement on rails to transport persons or property whether for hire or not for hire and includes materials and parts used therefor. Locomotives, railroad cars, and materials and parts used therefore shall be exempt from tax. This exemption includes maintenance-of-way equipment that is used to transport persons or property. Also, fuel and lubricants used in railroad rolling stock are materials used in railroad rolling stock and their sales are exempt from tax. Enumerated services are not railroad rolling stock and are not exempt from tax. This rule is intended to implement Iowa Code section 423.3(71).ARC 7198CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to taxable services and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 211, “Taxable Services,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.2, 423.3 and 423.36.Purpose and Summary The purpose of this proposed rulemaking is to rescind Chapter 211 and adopt a new Chapter 211. The Department proposes amendments to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. The chapter describes the Department’s interpretation of the underlying statute to help the public understand the taxability of services. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 211 and adopt the following new chapter in lieu thereof: CHAPTER 211TAXABLE SERVICES701—211.1(423) Definitions and scope. 211.1(1) Definitions. For purposes of this chapter: "Persons engaged in the business of" means persons who offer the named service or services to the public or others in exchange for consideration, regardless of whether such person offers the service or services continuously, part-time, seasonally, or for short periods. "Repair" includes the mending or renovation of existing parts and the replacement of defective parts or subassemblies. Repair does not include the installation of new parts or accessories that are not replacements. "Specified digital products" means the same as defined in Iowa Code section 423.1. 211.1(2) Scope. Iowa imposes tax upon the sales price of rendering, furnishing, or performing at retail services listed in Iowa Code section 423.2(6). Some of these services are described in more detail in this chapter. This rule is intended to implement Iowa Code section 423.2.701—211.2(423) Services purchased for resale. Services purchased for resale are not subject to sales tax. A service is purchased for resale when it is subcontracted by the person contracted to perform the service. Tax imposed on services is collectible at the time the service is complete even if the services are not purchased by the ultimate beneficiary. This rule is intended to implement Iowa Code section 423.3(2). 701—211.3(423) Fur storage and repair. 211.3(1) In general. Persons engaged in the business of storing fur for preservation and future use and refurbishing, repairing, and renovating fur, including the addition of new skins and furs, are selling a service subject to sales tax. 211.3(2) Definition. For purposes of this rule: "Fur" includes both natural fur and synthetic products resembling fur. This rule is intended to implement Iowa Code section 423.2(6)“u.”701—211.4(423) Investment counseling. Persons engaged in the business of counseling others relative to investment in or on the disposition of property or rights, whether real, personal, tangible, or intangible, and who charge for that counseling, are selling a service subject to sales tax. This includes investment counseling rendered, furnished, or performed by a trust department. This rule is intended to implement Iowa Code section 423.2(6)“e.”701—211.5(423) Bank and financial institution service charges. 211.5(1) In general. The service charges imposed by financial institutions relating to a depositor’s checking account are subject to sales tax. If the same service is performed by a financial institution relating to an account that does not qualify as a checking account, the service charge imposed by the financial institution is not subject to sales tax. 211.5(2) Definitions. For purposes of this rule: "Bank" means an institution empowered to do all banking business, including issue negotiable notes, discount notes, receive deposits payable on demand, and buy and sell bills of exchange. Savings and loan associations and other financial institutions not commonly considered to be banks do not fall within the meaning of a bank. "Checking account" means an account on which withdrawals may be made from the account via a written instrument, including but not limited to a check, draft, or negotiable order of withdrawal (NOW). Whether or not an account pays interest does not determine whether an account qualifies as a checking account. The term “checking account” is characterized by its general meaning rather than a technical definition, and other types of accounts, not described in this rule, may qualify as checking accounts. Certificates of deposits do not qualify as checking accounts. "Financial institutions" means the same as defined in Iowa Code section 423.2(6)“f.” 211.5(3) Checking account charges. All charges relating to a checking account are subject to sales tax, including but not limited to charges for the following: a. Withdrawals made by check or bank card. b. Nonproprietary automatic teller machine (ATM) transactions. c. Transferring funds from one account to another (if billed to a checking account). d. Stop payment. e. Debit card replacement. f. Copy and research. g. Bill payment. h. Returned deposit items. i. Issuance of a certified check, drawn from a particular account. 211.5(4) Other service charges. Service charges not usually subject to sales tax by virtue of having no relationship to checking accounts include but are not limited to: a. Safety deposit box rentals. b. Mortgage and loans. c. Trust department fees for probating estates, administering trusts, administering agency accounts, administering pension and profit-sharing plans, serving as stock transfer agents or registrars, serving as farm managers, and fees or commissions charged to customers for handling security transactions. Some of these services may qualify as investment counseling and may be subject to sales tax. d. Real estate appraisals. e. Servicing real estate loans. f. Contract collection and collection not related to the maintenance of a checking account. g. Special lockbox handling. h. Finance charges, including those for credit cards. i. Escrow agent. j. Safekeeping, handling and cashing coupons or certificates kept in a bank’s possession. k. Penalties on early withdrawal for saving certificates. l. Purchasing or selling securities for customers, unless used as a disguise for investment counseling fees. m. Real estate collection exchange, including collecting and transferring mortgage payments. n. Traveler’s or a similar type of check, bank cashier’s checks, bank drafts, or money orders with no relation to a customer’s checking account. o. Check exchanges. p. Noncustomer point of sale or ATM access fees or service charges. 211.5(5) Exceptions. Fees charged to a checking account depositor for a depositor’s failure to adhere to contractual obligations with a bank or financial institution are not subject to sales tax. These charges, such as fees for overdrafts or returned checks, are penalties rather than service charges. Bank service charges that are never assessed against the expense of maintaining a checking account are not subject to sales tax. This rule is intended to implement Iowa Code section 423.2(6)“f.”701—211.6(423) Barber and beauty. 211.6(1) In general. Persons engaged in the business of barbering and beauty are selling a service subject to sales tax. 211.6(2) Definitions. For purposes of this rule: "Barbering" means the same as defined in Iowa Code section 158.1. "Barbershop" means the same as defined in Iowa Code section 158.1. "Beauty" means the same as “cosmetology” and “esthetics” as those terms are defined in Iowa Code section 157.1. 211.6(3) Sales tax permits. a. Each barber, beauty or other beautification shop or establishment shall receive only one permit and remit tax as one enterprise when operated under a common management. b. When an operator leases space and is an independent operator, the lessee shall notify the department and secure a sales tax permit whereby the lessee will be responsible directly for the sales tax due. In order to be considered independent, the lessee must also be independent from the lessor for the purposes of withholding income tax, unemployment compensation, and social security taxes. 211.6(4) Leasing. The lessor who has leased a part of the premises shall report to the department the names and addresses of all lessees. If the lessor is accounting for the lessee’s sales, the lessor shall, after the name of each lessee, show the amount of net taxable sales made by the lessee on each report to the department and which net taxable sales are included in the lessor’s return. Rule 701—288.11(423) contains more information. This rule is intended to implement Iowa Code sections 423.2(6)“g” and 423.36.701—211.7(423) Photography and retouching. 211.7(1) Definitions. For purposes of this rule: "Photography" means the art or process of capturing or producing still or moving images, films, or videos using any device designed to record or capture images, film, or video. Taxable sales associated with photography services include but are not limited to sitting or photoshoot fees and fees relating to taking or producing photographs or videos, including editing. "Retouching" means the alteration, restoration, or renovation of a picture, film, video, image, artwork, likeness, or design. 211.7(2) In general. The sales price of photography services and retouching services are taxable regardless of whether the service results in the production of tangible personal property or specified digital products. A deduction shall not be allowed for the expenses incurred by the photographer, such as rental of equipment or salaries or wages paid to assistants or models, whether or not the expenses are itemized in billings to customers. 211.7(3) Tax shall not apply to the sales price of tangible personal property to photographers and photostat producers that becomes an ingredient or component part of photographs or photostat copies sold, such as mounts, frames and sensitized paper; but tax shall apply to the sales price of materials to photographers or producers that is used in the processing of photographs or photostat copies. 211.7(4) Sourcing. More information about how various aspects of photography services may be sourced is available in 701—subrule 205.2(1). This rule is intended to implement Iowa Code section 423.2(6)“bo” and “bp.”701—211.8(423) Household appliance, television, and radio repair. 211.8(1) In general. Persons engaged in the business of repairing household appliances, television sets, or radio sets are selling a service subject to sales tax. 211.8(2) Definition. For purposes of this rule: "Household appliances" includes all mechanical devices normally used in the home, whether or not the appliances are actually used in the home. This rule is intended to implement Iowa Code section 423.2(6)“y.”701—211.9(423) Machine operators. 211.9(1) In general. Persons engaged in the business of operating machines of all kinds that belong to other persons and charge a fee for operating are selling a service subject to sales tax. Operation of the machine must be the central function of the service being performed and not incidental to the performance of the service the operator was hired to perform. 211.9(2) Definitions. For purposes of this rule: "Machine" includes but is not limited to typewriters, computers, calculators, cash registers, and manufacturing machinery and equipment. “Machine” does not include telephones, automobiles, or airplanes. "Machine operator" is a person who manages, controls, and conducts a mechanical device or a combination of mechanical powers and devices used to perform a function and produce a certain result or effect. 211.9(3) Machine operators as employees. The services of a machine operator are not subject to sales tax if the operation of machinery is by an employee directly for an employer. Rule 701—211.3(423) contains information about services performed by an employee for an employer. This rule is intended to implement Iowa Code section 423.2(6)“ad.”701—211.10(423) Machine repair of all kinds. 211.10(1) In general. Persons engaged in the business of repairing machines of all kinds are selling a service subject to sales tax. 211.10(2) Definition. For purposes of this rule: "Machine" means a mechanical device or combination of mechanical powers and devices used to perform some function and produce a certain result or effect. Machines include devices that have moving parts, are operated by hand, and are powered by a motor, engine, or other form of energy. 211.10(3) Musical instruments. For purposes of this rule, a musical instrument does not constitute a machine. This rule is intended to implement Iowa Code section 423.2(6)“ae.”701—211.11(423) Oilers and lubricators. 211.11(1) In general. Persons engaged in the business of oiling, changing oil in, lubricating, or greasing vehicles and machines of all types are selling a service subject to sales tax. 211.11(2) Definition. For purposes of this rule: "Machine" includes those items with moving parts or powered by a motor or engine or other form of energy. “Machine” also includes heavy equipment vehicles or implements, whether such equipment functions in a state of rest or a state of motion. This rule is intended to implement Iowa Code section 423.2(6)“ah.”701—211.12(423) Parking facilities. 211.12(1) In general. Persons engaged in the business of operating a parking facility for a fee are selling a service subject to sales tax. 211.12(2) Definition. For purposes of this rule: "Parking facility" means any place that is used for parking a vehicle for consideration. It is irrelevant whether the charge is by the hour, day, month, or any other period of time. This rule is intended to implement Iowa Code section 423.2(6)“ak.”701—211.13(423) Private employment agency, executive search agency. 211.13(1) In general. Private employment agencies engaged in the business of providing listings of available employment, counseling others with respect to future employment, or aiding another in any way to procure employment are selling a service subject to sales tax, regardless of whether the service is rendered for a prospective employer or prospective employee. 211.13(2) Principal place of employment outside of Iowa. Services rendered by private employment agencies that place a person and where the person’s principal place of employment is outside of Iowa are not subject to Iowa sales tax. For purposes of this rule, “principal place of employment” means the primary work location of the employee. 211.13(3) Executive search agencies. Executive search agencies that are engaged in the business of securing employment for top-level management positions are selling a service subject to sales tax, regardless of whether the executive search agency is licensed under Iowa Code chapter 94A or not. Executive search agencies’ services performed in Iowa are subject to Iowa sales tax regardless of whether the principal place of employment for the person the agency placed into employment is located within Iowa. 211.13(4) Private employment versus executive search agencies. To determine if an agency is an executive search agency or a private employment agency, the following nonexhaustive lists of elements may be used to distinguish the two. a. Private employment agency: (1) All levels of jobs in an organization. All salary levels. (2) Large number of clients at all times. Both possible employers and employees. (3) Individual’s résumé circulated to many possible employers. (4) No extensive analysis of the position or the individual. (5) Normally does not make travel arrangements for interviews, does not conduct salary negotiations, does not perform detailed follow-up studies. (6) Paid by either the company or the job seeker. (7) Paid on a contingent-fee basis. Paid only if a referred person is hired. (8) Does engage in general advertising of available positions. (9) Overall placement of an individual is not as extensive or sophisticated. b. Executive search agency: (1) Top-level management positions. (2) Serve only a few clients at one time. Employers only. (3) Send information regarding one individual to one possible employer only. Résumés never circulated to other possible employers. (4) Extensive analysis of the position to be filled. Extensive analysis of the individuals who are candidates. Preparation of detailed professional assessment of strengths and weaknesses of individuals. (5) Make travel arrangements for interviews, conduct salary negotiations, perform follow-up studies. (6) Only paid by the company seeking the employee. (7) Paid on retainer or by an hourly charge or by contract. Paid whether or not an individual is hired. (8) Does not advertise available positions. (9) Overall placement of an individual requires extensive and sophisticated analysis of position and individual. This rule is intended to implement Iowa Code section 423.2(6)“ap” and “aq.”701—211.14(423) Storage of household goods and mini-storage. 211.14(1) In general. The sales price from the sale of the storage of household goods and mini-storage are subject to sales and use tax. 211.14(2) Definitions. For purposes of this rule: "Household goods" means tangible personal property ordinarily located in a person’s residence that is not inventory. "Mini-storage" means a commercial operation that provides individual storage units of various sizes to persons for the purpose of storing tangible personal property. “Mini-storage” includes a secured area in which vehicles, boats, recreational vehicles, camping trailers and other types of tangible personal property can be stored. “Mini-storage” is taxable, regardless of whether the buyer or the seller provides particular security measures including but not limited to locks, fences, gates, security cameras, or password-protected entrances. “Mini-storage” is taxable regardless of whether the buyer has sole access to the unit. “Mini-storage” does not include storage lockers, storage units, or garages at apartment complexes for the primary convenience of the tenant if such lockers, units, or garages are part of the nonitemized price of an apartment rental. Mini-storage space is not a warehouse. Rule 701—214.21(423) contains provisions on warehousing of raw agricultural products. This rule is intended to implement Iowa Code section 423.2(6)“ax.”701—211.15(423) Test laboratories. 211.15(1) In general. Persons engaged in the business of providing laboratory testing of any substance for any experimental, scientific, or commercial purpose are selling a service subject to sales tax. “Test laboratories” includes but is not limited to mobile testing laboratories and field testing by test laboratories. 211.15(2) Exempt testing services. Test laboratory services performed on humans and animals and environmental testing services are not taxable. “Environmental testing services” includes but is not limited to the physical and chemical analysis of soil, water, wastewater, air, or solid waste performed in order to ascertain the presence of environmental contamination or degradation. 211.15(3) Nonprofit blood centers. Test laboratory services rendered, furnished, or performed for a nonprofit blood center registered by the federal Food and Drug Administration are exempt when the services are directly and primarily used in the processing of human blood. This rule is intended to implement Iowa Code sections 423.2(6)“bc,”423.3(102), and 423.3(26A).701—211.16(423) Termite, bug, roach, and pest eradicators. 211.16(1) In general. Persons engaged in the business of eradicating, controlling, or preventing the infestation by termites, insects, roaches, and all other living pests, by spraying or other means, are selling a service subject to sales tax. This includes persons who eradicate, prevent, or control pest infestations in farmhouses, outbuildings, and other structures, such as grain bins, used in agricultural production. 211.16(2) Spraying of cropland exempt. This rule does not include those persons who are engaged in the business of spraying cropland used in agricultural production to eradicate or prevent the infestation by pests of the cropland. The service of spraying cropland is exempt. This rule is intended to implement Iowa Code sections 423.2(6)“bd” and 423.3(5).701—211.17(423) Turkish baths, massage, and reducing salons. 211.17(1) In general. Persons engaged in the business of operating Turkish baths, massage, and reducing salons are selling a service subject to sales tax. This includes persons engaged in the business of operating a health studio which, as a part of its operation, offers any services of Turkish baths, massage, or reducing facilities or programs. The sales price of those services is subject to sales tax. 211.17(2) Definitions. For purposes of this rule: "Massage" means the kneading, rubbing, or manipulation of the body to condition the body. “Massage” does not include any body manipulation undertaken and incidental to the practice of one or more of the healing arts or those provided by massage therapists licensed under Iowa Code chapter 152C. "Reducing salons" means any type of establishment that offers facilities or a program of activities for the purpose of weight reduction. "Turkish baths" means any type of facility where an individual is warmed by steam or dry heat. This rule is intended to implement Iowa Code section 423.2(6)“bg.”701—211.18(423) Wrapping, packing, and packaging of merchandise other than processed meat, fish, fowl, and vegetables. Persons engaged in the business of wrapping, packing, and packaging of merchandise other than processed meat, fish, fowl, and vegetables are selling a service subject to sales tax. A person who provides a service described in this rule incidental to the sale of such items without charging separately for the service does not need to collect or remit tax. 701—Chapter 206 contains additional information on bundled transactions. This rule is intended to implement Iowa Code section 423.2(6)“bl.”701—211.19(423) Wrecking service. 211.19(1) In general. Persons engaged in the business of wrecking are selling a service subject to sales tax. 211.19(2) Definition. For purposes of this rule: "Wrecking" includes defacing or demolishing tangible personal or real property or any part thereof. This rule is intended to implement Iowa Code section 423.2(6)“bm.”701—211.20(423) Cable and pay television. 211.20(1) In general. Persons engaged in the business of distributing the signals of one or more television broadcasting stations or other television programming to subscribers and using any transmission path, including but not limited to cable, satellite, streaming video, video on-demand, or pay-per-view, for those signals are selling a service subject to sales tax. The sales price for the rental of any device used to decode or receive television broadcasting signals from a communications satellite is also subject to sales tax. 211.20(2) Signals to exhibitors. Any person distributing or providing signals to exhibitors on screens in auditoriums or other buildings that show sporting or other events are selling a service subject to sales tax. 211.20(3) Applicability. This rule applies to the transmissions of single events and subscriptions and to television services that serve fewer than 50 subscribers or are serving only customers located in one or more multiple unit dwellings that are under common ownership, control, or management. This rule is intended to implement Iowa Code section 423.2(6)“al.”701—211.21(423) Camera repair. 211.21(1) In general. Persons engaged in the business of camera repair are selling a service subject to sales tax. 211.21(2) Definition. For purposes of this rule: "Camera repair" includes the repair of any still photograph, motion picture, video, digital, or television camera. “Camera repair” includes the repair of any part of a camera considered to be a part of a camera that may be detached from the camera body but can only be used with a camera. Examples of such accessories include but are not limited to detachable lenses, flash units, and motor drives. “Camera repair” does not include the repair of cameras that are built into a cell phone or computer. This rule is intended to implement Iowa Code section 423.2(6)“w.”701—211.22(423) Gun repair. 211.22(1) In general. Persons engaged in the business of repairing guns are selling a service subject to sales tax. 211.22(2) Definition. For purposes of this rule: "Gun repair" means the repair of any pistol, revolver or other hand gun, as well as the repair of any shoulder or hip-fired gun such as a rifle or shotgun. This rule is intended to implement Iowa Code section 423.2(6)“w.”701—211.23(423) Janitorial and building maintenance or cleaning. 211.23(1) In general. Persons engaged in the business of performing one or a number of janitorial services and building maintenance or cleaning are selling a service subject to sales tax. 211.23(2) Definitions. For purposes of this rule: "Building maintenance or cleaning" includes but is not limited to the cleaning of exterior walls or windows of any building and any other act performed upon the exterior of a building with the intent to keep it in good condition or upkeep. "Janitorial services" means the type of cleaning services performed by a janitor in the regular course of duty. These services may be performed individually under a separate contract or included within a general contract to perform a combination of such services. These services may include but are not limited to interior window washing, floor cleaning, vacuuming, waxing, cleaning of interior walls and woodwork, cleaning of restrooms and furnaces, and the movement of furniture or other personal property within a building. 211.23(3) Exempt services. a. Janitorial services performed in a private residence, including apartment or multiple housing units, and paid for by the occupant of the residence are exempt from sales tax. b. Repairs and any service performed upon the exterior of a building that is a private residence and paid for by an occupant of the building are excluded from the meaning of “building maintenance or cleaning.” However, these services may be taxable under a construction-related enumerated service, described in rule 701—219.13(423). c. Janitorial services and building maintenance or cleaning performed on or in connection with new construction, reconstruction, alteration, expansion or remodeling of a structure are exempt from tax. This rule is intended to implement Iowa Code section 423.2(6)“z.”701—211.24(423) Lawn care, landscaping, and tree trimming and removal. 211.24(1) Lawn care. a. In general.Persons engaged in the business of lawn care are selling a service subject to sales tax. Lawn care is a taxable service regardless of the age of the person performing the service. Lawn care services performed on properties including but not limited to cemetery grounds, golf courses, parks, and residential or commercial properties containing one or more buildings or structures are subject to sales tax. b. Definitions.For purposes of this rule: "Landscaping" includes services related to the arrangement and modification of a given parcel or tract of land so as to render the land suitable for public or private use or enjoyment. "Lawn" means an open space between woods or ground that is covered with grass and is generally kept mowed or required to be kept mowed. "Lawn care" includes but is not limited to services related to mowing, trimming, watering, fertilizing, reseeding, resodding, and the killing of weeds, fungi, vermin, and insects that may threaten a lawn. c. Not taxable.The mowing of grass within a ditch is not a taxable service. 211.24(2) Landscaping. a. In general.Persons engaged in the business of landscaping are selling a service subject to sales tax. b. Landscape architects.Services that require licensure as a “landscape architect” pursuant to Iowa Code section 544B.2 are not subject to sales tax under this rule if those services are performed by a licensed landscape architect, are separately stated, and are separately billed as a charge for landscape architecture. c. Exempt.Landscaping services performed on or in connection to new construction, reconstruction, alteration, expansion, or the remodeling of real property are not subject to sales tax. 701—Chapter 219 contains additional information on new construction, reconstruction, alteration, expansion, and the remodeling of real property. d. Landscaping materials.The gross receipts from the sale of sod, dirt, trees, shrubbery, bulbs, sand, rock, wood chips and other similar landscaping materials, when used for landscaping and sold to final consumers, shall be subject to sales tax. For the purpose of this rule, “final consumer” ordinarily means the owner of the land to which the landscaping materials are applied, or a general building contractor when the landscaping contractor contracts with the general building contractor. When a landscaping contractor uses materials to fulfill a contract, the landscape contractor is considered the retailer of the landscaping materials and shall be obligated to collect sales tax on the selling price from the final consumer.When the retailer of sod, dirt, trees, shrubbery, bulbs, sand, rock, wood chips and other similar landscaping materials installs these items as a part of a contract for landscaping or improving land for a lump sum, the entire gross receipts shall be subject to tax. Any retailer’s charges for “landscaping” shall be taxable. However, a retailer’s charges for nontaxable services are not taxable if contracted for separately, or, if no written contract exists, the charges are itemized separately on the invoice.The gross receipts from the sale of uncut sod and unexcavated trees, shrubs, and rock shall not be subject to sales or use tax. This is considered a sale of intangible property and not the sale of tangible personal property.This rule does not apply to the gross receipts from the sale of plants and trees that are eligible for purchase with food coupons under rule 701—220.2(422,423). 211.24(3) Tree trimming and removal. a. In general.Persons engaged in the business of tree trimming, tree removal, and stump removal are selling a service subject to sales tax. This includes but is not limited to removal of any portion of a tree, including branches or a trunk. b. Shrubs with woody stems or trunks.For purposes of this rule, tree trimming and tree removal include the trimming or removal of any shrub that has a woody main stem or trunk with branches. c. Sale of cut wood.Persons engaged in the business of tree trimming and tree removal who cut wood from the trees that they trim or remove into sizes suitable for sale as firewood and sell the wood as firewood are engaged in the sale of tangible personal property. The tree trimming or removal is not a sale for resale. The sales price from the sale of this wood is subject to sales tax. This rule is intended to implement Iowa Code sections 422.42, 422.45(12), 423.1, and 423.2(6)“ab.”701—211.25(423) Pet grooming. 211.25(1) In general. Persons engaged in the business of pet grooming are selling a service subject to sales tax. This includes persons who are not veterinarians and groom dogs. 211.25(2) Definitions. For purposes of this rule: "Pet" means any animal that has been tamed or gentled and is kept by its owner for pleasure or affection, rather than for utility or profit. Service animals or assistance animals as defined in Iowa Code section 216.8B and livestock are not considered pets. "Pet grooming" includes any act performed to maintain or improve the appearance of a pet. This includes but is not limited to washing, combing, currying, hair cutting, and nail clipping, regardless of whether the person performing the act is a veterinarian. 211.25(3) Veterinary pet grooming. 701—Chapter 206 contains more information on bundled transactions to aid in determining the taxability of pet grooming when it is completed for both veterinary and cosmetic reasons. 211.25(4) Livestock showing. Services related to the pet grooming of livestock, including but not limited to the preparation of livestock for exhibition at fairs or shows, are exempt from tax. This rule is intended to implement Iowa Code section 423.2(6)“am.”701—211.26(423) Reflexology. 211.26(1) In general. Persons engaged in the business of reflexology are selling a service subject to sales tax. 211.26(2) Definition. For purposes of this rule: "Reflexology" means the same as defined in Iowa Code section 152C.1. This rule is intended to implement Iowa Code section 423.2(6)“ar.”701—211.27(423) Water conditioning and softening. 211.27(1) In general. Persons engaged in the business of water conditioning and softening are selling a service subject to sales tax. 211.27(2) Definitions. For purposes of this rule: "Water conditioning" means any action other than water softening taken with respect to water that renders the water fit for its intended use, more healthful, or enjoyable for human consumption. “Water conditioning” includes but is not limited to water filtration, purification, deionization, and reverse osmosis. "Water softening" means the removal of minerals from water to render it more suitable for drinking and washing. 211.27(3) Water purification. When performed for residential, commercial, industrial, or agricultural users, the service of water purification is subject to sales tax. This rule is intended to implement Iowa Code section 423.2(6)“bh.”701—211.28(423) Security and detective services. 211.28(1) In general. Persons engaged in the business of providing security or detective services are selling a service subject to sales tax. 211.28(2) Definitions. For purposes of this rule: "Detective service" means a service of investigation with the purpose to obtain information regarding any of the following subjects: crimes or wrongs done or threatened; the habits, conduct, movements, location, associations, transactions, reputation, or character of a person; credibility of witnesses or other persons; inquiry or recovery of lost or stolen property; cause, origin, or responsibility of a fire, accident, or damage to property; or veracity or falsity of any statement or representation, or means a service of investigation with the purpose to detect deception or to secure evidence to be used before an authorized investigation committee, before boards of award or arbitration, or in a civil or criminal trial. "Security service" means a service with the purpose to protect property from theft, vandalism, or destruction or individuals from physical attack or harassment. “Security service” includes but is not limited to the rental of guard dogs; burglar or fire alarms; providing security guards, bodyguards or mobile patrols; or the protection of computer systems against unauthorized access. 211.28(3) Exempt. The sales price of the following services or activities are not subject to sales tax under this rule: a. Peace officer engaged privately in security or detective work with the knowledge and consent of the chief executive officer of the peace officer’s law enforcement agency. b. Person employed full- or part-time by an employer in connection with the affairs of the employer. c. Attorney licensed to practice law in Iowa while performing duties as an attorney. d. Person engaged exclusively, either as an employee or independent contractor, in conducting investigations and adjustments for insurance companies. e. Person serving notice or any other document to a party, witness, or any other individual in connection with any criminal, civil, or administrative litigation. f. Solicitation of a debtor to pay or collect payment for a debt. g. Consulting, rendering advice, or providing training with regard to security or detection matters. h. Charges for mileage, travel expenses, lodging, meal expenses, fees paid for records, and amounts paid for information if those charges are separately identified, separately billed, and reasonable in amount. This rule is intended to implement Iowa Code section 423.2(6)“as.”701—211.29(423) Solid waste collection and disposal services. 211.29(1) In general. Persons engaged in the business of solid waste collection and disposal are selling a service subject to sales tax. 211.29(2) Definitions. For purposes of this rule: "Nonresidential commercial operation" means any operation that is an industrial, commercial, agricultural, or mining operation, whether for profit or not. “Commercial” refers to those involved in the buying and selling of goods and services, rather than just meaning a for-profit operation.- “Nonresidential commercial operation” includes but is not limited to hotels, motels, restaurants, realtors, professional firms (doctors, lawyers, accountants, or dentists), repair persons, persons selling and renting all sorts of tangible personal property, persons selling insurance of any kind, appraisers, skilled trades (e.g., plumbers, carpenters, and electricians), construction contractors, banks, savings and loans, barbers and beauticians, day care centers, counseling services, employment agencies, janitorial services, landscapers, painters, pest control, photography, printing, and storage services. Also included within the meaning of nonresidential commercial operation are the United Way, the American Cancer Society, the Elks, Masons, houses of worship (e.g., churches, synagogues, and mosques), and not-for-profit hospitals that are not licensed under Iowa Code chapter 135B.
- “Nonresidential commercial operation” does not include apartment complexes, mobile home parks, manufactured home communities, and single-family or multifamily dwellings. Also excluded from the meaning are nonprofit hospitals licensed pursuant to Iowa Code chapter 135B.
Proposing rulemaking related to exempt and taxable sales, sales involving government entities and nonprofits, and types of sales based on the type and method of transaction and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 212, “Governments and Nonprofits,” Iowa Administrative Code, and to adopt a new chapter with the same title; to rescind Chapter 284, “Exempt Sales,” Iowa Administrative Code; to rescind Chapter 285, “Taxable and Exempt Sales Determined by Method of Transaction or Usage,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.1, 423.2, 423.3, 423.14 and 423.14A.Purpose and Summary The purpose of the proposed rulemaking is to readopt Chapters 212 and 285 and rescind and reserve Chapter 284. The Department proposes revisions to Chapters 212 and 285 to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. These chapters describe the Department’s interpretation of Iowa Code chapter 423 as it applies to certain types of exempt and taxable sales. Chapter 212 provides guidance on sales involving government entities and nonprofits. Chapter 285 provides guidance on certain types of sales based on the type and method of transaction. After review, the Department determined there is no benefit to retaining Chapter 284 and proposes to rescind and reserve the chapter; however, the Department also determined that several rules from Chapter 284 will be repromulgated into Chapters 210, 212, and 219. Chapters 210 (ARC 7197C, IAB 12/27/23) and 219 (ARC 7201C, IAB 12/27/23) are not included in this Notice but are covered herein. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 212 and adopt the following new chapter in lieu thereof: CHAPTER 212GOVERNMENTS AND NONPROFITS701—212.1(423) Taxability of profits used by or donated to an educational, charitable, or religious entity. For purposes of the exemption provided in Iowa Code section 423.3(78), the following definitions apply: 212.1(1) Educational. An activity has an “educational purpose” if the activity has as its primary objective to give instruction. The term “educational purpose” includes recreational or cultural activities. Activities that are directly related to the educational process such as intramural sports and tests given to students or prospective students to measure intelligence, ability, or aptitude are considered educational for purposes of this exemption. Municipal or public or nonprofit science centers and libraries are also considered educational for purposes of the exemption. 212.1(2) Religious. “Religious purpose” includes all forms of belief in the existence of superior beings or things capable of exercising power over the human race. It also includes the use of property by a religious society or by a body of persons as a place for public worship. 212.1(3) Charitable. A charitable act is an act done out of goodwill, benevolence, and a desire to add or improve the good of humankind in general or any class or portion of humankind, with no pecuniary profit inuring to the person performing the service or giving the gift. a. Profits. The sales price from sales at issue in this exemption is exempt from sales tax to the extent that the profits are used by or donated to a qualifying organization and used for a qualifying activity. For purposes of this rule, “profits” means proceeds remaining after direct expenses have been deducted from the sales price derived from the activity or event. The expenses should be necessary and have an immediate bearing or relationship to the fulfillment of the activity.Even though an activity or an organization has been recognized as one which could avail itself to the exemption provided by Iowa Code section 423.3(78), it can still be held responsible for sales tax on gross receipts sales price if the department finds, upon additional investigation, that the proceeds expended by the organization were not for educational, religious, or charitable purposes.At the time of the selling event, a presumption is made that sales tax will not be charged to and collected from the consumer on the property or service sold. This particular exemption is dependent upon how the profits from the sale are expended, which follows the selling event. If after the event a portion of the profits is expended for a noneducational, nonreligious, or noncharitable purpose, tax is due on that portion of the sales price in the tax period in which that portion was expended.Unless a specific exemption applies to the entity, purchases by qualifying organizations that are not for resale cannot be purchased free of sales tax. b. General information. The following is general information that is important to organizations involved in educational, religious, or charitable activities: (1) There is no authority in the Iowa Code to grant a nonprofit corporation any type of blanket sales or use tax exemption on its purchases because the organization is exempted from federal or state income taxes. (2) Nonprofit corporations and educational, religious, or charitable organizations are subject to audit and should keep for three years financial records that meet acceptable accounting procedures. (3) Nonprofit corporations and educational, religious, or charitable organizations can be held responsible for the payment of sales and use taxes as would any other individual, retailer, or corporation. (4) Nonprofit corporations and educational, religious, or charitable organizations are not required to obtain a sales tax permit or any type of registration number if they are not making taxable sales. There is no provision in the Iowa Code that requires that such organizations have a special sales tax number or registration number and none are issued by the department of revenue. However, if such organizations are making sales that are subject to tax, then a sales tax permit must be obtained. (5) The mere renting of facilities to be used by another person or organization for educational, religious, or charitable purposes is not an educational, religious, or charitable activity. (6) When profits from an activity are used to reimburse individuals for the cost of transporting their automobiles to an antique car show, the profits are not considered to be expended for educational purposes, and the gross receipts sales price from the car show are subject to tax. (7) Activities to raise funds to send members of qualifying educational, religious, or charitable organizations to conventions and other similar events that are directly related to the purposes of the qualifying educational, religious, or charitable organization are within the exemption requirements provided in Iowa Code section 423.3. (8) An organization whose function is to promote by advertising the use of a particular product that can be purchased at retail does not qualify for the exemption provided by Iowa Code section 423.3(78), even though promotion by advertising may educate the public. (9) Sales of tangible personal property or specified digital products by civic and municipal art and science centers are of an educational value and the gross receipts therefrom are exempt to the extent the profits are expended for educational, religious, or charitable purposes. (10) All proceeds from games of skill, games of chance, raffles, and bingo games as defined in Iowa Code chapter 99B are subject to sales tax regardless of who is operating the game and regardless of how the proceeds therefrom are expended, except that those games operated by a county or a city are exempt from collecting the sales tax. When organizations operate such games, they are required to have a sales tax permit and a gambling license. This rule is intended to implement Iowa Code section 423.3(78).701—212.2(423) Sales to the American Red Cross, the Coast Guard Auxiliary, Navy-Marine Corps Relief Society, and U.S.O. Receipts from the sale of tangible personal property or specified digital products or from rendering, furnishing, or providing taxable services to the American Red Cross, Coast Guard Auxiliary, Navy-Marine Corps Relief Society, and U.S.O. shall be exempt from sales tax.Purchases made by the American Red Cross, Coast Guard Auxiliary, Navy-Marine Corps Relief Society, or U.S.O. outside of Iowa for use in Iowa shall be exempt from use tax. This rule is intended to implement Iowa Code section 423.3(107).701—212.3(423) Sales in interstate commerce—goods transported or shipped from this state. When tangible personal property or services are exempt as described in Iowa Code section 423.3(43), sales tax does not apply. 212.3(1) Proof of transportation. The most acceptable proof of transportation outside the state is: a. A waybill or bill of lading made out to the retailer’s order calling for transport; or b. An insurance or registry receipt issued by the United States postal department, or a post office department’s receipts; or c. A trip sheet signed by the retailer’s transport agency, which shows the signature and address of the person outside the state who received the transported goods. 212.3(2) Certificate of out-of-state delivery. Iowa retailers making delivery and therefore sales out of state shall use a certificate in lieu of trip sheets. The certificate shall be completed at the time of sale, identifying the merchandise delivered and signed by the purchaser upon delivery. 212.3(3) Exemption not applicable. Sales tax shall apply when tangible personal property is delivered in the state to the buyer or the buyer’s agent, even though the buyer may subsequently transport that property out of the state and, also, when tangible personal property is sold in Iowa to a carrier and then delivered by the purchasing carrier to a point outside of Iowa for the carrier’s use. This rule is intended to implement Iowa Code section 423.3(43).701—212.4(423) Educational institution. Tangible personal property, specified digital products, or enumerated services purchased by any private nonprofit educational institution, as defined in Iowa Code section 423.3(17), in the state and used for educational purposes is exempt from sales tax. When purchases are made by any private nonprofit educational institution and the institution is acting as an agent for the sale to any student or other person, the sales are taxable if the proceeds from the sale are not used for educational purposes. 212.4(1) Taxable sales. Examples of taxable sales include: a. Sales of prepared food or other taxable food (rules 701—220.3(423) to 701—220.6(423) contain more information), whether sold at snack bars, grills, cafeterias, restaurants, or cafes and whether or not sold to students. b. Sales from vending machines. c. Special event billings to colleges for meals for guests not connected with the college or at events not connected with the college. d. Sales to fraternities or sororities for events not billed to the college. e. Special event meals by commercial or social clubs, such as chambers of commerce, Rotarians, Kiwanis, alumni, advertising clubs, or political groups, whether or not billed through the college. 212.4(2) Exempt sales. Examples of exempt sales include: a. The sales of yearbooks to schools that have executed contracts with yearbook companies to purchase yearbooks. These are considered sales for resale and are exempt from tax. b. The sales of yearbooks from the school to the students and others. These are considered an educational activity and are exempt to the extent the profits therefrom are expended for educational purposes. c. Student board billing to include freshman days and student orientation when billed to the college and included in tuition. d. Students and faculty casual board when billed to the college. e. Events, when given by faculty for students and billed to the college. f. Events sponsored by colleges for visiting dignitaries, or functions related to education and billed to the college. g. Meals for students on education field trips and billed to the college. This rule is intended to implement Iowa Code section 423.3(17).701—212.5(423) Gross receipts from the sale or rental of tangible personal property or from services performed, rendered, or furnished to certain nonprofit corporations exempt from tax. 212.5(1) Unless a specific exemption applies, the sales price of tangible personal property, taxable services, and specified digital products sold to nonprofit corporations is subject to tax. Sales price from the sale or rental of tangible personal property, specified digital products, or from services performed, rendered or furnished to certain nonprofit corporations are exempt from tax. Such organizations can be found in Iowa Code section 423.3(18). 212.5(2) The exemption does not apply to tax paid on the purchase of building materials by a contractor which are used in the construction, remodeling or reconditioning of a facility used or to be used for one or more of the uses set forth in this rule. This rule is intended to implement Iowa Code section 423.3(18).701—212.6(423) Nonprofit private museums. Iowa Code section 423.3(21) provides a sales tax exemption for certain purchases by nonprofit private museums. 212.6(1) Definitions and examples. A “museum” is all of the following: a. An institution organized for educational, scientific, historical preservation, or aesthetic purposes. b. Predominantly devoted to the care and exhibition of a collection of objects in a room, building, or locale. c. The collection must be open to the public periodically or at fixed intervals. d. Have staff available to answer questions regarding the collection. 212.6(2) Exclusions from definition of “museum.” a. An institution is not a “museum” unless it can be included in the ordinary and usual public concept of a museum. b. Examples of institutions that are not designated as “museums” include aquariums, arboretums, botanical gardens, nature centers, planetariums, and zoos.701—212.7(423) State fair and fair societies. The sales price from sales or services rendered, furnished, or performed by the state fair organized under Iowa Code chapter 173 or a county, district or fair society organized under Iowa Code chapter 174 are exempt from sales tax. This exemption does not apply to individuals, entities, or others that sell or provide services at the state, county, district fair, or fair societies organized under Iowa Code chapters 173 and 174. This rule is intended to implement Iowa Code sections 423.3(23) and 423.3(35).701—212.8(423) Sales to hospices. Iowa Code section 423.3(28) provides an exemption for freestanding nonprofit hospice facilities. “Hospice” and “hospice care” are defined in 42 CFR 418.3. A “freestanding hospice facility” is any hospice program housed in a building that is dedicated only to the hospice program and that is not attached to any other building or complex of buildings. An individual is “terminally ill” if that individual has a medical prognosis that the individual’s life expectancy is six months or less if the illness runs its normal course. This rule is intended to implement Iowa Code section 423.3(28).701—212.9(423) Art centers. 212.9(1) Iowa Code section 423.3(22) provides an exemption from tax for certain purchases made by private nonprofit art centers. 212.9(2) To qualify for the exemption, the organization will be all of the following: a. An art center, which is defined as a structure that displays aesthetic objects that are the product of the conscious use of skill and creative imagination. b. Housed in a structure open to the public periodically or at fixed intervals with regular hours and with staff available to answer visitors’ questions. c. Located in Iowa. This rule is intended to implement Iowa Code section 423.3(22).701—212.10(423) Tangible personal property purchased from the United States government. Tangible personal property purchased from the United States government or any of the federal governmental agencies shall be exempt from sales tax, but such purchases shall be taxable to the purchaser under the provisions of the use tax law. Persons making purchases from the United States government, unless exempt from the provisions of Iowa Code section 423.5(1)“c” shall report and pay use tax at the current rate on the purchase price of such purchases. This rule is intended to implement Iowa Code section 423.3.701—212.11(423) Sales by the state of Iowa, its agencies and instrumentalities. The state of Iowa, its agencies and instrumentalities, are required to collect and remit tax on the sales price from taxable retail sales of tangible personal property, specified digital products, and taxable services.This rule does not apply to sales made by cities and counties in the state of Iowa that are specifically exempted from collecting tax by Iowa Code section 423.3(32). This rule is intended to implement Iowa Code chapter 423.701—212.12(423) Sales to federal, state, municipal, and tribal governments and instrumentalities. 212.12(1) Exempt sales. Sales are exempt from tax under Iowa Code section 423.3(31) if the tangible personal property, taxable services, and specified digital products are: a. Sold directly to an exempt government entity described in Iowa Code section 423.3(31); b. Used for a public purpose; and c. Not one of the types of the products listed in Iowa Code section 423.3(31)“a”(1) through 423.3(31)“a”(3) that remain taxable even when sold to certain government entities. 212.12(2) Direct, legal incidence of the tax. a. Sale to exempt government entities.A sale to an exempt government entity occurs only if the government entity, pursuant to a contract for sale, takes title or ownership to tangible personal property as a buyer from a seller. Rule 701—219.23(423) contains additional information on construction contracts with designated exempt entities. b. Government contractors.Iowa Code section 423.3(31) does not apply to independent contractors who contract with agencies, instrumentalities, or other entities of government. These contractors do not, by virtue of their contracting with governmental entities, acquire any immunity or exemption from taxation for themselves. Sales to these contractors remain subject to tax, even if those sales are of goods or services that a contractor will use in the performance of a contract with a governmental entity. This principle is applicable to construction contractors who create or improve real property for federal, state, county, and municipal instrumentalities or agencies thereof. The contractors shall be subject to sales and use tax on all tangible personal property they purchase regardless of the identity of their construction contract sponsor. c. Examples. 212.12(3) Government instrumentalities. a. Express statute.An entity can be an instrumentality of government under Iowa Code section 423.3(31) if a state or federal statute expressly designates the entity as a government instrumentality that is exempt from paying sales tax on its direct purchases. b. Lack of express statute defining an entity as a government instrumentality.If there is no statute that expressly defines an entity as a government instrumentality exempt from tax, the entity may qualify as a government instrumentality if it satisfies all of the following requirements: (1) Government controls the detailed physical performance of the entity; (2) The entity’s day-to-day operations are supervised by government; and (3) The entity is created for the purpose of, and is primarily engaged in, the performance of essential government functions. 212.12(4) Certain corporations organized under federal statutes. The sale of tangible personal property, specified digital products, or taxable services at retail to the following corporations are sales for final use or consumption to which tax shall apply: a. Federal savings and loan associations. b. Federal savings and trust companies. c. National banks. d. Other organizations of like character.701—212.13(423) Fees paid to cities and counties for the privilege of participating in any athletic sport. A “sport” is any activity or experience that involves some movement of the human body and gives enjoyment or recreation. An “athletic” sport is any sport that requires physical strength, skill, speed, or training in its performance. The following activities are nonexclusive examples of athletic sports: baseball, football, basketball, softball, volleyball, golf, tennis, racquetball, swimming, wrestling, and foot racing. 212.13(1) The following is a list of various fees that would be considered fees paid to a city or county for the privilege of participating in any athletic sport, and thus subject to tax under this rule. The list is not exhaustive. a. Fees paid for the privilege of using any facility specifically designed for use by those playing an athletic sport: fees for use of a golf course, ball diamond, tennis court, swimming pool, or ice skating rink are subject to tax. These fees are subject to tax whether they allow use of the facility for a brief or extended period of time, e.g., a daily fee or season ticket for use of a swimming pool or golf course would be subject to tax. Group rental of facilities designed for playing an athletic sport would also be subject to tax. b. Fees paid to enter any tournament or league that involves playing an athletic sport would be subject to tax. Both team and individual entry fees are taxable. Fees paid to enter any marathon or foot race of shorter duration would be subject to tax under this rule. 212.13(2) Not subject to tax as fees paid to a city or county for the privilege of participating in any athletic sport under this rule are the following charges. The list is not intended to be exhaustive. a. Fees paid for lesson or instruction in how to play or to improve one’s ability to play an athletic sport are not subject to tax. Golf and swimming lesson fees are specific examples of such nontaxable charges. The fees are excluded from tax regardless of whether the person receiving the instruction is a child or an adult. Fees charged for equipment rental, regardless of whether this equipment is helpful or necessary to participation in an athletic sport, are not subject to tax. The rental of a golf cart or moveable duck blind would not be subject to tax. The rental of a recreational boat is a transportation service, the gross receipts of which are not subject to tax if provided by a city or county. b. Sales of merchandise, e.g., food or drink, to persons watching or participating in any athletic sport are not subject to tax. c. Fees charged to improve any facility where any athletic sport is played are not subject to tax, unless such a fee must be paid to participate in an athletic sport that can be played within the facility. d. Fees paid by any person or organization to rent any county or city facility or any portion of any county or city park shall not be subject to tax unless the portion of the park or facility is specifically designed for the playing of an athletic sport. e. Fees paid for the use of a campground or hiking trail are not subject to tax. This rule is intended to implement Iowa Code section 423.3(32).701—212.14(423) Property used by a lending organization. The sales price from the sale of tangible personal property or specified digital products to a nonprofit organization organized for the purpose of lending the tangible personal property to the general public for use by the public for nonprofit purposes are exempt from tax. The exemption contained in this rule is applicable to tangible personal property only, and not to taxable services or specified digital products. It is applicable to the sale of that property and not to its rental to a nonprofit organization. Finally, the exemption is applicable only to property purchased by a nonprofit organization for subsequent rental to the general public. The exemption is not applicable to other property (e.g., office equipment) that the nonprofit organization might need for its ongoing existence. This rule is intended to implement Iowa Code section 423.3(19).701—212.15(423) Urban transit systems. A privately owned urban transit system that is not an instrumentality of federal, state or county government is subject to sales tax on fuel purchases that are within the urban transit system’s charter.Tax shall not apply to the sales price of fuel purchases made by a privately owned urban transit company for use outside the urban transit system charter in which a fuel tax has been imposed and paid and no refund has been or will be allowed. This rule is intended to implement Iowa Code sections 423.3(1) and 423.3(31). ITEM 2. Rescind and reserve 701—Chapter 284. ITEM 3. Rescind 701—Chapter 285 and adopt the following new chapter in lieu thereof: CHAPTER 285TAXABLE AND EXEMPT SALES DETERMINED BY METHOD OF TRANSACTION OR USAGE[Prior to 12/17/86, Revenue Department[730]][Prior to 11/2/22, see Revenue Department[701] Ch 18]701—285.1(423) Auctioneers as agents. 285.1(1) An auctioneer in making a sale, whether of tangible personal property, specified digital products, or realty, is by virtue of this employment making the sale as the agent of the principal. 285.1(2) Where an auctioneer is conducting a sale and the principal meets the requirement of the casual sale exemption found in Iowa Code section 423.3(39), the sales price from the sale is exempt from sales tax. This rule is intended to implement Iowa Code sections 423.2 and 423.3(39).701—285.2(423) Florists. 285.2(1) Florists are engaged in the business of selling tangible personal property and specified digital products at retail. The sales price from the sale of flowers, wreaths, bouquets, potted plants and other items of tangible personal property and specified digital products are subject to sales tax. 285.2(2) When florists conduct transactions through a florists’ telephonic delivery association, the following rules shall apply when computing tax liability: a. On all orders taken by an Iowa florist and telephoned to a second florist in Iowa for delivery in the state, the sending florist shall be liable for tax, based on sales price from the total amount collected from the customer, except the cost of a telegram if separately stated on a bill or invoice. b. In cases where an Iowa florist receives an order pursuant to which the Iowa florist gives telephonic instructions to a second florist located outside Iowa for delivery to a point outside Iowa, Iowa sales tax is not due. c. In cases where Iowa florists receive telephonic instructions from other florists located either within or outside of Iowa for the delivery of flowers, the receiving florist will not be held liable for Iowa sales tax with respect to the transaction. This rule is intended to implement Iowa Code section 423.2.701—285.3(423) Student fraternities and sororities. 285.3(1) Student fraternities and sororities are not considered to be engaged in the business of selling tangible personal property at retail when they provide their members with meals and lodging for which a flat rate or lump sum is charged. A person engaged in the selling of foods and beverages to such organizations for use in the preparation of meals is making exempt sales at retail and shall not be liable for tax if the food purchases would be exempt under rule 701—220.5(423). 285.3(2) Student fraternities or sororities engaged in the business of selling meals or other tangible personal property to persons other than members for which separate charges are made are making taxable sales. 285.3(3) Sales by other food preparers. When student fraternities or sororities do not provide their own meals but meals instead are provided to members by caterers, concessionaires or other persons, such caterers, concessionaires or other persons shall be liable for the collection and remittance of sales tax on the sales price from meals furnished. This rule is intended to implement Iowa Code sections 423.1, 423.1(39), 423.2, and 423.5.701—285.4(423) Morticians or funeral directors. A mortician or funeral director is engaged in the business of selling tangible personal property, specified digital products, and funeral services. Examples of the tangible personal property sold by a funeral director include but are not limited to caskets, other burial containers, flowers, and burial clothing. “Funeral services” includes but is not limited to cremation, transportation by hearse and embalming. Tax is due only on the sales price from the sale of tangible personal property, specified digital products, and taxable services, and not on the sales price from the sale of nontaxable services.If a mortician or funeral director separately itemizes charges for tangible personal property, specified digital products, taxable services and nontaxable services, tax is due only upon the sales price from the sales of tangible personal property and taxable services.The mortician or funeral director is considered to be purchasing caskets, outer burial containers, burial clothing, and other items sold to customers for resale, and may purchase these items from suppliers without payment of sales tax.For purposes of this rule, the terms of morticians or funeral directors shall also include cemeteries, cemetery associations and anyone engaged in activities similar to those discussed in the rule. This rule is intended to implement Iowa Code section 423.2.701—285.5(423) Physicians, dentists, surgeons, ophthalmologists, optometrists, and opticians. Physicians, dentists, surgeons, ophthalmologists, optometrists, and opticians are not liable for sales tax on services rendered, including but not limited to examinations, consultations, diagnosis, and surgery.The purchase of materials, supplies, and equipment by these persons is subject to tax unless the particular item is exempt from tax when purchased by an individual for the individual’s own use. For example, the purchase of prescription drugs would not be subject to sales tax if purchased for use in the practice of the physician, dentist, surgeon, ophthalmologist, optometrist, or optician. Sales of tangible personal property and specified digital products to dentists, which are to be affixed to the person of a patient as an ingredient or component part of a dental prosthetic device, are exempt from sales tax. These include artificial teeth, and facings, dental crowns, dental mercury and acrylic, porcelain, gold, silver, alloy, and synthetic filling materials.Sales of tangible personal property and specified digital products to physicians or surgeons, which are prescription drugs to be used or consumed by a patient, are exempt from tax.Sales of tangible personal property and specified digital products to ophthalmologists, optometrists, and opticians, which are prosthetic devices designed, manufactured, or adjusted to fit a patient, are exempt from tax. These include prescription eyeglasses, contact lenses, frames, and lenses.The purchase by such persons of materials such as pumice, tongue depressors, stethoscopes, which are not in themselves exempt from tax, would be subject to tax when purchased by such professions.The purchase of equipment, such as an X-ray machine, X-ray photograph or frames for use by such persons is subject to tax. On the other hand, the purchase of equipment that is utilized directly in the care of an illness, injury or disease, which would be exempt if purchased directly by the patient, is not subject to tax. This rule is intended to implement Iowa Code section 423.2.701—285.6(423) Warranties and maintenance contracts. 285.6(1) Mandatory warranties. A warranty is a mandatory warranty when the buyer, as a condition of the sale, is required to purchase the warranty from the seller. When the sale of tangible personal property, specified digital products, or services includes the furnishing or replacement of parts or materials that are pursuant to the guaranty provisions of the sales contract, a mandatory warranty exists. If the property subject to the warranty is sold at retail, and the measure of the tax includes any amount charged for the guaranty or warranty, whether or not such amount is purported to be separately stated from the purchase price, the sale of replacement parts and materials to the seller furnishing them thereunder is a sale for resale and not taxable. Labor performed under a mandatory warranty that is in connection with an enumerated taxable service is also exempt from tax. 285.6(2) Optional warranties. A warranty is an optional warranty when the buyer is not required to purchase the warranty from the seller. a. The sale of optional service or warranty contracts that provide for the furnishing of labor and materials and require the furnishing of any taxable service enumerated under Iowa Code section 423.2 is considered a sale of tangible personal property the sales price of which is subject to tax at the time of sale except as described below. b. The sale of a residential service contract regulated under Iowa Code chapter 523C is not the sale of tangible personal property, and the sales price from the sales of these service contracts is not subject to tax, and the sales price from taxable services performed for the providers of residential service contracts are now subject to tax. “Residential service contract” is defined in Iowa Code section 523C.1(8). c. If an optional service or warranty contract is a computer software maintenance or support service contract and the contract provides for the furnishing of technical support services only, then no tax is imposed on the furnishing of those services. If a computer software maintenance or support service contract provides for the performance of nontaxable services and the taxable transfer of tangible personal property, and no separate fee is stated for either the performance of the service or the transfer of the property, then sales tax shall be imposed on the sales price from the sale of the contract. 285.6(3) Additional charges for parts and labor furnished in addition to that covered by a warranty or maintenance contract that are for enumerated taxable services shall be subject to tax. Only parts and not labor will be subject to tax where a nontaxable service is performed if the labor charge is separately stated. This rule is intended to implement Iowa Code section 423.2.701—285.7(423) Casual sales. 285.7(1) Casual sales by persons not retailers or by retailers outside the regular course of business. a. Exemptions.Casual sales are exempt from Iowa sales and use taxes except for the casual sale of vehicles subject to registration, aircraft, and other vehicles listed in Iowa Code section 423.3(39)“b.” In order for a casual sale to qualify for exemption under this subrule, two conditions must be present: (1) The sale of tangible personal property, specified digital products, or taxable services must be of a nonrecurring nature, and (2) The seller, at the time of the sale, must not be engaged for profit in the business of selling tangible goods or services taxed under Iowa Code section 423.2 or, if so engaged, the sale must be outside the regular course of the seller’s business. b. Nonrecurring events.Two separate selling events outside the regular course of business within a 12-month period shall be considered nonrecurring. Three such separate selling events within a 12-month period shall be considered as recurring. Tax shall only apply commencing with the third separate selling event. However, in the event that a sale event occurs consistently over a span of years, such sale is recurring and not casual, even though only one sales event occurs each year. c. Sales of capital assets.Sales of capital assets such as equipment, machinery, and furnishings that are not sold as inventory shall be deemed outside the regular course of business (including sales of capital assets during a retailer’s liquidation) and the casual sales exemption shall apply as long as such sales are nonrecurring. This will include transactions exempted from state and federal income tax under Section 351 of the Internal Revenue Code.The above examples are not the only ones pertaining to the questions of whether a casual sale did or did not occur. However, because of the myriad of factual situations that can and do exist, it is not possible to formulate more detailed rules on this subject matter. 285.7(2) Special rules for casual sales involving the liquidation of a trade or business. When retailers sell all or substantially all of the tangible personal property held or used in the course of the trade or business for which retailers are required to hold a sales tax permit, the casual sale exemption will apply to exempt those sales only when the following circumstances exist: (1) the trade or business must be transferred to another person, and (2) the transferee must engage in a similar trade or business. The trade or business transferred refers to the place where the business is located since each taxable retail business must have a sales tax permit at each location. For purposes of this casual sale circumstance, it is irrelevant whether the retailer actually has a sales tax permit or not; rather, the relevant circumstance is that the retailer was required to have a sales tax permit. One effect of this is that a retailer who is closing as opposed to transferring a business and is selling inventory in the process of this closing is not entitled to claim the casual sale exemption under this subrule, but see subrule 285.7(1), and the resale exemption is always potentially applicable to sales of inventory. The examples below contain further explanation.The above examples are not the only ones pertaining to the question of whether a casual sale did or did not occur. However, because of the myriad of factual situations that can and do exist, it is not possible to formulate more detailed rules on this subject matter. 285.7(3) Casual sales of services. The “casual sale” of an enumerated service has occurred if the following circumstances exist: a. The service was rendered, furnished, or performed on a nonrecurring basis by a seller who, at the time of the sale of the service, is not engaged for profit in the business of selling tangible goods or services taxed under Iowa Code section 423.2 or, if so engaged, the sale was outside the regular course of the seller’s business; or b. The sales of all, or substantially all of the services held or used by a retailer in the course of the retailer’s trade or business for which the retailer is required to hold a sales tax permit, if the retailer sells or otherwise transfers the trade or business to another person who engages in a similar trade or business. This rule is intended to implement Iowa Code section 423.3(39).701—285.8(423) Taxation of Native Americans. 285.8(1) Definitions. "Native Americans" means all persons who are descendants of and who are members of any recognized tribe. "Settlement" means all lands recognized as a tribal government settlement or reservation within the boundaries of the state of Iowa. 285.8(2) Retail sales tax—tangible personal property. Retail sales of tangible personal property made on a recognized settlement to Native Americans who are members of the tribe located on that settlement, where delivery occurs on the settlement, are exempt from tax. Retail sales of tangible personal property made on a recognized settlement to Native Americans where delivery occurs off the settlement are subject to tax. Retail sales of tangible personal property made to non-Native Americans on a recognized settlement are subject to tax regardless of where the delivery occurs. Sales made to non-Native Americans are taxable even though the seller may be a member of a recognized settlement. 285.8(3) Retail sales tax—services. Sales of enumerated taxable services and sales made by municipal corporations furnishing gas, electricity, water, heat, or communication services to Native Americans who are members of the tribe located on the recognized settlement where delivery of the service occurs are exempt from tax. Sales of enumerated taxable services or sales made by municipal corporations furnishing gas, electricity, water, heat, or communication services to Native Americans where delivery of the services occurs off a recognized settlement are subject to tax. 285.8(4) Off-settlement purchases. Purchases made by Native Americans off a recognized settlement are subject to tax if delivery occurs off the settlement. Purchases made by Native Americans off a recognized settlement are not subject to tax if delivery is made on the settlement to Native Americans who are members of the tribe located on that settlement. This rule is intended to implement Iowa Code section 423.3.701—285.9(423) Computer software. 285.9(1) In general. a. Applicability of tax.For the purposes of this rule, the sales price of the tangible personal property, specified digital products, and services found within Iowa Code section 423.2 is subject to tax. b. Definitions. "Program" is interchangeable with the term “software” for purposes of this rule. "Rental or lease" means the same as defined in Iowa Code section 423.1(24). 285.9(2) Taxable sales, rentals or leases, and services. a. Sales of equipment.Tax applies to sales of automatic data processing equipment and related equipment. b. Rental or leasing of equipment.Where a lease includes a contract for the use of equipment, the rental or lease payments are subject to tax. c. Training materials.Persons who sell or lease data processing equipment may provide a number of training services with the sale or rental of their equipment. Training services, per se, are not subject to tax. Training materials, such as books, furnished to the trainees for a specific charge are taxable. d. Services a part of the sale or lease of equipment.Where services, such as programming, or training are provided to those who purchase or lease software on a mandatory basis as an inseparable part of the sale or taxable lease of the equipment, charges for the furnishing of the services are includable in the measure of tax from the sale or lease of the equipment whether or not the charges are separately stated. (Where the purchaser or lessee has the option to acquire the equipment either with the services or without the services, charges for the services may not be excluded from the measure of tax if they are taxable enumerated services.) e. Mailing services.Addressing (including labels) for mailing. Where a service provider addresses, through the use of its software or otherwise, material to be mailed, with names and addresses furnished by the customer or maintained by the service provider for the customer, tax does not apply to the charge for addressing. Similarly, where the service provider prepares, through the use of its software or otherwise, labels to be affixed to material to be mailed, with names and addresses furnished by the customer or maintained by the service provider for the customer, tax does not apply to the charge for producing the labels, regardless of whether the service provider itself affixes the labels to the material to be mailed. However, tax would be due on any tangible personal property, such as labels, consumed by the service provider. Mailing lists that are attached to envelopes and placed in the mail by a service bureau constitute tangible personal property and are subject to tax. This rule is intended to implement Iowa Code section 423.3.701—285.10(423) Envelopes for advertising. Some envelopes that contain advertising are exempt from tax. Envelopes that are not primarily used for advertising are taxable. The primary use of the envelopes should control whether they will be taxable or exempt. This rule is intended to implement Iowa Code section 423.3(42).701—285.11(423) Newspapers, free newspapers and shoppers’ guides. 285.11(1) Sales price of newspapers. The sales price from the sales of newspapers, free newspapers, and shoppers’ guides are exempt from tax. The sales price from the sales of magazines, newsletters, and other periodicals that are not newspapers are taxable. 285.11(2) General characteristics of a newspaper. “Newspaper” is a term with a common definition. A “newspaper” is a periodical, published at short, stated, and regular intervals, usually daily or weekly. It is printed on newsprint with news ink. The format of a newspaper is that of sheets folded loosely together without stapling. A newspaper is admitted to the U.S. mails as second-class material. 285.11(3) Characteristics of newspaper publishing companies. Companies in the business of publishing newspapers are differently structured from other companies. Often, companies publishing larger newspapers will subscribe to various syndicates or “wire services.” A larger newspaper will employ a general editor and a number of subordinate editors as well, for example, sports and lifestyle editors; business, local, agricultural, national, and world news editors; and editorial page editors. A larger newspaper will also employ a variety of reporters and staff writers. Smaller newspapers may or may not have these characteristics or may consolidate these functions. 285.11(4) Characteristics that distinguish a newsletter from a newspaper. A “newsletter” is generally distributed to members or employees of a single organization and not usually to a large cross section of the general public. It is often published at irregular intervals by a volunteer, rather than the paid individual who usually publishes a newspaper. A newsletter is often printed on sheets that are held together at one point only by a staple, rather than folded together. This rule is intended to implement Iowa Code section 423.3(55).701—285.12(423) Maintenance or repair of fabric or clothing. 285.12(1) Sales of chemicals, solvents, sorbents, or reagents consumed in the maintenance or repair of fabric or clothing are exempt from tax. See rule 701—200.1(423) for definitions of the terms “chemical,” “solvent,” “sorbent” or “reagent.” This subrule’s exemption is mainly applicable to dry-cleaning and laundry establishments; however, it is also applicable to soap or any chemical or solvent used to clean carpeting. The department presumes that a substance is “directly used” in the maintenance or repair of fabric or clothing if the substance comes in contact with the fabric or clothing during the maintenance or repair process. Substances that do not come into direct contact with fabric or clothing may, under appropriate circumstances, be directly used in the maintenance or repair of the fabric or clothing but direct use will not be presumed.The following are examples of substances directly used and consumed in the maintenance or repair of fabric or clothing: perchloroethylene “perch” or petroleum solvents used in dry-cleaning machines and coming in direct contact with the clothing being dry-cleaned. Substances used to clean or filter the “perch” or petroleum solvents would also be exempt from tax, even though these substances do not come in direct contact with the clothing being cleaned. The sale of soap or detergents especially made for mixing with “perch” or petroleum solvents is exempt. The sale of stain removers to dry cleaners is exempt from tax.A commercial laundry’s purchase of detergents, bleaches, and fabric softeners is exempt from tax. A commercial laundry’s purchase of water, which is a solvent, is also exempt from tax if purchased for use in the cleaning of clothing.The purchase of starch by laundries and “sizing” by dry cleaners is not exempt from tax. 285.12(2) The sale of property that is a container, label, or similar article or receptacle for transfer in association with the maintenance or repair of fabric or clothing is exempt from tax. In general, the sale of any article that protects dry-cleaned or laundered clothing from dirt or helps the dry-cleaned or laundered clothing to maintain its proper shape or form in the same fashion as a container does would be exempt from tax under this subrule. By way of nonexclusive example, the sale of plastic garment bags, which protect clothing from dirt, is exempt from tax. The sale of “shirt boards” and garment hangers, both of which help clothing to maintain its proper shape, would also be exempt.A container, label, or similar article’s sale is exempt from tax only if the item is transferred to the customer of a commercial laundry, dry cleaner, or other retailer. Thus, “bundle bags” and “Meese carts,” used to transfer or transport clothing within a dry-cleaning establishment, are not subject to the exemption because these bags and carts remain with the dry cleaner and are not transferred to a customer.Concerning labels, the sale of which would be exempt from tax, these labels must be affixed to the dry-cleaned or laundered clothing and transferred to the customer of the dry-cleaning or laundering establishment. By way of nonexclusive example, the sale to dry cleaners, of “special attention,” “invoice” and “sorry” tags would be exempt from tax.The sale of safety pins and other types of clips used to hang skirts and other garments from hangers would not be exempt from tax. These items do not sufficiently resemble containers or labels to the extent that their sale is exempt from tax. This rule is intended to implement Iowa Code sections 423.3(45) and 423.3(51).701—285.13(423) Drop shipment sales. A “drop shipment” generally involves two transactions and three parties. The first party is a consumer located inside Iowa. The second party is a retailer located outside the state. The third party is a supplier who may be located inside or outside of Iowa. A drop shipment sale occurs when the consumer places an order for the purchase of tangible personal property with the out-of-state retailer. The retailer does not own the property ordered at the same time the consumer’s order is placed. The retailer then purchases the property from the supplier. The supplier ships the property directly to the consumer in Iowa. The supplier in a drop shipment sale is not required to collect sales or use tax from the consumer, even if the requisite nexus to require collection exists.If delivery of goods under a contract for sale occurs outside of Iowa, sale of the goods occurs outside of Iowa. If delivery of the goods under the contract for sale occurs within Iowa, the sale occurs in Iowa. If the sale occurs in Iowa and the retailer possesses the requisite nexus to require it to collect Iowa sales tax, the retailer is obligated to collect Iowa sales tax upon the sales price from its sale of the goods to the consumer. If the sale occurs in Iowa but the retailer does not have nexus sufficient to require it to collect Iowa sales or use tax, or if the retailer fails to collect sales tax, the consumer is obligated to pay use tax directly to the department. This rule is intended to implement Iowa Code sections 423.1, 423.14, and 423.14A.ARC 7375CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to miscellaneous taxable sales and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 213, “Miscellaneous Taxable Sales,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.1, 423.2, 423.3 and 423.5.Purpose and Summary The purpose of this proposed rulemaking is to rescind Chapter 213 and adopt a new Chapter 213. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. The chapter describes the Department’s interpretation of the underlying statute to help the public understand the taxability of miscellaneous types of sales. These proposed rules reduce uncertainty about what is subject to tax and what is exempt. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 4:30 p.m. on January 16, 2024, to facilitate an orderly hearing. A video link or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 213 and adopt the following new chapter in lieu thereof: CHAPTER 213MISCELLANEOUS TAXABLE SALES701—213.1(423) Conditional sales contracts. 213.1(1) Definition. A “conditional sale” is a sale in which the vendee receives the right to the use of the goods that are the subject matter of the sale, but the transfer of title to the vendee is dependent on the performance of some condition by the vendee, usually the full payment of the purchase price. 213.1(2) Factors used to determine a conditional sale. Conditional sales are evidenced by the facts supporting the nature of the vendor’s business, the intent of the parties, and the facts supporting the control over the tangible personal property by the vendee. A conditional sales contract would exist where: a. The vendee/lessee has total control over the property and is responsible for all losses or damages; b. The transfer of the property is complete except for title, which passes upon the condition of full payment; and where such full payment is performed under nearly all the vendor’s “lease” agreements, except in cases of default; and c. The vendor has no intent of retaining control over the property except for purposes of selling it or financing it for sale. In determining whether an agreement constitutes a conditional sale or a true lease, substance shall prevail over form, and the terminology of the written agreement will be considered only to the extent that it accurately represents the true relationship of the parties. 213.1(3) Taxability of conditional sales. When a conditional sale exists, the seller bills the purchaser for the full amount of tax due, and sales tax is due on the full contract price upon delivery of the property that is the subject of the contract. No further tax is due on the periodic payments. Interest and finance charges are not considered part of the sales price if they are separately stated and reasonable in amount and are, therefore, not subject to tax. This rule is intended to implement Iowa Code sections 423.1(50) and 423.2(1).701—213.2(423) The sales price of sales of butane, propane and other like gases in cylinder drums, etc. Sales of butane, propane and other like gases in cylinder drums and other similar containers purchased for cooking, heating and other purposes are taxable. 213.2(1) When gas of this type is sold and motor vehicle fuel tax is collected by the seller, sales or use tax shall not be due. If Iowa motor vehicle fuel tax is not collected by the seller at the time of the sale, sales or use tax shall be collected and remitted to the department, unless the sale is specifically exempt. 213.2(2) If tax is not collected by the seller at the time of sale, any tax due shall be collected by the department at the time the user of the product makes an application for a refund of the motor vehicle fuel tax. 213.2(3) The sales price from the rental of cylinders, drums and other similar containers by the distributor or dealer of the gas shall be subject to tax when the title remains with the dealer. The sales price of gas converter equipment that might be sold to an ultimate consumer shall be subject to tax. This rule is intended to implement Iowa Code sections 423.1(46) and 423.2(1).701—213.3(423) Antiques, curios, old coins, collector’s postage stamps, and currency exchanged for greater than face value. Curios, antiques, art work, coins, collector’s postage stamps and such articles sold to or by art collectors, philatelists, numismatists and other persons who purchase or sell such items of tangible personal property for use and not primarily for resale are sales at retail, and their sales prices are subject to tax. 213.3(1) The sales price of stamps, whether canceled or uncanceled, which are sold by a collector or person engaged in retailing stamps to collectors is subject to tax. 213.3(2) Stamps that are purchased for their value as evidence of the privilege of the owner to have certain mail carried by the United States government are not taxable. A stamp becomes an article of tangible personal property having market value when, because of the demand, it can be sold for a price greater than its face value. On the other hand, when a stamp has only face value, as evidence of the right to certain services or an indication that certain revenue has been paid, its sales price is not subject to either sales or use tax. 213.3(3) The sales price from any exchange, transfer, or barter of merchandise for a consideration paid in gold, silver, or other coins or currency is subject to tax to the extent of the agreed-upon value of the coins or currency so exchanged. This agreed-upon value constitutes the sales price or purchase price subject to tax. Currency or coins become articles of tangible personal property having a value greater than face value when the currency or coins are exchanged for a price greater than face value. However, when a coin or other currency, in the course of circulation, is exchanged at its face value, the sales price of the sale is subject to tax for the face value alone. This rule is intended to implement Iowa Code sections 423.1(47), 423.2(1) and 423.5.701—213.4(423) Consignment sales. 213.4(1) When a retailer receives tangible personal property on consignment from others and the consigned merchandise is sold in the ordinary course of business with other merchandise owned or services performed by the retailer, the retailer or consignee shall be making sales at retail. In these cases, the consignee shall file a return and remit tax to the department along with the returns and remittances of tax on the sales price from the sale of other merchandise. 213.4(2) The sales price of sales of tangible personal property by an agent or consignee for another person is exempt if the sales meet the requirements of a casual sale or any other exemptions. This rule is intended to implement Iowa Code section 423.2(1).701—213.5(423) Electrotypes, types, zinc etchings, halftones, stereotypes, color process plates, wood mounts and art productions. The sales price of electrotypes, types, zinc etchings, halftones, stereotypes, color process plates, wood mounts and art productions is subject to tax when sold to users or consumers. The listed articles do not become an integral or component part of merchandise intended to be sold ultimately at retail. This rule is intended to implement Iowa Code sections 423.2(1) and 423.3(51).701—213.6(423) Sales on layaway. 213.6(1) The sales price from a layaway sale is subject to tax. A layaway sale involves two separate and distinct contracts. Under the first contract, the customer and the retailer enter into an agreement to give the customer an option to purchase a certain item of tangible personal property. Under the second contract, the sale of property takes place. During the period of the option to purchase, the item is placed aside “on layaway” and is not available for sale to the general public. This option to purchase is exercised by the customer’s making one or more “layaway payments.” The customer exercises the option to buy by completing the layaway payments. The last layaway payment is also the tendered payment under the separate contract for sale of the property. The contract for sale is complete when the seller delivers the property to the buyer. Tax must be reported during the period (e.g., the quarter or month) in which delivery under the contract for sale portion of the layaway occurs. This will nearly always be the reporting period in which physical transfer of possession passes from the retailer to the buyer. 213.6(2) A sale on layaway should not be confused with a “conditional sale.” The differences are these: (1) In a conditional sale, physical transfer of property occurs before, rather than after, the buyer makes all periodic payments necessary to purchase the property; and (2) in a conditional sale, physical possession of and title to the property pass to the buyer at different times. In a conditional sale situation, physical possession passes first; then after all periodic payments are made, title (ownership) passes to the buyer. In a layaway sale, both possession and title pass at the same time after all payments are made. This rule is intended to implement Iowa Code sections 423.1(46) and 423.2(1).701—213.7(423) Memorial stones. 213.7(1) The sales price of memorial stones is subject to tax. When the seller of a memorial stone agrees to erect a stone upon a foundation, the total sales price from the sale is taxable. Any separately itemized charge for engraving is part of the taxable sales price of a memorial stone. 213.7(2) The sales price of any designs, lettering or engraving performed on a memorial stone or monument is also subject to tax. This rule is intended to implement Iowa Code section 423.2(1).701—213.8(423) Creditors and trustees. 213.8(1) Pursuant to the provisions of any piece of chattel paper or any other document evidencing a creditor’s interest in tangible personal property, the sales price from the sale of tangible personal property at a public auction shall be taxable even if the sale is made by virtue of a court decree of foreclosure by an officer appointed by the court for that purpose. 213.8(2) The tax applies to the sales price of inventory and noninventory goods, provided the owner is in the business of making retail sales of tangible personal property or taxable services. This rule is intended to implement Iowa Code sections 423.2(1) and 423.5(1).701—213.9(423) Sale of pets. Sales of pets are tangible personal property subject to tax. A retailer selling pets shall procure a permit and report tax on the sales price from the sale of such pets. This rule is intended to implement Iowa Code sections 423.1(54) and 423.2(1).701—213.10(423) Redemption of meal tickets, coupon books and merchandise cards as a taxable sale. When meal tickets, coupon books, or merchandise cards are sold by persons engaged exclusively in selling taxable commodities or services, tax shall be levied at the time such items are redeemed by the customer. Tax shall not be added at the time of purchase of the meal ticket, coupon book, or merchandise card. When a retailer sells gift certificates, tax shall be added at the time the gift certificate is redeemed. This rule is intended to implement Iowa Code sections 423.1 and 423.2.701—213.11(423) Repossessed goods. 213.11(1) Sale subject to tax. When tangible personal property that has been repossessed either by the original seller or by a finance company is resold to final users or consumers, the sales price from those sales is subject to tax. 213.11(2) Bad debts. A retailer repossessing previously sold merchandise shall be entitled to claim a credit on tax paid for bad debts in the same fashion as any other retailer that has paid tax to the department upon a sales price that ultimately constitutes a bad debt. This rule is intended to implement Iowa Code sections 423.2(1) and 423.5(1).701—213.12(423) Tangible personal property made to order. When a retailer contracts to fabricate items of tangible personal property from materials available in stock or through placing orders for materials that have been selected by customers, all expenses and profits from the sale of such fabricated articles shall be included in the sales price. The retailer shall not deduct fabrication or production charges, even though such charges are separately billed. This rule is intended to implement Iowa Code sections 423.2(1) and 423.5(1).701—213.13(423) Used or secondhand tangible personal property. The sales price on the sale of used or secondhand tangible personal property is subject to tax in the same manner as new property. This condition eliminates any consideration for secondhand merchandise to be treated differently than new merchandise when sold at retail for sales tax purposes. This rule is intended to implement Iowa Code sections 423.2(1) and 423.5(1).701—213.14(423) Carpeting and other floor coverings. The sale of carpeting and other floor coverings to any person constitutes a sale at retail of tangible personal property, and the sales price of these sales is subject to sales or use tax unless the carpeting and other floor coverings are purchased for resale or are otherwise exempt from tax. 213.14(1) The sales price of floor coverings other than carpeting that are shaped to fit a particular room or area and that are attached to the supporting floor with cement, tacks, or by some other method making a permanent attachment with the building or structure are considered to be building materials and shall be taxable in the same manner as building materials that are used or consumed in the performance of a construction contract. See rule 701—219.2(423) and 701—subrule 219.3(3) for tax treatment. 213.14(2) The sale of carpeting is not to be treated as the sale of a “building material.” The sales price of rugs, mats, linoleum, and other types of floor coverings that are not attached but that are simply laid on finished floors and are not considered building materials is subject to tax unless the floor coverings are purchased for resale or are otherwise exempt from tax. 213.14(3) The sale of “carpeting” to owners, contractors, subcontractors or builders is not the sale of a building material, but the sale of ordinary tangible personal property, which can be purchased for resale by owners, contractors, subcontractors or builders. “Carpeting” is any floor covering made of fabric, usually of wool or synthetic fibers. For purposes of this rule, “carpeting” also includes any pads, tack strips, adhesive, and other materials other than subflooring necessary for installation of the carpeting. Sellers of carpeting should charge purchasers sales tax unless the carpeting is purchased for resale or some other exempt purpose, in which case the purchaser must provide the seller with an exemption certificate upon demand. 213.14(4) The sales price of carpeting, with installation, is taxable in the following manner: a. If separate contracts exist for the sale of the carpeting and for the installation, only the sales price of the carpeting is subject to tax. b. If the selling price of the carpeting and the installation charge are stated as one charge or lump sum, the entire charge is subject to sales tax. c. If the invoice itemizes the installation charge separately from the selling price of the carpet, only the selling price of the carpet is subject to sales tax if the installer and the purchaser of the carpet intend that a sale of the carpet shall occur. See 701—subrule 225.4(1) for more information. 213.14(5) In the following examples, assume that contractor A purchases carpeting from supplier B for installation in customer C’s home. Whether or not A will purchase the carpeting from B for A’s own consumption (and thus, A will pay the tax to B) or A will purchase the property from B for resale to C (and thus, C will pay the tax to A) depends upon any contracts existing between A (the contractor) and C (the customer). This rule is intended to implement Iowa Code section 423.2(1)“b.”701—213.15(423) Goods damaged in transit. 213.15(1) If goods shipped by a retailer have been delivered under a contract for sale to a consumer, and thereafter the goods are damaged in the course of transit to the consumer, the retailer and purchaser shall be liable for tax upon the full sale price of the goods, as the sale to the consumer has been completed. 213.15(2) If the goods have not been delivered to the consumer, the sale to the consumer has not been completed, and the retailer shall not be taxed for the amount agreed to be paid by the consumer. This rule is intended to implement Iowa Code section 423.2.701—213.16(423) Sales of engraved, bound, printed, and vulcanized materials. 213.16(1) Engraving. Engraving includes the business of engraving on wood, metal, stone, or any other material. The engraved material is tangible personal property, the sales price of which is subject to tax. 213.16(2) Binding. Persons engaged in the business of binding any printed matter, other than for the purpose of ultimate sale at retail, are engaged in the sale of tangible personal property, the sales price of which is subject to tax. 213.16(3) Printing. Printing includes, but is not limited to, any type of printing, lithographing, mimeographing, photocopying and similar reproduction. The following activities are nonexclusive examples of printed tangible personal property that are subject to tax: printing of pamphlets, leaflets, stationery, envelopes, folders, bond and stock certificates, abstracts, law briefs, business cards, matchbook covers, campaign posters and banners for the users thereof. 213.16(4) Vulcanizing. “Vulcanizing” means the act or process of treating crude rubber, synthetic rubber, or other rubberlike material with a chemical and subjecting it to heat in order to increase its strength and elasticity. The item produced after vulcanizing is tangible personal property, the sales price of which is subject to sales tax. This rule is intended to implement Iowa Code section 423.2(1)“a.”701—213.17(423) Premiums and gifts. A person who gives away or donates tangible personal property, specified digital products, or taxable services is deemed to be a consumer of such property, products, or services for tax purposes. The sales price from the sale of tangible personal property, specified digital products, or taxable services to such persons for such purposes is subject to tax. 213.17(1) When a retailer purchases tangible personal property, a specified digital product, or a taxable service, exclusive of tax, for the purpose of resale in the regular course of business and later gives it away or donates it, the retailer shall include in the return the value of the property, product, or service at the retailer’s cost price. 213.17(2) When a retailer sells tangible personal property, specified digital products, or taxable services and furnishes a premium with the property, product, or service sold, the retailer is considered to be the ultimate consumer or user of the premium furnished. This rule is intended to implement Iowa Code sections 423.1 and 423.2.701—213.18(423) Webinars. 213.18(1) In general. Webinars are generally taxable as specified digital products. Specifically, webinars fall into the “other digital products” category as a news or information product. Purchasing access to a live or pre-recorded webinar, even if the webinar’s purpose is educational or otherwise, is not treated as purchase of a service. 213.18(2) Nontaxable live webinars with virtual participation. Purchases of access to a live webinar, meaning access to viewing a presentation occurring in real time, are not always subject to sales tax. Attending a presentation in person, if it is not an admission to an amusement, is generally not taxable under Iowa law. Similarly, purchasing access to a live webinar is not taxable if the live webinar allows for a level of participation that is substantially similar to an in-person presentation. 213.18(3) Exemptions. Since purchases of webinars are taxable as specified digital products, any sales tax exemptions that apply to specified digital products may also apply to webinars. This rule is intended to implement Iowa Code section 423.1(55B). ARC 7377CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to events and amusements and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 216, “Events, Amusements, and Other Related Activities,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 99F.10, 423.2(1), 423.2(3)“m,” 423.2(3)“v,” 423.2(3)“j” and 423.3(63).Purpose and Summary The purpose of the proposed rulemaking is to rescind Chapter 216 and adopt a new Chapter 216. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. The Department also proposes additional rules to be included in this chapter that were previously found in other chapters, because the Department has determined that the subject matter of those rules more closely aligns with the subject matter of this chapter. The purpose of the chapter is to provide guidance on the Department’s interpretation of the underlying statute to help the public understand exemptions relating to events and amusements. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 a.m. to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 4:30 p.m. on January 16, 2024, to facilitate an orderly hearing. A video link or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 216 and adopt the following new chapter in lieu thereof: CHAPTER 216EVENTS, AMUSEMENTS, AND OTHER RELATED ACTIVITIES701—216.1(423) Athletic events. The sales price from the sale of tickets or admissions to athletic events occurring in the state of Iowa and sponsored by educational institutions, without regard to the use of the proceeds from such sales, is subject to tax, except when the events are sponsored by elementary and secondary educational institutions. This rule is intended to implement Iowa Code section 423.2(3).701—216.2(423) Dance schools and dance studios. 216.2(1) In general. The sales price from the services sold by dance schools or dance studios is subject to sales tax. This includes all activities, such as acrobatics, exercise, baton-twirling, tumbling, or modeling taught in dance schools or dance studios. 216.2(2) Definitions. For purposes of this rule: "Dance school" means any institution established primarily for the purpose of teaching one or more types of dancing. "Dance studio" means any room or groups of rooms in which any one or more types of dancing are taught. This rule is intended to implement Iowa Code section 423.2(6)“m.”701—216.3(423) Golf and country clubs and all commercial recreation. All fees, dues or charges paid to golf and country clubs are subject to tax. “Country clubs” include all clubs or clubhouses providing golf and other athletic sports for members. Persons providing facilities for recreation for a charge are rendering, furnishing or performing a service, the sales price of which is subject to tax. “Recreation” includes all activities pursued for pleasure, including sports, games and activities that promote physical fitness, but does not include admissions otherwise taxed under Iowa Code section 423.2. 216.3(1) Dance schools are the only schools the services of which are taxable under Iowa Code section 423.2(6). Rule 701—216.2(423) contains information on dance schools and dance studios. The sales price from any school providing training services in any activity pursued for pleasure or recreation shall not be subject to tax, unless the school is a dance school. 216.3(2) If a person provides both facilities for recreation and instruction in recreational activities, charges for instruction in the recreational activities shall not be subject to tax if all of the following circumstances exist: a. The instruction charges are contracted for separately, separately billed, and reasonable in amount when compared to the taxable charges of providing facilities for recreation. b. The persons receiving the instruction must be under the guidance and direction of a person training them in how to perform the recreational activity. If the persons receiving what purports to be “instruction” are allowed any substantial amount of time to pursue recreational activities, no instruction is taking place. The instruction should be received in what would ordinarily be thought of as a “class” with a fixed time and place for meeting. The instruction need not be received in what would ordinarily be thought of as a “classroom,” but the instructor and the persons receiving instruction should be segregated from persons engaging in recreational activity insofar as this is possible. Instruction may still occur if complete or partial segregation is impossible. c. The “instruction” must impart to the learner a level of knowledge or skill in the recreational activity that would not be known to the ordinary person engaging in the recreational activity without instruction. Also, the person providing the instruction must have received some special training in the recreational activity taught if charges for that person’s instruction are to be exempt from tax. This rule is intended to implement Iowa Code section 423.2(6)“v.”701—216.4(423) Campgrounds. 216.4(1) In general. Persons engaged in the business of renting campground sites are selling a service subject to sales tax, regardless of the duration of the rental. This includes the sales price for the operation of a campground and the use of a campground site. 216.4(2) Definition. For purposes of this rule: "Campground" is any location at which sites are provided for persons to place their own temporary shelter, such as a tent, travel trailer, or motorhome. “Campground” does not include any hunting, fishing, or other type of camp where accommodations are provided, though such camps are likely subject to sales tax as commercial recreation under rule 701—216.3(423). 216.4(3) Related charges. The sale price of charges, whether mandatory or optional, imposed on persons using a campground site that are subject to sales tax include but are not limited to entry fees, utility (electric, water, sewer) fees, fees for the use of swimming pools or showers, and fees for extra persons or vehicles. 216.4(4) Public parks. a. The sales price for the use of a state park as a campground is subject to sales tax; however, the sales price for the use of a county or municipal park as a campground is not subject to sales tax. b. The sales price of vehicle entry fees into any state, county, or municipal park, commonly called “park user fees,” is not subject to sales tax. This rule is intended to implement Iowa Code section 423.2(6)“j.”701—216.5(423) Rental of personal property in connection with the operation of amusements. The sales price from rental of tangible personal property in connection with the operation of amusements is taxable. Such rentals include all tangible personal property or equipment used by patrons in connection with the operation of commercial amusements, notwithstanding the fact that the rental of such personal property may be billed separately. This rule is intended to implement Iowa Code section 423.2(1).701—216.6(423) Exempt sales by excursion boat licensees. 216.6(1) The sales price of the following sales by licensees authorized to operate excursion gambling boats is exempt from Iowa sales and use tax: a. Charges for admission to excursion gambling boats, and b. The sales price from gambling games authorized by the state racing and gaming commission and conducted on excursion gambling boats. 216.6(2) The sales price from charges other than those for admissions or authorized gambling games would ordinarily be taxable. The following is a nonexclusive list of taxable licensee sales: parking fees, sales of souvenirs, vending machine sales, prepared meals, liquor and other beverage sales, and the sales price from nongambling video games and other types of games that do not involve gambling. This rule is intended to implement Iowa Code section 99F.10.701—216.7(423) Tangible personal property, specified digital products, or services given away as prizes. 216.7(1) In general. The sales price from the sale of tangible personal property, specified digital products, or services that will be given as prizes to players in games of skill, games of chance, raffles, and bingo games as defined in and lawful under Iowa Code chapter 99B is exempt from tax. The rules issued by the Department of Inspections, Appeals, and Licensing in 481—Chapters 100 through 106 further describe the games of skill, games of chance, raffles, and bingo games that are lawful and may be lawfully awarded. 216.7(2) Gift certificates. A gift certificate is not tangible personal property. If a person wins a gift certificate as a prize and then redeems the gift certificate for merchandise, tax is payable at the time the gift certificate is redeemed. This rule is intended to implement Iowa Code section 423.3(63).ARC 7200CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to services related to vehicles and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 218, “Services Related to Vehicles,” and to adopt a new Chapter 218, “Sales and Services Related to Vehicles,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.1(6), 423.2(6), 423.2(7), 423.3(56) and 423.4(10).Purpose and Summary The purpose of this proposed rulemaking is to rescind and adopt a new Chapter 218. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. This chapter also contains rules that previously existed in other chapters that the Department determined fit better with the subject matter contained in this chapter. This chapter describes the Department’s interpretation of the underlying statutes to help the public understand the taxability of sales and services relating to vehicles. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m.Via video/conference call January 16, 2024 1 to 3 p.m.Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 218 and adopt the following new chapter in lieu thereof: CHAPTER 218SALES AND SERVICES RELATED TO VEHICLES701—218.1(423) Armored car. Persons engaged in the business of either providing armored car service to others or converting a vehicle into an armored car are selling a service subject to sales tax. For purposes of this rule, “armored car” means a wheeled vehicle affording defensive protection by use of a metal covering or other elements of ordinance. This rule is intended to implement Iowa Code section 423.2(6)“b.”701—218.2(423) Vehicle repair. 218.2(1) In general. Persons engaged in the business of repairing vehicles are selling a service subject to sales tax. Rule 701—225.4(423) contains more information on purchases made by auto body shops. 218.2(2) Definitions. For purposes of this rule: "Repair" includes any type of restoration, renovation or replacement of any motor, engine, working parts, accessories, body, or interior of a vehicle. “Repair” does not include the installation of new parts or accessories, which are not replacements, added to a vehicle. "Vehicle" means the same as defined in Iowa Code section 321.1(90). 218.2(3) Disposal fees. Fees charged with the disposal of any item in connection with the performance of this service are subject to sales tax if the disposal fee of the item is not separately contracted for or itemized in the billing of the repair service. If the disposal fee is itemized or separately contracted for, the disposal fee is not subject to sales tax. Items that may be subject to disposal fee include but are not limited to air filters, batteries, oil, or tires. This rule is intended to implement Iowa Code section 423.2(6)“c.”701—218.3(423) Motorcycle, scooter, and bicycle repair. 218.3(1) In general. Persons engaged in the business of repairing motorcycles, scooters, and bicycles are selling a service subject to sales tax. 218.3(2) Definitions. For purposes of this rule: "Bicycle" includes human-powered bicycles and electric bicycles. "Motorcycle" includes autocycles. "Repair" means the same as defined in rule 701—211.1(423). This rule is intended to implement Iowa Code section 423.2(6)“ag.”701—218.4(423) Battery, tire, and allied. 218.4(1) Batteries in general. Persons engaged in the business of installing, repairing, maintaining, restoring, or recharging batteries and any services related to or connected therewith are selling a service subject to sales tax. 218.4(2) Tires in general. Persons engaged in the business of installing, repairing, or maintaining tires and any services related to or connected therewith are selling a service subject to sales tax. 218.4(3) Disposal fees. Disposal fees charged in connection with the performance of the services identified in this rule are subject to sales tax if the disposal fee is not itemized or separately contracted for in the billing for the charge of the service. If the disposal fee charged in connection with the performance of the services identified in this rule are itemized or separately contracted for, then the disposal fee is not subject to sales tax. Items that may be subject to disposal fee include but are not limited to air filters, oil, tires, and batteries. This rule is intended to implement Iowa Code sections 423.2(6)“d” and 423.2(7)“a”(1).701—218.5(423) Boat repair. 218.5(1) In general. Persons engaged in the business of repairing watercraft are selling a service subject to sales tax. 218.5(2) Definitions. For purposes of this rule: "Repair" means the same as defined in rule 701—211.1(423). "Watercraft" means the same as defined in Iowa Code section 462A.2. This rule is intended to implement Iowa Code section 423.2(6)“h.”701—218.6(423) Vehicle wash and wax. 218.6(1) In general. Persons engaged in the business of vehicle washing and waxing are selling a service subject to sales tax, whether performed by hand, machine, or coin-operated device. Rule 701—225.7(423) contains more information on purchases of inputs in vehicle wash and wax services. 218.6(2) Definition. For purposes of this rule: "Vehicle" means the same as defined in Iowa Code section 321.1(90). This rule is intended to implement Iowa Code section 423.2(6)“i.”701—218.7(423) Wrecker and towing. 218.7(1) In general. Persons engaged in the business of towing any vehicle are selling a service subject to sales tax. Included in this are services charges for a person to travel to any place to lift, extricate, tow, or salvage a vehicle. 218.7(2) Definitions. For purposes of this rule: "Towing" includes any means of pushing, pulling, carrying, or freeing any vehicle from mud, snow, or any other impediment, including any incidental hoisting. “Towing” does not include transporting operable vehicles from one location to another when no operative aspect of the vehicle is integral to the transporting. "Vehicle" means the same as defined in Iowa Code section 321.1(90). This rule is intended to implement Iowa Code sections 423.1(7) and 423.2(6)“bn.”701—218.8(423) Flying service. 218.8(1) In general. Persons engaged in the business of teaching a course of instruction in the art of operation and flying of an airplane, and instructions in repairing, renovating, reconditioning an airplane, or any other related service are selling a service subject to sales tax. 218.8(2) Not included. Flying services do not include those relating to agricultural aerial application, those relating to aerial commercial and chartered transportation services, and those services exempted by rule 701—211.2(423). 218.8(3) Flight instruction charges. Charges relating to flight instruction can be taxable or nontaxable. Taxable charges include but are not limited to the sales price for the following: a. Instructors’ services, ground instruction, and ground school. b. Students learning to fly with an instructor and dual flying. c. Rental of a plane. Rule 701—218.9(423) contains more information. This rule is intended to implement Iowa Code section 423.2(6)“s.”701—218.9(423) Aircraft rental. 218.9(1) In general. Persons engaged in the business of renting aircraft for 60 days or less are selling a service subject to sales tax. 218.9(2) Definition. For purposes of this rule: "Aircraft" means the same as defined in Iowa Code section 328.1. “Aircraft” also includes any drone aircraft or any aircraft transporting only the pilot. This rule is intended to implement Iowa Code section 423.2(6)“bf.”701—218.10(423) Snowmobiles, motorboats, and certain other vehicles. The sales price of snowmobiles, all-terrain vehicles, dirt bikes, race karts or go-carts, and motorboats is taxable when purchased and not classified as vehicles subject to registration. This rule is intended to implement Iowa Code chapter 423.701—218.11(423) Motor fuel, special fuel, electric fuel, aviation fuels and gasoline. 218.11(1) In general. The sales price from the sale of motor fuel, including ethanol, special fuel, and electric fuel is exempt from sales tax if (1) the fuel is consumed for highway use, in watercraft, or in aircraft, (2) the Iowa fuel tax has been imposed and paid, and (3) no refund or credit of fuel tax has been made or will be allowed. The sales price from the sale of special fuel for diesel engines used in commercial watercraft on rivers bordering Iowa is exempt from sales tax, even though no fuel tax has been imposed and paid, providing the seller delivers the fuel to the owner’s watercraft while it is afloat. 218.11(2) Refunds or credits of motor fuel and special fuel. Claims for refund or credit of fuel taxes under the provisions of Iowa Code chapter 452A must be reduced by any sales or use tax owing the state unless a sales tax exemption is applicable. Generally, refund claims or credits are allowed where fuel is purchased tax-paid and used for purposes other than to propel a motor vehicle or used in watercraft. 218.11(3) Refunds of tax on fuel purchased in Iowa and consumed outside of Iowa. Even though fuel is purchased in Iowa, fuel tax is paid in Iowa, and the fuel tax is subject to refund under the provisions of division III of Iowa Code chapter 452A relating to interstate motor vehicle operations, the refund of the fuel tax does not subject the purchase of the fuel to sales tax. 218.11(4) Tax base. The basis for computing the Iowa sales tax will be the retail sales price of the fuel less any Iowa fuel tax included in such price. Federal excise tax should not be removed from the sales price in determining the proper sales tax due. Rule 701—288.12(423) contains more information. This rule is intended to implement Iowa Code section 423.3(56).701—218.12(423) Ships, barges, and other waterborne vessels. Tax will not be imposed upon the use, within Iowa, of any ship, barge, or other waterborne vessel if that use is primarily for the transportation of property or cargo for hire on the rivers bordering this state. This exemption is also applicable to tangible personal property used as material in the construction of or as a part for the repair of any such ship, barge, or waterborne vessel. The use must be on a river or rivers bordering Iowa, not on any river or rivers bounded on both banks by Iowa territory. This rule is intended to implement Iowa Code section 423.4(10).ARC 7201CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to sales and use tax on construction activities and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 219, “Sales and Use Tax on Construction Activities,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.2, 423.2(1)“b” and “c,” 423.2(6), 423.3, 423.3(31), 423.3(37), 423.3(45), 423.3(64), 423.3(80), 423.3(85), 423.4(1), 423.5, 423.5(1)“b,” 423.5(2), 423.6(9) and 423.6(10).Purpose and Summary The purpose of this proposed rulemaking is to rescind and readopt Chapter 219, which describes the Department’s interpretation of the underlying statutes to aid the public in understanding the application of sales and use tax statutes that are primarily applicable to taxpayers engaged in construction activity. The Department proposes revisions to the rules to provide clarification and to remove language that is obsolete, unnecessary, and duplicative of statute. Included within the revisions is an addition to rule 701—219.7(423) from rule 701—281.3(423). The Department determined that Chapter 281 was no longer necessary and should be rescinded since many of the rules in that chapter were unnecessary, obsolete, or duplicative of statutory language. The Department determined that it would retain and repromulgate rule 701—281.3(423) on mobile homes and manufactured housing and add that to rule 701—219.7(423) with revisions since the subject matters of these rules are similar and would allow the public an easier means to find the information. The Notice on Chapter 281 is also published herein (ARC 7204C, IAB 12/27/23). The Department also renumbered some rules due to other edits and for organizational reasons. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A).Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 219 and adopt the following new chapter in lieu thereof: CHAPTER 219SALES AND USE TAX ON CONSTRUCTION ACTIVITIES701—219.1(423) General information and definitions. 219.1(1) Definitions. For purposes of this chapter, terms mean the same as defined in Iowa Code section 423.1 and as defined here. "Building equipment" means any vehicle, machine, tool, implement, or other device used by a contractor in erecting structures for others, or reconstructing, altering, expanding, or remodeling property of others, which does not become a physical component part of the property upon which work is performed, and which is not necessarily consumed in the performance of such work. "Building materials" means materials used in construction work, and is not limited to materials used in a construction contract. The term may also include any type of materials used for reconstruction, alteration, expansion, or remodeling of the premises or anything essential to the completion of a building or other structure for the use intended. Building materials generally consist of items that are incorporated into real property, lose their identity as tangible personal property, and cannot be removed without altering the realty, or that are consumed by the contractor during the performance of the construction contract. "Building supplies" means anything that is furnished for and used directly in the carrying on of the work of an owner, contractor, subcontractor, or builder and which is used or consumed in the course of completing the project. Such items do not have to enter into and become a physical part of the structure like building materials, but they do become as much a part of the structure as the labor that is performed on it. "Construction contract" means an agreement between a contractor and a sponsor under the terms of which the contractor agrees to provide labor, materials, supplies, and equipment to build a structure for the sponsor. "Fabricated cost" means and includes the cost of all materials as well as the cost of labor, power, transportation to the plant, and other plant expenses but not installation on the job site. "Prefabricated structure" means any structure assembled in a factory and capable of transport to the location where it will be used in the performance of a construction contract by placement on a foundation either by the buyer or a designated contractor. "Repair" means the same as mend, restore, maintain, replace and service. A repair contemplates an existing structure or tangible personal property that has become imperfect and constitutes the restoration to a good and sound condition. "Structure" means that which is artificially built up or composed of parts joined together in some definite manner and which also has some obvious or apparent functional use or purpose. Nonexclusive examples of structures include buildings; roads, whether paved or otherwise; dikes; drainage ditches; and ponds. 219.1(2) Classification and obligations. The classification of persons and business determines their obligations to pay or collect sales or use tax or claim an exemption on the sales price from sales of building materials, supplies, equipment, other tangible personal property, and labor. a. Classification types.Persons and businesses can be classified as an owner, contractor, contractor-retailer, retailer, or repairperson. b. Classification.A specific classification must be chosen and once chosen should not be changed unless it has become clear from an extended course of dealing that the business has become something other than what it was established to be. c. Assessment for new businesses.It can be difficult for a person starting a business to determine if that business will be engaged in contracting, retailing, a combination of the two, or providing repair; however, any reasonable assessment of a new business’s status will be honored by the department. d. Prohibited.Changing the status of a business from job to job to avoid the obligation to pay or collect tax is not a lawful activity. e. Example.A business is founded to engage in contracting and purchases construction materials based on the fact that it is a contractor, but the founder must sell construction materials at retail if the business is to survive. If, after two years’ operation, half the revenue is from construction contracts and half from retail sales, then the business has become a contractor-retailer and henceforth should purchase construction materials based on that status. This rule is intended to implement Iowa Code chapter 423.701—219.2(423) Contractors—consumers of building materials, supplies, and equipment by statute. 219.2(1) Inapplicability of resale exemption. A contractor, subcontractor, or builder cannot claim an exemption for resale when purchasing building materials or supplies even if the contractor, subcontractor, or builder later separately itemizes material and labor charges for construction contracts or contracts for reconstruction, alteration, expansion, or remodeling. 219.2(2) Bidding considerations. When bidding on a contract, a contractor (general, special or subcontractor) should anticipate that sales or use taxes will increase the cost of materials by the tax unless the sponsor is a designated exempt entity. The necessary allowance should be made in figuring the bid inasmuch as the contractor will be held responsible for paying the tax on building supplies, materials and equipment. The tax should not be identified as a separate item in the formal bid since the contractor cannot charge sales tax. This rule is intended to implement Iowa Code section 423.2(1)“b.”701—219.3(423) Sales of building materials, supplies, and equipment to contractors, subcontractors, builders, or owners. Suppliers or dealers that sell materials, and supplies, and equipment to contractors, subcontractors, builders, or owners are required to collect Iowa sales tax from those persons based upon the sales price from such sales. Reference 701—subrule 219.23(4), which deals with construction contracts with designated exempt entities, for an explanation of one of the few exceptions to this requirement. The fact that a contractor, subcontractor, or builder holds an Iowa retail sales tax permit and has a tax number does not entitle that person to purchase building materials, supplies, and equipment without paying sales tax to the vendor, unless the building materials, supplies, or equipment are purchased for resale. Materials purchased out of state for use in Iowa are subject to the Iowa use tax, which is payable in the quarter that the materials are delivered into the state. 219.3(1) Examples of building materials and supplies. The following is a nonexhaustive list of typical items that are building materials and supplies:AsphaltBricksBuilders’ hardwareCaulking materialCementCentral air-conditioningCleaning compoundsConduitDoorsDuctsElectric wiring, connections, and switching devicesFencing materialsFlooring**Floor coverings which are shaped to fit a particular room or area and which are attached to the supporting floor with cement, tacks or tack strips or by some other method making a permanent attachment are considered to be building materials. Reference rule 701—16.48(422,423) for an exception concerning carpeting. Carpeting (whether attached to the floor or not) is not treated as a building material for the purposes of this chapter. Rugs, mats and linoleum types of floor coverings which are not attached but which are simply laid on finished floors are also not considered to be building materials.GlassGravelInsulationLathLeadLighting fixturesLimeLinoleum*LubricantsLumberMacadamMillworkModular and mobile homesMortarOilPaintPaperPiping, valves, and pipe fittingsPlasterPlates and rods used to anchor masonry foundationsPlumbing supplies Polyethylene coversPower poles, towers, and linesPuttyReinforcing meshRock saltRoofingRopeSandSheet metalSteelStoneStuccoTileWallboardWall copingWater conditionersWeather strippingWindowsWindow screensWire netting and screenWood preserver 219.3(2) Examples of building equipment. Building equipment includes, but is not limited to, such items as:CompressorsDrill pressesElectric generatorsFormsHand toolsLathesReplacement parts for equipmentScaffoldsToolsVehicles including grading, lifting and excavating vehicles 219.3(3) Taxability of equipment. Construction equipment purchased by a contractor that is intended for use in the performance of an Iowa construction contract is subject to the Iowa sales or use tax. Equipment that is rented for use on or in connection with an Iowa construction contract would normally be rented subject to tax. Rule 701—219.21(423) provides an explanation of the existing exemption in favor of rented machinery used by a contractor on a job site. This rule is intended to implement Iowa Code sections 423.2(1)“b” and 423.5.701—219.4(423) Contractors, subcontractors, or builders who are retailers. In some instances, contractors, subcontractors, and builders are in a dual business that includes reselling to the general public on a recurring over-the-counter basis the same type of building materials and supplies that are used by the contractors, subcontractors, and builders in their own construction work. A person operating in such a manner is referred to in this chapter as a contractor-retailer. 219.4(1) Determination of contractor-retailer or contractor. Any person who is engaged in the performance of construction contracts or contracts for reconstruction, alteration, expansion, or remodeling and who also sells building materials or other items at retail is obligated to examine the person’s business and determine if it is that of a contractor or a contractor-retailer. 219.4(2) Taxability of sales by contractor-retailers. A sale by a contractor-retailer of building materials, supplies, or equipment to owners is a retail sale and subject to sales tax. Contractors, subcontractors, or builders that purchase building materials, supplies, or equipment to be used in the performance of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling are also retail sales and subject to sales tax. Contractors, subcontractors, or builders who purchase building materials, supplies, or equipment to be used in the performance of a job, which does not rise to the level of a new construction, reconstruction, alteration, expansion, or remodeling, are acting as retailers and not as contractors and must charge and collect from their customers sales tax on the sales price charged for materials, supplies, or equipment used in completing the job and on the sales price charged for any taxable service labor used in completing the job or on the entire charge, if materials and labor are not separately invoiced. 219.4(3) Withdrawals from inventory. When a contractor-retailer withdraws from inventory building materials, supplies, or equipment to be used in a construction contract performed by the contractor-retailer or in a contract for reconstruction, alteration, expansion, or remodeling performed by the contractor-retailer, the contractor-retailer must pay use tax on the cost of the materials, supplies, or equipment withdrawn from inventory. When a contractor-retailer does repair work, the contractor-retailer is acting as a retailer and not a contractor and must collect tax on the sales price charged for materials used in the repair and on the sales price charged for any labor used in the repair, which is a taxable service or on the entire charge if materials and labor are not separately invoiced. 219.4(4) Characteristics of contractor-retailer. The following is a list of the characteristics of the usual contractor-retailer: a. A contractor-retailer is a business that makes frequent retail sales to the public or to other contractors and also engages in the performance of construction contracts or contracts for reconstruction, alteration, expansion, or remodeling of structures. In determining whether a business is a contractor-retailer or a retailer only, the department looks to the totality of business activity and not only to one portion of the business’s activity. Thus, the maintenance of a small retail outlet does not automatically transform a contractor-retailer into a retailer, and a large number of retail sales without a retail outlet can qualify a business as a contractor-retailer. b. A business cannot claim the status of a contractor-retailer unless the business is in possession of a valid sales tax permit to report tax due from retail sales and from withdrawals of materials or supplies from inventory for use in construction contracts. c. A contractor-retailer must purchase building materials, supplies, and equipment placed in its inventory for resale; the contractor-retailer should not pay sales or use tax to its suppliers for these items. Instead, the contractor-retailer should provide suppliers with valid resale exemption certificates. When a valid certificate is furnished, the vendor is relieved from the responsibility of collecting the tax if the purchaser has demonstrated that the purchaser is a contractor-retailer under the provisions of this rule. d. A contractor-retailer purchasing construction material that will not be placed in its inventory must purchase that material subject to Iowa sales or use tax. For example, if a contractor-retailer purchases wet concrete for use in a construction project, that purchase is taxable. e. A contractor-retailer usually has a retail outlet, but if not, frequent sales to individuals or other contractors qualify a business as a contractor-retailer. f. Contractor-retailers do not pay tax on materials withdrawn from inventory for use in construction projects performed outside Iowa. g. The business records of a contractor-retailer must clearly reflect the use made of items purchased, and the records must be in such form that the director can readily determine that the proper sales and use tax liability is being reported and paid. 219.4(5) Examples. The following examples are offered to illustrate the responsibility for paying and remitting sales tax under this rule: This rule is intended to implement Iowa Code section 423.2(1)“b.”701—219.5(423) Building materials, supplies, and equipment used in the performance of construction contracts within and outside Iowa. 219.5(1) Use by manufacturer. a. Outside of Iowa.The use of building materials, supplies, or equipment in the performance of construction contracts or contracts for reconstruction, alteration, expansion, or remodeling by the manufacturer outside Iowa is not a sale of tangible personal property and, therefore, is not a taxable event. b. Within Iowa.The use of tangible personal property as building materials, supplies, or equipment by the manufacturer in the performance of construction contracts or contracts for reconstruction, alteration, expansion, or remodeling in Iowa is a sale at retail and a taxable event. The tax is computed on the manufacturer’s fabricated cost or cost of production. 219.5(2) Use by contractor-retailer outside of Iowa. A contractor-retailer’s withdrawal of materials from inventory for use in construction contracts or contracts for reconstruction, alteration, expansion, or remodeling outside this state is not a taxable event. 219.5(3) Use by contractor in and outside of Iowa. A contractor is a consumer by statute. A contractor’s purchase of materials for use in a construction contract or a contract for reconstruction, alteration, expansion, or remodeling is subject to tax whether the materials are purchased for use in construction contracts performed in Iowa or outside this state. 219.5(4) Purchase by manufacturer. A manufacturer’s purchase of tangible personal property consumed as building materials in the manufacturer’s or the manufacturer’s subcontractor’s performance of construction contracts or contracts for reconstruction, alteration, expansion, or remodeling within Iowa is taxable. The tax is computed on the fabricated cost or cost of production of the materials. The purchase of tangible personal property consumed by a manufacturer as building materials in the manufacturer’s or the manufacturer’s subcontractor’s performance of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling outside Iowa is not subject to tax. 219.5(5) Purchases from and used outside of Iowa. Building materials, supplies, or equipment purchased outside Iowa, brought into this state, and subsequently used in the performance of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling outside this state is exempt from use tax. This rule is intended to implement Iowa Code section 423.2(1)“c.”701—219.6(423) Tangible personal property used or consumed by the manufacturer thereof. When a person who is primarily engaged in the manufacture of building materials, supplies, or equipment for sale and not for the person’s own use or consumption, considering the totality of the business, from time to time uses or consumes the building materials, supplies, or equipment for construction purposes, the person is deemed to be making retail sales to one’s self and subject to tax on the basis of the fabricated cost of the items so used or consumed for construction purposes. If equipment, building materials, or supplies are used by a manufacturer in the performance of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling, a “sale” occurs only if the equipment, materials, or supplies are used in the performance of such contract in Iowa. This rule is intended to implement Iowa Code section 423.2(1)“c.”701—219.7(423) Prefabricated structures. 219.7(1) Basic concepts. Prefabricated structures include modular homes, mobile homes, manufactured housing, sectionalized housing, precut housing packages, and panelized construction. 219.7(2) Taxability. a. Sales or use tax on the full purchase price is due when prefabricated structures are sold to or used by owners, contractors, subcontractors, or builders, or delivered under a contract for sale or sold for use in Iowa. b. Sales of prefabricated structures that have not been erected on a foundation are considered sales of tangible personal property and thus are taxable on the purchase price charged to a consumer or user by the seller at the time of retail sale. 219.7(3) Exceptions. The following are exceptions to the general taxability rule described above, applicable to modular and mobile homes and manufactured housing. a. Modular homes.Modular homes, as defined in Iowa Code section 435.1, cannot be attached or towed behind a motor vehicle, and which does not have permanently attached to its body or frame any wheels or axles. Only 60 percent of the sales price from the sale of a modular home is subject to Iowa tax. This 60 percent rule is applicable only to structures that meet the definition of “modular home” and not to other types of prefabricated structures that do not meet the definition of the term “modular home” such as sectionalized housing or panelized construction. Also, the 60 percent rule is not applicable to the sale of materials used in the assembly of a modular home, only to the sale of the finished product. b. Mobile homes and manufactured housing. (1) Use tax. Mobile homes and manufactured housing, as defined in Iowa Code section 321.1, are subject to use tax at the rate of 20 percent of the purchase price. All mobile homes sold in Iowa or sold outside Iowa for use in this state are sold subject to Iowa use tax, whether sold for placement within or outside a mobile home park. See Iowa Code section 423.26A on the collection of use tax and certificates of title for manufactured housing. (2) Exemption. To be eligible for the use tax exemption provided in Iowa Code section 423.6(9), the purchaser of a mobile home or manufactured housing must provide sufficient documentation to the county treasurer that verifies the Iowa use tax under Iowa Code section 423.5 has been previously imposed and paid. (3) Trade-in allowance. A trade-in allowance will result in a reduction in the price of mobile homes and manufactured housing subject to tax if all the conditions found in Iowa Code section 423.3(59) are met. 1. The property traded for the mobile home or manufactured housing is a type of property normally sold in the regular course of business of the retailer selling the home or housing, and 2. The retailer intends ultimately to sell the traded property at retail or to use the traded property in the manufacture of a like item. Sales price$20,000Trade-in value$5,000Buyer’s price (Sales price minus trade-in)$15,000Amount subject to tax (Full sales price multiplied by 20%)$4,000Use tax due (5%)$200Because the manufactured home will not be ultimately sold at retail or used to manufacture a like item, the trade-in value does not result in a reduction of the price subject to tax.Sales price$20,000Trade-in value$5,000Buyer’s price (Sales price minus trade-in)$15,000Amount subject to tax (Full sales price multiplied by 20%)$3,000Use tax due (5%)$150In this example, the trade-in value does result in a reduction of the price subject to tax because the dealer intends to sell the traded-in manufactured housing at retail. 219.7(4) Tax consequences of sales of modular homes by various parties, some operating in a dual capacity. a. A retailer (dealer) that is not additionally a contractor or manufacturer of modular homes purchases those homes tax-free from a wholesaler or manufacturer for subsequent resale to contractors or owners. Tax must be collected when the dealer sells the modular home to an owner or contractor. b. A contractor that is not a dealer must pay tax when purchasing a modular home for use in a construction contract or for some other purpose. A contractor’s sale of a modular home to an owner or another contractor is treated as explained in Examples 2 and 4 of subrule 219.4(5). c. A dealer that is also a contractor will purchase homes tax-free for inclusion in its inventory. Tax is imposed when the dealer withdraws a home from inventory for sale or use in the performance of a construction contract as explained in rule 701—219.4(423). d. A manufacturer that acts as its own dealer and sells its own modular homes at retail to contractors or owners will collect tax on the sales price from its sales of those modular homes to its customers. This situation is in contrast to that described in subrule 219.7(5) in which a manufacturer uses its own modular homes in the performance of construction contracts and the tax due is computed on a sum other than the sales price from the sale of a home.What is stated in this subrule concerning sales of modular homes is generally applicable to the use tax on mobile homes and manufactured housing. However, one distinct difference is that mobile homes and manufactured housing are seldom, if ever, purchased by a dealer for any subsequent use in the performance of construction contracts. A dealer will often purchase a mobile home or manufactured housing for subsequent resale to a customer as tangible personal property and then will place or install the mobile home or manufactured housing on a site prepared by the customer. This is not the performance of a construction contract, and the dealer is a retailer who installs tangible personal property and is not a construction contractor. 219.7(5) Manufacturers who perform construction contracts. When companies whose principal business is the manufacture of prefabricated structures use those structures in the performance of construction contracts, this use is treated as a retail sale of the structures on the manufacturer’s part. Rule 701—219.6(423) provides a description of the sales tax treatment of this sort of transaction. The 60 percent rule, as described in subrule 219.7(3) above, is not applicable when calculating the amount of tax owed by a manufacturer. 219.7(6) Examples. The following examples are intended to illustrate who must collect or remit sales or use tax when a manufacturer sells a modular home to a contractor or owner or acts as a contractor in erecting the home. The incidence of tax depends on several factors, such as the nature of the manufacturer’s business, the point of delivery, the contractual agreement, and whether or not a sale for resale has occurred. This rule is intended to implement Iowa Code sections 423.2(1)“b,” 423.3(64), 423.5(1)“b,” 423.6(9), and 423.6(10).701—219.8(423) Types of construction contracts. 219.8(1) Types of construction contracts. Construction contracts include lump-sum contracts; cost plus contracts; time and material contracts; unit price contracts; guaranteed maximum or upset price contracts; construction management contracts; design-built contracts; and turnkey contracts. 219.8(2) Scope. A contract for the installation of one or more of the items listed below does not necessarily transform that contract into a construction contract or a contract for reconstruction, alteration, expansion, or remodeling. Thus, for example, hiring a contractor to install a light fixture in an existing building is not, without more, a construction contract or a contract for reconstruction, alteration, expansion, or remodeling. 219.8(3) Examples. The following is a nonexhaustive list of activities and items that could fall within the scope of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling of a structure. This list should not be used to distinguish machinery and equipment from real property or structures since such a determination is factual.Ash removal equipment (installed as distinguished from portable units)Automatic sprinkler systems (fire protection)Awnings and venetian blinds that become attached to real propertyBoilers (installed as distinguished from portable units)Brick workBuilder’s hardwareBurglar alarm and fire alarm fixturesCaulking materials workCement workCentral air conditioner installationCoal handling equipment (installed as distinguished from portable units)Concrete workCounters, lockers (installed as distinguished from portable units), and prefabricated cabinetsDrapery installationElectric conduit work and items relating theretoElectric distribution linesElectric transmission linesFloor covering that is permanently installed. Subrule 219.3(3) provides information on an exception to this regarding carpetingFlooring workFurnaces, heating boilers and heating unitsGlass and glazing workGravel work (excluding landscaping)Installation of modular homes on foundationsLathing workLead workLighting fixturesLime workLumber and carpenter worksMacadam workMillwork installationMortar workOil workPaint booths and spray booths (installed as distinguished from portable units)Painting workPaneling workPapering workPassenger and freight elevatorsPiping valves and pipe fitting workPlastering workPlumbing workPrefabricated cabinets, counters, and lockers (installed as opposed to portable units)Putty workRefrigeration units (central plants installation as distinguished from portable units)Reinforcing mesh workRoad construction (concrete, bituminous, gravel, etc.)Roofing workSheet metal workSign installation (other than portable sign installation)Steel workStone workStucco workTile work—ceiling, floor and wallsUnderground gas mainsUnderground sewage disposalUnderground water mainsVault doors and equipmentWallboard workWall coping workWallpaper workWater heater and softener installationWeather stripping workWire net screen workWood preserving work This rule is intended to implement Iowa Code sections 423.2(1)“c” and 423.3(37).701—219.9(423) Machinery and equipment sales contracts with installation. 219.9(1) Machinery and equipment sales with installation. Machinery and equipment sales contracts with installation are transactions that are considered a sale of tangible personal property to a final consumer. Therefore, the individual who sells the equipment with installation must purchase the machinery and equipment tax-free as a purchase for resale. This rule should not be confused with subrule 219.3(3) regarding equipment. The contract should itemize the sales tax separately. If a contractor wishes to avoid an itemization of sales and use tax on machinery and equipment that remains tangible personal property, the contractor can do so by figuring the tax as a general overhead expense and including a statement in the contract and related invoices that “sales tax is included in the contract price.”If the sales transaction is one completed out of state and shipped in interstate commerce to a consumer or a user in Iowa, and not otherwise exempt from tax, the final purchaser is required to pay Iowa use tax on the purchase price of the machinery and equipment. 219.9(2) Taxable services sales with installation. Certain services that are enumerated in Iowa Code section 423.2 are subject to tax when performed under a contract for the installation of machinery and equipment that is not done in connection with new construction, reconstruction, alteration, expansion, or remodeling of a building or structure. Examples of enumerated services include electrical installation; plumbing; welding; and pipe fitting. Other labor charges for job site installation that do not involve a taxable enumerated service are not subject to tax if the charges are separately contracted or, if no written contract exists, are separately itemized on the billing from the seller to the purchaser. This rule is intended to implement Iowa Code sections 423.2(6), 423.3, and 423.5.701—219.10(423) Contracts with equipment sales (mixed contracts). Construction contracts or contracts for reconstruction, alteration, expansion, or remodeling with equipment sales, commonly known as mixed contracts, place a dual burden on the contractor, as a contractor is a consumer of construction materials and also a retailer of the machinery and equipment. 219.10(1) Out-of-state supplier. As a consumer by statute of construction building materials, supplies, and building equipment, a contractor is required to pay sales tax to the supplier at the time of purchase or remit use tax to the department if purchasing building materials, supplies, and building equipment from an out-of-state supplier. 219.10(2) When machinery and equipment do not become real property. Machinery and equipment must be purchased for resale by the contractor if the machinery and equipment does not become real property. This means that the contractor does not pay tax to a supplier at the time of purchase of machinery and equipment, but instead, the contractor is responsible for collecting sales tax on the sales price from a sponsor and remitting it to the department. 219.10(3) Lump-sum amount. In a mixed contract, the elements of the contract should be separated for sales tax purposes. When a mixed construction contract is let for a lump-sum amount, the machinery and equipment furnished and installed shall be considered, for the purposes of this rule only, as being sold by the contractor for an amount equal to the cost of the machinery and equipment. 219.10(4) Permits. Persons required to collect sales tax in Iowa under machinery and equipment contracts or a mixed contract are required to have a sales and use tax permit. This rule is intended to implement Iowa Code section 423.2(1)“b.”701—219.11(423) Distinguishing machinery and equipment from real property. A construction contract or a contract for reconstruction, alteration, expansion, or remodeling does not include a contract for the sale and installation of machinery or equipment. Machinery and equipment are tangible personal property when it is purchased and remains tangible personal property after installation. Generally, tangible personal property can be moved without causing damage or injury to itself or to the structure, does not bear the weight of the structure, and does not in any other manner constitute an integral part of a structure. Manufactured machinery and equipment that does not become permanently annexed to the realty remains tangible personal property after installation. 219.11(1) Examples of tangible personal property that remains tangible personal property after installation. Under normal conditions, the following nonexclusive list remains tangible personal property after installation. a. Furniture, including office furniture and equipment, washers and dryers, portable lamps, home freezers, portable appliances, and window air-conditioning units. b. Portable items such as casework, tables, counters, cabinets, lockers, athletic and gymnasium equipment, and other related easily movable property attached to the structure. c. Machinery, equipment, tools, appliances, and materials used exclusively as such by manufacturers, industrial processors, and others performing a processing function with the items. d. Radio and television sets and antennas, including radio, television, and cable television station equipment, but not broadcasting or telecommunications towers. e. Certain equipment used by restaurants and in institutional kitchens; for instance, dishwashers, stainless steel wall cabinets, stainless steel natural gas stoves, stainless steel natural gas convection ovens, and combination ovens and steamers with stands. This paragraph is not applicable to similar items used in residential kitchens.Therefore, sales of items that remain tangible personal property after installation are subject to sales tax. If the installation of such items involves the performance of one or more enumerated services, the labor charges are also subject to sales tax, unless an exemption applies. 219.11(2) Examples of tangible personal property that becomes realty after installation. a. Under normal conditions, the following nonexhaustive list becomes a part of realty. (1) Boilers and furnaces. (2) Built-in household items such as kitchen cabinets, dishwashers, sinks (including faucets), fans, garbage disposals and incinerators. (3) Buildings, and structural and other improvements to buildings, including awnings, canopies, foundations for machinery, floors (including computer room floors), walls, general wiring and lighting facilities, roofs, stairways, stair lifts, sprinkler systems, storm doors and windows, door controls, air curtains, loading platforms, central air-conditioning units, building elevators, sanitation and plumbing systems, decks, and heating, cooling and ventilation systems. (4) Fixed (year-round) wharves and docks. (5) Improvements to land including patios, retaining walls, roads, walks, bridges, fencing, railway switch tracks, ponds, dams, ditches, wells, underground irrigation systems, drainage, storm and sanitary sewers, and water supply lines for drinking water, sanitary purposes and fire protection. Rule 701—214.10(423) provides more information on drainage tile. (6) Mobile and modular homes installed on foundations. (7) Planted nursery stock. (8) Residential water heaters, water softeners, intercoms, garage door opening equipment, pneumatic tube systems and music and sound equipment (except portable equipment). (9) Safe deposit boxes, drive-up and walk-up windows, night depository equipment, remote TV auto teller systems, vault doors, and camera security equipment (except portable equipment). (10) Seating in auditoriums and theaters and theater stage lights (except portable seating and lighting). (11) Silos and grain storage bins. (12) Storage tanks constructed on the site. (13) Swimming pools (wholly or partially underground (except portable pools)). (14) Truck platform scale foundations. (15) Walk-in cold storage units that become a component part of a building. b. Exception for installation of new or replacement items. Sales of items that become a part of a structure to contractors, subcontractors, or builders for use in the performance of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling of a structure are retail sales subject to sales tax to be paid by the contractor, subcontractor, or builder. However, a contract for installation of new or replacement items in an existing structure is not necessarily a construction contract or a contract for reconstruction, alteration, expansion, or remodeling of that structure. This rule is intended to implement Iowa Code sections 423.2(6) and 423.3(37).701—219.12(423) Tangible personal property that becomes structures. Items that are manufactured as tangible personal property can, by their nature, become structures. However, the determination is factual and must be made on an item-by-item basis. 219.12(1) Criteria to determine if tangible personal property has become a structure. The following are intended only to be a summation of factors that the department will consider in determining whether or not a project involves construction: a. The degree of architectural and engineering skills necessary to design and construct the structure. b. The overall scope of the business and the contractual obligations of the person designing and building the structure. c. The amount and variety of materials needed to complete the structure, including the identity of materials prior to assembly and the complexity of assembly. d. The size and weight of the structure. e. The permanency or degree of annexation of the structure to other real property, which would affect its mobility. f. The cost of building, moving or dismantling the structure. 219.12(2) Example. A farm silo, which is a prefabricated glass-lined structure, is intended to be permanently installed. The prefabricated glass-lined structure is 70 feet high and 20 feet around, weighs 30 tons, and is affixed to a concrete foundation weighing 60 tons, which is set in the ground specifically for the purpose of supporting the silo. The assembly kit includes 105 steel sheets and 7,000 bolts. The silo can be removed without material injury to the realty or to the unit itself at a cost of $7,000. In view of its massive size, the firm and permanent manner in which it is erected on a most substantial foundation, its purpose and function, the expense and size of the task and the difficulty of removing it, the silo is considered a structure and not machinery or equipment. This rule is intended to implement Iowa Code section 423.3(37).701—219.13(423) Tax on enumerated services. The tax on the services enumerated in Iowa Code section 423.2 is a tax on labor. When such services are performed on or connected with new construction, reconstruction, alteration, expansion or remodeling of structures, the services are exempt from tax. Neither the repair nor the rental of machinery on the job site is exempt from tax under this rule. Rule 701—219.21(423) provides an explanation of the exemption in favor of rented machinery used by a contractor on a job site.The distinction between a repair and new construction, reconstruction, alteration, expansion, and remodeling activities can, oftentimes, be difficult to grasp. Therefore, the intent of the parties and the scope of the project are factors that determine whether certain enumerated services are exempt. An area of particular difficulty is the distinction between repair and remodeling. Remodeling a building or other structure means much more than making repairs or minor changes to it. Remodeling is a reforming or reshaping of a structure or some substantial portion of it to the extent that the remodeled structure or portion of the structure is in large part the equivalent of a new structure or part thereof. 219.13(1) Repair. Since retailers, as defined in Iowa Code section 423.1(47), may purchase building materials, supplies, and equipment for resale, persons making taxable repairs are not considered to be owners, contractors, subcontractors, or builders and are not subject to the provisions of Iowa Code section 423.2(1)“b.” Repairpersons and servicepersons will normally purchase building materials and supplies free of tax for subsequent resale to their customers; contractor-retailers will also do this. However, contractors, subcontractors, or builders who may make repairs are subject to Iowa Code section 423.2(1)“b” and must pay tax at the time building materials, supplies, and equipment are purchased from vendors even though the contractors, subcontractors, or builders hold a valid sales tax permit. In determining who is a contractor and who is a retailer of repair services, the department looks to the total business of the entity in question and not to any one portion of it. Thus, the fact that a business whose overall activity is contracting has a division engaged in taxable repair services does not transform that business into a retailer providing services rather than a contractor. When contractors do repair work, they may separately itemize labor and materials charges and collect sales tax on all charges; if the labor and materials charges are billed as one lump sum, the entire amount is subject to sales tax. A contractor’s markup on a materials charge is part of any taxable sale. A contractor can take a credit for any tax paid on the purchase of materials that are sold as part of a service transaction.When other persons making repairs sell tangible personal property at retail in connection with any taxable service enumerated in Iowa Code section 423.2, those persons shall collect and remit tax on the sales price. The person making repairs shall purchase tangible personal property for resale when the property is used in the repair job and is resold to a customer. Rule 701—225.3(423) provides an explanation of when persons performing services sell the property that the persons use in performing those services to their customers. Nonexclusive examples of repair situations are as follows: a. Repair of broken or defective glass. b. Replacement of broken, defective, or rotten windows. c. Replacing individual or damaged roof shingles. d. Replacing or repairing a segment of worn-out or broken kitchen cabinets. e. Repair or replacement of broken or damaged garage doors or garage door openers. f. Replacing or repairing a part of a broken or worn tub, shower, or faucets. g. Replacing or repairing a broken water heater, furnace, or central air conditioning compressor. h. Restoration of original wiring in a house or building. 219.13(2) New construction, reconstruction, alteration, expansion, and remodeling. The following are examples of new construction, reconstruction, alteration, expansion, and remodeling activities: a. The building of a garage or adding a garage to an existing building is considered new construction. b. Adding a wooden redwood deck to an existing structure is considered new construction. c. Replacing the entire roof on an existing structure is considered reconstruction. d. Adding a new room to an existing building is considered new construction. e. Adding a new room by building interior walls is considered alteration. f. Replacing kitchen cabinets with some structural modification to the kitchen layout is considered remodeling. g. Laying a new floor over an existing floor is considered remodeling. h. Building a new wing to an existing building is considered an expansion. i. Rearranging the interior physical structure of a building is considered remodeling or alteration. j. Installing manufactured housing or a modular or mobile home on a foundation is considered new construction. However, rule 701—282.8(423) provides a description of the special treatment of taxable installation charges when the taxable sale of manufactured housing as real estate occurs. k. Replacing an entire water heater, water softener, furnace, or central air-conditioning unit.In all instances of new construction, reconstruction, alteration, expansion, or remodeling, the contractor is the final consumer of the materials, supplies, or equipment used in completing the job and is therefore responsible for paying sales tax to its supplier on the full sales price of the materials, supplies, or equipment used in the project. However, the contractor is not to charge the owner sales tax on any labor charges associated with completing the job. 219.13(3) “On or connected with.” The term “on or connected with” is broad and should be used to convey generally accepted meaning. Therefore, in a specific situation, the facts relating thereto are controlling in determining whether the exemption is applicable. “On or connected with” does not connote that those things connected have to be primary or subsidiary to the construction, reconstruction, alteration, expansion or remodeling of the real property. An incidental relationship can qualify the activity for exemption if the relationship forms an intimate connection with the construction activity. For example, the service of excavating and grading relating to the clearing of land to begin construction of a building would qualify for the exemption; however, excavating and grading land without motive toward construction would not qualify for exemption even though at some later date plans to construct a building were created and a structure was actually erected. 219.13(4) Time and physical relationship. a. Time.The presence of a time relationship can also be a factor in determining the applicability of exemption. For example, tax would not apply to separate labor charges relating to the installation of production machinery and equipment in a building while remodeling of the real property was in progress. However, if a year after all construction activity has ended, the owner decides to install a piece of production machinery in the building, any taxable enumerated services relating thereto would be subject to tax. Further, if, following construction, the land is graded for the purpose of seeding a new lawn, the exemption would be applicable. However, if the lawn does not grow and the land is regraded the following year, the exemption would not be applicable. Therefore, the motive behind the activity and the course of events that could reasonably be expected to occur would be a further consideration in determining if the exemption is applicable. b. Physical.A physical relationship is also a factor that should be evaluated. If a building is constructed to house machinery, any enumerated services relating to the installation of that machinery would be exempt from tax. For example, piping joining two pieces of equipment housed in separate buildings would qualify for exemption if the equipment in either building was installed while such new construction, reconstruction, alteration, expansion or remodeling to the structure was also taking place to house the equipment. c. Incidental relationship.On the other hand, an incidental relationship, a time relationship and close physical proximity may not be enough to support the conclusion that a taxable service is performed in connection with new construction or reconstruction. For example, a homeowner hires a contractor to add a new room to an existing home. The existing home is in need of a number of the repairs described in subrule 219.13(1); for example, it is in need of rewiring and replacement of a broken window. The contractor rewires the home and repairs the window in addition to building the new room. The taxable services that the general contractor performs while rewiring the home and repairing the window are not performed in connection with the construction of the new room simply because those services happen to be performed at the same time and on the same home as the new construction. If the addition of the new room were the cause of the need for the taxable service (e.g., the window was broken during construction of the new room) and not just a convenient occasion for performance of the service, that performance would be exempt from tax. d. Determination of taxability.Facts and motives are important in the determination of the taxability of services relating to construction activities. It should also be noted that taxes on enumerated services are applicable to repair or installation work that is not on or connected with new construction, reconstruction, alteration, expansion, or remodeling. 219.13(5) Various nontaxable services. Services associated with new construction or reconstruction, for example, that are not taxable include but are not limited to brick laying, concrete finishing, tiling, siding installation, laying of linoleum and other flooring and carpet installation. No tax can be collected on the performance of these services even when they are furnished in connection with the performance of repairs. 219.13(6) Taxable construction-related services. a. Carpentry repair or installation.Persons engaged in the business of carpentry, as the trade is known in the usual course of business, are selling a service subject to sales tax, regardless of whether they perform repair or installation. The carpentry services can be conducted on or within real or personal property. b. Roof, shingle, and glass repair.Persons engaged in the business of repairing, restoring, or renovating roofs or shingles or restoring or replacing glass, whether the glass is personal property or affixed to real property, are selling a service subject to sales tax. c. Electrical and electronic repair and installation. (1) In general. Persons engaged in the business of repairing or installing electrical wiring, fixtures, or switches in or on real property, or repairing or installing any article of tangible personal property powered by electric current, are selling a service subject to sales tax. This includes installation of semiconductors, such as vacuum tubes, transistors, or integrated circuits, or installation or repair of machinery or equipment that functions mainly through the use of semiconductors. (2) New machinery or equipment. The sales price of the electrical or electronic installation is exempt from tax if the sales price is charged for the installation of new machinery or equipment. (3) Definition. For purposes of this subrule: "Installation" includes affixing electrical wiring, fixtures or switches to real property; affixing any article of personal property powered by electric current to any other article of personal property; or making any article of personal property powered by electric current operative with respect to its intended function or purpose. d. Excavating and grading. (1) In general. Persons engaged in the business of excavating and grading are selling services subject to sales tax. (2) Definitions. For purposes of this subrule: "Excavation" means the digging, hauling, hollowing out, scooping out or making of a cut or hole in the earth. “Excavation” ordinarily includes not only the digging down into the earth but also the removal of whatever material or substance is found beneath the surface. "Grading" means a physical change of the earth’s structure by scraping and filling in the surface to reduce it to a common level. “Grading” includes the reducing of the surface of the earth to a given line fixed as the grade, involving excavating, filling, or both. e. Painting, papering and interior decorating. (1) In general. Persons engaged in the business of painting, papering, and interior decorating are selling a service subject to sales tax. (2) Definitions. For purposes of this subrule: "Interior decoration" means the designing or decoration of the interior of houses or buildings, counseling with respect to such design or decoration, or the procurement of furniture fixtures or home or building decorations. "Painting" means the covering of both interior and exterior surfaces of tangible personal or real property with a coloring matter and mixture of a pigment or sealant, with some suitable liquid to form a solid adherent when spread on the surface in thin coats for decoration, protection, or preservation purposes. This includes all necessary preparations, including surface preparation. “Painting” does not include automobile undercoating, the coating of railroad cars, storage tanks, or the plating of tangible personal property with metal such as but not limited to chromium, bronze, tin, galvanized metal, or platinum. "Papering" means the application of wallpaper or wall fabric to the interior of a house or building and any necessary preparations, including surface preparation. (3) Incidental service. When a person provides interior decorating services without charge, incidental to the sale of real or tangible personal property, no sales tax shall be charged in addition to the tax paid on the sales price or any part thereof of the real or tangible personal property. f. Pipe fitting and plumbing. (1) In general. Persons engaged in the business of pipe fitting and plumbing are selling a service subject to sales tax. (2) Definition. For purposes of this rule: "Pipe fitting and plumbing" means the trade of fitting, threading, installing, and repairing pipes, fixtures, or apparatus used for heating, refrigeration, or air conditioning, or concerned with the introduction, distribution, and disposal of a natural or artificial substance. g. Wood preparation. (1) In general. Persons engaged in the business of wood preparation or treatment for others are selling a service subject to sales tax. (2) Definition. For purposes of this rule: "Wood preparation" includes all processes whereby wood is sawed from logs in measured dimensions, planed, sanded, oiled, or treated in any manner before being used to repair an existing structure or create or become a part of a new structure. If such preparation is engaged solely for the purpose of processing lumber or wood products for ultimate sale at retail, such preparation may not be deemed as selling a service subject to sales tax. h. Well drilling.Persons engaged in the business of well drilling are selling a service subject to sales tax. i. Landscaping.Landscaping services performed on or in connection to new construction, reconstruction, alteration, expansion, or the remodeling of a building or structure are not subject to sales tax. Rule 701—211.24(423) provides more information about landscaping services. j. House and building moving.Persons engaged in the business of moving houses or buildings from one location to another, for any reason, are selling a service subject to sales tax. The sales price from this service is not considered a transportation charge. This rule is intended to implement Iowa Code section 423.2(6).701—219.14(423) Transportation cost. Transportation charges and delivery charges are not subject to the Iowa sales and use tax when they are separately contracted or, if no written contract exists, are separately itemized on the billing from the seller to the purchaser. More information can be found in rule 701—204.8(423). This rule is intended to implement Iowa Code sections 423.2 and 423.3.701—219.15(423) Liability of subcontractors. A subcontractor providing materials and labor on the actual construction of a structure has the same status and tax responsibilities as a contractor under Iowa statutes. However, where an individual or firm is hired to provide machinery and equipment to a contractor or a subcontractor, the individual or firm is considered a materials supplier rather than a subcontractor. This is true even though the machinery and equipment are supplied with installation. Items of machinery and equipment sold by materials suppliers to contractors shall be sold for resale, and the contractor must provide the materials supplier with a valid resale certificate. This rule is intended to implement Iowa Code sections 423.2 and 423.3.701—219.16(423) Liability of sponsors. The sponsor cannot be held responsible for a tax liability incurred on building materials, supplies, and equipment by a contractor or subcontractor in the completion of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling. Likewise, a contractor cannot be held responsible for the tax liability incurred on building materials, supplies, and equipment by a subcontractor in the completion of a construction contract or a contract for reconstruction, alteration, expansion, or remodeling. The tax responsibility regarding machinery and equipment contracts depends on where the sale was consummated. If the sale was consummated in Iowa, the seller is responsible for the collection and remittance of tax unless a valid exemption certificate is given by the purchaser. If the sale was consummated outside Iowa and the seller does not remit use tax to the department, then a use tax would be due from the Iowa user. This rule is intended to implement Iowa Code sections 423.2 and 423.5.701—219.17(423) Withholding. A sponsor of a contract with a nonregistered out-of-state (nonresident) contractor may be asked to withhold the final payment of the contract as a guarantee that sales and use taxes will be paid. The withholding requirement may also apply to registered out-of-state contractors at the discretion of the department. The department will issue a notice to the sponsor to support the withholding of funds. In order to seek a release of the notice, the out-of-state contractor is required to file a report with the department consisting of the following departmental forms:- Form 35-012, which is a listing of subcontractors to whom the out-of-state contractor has awarded a construction contract. This statement should be submitted on each project as it becomes available.
- Form 35-013, which is a list of material suppliers both in state and out of state from whom tangible personal property has been purchased for use in completing each project or contract.
- Form 35-001, which is a summary of the provisions of the actual contract.
Proposing rulemaking related to exemptions primarily of benefit to consumers and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 220, “Exemptions Primarily of Benefit to Consumers,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.2 and 423.3.Purpose and Summary The purpose of this proposed rulemaking is to rescind and adopt a new Chapter 220. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. The chapter describes the Department’s interpretation of the underlying statutes to help the public understand exemptions that primarily benefit consumers. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.govPublic Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 220 and adopt the following new chapter in lieu thereof: CHAPTER 220EXEMPTIONS PRIMARILY OF BENEFIT TO CONSUMERS[Prior to 9/7/22, see Revenue Department[701] Ch 231]701—220.1(423) Newspapers, free newspapers and shoppers’ guides. 220.1(1) In general. The sales price from the sale of newspapers, free newspapers, and shoppers’ guides is exempt from tax. The sales price from the sale of magazines, newsletters, and other periodicals that are not newspapers is taxable. 220.1(2) General characteristics of a newspaper. A “newspaper” is a periodical, published at short, stated, and regular intervals, usually daily or weekly. It is printed on newsprint with news ink, and usually contains photographs. The format of a newspaper is that of sheets folded loosely together without stapling. The larger the cross section of the population that reads a periodical in the area where the periodical circulates, the more likely it is that the department will consider that periodical to be a “newspaper.” This rule is intended to implement Iowa Code section 423.3(55).701—220.2(423) Food and food ingredients. 220.2(1) Most substances can easily be classified either as food, food ingredients, or nonfood items in accordance with Iowa Code section 423.3(57). There are, however, certain substances that are not readily distinguishable as food or nonfood and may present problems in judgment. The following guidelines apply to some of the more unique categories of eligible foods and food ingredients and ineligible nonfood items about which questions may arise. The guidelines and their lists are not to be considered all-inclusive: a. Foods eligible for purchase with food coupons. Sales of almost all substances that may be purchased with food coupons issued by the United States Department of Agriculture are exempt from Tax. Sales of certain substances that can be purchased with food stamps but are neither food nor food ingredients are taxable.These taxable sales include garden seeds and plants sold for use in gardens to produce food for human consumption. Seeds and plants eligible for purchase with food coupons include vegetable seeds and food-producing plants such as tomato and green pepper plants and fruit trees, food-producing roots, bushes, and bulbs (e.g., asparagus roots and onion sets) and seeds and plants used to produce spices for use in cooking foods. Sales of all these substances are taxable. Sales of chewing gum are taxable as sales of “candy.” b. Distilled water and ice. These substances, although having some nonfood uses, are largely used as food or as ingredients in food for human consumption. Unless these substances are specifically labeled for nonfood use or the recipient indicates that they will be used for some purpose other than as food for human consumption or as ingredients in food for human consumption, their sales are exempt from tax. c. Specialty foods. This category of exempt foods includes special dietary foods (e.g., diabetic and dietetic), enriched or fortified foods, infant formulas, and certain foods commonly referred to as health food items. These substances are food products that are substituted for more commonly used food items in the diet, and thus they are purchased for ingestion by humans and are consumed for their taste or nutritional value. Examples of items in this category of eligible foods are Metrecal, Enfamil, Sustegen, wheat germ, brewer’s yeast, sunflower seeds that are packaged for human consumption, and rose hips powder that is used for preparing tea. It is not possible to formulate a comprehensive list of exempt specialty foods. The guideline to be used to determine the eligibility of a specific product is the ordinary use of the product.Note: If the product is primarily used as a food or as an ingredient in food, then it is an exempt item; if it is primarily used for medicinal purposes as either a therapeutic agent or a deficiency corrector and only occasionally used as a food, the product is not exempt under this provision. d. Snack foods. These substances are food items and, therefore, are usually eligible for the exemption. Typical examples of snack foods are cheese puffs; corn chips; popcorn; peanuts; potato chips and sticks; packaged cookies, cupcakes, and donuts; and pretzels. Alcoholic beverages, candy, and soft drinks are examples of snack foods the sales of which are not exempt from tax; see subrule 220.3(2). e. Others. There are certain eligible food substances that are normally consumed only after being incorporated into foods sold for ingestion or chewing by humans. Sales of substances that are ingredients of items identical to those that are eligible for exemption when sold as finished products are sales eligible for exemption. Since these substances are food ingredients, their sales are exempt. An example is pectin. Pectin is the generic term for products marketed under various brand names and commonly used as a base in making jams and jellies. When pectin is incorporated into jams or jellies, it becomes part of a food for human consumption and, therefore, is an eligible food item. Other examples are lard and vegetable oils. f. The following general classifications of food products are also exempt from tax unless taxable as prepared food; see rule 701—220.5(423):Bread and flour productsBottled water, unless it is a sweetened bottled water and thus taxable as a soft drinkCereal and cereal productsCocoa and cocoa products, unless taxable in the form of candy as in rule 701—220.4(423)Coffee and coffee substitutes, unless taxable as soft drinks; see paragraph 220.3(2)“f”Dietary substitutes, other than dietary supplements; see paragraphs 220.3(1)“c” and 220.3(2)“a”Eggs and egg productsFish and fish productsFrozen foodsFruits and fruit products including fruit juices, unless taxable as soft drinks; see paragraph 220.3(2)“f”Margarine, butter, and shorteningMeat and meat productsMilk and milk products, including packaged ice cream productsMilk substitutes, such as soy and rice milk substitutes Spices, condiments, extracts, and artificial food coloringSugar and sugar products and substitutes, unless taxable in the form of candy as in rule 701—220.4(423)Tea, unless taxable as a soft drink; see paragraph 220.3(2)“f”Vegetables and vegetable products 220.2(2) Substances excluded from the term “food and food ingredients.” Sales of alcoholic beverages, candy, dietary supplements, food sold through vending machines, prepared food, soft drinks, and tobacco are not sales of “food” and are not exempt from tax by this rule. a. “Alcoholic beverages” means beverages that are suitable for human consumption and contain one-half of 1 percent or more of alcohol by volume. b. “Candy.” See rule 701—220.4(423). c. “Dietary supplement” means any product, other than tobacco, intended to supplement the diet that contains one or more of the following dietary ingredients: (1) A vitamin. (2) A mineral. (3) An herb or other botanical. (4) An amino acid. (5) A dietary substance for use by humans to supplement the diet by increasing the total dietary intake. (6) A concentrate, metabolite, constituent, extract, or combination of any of the ingredients in subparagraphs (1) through (5) that is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or if not intended for ingestion in such a form, is not represented as conventional food and is not represented for use as a sole item of a meal or of the diet; and is required to be labeled as a dietary supplement, identifiable by the “supplement facts” box found on the label and as required pursuant to 21 Code of Federal Regulations 101.36.Dietary supplements, as their name indicates, serve as supplements to food or food products rather than as “food,” and, therefore, are not included within the definition of that word. Since these substances serve as deficiency correctors or therapeutic agents to supplement diets deficient in essential nutrition rather than as foods, they are not eligible for the food and food ingredients exemption. In addition to vitamin and mineral tablets or capsules, this category includes substances such as cod liver oil, which is used primarily as a source of vitamins A and D. It is not possible to provide a comprehensive list of other such items that are primarily used for medicinal purposes or as health aids and that may be stocked by authorized firms. d. “Food sold through vending machines” means food dispensed from a machine or other mechanical device that accepts payment, other than food that would be qualified for exemption if purchased with coupons (commonly known as “food stamps”) issued under the federal Food Stamp Act of 1977, 7 United States Code 2011 et seq. Alcoholic beverages, candy, dietary supplements, prepared food, soft drinks, and tobacco sold through vending machines are sold subject to tax in all instances because they are specifically excluded from this rule’s definition of “foods”; see subrule 220.3(2) generally. This paragraph “d” should be interpreted in such a fashion that if the sale of a substance is exempt from tax because it is a sale of “food” when the substance is sold by means other than a vending machine, then the sale of that same substance through a vending machine will also be exempt from tax. Conversely, if the sale of a substance by any means other than through a vending machine is taxable, then the sale of that same substance through a vending machine will also be taxable. e. “Prepared food.” See rule 701—220.5(423). f. “Soft drinks” means nonalcoholic beverages that contain natural or artificial sweeteners. Soft drinks may be noncarbonated. “Soft drinks” does not include beverages that contain milk or milk products; soy, rice, or similar milk substitutes; coffee and tea that are not sweetened; effervescent, noneffervescent, and mineral water sold in containers; beverages that contain greater than 50 percent of vegetable or fruit juice by volume.Taxable soft drinks are noncarbonated water and soda water if naturally or artificially sweetened; soft drinks carbonated and noncarbonated including but not limited to colas, ginger ale, near beer, and root beer; bottled and sweetened tea and coffee; lemonade, orangeade, and all other drinks or punches with natural fruit or vegetable juice less than 50 percent by volume.Beverage mixes and ingredients intended to be made into soft drinks are taxable. Beverage mixes or ingredients may be liquid or frozen, concentrated or nonconcentrated, dehydrated, powdered, granulated, sweetened or unsweetened, seasoned or unseasoned. Sales of beverage mixes to which a sweetener is to be added before drinking are taxable. Concentrates intended to be made into beverages that contain natural fruit or vegetable juice of less than 50 percent by volume are taxable.Beverages, the sales of which are otherwise exempt, are taxable if sold as prepared food under rule 701—220.5(423).Nondairy coffee “creamers” in liquid, frozen or powdered form are not beverages. Sugar or other artificial or natural sweeteners sold separately are not taxable as beverage ingredients. Specialty foods that are liquids or that are to be added to a liquid and that are intended to be a substitute in the diet for more commonly used food items are not beverages and are not taxable as beverages. These foods include infant formula. g. “Tobacco” means cigarettes, cigars, chewing or pipe tobacco, or any other item that contains tobacco. 220.2(3) Other substances that are not food or food ingredients. Various products are not purchased for ingestion or chewing by humans or, if they are, are not consumed for their taste or nutritional value. Therefore, they are not purchased exempt from tax under this rule. They include, but are not limited to, the following: a. Health aids.Over-the-counter medicines and other products used primarily as health aids or therapeutic agents are not foods since they are consumed for their medicinal value as opposed to their nutritional value or taste. Such products include aspirin, cough drops or syrups and other cold remedies, antacids, and all over-the-counter medicines or other products used as health aids. In addition to these commonly used health aids, any product used primarily for medicinal purposes is ineligible. An example of such products is slippery elm powder, a demulcent that is used to soothe sore throats. b. Items not exempt.The following general classifications of products are subject to tax:CosmeticsHousehold suppliesPaper productsPet foods and suppliesSoaps and detergentsTobacco productsToiletry articlesTonicsLunch counter foods or foods prepared for consumption on the premises of the retailer This rule is intended to implement Iowa Code section 423.3(57).701—220.3(423) Candy. 220.3(1) Definitions. a. Candy.For the purposes of this rule, “candy” is a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts or other ingredients or flavorings in the form of bars, drops, or pieces. “Candy” shall not include any preparation containing flour and shall require no refrigeration. Any preparation to which flour has been added only for the purpose of excluding the candy’s sales from tax and not for any legitimate purpose, culinary or otherwise, shall not be sold exempt from tax under this rule. This definition is intended to be used when a person is trying to determine if a product that is commonly thought of as “candy” is in fact “candy.” For example, the definition would be applied in a situation where a person is trying to determine if a product is “candy” as opposed to a cookie. The definition is not intended to be applied to every type of food product sold. Many products, such as meat products, breakfast cereals, potato chips, and canned fruits and vegetables are not commonly thought of as “candy.” The definition of “candy” is not applicable to products such as these since they are not commonly thought of as candy. b. Preparation.Candy must be a “preparation” that contains certain ingredients, other than flour. A “preparation” is a product that is made by means of heating, coloring, molding, or otherwise processing any of the ingredients listed in the definition of “candy.” For example, reducing maple syrup into pieces and adding coloring to make maple candy is a form of preparation. c. Bars, drops or pieces.Candy must be sold in the form of bars, drops, or pieces. (1) A “bar” is a product that is sold in the form of a square, oblong, or similar form. For example, if Company A sells one-pound square blocks of chocolate, the blocks of chocolate are “bars.” (2) A “drop” is a product that is sold in a round, oval, pear-shaped, or similar form. For example, if Company B sells chocolate chips in a bag, each individual chocolate chip contains all of the ingredients indicated on the label and the chocolate chips are “drops.” (3) A “piece” is a portion that has the same makeup as the product as a whole. Individual ingredients and loose mixtures of items that make up the product as a whole are not pieces. Exception: If a loose mixture of different items that make up the product as a whole are all individually considered candy and are sold as one product, that product is also candy. d. Flour.In order for a product to be treated as containing “flour,” the product label must specifically list the word “flour” as one of the ingredients. There is no requirement that the “flour” be grain-based, and it does not matter what the flour is made from. Many products that are commonly thought of as “candy” contain flour, as indicated on the ingredient label and therefore are specifically excluded from the definition of “candy.” Ingredient labels must be examined to determine which products contain flour and which products do not contain flour. Any preparation to which flour has been added only for the purpose of excluding its sales from tax and not for any legitimate purpose, culinary or otherwise, shall not be sold exempt from tax under this rule. For example, a candy bar that contains flour, for a legitimate purpose, is excluded from the definition of “candy.” e. Other ingredients or flavorings.“Other ingredients or flavorings” as used in this rule means other ingredients or flavorings that are similar to chocolate, fruits or nuts. This phrase includes candy coatings such as carob, vanilla and yogurt; flavorings or extracts such as vanilla, maple, mint, and almond; and seeds and other items similar to the classes of ingredients or flavorings. This phrase does not include meats, spices, seasonings such as barbeque or cheddar flavor, or herbs that are not similar to the classes of ingredients or flavorings associated with chocolate, fruits, or nuts, unless the product otherwise meets the definition of “candy.” f. Sweeteners.The term “natural or artificial sweeteners” as used in this rule means an ingredient of a food product that adds a sugary sweetness to the taste of the food product and includes, but is not limited to, corn syrup, dextrose, invert sugar, sucrose, fructose, sucralose, saccharin, aspartame, stevia, fruit juice concentrates, molasses, evaporated cane juice, rice syrup, barley malt, honey, maltitol, agave, and artificial sweeteners. g. Refrigeration.A product that otherwise meets the definition of “candy” is not “candy” if it requires refrigeration. A product “requires refrigeration” if it must be refrigerated at the time of sale or after being opened. In order for a product to be treated as requiring refrigeration, the product label must indicate that refrigeration is required. If the label on a product that contains multiple servings indicates that it “requires refrigeration,” smaller size packages of the same product are also considered to “require refrigeration.” A product that otherwise meets the definition of “candy” is “candy” if the product is not required to be refrigerated, but is sold refrigerated for the convenience or preference of the customer, retailer, or manufacturer. 220.3(2) Nonexclusive examples. a. Taxable candy.Examples of items taxable as candy include, but are not limited to: preparations of fruits, nuts, or other ingredients in combination with sugar, honey, or other natural or artificial sweeteners in the form of bars, drops, or pieces; caramel-coated or other candy-coated apples or other fruit; candy-coated popcorn; hard or soft candies including jellybeans, taffy, licorice not containing flour, marshmallows, and mints; dried fruit leathers or other similar products prepared with natural or artificial sweeteners; candy breath mints; chewing gum; and mixes of candy pieces.Sales of items that are normally sold for use as ingredients in recipes but that can be eaten as candy are taxable. Examples of these items include, but are not limited to, sweetened baking chocolate in bars or pieces; white and dark chocolate almond bark; toffee bits; M&M’s, including those sold for baking; candy primarily intended for decorating baked goods; and sweetened baking chips, including mint chips, peanut butter chips, butterscotch chips, and chocolate chips. b. Nontaxable items.Sales of the following are generally not taxable as candy: jams, jellies, preserves, or syrups; frostings; dried fruits without added sweetener; breakfast cereals; prepared fruit in a sugar or similar base; ice cream or other frozen desserts covered with chocolate or similar coverings; cotton candy; cakes, cookies, and similar products covered with chocolate or other similar coating; and granola bars. However, these and similar items are taxable if sold as prepared food under rule 701—220.5(423). 220.3(3) Bundled transaction including candy. a. Candy and food.Products that are a combination of items that are defined as “candy” under this rule and items that are defined as “food and food ingredients” under rule 701—231.3(423) are “bundled transactions” when the items are distinct and identifiable and are sold for one nonitemized price, unless the seller’s sales price or purchase price of the candy accounts for 50 percent or less of the seller’s sales price or purchase price of the bundled transaction as provided under Iowa Code section 423.2(8)“d”(4). For example, a bag of multiple types of individually wrapped bars that is sold for one price is two or more distinct and identifiable products sold for one nonitemized price. For purposes of determining whether such a bag of individually wrapped bars is a “bundled transaction,” the following criteria apply: (1) Ingredients listed separately. 1. If a package contains individually wrapped bars, drops, or pieces and the product label on the package separately lists the ingredients for each type of bar, drop, or piece included in the package, those bars, drops, or pieces that have “flour” listed as an ingredient are “food and food ingredients” and those bars, drops, or pieces that do not have “flour” listed as an ingredient are “candy.” The determination of whether the package as a whole meets the definition of “bundled transaction” is based on the percentage of bars, drops, or pieces that meet the definition of “food and food ingredient” as compared to the percentage of bars, drops, or pieces that meet the definition of “candy.” 2. Determining the percentage. For purposes of determining the percentage of the sales price or purchase price of the bars, drops, or pieces that meet the definition of “candy” as compared to all of the bars, drops, or pieces contained in the package, the retailer may presume that each bar, drop, or piece contained in the package has the same value. 3. Presumption of product amount. A retailer may presume that there is an equal number of each type of product contained in the package, unless the package clearly indicates otherwise. (2) Ingredients listed together. If a package contains individually wrapped bars, drops, or pieces and all of the ingredients for each of the products included in the package are listed together, as opposed to being listed separately by each product included as explained in subparagraph (1) above, and even if the ingredient lists “flour” as an ingredient, the product will be treated as “candy,” unless the retailer is able to ascertain that the sales price or purchase price of the candy in the package is less than 50 percent of the sales price or purchase price of the entire bag. See Iowa Code section 423.2(8).The retailer may presume that each bar, drop, or piece contained in the package has the same value. The retailer may presume that there is an equal number of each type of product contained in the package, unless the package clearly indicates otherwise. b. Combination of ingredients.Products whose ingredients are a combination of various unwrapped food ingredients that alone are not “candy,” along with unwrapped food ingredients that alone are “candy,” such as breakfast cereal and trail mix with candy pieces, are considered “food and food ingredients” and are not “candy.” Sales of these products are not “bundled transactions” because there are not two or more distinct and identifiable products being sold. The combination of the ingredients results in a single product. This rule is intended to implement Iowa Code sections 423.2(8) and 423.3(57).701—220.4(423) Prepared food. Sales of “prepared food” are subject to tax. 220.4(1) Prepared food. “Prepared food” means any of the following: a. Food sold in a heated state or heated by the seller, including food sold by a caterer. b. Two or more food ingredients mixed or combined by the seller for sale as a single item. c. Food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport food.The types of retailers who are generally considered to be offering prepared food for sale include restaurants, coffee shops, cafeterias, convenience stores, snack shops, and concession stands including those at recreation and entertainment facilities. Other retailers that often offer prepared food include vending machine retailers, mobile vendors, and concessionaires operating facilities for such activities as education, office work, or manufacturing.If food is sold for consumption on the premises of a retailer, the food is rebuttably presumed to be prepared food. “Premises of a retailer” means the total space and facilities under control of the retailer or available to the retailer, including buildings, grounds, and parking lots that are made available or that are available for use by the retailer, for the purpose of sale of prepared food and drink or for the purpose of consumption of prepared food and drink sold by the retailer. Availability of self-service heating or other preparation facilities or eating facilities such as tables and chairs and knives, forks, and spoons, indicates that food, food products, and drinks are sold for consumption on the premises of the retailer and are subject to tax as sales of prepared food.The following examples are intended to show some of the situations in which sales are taxable as sales of prepared food and drink. 220.4(2) Examples. The following are additional examples of foods that either are or are not “prepared foods,” the sales price of which is taxable. This rule is intended to implement Iowa Code section 423.3(57).701—220.5(423) Prescription drugs. The sales price from the sale of prescription drugs dispensed for human use or consumption in accordance with subrules 220.6(3) and 220.6(4) shall be exempt from tax. The sales price from the sale of oxygen or insulin purchased for human use or consumption (whether or not the oxygen or insulin is prescribed) is exempt from tax as a prescription drug. 220.5(1) Ultimate user. The term “ultimate user” means an individual who has lawfully obtained and possesses a prescription drug or medical device for the individual’s own use or for the use of a member of the individual’s household, or an individual to whom a prescription drug or medical device has been lawfully supplied, administered, dispensed or prescribed. The term is limited to natural persons, and does not include any legal persons such as corporations. 220.5(2) Tax exemption. The sale of a prescription drug is exempt from tax only if the drug is intended to be prescribed or dispensed to an ultimate user. A drug is intended to be prescribed or dispensed to an ultimate user only if the drug is obtained by or supplied or administered to an ultimate user for placement on or in the ultimate user’s body.For purposes of this subrule, any drug prescribed in writing by a licensed physician, surgeon, osteopath, osteopathic physician or surgeon, or other person authorized by law to an ultimate user for human use or consumption shall be deemed a drug exempt from tax if a prescription is required or permitted under Iowa state or federal law. 220.5(3) Persons authorized to dispense prescription drugs. In order for a prescription drug or device to qualify for an exemption, it must be dispensed by anyone authorized under Iowa law to dispense prescription drugs or devices in this state or by anyone licensed in another state in a health field in which, under Iowa law, licensees in this state may legally prescribe drugs or devices. 220.5(4) Disposition of prescription drugs. Prescription drugs may be dispensed either directly from one of the persons licensed in subrule 220.6(3) who may also prescribe drugs or by a pharmacist upon receipt of a prescription from one of the persons licensed to prescribe. A prescription received by a licensed pharmacist from one of the persons licensed in subrule 220.6(3) who may also prescribe drugs shall be sufficient evidence that a drug is exempt from tax. When a person who prescribes a drug is also the dispenser, the drug will not require a prescription by such person, but the drug must be recorded as if a prescription would have been issued or required. If this condition is met, the sales price from the sale of the drug is exempt from tax. 220.5(5) Others required to collect sales tax. Any person other than those who are allowed to dispense drugs or devices under subrule 220.6(3) is required to collect sales tax on any prescription drugs. 220.5(6) Prescription drugs purchased by hospitals for resale. This subrule applies to for-profit hospitals only. Hospitals have purchased prescription drugs for resale to patients and not for use or consumption in providing hospital services only if the following circumstances exist: (1) the drug is actually transferred to the patient; (2) the drug is transferred in a form or quantity capable of a fixed or definite price value; (3) the hospital and the patient intend the transfer to be a sale; and (4) the sale is evidenced in the patient’s bill by a separate charge for the identifiable drug.A hospital’s purchase of a prescription drug for purposes other than resale will still be exempt from tax if a drug is intended to be prescribed to an ultimate user and the hospital’s use of the drug is otherwise exempt under subrule 220.6(1). This rule is intended to implement Iowa Code section 423.3(60).701—220.6(423) Other medical devices. The sales price from the sale of other medical devices is exempt from tax. The term “other medical devices” means medical equipment or supplies intended to be dispensed for human use with or without a prescription to an ultimate user. The term “other medical devices” does not include prosthetic devices, durable medical equipment, or mobility enhancing equipment. For purposes of this rule, the term “ultimate user” has the same meaning as in subrule 220.6(1). 220.6(1) Definitions. "Anesthesia trays" includes, without limit, paracervical anesthesia trays, saddle block anesthesia trays, spinal anesthesia trays, and continuous epidural anesthesia trays. "Biopsy" means the removal and examination of tissue from a living body, performed to establish a precise diagnosis. "Biopsy needles" includes, without limit, needles used to perform liver, kidney, other soft tissue, bone, and bone marrow biopsies. Menghini technique aspirating needles, Rosenthal-type needles, and “J” Jamshidi needles are all examples of biopsy needles. "Cannula" means a tube inserted into a body duct or cavity to drain fluid, insert medication including oxygen, or to open an air passage. Examples are lariat nasal cannulas and abelson cricothyrotomy cannulas. "Catheter" means a tubular, flexible, surgical instrument used to withdraw fluids from or introduce fluids into a body cavity, or for making examinations. Examples are: Robinson/nelaton catheters, all types of Foley catheters (e.g., pediatric and irrigating), three-way catheters, suction catheters, IV catheters, angiocath catheters and male and female catheters. "Catheter trays." Universal Foley catheter trays, economy Foley trays, urethral catheterization trays and catheter trays with domed covers are nonexclusive examples of these trays. "Diabetic testing materials" means all materials used in testing for sugar or acetone in the urine, including, but not limited to, Clinitest, Tes-tape, and Clinistix; also, all materials used in monitoring the glucose level in the blood, including, but not limited to, bloodletting supplies and test strips. "Drug infusion device" means a device designed for the slow introduction of a drug solution into the human body. The term includes devices that infuse by means of pumps or gravity flow (drip infusion). "Fistula" means an abnormal passage usually between the internal organs or between an internal organ and the surface of the body. "Hypodermic syringe" means an instrument for applying or administering liquid into any vessel or cavity beneath the skin. This includes the needle portion of the syringe if it accompanies the syringe at the time of purchase, and it also includes replacement needles. "Insulin" means a preparation of the active principle of the pancreas, used therapeutically in diabetes and sometimes in other conditions. "Kit" means a combination of medical equipment and supplies used to perform one particular medical procedure that is packaged and sold as a single item. "Myelogram" means a radiographic picture of the spinal cord. A “radiographic picture” is one taken using radiation other than visible light. "Nebulizer" means a mechanical device that converts a liquid to a spray or fog. "Oxygen equipment" means all equipment used to deliver medicinal oxygen including, but not limited to, face masks, humidifiers, cannulas, tubing, mouthpieces, tracheotomy masks or collars, regulators, oxygen concentrators and oxygen accessory racks or stands. "Set." See “kit” above. "Tray." See “kit” above. 220.6(2) The sales price from the sale of the following other medical devices is exempt from tax: a. Sales of insulin, hypodermic syringes, and diabetic testing materials. b. Sales and rentals of oxygen equipment. c. Sales of hypodermic needles, anesthesia trays, biopsy trays and needles, cannula systems, catheter trays, invasive catheters, dialyzers, drug infusion devices, fistula sets, hemodialysis devices, insulin infusion devices, irrigation solutions, intravenous administering sets, solutions and stopcocks, myelogram trays, nebulizers, small vein infusion kits, spinal puncture trays, transfusion sets and venous blood sets, all of which are not taxable. 220.6(3) Component parts. The sales price from the sale of any component parts of the trays, systems, devices, sets, or kits listed above are taxable unless the sales price from the sale of the component part, standing alone, is otherwise exempt. For instance, the sales price from the sale of a biopsy needle or an invasive catheter will be exempt from tax whether or not it was purchased for use as a component part in a biopsy tray or catheter tray, so long as the needle or catheter will be dispensed for human use to an ultimate user. Conversely, the sales price from the sale of catheter introducers, disposable latex gloves, rayon balls, forceps, and specimen bottles is exempt from tax when those items are sold as part of a catheter tray, but are not exempt when those items are sold individually. This rule is intended to implement Iowa Code section 423.3(60).701—220.7(423) Prosthetic devices, durable medical equipment, and mobility enhancing equipment. 220.7(1) Prosthetic devices. The sales price from the sale of prosthetic devices is exempt from tax. 220.7(2) Durable medical equipment and mobility enhancing equipment. The sales price from the sale of durable medical equipment and mobility enhancing equipment prescribed for human use that meet the provisions of subrules 220.8(3) and 220.8(4) is exempt from tax. “Prescribed” refers to a prescription issued in any form of oral, written, electronic, or other means of transmission by any of the persons described in paragraphs 220.6(3)“a” through “j.” 220.7(3) Definitions. a. “Durable medical equipment”means equipment, including repair and replacement parts, but does not include mobility enhancing equipment, to which all of the following apply: (1) Can withstand repeated use. (2) Is primarily and customarily used to serve a medical purpose. (3) Generally is not useful to a person in the absence of illness or injury. (4) Is not worn in or on the body. (5) Is for home use only. (6) Is prescribed by a practitioner. b. “Mobility enhancing equipment”means equipment, including repair and replacement parts, but does not include durable medical equipment, to which all of the following apply: (1) Is primarily and customarily used to provide or increase the ability to move from one place to another and which is appropriate for use either in a home or a motor vehicle. (2) Is not generally used by persons with normal mobility. (3) Does not include any motor vehicle or equipment on a motor vehicle normally provided by a motor vehicle manufacturer. (4) Is prescribed by a practitioner. c. “Prosthetic device”means a replacement, corrective, or supportive device including repair and replacement parts for the same worn on or in the body to do any of the following: (1) Artificially replace a missing portion of the body. (2) Prevent or correct physical deformity or malfunction. (3) Support a weak or deformed portion of the body.The term “prosthetic device” includes, but is not limited to, orthopedic or orthotic devices, ostomy equipment, urological equipment, tracheostomy equipment, and intraocular lenses.The following is a nonexclusive list of prosthetic devices:Artificial arteriesDrainage bagsPrescription eyeglassesArtificial breastsHearing aidsStoma bagsArtificial earsIleostomy devicesTracheal suction cathetersArtificial eyesIntraocular lensesTracheostomy care andArtificial heart valvesKaraya paste cleaning starter kitsArtificial implantsKaraya sealsTracheostomy cleaningArtificial larynxOrgan implants brushesArtificial limbsOstomy beltsTracheostomy tubesArtificial nosesOstomy clampsUrinary cathetersArtificial teethOstomy cleanersUrinary drainage bagsCardiac pacemakers and deodorizersUrinary irrigation tubingContact lensesOstomy pouchesUrinary pouchesCosmetic glovesOstomy stoma caps and pasteDental bridges and implantsPenile implants d. “Orthotic device”means a piece of special equipment designed to straighten a deformed or distorted part of the human body, such as corrective shoes or braces. An orthotic device is an orthopedic device. e. “Orthopedic device”means a piece of special equipment designed to correct deformities or to preserve and restore the function of the human skeletal system, its articulations and associated structures. A hot tub or spa is not an orthopedic device.The following is a nonexclusive list of orthopedic devices:Abdominal beltsClavicle splintsNerve stimulatorsAlternating pressure mattressesCorrective bracesOrthopedic implantsAlternating pressure padsCorrective shoesOrthopedic shoesAnti-embolism stockingsCrutch cushionsPatient liftsArch supportsCrutch handgripsPlaster (surgical)Arm slingsCrutch tipsRib beltsArtificial sheepskinCrutchesRupture beltsBone cementDecubitus prevention devicesSacroiliac supportsBone nailsDorsolumbar beltsSacrolumbar beltsBone pinsDorsolumbar supportsSacrolumbar supportsBone platesElastic bandagesShoulder immobilizersBone screwsElastic supportsSpace shoesBone waxExercise devicesSplintsBracesHead haltersTraction equipmentCanesHernia belts Transcutaneous electricalnerve stimulators (tens units)CastsIliac beltsTrapezesCast heelsInvalid ringsTrussesCervical bracesKnee immobilizersWalkersCervical collarsLumbosacral supportsWheelchairsCervical pillowsMuscle stimulators f. “Related devices.”The sales price from the sale of devices that are used exclusively in conjunction with prosthetic, orthotic, or orthopedic devices is exempt from tax. g. “Medical equipment and supplies.”The scope of the term “medical equipment and supplies” is broader than the terms “prescription drugs,” “prosthetic devices,” “durable medical equipment,” “mobility enhancing equipment,” and “other medical devices.” While all exempt prescription drugs are medical supplies and all exempt medical devices are medical equipment, not all medical equipment and supplies are exempt medical devices or prescription drugs. The following is a nonexclusive list of items that are medical equipment or supplies, but are not prescription drugs or medical devices exempt from tax under subrules 220.6(1), 220.8(1), and 220.8(2) and rule 701—220.7(423). The sales price from the sale of the following items is generally taxable.Adhesive bandagesContact lens solutionHot water bottlesAneurysm clipsConvoluted padsIce bagsArterial bloodsetsCorrective pessariesIdent-a-bandsAspiratorsCotton ballsIncontinent garmentsAthletic supportersDiagnostic kitsIncubatorsAtomizersDialysis chairsInfrared lampsAutolitDialysis suppliesInhalatorsBack cushionsDietetic scalesIron lungsBathing aidsDisposable diapersIrrigation apparatusBathing capsDisposable glovesIV connectorsBedpansDisposable underpadsLaminar flow equipmentBedside railsDonor chairsLatex glovesBedside tablesDressingsLeukopheresis pumpsBedside traysDry aid kits for earsLymphedema pumpsBedwetting prevention devicesEKG paperManometer traysBelt vibratorsEar moldsMassagersBlood cell washing equipmentElectrodes (other than tens units)Maternity beltsBlood pack holdersEmesis basinsMedigrade tubingBlood pack traysEnema unitsModulung oxygenatorsBlood pack unitsFirst-aid kitsMoist heat padsBlood pressure metersFoam slant pillowsMyringotomy tubesBlood processing suppliesGauze bandagesNebulizers (hypodermic)Blood tubingGauze packingsOverbed tablesBlood warmersGavage containersPage turning devicesBreast pumpsGeriatric chairsPap smear kitsBreathing machinesGrooming aidsParaffin bathsCardiac electrodesHand sealersPhysicians’ instrumentsCardiopulmonary equipmentHearing aid carriersPigskinChair liftsHearing aid repair kitsPlasma extractorsClampsHeart stimulatorsPlasma pheresis unitsClip-on ashtraysHeat lampsPlastic heat sealersCommode chairsHeat pads Prescribed device repair kitsand batteriesConnectorsHemolatorsRespiratorsContact lens casesHospital bedsResuscitatorsSauna bathsSteri-peelTransfer boardsSecurity pouchesStoolsTube sealersServipak dialysis suppliesSuction equipmentUnderpadsShelf traysSunlampsUrinalsShower chairsSurgical bandagesVacutainersSide railsSurgical equipmentVacuum unitsSitz bath kitSuspensoriesVaporizersSpecimen containersSuturesVibratorsSponges (surgical)ThermometersWhirlpoolsStairway elevatorsToilet aidsX-ray filmStaplesTourniquets 220.7(4) Power devices. The sales price from the sale of power devices especially designed to operate prosthetic, orthotic or orthopedic devices shall be exempt from tax. This exemption does not include batteries that can be used to operate a number of devices, but batteries designed solely for use in hearing aids are exempt. This rule is intended to implement Iowa Code section 423.3(60).701—220.8(423) Exempt sales of clothing and footwear during two-day period in August. Tax is not due on the sale or use of a qualifying article of clothing or footwear if the sales price of the article is less than $100 and the sale takes place during a period beginning at 12:01 a.m. on the first Friday in August and ending at 12 midnight of the following Saturday. For example, in the year 2004, this period began at 12:01 a.m. on Friday, August 6, and ended at 12 midnight on Saturday, August 7. Eligible purchases of clothing and footwear are exempt from local option sales taxes as well as Iowa state sales tax. 220.8(1) Definitions. The following words and terms, when used in this rule, shall have the following meanings, unless the context clearly indicates otherwise. "Accessories" includes, but is not limited to, jewelry, handbags, purses, briefcases, luggage, wallets, watches, cufflinks, tie tacks and similar items carried on or about the human body, without regard to whether worn on the body in a manner characteristic of clothing. "Clothing or footwear" means an article of wearing apparel designed to be worn on or about the human body. For the purposes of this rule, the term does not include accessories or special clothing or footwear or articles of wearing apparel designed to be worn by animals. "Eligible property" means an item of a type, such as clothing, that qualifies for Iowa’s sales tax holiday. "Special clothing or footwear" is clothing or footwear primarily designed for athletic activity or protective use and which is not normally worn except when used for the athletic activity or protective use for which it is designed. 220.8(2) Exempt sales. a. Required price.The exemption applies to each article of clothing or footwear selling for less than $100, regardless of how many items are sold on the same invoice to a customer. For example, if a customer purchases two shirts for $80 each, both items qualify for the exemption even though the customer’s total purchase price ($160) exceeds $99.99. The exemption does not apply to the first $99.99 of an article of clothing or footwear selling for more than $99.99. For example, if a customer purchases a pair of pants costing $110, sales tax is due on the entire $110. b. Order date and back orders.For the purpose of the sales tax holiday, eligible property qualifies for exemption if: the item is both delivered to and paid for by the customer during the exemption period; or the customer orders and pays for the item and the seller accepts the order during the exemption period for immediate shipment, even if delivery is made after the exemption period. The seller accepts an order when the seller has taken action to fill the order for immediate shipment. Actions to fill an order include placement of an “in date” stamp on a mail order or assignment of an “order number” to a telephone order. An order is for immediate shipment when the customer does not request delayed shipment. An order is for immediate shipment notwithstanding that the shipment may be delayed because of a backlog of orders or because stock is currently unavailable to, or on back order by, the seller. 220.8(3) Taxable sales. This exemption does not apply to sales of the following goods or services: a. Any special clothing or footwear that is primarily designed for athletic activity or protective use and that is not normally worn except when used for the athletic activity or protective use for which it is designed. For example, golf cleats and football pads are primarily designed for athletic activity or protective use and are not normally worn except when used for those purposes; therefore, they do not qualify for the exemption. However, tennis shoes, jogging suits, and swimsuits are commonly worn for purposes other than athletic activity and qualify for the exemption. b. Accessories, including jewelry, handbags, purses, briefcases, luggage, umbrellas, wallets, watches, and similar items carried on or about the human body, without regard to whether they are worn on the body in a manner characteristic of clothing. c. The rental of any clothing or footwear. For example, this exemption does not apply to rentals of formal wear, costumes, diapers, and bridal gowns, but would apply to sales of the above items. d. Taxable services performed on clothing or footwear, such as garment and shoe repair, dry cleaning or laundering, and alteration services. Sales tax is due on alterations to clothing, even though the alteration service may be performed, invoiced and paid for at the same time as the clothing is being purchased. If a customer purchases a pair of pants for $90 and pays $15 to have the pants cuffed, the $90 charge for the pants is exempt, but tax is due on the $15 alteration charge. e. Purchases of items used to make, alter, or repair clothing or footwear, including fabric, thread, yarn, buttons, snaps, hooks, belt buckles, and zippers. 220.8(4) Special situations. a. Articles normally sold as a unit.Articles that are normally sold as a unit must continue to be sold in that manner if the exemption is to apply; they cannot be priced separately and sold as individual items in order to obtain the exemption. For example, if a pair of shoes sells for $150, the pair cannot be split in order to sell each shoe for $75 to qualify for the exemption. If a suit is normally priced at $225 and sold as a unit on a single price tag, the suit cannot be split into separate articles so that any of the components may be sold for less than $100 in order to qualify for the exemption. However, components that are normally priced as separate articles (e.g., slacks and sport coats, and suit coats and suit pants sold separately prior to the two-day period) may continue to be sold as separate articles and qualify for the exemption if the price of an article is less than $100. b. Sales of exempt clothing combined with gifts of taxable merchandise.When exempt clothing is sold in a set that also contains taxable merchandise as a free gift and no additional charge is made for the gift, the exempt clothing may qualify for this exemption. For example, a boxed set may contain a tie and a free tie tack. If the price of the set is the same as the price of the tie sold separately, the item being sold is the tie, which is exempt from tax if sold for less than $100 during the exemption period. c. Layaway sales.A layaway sale is a transaction in which merchandise is set aside for future delivery to a customer who makes a deposit, agrees to pay the balance of the purchase price over a period of time and, at the end of the payment period, receives the merchandise. A sale of eligible property under a layaway sale qualifies for exemption if: final payment on a layaway order is made by, and the property is given to, the purchaser during the exemption period; or the purchaser selects the property and the retailer accepts the order for the item during the exemption period, for immediate delivery upon full payment, even if delivery is made after the exemption period. d. Returns.For a 60-day period immediately after the sales tax holiday exemption period, when a customer returns an item that would qualify for the exemption, no credit for or refund of sales tax shall be given unless the customer provides a receipt or invoice that shows tax was paid, or the seller has sufficient documentation to show that tax was paid on the specific item. This 60-day period is set solely for the purpose of designating a time period during which the customer must provide documentation that shows that sales tax was paid on returned merchandise. The 60-day period is not intended to change a seller’s policy on the time period during which the seller will accept returns. e. Different time zones.The time zone of the seller’s location determines the authorized time period for a sales tax holiday when the purchaser is located in one time zone and the seller is located in another. 220.8(5) Calculating taxable and exempt sales price—discounts, coupons, buying at a reduced price, and rebates. a. Discounts.A discount allowed by a retailer and taken on a taxable sale can be used to reduce the sales price of an item. If the discount reduces the sales price of an item to $99.99 or less, the item may qualify for the exemption. For example, a customer buys a $150 dress and a $100 blouse from a retailer offering a 10 percent discount. After applying the 10 percent discount, the final sales price of the dress is $135, and the blouse is $90. The dress is taxable (it is over $99.99), and the blouse is exempt (it is less than $99.99). b. Coupons.When a coupon is issued by a retailer and is actually used to reduce the sales price of any taxable item, the value of the coupon is excludable from the tax as a discount if the retailer is not reimbursed for the coupon amount by a third party. Therefore, a retailer’s coupon can be used to reduce the sales price of an item to $99.99 or less in order to qualify for the exemption. For example, if a customer purchases a pair of shoes priced at $110 with a coupon worth $20 off, the final sales price of the shoes is $90, and the shoes qualify for the exemption. A manufacturer’s coupon cannot be used to reduce the sales price of an item. c. Buy one, get one free or for a reduced price or “two for the price of one” sales.The total price of items advertised as “buy one, get one free,” or “buy one, get one for a reduced price,” or “two for the price of one” cannot be averaged in order for both items to qualify for the exemption. The following examples illustrate how such sales should be handled. d. Rebates.Rebates occur after the sale and do not affect the sales price of an item purchased. For example, a customer purchases a sweater for $110 and receives a $12 rebate from the manufacturer. The retailer must collect tax on the $110 sales price of the sweater. Reference 701—subrule 212.3(2) for additional information regarding rebates. e. Shipping and handling charges.Shipping charges separately stated and separately contracted for (reference rule 701—288.13(423) for explanation) are not part of the amount used to determine whether the sales price of an item qualifies it for exemption. Handling charges, however, are part of the amount used to make this determination if it is necessary to pay those charges in order to purchase an item. 220.8(6) Treatment of various transactions associated with sales. a. Rain checks.A rain check allows a customer to purchase an item at a certain price at a later time because the particular item was out of stock. Eligible items purchased during the exemption period using a rain check will qualify for the exemption regardless of when the rain check was issued. However, issuance of a rain check during the exemption period will not qualify an eligible item for the exemption if the item is actually purchased after the exemption period. b. Exchanges. (1) If a customer purchases an item of eligible clothing or footwear during the exemption period and later exchanges the item for a similar eligible item (different size, different color, etc.), no additional tax will be due even if the exchange is made after the exemption period. (2) If a customer purchases an item of eligible clothing or footwear during the exemption period and after the exemption period has ended returns the item and receives credit on the purchase of a different item, the appropriate sales tax will apply to the sale of the newly purchased item. (3) If a customer purchases an item of eligible clothing or footwear during the exemption period and later during the exemption period returns the item and purchases a similar but nonexempt item, the purchase of the second item is not exempt from tax. (4) If a customer purchases an item of eligible clothing or footwear before the exemption period and during the exemption period returns the item and receives credit on the purchase of a different item of eligible clothing or footwear, no sales tax is due on the sale of the new item if it is purchased during the exemption period and otherwise meets the qualifications for exemption. 220.8(7) Nonexclusive list of exempt items. The following is a nonexclusive list of clothing or footwear, sales of which are exempt from tax during the two-day period in August: Adult diapersAerobic clothingAntique clothingAprons—householdAthletic socksBaby bibsBaby clothes—generallyBaby diapersBaseball capsBathing suitsBelts with buckles attachedBlousesBoots—general purposeBow tiesBowling shirtsBrasBridal apparel—sold not rentedCamp clothingCaps—sports and othersChefs’ uniformsChildren’s novelty costumesChoir robesClerical garmentsCoatsCorsetsCostumes—Halloween, Santa Claus, etc., sold not rentedCoverallsCowboy bootsDiapers—cloth and disposableDressesDress glovesDress shoesEar muffsEmployee uniforms other than those primarily designed for athletic activity or protective use Formal clothing—sold not rentedFur coats and stolesGaloshesGarters and garter beltsGirdlesGloves—cloth, dress and leatherGolf clothing—caps, dresses, shirts and skirtsGraduation caps and gowns—sold not rentedGym suits and uniformsHatsHiking bootsHooded (sweat) shirtsHosiery, including support hosieryJacketsJeansJerseys for other than athletic wearJogging apparelKnitted caps or hatsLab coatsLeather clothingLeg warmersLeotards and tightsLingerieMen’s formal wear—sold not rentedNeckwear, e.g., scarvesNightgowns and nightshirtsOvershoesPajamasPantsPantyhoseProm dressesPonchos Raincoats and hatsReligious clothingRiding pantsRobesRubber thongs—“flip-flops”Running shoes without cleatsSafety shoes (adaptable for street wear)SandalsShawlsShirtsShoe inserts and lacesStockingsSuitsSupport hoseSuspendersSweatshirtsSweatsuitsSwim trunksTennis dressesTennis skirtsTiesTightsTrousersTuxedos (except cufflinks)—sold not rentedUnderclothesUnderpantsUndershirtsUniforms—generallyVeilsVests—general, for wear with suitsWalking shoesWindbreakersWork clothes 220.8(8) Nonexclusive list of taxable items. The following is a nonexclusive list of items, sales of which are taxable during the two-day period in August: Accessories—generallyAlterations of clothingAthletic supportersBackpacksBallet shoesBarrettesBaseball cleatsBaseball glovesBelt buckles sold without beltsBelts for weight liftingBelts needing buckles but sold without themBicycle shoes with cleatsBillfoldsBlanketsBoutonnieresBowling shoes—rented and soldBraceletsButtonsChest protectorsClothing repairCoin pursesCorsagesDry cleaning servicesElbow padsEmployee uniforms primarily designed for athletic activities or protective use Fabric salesFishing boots (waders)Football padsFootball pantsFootball shoesGogglesGolf glovesIce skatesIn-line skatesInsolesJewelryKey cases and chainsKnee padsLaundry servicesLife jackets and vestsLuggageMonogramming servicesPads—elbow, knee and shoulder, football and hockeyPatternsProtective gloves and masksPursesRental of clothingRental of shoes or skatesRepair of clothingRoller blades Safety clothingSafety glassesSafety shoes—not adaptable for street wearShoes with cleats or spikesShoulder pads for dresses and jacketsShower capsSkates—ice and rollerSki boots, masks, suits and vestsSpecial protective clothing or footwear not adaptable for streetwearSports helmetsSunglasses—except prescriptionSweatbands—arm, wrist and headSwim fins, masks and gogglesTap dance shoesThreadVests—bulletproofWeight lifting beltsWrist bandsYard goodsYarnZippers This rule is intended to implement Iowa Code section 423.3(68).701—220.9(423) Sales of diapers. 220.9(1) In general. The sales price of diapers, whether cloth or disposable, is exempt from sales tax. This includes children’s diapers and adult diapers. 220.9(2) Definitions. "Adult diapers" means diapers other than children’s diapers. "Children’s diapers" means diapers marketed to be worn by children. "Diaper" means an absorbent garment worn by humans who are incapable of, or have difficulty, controlling their bladder or bowel movements. This rule is intended to implement Iowa Code section 423.3(109).701—220.10(423) Sale of energy to residential customers. 220.10(1) Generally. The sales price from the sale, furnishing, or service of metered natural gas, electricity and fuels, including propane and heating oils, to residential customers for use as energy for residential dwellings and units of apartment, and condominium complexes for human occupancy, is exempt from sales and use tax. 220.10(2) Definitions. The following definitions are applicable to this rule: "Energy" means a substance that generates power to operate fixtures or appliances within a residential dwelling or that creates heat or cooling within a residential dwelling. "Fuel" means a liquid source of energy for a residential dwelling, individual apartment unit, or condominium. “Fuel” includes propane, heating fuel, and kerosene. However, “fuel” does not include blended kerosene used as motor fuel or special fuel. "Metered gas" means natural gas that is billed based on metered usage to provide energy to a residential dwelling, individual apartment unit, or individual condominium. "Residential dwelling" means a structure used exclusively for human occupancy. This does not include commercial or agricultural structures, nor does it include nonresidential buildings attached to or detached from a residential dwelling, such as an outbuilding. However, a garage attached to or detached from a dwelling that is used strictly for residential purposes qualifies for the exemption. "Units of apartment and condominium complexes." A building containing apartment units or individual condominiums is not considered to be qualifying property for purposes of this rule. However, if each unit has a separate meter, the unit qualifies for the exemption if it is classified as a qualifying property by the utility. 220.10(3) Other nonqualifying structures. Structures excluded from this exemption include but are not limited to nursing homes, adult living facilities, assisted living facilities, halfway houses, charitable residential facilities, YMCA residential facilities, YWCA residential facilities, and group homes. This rule is intended to implement Iowa Code section 423.3(84).ARC 7203CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to miscellaneous nontaxable transactions and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 221, “Miscellaneous Nontaxable Transactions,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 455C and sections 423.1, 423.3 and 423.5.Purpose and Summary The purpose of this proposed rulemaking is to rescind and adopt a new Chapter 221. The Department proposes revisions to the chapter to remove portions of the rules that the Department determined are obsolete, unnecessary, or duplicative of statutory language. The Department also moved rules from other chapters that fit with the topic of this chapter. The chapter describes the Department’s interpretation of the underlying statute to help the public understand the exemption of miscellaneous nontaxable transactions that do not fit under any other chapter. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.govPublic Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m. Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind 701—Chapter 221 and adopt the following new chapter in lieu thereof: CHAPTER 221MISCELLANEOUS NONTAXABLE TRANSACTIONS[Prior to 9/7/22, see Revenue Department[701] Ch 214]701—221.1(423) Sales of prepaid merchandise cards. Sales of prepaid merchandise cards (other than prepaid telephone calling cards) are not sales of tangible personal property and are not sales the sales price of which is subject to Iowa tax. If a purchaser uses a prepaid merchandise card to purchase taxable tangible personal property or taxable services, sales tax is computed on the sales price at the time of the sale and deducted from the prepaid amount remaining on the merchandise card.Charges for returning tangible personal property after the agreed-upon date that are true demurrage charges supported by a written agreement do not constitute taxable sales and the charges are exempt from tax. This rule is intended to implement Iowa Code section 423.1(47).701—221.2(423) Demurrage charges. Charges for returning tangible personal property after the agreed-upon date that are true demurrage charges supported by a written agreement do not constitute taxable sales and the charges are exempt from tax.701—221.3(423) Beverage container deposits. Tax does not apply to beverage container deposits. This rule is also applicable to all mandatory beverage container deposits required under the provisions of Iowa Code chapter 455C, including deposits on items sold through vending machines. This rule is intended to implement Iowa Code chapter 455C.701—221.4(423) Advertising agencies, commercial artists and designers as an agent or as a nonagent of a client. 221.4(1) In general. A true agency relationship depends upon the facts with respect to each transaction. An agent is one who represents another, called the principal, in dealings with third persons. Advertising agencies, commercial artists, and designers may act as agents on behalf of their clients in dealing with third persons, or they may act on their own behalf. To the extent advertising agencies, artists and designers act as agents of their clients in acquiring tangible personal property, they are neither purchasers of the property with respect to the supplier nor sellers of the property with respect to their principals.When advertising agencies, commercial artists, and designers act as agents of their clients in purchasing property for their clients, the tax applies to the sales price from the sale of such property to the advertising agencies, commercial artists, and designers. Unless such advertising agencies, commercial artists and designers act as true agents, they will be regarded as the retailers of tangible personal property furnished to their clients and the tax will apply to the total sales price received for such property.To establish that a particular acquisition is made in the capacity of an agent for a client, advertising agencies, commercial artists, and designers (collectively referred to herein as “agency”) shall act as follows: a. The agency must clearly disclose to the supplier the name of the client for whom the agency is acting as an agent. b. The agency must obtain, prior to the acquisition, and retain written evidence of agent status with the client. c. The price billed to the client, exclusive of any agency fee, must be the same as the amount paid to the supplier. The agency may make no use of the property for its own account, such as commingling the property of a client with another, and the reimbursement for the property should be separately invoiced or shown separately on the invoice to the client. Some charges may represent reimbursement for tangible personal property acquired by the agency as agents for its clients and compensation for performing of agency services related thereto. When an advertising agency, commercial artist, or designer establishes that it has acquired tangible personal property as agents for its clients, tax does not apply to the charge made by the agency to its client for reimbursement charges by a supplier or to the charges made for the performance of the agency’s services directly related to the acquisition of personal property.Advertising agencies, commercial artists, and designers acting as agents shall not issue resale certificates to suppliers.Advertising agencies, commercial artists, and designers act as retailers of all items of tangible personal property produced or fabricated by their own employees when they sell to their clients. Advertising agencies, commercial artists, and designers are not agents of their clients with respect to the acquisition of materials incorporated into items of tangible personal property prepared by their employees and sold at retail to their clients. 221.4(2) Scope. The scope of this rule is not confined simply to advertising agencies, commercial artists and designers, but also applies to all other businesses whose activities would bring them within the scope of this rule (e.g., printers). This rule is intended to implement Iowa Code sections 423.2 and 423.5.701—221.5(422,423) Films and other media, exempt rental and sale. 221.5(1) Exempt rental. The sales price from the rental of films, video and audio tapes or discs, records, photos, copy, scripts, or other media used for the purpose of transmitting that which can be seen, heard or read shall not be taxable if the lessee either: a. Imposes a charge for the viewing or rental of the media and that charge will be subject to Iowa sales or use tax, or b. Broadcasts the contents of the media for public viewing or listening.The sales price from lessees who are film exhibitors or who rent video tapes and discs would ordinarily be exempt from tax under this rule. The rental of media for reproduction of images into newspapers or periodicals will not be exempt from tax under this rule since neither of criteria “a” or “b” above will occur. The rental of films, video tapes and video discs for home viewing is not exempt from tax. 221.5(2) Exempt sale. Sales price from the sale to persons regularly engaged in the business of leasing or renting media of motion picture films, video and audio tapes or discs, and records, or any other media that can be seen, heard, or read are exempt from tax if the ultimate leasing or renting of the media is subject to Iowa sales or use tax. This rule is intended to implement Iowa Code section 423.3(41).ARC 7204CRevenue Department[701]Notice of Intended ActionProposing rulemaking related to receipts subject to use tax depending on method of transaction and providing an opportunity for public comment
The Revenue Department hereby proposes to rescind Chapter 280, “Receipts Subject to Use Tax,” and Chapter 281, “Receipts Exempt From Use Tax,” and to rescind Chapter 282, “Receipts Subject to Use Tax Depending on Method of Transaction,” Iowa Administrative Code, and to adopt a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is proposed under the authority provided in Iowa Code sections 421.14, 422.68 and 423.42.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 423.5(1), 423.6(3), 423.6(6), 423.6(8), 423.6(10), 423.15(3) and 423.17.Purpose and Summary The purpose of this proposed rulemaking is to rescind and reserve Chapters 280 and 281 and to rescind and readopt Chapter 282. Chapters 280 and 281 describe the Department’s interpretation of the underlying statutes in order to assist and aid the public’s understanding of what is subject to use tax and what is exempt. Chapter 282 describes the Department’s interpretation of the underlying statutes and provides clarity on how use tax may be imposed depending on the transaction. After review, the Department has determined that there is no benefit to retaining Chapters 280 and 281 and proposes to rescind and reserve those chapters. However, the Department determined that two rules from Chapter 280 will be repromulgated as rules 701—282.1(423) and 701—282.2(423). Additionally, two rules from Chapter 281 will be repromulgated as rule 701—218.12(423) and new content in rule 701—219.7(423). These two rules are contained within the Notices of Intended Action for Chapters 218 (ARC 7200C, IAB 12/27/23) and 219 (ARC 7201C, IAB 12/27/23) and are published herein. The Department proposes further revisions to Chapter 282 to provide clarification and to remove obsolete, unnecessary, and duplicative statutory language. The Department also renumbered some rules in Chapter 282 due to other edits and for other organizational reasons. A Regulatory Analysis, including the proposed rule text, was published on November 1, 2023. A public hearing was held on November 21, 2023. No public comments on the Regulatory Analysis were received at the hearing or in writing. The Administrative Rules Coordinator provided preclearance for publication of this Notice of Intended Action on December 1, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 701—7.28(17A). Public Comment Any interested person may submit written or oral comments concerning this proposed rulemaking. Written or oral comments in response to this rulemaking must be received by the Department no later than 4:30 p.m. on January 16, 2024. Comments should be directed to: Nick Behlke Department of Revenue Hoover State Office Building P.O. Box 10457 Des Moines, Iowa 50306-3457 Phone: 515.336.9025 Email: nick.behlke@iowa.gov Public Hearing Public hearings at which persons may present their views orally or in writing will be held as follows: January 16, 2024 9 to 11 a.m. Via video/conference call January 16, 2024 1 to 3 p.m.Via video/conference call Persons who wish to participate in a video/conference call should contact Nick Behlke before 8:30 a.m. on January 16, 2024, to facilitate an orderly hearing. A video link and/or conference call number will be provided to participants prior to the hearing. Persons who wish to make oral comments at a public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rulemaking. Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing impairments, should contact the Department and advise of specific needs.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rulemaking action is proposed:
ITEM 1. Rescind and reserve 701—Chapter 280. ITEM 2. Rescind and reserve 701—Chapter 281. ITEM 3. Rescind 701—Chapter 282 and adopt the following new chapter in lieu thereof: CHAPTER 282RECEIPTS SUBJECT TO USE TAX DEPENDING ON METHOD OF TRANSACTION701—282.1(423) Transaction consummated outside this state. Iowa use tax applies to purchases of tangible personal property, specified digital products, and services as described in Iowa Code section 423.5 on which sales tax was not collected. This would most commonly occur if the good or service was purchased from a retailer that does not have nexus with Iowa. This rule is intended to implement Iowa Code section 423.5(1).701—282.2(423) Sales by federal government or agencies to consumers. A consumer purchasing tangible personal property, specified digital products, or a taxable enumerated service for use in Iowa from the federal government or any of its agencies is liable for the payment of Iowa use tax and shall report and remit the tax due on a sales and use tax return furnished by the department. This rule is intended to implement Iowa Code section 423.5(1)“c.”701—282.3(423) Fuel consumed in creating power, heat or steam for processing or generating electric current. Tangible personal property purchased outside the state and consumed in creating power, heat or steam for processing tangible personal property or for generating electric current intended to be sold ultimately at retail is exempt from sales and use tax. If the property purchased to be consumed as fuel in creating power, heat or steam for processing is also used in the heating of the factory or office, ventilation of the building, lighting of the premises or for any use other than that of direct processing, that portion of the property so used is subject to use tax.When buying tangible personal property, part of which is exempt as fuel under the provisions of the law, from an out-of-state seller registered to collect tax for the state, the purchaser shall furnish to such registered seller a written certificate certifying the cost of the property that is to be used for processing and is, therefore, exempt. The certificate shall also show the cost of the property that is not to be used in processing and, therefore, taxable in order that the registered seller may properly bill the amount of use tax due. This rule is intended to implement Iowa Code section 423.6(3)“b.”701—282.4(423) Taxation of Native Americans. 282.4(1) Definitions. "Native Americans" means all persons who are descendants of and who are members of any recognized tribe. "Settlement" means all lands recognized as a tribal government settlement or reservation within the boundaries of the state of Iowa. 282.4(2) Use tax. Out-of-state purchases made by Native Americans that are purchased for use on a recognized settlement where delivery occurs on a settlement to Native Americans who are members of the tribe located on that settlement are exempt from tax. Out-of-state purchases made by Native Americans where delivery occurs off a recognized settlement are subject to tax even though purchased for use on a recognized settlement.More information on purchases that may be subject to sales tax is found in rule 701—285.8(423). This rule is intended to implement Iowa Code section 423.6(6).701—282.5(423) Property used to manufacture certain vehicles to be leased. Tangible personal property that becomes an integral part of a vehicle as described in Iowa Code section 423.6(8) is exempt from use tax, subject to the limitations provided in Iowa Code section 423.6(8). However, this rule does not exempt the sale of the tangible personal property used from the imposition of sales tax under Iowa Code section 423.2 if that property is otherwise subject to sales tax. This rule is intended to implement Iowa Code section 423.6(8).701—282.6(423) Out-of-state rental of vehicles subject to registration subsequently used in Iowa. The rental of vehicles, which do not meet the definition of transportation equipment as defined in Iowa Code section 423.15(3), will be sourced for tax purposes as described in Iowa Code section 423.17. This rule is intended to implement Iowa Code sections 423.15(3) and 423.17.701—282.7(423) Sales of mobile homes, manufactured housing, and related property and services. 282.7(1) Sales of mobile homes, manufactured housing, and related property and services for one package price. This rule is applicable only to mobile homes and manufactured housing sold as tangible personal property rather than in the form of real property. If, at the time of the sale, a mobile home or manufactured housing is real property, this rule is not applicable to it. If a mobile home dealer buys a mobile home, incorporates that mobile home into real estate in the manner required by and described in Iowa Code section 435.26, and then sells the mobile home to a consumer, the sale of that mobile home, the sale of any services used to transform the mobile home from tangible personal property to real property, and the sale of any tangible personal property with the mobile home (such as furniture) are governed by rule 701—Chapter 219, which deals with building contracts and building contractors. Sales of manufactured housing in the form of real estate are governed by rule 701—282.8(423).When a customer purchases a mobile home or manufactured housing from a dealer, the customer often wants the dealer to prepare the mobile home or manufactured housing so that it is ready for the customer to move into it. To render a mobile home or manufactured housing “ready to move into” a dealer may sell, with the home or housing, certain tangible personal property and will also perform or arrange for other parties to perform various services.With respect to any one particular mobile home or manufactured house that a dealer may sell, a dealer may provide any combination of the following services or provide the following services and sell the below-listed property to any person purchasing the home or house: a. Connect the electricity. b. Connect the water. c. Connect sewer system lines. d. Sell and install skirting. Skirting is used to fill the space between the bottom of the mobile home or manufactured house and the ground. It gives the home or house an appearance more like a conventional home because it covers up this space. e. Build and install steps for a door. f. Build a deck. g. Do minor repairs. h. Install and sell a foundation upon which to place the mobile home or manufactured housing. i. Sell furniture or appliances (e.g., air conditioners, refrigerators, and stoves) for use in the mobile home or manufactured housing. Install the appliance (e.g., an air conditioner) if necessary.A dealer selling a mobile home or manufactured housing on a “ready-to-move-into” basis usually sells that home or housing and the services and additional property necessary to render them livable for one “package price.” The dealer and customer do not bargain separately for the sale of the various articles of tangible personal property (e.g., the mobile home or manufactured house and appliances) or the services (e.g., electrical installation) that are part of this package price; nor is the dealer’s package price broken down to indicate any of the expenses that are components of the package price either in the dealer’s sales contract or on any sales invoice.The package price of any one particular mobile home or manufactured house will vary depending upon how many services the dealer will provide, or how much tangible personal property the dealer will sell in addition to the home or house. In many cases, a dealer will contract with a third party to perform the services promised in the dealer’s contract to a customer. For example, the dealer will contract with a third party to hook up the home or house purchaser’s electricity, install window air conditioning or will contract with a third party to build a deck or perform minor repairs on the mobile home or manufactured house.In the situation described above, the “purchase price” of a mobile home or manufactured house is the entire package price charged for the home or house, additional personal property for use in and around the home or house, and services performed to render the home or house livable. The entire amount of the package price, reduced by 80 percent, as explained in rule 701—219.7 (423), is used to calculate the amount of use tax due resulting from the sale of the mobile home or manufactured house. No part of the package price is subject to Iowa sales tax; rather it is subject to Iowa use tax. 282.7(2) Sales of property and rendition of service under separate contract. If the personal property and services listed in subrule 282.7(1) are purchased under separate contract and not as part of one package price with a mobile home or manufactured house, either from a mobile home dealer or from another party, the price paid for those items of property or services will not be a part of the purchase price of the home or house. Because the price of the property or services is not part of the “purchase price” of a home or house, that price will not be reduced by 80 percent as required under rule 701—219.7(423), in computing the use tax due upon the sale of a mobile home. Also, if sold in Iowa, the property would be subject to Iowa sales tax. The same is true of services rendered in Iowa.If separately contracted for, the sales price of the following services sold are subject to Iowa sales tax under Iowa Code section 423.2(6): a. Electrical hookup and air conditioning installation (electrical installation). b. Water and sewer system hookup (plumbing). c. Skirting installation and building and installation of steps and decks (carpentry). d. Nearly all “minor repairs” would be taxable.The sale, under separate contract, of skirting, steps, decks, furniture, appliances, and other tangible personal property to customers purchasing mobile homes or manufactured housing would be sales of tangible personal property, the sales price is subject to Iowa sales rather than use tax.The installation of a concrete slab on which to place the mobile home or manufactured housing would not be a service taxable to the home or housing owner since this installation involves “new construction” and the service performed upon this new construction is thus exempt from tax. The person installing the concrete slab would be treated as a construction contractor and would pay sales tax upon any tangible personal property purchased and used in the construction of the slab. More information is contained in rule 701—Chapter 219. 282.7(3) Dealer purchases of tangible personal property and services for resale. Regardless of whether the tangible personal property and services connected with the purchase of a mobile home or manufactured housing have been purchased as part of a package price or whether their purchase has been separately contracted for, a dealer’s or other retailer’s purchase of the tangible personal property or service for subsequent resale to a mobile home or manufactured housing purchaser is a purchase “for resale” and thus exempt from Iowa sales or use tax. This rule is intended to implement Iowa Code section 423.6(10).701—282.8(423) Tax imposed on the use of manufactured housing as tangible personal property and as real estate. Tax is imposed on the use of “manufactured housing” in Iowa. 282.8(1) Definition. "Manufactured housing" means the same as defined in Iowa Code section 321.1. 282.8(2) Tax treatment of manufactured housing that is similar to the tax treatment of mobile homes: a. Manufactured housing is subject to Iowa use tax to the extent provided in Iowa Code section 423.6(10) and shall be paid as provided in Iowa Code section 423.26A. b. The use of manufactured housing previously subject to tax and upon which the tax has been paid is exempt from further tax. c. The taxation of manufactured housing that is sold in the form of tangible personal property is similar to the taxation of mobile homes that are sold in the form of tangible personal property. More information is contained in rule 701—282.7(423). 282.8(3) Taxable use of manufactured housing in the form of real estate. Unlike mobile homes, the use of which can be taxed only when the homes are in the form of tangible personal property, under certain conditions, the use of manufactured housing in the form of real estate can be subject to tax. If a developer has placed a manufactured home on a foundation in a lot in Iowa and hooked up the necessary utilities and completed the necessary landscaping to convert the home from tangible personal property to realty, the sale of the manufactured home to a user is a taxable use of the home on the user’s part.Company A then sells the homes on the lots to various customers. Each purchase of a home by a customer is a taxable use of the home on that customer’s part, and the customer is obligated to pay the appropriate county treasurer the amount of Iowa use tax due. a. Installed purchase price. When tax is due on the use of manufactured housing in the form of real estate, the basis for computing the tax is the “installed purchase price” of the manufactured housing. Installed purchase price means the same as defined in Iowa Code section 423.1(23). Use tax is due on 20 percent of the amount of the installed purchase price. (1) Included in the installed purchase price. Included within the meaning of “installed purchase price” are amounts charged to a buyer of a manufactured home to build and install a foundation on which to place a home; amounts charged to hook up electric, water, gas, sewer system, and other lines for necessary utilities; amounts charged to sell and install “skirting” as described in subrule 282.7(1); amounts charged to build and install any steps for a door; and amounts separately charged for any appliances or other items that become a part of the housing after installation, e.g., dishwashers and whirlpool tubs. (2) Exclusions from installed purchase price. Excluded from the meaning of “installed purchase price” is any amount charged for the purchase of land on which to place a manufactured house; any amount charged for landscaping in connection with the installation of a manufactured house; any amount charged to build and install any deck or similar appurtenance to a manufactured home; and any amounts charged for the sale of furniture or appliances that remain tangible personal property after installation, e.g., furniture, room air conditioners, and refrigerators. This list of inclusions and exclusions is not exclusive. Furthermore, the purchase of furniture or appliances that remain tangible personal property is subject to Iowa sales or use tax. b. The exemption in favor of taxable services performed on or in connection with new construction as described in Iowa Code section 423.3(37) is not applicable when calculating the amount of any installed purchase price. This rule is intended to implement Iowa Code section 423.6(10).ARC 7418CEducation Department[281]Adopted and FiledRulemaking related to organization and operation
The State Board of Education hereby rescinds Chapter 1, “Organization and Operation,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code sections 17A.3, 256.1, and 256.7.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapters 17A and 256.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified several instances where the previous Chapter 1 duplicated statutory language and contained a dated organizational structure. This rulemaking removes the duplicative text.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7082C. A public hearing was held on October 24, 2023, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. Two changes from the Notice have been made. New subrule 1.1(4) acknowledges other boards in the Department with independent rulemaking authority, and rule 281—1.4(17A,256) now specifically names the Innovation Division established by 2023 Iowa Acts, Senate File 514.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 1 and adopt the following new chapter in lieu thereof: CHAPTER 1TITLE IGENERAL INFORMATION— DEPARTMENT OPERATIONSORGANIZATION AND OPERATION281—1.1(17A,256) State board of education. The state board of education, authorized by Iowa Code chapter 256, is the governing and policy-forming body for the department of education. 1.1(1) Membership. The state board’s membership is governed by Iowa Code sections 256.3 and 256.4. 1.1(2) Meetings. The board’s meetings are governed by Iowa Code section 256.6. The majority of the board’s meetings are held in the State Board Room, Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319. By notice of the regularly published meeting agenda, the board may hold meetings in other areas of the state. The board may hold special meetings as provided in Iowa Code section 256.6. 1.1(3) Compensation. All voting members will receive compensation and reimbursement as provided in Iowa Code section 256.5. A student member will receive compensation pursuant to Iowa Code section 256.5A(6). If a student member’s parent or guardian provides supervision pursuant to subrule 1.2(4), the parent or guardian will receive necessary expenses but not a per diem. 1.1(4) Other boards. The Iowa board of educational examiners and the Iowa college student aid commission have rulemaking authority, the rules of which are codified under agency numbers 282 and 283, respectively.281—1.2(17A,256) Student member of the state board of education. The governor will appoint a public high school student to serve as a nonvoting member of the state board of education pursuant to Iowa Code section 256.5A. 1.2(1) Term. The nonvoting student member will serve a term from May 1 to April 30. The student member may serve a second year as the nonvoting student member without having to reapply for the position if the student has another year of high school eligibility remaining before graduation. A vacancy in the membership of the nonvoting student member will not be filled until the expiration of the term. 1.2(2) Qualifications. At the time of making application, a qualified nonvoting student member is to meet all of the following criteria: a. The student is a full-time, regularly enrolled tenth or eleventh grade student in an Iowa school district. b. The student has been regularly enrolled as a full-time student in the district of present enrollment for at least two consecutive semesters or the equivalent thereof. c. The student has a minimum cumulative grade point average in high school of 3.0 on a 4.0 scale (3.75 on a 5.0 scale). d. The student demonstrates participation in extracurricular and community activities, as well as an interest in serving on the state board. e. The student has the consent of the student’s parent or guardian, as well as the approval of the student’s district. 1.2(3) Application process. The application process for the nonvoting student member is as follows: a. The department will, on behalf of the state board, prepare and disseminate application forms to all school districts in Iowa. In addition to the application itself, the student will submit all of the following: (1) A consent form signed by the student’s parent or guardian. (2) An approval of the application signed by the superintendent of the student’s district of enrollment or the superintendent’s designee. (3) A letter of recommendation from a high school teacher from whom the student received instruction. (4) A letter of recommendation from a person in the community familiar with the student’s community activities. b. The number of applicants in a year from any one district is limited as follows: (1) If district enrollment for grades 10 through 12 is less than 400 students, there may be no more than one applicant from the district. (2) If district enrollment for grades 10 through 12 is between 400 and 1,199 students, there may be no more than two applicants from the district. (3) If district enrollment for grades 10 through 12 is 1,200 students or more, there may be no more than three applicants from the district. c. All applications are to be submitted on or before February 1 of the year in which the term is to begin. Applications may be hand-delivered or postmarked on or before February 1 to the Iowa department of education. d. All applications will be initially screened by a committee to be appointed by the director of the department. The initial screening committee will select not more than 20 semifinalists. If fewer than a total of 20 applications are received, the initial screening process may be omitted at the discretion of the director of the department. e. The applications of the semifinalists will be reviewed by a committee appointed by the president of the state board. The committee will submit a list of two to five finalists to the governor, who will appoint the student member from the list submitted. 1.2(4) Participation of student member in official board activities. a. Upon appointment to the board, the student member is to, at a minimum, fulfill the following qualifications to remain eligible to serve: (1) Maintain enrollment as a full-time student in an Iowa public school district (if the student moves or transfers from the district of application, the student will obtain the approval of the superintendent or the superintendent’s designee in the student’s new district of enrollment). (2) Maintain a minimum cumulative grade point average in high school of 3.0 on a 4.0 scale or 3.75 on a 5.0 scale. (3) Attend regularly scheduled board meetings as required of voting board members. As a nonvoting member, the student will not participate in any closed session of the board. b. The student member’s absences from school to participate in official state board activities will be excused absences. The student member’s participation in board activities outside the regularly scheduled meetings of the state board will be approved by the president of the board and the student’s superintendent or the superintendent’s designee. c. If the student member is a minor, the student’s parent or guardian will accompany the student while the student is participating in official state board activities at a location other than the student’s resident community, unless the parent or guardian submits to the state board a signed release indicating that the parent or guardian has determined that such supervision is unnecessary. d. The nonvoting student member is not considered for purposes of constituting the board’s necessary quorum.281—1.3(17A,256) Director of the department of education. The director is appointed pursuant to Iowa Code section 256.8 and performs such duties as assigned by the Iowa Code or the Iowa Administrative Code, including Iowa Code section 256.9.281—1.4(17A,256) Department of education. The department of education is established by Iowa Code section 256.1 to perform the functions and duties set forth in that section, in other Iowa Code provisions, and in the Iowa Administrative Code. The department is organized into such divisions as established by statute, including the innovation division established by 2023 Iowa Acts, Senate File 514, or the director. The mailing address for the state board of education, the director, and all divisions of the department is Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319-0146. These rules are intended to implement Iowa Code section 17A.3. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7425CEducation Department[281]Adopted and FiledRulemaking related to agency procedure for rulemaking
The State Board of Education hereby rescinds Chapter 2, “Agency Procedure for Rule Making and Petitions for Rule Making,” and adopts a new Chapter 2, “Agency Procedure for Rulemaking and Petitions for Rulemaking,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code chapter 17A and section 256.7.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapters 17A and 256.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified several instances where the current chapter duplicates statutory language. This text is removed in the rulemaking.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7083C. A public hearing was held on October 24, 2023, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 2 and adopt the following new chapter in lieu thereof: CHAPTER 2AGENCY PROCEDURE FOR RULEMAKING AND PETITIONS FOR RULEMAKING281—2.1(17A) Incorporation by reference. The Iowa department of education (department) and the Iowa state board of education incorporate by this reference all such matters in Iowa Code chapter 17A that deal with rulemaking or petitions for rulemaking.281—2.2(17A) Contact information. 2.2(1) General. Petitions for rulemaking and inquiries about department rules and the rulemaking process may be directed to Legal Consultant, Iowa Department of Education, Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319-0146. 2.2(2) Comments on proposed rules. Any public comment on a Notice of Intended Action or similar document may be directed to Legal Consultant, Iowa Department of Education, Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319-0146, or as directed in the Notice of Intended Action or similar document. 2.2(3) Petitions for rulemaking. A petition for rulemaking that substantially conforms to the following form will be considered by the department:DEPARTMENT OF EDUCATION Petition by (Name of Petitioner)for the Adoption/Amendment/Repeal of (Cite rule involved). } PETITION FORRULEMAKING281—2.3(17A) Electronic submissions. The department encourages electronic submissions of documents under this chapter, including documents bearing electronic signatures. More information is available in the administrative rules content on the department’s website (educateiowa.gov). These rules are intended to implement Iowa Code section 256.7(3) and chapter 17A. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7432CEducation Department[281]Adopted and FiledRulemaking related to declaratory orders
The State Board of Education hereby rescinds Chapter 3, “Declaratory Orders,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 17A.9.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 17A.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined nearly the entirety of this chapter is duplicative of the Uniform Rules on Agency Procedure chapter on declaratory orders, which is therefore incorporated by reference.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7084C. A public hearing was held on October 24, 2023, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 3 and adopt the following new chapter in lieu thereof: CHAPTER 3DECLARATORY ORDERS The Iowa department of education adopts, with the exceptions and amendments noted in rule 281—3.13(17A), the Uniform Rules on Agency Procedure relating to declaratory orders, which are published at www.legis.iowa.gov/DOCS/Rules/Current/UniformRules.pdf on the general assembly’s website.281—3.13(17A) Additional information concerning declaratory orders. For purposes of the Uniform Rules on Agency Procedure relating to declaratory orders, the following amendments and exceptions apply:- In lieu of “(designate agency)” insert “Iowa department of education”.
- In lieu of “(designate office)” insert “Grimes State Office Building, Second Floor, 400 East 14th Street, Des Moines, Iowa 50319-0146”.
- In lieu of “______days (15 or less)” insert “15 days”.
- In lieu of “______ days” insert “15 days”.
- In lieu of “(designate official by full title and address)” insert “General Counsel, Iowa Department of Education, Grimes State Office Building, Second Floor, 400 East 14th Street, Des Moines, Iowa 50319-0146”.
- In lieu of “(specify office and address)” insert “General Counsel, Iowa Department of Education, Grimes State Office Building, Second Floor, 400 East 14th Street, Des Moines, Iowa 50319-0146”.
- Method of service, time of filing, proof of mailing, the date of issuance of an order, or a refusal to issue an order are governed by 281—Chapter 6.
Rulemaking related to waivers from administrative rules
The State Board of Education hereby rescinds Chapter 4, “Waivers From Administrative Rules,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 17A.9A.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 17A.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined that a large portion of this chapter recites statutory text or is aspirational in nature. That text is removed and the chapter simplified.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7085C. A public hearing was held on October 24, 2023, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 4 and adopt the following new chapter in lieu thereof: CHAPTER 4WAIVERS FROM ADMINISTRATIVE RULES281—4.1(17A) Definitions. For purposes of this chapter: "Board" means the state board of education. "Department" means the department of education. "Director" means the director of the department of education. "Person" means an individual, school corporation, government or governmental subdivision or agency, nonpublic school, partnership or association, or any legal entity. "Waiver" means the same as defined in Iowa Code section 17A.9A(5).281—4.2(17A) General. The director may grant a waiver of any administrative rule, if the waiver is consistent with Iowa Code section 17A.9A.281—4.3(17A) Criteria for waiver. In response to a petition filed pursuant to this chapter, the director may in the director’s sole discretion issue an order waiving in whole or in part the obligations of a rule if the director finds, based on clear and convincing evidence, all of the factors listed in Iowa Code section 17A.9A(2) and that any waiver from the obligations of the rule in the specific case would not have a negative impact on the student achievement of any person affected by the waiver.281—4.4(17A) Filing of petition. All petitions for waiver are submitted in writing to the Director, Department of Education, Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319-0146. If the petition relates to a pending contested case, the petition is filed in the contested case proceeding, using the caption of the contested case.281—4.5(17A) Content of petition. A petition for waiver includes the following information where applicable and known to the requester: 1. The name, address, and telephone number of the person for whom a waiver is being requested, and the case number of any related contested case. 2. A description and citation of the specific rule from which a waiver is requested. 3. The specific waiver requested, including the precise scope and duration. 4. The relevant facts that the petitioner believes would justify a waiver under the criteria described in Iowa Code section 17A.9A(2). This statement includes 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. 5. A history of any prior contacts between the board, the department and the petitioner relating to the regulated activity, license, or grant affected by the proposed waiver, including a description of each affected item held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity, license, or grant within the last five years. 6. A detailed statement of the impact on student achievement for any person affected by the granting of a waiver. 7. Any information known to the requester regarding the board’s or department’s treatment of similar cases. 8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition. 9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver. 10. Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.281—4.6(17A) 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 the department.281—4.7(17A) Notice. The department will acknowledge receiving the petition and ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is necessary by any provision of law. In addition, the department may give notice to other persons. To accomplish this notice provision, the department may obligate the petitioner to serve the notice on all persons to whom notice is necessary by any provision of law and provide a written statement to the department attesting that notice has been provided.281—4.8(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings apply in three situations: (1) to any petition for a waiver filed within a contested case, (2) when provided by rule or order, or (3) when required to do so by statute.281—4.9(17A) Ruling. An order granting or denying a waiver will be in writing and will contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and the reasons upon which the action is based, and a description of the precise scope and operative period of any waiver issued. 4.9(1) General. The final decision on whether the circumstances justify the granting of a waiver is in the sole discretion of the director, based on the unique, individual circumstances set out in the petition. 4.9(2) Compliance with Iowa Code standards. The department applies the standards and burdens in Iowa Code section 17A.9A(3). 4.9(3) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the director will balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons. 4.9(4) Time for ruling. The director will grant or deny a petition for a waiver as soon as practicable but, in any event, 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 director will grant or deny the petition no later than the time at which the final decision in that contested case is issued. Failure of the director to grant or deny a petition within the time period is deemed a denial of that petition by the director. However, the director remains responsible for issuing an order denying a waiver. 4.9(5) Service of order. Within seven days of its issuance, any order issued under this chapter is transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.281—4.10(17A) Public availability. The department will comply with the public availability and filing procedures of Iowa Code section 17A.9A(4).281—4.11(17A) After issuance of a waiver. 4.11(1) Cancellation. A waiver issued pursuant to this chapter may be withdrawn, canceled or modified if, after appropriate notice and hearing, the director 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. 4.11(2) Violations. A violation of conditions in the waiver approval is the equivalent of violation of the particular rule for which the waiver is 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. 4.11(3) Defense. After the director issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked. 4.11(4) Judicial review. Judicial review of the director’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.281—4.12(17A) Exception. This chapter does not apply to 281—Chapters 36 and 37 or to specific waiver provisions adopted in other chapters. These rules are intended to implement Iowa Code section 17A.9A. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7427CEducation Department[281]Adopted and FiledRulemaking related to appeal procedures
The State Board of Education hereby rescinds Chapter 6, “Appeal Procedures,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7(5).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 290.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined that several of the rules recite statutory text, recite text from the Uniform Rules on Agency Procedure on contested cases (which could be incorporated by reference), or are obsolete. This rulemaking removes that language and simplifies this chapter.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7088C. A public hearing was held on October 24, 2023, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 6 and adopt the following new chapter in lieu thereof: CHAPTER 6APPEAL PROCEDURES281—6.1(290) Scope of chapter. This chapter applies to all hearing requests seeking appellate review by the state board of education, the director of education, or the department of education.281—6.2(256,290,17A) Definitions. The definitions contained in rule X.2 of the Uniform Rules on Agency Procedure for contested cases, effective on July 1, 1999, which are published on the general assembly’s website at www.legis.iowa.gov/DOCS/Rules/Current/UniformRules.pdf, are incorporated by reference. The following additional definitions apply to this chapter: "Appellant" refers to a party bringing an appeal to the state board of education, the director of education, or the department of education. "Appellee" refers to the party in a matter against whom an appeal is taken or the party whose interest is adverse to the reversal of a prior decision now on appeal to the state board of education, the director of education, or the department of education. "Board" means the state board of education. "Department" means the department of education. "Designated office" means the Iowa Department of Education, Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319, or as ordered by the presiding officer. "Director" refers to the director of education. "Presiding officer" means the director of the department of education or the designated administrative law judge.281—6.3(290,17A) Incorporation by reference. The following rules from the Uniform Rules on Agency Procedure for contested cases, effective on July 1, 1999, are incorporated by reference:- X.7(17A) Waiver of procedures.
- X.9(17A) Disqualification.
- X.10(17A) Consolidation—severance.
- X.12(17A) Service and filing of pleadings and other papers.
- X.13(17A) Discovery.
- X.14(17A) Subpoenas, with the following addition: Witnesses and serving officers may be allowed the same compensation as is paid for like attendance or service in district court. The witness’s fees and mileage are considered costs of any appeal filed under Iowa Code chapter 290, and costs are assigned to the nonprevailing party. The witness’s fees and expenses for hearings brought under other statutes and rules are the responsibility of the party requesting or subpoenaing the witness.
- X.15(17A) Motions.
- X.16(17A) Prehearing conference.
- X.17(17A) Continuances.
- X.19(17A) Intervention.
- X.20(17A) Hearing procedures.
- X.21(17A) Evidence.
- X.22(17A) Default, with the following correction: The reference to Iowa Rule of Civil Procedure 236 is corrected to Rule 1.977.
- X.23(17A) Ex parte communication.
- X.24(17A) Recording costs.
- X.28(17A) Applications for rehearing.
- X.29(17A) Stays of agency actions.
- X.30(17A) No factual dispute contested cases.
- X.31(17A) Emergency adjudicative proceedings.
Rulemaking related to criteria for grants
The State Board of Education hereby rescinds Chapter 7, “Criteria for Grants,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7(5).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 256.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified unnecessary and duplicative restrictive language, which this rulemaking rescinds.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7089C. A public hearing was held on October 24, 2023, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 7 and adopt the following new chapter in lieu thereof: CHAPTER 7CRITERIA FOR GRANTS281—7.1(256,17A) General. To ensure equal access and objective evaluation of applicants for competitive program grant funds made available by the Iowa department of education (department), grant application materials are to contain, at minimum, specific content. The department develops competitive program grant application packets in accordance with these rules unless in conflict with appropriation language, the Iowa Code, the Iowa Administrative Code, federal regulations, or interagency agreements between the department and other state agencies.281—7.2(256,17A) Definitions. For the purpose of these rules, the following definitions apply: "Competitive program grant" means the collective activities of a competitive grant funded through the department. "Program period" means the period of time that the department intends to support the program without requiring the recompetition for funds. The program period is specified within the grant application. "Service delivery area" means the defined geographic area for delivery of program services.281—7.3(256,17A) Grant application contents. All competitive program grant application materials made available by the department are to include the following: 1. Funding source. 2. Program period. 3. Description of eligible applicants. 4. Services to be delivered. 5. Service delivery area. 6. Target population to be served (if applicable). 7. Funding purpose. 8. Funding restrictions. 9. Funding formula (if any). 10. Matching requirement (if any). 11. Reporting requirements. 12. Performance criteria. 13. Need for letters of support or other materials (if applicable). 14. Application due date. 15. Anticipated date of awarding grant. 16. Required components of submitted grant applications. 17. An explanation of the review process and the review criteria to be used by application evaluators, including the number of points allocated per evaluated component. 18. Appeal process in the event an application is denied.281—7.4(256,17A) Review process. The review process to be followed in determining the amount of funds to be approved for any competitive program grant will be described in the application, including the review criteria and point allocation for each criterion. 7.4(1) The competitive program grant review committee will be determined by the appropriate division administrator. The review committee members will allocate points per review criterion when conducting the review. 7.4(2) In the event competitive program grant applications receive an equal number of points that necessitates a further determination of whether an applicant is to receive a grant, a second review will be conducted by the division administrator or the division administrator’s designee.281—7.5(290,17A) Appeal of grant denial or termination. Any applicant may appeal the denial of a properly submitted competitive program grant application or the unilateral termination of a competitive program grant to the director of the department. 7.5(1) Appeals are to be: a. In writing, b. Received within ten working days of the date of the notice of decision, and c. Based on a contention that the process was conducted outside of statutory authority; violated state or federal law, policy, or rule; did not provide adequate public notice; was altered without adequate public notice; or involved conflict of interest by staff or committee members. 7.5(2) The hearing and appeal procedures found in 281—Chapter 6 that govern the director’s decisions apply to any appeal of denial or termination. 7.5(3) In the notice of appeal, the grantee will give a short and plain statement of the reasons for the appeal. 7.5(4) The director will issue a decision within a reasonable time, not to exceed 60 days from the date of the hearing. These rules are intended to implement Iowa Code section 256.9(7). [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7421CEducation Department[281]Adopted and FiledRulemaking related to statewide voluntary preschool program
The State Board of Education hereby rescinds Chapter 16, “Statewide Voluntary Preschool Program,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256C.2.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 256C.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified several rules in Chapter 16 that recite statutory text, are obsolete, or are aspirational in nature. They are removed in this rulemaking.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7090C. A public hearing was held on October 24, 2023, at 9:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. A date certain was added to the definition of “program standards” and to subrule 16.2(5). No other changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 16 and adopt the following new chapter in lieu thereof: CHAPTER 16STATEWIDE VOLUNTARY PRESCHOOL PROGRAM281—16.1(256C) Definitions. "Applicant" means a school district applying to become an approved local program. Only public school districts in Iowa may apply for state funds under this chapter. "Approved local program" means the same as defined in Iowa Code section 256C.1. "Assessment" means a systematic ongoing procedure for obtaining information from observations, interviews, portfolios, and tests that can be used to make judgments about the strengths and needs of individual children and plan appropriate instruction. "Comprehensive services" means the provision of quality, developmentally appropriate early learning experiences consistent with age-relevant abilities or milestones; extended day child care services; developmental screenings, including health, hearing, and vision screenings; transportation; and family education and support services. "Curriculum" means a research-based or evidence-based written framework that is comprehensive, addresses the needs of the whole child, and provides a guide for decision making about content, instructional methods, and assessment. "Department" means the same as defined in Iowa Code section 256C.1. "Developmentally appropriate" means practices that are based upon knowledge of how children develop and learn and that are responsive to the individual child’s learning strengths, interests, and needs. "Director" means the same as defined in Iowa Code section 256C.1. "Eligible child" means the same as defined in Iowa Code section 256C.3(1). "Family education and support" means any developmentally appropriate activity or information, provided either formally or informally to parents, that supports the success of children and their families to reach desired results. "Paraeducator" means a certified educational assistant as defined in Iowa Code section 272.1(7) and licensed under 282—Chapter 24. "Prekindergarten program" means an education program offered by a school district or by an accredited nonpublic school as defined in 281—Chapter 12. "Preschool budget enrollment" means the same as defined in Iowa Code section 256C.5. "Preschool foundation aid" means the same as defined in Iowa Code section 256C.5. "Preschool program" means the statewide voluntary preschool program for four-year-old children created in Iowa Code chapter 256C. "Program standards" means the expectations for the characteristics or quality of early childhood settings, centers, and schools approved by the department, on or before January 31, 2024. Approved program standards include National Association for the Education of Young Children (NAEYC) Program Standards and Accreditation Criteria, Head Start Program Performance Standards, the Iowa Quality Preschool Program Standards (QPPS) and Criteria, or other approved program standards as determined by the department. "School district" means the same as defined in Iowa Code section 257.2. "Staff member" means an individual who implements preschool activities under the direct supervision of a teacher. Staff members include paraeducators, teacher aides and teacher associates. All staff members are to meet the program standards defined herein. "Teacher" means an individual who holds a valid practitioner’s license issued by the board of educational examiners under Iowa Code chapter 272 and holds an endorsement from the board of educational examiners that includes prekindergarten or kindergarten. There is no obligation that the teacher be an employee of the applicant district; the teacher may be employed by a private provider or other public agency with which the district has entered into an agreement or contract under Iowa Code chapter 28E.281—16.2(256C) Preschool program standards. Approved program standards include Head Start Program Performance Standards, Iowa Quality Preschool Program Standards and Criteria, or the NAEYC Program Standards and Accreditation Criteria. All approved local preschool programs adopt preschool program standards and meet the following criteria: 16.2(1) Personnel. A minimum of one teacher is present with eligible children during the voluntary preschool program instructional time. 16.2(2) Ratio of staff to children. At least one teacher is present in a classroom during the instructional time described in subrule 16.2(4). A minimum of one staff member and one teacher are present when 11 to 20 children are present. Staff members and teachers have reasonable line-of-sight supervision of all children. 16.2(3) Maximum class size. There are no more than 20 children per classroom. 16.2(4) Instructional time. Eligible children receive instructional time as established by Iowa Code section 256C.3(3)“f” that meets the needs of the child and is directly related to the program’s curriculum, such time to be exclusive of recess. 16.2(5) Child learning standards. The preschool program demonstrates how the curriculum, assessment, staff development, and instructional strategies are aligned to the Iowa Early Learning Standards, adopted on or before January 31, 2024. The teacher provides instruction on the skills and knowledge included in the Iowa Early Learning Standards. 16.2(6) Curriculum. The preschool program adopts a research-based or evidence-based curriculum. 16.2(7) Assessment. The preschool program adopts a research-based or evidence-based assessment to provide information on children’s learning and development. 16.2(8) Staff development. The school district complies with Iowa Code section 256C.3(4)“d.” The district makes available to any teacher of a statewide voluntary preschool program who is not employed by the district staff development that the district offers to the district’s personnel to maintain the skills appropriate to the teacher’s role. The school district ensures that staff members for the program are provided appropriate staff development in early childhood education. 16.2(9) Space. The preschool program provides adequate and appropriate space and facilities in accordance with program standards. 16.2(10) Materials. The preschool program provides instructional materials and supplies consistent with the program standards and Iowa Early Learning Standards. 16.2(11) Meals. The preschool program provides adequate and appropriate meals or snacks in accordance with program standards. 16.2(12) Parent involvement. The preschool program involves families through at least one home visit by the licensed teacher of the child, one family night, and at least two family-teacher conferences per year. Family involvement may include volunteering in the classroom, orientation to the preschool program, parent education, general communications, or other activities. 16.2(13) Integration of other preschool programs. The preschool program complies with Iowa Code section 256C.3(3)“d.” 16.2(14) Comprehensive services. The preschool program may collaborate with other agencies for the provision of the following: a. Quality, developmentally appropriate early learning experiences; b. Extended day child care; c. Transportation; d. Developmental screening, including health, hearing, and vision screening; e. Referral to other agencies providing health insurance, health care, immunizations, nutrition services, and mental health and oral health services; and f. Family education and support.281—16.3(256C) Collaboration. 16.3(1) Teachers. The teacher complies with Iowa Code section 256C.3(2)“b.” 16.3(2) Programs. The program complies with Iowa Code section 256C.3(3)“e.” In doing so, the program makes available resources, including those described in subrule 16.2(14), necessary to meet the needs of the child. Preschool programs collaborate to ensure that children receiving care from other approved child care arrangements can participate in the voluntary preschool program with minimal disruptions to the child. 16.3(3) Districts. The school district complies with Iowa Code section 256C.3(4)“a” and “b.”281—16.4(256C) Applications for funding. All applications are submitted in a manner directed by the department; address the standards found in rules 281—16.2(256C), 281—16.3(256C), and 281—16.9(256C); and contain a plan describing how they will fully meet the program standards within one year of the funding award. Points are awarded based on the applicant’s provision of the following information: 1. Preschool program summary; 2. Research documentation; 3. Identification and documentation of local population; 4. Needs assessment of local programs providing services; 5. Evidence of collaboration with local agencies to provide comprehensive services; and 6. Letters of community support.281—16.5(256C) Application process. 16.5(1) Request for applications. a. The department announces the commencement of the application period through public notice on the department’s website and the department’s relevant regular electronic publications. b. Applications for preschool program funding are available on the department’s website and otherwise distributed by the department upon request. c. All applications are to be submitted to the department in accordance with instructions accompanying the applications. 16.5(2) Application process. a. Applications that do not contain the specified information or that are not received by the specified date will not be considered. b. The department has the final discretion to award funds. 16.5(3) Notification of applicants. The department notifies all applicants within 45 days following the due date for receipt of applications whether their requests are funded. The department is to provide to each successful applicant a contract to be signed by an official with authority to bind the applicant and to be returned to the department prior to the distribution of any funds under this program.281—16.6(256C) Removal of approval. 16.6(1) Removal by agreement. The contract may be terminated in whole or in part when both parties agree that the continuation of the project would not produce beneficial results commensurate with the future expenditure of funds. The parties shall agree upon the termination conditions, including the effective date and, in the case of partial terminations, the portion to be terminated. The applicant does not incur new obligations for the terminated portion after the effective date and will cancel as many outstanding obligations as possible. 16.6(2) Department removal for cause. a. The department may remove approval in whole or in part at any time before the date of completion whenever it is determined by the department that the applicant has failed to comply substantially with the conditions of the contract. The applicant will be notified in writing by the department of the reasons for the removal of approval and the effective date. The applicant does not incur new obligations for the portion for which approval is removed after the effective date of removal and will cancel as many outstanding obligations as possible. b. The department may remove approval in whole or in part by June 30 of the current fiscal year in the event that the applicant has not attained the program standards. 16.6(3) Responsibility of applicant after removal of approval. Within 45 days of the removal of approval, the applicant will supply the department with a financial statement detailing all costs incurred up to the effective date of the removal. If the applicant expends moneys for other than specified budget items approved by the department, the applicant will return moneys for unapproved expenditures.281—16.7(256C) Appeal of application denial, termination, or removal of approval. Any applicant may appeal to the director of the department the denial of a properly submitted preschool program funding application or the unilateral termination or removal of an approval. The jurisdictional criteria and procedures found in 281—Chapter 7 apply to any appeal of denial.281—16.8(256C) Finance. 16.8(1) General. The department implements Iowa Code sections 256C.4 and 256C.5. 16.8(2) Aid payments. Preschool foundation aid is paid as part of the state aid payments made to school districts in accordance with Iowa Code section 257.16, except that it is not necessary that an eligible child be a resident of the district in which the child is enrolled voluntarily in the approved local program. 16.8(3) Separate accounting. All state funding received under this program is accounted for by the applicant district separately from other state aid payments. 16.8(4) Restriction on supplanting. State funding received under this program is used to supplement, not supplant, other public funding received by the applicant district as the result of the participation of any eligible children in other state or federal funded preschool programs. This restriction is applicable only for costs related to instructional time as described in subrule 16.2(4). 16.8(5) Transportation. Children participating in preschool in an approved local program under Iowa Code chapter 256C may be provided transportation services. However, transportation services provided to such children are not eligible for reimbursement under this chapter. 16.8(6) Open enrollment not applicable. Iowa’s open enrollment statute (Iowa Code section 282.18) is not applicable for the parent or guardian of an eligible child who desires to access an approved program in a school district not of the child’s residence. Approved programs are open to all eligible Iowa children, regardless of a child’s district of residence. Accordingly, it is neither necessary for a parent or guardian to file an open enrollment application, nor will open enrollment applications for approved preschool programs be allowed. Participation in an approved program in a school district not of the child’s residence does not create an entitlement to continuous open enrollment under Iowa Code section 282.18.281—16.9(256C) Accountability. An approved local program meets the minimum program specifications in this chapter. The department encourages approved local programs to exceed the minimum standards as programs work toward ongoing improvement. The department monitors each local program’s compliance with this rule. 16.9(1) Annual reports. Each approved local program provides, on forms provided by the department, an annual report to the department regarding program specifications. Failure to submit an annual report by the date specified therein results in suspension of financial payments to the applicant until such time as the report is received by the department. 16.9(2) Performance measures. The approved local program collects data on all of the following: a. The number of eligible children participating in the preschool program. b. The number of eligible children participating in a program that meets the criteria of NAEYC, Head Start, or QPPS Standards and Criteria. c. The curriculum. d. The assessment as defined in rule 281—16.1(256C). e. The number of teachers. f. The kindergarten literacy assessment as defined in Iowa Code section 279.60. 16.9(3) Noncompliance with program specifications. If the department determines that a participating district does not meet one or more of the accountability specifications provided in rule 281—16.2(256C), the department informs the school district of appropriate actions to be taken by the school district. The school district submits an action plan that is approved by the department and contains reasonable timelines for coming into compliance. The department will facilitate technical assistance when requested. If the department determines that the school district is not taking the necessary actions in a timely manner, the director removes approval and terminates the school district’s contract as provided in subrule 16.6(2). Until such time as the school district’s contract is terminated, the school district may continue to participate in the statewide voluntary preschool program. 16.9(4) Monitoring. The department develops a monitoring system based on the annual reporting and performance measures described in this rule to be implemented no later than one year after funding is first provided under this chapter. The monitoring system ensures that programs meet the provisions herein requiring a properly licensed teacher and adoption of program standards and is designed to follow the academic progress of children who voluntarily participate in the statewide preschool program as the children progress through elementary and secondary grade levels. If feasible, it is the intent of the department to include postsecondary monitoring of such children. These rules are intended to implement Iowa Code chapter 256C. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7426CEducation Department[281]Adopted and FiledRulemaking related to school fees
The State Board of Education hereby rescinds Chapter 18, “School Fees,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7(20).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 256.7(20).Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified several rules that recite statutory text or are aspirational in nature. They are removed in this rulemaking.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7091C. A public hearing was held on October 24, 2023, at 9:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. The rulemaking maintains the core status quo responsibilities for schools. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 18 and adopt the following new chapter in lieu thereof: CHAPTER 18SCHOOL FEES281—18.1(256) Overview. No Iowa student enrolled in a public school may be excluded from participation in or denied the benefits of course offerings and related activities due to the student’s or the student’s parent’s or guardian’s financial inability to pay a fee associated with the class, program, or activity.281—18.2(256) Fee policy. The board of directors (board) of a public school district (district) shall adopt a policy regarding the charging and collecting of fees for course offerings and related activities and for transportation provided to resident students who are not entitled to transportation under Iowa Code section 285.1, apply its policy to any fees charged, and develop procedures to implement its policy.281—18.3(256) Eligibility for waiver, partial waiver or temporary waiver of student fees. The policy mandated by rule 281—18.2(256) is to include provisions for granting a waiver, partial waiver, or temporary waiver of student fees upon application by the student. 18.3(1) Waivers. At minimum, the policy is to include the following provisions relating to eligibility for the waivers: a. Waiver.A student is granted a waiver of all fees covered by this chapter if the student or the student’s family meets the financial eligibility criteria for free meals offered under the child nutrition program, or for the family investment program (FIP), or for transportation assistance under open enrollment provided under 281—Chapter 17, or if the student is in foster care under Iowa Code chapter 232. b. Partial waiver.A student is granted either a waiver of all student fees or a partial waiver of student fees if the student or the student’s family meets the financial eligibility criteria for reduced price meals offered under the child nutrition program, based on a sliding scale related to an ability to pay. c. Temporary waiver.At the discretion of the district, a student may be granted a temporary waiver of a fee or fees in the event of a temporary financial difficulty in the student’s immediate family. A temporary waiver may be applied for and granted at any time during a school year. The maximum length of a temporary waiver is one year. d. Fees waived not collectable.When an application for any fee waiver is granted, the fee or fees waived under the application are not collectable. e. Distribution of policy and applications.At the time of registration or enrollment, the district distributes procedures on charging fees, a written notice of fees charged to each student, the waiver and reduction policy and procedures including income guidelines, and the application for waiver. For students or families whose primary language is other than English, the district provides a copy of the materials in the student’s native language or arranges for translation of the materials within a reasonable time. f. Annual application.The request for a fee waiver is made on application forms provided by the department of education. An application can be received at any time but may only be renewed at the beginning of the school year. 18.3(2) Applications. The procedures are to include a description of the confidential application process for the waiver and provide that a written decision be issued to the applicant within a reasonable time. If the application is denied, the decision will include the reason for the denial. 18.3(3) Review and appeals. The procedures are to include a provision for a confidential review of any denial by a person or persons designated by the board upon request and the manner in which an appeal may be taken. If the decision on review is again to deny the application, the decision maker will notify the applicant in writing that the applicant may appeal the denial to the director of the department of education by filing a notarized statement within 30 days of the applicant’s receipt of the district’s final decision.281—18.4(256) Fees covered. Fines assessed for damage or loss to school property are not fees and need not be waived. Nothing in this chapter authorizes the charging of a fee for which there is no authority in law. These rules are intended to implement Iowa Code section 256.7(20). [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7434CEducation Department[281]Adopted and FiledRulemaking related to educating homeless children and youth
The State Board of Education hereby rescinds Chapter 33, “Educating Homeless Children and Youth,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7(5).State or Federal Law Implemented This rulemaking implements, in whole or in part, the McKinney-Vento Homeless Assistance Act (42 U.S.C. §11431).Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified several instances where the rules duplicate language from the Iowa Code or the United States Code, including the definition of “homeless child or youth” and the responsibilities of the local educational agency liaison. In this rulemaking, that language is removed and the rules are simplified.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7087C. A public hearing was held on October 24, 2023, at 10 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 33 and adopt the following new chapter in lieu thereof: CHAPTER 33EDUCATING HOMELESS CHILDREN AND YOUTH281—33.1(256) Definitions. "District of origin" means the public school district in Iowa in which a child was last enrolled or which a child last attended when permanently housed. "Guardian" means a person of majority age with whom a homeless child or youth of school age is living or a person of majority age who has accepted responsibility for the homeless child or youth, whether or not the person has legal guardianship over the child or youth. "Homeless child or youth" means a child or youth from the age of 3 years through 21 years who meets the definition in Iowa Code section 282.1(2)“a”(2). "Preschool child" means a child who is three, four, or five years of age before September 15. "School of origin" means the school that a child or youth attended when permanently housed or the school in which the child or youth was last enrolled, including a preschool. When the child or youth completes the final grade level served by the school of origin, the term “school of origin” includes the designated receiving school at the next grade level for all feeder schools. "Unaccompanied homeless youth" means a homeless youth not in the physical custody of a parent or guardian.281—33.2(256) Responsibilities of school districts. A public school district (district) shall do all of the following: 33.2(1) The district will locate and identify homeless children or youth within the district, whether or not they are enrolled in school. 33.2(2) The district will post, at community shelters and other locations in the district where services or assistance is provided to the homeless, information regarding the educational rights of homeless children and youth and encouraging homeless children and youth to enroll in the public school. 33.2(3) The district will examine and revise, if necessary, existing school policies or rules that create barriers to the enrollment of homeless children or youth, consistent with these rules. Examination and revision include identifying and removing barriers that prevent such children and youth from receiving appropriate credit for full or partial coursework satisfactorily completed while attending a prior school, in accordance with state, local, and school policies. Examination and revision also include ensuring that homeless children and youth who meet the relevant eligibility criteria do not face barriers to accessing academic and extracurricular activities, including magnet school, summer school, career and technical education, advanced placement, online learning, and charter school programs, if such programs are available at the state and local levels. School districts are encouraged to cooperate with agencies and organizations for the homeless to explore comprehensive, equivalent alternative educational programs and support services for homeless children and youth when necessary to implement the intent of these rules. 33.2(4) The district will enact a policy prohibiting the segregation of a homeless child or youth from other students enrolled in the public school district. 33.2(5) The district immediately will enroll a homeless child or youth, pending resolution of any dispute regarding in which school the child or youth should be enrolled. 33.2(6) The district will determine school placement based on the best interests of a homeless child or youth. The district, to the extent feasible, will keep a homeless child or youth in the school of origin, except when doing so is contrary to the wishes of the child’s or youth’s parent or guardian. If the child or youth becomes permanently housed during an academic year, enrollment continues in the school of origin for the remainder of that academic year unless the parent or guardian agrees otherwise. 33.2(7) The district will designate as the district’s local educational agency liaison for homeless children and youth an appropriate staff person who is able to and has been trained to carry out the duties specified in 42 U.S.C. §11432(g)(6) and coordinates and collaborates with state coordinators and community and school personnel responsible for the provision of education and related services to homeless children and youth.281—33.3(256) School records; student transfers. 33.3(1) The school records of each homeless child or youth will be maintained so that the records are available in a timely fashion when a child or youth enters a new school district and in a manner consistent with federal statutes and regulations related to student records. 33.3(2) Upon notification that a homeless student intends to transfer out of the district, a school district will immediately provide copies of the student’s permanent and cumulative records, or other evidence of placement or special needs, to the homeless child or youth or the parent or guardian of a homeless child or youth who may take the copies with them. 33.3(3) Upon the enrollment of a homeless child or youth, a school district will accept copies of records, or other evidence of placement provided by the homeless child, youth, or the parent or guardian of the homeless child or youth, for purposes of immediate placement and delivery of education and support services. Thereafter, the receiving school will request copies of the official records from the sending school. The receiving school shall not dismiss or deny further education to the homeless child or youth solely on the basis that the prior school records are unavailable.281—33.4(256) Immunization. 33.4(1) Consistent with the provisions of Iowa Code section 139A.8 and rules of the department of health and human services, a public school shall not refuse to enroll or exclude a homeless child or youth for lack of immunization records if any of the following situations exist. The parent or guardian of a homeless child or youth or a homeless child or youth: a. Offers a statement signed by a doctor licensed by the state board of medical examiners specifying that in the doctor’s opinion the immunizations required would be injurious to the health and well-being of the child or youth or to any member of the child’s or youth’s family or household. b. Provides an affidavit stating that the immunization conflicts with the tenets and practices of a recognized religious denomination of which the homeless child or youth is a member or adherent, unless the state board of health has determined and the director of health has declared an emergency or epidemic exists. c. Offers a statement that the child or youth has begun the required immunizations and is continuing to receive the necessary immunizations as rapidly as is medically feasible. d. States that the child or youth is a transfer student from any other school, and that school confirms the presence of the immunization record. 33.4(2) The school district will make every effort to locate or verify the official immunization records of a homeless child or youth based upon information supplied by the child, youth, parent, or guardian. In circumstances where it is admitted that the homeless child or youth has not received some or all of the immunizations required by state law for enrollment and none of the exemptions listed above is applicable, the district will refer the child, youth, and parent or guardian to the local board of health for the purpose of immunization, and the school is to provisionally enroll the child or youth in accordance with paragraph 33.4(1)“c” or “d” above.281—33.5(256) Waiver of fees and charges encouraged. 33.5(1) If a child or youth is determined to be homeless as defined by these rules, and is not otherwise eligible for a waiver of fees under 281—Chapter 18, a school district is encouraged, subject to state law, to waive any fees or charges that would present a barrier to the enrollment or transfer of the child or youth, such as fees or charges for textbooks, supplies, or activities. 33.5(2) A homeless child or youth, or the parent or guardian of a homeless child or youth, who believes a school district has denied the child or youth entry to or continuance of an education in the district on the basis that mandatory fees cannot be paid may appeal to the department of education using the dispute resolution mechanism in rule 281—33.8(256).281—33.6(256) Waiver of enrollment requirements encouraged; placement. 33.6(1) If a homeless child or youth seeks to enroll or to remain enrolled in a public school district, the district is encouraged to waive any requirements, such as mandatory enrollment in a minimum number of courses, which would constitute barriers to the education of the homeless child or youth. 33.6(2) In the event that a school district is unable to determine the appropriate grade or placement for a homeless child or youth because of inadequate, nonexistent, or missing student records, the district will administer tests or utilize otherwise reasonable means to determine the appropriate grade level for the child or youth.281—33.7(256) Residency of homeless child or youth. 33.7(1) A child or youth, a preschool child if the school offers tuition-free preschool, or a preschool child with a disability who meets the definition of homeless in these rules is entitled to receive a free, appropriate public education and necessary support services in either of the following: a. The district in which the homeless child or youth is actually residing, or b. The district of origin.The deciding factor as to which district has the duty to enroll the homeless child or youth is the best interests of the child or youth. In determining the best interests of the child or youth, the district(s), to the extent feasible, will keep a homeless child or youth in the district of origin, except when doing so is contrary to the wishes of the parent or guardian of the child or youth. In the case of an unaccompanied homeless youth, the local educational agency liaison assists in the placement or enrollment decision, taking into consideration the views of the unaccompanied homeless youth. If the child or youth is placed or enrolled in a school other than within the district of origin or other than a school requested by the parent or guardian or unaccompanied homeless youth, the district will provide a written explanation, including notice of the right to appeal under rule 281—33.8(256), to the parent or guardian or unaccompanied homeless youth. 33.7(2) The choice regarding placement is made regardless of whether the child or youth is living with a homeless parent or has been temporarily placed elsewhere by the parent(s); or, if the child or youth is a runaway or otherwise without benefit of a parent or legal guardian, where the child or youth has elected to reside. 33.7(3) Insofar as possible, a school district will not require a homeless student to change attendance centers within a school district when a homeless student changes places of residence within the district. 33.7(4) If a homeless child or youth is otherwise eligible and has made proper application to utilize the provisions of Iowa Code section 282.18 (open enrollment), the child or youth will not be denied the opportunity for open enrollment on the basis of homelessness.281—33.8(256) Dispute resolution. 33.8(1) If a homeless child or youth is denied access to a free, appropriate public education in either the district of origin or the district in which the child or youth is actually living, or if the child’s or youth’s parent or guardian believes that the child’s or youth’s best interests have not been served by the decision of a school district, an appeal may be made to the department of education as follows: a. If the child is identified as a special education student under Iowa Code chapter 256B, the manner of appeal is by letter from the homeless child or youth, or the homeless child’s or youth’s parent or guardian, to the department of education as established in Iowa Code section 256B.6 and 281—Chapter 41 and governed by that chapter and the order of the presiding administrative law judge. b. If the child is not eligible for special education services, the manner of appeal is by letter from the homeless child or youth or the homeless child’s or youth’s parent or guardian to the director of the department of education or a designated administrative law judge. The provisions of 281—Chapter 6 apply insofar as possible; however, the hearing shall take place in the district where the homeless child or youth is located or at a location convenient to the appealing party. c. At any time a school district denies access to a homeless child or youth, the district will notify in writing the child or youth and the child’s or youth’s parent or guardian, if any, of the right to appeal and manner of appeal to the department of education for resolution of the dispute and shall document the notice given. The notice will contain the name, address, and telephone number of the legal services office in the area. 33.8(2) This chapter will be considered by the presiding officer or administrative law judge assigned to hear the case. 33.8(3) Mediation and settlement of the dispute prior to hearing are permitted and encouraged. 33.8(4) While dispute resolution is pending, the child or youth is enrolled immediately in the school of choice of the child’s parent or guardian or the school of choice of the unaccompanied homeless youth. The school of choice is to be an attendance center either within the district of residence or the district of origin of the child or youth.281—33.9(256) Transportation of homeless children and youth. 33.9(1) General. A child or youth, a preschool child if the school offers tuition-free preschool, or a preschool child with a disability who meets the definition of “homeless child or youth” in these rules shall not be denied access to a free, appropriate public education solely on the basis of transportation. The necessity for and feasibility of transportation are to be considered, however, in deciding which of two districts would be in the best interests of the homeless child or youth. The dispute resolution procedures in rule 281—33.8(256) apply to disputes arising over transportation issues. 33.9(2) Entitlement. Following the determination of the homeless child’s or youth’s appropriate school district under rule 281—33.7(256) or 281—33.9(256), transportation will be provided to the child or youth in the following manner: a. If the appropriate district is determined to be the district in which the child or youth is actually living, transportation for the homeless child or youth is to be provided on the same basis as for any resident child of the district, as established by Iowa Code section 285.1 or local board policy. b. If the appropriate district is determined to be a district other than the district in which the child or youth is actually living, the district in which the child or youth is actually living (sending district) and the district of origin will agree upon a method to apportion the responsibility and costs for providing the child with transportation to and from the receiving district. If these districts are unable to agree upon such method, the responsibility and costs for transportation will be shared equally.281—33.10(256) School services. 33.10(1) The school district designated for the homeless child’s or youth’s enrollment will make available to the child or youth all services and assistance, including the following services, on the same basis as those services and assistance are provided to resident pupils: a. Compensatory education; b. Special education; c. English as a second language; d. Career and technical education courses or programs; e. Programs for gifted and talented pupils; f. Health services; g. Preschool (including Head Start); h. Before- and after-school child care; i. Food and nutrition programs; j. School counseling services to advise homeless students and prepare and improve the readiness of such students for college. 33.10(2) A district must include homeless students in its academic assessment and accountability system under the federal Every Student Succeeds Act, P.L. 114-95, and report disaggregated data regarding the academic achievement and graduation rates for homeless children, as set forth in that Act. These rules are intended to implement the provisions of the McKinney-Vento Homeless Assistance Act (42 U.S.C. §11431, et seq.), as reauthorized December 10, 2015, by Title IX, Part A, of the Every Student Succeeds Act. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7422CEducation Department[281]Adopted and FiledRulemaking related to veterans’ education and training
The State Board of Education hereby rescinds Chapter 51, “Approval of On-the-Job Training Establishments Under the Montgomery G.I. Bill,” adopts a new Chapter 51, “Veterans’ Education and Training,” and rescinds Chapter 52, “Approval of Educational Institutions for the Education and Training of Eligible Veterans Under the Montgomery G.I. Bill,” Iowa Administrative Code.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7(5).State or Federal Law Implemented This rulemaking implements, in whole or in part, 38 CFR Part 21.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined that all of the rules in Chapters 51 and 52 restate federal regulatory requirements. Some rules, such as approval of high schools, are obsolete. Those duplicative and obsolete rules are removed, and the two chapters are consolidated.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7093C. A public hearing was held on October 24, 2023, at 10 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 51 and adopt the following new chapter in lieu thereof: CHAPTER 51TITLE XVETERANS’ TRAININGVETERANS’ EDUCATION AND TRAININGPrior to 9/7/88, see Public Instruction Department[671] Chs 24 and 25Prior to [publication of the AF], see Education Department[281] Chs 51 and 52281—51.1(256) Apprenticeships and on-the-job training programs for veterans. For approval of apprenticeships and on-the-job training programs, the following provisions of the Code of Federal Regulations, as of October 4, 2023, are incorporated by reference: 38 CFR Sections 21.4001 through 21.4009, 21.4150 through 21.4155, 21.4200 through 21.4206, 21.4209 through 21.4216, 21.4234, 21.4261, and 21.4262.281—51.2(256) Educational institutions. For approval of educational institutions, the following provisions of the Code of Federal Regulations, as of October 4, 2023, are incorporated by reference: 38 CFR Sections 21.4001 through 21.4009, 21.4150 through 21.4155, 21.4200 through 21.4206, 21.4209 through 21.4216, 21.4232 through 21.4236, 21.4250 through 21.4259, and 21.4263 through 21.4268. These rules are intended to implement 38 CFR Part 21. ITEM 2. Rescind and reserve 281—Chapter 52. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7428CEducation Department[281]Adopted and FiledRulemaking related to school breakfast and lunch program
The State Board of Education hereby rescinds Chapter 58, “School Breakfast and Lunch Program; Nutritional Content Standards for Other Foods and Beverages,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7(5).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapter 283A.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined that there were several portions of the previous chapter that restated federal regulatory language. The nutritional content standards chart (previous rule 281—58.11(256)) was obsolete based on changes in federal law. The Department removed that language.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7094C. A public hearing was held on October 24, 2023, at 10 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. A change from the Notice has been made to add a date certain to both rules.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 58 and adopt the following new chapter in lieu thereof: CHAPTER 58TITLE XIIPROGRAMS ADMINISTRATIONSCHOOL BREAKFAST AND LUNCH PROGRAM; NUTRITIONAL CONTENT STANDARDS FOR OTHER FOODS AND BEVERAGES[Prior to 9/7/88, see Public Instruction Department[670] Ch 10]281—58.1(256,283A) School breakfast and lunch program. The following regulations from the United States Department of Education’s Food and Nutrition Service governing the National School Lunch and School Breakfast programs and effective as of January 31, 2024, are incorporated by reference: 7 CFR Parts 210, 215, 220, 225, 226, 227, 235, 240, 245, and 250, as well as related procurement regulations at 2 CFR Sections 200.317 through 200.326.281—58.2(256) Nutritional content standards for other foods and beverages. The following regulation, as of January 31, 2024, is incorporated by reference: 7 CFR Section 210.11. These rules are intended to implement Iowa Code chapter 283A and sections 256.7(29) and 256.9(51). [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7433CEducation Department[281]Adopted and FiledRulemaking related to gifted and talented programs
The State Board of Education hereby rescinds Chapter 59, “Gifted and Talented Programs,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 257.42(4).State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code sections 257.42 through 257.49.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department is eliminating several instances where statutory text was reproduced verbatim, reducing a large number of restrictive terms, and resequencing and consolidating certain subrules to improve readability. The Department is also removing certain language from the staff qualifications subrule (the reference to what a program teacher-coordinator is entitled to do) because that matter is within the jurisdiction of the Board of Educational Examiners.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7081C. A public hearing was held on October 24, 2023, at 9:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. A date certain was added to paragraph 59.4(10)“c.” No other changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 59 and adopt the following new chapter in lieu thereof: CHAPTER 59GIFTED AND TALENTED PROGRAMS[Prior to 9/7/88, see Public Instruction Department[670] Ch 56][Former Ch 59 Rescinded IAB 9/7/88]281—59.1(257) General principles. Gifted and talented programs shall be provided by a school district and may be made available to eligible students as a cooperative effort between school districts or through cooperative arrangements between school districts and other educational agencies. It is the responsibility of school districts to ensure that the programs comply with state statute and this chapter.281—59.2(257) Definitions. For the purposes of this chapter, the following definitions apply: "Department" means the department of education. "Gifted and talented students" means the same as “gifted and talented children” as defined in Iowa Code section 257.44. For purposes of that section, the following definitions apply: 1. “Creative thinking” refers to students who have advanced insight, outstanding imagination and innovative reasoning ability. Such students possess outstanding ability to integrate seemingly unrelated information in formulating unique ideas, insights, solutions, or products. 2. “General intellectual ability” refers to students who can learn at a faster pace, master higher levels of content and handle abstract concepts at a significantly higher level than expected, given the student’s chronological age and experiences. 3. “Leadership ability” refers to those students who possess outstanding potential or demonstrated ability to exercise influence on decision making. These students may be consistently recognized by their peers, may demonstrate leadership behavior through school and nonschool activities or may evidence personal skills and abilities that are characteristic of effective leaders. 4. “Specific ability aptitude” refers to those students who have exceptionally high achievement or potential and a high degree of interest in a specific field of study. 5. “Visual or performing arts ability” refers to students who demonstrate or indicate potential for outstanding aesthetic production or creativity in areas such as art, dance, music, drama, and media production. "Program budget" is a budget consisting of a listing of the estimated direct program expenditures, by function and object, that are necessary to accomplish the goals of the program in meeting the needs of identified students, along with a listing of the sources of revenue and, if necessary, the amounts of fund balance to be applied.281—59.3(257) Program plan. The program plan submitted by school districts will include the elements set forth in Iowa Code section 257.43.281—59.4(257) Responsibilities of school districts. A school district’s program under this chapter shall meet the following criteria: 59.4(1) Development of goals and objectives. A school district will establish goals and objectives for the following: a. Curriculum and instructional strategies. b. Student outcomes. c. Program management and administration. d. Program development. 59.4(2) Development of curriculum and instructional strategies. The program of instruction will consist of content and teaching strategies that reflect the accelerative pace, intellectual processes and creative abilities that characterize gifted and talented students. A linkage among the selection of students, the anticipated student outcomes and the special instructional programs will be evident. Learning activities will provide for the development of skills that are beyond the scope of the regular classroom, introduce advanced concepts and contents, and offer students a greater latitude of inquiry than would be possible without the specialized instructional program. Specialized instructional activities are those not ordinarily found in the regular school program and may include the following: a. A special curriculum supplementing the regular curriculum, using a high level of cognitive and affective concepts and processes. b. Flexible instructional arrangements, such as special classes, seminars, resource rooms, independent study, student internships, mentorships, research field trips, and research centers. 59.4(3) Student enrollment. Students will be involved in a gifted and talented program for a sufficient portion of the regularly scheduled school time to ensure that projected student outcomes are likely to be achieved. 59.4(4) Personalized education plan. Best practice dictates that the services provided for each student placed in a gifted and talented program be contained in a written, personalized gifted and talented plan. Personalized education plans should be in writing and reviewed at periodic intervals in accordance with the changing needs of the student. The following items are suggested for inclusion in a student’s personalized education plan, but this is neither a mandatory nor an exhaustive list: a. Relevant background data, assessment of present needs and projections for future needs. Relevant information may include the student’s leadership ability, interest inventories, learning characteristics, and learning goals. b. The nature and extent of the gifted and talented services provided to the student, including indirect services, such as consultative services or other supportive assistance provided to a regular classroom teacher. Other services may include modifications to curriculum and acceleration of the student’s curriculum. c. Personnel responsible for the services provided to the student, as well as those responsible for monitoring and evaluating the student’s progress. 59.4(5) Student identification criteria and procedures. Students will be placed in a gifted and talented program in accordance with systematic and uniform identification procedures that encompass all grade levels and that are characterized by the following: a. Identification will be for the purpose of determining the appropriateness of placement in a gifted and talented program, rather than for categorically labeling a student. b. The decision to provide a student with a gifted and talented program will be based on a comprehensive appraisal of the student, consideration of the nature of the available gifted and talented program and an assessment of actual and potential opportunities within the student’s regular school program. c. Multiple criteria will be used in identifying a student, with no single criteria eliminating a student from participation. Criteria will combine subjective and objective data, including data with direct relevance to program goals, objectives and activities. d. In the event that the number of eligible students exceeds the available openings, participants will be selected according to the extent to which they can benefit from the program. e. Each identified student’s progress will be reviewed at least annually to consider modifications in program or student placement. 59.4(6) Evaluation. The school district will give attention to the following in its evaluation design: a. Evaluation of gifted and talented programs will be for the purpose of measuring program effects and providing information for program improvement. b. Evaluation should be conducted for each program level where objectives have been established. c. Both cognitive and affective components of student development should be evaluated. d. Evaluation findings should report results based on actual accomplishments by the gifted and talented students or their teachers, which are a direct result of the project, program, or activity. 59.4(7) Staff utilization plan. Staff will be deployed to ensure quality gifted and talented programs by employing the following procedures: a. A designated staff person will be responsible for the overall program coordination throughout the school district. b. The teaching staff of the gifted and talented program should work with the regular classroom teachers to assess, plan, carry out instruction, and evaluate outcomes. c. Coordination time will be made available to staff providing gifted and talented programs to allow staff to perform professional responsibilities. 59.4(8) Staff professional development. Periodic professional development will be offered for all classroom teachers to maintain and update understandings and skills about individualizing programs for identified gifted and talented students. A staff development plan for personnel responsible for gifted and talented programs will be provided and will be based upon the assessed needs of the gifted and talented instructional and supervisory personnel. 59.4(9) Qualifications of personnel. Instructional personnel providing programs for gifted and talented students should have preservice or in-service preparation in gifted and talented education that is commensurate with the extent of their involvement in the gifted and talented program. The gifted and talented program teacher-coordinator will hold an endorsement allowing the holder to serve as a teacher or a coordinator of programs for gifted and talented students from the prekindergarten level through grade 12. 59.4(10) Fiscal and accountability principles. a. When programs are jointly provided by two or more school districts or by a school district in cooperation with another educational agency, the budget will specify how each cooperating school district or agency will determine the portion of the program costs to be provided by each school district or agency and will provide a budget that specifies the contribution of each school district or agency. b. Gifted and talented categorical funding will be used only for expenditures directly related to providing the gifted and talented program described in the program plan. Appropriate expenditures, inappropriate expenditures, and financial management provisions are set forth in 281—Chapter 98. c. School districts will include and identify the detail of financial transactions related to gifted and talented resources, expenditures, and carryforward balances on their certified annual report, using the account coding appropriate to the gifted and talented program as defined by Uniform Financial Accounting for Iowa LEAs and AEAs, as effective on January 31, 2024. Each school district will certify its certified annual report following the close of the fiscal year but no later than September 15.281—59.5(257) Responsibilities of area education agencies. 59.5(1) When a written request is received from one or more local school boards, an area education agency will establish and operate a gifted and talented children advisory council under Iowa Code sections 257.48 and 257.49. 59.5(2) Staff of the area education agency will cooperate with school districts in the identification and placement of gifted and talented students. Cooperation may include: a. Assisting local school district personnel in the interpretation of available student data. b. Assistance in the development of the identification plan. c. Providing for psychological testing in individual cases when available data contains significant inconsistencies or in other circumstances when additional data may be necessary for determining the appropriateness of the student placement.281—59.6(257) Responsibilities of the department. The department will review documentation submitted by school districts and area education agencies regarding the school districts’ and area education agencies’ gifted and talented programs and financial transactions. The department may request that the staff of the auditor of state conduct an independent program audit to verify that the gifted and talented programs conform to a school district’s program plans. The department will provide technical assistance to school districts and to area education agencies in the development of gifted and talented programs. These rules are intended to implement Iowa Code sections 257.42 through 257.49. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7424CEducation Department[281]Adopted and FiledRulemaking related to programs for students who are English learners
The State Board of Education hereby rescinds Chapter 60, “Programs for Students Who Are English Learners,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 280.4.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 280.4.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department is implementing an overall reduced regulatory footprint by eliminating obsolete language, eliminating unnecessarily restrictive language, updating other language, and providing clearer guidance for nonpublic schools that serve English learners. Iowa Code section 280.4 requires nonpublic schools to serve English learners; however, current Chapter 60 purports to require nonpublic schools to serve English learners only if those services can be provided by public school districts. This chapter would require nonpublic schools to serve all English learners; however, the standard is to make minor adjustments. This requirement and standard are consistent with other laws under which nonpublic schools are expected to provide services (e.g., Section 504 of the Rehabilitation Act of 1973).Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7086C. A public hearing was held on October 24, 2023, at 9:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. A date certain was added to subrule 60.5(4). No other changes from the Notice have been made. Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 60 and adopt the following new chapter in lieu thereof: CHAPTER 60PROGRAMS FOR STUDENTS WHO ARE ENGLISH LEARNERS[Prior to 9/7/88, see Public Instruction Department[670] Ch 57] 281—60.1(280) Definitions. As used in these rules, the following definitions apply: "Bilingual instruction" refers to a program of instruction in English and the native language of the student designed to enable students to become proficient in English and in academic content areas at an age- and grade-appropriate level. "Educational and instructional model" means an instructional model, strategy, method, or skill that provides a framework of instructional approaches to guide decision making about teaching and learning. Based on the needs of particular students, “educational and instructional model” may include a specific set of instructional services or a fully developed curriculum or other supplementary services. "English as a second language" refers to a structured language acquisition program designed to teach English to students whose native language is other than English, until the student demonstrates a functional ability to speak, read, write, and listen to English language at the age- and grade-appropriate level. "English learner" means the same as defined in Iowa Code section 280.4(1)“b.” "Fully English proficient" means the same as defined in Iowa Code section 280.4(1)“b.” "Intensive student" means the same as defined in Iowa Code section 280.4(1)“b.” "Intermediate student" means the same as defined in Iowa Code section 280.4(1)“b.” "Research-based" means based on a body of research showing that the educational and instructional model, or other educational practice, has a high likelihood of improving teaching and learning. To determine whether research meets this standard for purposes of this chapter, research reports are reviewed for the following:- The specific population studied;
- Research that involves the application of rigorous, systematic, and objective procedures to obtain reliable results and provide a basis for valid inferences relevant to education activities and programs;
- Whether the research employs systematic, empirical methods that draw on observation or experiment;
- Reliance on measurement or observational methods that provide reliable and valid data;
- Inclusion of rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions or inferences drawn;
- Description of the magnitude of the impact on student learning results; and
- Inclusion of the level of the review of the study.
Rulemaking related to programs for at-risk early elementary students
The State Board of Education hereby rescinds Chapter 65, “Programs for At-Risk Early Elementary Students,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 279.51.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 279.51.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined that the current midyear report does not add value and the current rules contain unnecessarily restrictive language. The Department is removing that language.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7095C. A public hearing was held on October 24, 2023, at 10 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5 p.m. in Room 1070, Des Moines Roosevelt High School, 4419 Center Street, Des Moines, Iowa. No one attended the public hearings. No public comments were received. Based on discussions before the State Board, the Department made a technical change in paragraph 65.8(2)“a” to note that grantees have a right to notice and an opportunity to be heard before grant termination. No other changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 65 and adopt the following new chapter in lieu thereof: CHAPTER 65PROGRAMS FOR AT-RISK EARLY ELEMENTARY STUDENTS281—65.1(279) Definitions. "At-risk student" means, for purposes of this chapter, a student in early elementary grades who is eligible for free or reduced price meals. "Awardee" means a public school district designated to receive the at-risk early elementary school award funds for buildings serving early elementary grades with a high percentage of at-risk students. "Department" means the department of education. "Early elementary grades" means kindergarten through grade three.281—65.2(279) Eligibility identification procedures. In a year in which funds are made available by the Iowa legislature, the department will grant awards to districts for buildings serving early elementary grades with a high percentage of at-risk students. Using a formula determined by the department and consistent with Iowa Code section 279.51(1)“c,” the department will distribute awards based on the number of early elementary students in the identified buildings serving a high percentage of at-risk students.281—65.3(279) Award acceptance process. The department will notify eligible districts of the opportunity to be granted an award for a three-year cycle. A district will make formal acceptance using forms issued and procedures established by the department, and by an official with vested authority to approve the acceptance.281—65.4(279) Awardee responsibilities. Each year, the awardee will complete reports on forms provided by the department, including the following: 1. An initial report, including a proposed budget and expected outcomes. 2. An end-of-the-year report, including total expenditures and a statement of impact on expected outcomes.281—65.5(279) Allowable expenditures. School districts will provide, at a minimum, the activities set forth in Iowa Code section 279.51(1)“c.” Additional allowable expenditures include salaries and benefits for teachers and paraeducators, and activities and materials to improve academic achievement. These funds are to be used for instruction, activities, and materials that are in addition to the regular school curricula for children participating in these programs, and only to be used in the building for which the award is made. Inappropriate uses of award funding include indirect costs or use charges, operational or maintenance costs, capital expenditures, student transportation other than that which is directly related to the activities and materials described in this rule, or administrative costs. Moneys received are subject to the general provisions described in 281—Chapter 98.281—65.6(279) Evaluation. The awardee will cooperate with the department and provide requested information to determine how well the outcomes in rule 281—65.4(279) are being met. Statewide leadership teams will review final reports and provide useful feedback about buildings to awardees. This feedback will include information about innovative components to building programs. Buildings demonstrating innovation will be given preference the following grant cycle.281—65.7(279) Budget revisions. The department may grant approval to an awardee for any revisions in the proposed budget in excess of 10 percent of a line item, provided the revisions do not increase the total amount of the award.281—65.8(279) Termination. 65.8(1) Termination for convenience. The award may be terminated, in whole or in part, upon agreement of both parties, concerning the termination conditions, the effective date, and in the case of partial termination, the portion to be terminated. The awardee shall cancel as many outstanding obligations as possible and not incur new obligations for the terminated portion after the effective date of termination. 65.8(2) Termination for cause. a. The award may be terminated, in whole or in part, at any time before the date of completion, whenever the department determines, after notice and an opportunity to be heard, that the awardee has failed to comply substantially with the conditions of the award. The awardee will be notified in writing by the department of the reasons for the termination and the effective date. The awardee shall cancel as many outstanding obligations as possible and not incur new obligations for the terminated portion after the effective date of termination. b. The department will administer the at-risk early elementary school awards contingent upon the availability of state funds. If there is a lack of funds necessary to fulfill the fiscal responsibility of the awards, the awards are to be terminated or renegotiated. The department may terminate or renegotiate an award upon 30 days’ notice when there is a reduction of funds by executive order. 65.8(3) Responsibility of awardee at termination. Within 45 days of the effective date of award termination, the awardee will supply the department with a financial statement detailing all program expenditures up to the effective date of the termination. The awardee will be solely responsible for all expenditures after the effective date of termination.281—65.9(279) Appeals from terminations. Any awardee aggrieved by a unilateral termination of an award may appeal the decision to the director of the department in writing within 30 days of the decision to terminate. 65.9(1) Form of appeal. In the notice of appeal, the awardee will give a short and plain statement of the reason for the appeal. 65.9(2) Appeal procedures. The hearing procedures found at 281—Chapter 6 will apply to appeals of terminated awards. The director will issue a decision within a reasonable time, not to exceed 120 days from the date of hearing. 65.9(3) Grounds for reversal. Termination of an award under this chapter may be reversed only if the awardee proves the process was conducted outside of statutory authority; violated state or federal law, policy, or rule; did not provide adequate public notice; was altered without adequate public notice; or involved conflict of interest by staff or committee members. 65.9(4) Mandatory denial of appeal. In lieu of a decision on the merits of an appeal, the director of the department will deny an appeal if the director finds any of the following: a. The appeal is untimely; b. The appellant lacks standing to appeal; c. The appeal is not in the necessary form or is based upon frivolous grounds; d. The appeal is moot because the issues raised in the notice of appeal or at the hearing have been settled by the parties; or e. The termination of the award was beyond the control of the department due to lack of available funds. These rules are intended to implement Iowa Code section 279.51. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7419CEducation Department[281]Adopted and FiledRulemaking related to standards for school administration manager (SAM) programs
The State Board of Education hereby rescinds Chapter 82, “Standards for School Administration Manager Programs,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code sections 256.7(5) and 256.7(30)“b.”State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 256.7(30)“b.”Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department is eliminating several instances where statutory text was reproduced verbatim, eliminating obsolete language, and providing flexibility on how SAM preparation programs may meet program approval standards.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7096C. A public hearing was held on October 24, 2023, at 10:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5:30 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 82 and adopt the following new chapter in lieu thereof: CHAPTER 82STANDARDS FOR SCHOOL ADMINISTRATION MANAGER PROGRAMS281—82.1(272) Definitions. "Coach" means a person who provides regularly scheduled coaching visits to SAM/administrator teams. "Department" means the department of education. "Director" means the director of the department of education. "Organization" means a professional organization offering an approved training program and support for SAMs. "SAM" "school administration manager" means a person or persons who are authorized to assist a school administrator in performing noninstructional administrative duties. "School administration manager program" means a program of SAM training and preparation that leads to authorization to practice as a school administration manager. "State board" means the Iowa state board of education. "Trainer" means a person with responsibility for providing approved training for school administration managers.281—82.2(272) Organizations eligible to provide a school administration manager training program. Approved professional organizations engaged in the preparation and training of SAMs that meet the standards contained in this chapter may obtain and maintain state board approval of the organizations’ training programs for SAMs. Only approved programs may recommend candidates for SAM authorization.281—82.3(272) Approval of training programs. The state board’s approval of an organization’s training program is based on the recommendation of the director after study of the evidence about the program in terms of the standards contained in this chapter. The department will seek maximum flexibility in the design of systems allowed to meet the goals of this program. 82.3(1) Approval, if granted, will be for a term of seven years; however, approval for a lesser term may be granted by the state board if it determines conditions so warrant. 82.3(2) If approval is not granted, the applicant organization will be advised concerning the areas in which improvement or changes appear to be essential for approval. In this case, the organization will be given the opportunity to present factual information concerning its program at a regularly scheduled meeting of the state board, no later than three months following the board’s decision. 82.3(3) Programs may be granted conditional approval upon review of appropriate documentation. In such an instance, the program will receive a full review after one year or, in the case of a new program, at the point at which candidates demonstrate mastery of standards for authorization. 82.3(4) The standards herein apply regardless of delivery mode of the training. 82.3(5) All programs in existence prior to July 31, 2013, are deemed to meet program standards without having to submit an application for review.281—82.4(272) Governance and resources standard. To be an approvable organization, an organization’s governance structure and resources adequately support the training of SAMs to meet professional, state, and organizational standards in accordance with the following provisions: 82.4(1) The organization provides sufficient trainers, coaches, and administrative, clerical, and technical staff to plan and deliver a quality SAM program. 82.4(2) Resources are available to support professional development opportunities for trainers of SAMs. 82.4(3) Resources are available to support technological and instructional needs to enhance trainer and authorized SAM learning.281—82.5(272) Trainer and coach standard. An approved organization’s trainer and coach qualifications and performance facilitate the professional development of SAMs.281—82.6(272) Assessment system and organization evaluation standard. An organization’s assessment system monitors individual candidate performance and uses the performance data in concert with other information to evaluate and improve the organization and its program. The actual annual evaluation of each SAM is performed by the administrator or the administrator’s designee, and the evaluation is conducted in accordance with the standards set forth in rule 281—82.7(272). The organization will annually report data to the department, as determined by the department. The department will periodically conduct a survey of schools or facilities that employ authorized SAMs to ensure that the schools’ and facilities’ needs are adequately met by the programs and the approval process herein.281—82.7(272) School administration manager knowledge and skills standards and criteria. SAMs will demonstrate the content knowledge and professional knowledge and skills in accordance with the following standards and supporting criteria. 82.7(1) Standard 1. Each SAM will demonstrate an understanding of the instructional and management codes and how to best support the SAM’s administrator in instructional leadership. If a SAM is also employed as a secretary or administrative assistant, the SAM’s job responsibilities will be modified as established by the school district. 82.7(2) Standard 2. Each SAM will attend an approved training program at the onset of the SAM’s hire. The training for the SAM and administrator will include the following: a. Background information on SAMs. b. Understanding of the instructional and management descriptors. c. Introduction and practice using approved time-tracking software. d. First responders and delegation responsibilities. e. Job responsibilities and variations. f. Daily meeting protocols. g. Training of office staff on communication with others. h. Use of reflective questions. i. Understanding of conflict resolution skills. j. Action planning for building implementation and timelines. k. SAM/administrator rubric process. 82.7(3) Standard 3. Each SAM will demonstrate competence in technology appropriate to the SAM’s position. 82.7(4) Standard 4. Each SAM will demonstrate appropriate personal skills. The SAM: a. Is an effective communicator with all stakeholders, including but not limited to colleagues, community members, parents, and students. b. Works effectively with employees, students, and other stakeholders. c. Maintains confidentiality when dealing with student, parent, and staff issues. d. Clearly understands the administrator’s philosophy of behavior expectations and consequences. e. Maintains an environment of mutual respect, rapport, and fairness. f. Participates in and contributes to a school culture that focuses on change in teacher practices and improved student learning by supporting the administrator in the administrator’s instructional leadership role. 82.7(5) Standard 5. Each SAM will fulfill professional responsibilities as established by the SAM’s school district. 82.7(6) Standard 6. Each SAM will engage in professional growth that continuously improves the SAM’s skills of professional inquiry and learning.281—82.8(272) Monitoring and continued approval. Upon request by the department, programs will make periodic reports, which include basic information necessary to maintain up-to-date data of the SAM program and to carry out research studies relating to SAMs. Every seven years or sooner if deemed necessary by the director, an organization will file a written self-evaluation of its SAM program. Any action for continued approval or denial of approval will be approved by the state board.281—82.9(272) Approval of program changes and flexibility of programs. Upon application by an organization, the director may approve minor additions to or changes within the organization’s approved SAM program. When an organization proposes a revision that exceeds the primary scope of the organization’s program, the revision becomes operative only after approval by the state board. Districts may have a variety of programs and job descriptions that meet the standards of a SAM system but must receive permission to make changes to those programs in the manner prescribed. The department will seek maximum flexibility in systems allowed to meet the goals of this program. Essential components of any approved SAM program include readiness, data collection of administrator time, ongoing training of the program administrator, use of time-tracking software and ongoing coaching for participants in the program. These rules are intended to implement Iowa Code section 256.7(30)“b.” [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7423CEducation Department[281]Adopted and FiledRulemaking related to financial incentives for national board certification
The State Board of Education hereby rescinds Chapter 84, “Financial Incentives for National Board Certification,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.44.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 256.44.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department determined that current subrule 84.3(4) is obsolete because the issue is adequately addressed through the application process, and that the current chapter contains unnecessarily repetitive and restrictive language. Therefore, the Department is removing this language.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7097C. A public hearing was held on October 24, 2023, at 10:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5:30 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 84 and adopt the following new chapter in lieu thereof: CHAPTER 84FINANCIAL INCENTIVES FOR NATIONAL BOARD CERTIFICATION281—84.1(256) Definitions. For the purpose of these rules, the following definitions apply: "A person who receives a salary as a classroom teacher" means a teacher employed by a school district in Iowa who receives any salary compensation from the school district for providing classroom instruction to students in the district. "Department" means the Iowa department of education. "Director" means the director of the Iowa department of education. "Employed by a school district in Iowa" means a teacher employed in a nonadministrative position in an Iowa school district pursuant to a contract issued by a board of directors of a school district under Iowa Code section 279.13 and any full-time permanent substitute teacher who is employed under individual contracts not included under Iowa Code section 279.13 but who is receiving retirement and health benefits as part of the substitute teacher’s contract. "National Board Certification" "NBC" is a nationwide certification program administered by the National Board for Professional Teaching Standards. "National Board for Professional Teaching Standards" "NBPTS" is a private nonprofit organization whose goal is to develop professional standards for early childhood, elementary and secondary school teaching. NBPTS administers the NBC program. "School district" means a public school district under Iowa Code chapter 274. "Teacher" means an Iowa-licensed teacher as defined in Iowa Code section 272.1.281—84.2(256) Registration fee reimbursement program. The department will administer a registration fee reimbursement program in each year for which the legislature appropriates funds. 84.2(1) Eligibility. Teachers seeking reimbursement under this rule will apply to the department within one year of registration with NBPTS and meet all of the following qualifications: a. The individual has all qualifications required by NBPTS for application for certification. b. The individual is a teacher employed by a school district in Iowa and receives a salary as a classroom teacher. c. The individual completes the department’s application process, which includes verifying NBC registration. d. The individual has not received reimbursement from this program at any previous time. 84.2(2) Reimbursement. Teachers determined eligible will receive reimbursement in the following manner: a. Initial registration fee reimbursement.Each eligible teacher will receive an initial reimbursement of one-half of the reimbursement fee charged by NBPTS or, if necessary, a prorated amount upon submission to the department of the NBC registration confirmation form provided to each teacher by NBPTS. b. Final registration fee reimbursement.The final registration fee reimbursement of one-half of the reimbursement fee charged by NBPTS will be awarded when the eligible teacher notifies the department of the teacher’s certification achievement and submits verification of certification. If an eligible teacher fails to receive certification, the teacher can receive the remaining reimbursement if the teacher achieves certification within three years of the initial NBC score notification. c. Amount of reimbursement.If funds are appropriated by the legislature, each eligible teacher who applies under this rule will receive the registration fee reimbursement. If in any fiscal year the number of eligible teachers who apply for the reimbursement exceeds the funds available, the department will prorate the amount of the registration fee reimbursement among all eligible teachers.281—84.3(256) NBC annual award. If funds are appropriated by the legislature, each eligible NBC teacher will qualify for an NBC annual award. If in any fiscal year the funds appropriated are insufficient to pay the maximum amount of the annual awards to each eligible teacher or the number of teachers eligible to receive annual awards exceeds 1,100 individuals, the department will prorate funds among all eligible teachers. An eligible teacher who receives NBC certification after May 1, 2000, will receive an annual award of up to $2,500 per year or a prorated amount for a maximum period of ten years. An otherwise-eligible teacher who possesses a teaching contract that is less than full-time will receive an award prorated to reflect the type of contract (half-time, quarter-time, etc.). 84.3(1) Eligibility. In addition to having registered with NBPTS and achieving certification within NBPTS-established timelines and policies, individuals eligible for the NBC annual award will meet all of the following qualifications: a. The individual is a teacher who has attained NBC certification. b. The individual is employed by a school district in Iowa and receives a salary as a classroom teacher. c. The individual completes the department’s annual application process, in a manner prescribed by the department. d. The individual has received no more than ten annual awards, including the annual award currently sought. e. The individual is applying for the award within one year of being eligible for the award. 84.3(2) Application. To receive an award under this rule, an NBC teacher will submit an application verifying eligibility for an NBC award to the department by May 1. The department will issue NBC awards to eligible NBC teachers no later than June 1.281—84.4(256) Appeal of denial of a registration fee reimbursement award or an NBC annual award. Any applicant may appeal the denial of a registration fee reimbursement award or an NBC annual award to the director of the department. Appeals will be in writing, signed, and notarized; will contain a short and plain statement of the reasons for appeal; will be based on a contention that the process was conducted outside statutory authority or violated state or federal law, regulation or rule; and will be received within ten working days of the date of the notice of denial. The hearing and appeal procedures found in 281—Chapter 6 that govern the director’s decisions will apply to proceedings under this rule. The director’s decision is due within a reasonable time, not to exceed 30 days from the date of the hearing. These rules are intended to implement Iowa Code section 256.44. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7430CEducation Department[281]Adopted and FiledRulemaking related to equal employment opportunity and affirmative action
The State Board of Education hereby rescinds Chapter 95, “Equal Employment Opportunity and Affirmative Action in Educational Agencies,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 19B.11.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code section 19B.11.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department identified rules that recite statutory text, contain unnecessary restrictive terms, are obsolete, or are aspirational in nature. One of the subrules raises constitutional concerns, as noted below. The Department is removing this language. Current paragraph 95.5(9)“h,” which provides, in part, that race or ethnic origin may be considered when “selecting applicants for interview, employment and promotion,” raises constitutional concerns and concerns under Title VI of the Civil Rights Act of 1964. For that reason, this provision will not be readopted. If an employer wishes to consider race or national origin when making employment decisions, the employer is advised to consult with counsel.Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7098C. A public hearing was held on October 24, 2023, at 10:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and October 24, 2023, at 5:30 p.m. in the Jim Hester Board Room, Second Floor, Achievement Service Center, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. No public comments were received. No changes from the Notice have been made.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 95 and adopt the following new chapter in lieu thereof: CHAPTER 95EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION IN EDUCATIONAL AGENCIES281—95.1(19B) Definitions. The following definitions will be applied to the rules in this chapter: "Affirmative action" means action appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity. "Agency" means a local school district, an area education agency or a community college. "Availability" means the extent to which members of a racial/ethnic group, women, men or persons with disabilities are present within the relevant labor market. "Department" means the Iowa department of education. "Director of education" means the director of the Iowa department of education. "Equal employment opportunity" means equal access to employment, training and advancement, or employment benefits regardless of race, creed, color, religion, sex, age, national origin and disability. "Metropolitan statistical area" means a large population nucleus (over 50,000 persons) and nearby communities which have a high degree of economic and social integration with that nucleus. Each area consists of one or more entire counties. "Person with a disability" means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment or is regarded as having such an impairment, as defined in Iowa Code section 216.2. "Racial/ethnic minority person" means any person who is African American, Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native. "Relevant labor market" means the geographic area in which an agency can reasonably be expected to recruit for a particular job category. "Underrepresentation" means having fewer members of a racial/ethnic group, women, men or persons with disabilities in a particular job category than would be reasonably expected based on their availability in the relevant labor market. "Work force" means an agency’s full-time and part-time employees.281—95.2(19B) Equal employment opportunity standards. An agency’s employment policies and practices shall provide equal employment opportunity to all persons. No person may be denied equal access to agency employment opportunities because of race, creed, color, religion, national origin, gender, age or disability.281—95.3(19B) Duties of boards of directors. Each agency’s board of directors will adopt policy statements and develop plans for implementation of equal employment opportunity standards and affirmative action programs, which contain the following elements: 1. A policy statement outlining the board of directors’ commitment to the principles of equal employment opportunity and affirmative action, which contain procedures for employees and applicants for employment to redress complaints of discrimination. 2. A written equal employment opportunity and affirmative action plan, to be evaluated and updated on a biennial basis. 3. Assignment of responsibility to an employee for coordinating the development and ongoing implementation of the plans. This employee may be the same employee who has been assigned to coordinate the agency’s efforts to comply with federal laws requiring nondiscrimination in educational programs and employment. 4. Systematic input from diverse racial/ethnic groups, women, men and persons with disabilities into the development and implementation of the plans, which may include using existing advisory committees or public hearing procedures. 5. Periodic training for all staff who hire or supervise personnel on the principles of equal employment opportunity and the implementation of its affirmative action plan. 6. Maintenance of necessary records to document its affirmative action progress. An agency will report employment data to the department by racial/ethnic category, gender and disability.281—95.4(19B) Plan components. In addition to the board policy statement, each agency’s equal employment opportunity and affirmative action plan will include, at a minimum, the following components: 95.4(1) General. a. The name, job title, address and phone number of the employee responsible for coordinating the development and implementation of the equal employment opportunity and affirmative action plans. b. An administrative statement on how the agency’s equal employment opportunity and affirmative action policies and plans are to be implemented, including the internal system for auditing and reporting progress, to be signed and dated by the chief executive officer of the agency. c. A work force analysis showing the numerical and percentage breakdown of the agency’s full-time and part-time employees within each major job category (consistent with the E.E.O. 5 and E.E.O. 6 occupational categories reported to the United States Equal Employment Opportunity Commission) by racial/ethnic group, gender, and disability. For the purpose of confidentiality, disability data may be based on total agency figures, rather than those of major job categories. d. A quantitative analysis comparing work force analysis figures with the availability of qualified or qualifiable members of racial/ethnic groups, women, men and persons with disabilities within the relevant labor market. e. When underrepresentation is identified in one or more major job category, the agency will conduct a qualitative analysis to be included in the agency’s affirmative action plan. The qualitative analysis is a review of employment policies and practices to determine if and where those policies and practices tend to exclude, disadvantage, restrict or result in adverse impact on the basis of racial/ethnic origin, gender, or disability. The analysis may include, but is not limited to the review of: (1) Recruitment practices and policies; (2) A demographic study of the applicant pool and flow; (3) The rate and composition of turnover in major job categories; (4) Trends in enrollment that will affect the size of the work force; (5) Application and application screening policies and practices; (6) Interview, selection, and placement policies and practices; (7) Transfer and promotion policies and practices; (8) Discipline, demotion, termination, and reduction in force policies and practices; (9) Employee assistance, training selection, and mentoring policies and practices; (10) The impact of any collective bargaining agreement on equal employment opportunity and the affirmative action process; (11) Law, policies or practices external to the agency that may hinder success in equal employment opportunity and affirmative action. 95.4(2) Quantitative goals. The agency will develop numerical goals and timetables for reduction of underrepresentation in each major job category where it has been identified. These goals are not rigid and inflexible quotas, but reasonable aspirations toward correcting imbalance in the agency’s work force. A goal shall not cause any group of applicants to be excluded from the hiring process. When setting numerical goals, agencies will take into consideration the following: a. The numbers and percentages from the work force analysis conducted pursuant to subrule 95.4(1); b. The number of short- and long-term projected vacancies in the job category, considering turnover, layoffs, lateral transfers, new job openings, and retirements; c. The availability of qualified or qualifiable persons from underrepresented racial/ethnic, gender and disability categories within the relevant labor market; d. The makeup of the student population served by racial/ethnic origin, gender and disability; e. The makeup of the population served by racial/ethnic origin, gender and disability; f. The makeup of the population of the metropolitan statistical area, when applicable, by racial/ethnic origin, gender, and disability. 95.4(3) Qualitative goals. The agency will develop qualitative goals, activities and timetables which specify the appropriate actions and time frames in which problem areas identified during the qualitative analysis are targeted and remedied. In setting qualitative goals and planning actions, the agency may consider, but need not be limited to, the following: a. Broadening or targeting recruitment efforts; b. Evaluating and validating criteria and instruments used in selecting applicants for interviews, employment, and promotion; c. Providing equal employment opportunity, affirmative action, and intergroup relations training for employees of the agency; d. Developing a system of accountability for implementing the agency’s plan; e. Developing and implementing an employee assistance and mentoring program; f. Establishing a work climate that is sensitive to diverse racial/ethnic groups, both women and men and persons with disabilities; g. Negotiating the revision of collective bargaining agreements to facilitate equal employment opportunity and affirmative action. 95.4(4) Absence of minority base. Agencies with no minority students enrolled or no minority employees shall develop goals and timetables for recruiting and hiring persons of minority racial/ethnic origin when those persons are available within the relevant labor market. 95.4(5) Consolidation. An agency may consolidate racial/ethnic minorities and job categories into broader groupings in conducting analyses under this chapter when its size or number of employees makes more specific categories impractical.281—95.5(19B) Dissemination. Each agency will adopt an internal and external system for disseminating its equal employment opportunity and affirmative action policies and plans. 95.5(1) Plan distribution. An agency will annually distribute its policies and plans to agency employees involved in the hiring or management of personnel, and the agency will make the policies and plans available to other agency employees, the public and the director of education upon request. 95.5(2) Policy statement distribution. An agency will distribute its policy statement to all applicants for employment, and the agency will distribute the policy statement annually to employees, students, parents, and recruitment sources.281—95.6(19B) Reports. Each agency will submit an annual progress report on equal employment opportunity and affirmative action to its local board of directors. Each agency will submit its annual progress report under this chapter to the department by December 31 of each year. The report is a part of the basic educational data collection system administered by the department. These rules are intended to implement Iowa Code section 19B.11. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.ARC 7417CEducation Department[281]Adopted and FiledRulemaking related to business procedures and deadlines
The State Board of Education hereby rescinds Chapter 99, “Business Procedures and Deadlines,” Iowa Administrative Code, and adopts a new chapter with the same title.Legal Authority for Rulemaking This rulemaking is adopted under the authority provided in Iowa Code section 256.7 and chapters 24, 257, 285, and 291.State or Federal Law Implemented This rulemaking implements, in whole or in part, Iowa Code chapters 24, 256, 257, 285 and 291.Purpose and Summary As part of the Department of Education’s review of rules under Executive Order 10, the Department is replacing restrictive words as unnecessary in this chapter’s context. The Department is also adding dates certain to external sources that are incorporated by reference (e.g., generally accepted accounting principles (GAAP)).Public Comment and Changes to Rulemaking Notice of Intended Action for this rulemaking was published in the Iowa Administrative Bulletin on October 4, 2023, as ARC 7099C. A public hearing was held on October 24, 2023, at 10:30 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa, and on October 24, 2023, at 5:30 p.m. in the Jim Hester Board Room, Achievement Service Center, Second Floor, Davenport Schools, 1702 North Main Street, Davenport, Iowa. No one attended the public hearings. The Department received one written public comment. The commenter questioned whether the phrase “affecting very few school districts or AEAs” is statutorily required in the definition of “unusual” in rule 281—99.1(257). The Department removed this clause because it adds no value to the definition of “unusual” and removed a similar clause from the definition of “usual.” The commenter also questioned why the clause “as defined by GASB” was removed from the first sentence of rule 281—99.4(24,256,257,291), which requires GAAP basis of budgeting. As the commenter correctly surmised, this language was removed as unnecessary because the Governmental Accounting Standards Board (GASB) defines this method of budgeting. No change has been made based on this comment.Adoption of Rulemaking This rulemaking was adopted by the State Board on December 4, 2023.Fiscal Impact This rulemaking has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rulemaking, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rulemaking would result in hardship or injustice to that person may petition the State Board for a waiver of the discretionary provisions, if any, pursuant to 281—Chapter 4.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rulemaking by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rulemaking at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rulemaking will become effective on January 31, 2024. The following rulemaking action is adopted:
ITEM 1. Rescind 281—Chapter 99 and adopt the following new chapter in lieu thereof: CHAPTER 99BUSINESS PROCEDURES AND DEADLINES281—99.1(257) Definitions. "Area education agency" "AEA" means a school corporation organized under Iowa Code chapter 273. "Basis of accounting" means the accrual/modified accrual accounting basis under generally accepted accounting principles (GAAP) as defined by the governmental accounting standards board (GASB) as of October 4, 2023. "Basis of budgeting" means the accrual/modified accrual budgeting basis under GAAP as defined by the GASB as of October 4, 2023. "SBRC" means the school budget review committee appointed pursuant to Iowa Code section 257.30. "School district" means a school corporation organized under Iowa Code chapter 274. "Unique" means highly unusual, extraordinary; unparalleled. "Unusual" means not usual or common; rare; constituting or occurring as an exception; not ordinary or average. "Usual" means that which past experience has shown to be normal or common or is anticipated to become normal or common, hence an expected or predictable event.281—99.2(256,257,285,291) Submission deadlines. It is the responsibility of the administrative officials and board members to submit information and materials as requested by the department of education, department of management, any other state agency, or any federal agency. Reports shall be filed electronically if an electronic format is available. 99.2(1) All school districts will submit program plans, reports, or data collections in the manner, by the procedures, and on the dates set by statute or by the department of education. Plans, reports, and data collections will include the following:Vehicle Information SystemSeptember 1 Annual Transportation ReportSeptember 15Certified Annual Report (CAR-COA)September 15Special Education SupplementSeptember 15Facilities, Elections & Save ReportSeptember 30Certified Enrollment Report/PEACEOctober 15Certified Supplementary Weighting ReportOctober 15School Board Officers ReportNovember 1Annual Audit ReportMarch 31Certified BudgetApril 15 99.2(2) All AEAs will submit program plans, reports, or data collections in the manner, by the procedures, and on the dates set by statute or by the department of education. Plans, reports, and data collections will include the following:Certified Annual Report (CAR-COA)September 15Facilities ReportSeptember 30Certified Supplementary Weighting ReportOctober 15School Board Officers ReportNovember 1Proposed BudgetMarch 15Annual Audit ReportMarch 31 99.2(3) If any plan, report, or data collection has not been received by the due date of the form or by the due date of a valid extension granted by the department of education, the following procedure will apply: a. The superintendent of the school district or the administrator of the area education agency, and the president of the applicable board, will be notified of the unfiled report and the number of days it is past due. b. The state board of education, the SBRC, or the Iowa board of educational examiners may be notified of the school districts or AEAs that were not timely in filing one or more reports. c. The SBRC may implement the procedures described in 289—subrule 6.3(5).281—99.3(257) Good cause for late submission. 99.3(1) The department of education may, upon request, allow a school district or AEA to submit reports, data collections, or program plans after the due dates listed in rule 281—99.2(256,257,285,291) for good cause. a. Good cause includes illness or death of a school district or AEA staff member involved in developing the program plan or submitting the report or data collection; acts of God; technological problems at the department lasting at least seven days within the final two weeks prior to the deadline that prevent access necessary for the plan, report, or data collection submission; or unforeseeable unusual or unique circumstances, which, in the opinion of the director of the department, constitute sufficient cause for allowing submission of program plans, reports, or data collections after the published due date. b. Good cause does not include consequences of local time management or administrative decisions or when districts and AEAs have timed out or have encountered system overloads within the final three days before the due date. 99.3(2) A school district or AEA requesting permission to submit a program plan, report, or data collection after the published due date will notify the department staff member responsible for receiving the plan, report, or data collection as soon as possible upon determining that the district or AEA will not be able to meet the deadline, but no sooner than two weeks prior to the due date and no later than two days prior to the due date. When an extension of the submission deadline is allowed, the department will establish a date by which the school district or AEA will submit the plan, report, or data collection. Permission to submit a program plan, report, or data collection after the published due date expires upon receipt of the submission by the department and does not carry over into subsequent application or reporting cycles.281—99.4(24,256,257,291) Budgets, accounting, and reporting. The school district or AEA will budget on the GAAP basis of budgeting. School districts and AEAs will use the chart of accounts defined in the Uniform Financial Accounting Manual for Iowa LEAs and AEAs (UFA manual). The school district or AEA will maintain its financial records and prepare financial reports, including the Certified Annual Report, in the manner and by the procedures set by the departments of education and management in the UFA manual and GAAP. School districts and AEAs will use the chart of accounts defined in the UFA manual. The UFA manual is based on the Financial Accounting for Local and State School Systems published by the United States Department of Education, as of October 4, 2023. If GAAP permits a choice of reporting methods for transactions, or if GAAP conflicts with the UFA manual, the department of education staff will determine a uniform method of reporting to be used by all school districts and AEAs. These rules are intended to implement Iowa Code chapters 24, 256, 257, 285 and 291. [Filed 12/4/23, effective 1/31/24][Published 12/27/23]Editor’s Note: For replacement pages for IAC, see IAC Supplement 12/27/23.