# Attachment #5 Iowa Administrative Code 481-Chapter 10 : Contested Case Hearings CHAPTER 10 CONTESTED CASE HEARINGS [Prior to 2/10/88, see Inspections and Appeals Deparhnent[481],Ch 4] 

### 481-10 .1(l0A) Definitions. "Administrative law

judge (ALJ) " means the person who presides over contested cases and other proceedings. "Agency" means the agency as defined in Iowa Code subsection 17A.2(1) which has original subject matterjurisdiction in the contested case. "Appointing authority" means the appointed or elected chief administrative head of a department, commission, board, independent agency, or statutory office or that person's designee or in the case ofgubernatorial appointees, the governor. "Board" means a licensing board as defined in Iowa Code chapter 272C . "Department" means the department of inspections and appeals (DIA) . "Division" means the division of administrative hearings in the department of inspections and appeals. "Ex parte" means a communication, oral or written, to an AU or other decision maker in a contested case without notice and an opportunityfor all parties to be heard. "Filing" is defined in subrule 10 . 12(3) except where otherwise specifically defined by law . "Issuance " means the date ofmailing ofa decision or order or date ofdelivery ifservice is by other means. "Party" means a party as defined in Iowa Code subsection 17A.2(5) . "Personally investigated" means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term "personally investigated" does not include general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, reviewof another person's investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matterwhich culminates in a contested case. "Presiding officer" means, as used in the code of administrativejudicial conduct, all persons who preside in contested case proceedings under Iowa Code section 17A.11(1) as amended by 1998 Iowa Acts, chapter 1202, section 15. "Proposed decision " means the administrative law judge's recommended findings of fact, conclusions of law, and decision and order in contested cases where the agency did not preside. 481-10.2(10A,17A) Time requirements. Time shall be computed as provided in Iowa Code subsection 4.1(22) . For good cause, the administrative law judge may extend or shorten the time to take any action, except as provided otherwise by rule or law . This rule is intended to implement Iowa Code sections 10A.202(1) and 17A.22. 345481-10.3(l0A) Requests for a contested case hearing. Requests for a contested case hearing

are made to the agency with subject matterjurisdiction. That agency shall determine whether to initiate a contested case proceeding. This rule is intended to implement Iowa Code section 10A.202(l) . 481-10.4(l0A) Transmission of contested cases. 10.4(1) In every proceeding filed with the division, the agency shall complete a transmittal form . The following information is required: a. The name of the transmitting agency; b. The name, address and telephone number ofthe contact person inthe transmitting agency; c . The name or title of the proceeding, which may include a file number ; d. Any agency docket or reference number; e. Acitation to thejurisdictional authority of the agency regarding the matter in controversy; f . Any anticipated special features or requirements which may affect the hearing; g. Whether the hearing should be held in person or by telephone conference call ; h. Any special legal or technical expertise needed to resolve the issues in the case; i. The names and addresses ofall parties and their attorneys or other representatives; j . The date the request for a contested case hearing was received bythe agency; k Astatement of the issues involved and a reference to statutes and rules involved; l. Any mandatory time limits that applyto the processing of the case; m . Earliest appropriate hearing date; and n. Whether a petition or answer is required. 10.4(2) The agency and the department determine by agreement whether the agency or the department shall issue the notice of hearing. a. If agreed by the agency and the department, the agency shall attach a notice of hearing to the transmittal form

. b . If the division by agreement issues the notice of hearing, the agency must provide the information required by Iowa Code section 17A.12(2) (except for the date, time and place of the hearing) for inclusion in the notice. c. The agency, and not the division, shall prepare: (1) The citation to the jurisdictional authority of the agency regarding the matter in controversy; (2) Astatement of the issues involved; (3) Areference to statutes and rules involved; and (4) The remaining information required by the transmittal form as stated in subrule 10.4(1) . 10.4(3) The following documents shall be attached to the completed transmittal form when it is sent to the division: a. Acopy of the document showing the agency action in controversy; and b. Acopy of any document requesting a contested case hearing. 10.4(4) When a properly transmitted case is received, it is marked with the date of receipt by the division. An identifying number shall be assigned to each contested case upon receipt. This rule is intended to implement Iowa Code section 10A.202(1) . 481-10.5(17A) Notices of hearing. 10.5(1) Responsibility for issuance of notice of hearing and the manner of service shall be resolved byagreement between the division and the transmitting agency. 34610.5(2) Notices of hearing shall contain the information required by Iowa Code subsection

17A.12(2) and any additional information required by statute or rule. Notices shall be served by first-class mail, unless otherwise required by statute or rule, or agreed pursuant to subrule 10.5(1) . This rule is intended to implement Iowa Code sections 17A.12(1) and 17A,12(2) . 481-10.6(l0A) Waiver of procedures. Unless otherwise precluded, the parties in a contested case maywaive any provision of this chapter pursuant to Iowa Code section 17A.10. This rule is intended to implement Iowa Code section 10A.202(2) . 481-10 .7(10A,17A) Telephone proceedings. A prehearing conference or a hearing may be held by telephone conference call pursuant to a notice of hearing or an order of the ALJ . The division shall determine the location of the parties and witnesses in telephone hearings. The convenience of the witnesses or parties, as well as the nature of the case, shall be considered when location is chosen. 481-10.8(10A,17A) Scheduling. Contested case hearings are scheduled according to the following criteria: 10.8(1) Agency hearings. The division shall promptly schedule hearings . 'The availability of an administrative law

judge and any special circumstances shall be considered. 10.8(2) Board hearings. Boards are requested to consult withthe division prior to scheduling hearings to determine the availability of an administrative law judge. The board shall determine the time and place ofhearing. 

### 481-10 .9(17A) Disqualification. 10.9(1) An administrative lawjudge shall withdraw from contested cases for lack of impartiality or other legally sufficient cause including, but not limited to, cases where: a. The ALJ has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the case; b. The ALJ has prosecuted or advocated in connection with the case, the specific controversy underlying the case, or another pending factually related contested case or pending factually related controversy that may culminate in a contested case involving the same parties; c . Aprivate party is a client or has been a client of the ALJ within the past two years; d. The ALJ has a financial interest in the case or any other interest that could be substantially affected by the outcome ofthe case; or e. The ALJ, the ALJ's spouse, or relative within the third degree of relationship: (1) Is a party to the case or an officer, director or trustee of a party; (2) Is a lawyer in the case; (3) Is known by the ALJ to have an interest that could be substantially affected by the outcome of the case; or (4) Is to the ALJ's knowledge likely to be a material witness in the case. 10.9(2) If an ALJ does not withdraw, the AU shall disclose on the record any information relevant to the grounds listed in subrule 10.9(1) . 10.9(3) If a party asserts disqualification on any appropriate ground, including those listed in subrule 10.9(1), the party shall file an affidavit pursuant to Iowa Code subsection 17A.17(4) . The affidavit must be filed with the division within 15 days of the date of the notice of hearing, or as 347soon as the reason alleged in the affidavit becomes known to the party, but in any case shall be

filed prior to the hearing. This rule is intended to implement Iowa Code section 17A.17. 481-10.10(10A,17A) Consolidation-severance. 10.10(1) Consolidation. The administrative law judge may, upon motion by any party or the ALJ's own motion, consolidate any or all matters at issue in two or more proceedings docketed under these rules where: a. There exist common parties or common questions of fact or law ; b . Consolidation would expedite and simplify consideration ofthe issues; and c. Consolidation would not adversely affect the rights of parties engaged in otherwise separate proceedings. At any time prior to the hearing, any party may on motion request that the matters not be consolidated, and the motion shall be granted for good cause shown. 10.10(2) Severance. The administrative law judge may, upon motion by any partyor upon the ALJ's own motion, for good cause shown, order any proceeding or portion thereof severed. This rule is intended to implement Iowa Code sections 10A.202(1) and 17A.22. 481-10.11(10A,17A) Pleadings. Pleadings may be required by the notice ofhearing or by order of the administrative law judge. Ifpleadings are required, they shall be filed as follows: 10.11(1) Petition. When an action of the agency is appealed and pleadings are required under subrule 10.10(1), the aggrieved party shall file the petition. a. Any required petition shall be filed within 20 days of delivery of the notice of hearing, unless otherwise ordered. b. The petition shall state in separately numbered paragraphs the following: (1) The relief demanded and the facts and law relied upon for relief

; (2) The particular provisions of the statutes and rules involved; (3) On whose behalf the petition is filed; and (4) The name, address and telephone number ofthe petitioner and the petitioner's attorney, if any. 10 .11(2)Answer. If pleadings are required, the answer shall be filed within 20days of service of the petition or notice of hearing, unless otherwise ordered. a. Any party may move to dismiss or apply for a more definite, detailed statement when appropriate. b. The answer shall showon whose behalf it is filed and specifically admit, deny or otherwise answer all material allegations of the pleading to which it responds. It shall state any facts deemed to showan affirmative defense and may contain as many defenses as the pleader mayclaim

. c. The answer shall state the name, address and telephone number of the person filing the answer and of the attorney representing that person, if any. d . Any allegation in the petition not denied in the answer is considered admitted. Any defense not raised which could have been raised on the basis of facts known when the answer was written may be waived unless manifest injustice would result. 10.11(3) Amendment. Any petition, notice of hearing or other charging document may be amended before a responsive pleading has been filed. Amendments to pleadings after a responsive pleading has been filed may be allowed at the discretion of the ALJ or board if 348applicable. The presiding ALJ or board may impose terms or grant a continuance without terms,

as a condition ofallowing late amendments. This rule is intended to implement Iowa Code sections 10A. 202(1) and 17A.12(6) "a. " 481-10.12(17A) Service and filing of pleadings and other papers. 10.12(1) When service is required. Except where otherwise specifically authorized by law, every pleading, motion, document or other paper filed in the contested case proceeding and every paper relating to discovery in the proceeding shall be served upon each of the parties to the proceeding, including the originating agency. Except for the notice of the hearing and an application for rehearing as provided in Iowa Code subsection 17A.16(2), the party filing a document is responsible for service on all parties. 10.12(2) Methods ofperforming service. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person's last-known address. Service by first-class mail is rebuttably presumed to be complete upon mailing, except where otherwise specifically provided by statute, rule or order. 10.12(3) Filing. After a matter has been assigned to the division, and until a proposed decision is issued, documents shall be filed with the division, rather than the originating agency. All papers filed after the notice is issued that are required to be served upon a. party shall be filed simultaneouslywith the division. a. Except where otherwise provided by law, a document is deemed filed at the time it is: (1) Delivered to the division of appeals and fair hearings, department of inspections and appeals and date-stamped received; (2) Delivered to an established courier service for immediate delivery; 

### (3) Mailed by first-class mail or by state interoffice mail so long as there is adequate proofof mailing; or (4) Sent by facsimile transmission (fax) as provided in subrule 10.12(3), paragraph "b . " b. All documents filed with the division pursuant to these rules, except a person's request or demand for a contested case proceeding, (see Iowa Code subsection 17A.12(9)) may be filed by facsimile transmission (fax) . A copy shall be filed for each case involved. A document filed by fax is presumed to be an accurate reproduction of the original . If a document filed by fax is illegible, a legible copy may be substituted and the date of filing shall be the date the illegible copy was received. The date of filing by fax shall be the date the document : is received by the division. The division will not provide a mailed file-stamped copy of documents filed by fax. 10.12(4) Proofofmailing . Adequate proof of mailing includes the following: a. A legible United States postal service postmark on the envelope; b. Acertificate ofservice; c . Anotarized affidavit ; or d. Acertification in substantially the following form : I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Department of Inspections and Appeals, Appeals Division, Lucas State Office Building, 2nd Floor, Des Moines, Iowa 50319, and to the names and addresses of the parties listed below bydepositing the same in (a United States post office mailbox with correct postage properly affixed) or (state interoffice mail) . 349(date) (signature)



### 481-10.13(17A) Discovery. 10.13(1) Pursuant to Iowa Code section 17A.13, discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by rules of the agency or by a ruling by the ALJ, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure. 10.13(2) Any motion relating to discovery shall allege that the moving party has made a good faith attempt to resolve the issues raised by the motion with the opposing party. Motions in regard to discovery shall be ruled on by the ALJ . Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 10.13(1) . The ALJ may rule on the basis of the written motion and any response or may order argument on the motion. This rule is intended to implement Iowa Code section 17A.13. 481-10.14(10A,17A) Subpoenas. 10.14(1) Issuance

. a. Pursuant to Iowa Code subsection 17A.13(1), an agency subpoena shall be issued to a party on request unless subrule 10 . 14(l), paragraph "d, " applies. Arequest may be either oral or in writing. A written request to the division for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address and telephone number ofthe requesting party. b. Parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses. c. When authorized by law, an administrative law judge may issue a subpoena on the ALJ's own motion. d. When there is reasonable ground to believe a subpoena is requested for the purpose of harassment, or that the subpoena is irrelevant, the administrative law judge may refuse to issue the subpoena, or may require the requesting party to provide a statement of testimony expected to be elicited fromthe subpoenaed witness and a showing of relevancy. Ifthe ALJ refuses to issue a subpoena, the ALJ shall provide, upon request, a written statement of the ground for refusal . A party to whoma refusal is issued may obtain a prompt hearing regarding the refusal by filing a written request with the division. 10.14(2) Motion to quash or modify. a. A subpoena may be quashed or modified upon motion for any lawful ground in accordance with the Iowa Rules of Civil Procedure. b . A motion to quash or modify a subpoena shall be served on all parties of record. c. The motion shall be set for argument promptly . This rule is intended to implement Iowa Code sections 10A.104(6) and 17A.13. 481-10.15(10A,17A) Motions. 10.15(1) No technical formis required for motions. Prehearing motions, however, must be written, state the grounds for relief and state the relief sought . Any motion for summaryjudgment shall be filed in compliance with the requirements of Iowa Rules of Civil Procedure. 10 .15(2) Any party may file a written resistance or response to a motion within 14 days after 350the motion is served, unless the time period is extended or shortened by rules of the agency or the

administrative law

judge. The ALJ may consider a failure to respond within the required time period in ruling on a motion. 10.15(3) The administrative law judge may schedule oral argument on any motion on the request of any party or the ALJ's own motion. 10 .15(4) Except for good cause, all motions pertaining to the hearing must be filed and served at least ten days prior to the hearing date unless the time period is shortened or lengthened by rules ofthe agency or the administrative law judge. 481-10.16(17A) Prehearing conference. 10.16(1) Any party may request a prehearing conference. Arequest for prehearing conference or an order for prehearing conference on the ALJ's own motion shall be filed in writing and served on all parties of record not less than ten days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date. Notice of the prehearing conference shall be given by the division to all parties. For good cause the ALJ may permit variances fromthis rule. 10.16(2) Each party shall bring to the prehearing conference: a. A final list of witnesses who the party reasonably anticipates will testify at the hearing. Witnesses not listed may be excluded fromtestifying. b. A final list of exhibits which the party reasonably anticipates will be introduced at the hearing. Exhibits not listed, except rebuttal exhibits, may be excluded fromadmission into evidence. 10.16(3) In addition to the requirements of subrule 10.16(2), the parties at a prehearing conference may: a. Enter into stipulations of law ; b. Enter into stipulations offact; 

### c . Enter into stipulations on the admissibility ofexhibits; d. Identify matters whichthe parties intend to request be officially noticed; e. Unless precluded by statute, enter into stipulations for waiver of the provisions of Iowa Code chapter 17A allowed by Iowa Code section 17A.10(2) or waiver of agency rules; and f . Consider anyadditional matters which will expedite the hearing. 10 .16(4) A prehearing conference shall be conducted by telephone conference call unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists prior to a telephone prehearing conference. This rule is intended to implement Iowa Code section 17A .10. 481-10 .17(l0A) Continuances. Unless otherwise provided, application for continuance shall be made to the ALJ or to the division if an ALJ has not been assigned. 10 .17(1) Awritten application for continuance shall : a. Be made before the hearing; b. State the specific reasons for the request; and c. Be signed by the requesting party or their representative. 10.17(2) If the ALJ waives the requirement for a written motion, an oral application for continuance may be made. A written application shall be submitted no later than five days after the oral request. The ALJ may waive this requirement . No application for continuance will be made or granted ex parte without notice except in an emergency where notice is not feasible. The 351agency may waive notice of requests for a case or a class of cases. 10.17(3) Except where otherwise provided, a continuance may be granted at the discretion of the ALJ . The administrative law judge shall consider, in addition to the grounds stated in the motion: a. Any prior continuances ; 

### b. The interests ofall parties; c. The likelihood ofinformal settlement; d . Existence of emergency; e. Objection to the continuance; f . Any applicable state or federal statutes or regulations; g . The existence of a conflict inthe schedules of counsel or parties or witnesses; and h. The timeliness ofthe request. The ALJ may require documentation ofany ground for continuance. This rule is intended to implement Iowa Code section 10A .202(1) . 481-10.18(10A,17A) Withdrawals. The party which requested an evidentiary hearing regarding agency action may withdrawprior to the hearing only in accordance with agency rules. Requests for withdrawal may be oral or written. Iforal, the ALJ may require the party to submit a written request after the oral request . Unless otherwise provided, a withdrawal shall be with prejudice. This rule is intended to implement Iowa Code sections 10A.202(1) and 17A.22. 

### 481-10.19(10A,17A) Intervention. 10 .19(1) Motion. A motion for leave to intervene shall be served on all parties and shall state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within ten days of service of the motion to intervene unless the time period is extended or shortened by the ALJ . 10.19(2) Whenfiled

. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the disposition of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if one is held, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. The intervenor shall be bound by any agreement, arrangement or other matter previously raised in the case. Requests by untimely intervenors for continuances whichwould delay the hearing will be denied. 10.19(3) Groundsfor intervention . The movant shall demonstrate that: a. Intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; b. The movant will be aggrieved or adversely affected by a final order; and c . The interests of the movant are not being adequately represented by existing parties; or that it is otherwise entitled to intervene. 10 .19(4) Effect of intervention. If appropriate, the ALJ may order consolidation of petitions and briefs and limit the number of representatives allowed to participate in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues to be raised or otherwise condition the intervenor's participation in the proceeding. 352This rule is intended to implement Iowa Code sections 10A.202(1) and 17A.22.

481-10.20(17A) Hearing procedures. 10.20(1) When an AU has been appointed as the presiding officer in a contested case, the ALJ may: a. Rule on motions; b. Preside at the hearing; c. Require the parties to submit briefs; d . Issue a proposed decision; and e . Issue orders and rulings to ensure the orderly conduct of the proceedings. 10.20(2) All objections to procedures, admission of evidence or any other matter shall be timely made and stated onthe record. 10.20(3) Parties in a contested case have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations or associations may be represented by any member, officer, director or duly authorized agent. Any party may be represented by an attorney or as otherwise authorized by law . 10.20(4) Parties in a contested case have the right to introduce evidence on points at issue, to cross-examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, to present evidence in rebuttal and to submit briefs. 10.20(5) The ALJ shall maintain the decorumof the hearing and may refuse to admit or may expel anyone whose conduct is disorderly or disruptive. 10.20(6) Witnesses may be sequestered during the hearing. 10 .20(7) The ALJ shall conduct the hearing in the following manner: a. The AU shall give an opening statement briefly describing the nature of the proceeding; b. The parties shall be given an opportunity to present opening statements; c . Parties shall present their cases in the sequence determined bythe ALJ ; d. Eachwitness shall be sworn or affirmed bythe AUor the court reporter, and be subject to examination. The AUmay limit questioning consistent with Iowa Code section 17A.14; e. The AU has the authority to fully and fairly develop the record and may inquire into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material ; and f. When all parties and witnesses have been heard, parties shall be given the opportunity to present final arguments. This rule is intended to implement Iowa Code sections 17A.11 to 17A.14. 481-10.21(17A) Evidence. 10.21(1) The AU shall rule on admissibility of evidence in accordance with Iowa Code section 17A.14 and may take official notice of facts pursuant to Iowa Code subsection 17A.14(4) . 10.21(2) Stipulation offacts is encouraged. The AU may make a decision based on stipulated facts. 10.21(3) Evidence shall be confined to the issues on which there has been fair notice prior to the hearing. The AU may take testimony on a newissue if the parties waive the right to notice and no other objection is made. If there is objection, the AU may refuse to hear the newissue and may make a decision on the original issue in the notice, or may grant a continuance to allow the parties adequate time to amend pleadings and prepare their cases on the additional issue. :35310.21(4) The party seeking admission of an exhibit must provide opposing parties with an

opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should be provided to opposing parties. All exhibits admitted into evidence shall be appropriately marked and be made part of the record. 10.21(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. The party objecting shall briefly state the grounds for the objection. The objection, the ruling on the objection and the reasons for the ruling shall be noted in the record. The AU may rule on the objection at the time it is made or may reserve a ruling until the written decision. 10 .21(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony. If the evidence excluded consists ofa document or exhibits, it shall be marked as part of an offer of proofand inserted in the record. This rule is intended to implement Iowa Code sections 17A.11 to 17A.14. 

### 481-10.22(17A) Default. 10.22(1) If a party fails to appear in a contested case proceeding after proper service of notice, the ALJ may, if no adjournment is granted, proceed with the hearing and make a decision in the absence of the party. 10.22(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested an evidentiary hearing to contest adverse agency action which has already occurred, but has failed to file a required pleading or has failed to appear after proper service. 10 .22(3) Where authorized by law, an ALJ may issue a default order. 481-10.23(17A) Ex parte communication. 10.23(1) Ex parte communication is prohibited as provided in Iowa Code section 17A.17. Parties or their representatives and ALJs shall not communicate directly or indirectly in connection with any issue of fact or law in a contested case except upon notice and an opportunity for all parties to participate. The ALJ may communicate with persons who are not parties as provided in subrule 10.23(2) . 10.23(2) However, the ALJ may communicate with members of the agency and may have the aid and advice of persons other than those with a personal interest in, or those prosecuting or advocating in the case under consideration or a factually related case involving the same parties. 10.23(3) Any party or ALJ who receives prohibited communication shall submit the written communication or a summary of the oral communication for inclusion in the record. Copies shall be sent to all parties. There shall be opportunity to respond. 10.23(4) Prohibited communications may result in sanctions as provided in agency rule. In addition, the department, through the ALJ, may censure the person or may prohibit further appearance before the department. This rule is intended to implement Iowa Code sections 17A.14 and 17A.17. 481-10.24(10A,17A) Decisions. 10.24(1) Proposed decisions. The ALJ shall issue a proposed decision which includes findings of fact and conclusions of lawstated separately. The decision shall be based on the 354record of the contested case. The record in a contested case shall include all materials specified in Iowa Code subsection 17A .12(6) . This shall include any request for a contested case hearing and other relevant procedural documents regardless of their form . A ruling dismissing all of a party's claims or a voluntary dismissal is a proposed decision under Iowa Code section 17A.15. 10.24(2) Reviewofproposed decisions. Request for reviewof a proposed decision shall be made to the agency in which the contested case originated in the manner and within the time specified by that agency's rules. In contested cases in which the director of DIA has final decision-making authority, request for reviewshall be made as provided in rule 10.25(l0A,17A) . 10.24(3) Final decisions. If there is no appeal fromor reviewof the proposed decision, the ALJ's proposed decision becomes the final decision of the agency. 10.24(4) Agency reports. The agency shall send a copy of any request for review of a proposed decision to the division. The agency shall notify the division of the results of the review, the final decision and anyjudicial decision issued. 

### 481-10.25(10A,17A) DIAappeals. 10.25(1) A request for reviewof a proposed decision in which DIA is the final decision maker shall be made within 15 days of issuing the proposed decision, unless otherwise provided by statute. Requests shall be mailed or delivered by either party to the Director, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083. Failure to request review

will precludejudicial review unless the department reviews on its own motion as follows. The department may review a proposed decision upon its own motion within 15 days of its issuance. 10.25(2) Areview

shall be based on the record and limited to issues raised in the hearing. The issues shall be specified in the party's request for review . 10.25(3) Each party shall have opportunity to file exceptions and present briefs. The director or a designee may set a deadline for submission of briefs. When the director or designee consents, oral arguments may be presented. A party wishing to make an oral argument shall specifically request it. All parties shall be notified in advance of the scheduled time and place. 10.25(4) The director or designee shall not take any further evidence with respect to issues of fact heard in the hearing except as set forth below . Application may be filed for leave to present evidence in addition to that found in the record of the case. If it is shown to the satisfaction of the director or designee that the additional evidence is material and that there were good reasons for failure to present it in the hearing, the director or designee may order the additional evidence taken upon conditions determined bythe director or designee. 10.25(5) Final decisions shall be issued by the director or the director's designee. 10.25(6) Requests for rehearing shall be made to the director of the department within 20 days of issuing a final decision. A rehearing may be granted when newlegal issues are raised, new evidence is available, an obvious mistake is corrected, or when the decision failed to include adequate findings or conclusions on all issues. Arequest for rehearing is not necessary to exhaust administrative remedies. 10.25(7) Judicial reviewof department final decisions may be sought in accordance with Iowa Code section 17A.19. This rule is intended to implement Iowa Code sections 17A .15 and 17A.19. 355481-10.26(10A17A,272C) Board hearings. In scheduling hearings, boards should consult

with the division to determine the availability of an ALJ . The board shall determine the time and place of hearing. At the request of the board, an ALJ shall assist in the conduct of a contested case. 10.26(1) The AU may rule on preliminary matters, including motions, and conduct prehearingconferences referred bythe board. 10.26(2) The ALJ may conduct the hearing for the board, and may, when delegated by the board, performduties including, but not limited to, the following: a. Openthe record and receive appearances; b. Administer oaths and issue subpoenas; c . Enter the notice of hearing into the record; d. Enter the statement of charges into the record; e . Receive testimony and exhibits presented by the parties; f. Rule on objections and motions; g . Close the hearing; and h. Prepare findings offact, conclusions of law and decision and order. This rule is intended to implement Iowa Code sections 10A.202, 17A .11 and 272C.6. i481-10.27(l0A) Transportation hearing fees. Any hearing on an application required by Iowa Code Supplement chapter 325Ashall require: 10.27(1) The applicant and any persons objecting to the granting of a certificate to submit a hearing fee of $350 to be shared equally to cover payment of all costs and expenses of the hearing. The department may require additional amounts as necessary and shall provide a written itemized account ofall additional expenses to the parties. The hearing fee shall be made by check payable to the Iowa Department of Inspections and Appeals. 10.27(2) The hearing fee to be received no later than 14 days after the notice of hearing, unless otherwise ordered. Failure to timely submit the hearing fee may result in cancellation of the hearing and denial of the application. 10.27(3) If a scheduled hearing is canceled, that the hearing fee, less expenses incurred by the department, be refunded to the payers. This shall not be interpreted to authorize a refund to an applicant who fails to appear at a scheduled hearing. 10.27(4) The applicant and any persons objecting to the granting of a certificate to submit a hearing fee of $150 to be shared equally if the hearing is held by a summary proceeding conducted without a personal appearance before the ALJ and where pleadings, affidavits, records, or other documents are submitted to the division for a decision by an ALL Hearing fees underjurisdiction of Department ofTransportation [761] prior to 5/16/90 . See IAB 6/26/91 for rescission of 761-525.5(3) and 528.4(3) . 481-10 .28(l0A) Recording costs. The department may provide a copy of the tape-recorded hearing or a printed transcript of the hearing when a record of the hearing is requested. The cost ofpreparing the tape or transcript shall be paid bythe requesting party. Parties who request that a hearing be recorded by certified shorthand reporters shall bear the cost, unless otherwise provided by law . 481-10 .29(l0A) Code of administrative judicial conduct . The code of administrativejudicial 356conduct is designed to govern the conduct, in relation to their adjudicative functions in contested

cases, of all persons who act as presiding officers under the authority of lowa Code section 17A.11(1) . The canons are rules of reason. The canons shall be applied consistent with constitutional requirements, statutes, administrative rules, and decisional lawand in the context of all relevant circumstances. The canons must be harmonized with the dictates of the administrative process as established by the legislature. While Canons 1, 2, and 3 are generally applicable to both administrative lawjudges and agency heads or members of multimember agency heads when these persons act as presiding officers, these canons shall be applied to agency heads and members of multimember agency heads only as expressly mandated by statute and as reasonably practicable when taking into account the fact that agency heads and members of multimember agency heads, unlike administrative law judges, have multiple duties imposed upon themby law

. The provisions of Canon 4concerning the regulation of extrajudicial activities are not applicable to agency heads or members of multimember agency heads. This code is to be construed so as to promote the essential independence of presiding officers in makingjudicial decisions. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, shall be determined by the appointing authority through a reasonable and reasoned application of the text and shall depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity, and the effect of improper activity on others or on the administrative system . This code is not designed or intended as a basis for civil liability or criminal prosecution. 10.29(1) Canon 1 . A presiding officer shall uphold the integrity and independence of the administrativejudiciary. a. An independent and honorable administrative judiciary is indispensable to justice in society. b . A presiding officer shall participate in establishing, maintaining, and enforcing high standards of conduct and shall personally observe those standards so that the integrity and independence of the administrativejudiciarywill be preserved. c. The provisions of this code are to be construed and applied to further that objective. 10.29(2) Canon 2. A presiding officer shall avoid impropriety and. the appearance of impropriety in all adjudicative functions in contested cases. a. A presiding officer shall respect and comply with the lawand at all times shall act in a manner that promotes public confidence in the integrity and impartiality of the administrative judiciary. b. A presiding officer shall not allow family, social, political, or other relationships to influence the presiding officer's judicial conduct or judgment . This provision shall not be construed as prohibiting the development of public policy by contested case adjudication. A presiding officer shall not lend the prestige of the office to advance the private interests of the presiding officer or others; nor shall a presiding officer convey or permit others to convey the impression that they are in a special position to influence the presiding officer . c. A presiding officer shall not hold membership in any organization that the presiding officer knows practices invidious discrimination on the basis of race, sex religion or national origin. 10 .29(3) Canon 3

. A presiding officer shall performthe duties of the office impartially and diligently. a. Adjudicative responsibilities. Apresiding officer in the performance of adjudicative duties 357in contested case proceedings shall followthese standards: (1) A presiding officer shall be faithful to the law, unswayed by partisan interests, public clamor, or fear of criticism . (2) A presiding officer shall maintain order and decorumin proceedings before the presiding officer. (3) A presiding officer shall be patient, dignified, and courteous to litigants, witnesses, attorneys, representatives, and others with whomthe presiding officer deals in an official capacity, and shall require similar conduct of attorneys, representatives, staff members and others subject to the presiding officer's direction and control . (4) A presiding officer shall not, in the performance of adjudicative duties by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon sex, race, national origin or ethnicity and shall not permit staff and others subject to the presiding officer's direction and control to do so. (5) A presiding officer shall accord to all persons who are legally interested in a proceeding, or their representatives, full right to be heard according to law, and neither initiate nor consider ex parte communications prohibited by Iowa Code section 17A.17. (6) A presiding officer shall dispose of all adjudicative matters promptly, efficiently and fairly. (7) A presiding officer shall abstain from public comment about a pending or impending contested case proceeding that might reasonably be expected to affect the outcome or impair the fairness of the proceeding, and shall require similar abstention byagency personnel subject to the presiding officer's direction and control . This subparagraph does not prohibit a presiding officer from making public statements in the course of official duties or from explaining for public information the hearing procedures of agencies. (8) A presiding officer shall not disclose or use, for any purpose unrelated to adjudicative duties, nonpublic information acquired in an adjudicative capacity except as lawfully permissible in the performance of official duties by an agency head or member of a multimember agency head. (9) Apresiding officer shall report any violation of this code to the appropriate authority for any disciplinary proceedings provided by law . b. Disqualification. A presiding officer or other person shall withdrawfromparticipation in the making ofany proposed or final decision in a contested case if that person: (1) Has a personal bias or prejudice concerning a party or a representative ofa party; (2) Has personally investigated, prosecuted or advocated, in connection with that case, the specific controversy underlying that case, or another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties; (3) Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties; (4) Has acted as counsel to any person who is a private party to that proceeding within the past two years; (5) Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case; 358(6) Has a spouse or relative withir . the third degree ofrelationship that: 1 . Is a party to the case, or an officer, director or trustee of a party; 2. Is an attorney in the case; 3. Is known to have an interest that could be substantially affected by the outcome of the case; or 

### 4 . Is likely to be amaterial witness in the case; or (7) Has any other legally sufficient cause to withdrawfromparticipation in the decision making in that case. c . Disclosure on record . In a situation where a presiding officer knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, the presiding officer shall disclose the relevant information on the record and shall state reasons why voluntary withdrawal is unnecessary. 10 .29(4) Canon 4. An administrative law judge shall regulate extrajudicial activities to minimize the risk of conflict withjudicial duties. In general, an administrative law judge shall conduct all of the administra.ive law judge's extrajudicial activities so that the administrative law judge does not : l . Cast reasonable doubt on the administrative law judge's capacity to act in,partially as a judge; 2. Create the appearance of impropriety or demean the adjudicative office; or 3. Interfere with the proper performance ofadjudicative duties . These rules are intended to implement Iowa Code sections 10A .104, 10A.202, 1?A.10 to 17A.17, 17A

.19, 17A.22, 272C.1 and 272C6 . 

### [Filed emergency 7/1/86--published 7/16/86, effective 7/1/86] [Fiied 2/6/87, Notice 10/8/86---published 2/25/87, effective 4/1/87] [Filedwithout Notice 3/26/87-published 4/22/87, effective 5/27/87] [Filed 1/22/88, Notice 12/16/87-published 2/10/88, effective 3/i6/88~ [Filed 4/26/90, Notice 1/24/90--published 5/16/90, effective 6/20/90] [Filed emergency 8/1/90-published 8/22/90, effective 8/1/901 [Filed emergency 9/27/96-published 10/23/96, effective 9/27/96] [Filed emergency 2/6/98-published 2/25/98, effective 2/6/98] [Filed 4/29/99, Notice 3/24/99--published 5/iy/99, effective 7/1/99] [Filed 12/6/O1, Notice 10/31/01--published 12/26/01, effective 1/30/02] Effective date offirst unnumbered paragraph of Ch 10, Scope andapplicability, delayed 70days by the Administrative Rules Review Committee at its 6/13/90meeting; this paragraph rescinded LAB 8/22/90, effective 8/1/90.

# Attachment #6 Code ofIowa Chapter 17A: Iowa Administrative Procedures Act 

### 17A .1 CITATIONANDSTATEMENT OF PURPOSE. 1 . This chapter may be cited as the "IowaAdministrative Procedure Act". 2. This chapter is intended to provide a minimumprocedural code for the operation ofall state agencies whenthey take action affecting the rights and duties of the public. Nothing in this chapter is meant to discourage agencies fromadopting procedures providing greater protections to the public or conferring additional rights upon the public; and save for express provisions of this chapter to the contrary, nothing in this chapter is meant to abrogate in whole or in part any statute prescribing procedural duties for an agency which are greater than or in addition to those provided here. This chapter is meant to apply to all rulemaking and contested case proceedings and all suits for thejudicial review of agency action that are not specifically excluded fromthis chapter or some portion thereofby its express term~> or by the express terms of another chapter. 3. The purposes of this chapter are: To provide legislative oversight of powers and duties delegated ;o administrative agencies; to increase public accountability of administrative agencies; to simplify goveniment byassuring a uniformminimumprocedure to which all agencies will be held in the conduct oftheir most important functions; to increase public access to governmental information, to increase public participation in the formulation of administrative rules; to increase ;fairness ofagencies in their conduct of contested case proceedings; and to simplify the process ofjudicial review of agency action as well as increase its ease and availability. 4. In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration. The chapter is not meant to alter the substantive rights of any person or ,dgency . Its impact is limited to procedural rights with the expectation that better substantive results will be achieved in the everyday conduct ofstate government by improving the process by which those results are attained. 

### 17A .2 DEFINITIONS. As used in this chapter: 1 . "Agency" means each board, commission, department, officer or other administrative office or unit of the state. "Agency" does not mean the general assembly, thejudicial branch or any of its components, the office of consumer advocate, the governor, or a political subdivision of the state or its offices and units. Unless provided otherwise by statute, no less than two-thirds of the members eligible to vote ofa multimember agency constitute a quoruni authorized to act in the name ofthe agency. 2. "Agency action" includes the whole or apart of an agency rule or other statement of law or policy, order, decision, license, proceeding, investigation, sanction, relief, or the equivalent or a denial thereof, or a failure to act, or anyother exercise of agency discretion or failure to do so, or the performance of any agency duty or the failure to do so. 3603. "Agency member" means an individual who is the statutory or constitutional head of an

agency, or an individual who is one ofseveral individuals who constitute the statutory or constitutional head of an agency. 4. "ARCnumber" means the identification number assigned by the governor's administrative rules coordinator to each rulemaking document . 5. "Contested case" means a proceeding including but not restricted to ra,temaking, price fixing, and licensing in whichthe legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing. 6. "License" includes the whole or apart of any agency permit, certificate, approval, registration, charter, or similar formofpermission required by statute. 7. "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license. 8. "Party" means each person or agency named or admitted as a partyor properly seeking and entitled as ofright to be admitted as a party. 9. "Person" means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency. 10 . "Provision oflaw" means the whole or part of the Constitution of the United States of America or the Constitution ofthe State of Iowa, or of any federal or state statute, court rule, executive order of the governor, or agency rule. 11 . "Rule" means each agency statement of general applicability that implements, interprets, or prescribes lawor policy, or that describes the organization, procedure, or practice requirements of any agency. Notwithstanding any other statute, the termincludes an executive order or directive ofthe governor whichcreates an agency or establishes a programor which transfers a programbetween agencies established by statute or rule. The term:includes the amendment or repeal of an existing rule, but does not include: a. Astatement concerning only the internal management of an agency andwhich does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof. b. Adeclaratory order issued pursuant to section 17A.9, or an interpretation issued by an agencywith respect to a specific set offacts and intended to apply only to that specific set of facts. c . An intergovernmental, interagency, or intra-agency memorandum, directive, manual, or other communication which does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof. d . Adetermination, decision, or order in a contested case. e. An opinion ofthe attorney general . f Those portions ofstaff manuals, instructions, or other statements issued by an agency which set forth criteria or guidelines to be used by its staff in auditing, in making inspections, in settling commercial disputes or negotiating commercial arrangements, or inthe selection or handling of cases, such as operational tactics or allowable tolerances or criteria for the defense, prosecution, or settlement of cases, whenthe disclosure of such statements would: (1) enable law violators to avoid detection; or (2) facilitate disregard ofrequirements imposed by law ; or (3) give a clearly improper advantage to persons who are in an adverse position tothe state. 361g . Aspecification of the prices to be charged for goods orservices sold by an agency as distinguished froma license fee, application fee, or other fees. h. Astatement concerning only the physical servicing, maintenance, or care of publicly owned or operated facilities or property. i. A statement relating to the use of a particular publicly owned or operated facility or property, the substance ofwhich is indicated to the public by means ofsigns or signals. j . Adecision byan agency not to exercise a discretionary power. k . Astatement concerning only inmates of a penal institution, students enrolled in an educational institution, or patients admitted to a hospital, when issued by such an agency. 12. "Rulemaking" means the process for adopting, amending, or repealing a rule. 17A.3 PUBLIC INFORMATION - ADOPTIONOF RULES -- AVAILABILITY OF RULES AND ORDERS. 1 . In addition to other requirements imposed by Constitution or statute, each agency shall : a. Adopt as a rule a description ofthe organization of the agency which states the general course and method of its operations, the administrative subdivisions ofthe agency and the programs implemented by each of them, a statement of the mission of the agency, and the methods by which and locationwhere the public may obtain information or make submissions or requests. b . Adopt rules ofpractice setting forth the nature and requirements ofall formal and informal procedures available tothe public, including a description ofall forms and instructions that are to be used bythe public in dealing with the agency. c. As soon as feasible and to the extent practicable, adopt rules, in addition to those otherwise required bythis chapter, embodying appropriate standards, principles, and procedural safeguards that the agency will apply to the law it administers. d. Make available for public inspection all rules, and make available for public inspection and index bysubject, all other written statements oflawor policy, or interpretations formulated, adopted, or used by the agency in the discharge of its functions. Except as otherwise required by Constitution or statute, or in the use of discovery under the Iowa rules ofcivil procedure or in criminal cases, an agency shall not be required to make available for public inspectionthose portions of its staffmanuals, instructions, or other statements excluded fromthe definition of "rule" by section 17A.2, subsection 11, paragraph 'f' . e . Make available for public inspection and index by name and subject all final orders, decisions, and opinions: Provided that to the extent required to prevent a clearly unwarranted invasion of personal privacy or trade secrets, an agency shall delete identifying details when it makes available for public inspection any final order, decision, or opinion; however, in each case thejustification for the deletion shall be explained fully in writing. 2. No agency rule or other written statement of law or policy, or interpretation, order, decision, or opinion is valid or effective against any person or party, nor shall it be invoked by the agency for any purpose, until it has been made available for public inspection and indexed as required by subsection 1, paragraphs "d" and "e". This provision is not applicable in favor of any person or party who has actual timely knowledge thereofand the burden of proving such knowledge shall be on the agency. 17A.4 PROCEDURE FORADOPTIONOF RULES. 3621 . Prior to the adoption, amendment, or repeal of any rule an agency shall : a. Give notice ofits intended action by submitting the notice to the administrative rules coordinator and the administrative code editor. The administrative rules coordinator shall assign an ARC number to each rulemaking document . The administrative code editor shall publish each notice meeting the requirements of this chapter in the Iowa administrative bulletin created pursuant to section 17A.6. Any notice of intended action shall be published at least thirty-five days in advance of the action. The notice shall include a statement ofeither the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views. b . Afford all interested persons not less than twenty days to submit data, views, or arguments in writing. If timely requested in writing bytwenty-five interested persons, by a governmental subdivision, by the administrative rules reviewcommittee, by an agency, or by an association having not less than twenty-five members, the agency must give interested persons an opportunity to make oral presentation. The opportunity for oral presentation must be held at least twenty days after publication ofthe notice of its time and place inthe Iowa administrative bulletin. The agency shall consider fully all written and oral submissions respecting the proposed rule. Within one hundred eighty days following either the notice published accordingto the provisions ofparagraph "a" or within one hundred eighty days after the last date ofthe oral presentations on the proposed rule, whichever is later, the agency shall adopt a rule pursuant to the rulemaking proceeding or shall terminate the proceeding by publishing notice oftermination in the Iowa administrative bulletin. c . Mail the number of copies ofthe proposed rule as requested to the state office ofa trade or occupational association which has registered its name and address with the agency. The trade or occupational association shall reimburse the agency for the actual cost incurred in providing the copies of the proposed rule under this paragraph. Failure to provide copies as provided in this paragraph shall not be grounds for the invalidation of a rule, unless that failure was deliberate on the part of that agency or the result of gross negligence. 2. An agency shall include in a preamble to each rule it adopts a brief explanation of the principal reasons for its action and, if applicable, a briefexplanation of the principal reasons for its failure toprovide in that rule for the waiver ofthe rule in specified situations ifno such waiver provision is included in the rule. This explanatory requirement does not apply when the agency adopts a rule that only defines the meaning of a provision of law if the agency does not possess delegated authority to bind the courts to any extent with its definition. In addition, if requested to do so byan interested person, either prior to adoption or within thirty days thereafter, the agency shall issue a concise statement of the principal reasons for and against the rule adopted, incorporating therein the reasons for overruling considerations urged against the rule. This concise statement shall be issued either at the time of the adoption of the rule or within thirty-five days after the agency receives the request . 3. When an agency for good cause finds that notice and public participation would be unnecessary, impracticable, or contrary to the public interest, the provisions ofsubsection 1 shall be inapplicable. The agencyshall incorporate in each rule issued in reliance upon this provision either the finding and a brief statement of the reasons for the finding, or a statement that the rule is within avery narrowly tailored category ofrules whose issuance has previously been exempted from subsection 1 by a special rule relying on this provision and including such a finding and statement ofreasons for the entire category. If the administrative rules review committee by a 363two-thirds vote, the governor, or the attorney general files withthe administrative code editor an

objection to the adoption of any rule pursuant to this subsection, that rule shall cease to be effective one hundred eighty days after the date the objection was filed. Acopy ofthe objection, properly dated, shall be forwarded to the agency at the time offiling the objection. In any action contesting a rule adopted pursuant to this subsection, the burden of proofshall be on the agency to show that the procedures ofsubsection 1 were impracticable, unnecessary, or contrary to the public interest and that, if a category ofrules was involved, the categorywas very narrowly tailored. 4. Any notice of intended action or rule filed without notice pursuant to subsection 3, which necessitates additional annual expenditures ofat least one hundred thousand dollars or combined expenditures ofat least five hundred thousand dollars within five years by all affected persons, including the agency itself, shall be accompanied by a fiscal impact statement outlining the expenditures. The agency shall promptly deliver a copyofthe statement to the legislative services agency. To the extent feasible, the legislative services agencyshall analyze the statement and provide a summary of that analysis to the administrative rules review committee. If the agency has made a good faith effort to complywith the requirements of this subsection, the rule shall not be invalidated on the ground that the contents of the statement are insufficient or inaccurate. 5. No rule adopted after July 1, 1975, is valid unless adopted in substantial compliance withthe above requirements of this section. However, a rule shall be conclusively presumed to have been made in compliance with all of the above procedural requirements of this section if it has not been invalidated on the grounds of noncompliance in a proceeding commencedwithin two years after its effective date. 6. a. Ifthe administrative rules reviewcommittee created by section 17A.8, the governor, or the attorney general finds objection to all or some portion of a proposed or adopted rule because that rule is deemed to be unreasonable, arbitrary, capricious, or otherwise beyond the authority delegated to the agency, the committee, governor, or attorney general may, in writing, notifythe agency of the objection. In the case ofa rule issued under subsection 3, or a rule made effective under section 17A.5, subsection 2, paragraph "b", the committee, governor, or attorney general may notify the agency of such an objection. The committee, governor, or attorney general shall also file acertified copy of such an objection in the office ofthe administrative code editor and a notice to the effect that an objection has been filed shall be published in the next issue of the Iowa administrative bulletin and in the Iowa administrative code when that rule is printed in it. The burden ofproofshall then be onthe agency in any proceeding forjudicial reviewor for enforcement of the rule heard subsequent to the filing to establish that the rule or portion ofthe rule timely objected to according to the above procedure is not unreasonable, arbitrary, capricious, or otherwise beyond the authority delegated to it. b. If the agency fails to meet the burden ofproofprescribed for a rule objected to according to the provisions ofparagraph "a"

. the court shall declare the rule or portion of the rule objected to invalid andjudgment shall be rendered against the agency for court costs. Such court costs shall include a reasonable attorney fee and shall be payable by the director of the department of administrative services fromthe support appropriations ofthe agencywhich issued the rule in question. 7. Upon the vote of two-thirds of its members the administrative rules review committee may delay the effective date of a rule seventy days beyondthat permitted in section 17A.5, unless 364the rule was promulgated under section 17A.5, subsection 2, paragraph "b". This provision shall

be utilized by the committee only iffurther time is necessary to study and examine the rule. Notice of aneffective date that was delayed under this provision shall be published in the Iowa administrative code and bulletin. 8. The governor may rescind an adopted rule by executive order within seventy days of the rule becoming effective. The governor shall provide a copy of the executive order to the administrative code editor who shall include it in the next publication of the Iowa administrative bulletin. 17A.4A REGULATORY ANALYSIS. l . An agency shall issue a regulatoryanalysis ofa proposed rule that complies with subsection 2, paragraph "a", if, within thirty-two days after the published notice ofproposed rule adoption, a written request for the analysis is submitted to the agency by the administrative rules reviewcommittee or the administrative rules coordinator . An agency shall issue a regulatory analysis ofa proposed rule that complies with subsection 2, paragraph "b", ifthe rule would have a substantial impact on small business and if, within thirty-two days after the published notice of proposed rule adoption, a written request for analysis is submitted to the agency bythe administrative rules review committee, the administrative rules coordinator, at least twenty-five persons signing that request who each qualify as a small business or by an organization representing at least twenty-five such persons. Ifa rule has been adopted without prior notice and an opportunity for public participation in reliance upon section 17A.4, subsection 3, the written request for an analysis that complies with subsection 2, paragraph "a" or "b", may be made within seventy days ofpublication of the rule. 2. a. Except to the extent that a written request for a regulatoryanalysis expresslywaives one or more ofthe following, the regulatory analysis must contain all ofthe following: (1) Adescription ofthe classes ofpersons who probably will be affected bythe proposed rule, including classes thatwill bear the costs ofthe proposed rule and classes that will benefit fromthe proposed rule. (2) Adescription of the probable quantitative and qualitative impact ofthe proposed rule, economic or otherwise, upon affected classes ofpersons, including a description of the nature and amount ofall of the different kinds of costs that would be incurred incomplying with the proposed rule. (3) The probable costs to the agency and to any other agency ofthe implementation and enforcement of the proposed rule and any anticipated effect on state revenues. (4) Acomparison ofthe probable costs and benefits of the proposed rule to the probable costs and benefits of inaction. (5) Adetermination ofwhether less costly methods or less intrusive methods exist for achieving the purpose of the proposed rule. (6) Adescription of anyalternative methods for achieving the purpose of the proposed rule that were seriously considered bythe agency and the reasons why theywere rejected in favor of the proposed rule. b . In the case of a rule that would have a substantial impact on small business, the regulatory analysis must contain a discussion ofwhether it would be feasible and practicable to do any of the following to reduce the impact of the rule on small business:

365(1) Establish less stringent compliance or reporting requirements in the rule for small

business. (2) Establish less stringent schedules or deadlines in the rule for compliance or reporting requirements for small business. (3) Consolidate or simplify the rule's compliance or reporting requirements for small business. (4) Establish performance standards to replace design or operational standards inthe rule for small business. (5) Exempt small business fromany or all requirements of the rule. c . The agency shall reduce the impact of a proposed rule that would have a substantial impact on small business by using a method discussed in paragraph "b" if the agency finds that the method is legal and feasible in meeting the statutory objectives which are the basis ofthe proposed rule. 3. Each regulatory analysis must include quantifications of the data to the extent practicable and must take account of both short-termand long-termconsequences. 4. Uponreceipt by an agency ofa timely request for a regulatory analysis, the agency shall extend the period specified in this chapter for each ofthe following until at least twenty days after publication in the administrative bulletin ofa concise summaryofthe regulatoryanalysis: a. The end of the period duringwhich persons may make written submissions on the proposed rule. b . The end of the period during which an oral proceeding may be requested. c. The date of any required oral proceeding on the proposed rule. 5. In the case of a rule adopted without prior notice and an opportunity for public participation in reliance upon section 17A.4, subsection 3, the summary must be published within seventy days of the request. 6. The published summary of the regulatoryanalysis must also indicate where persons may obtain copies of the full text of the regulatory analysis and where, when, and how persons may present theirviews onthe proposed rule and demand an oral proceeding thereon if one is not already provided. Agencies shall make available to the public, to the maximum extent feasible, the published summaryand the full text of the regulatory analysis described in this subsection in an electronic format, including, but not limited to, access to the documents through the internet . 7. If the agency has made a good faith effort to comply with the requirements of subsections 1 through 3, the rule may not be invalidated on the ground that the contents of the regulatoryanalysis are insufficient or inaccurate. 8. a. For the purpose of this section, "small business "means any entity including but not limited to an individual, partnership, corporation, joint venture, association, or cooperative, to which all of the following apply: (1) It is not an affiliate or subsidiary of an entity dominant in its field of operation. (2) It has either twenty or fewer full-time equivalent positions or less than one million dollars in annual gross revenues in the preceding fiscal year. b. For purposes of this definition, "dominant in itsfieldofoperation "means having more than twenty full-time equivalent positions and more than one million dollars in annual gross revenues, and "affiliate or subsidiary ofan entity dominant in itsfieldofoperation" means an entity which is at least twenty percent owned by an entity dominant in its field of operation, or by

366partners, officers, directors, majority stockholders, or their equivalent, of an entity dominant in

that field of operation. 17A .5 FILINGANDTAKING EFFECT OF RULES. 1 . Each agency shall file each rule adopted by the agency with the office of the administrative rules coordinator and provide an exact copy to the administrative code editor. The administrative rules coordinator shall assign an ARCnumber to each rulemaking document. The administrative rules coordinator shall keep a permanent register of the rules open to public inspection. The administrative code editor shall publish each rule adopted in accordance with this chapter inthe Iowa administrative code. 2. Arule adopted after July l, 1975, is effective thirty-five days afterfiling, as required in this section, and indexing and publication in the Iowa administrative bulletin except that: a. If a later date is required by statute or specified in the rule, the later date is the effective date. b. Subject to applicable constitutional or statutory provisions, a rule becomes effective immediately upon filing with the administrative rules coordinator, or at a subsequent stated date prior to indexing and publication, or at a stated date less than thirty-five days after filing, indexing and publication, ifthe agency finds: (1) That a statute so provides; (2) That the rule confers a benefit or removes a restriction on the public or some segment thereof ; or (3) That this effective date is necessary because of imminent peril to the public health, safety or welfare. In any subsequent action contesting the effective date ofa rule promulgated under this paragraph, the burden of proofshall be on the agency tojustify its finding. The agency's finding and a briefstatement of the reasons therefor shall be filed with and made a part ofthe rule. Prior to indexing and publication, the agency shall make reasonable efforts to make known to the persons who may be affected by it a rule made effective under the terms ofthis paragraph. 17A .6 PUBLICATIONS

. 1 . The administrative code editor shall cause the Iowa administrative bulletin to be published in accordance with section 2.42 at least every other week, unless the administrative code editor and the administrative rules review committee determine that an alternative publication schedule is preferable. The Iowa administrative bulletin shall contain all of the following: a. Notices of intended action and adopted rules prepared in such a manner so that the text of a proposed or adopted rule shows the text of anyexisting rule being changed and the change being made. b . All proclamations and executive orders ofthe governor which are general and permanent in nature. c. Resolutions nullifying administrative rules passed bythe general assembly pursuant to Article III, section 40 of the Constitution ofthe State of Iowa. d . Other materials deemed fitting and proper by the administrative rules review committee. 2. In consultation with the administrative rules coordinator, the administrative code editor shall cause the Iowa administrative code to be compiled, indexed, and published in accordance 367with section 2.42 in a formcontaining all rules adopted and filed byeach agency. The

administrative code editor further shall publish supplements to the Iowa administrative code containing all rules filed for publication in the prior time period. The administrative code editor shall devise a uniformnumbering systemfor rules and may renumber rules before publication to conformwiththe system . 3. a. The administrative code editor mayomit or cause to be omitted fromthe Iowa administrative code or bulletin any rule the publication ofwhich would be unduly cumbersome, expensive or otherwise inexpedient, if the rule in processed formis made available on application to the adopting agency at no more than its cost of reproduction, and ifthe Iowa administrative code or bulletin contains a notice stating the specific subject matter of the omitted rule and stating how

a copy of the omitted rule may be obtained. b . The administrative code editor shall omit or cause to be omitted fromthe Iowa administrative code any rule or portion of a rule nullified bythe general assembly pursuant to Article III, section 40, of the Constitution of the State of Iowa. 4. An agency which adopts standards by reference to another publication shall purchase and provide a copy of the publication containing the standards to the administrative rules coordinator who shall deposit the copy inthe state law librarywhere it shall be made available for inspection and reference. 5. The Iowa administrative code, its supplements, and the Iowa administrative bulletin shall be made available upon request to all persons who subscribe to any ofthem . 6. All expenses incurred by the administrative code editor under this section shall be defrayed under section 2B.22. 7. The administrative code editor, withthe approval of the administrative rules review committee and the administrative rules coordinator, may delete a rule fromthe Iowa administrative code if the agency that adopted the rule has ceased to exist, no successor agency hasjurisdiction over the rule, and no statutory authority exists supporting the rule. 8. The Iowa administrative code shall be cited as (agency identification number) IAC (chapter, rule, subrule, lettered paragraph, or numbered subparagraph) . 9. The Iowa administrative bulletin shall be cited as IAB (volume), (number), (publication date), (page number), (ARCnumber) . 17A.7 PETITION FORADOPTIONOF RULES AND REQUEST FOR REVIEW OF RULES. 1 . An interested person may petition an agency requesting the adoption, amendment, or repeal ofa rule. Each agency shall prescribe by rule the formfor petitions and the procedure for their submission, consideration, and disposition. Within sixty days after submission ofa petition, the agency either shall deny the petition in writing on the merits, stating its reasons for the denial, or initiate rulemaking proceedings in accordance with section 17A.4, or issue a rule if it is not required to be issued according to the procedures ofsection 17A.4, subsection 1 . 2. a. Any interested person, association, agency, or political subdivision may submit a written request to the administrative rules coordinator for an agency to conduct a formal review ofa specified rule of that agency to determine whether the rule should be repealed or amended or a newrule adopted instead. The administrative rules coordinator shall determine whether the request is reasonable and does not place an unreasonable burden upon the agency. 368b. If the agency has not conducted such a reviewof the specified rule within a period of

five years prior to the filing of the written request, and upon a determination bythe administrative rules coordinator that the request is reasonable and does not place an unreasonable burden upon the agency, the agency shall prepare within a reasonable time a written report with respect to the rule summarizing the agency's findings, its supporting reasons, and any proposed course of action. The report must include, for the specified rule, a concise statement ofall ofthe following: (1) The rule's effectiveness in achieving its objectives, including a summary of any available data supporting the conclusions reached. (2) Written criticisms of the rule received during the previous five years, including a summary of any petitions for waiver ofthe rule tendered to the agency or granted bythe agency. (3) Alternative solutions regarding the subject matter of the criticisms and the reasons they were rejected or the changes made in the rule in response to those criticisms and the reasons for the changes. c . Acopy ofthe report shall be sent to the administrative rules review committee and the administrative rules coordinator and shall be made available for public inspection. 17A .8 ADMINISTRATIVE RULES REVIEW COMMITTEE. 1 . There is created the "Administrative Rules Review Committee." The committee shall be bipartisan and shall be composed of the following members: a. Three senators appointed by the majority leader of the senate and two senators appointed by the minority leader ofthe senate. b. Three representatives appointed bythe speaker of the house ofrepresentatives and two representatives appointed by the minority leader ofthe house ofrepresentatives. 2. A committee member shall be appointed prior to the adjournment ofa. regular session convened in an odd-numbered year. The termof office shall be for four years beginning May 1 ofthe year of appointment . However, a member shall serve until a successor is appointed. A vacancy on the committee shall be filled by the original appointing authority for the remainder of the term . Avacancy shall exist whenever a committee member ceases to be a :member of the house from

which the member was appointed. 3. Acommittee member shall be paid the per diem specified in section 2

..10, subsection 5, for each day in attendance and shall be reimbursed for actual and necessary expenses. There is appropriated frommoney in the general fund not otherwise appropriated an amount sufficient to pay costs incurred under this section. 4. The committee shall choose a chairperson fromits membership and prescribe its rules of procedure. The committee mayemploy a secretary or may appoint the administrative code editor or a designee to act as secretary. 5. Aregular committee meeting shall be held at the seat of government on the second Tuesday of each month. Unless impracticable, in advance of each such meeting the subject matter to be considered shall be published in the Iowa administrative bulletin. A special committee meeting may be called by the chairperson at any place inthe state and at any time. Unless impracticable, in advance ofeach special meeting notice of the time and place of such meeting and the subject matter to be considered shall be published in the Iowa administrative bulletin. 3696. The committee shall meet for the purpose ofselectively reviewing rules, whether

proposed or in effect. Aregular or special committee meeting shall be open to the public and an interested person may be heard and present evidence. The committee may require a representative of an agencywhose rule or proposed rule is under consideration to attend a committee meeting. 7. The committee may refer a rule to the speaker of the house and the president ofthe senate at the next regular session of the general assembly. The speaker and the president shall refer such a rule to the appropriate standing committee of the general assembly. 8. Ifthe committee finds objection to a rule, it may utilize the procedure provided in section 17A.4, subsection 6 . In addition or in the alternative, the committee may include in the referral, under subsection 7, a recommendation that this rule be overcome by statute. If the committee of the general assemblyto which a rule is referred finds objection to the referred rule, it may recommend to the general assemblythat this rule be overcome bystatute. This section shall not be construed to prevent a committee of the general assembly from reviewing a rule on its own motion. 9. Upon a vote of two-thirds of its members, the administrative rules review committee maydelay the effective date of a rule until the adjournment ofthe next regular session of the general assembly. The committee shall refer a rule whose effective date has been delayed to the speaker of the house ofrepresentatives and the president ofthe senate who shall refer the rule to the appropriate standing committees ofthe general assembly. Astanding committee shall review a rule within twenty-one days after the rule is referred to the committee by the speaker ofthe house ofrepresentatives or the president ofthe senate and shall take formal committee action by sponsoring ajoint resolution to disapprove the rule, by proposing legislation relating to the rule, or by refusing topropose ajoint resolution or legislation concerning the rule. The standing committee shall inform the administrative rules review committee of the committee action taken concerning the rule. If the general assembly has not disapproved of the rule by ajoint resolution, the rule shall become effective. The speaker of the house ofrepresentatives and the president of the senate shall notify the administrative code editor of the final disposition ofeach rule delayed pursuant to this subsection. Ifa rule is disapproved, it shall not become effective and the agency shall rescind the rule. This section shall not apply to rules made effective under section 17A.5, subsection 2, paragraph "b". 17A .9 DECLARATORY ORDERS. 1 . a. Any person may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primaryjurisdiction of the agency. b . (1) An agency shall issue a declaratory order in response to a petition for that order unless the agency determines that issuance of the order under the circumstances would be contrary to a rule adopted in accordance with subsection 2. (2) However, an agencyshall not issue a declaratory order that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding. 2. Each agency shall adopt rules that provide for the form, contents, and filing of petitions for declaratory orders, the procedural rights ofpersons in relation to the petitions, and the disposition of the petitions. The rules must describe the classes of circumstances in which the

370agency will not issue a declaratory order and must be consistent with the public interest and with

the general policy of this chapter to facilitate and encourage agency issuance of reliable advice. 3. Within fifteen days after receipt of a petition for a declaratory order, an agency shall give notice ofthe petition to all persons to whomnotice is required by any provision of lawand may give notice to any other persons. 4. Persons who qualify under any applicable provision of law as an intervenor and who file timely petitions for intervention according to agency rules may intervene in proceedings for declaratory orders. The provisions ofsections 17A.10 through 17A.18 apply to agency proceedings for declaratory orders onlyto the extent an agency so provides by rule or order. 5. Within thirty days after receipt ofa petition for a declaratory order, an agency, in writing, shall do one of the following: a. Issue an order declaring the applicability of the statute, rule, or order in question to the specified circumstances. b . Set the matter for specified proceedings. c. Agree to issue a declaral :oryorder by a specified time. d. Decline to issue a declaratory order, stating the reasons for its action. 6. Acopy ofall orders issued in response to a petition for a declaratory order must be mailed promptly to the petitioner and any other parties. 7. Adeclaratory order has the same status and binding effect as any final order issued in a contested case proceeding. Adeclaratory order must contain the names ofall parties to the proceeding on which it is based, the particular facts on which it is based, and the reasons for its conclusion. 8. If an agency has not issued a declaratory order within sixty days after receipt of a petition therefor, or such later time as agreed by the parties, the petition is deemed to have been denied. Once a petition for a declaratory order is deemed denied or if the agency declines to issue a declaratory order pursuant to subsection 5, paragraph "d", a party to that proceeding mayeither seekjudicial review

or await further agency action with respect to its petition for a declaratory order. 17A.9A WAIVERS ANDVARIANCES. 1 . Any person may petition an agencyfor a waiver or variance fromthe requirements of a rule, pursuant to the requirements of this section, ifthe agency has established by rule an application, evaluation, and issuance procedure permitting waivers and variances. An agency shall not grant a petition for waiver or a variance of a rule unless the agency hasjurisdiction over the rule and the waiver orvariance is consistent with any applicable statute, constitutional provision, or other provision of law . In addition, this section does not authorize an agency to waive or varyany requirement created or duty imposed by statute. 2. Upon petition ofa person, an agency may in its sole discretion issue a waiver or variance fromthe requirements ofa rule ifthe agency finds, based on clear and convincing evidence, all of the following: a. The application of the rule would pose an undue hardship onthe person for whom the waiver or variance is requested. b. The waiver or variance from the requirements of a rule in the specific case would not prejudice the substantial legal rights of any person. 371c . The provisions of a rule subject to a petition for a waiver or variance are not specifically mandated bystatute or another provision of law . d. Substantially equal protection ofpublic health, safety, and welfarewill be afforded by a means other than that prescribed inthe particular rule for which the waiver or variance is requested. 3. The burden of persuasion rests with the person who petitions an agencyfor the waiver or variance of a rule. Each petition for awaiver orvariance shall be evaluated bythe agency based on the unique, individual circumstances set out in the petition. Awaiver orvariance, if granted, shall be drafted by the agency so as to provide the narrowest exception possible to the provisions ofthe rule. The agency may place any condition on a waiver or a variance that the agencyfinds desirable to protect the public health, safety, and welfare. Awaiver or variance shall not be permanent, unless the petitioner can show that a temporarywaiver or variance would be impracticable. Ifa temporarywaiver or variance is granted, there is no automatic right to renewal . At the sole discretion of the agency, awaiver or variance may be renewed ifthe agency finds all of the factors set out in subsection 2 remain valid. 4. A grant or denial of awaiver or variance petition shall be indexed, filed, and available for public inspection as provided in section 17A.3. The administrative code editor and the administrative rules coordinator shall devise a mechanism to identify rules forwhich a petition for a waiver or variance has been granted or denied and make this information available to the public. 5. Semiannually, each agencywhich permits the granting of petitions for waivers or variances shall prepare a report ofthese actions identifying the rules for which a waiver or variance has been granted or denied, the number of times a waiver or variance was granted or denied for each rule, a citationto the statutory provisions implemented by these rules, and a general summaryof the reasonsjustifying the agencies' actions on the waiver or variance request. To the extent practicable, this report shall detail the extent to which the granting of a waiver or variance has established a precedent for additional waivers or variances and the extent to which the granting of a waiver or variance has affected the general applicability of the rule itself. Copies of this report shall be provided semiannually to the administrative rules coordinator and the administrative rules review

committee. 6. For purposes of this section, "a waiver or variance" means an agency action which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances ofthat person. 17A.10 INFORMAL SETTLEMENTS --WAIVER . 1 . Unless precluded by statute, informal settlements of controversies that may culminate in contested case proceedings according to the provisions of this chapter are encouraged. Agencies shall prescribe by rule specific procedures for attempting such informal settlements prior to the commencement of contested case proceedings. This subsection shall not be construed to require either party to such a controversy to utilize the informal procedures or to settle the controversy pursuant to those informal procedures. 2. The parties to a contested case proceeding may, bywritten stipulation representing an informed mutual consent, waive any provision ofthis chapter relating to such proceedings. In

372addition to consenting to such a waiver in individual cases, an agency may, by rule, express its

consent to such a waiver as to an entire class of cases. 

### 17A .10A CONTESTEDCASES-- NOFACTUAL DISPUTE. Upon petition by a party ina matter that would be a contested case ifthere was a dispute over the existence ofmaterial facts, all ofthe provisions ofthis chapter applicable to contested cases, except those relating to presentation of evidence, shall be applicable even though there is no factual dispute in the particular case. 17A .11 PRESIDINGOFFICER, DISQUALIFICATION, SUBSTITUTION . 1 . a. If the agency or an officer of the agency underwhose authority the contested case is to take place is a named party to that proceeding or a real party in interest to that :proceeding the presiding officer may be, in the discretion of the agency, either the agency, one ; or more members of a multimember agency, or one or more administrative law judges assigned bythe division of administrative hearings in accordance withthe provisions of section 10A.801 . However, a party may, within a time period specified by rule, request that the presiding officer be an administrative law judge assigned bythe division of administrative hearings. Except as otherwise provided by statute, the agency shall grant a request by a party for an administrative law judge unless the agency finds, and states reasons for the finding, that any of the following conditions exist: (1) There is a compelling need to expedite issuance ofa final decision in order to protect the public health, safety, or welfare. (2) A qualified administrative law judge is unavailable to hear the case within a reasonable time. (3) The case involves significant policy issues offirst impression that are inextricably intertwined with the factual issues presented. (4) The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues. (5) Funds are unavailable topay the costs of an administrative law judge and an intraagency appeal . (6) The request was not timely filed. (7) There is other identified good cause, as specified by rule, for denying the request. b. Ifthe agency or an officer of the agency under whose authority the contested case is to take place is not a named party to that proceeding or a real party in interest to that proceeding the presiding officer may be, in the discretion of the agency, either the agency, one or more members of a multimember agency, an administrative law judge assigned by the division ofadministrative hearings in accordance with the provisions ofsection 10A.801, or any other qualified person designated as a presiding officer bythe agency. Any other person designated as a presiding officer by the agency may be employed by and officed in the agency for which that person acts as a presiding officer, but such a person shall not performduties inconsistentwith that person's duties and responsibilities as a presiding officer. c. For purposes of paragraph "a", the division of administrative hearings established in section 10A.801 shall be treated as awholly separate agency fromthe department of inspections and appeals.

3732. Any person serving or designated to serve alone or with others as a presiding officer is

subject to disqualification for bias, prejudice, interest, or any other cause provided in this chapter orfor which ajudge is or may be disqualified. 3. Any party may timely request the disqualification of a person as a presiding officer by filing a motion supported byan affidavit asserting an appropriate ground for disqualification, after receipt ofnotice indicating that the person will preside or upon discovering facts establishing grounds for disqualification, whichever is later. 4. Aperson whose disqualification is requested shall determine whether to grant the request, stating facts and reasons for the determination. 5. Ifa substitute is required for a person who is disqualified or becomes unavailable for anyother reason, the substitute shall be appointed byeither of the following: a. The governor, ifthe disqualified or unavailable person is an elected official . b . The appointing authority, ifthe disqualified or unavailable person is an appointed official . 6. Anyaction taken bya duly-appointed substitute for a disqualified or unavailable person is as effective as if taken bythe latter. 17A.12 CONTESTED CASES - NOTICE -- HEARING-- RECORDS. 1 . In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice in writing delivered either by personal service as in civil actions or bycertified mail return receipt requested. However, an agency may provide by rule for the delivery ofsuch notice by other means. Delivery of the notice referred to in this subsection shall constitute commencement of the contested case proceeding. 2. The notice shall include: a. Astatement ofthe time, place and nature of the hearing. b . Astatement ofthe legal authority andjurisdiction under which the hearing is to be held. c. Areference to the particular sections ofthe statutes and rules involved. d . A short and plain statement ofthe matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice maybe limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished. 3. If a party fails to appear or participate in a contested case proceeding after proper service ofnotice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and make a decision in the absence of the party. The parties shall be duly notified of the decision, together with the presiding officer's reasons for the decision, which is the final decision of the agency, unless within fifteen days, or such period of time as otherwise specified by statute or rule, after the date ofnotification or mailing of the decision, further appeal is initiated. If a decision is rendered against a party who failed to appear for the hearing and the presiding officer is timely requested by that party to vacate the decision for good cause, the time for initiating a further appeal is stayed pending a determination bythe presiding officer to grant or denythe request. If adequate reasons are provided showing good cause for the party's failure to appear, the presiding officer shall vacate the decision and, after proper service ofnotice, conduct another evidentiary hearing. If adequate reasons are not provided showing good cause for the party's failure to appear, the presiding officer shall deny the motion to vacate. 3744. Opportunity shall be afforded all parties to respond and present evidence and argument

on all issues involved and to be represented by counsel at their own expense. 5. Unless precluded by statute, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default or byanother method agreed upon by the parties in writing. 6. The record in a contested case shall include: a. All pleadings, motions and intermediate rulings. b. All evidence received or considered and all other submissions. c . A statement ofall matters officially noticed. d. All questions and offers of proof, objections and rulings thereon. e . All proposed findings and exceptions. f . Any decision, opinion or report bythe officer presiding at the hearing. 7. Oral proceedings shall be open to the public and shall be recorded either by mechanized means or bycertified shorthand reporters. Oral proceedings or any part thereof shall be transcribed at the request of any partywith the expense ofthe transcription charged to the requesting party. The recording or stenographic notes oforal proceedings or the transcription thereof shall be filed with and maintained bythe agency for at least five years from the date of decision. 8. Findings offact shall be based solelyon the evidence in the record and on matters officially noticed in the record. 9. Unless otherwise provided by statute, a person's request or demand for a contested case proceeding shall be in writing, delivered to the agency by United States postal service or personal service and shall be considered as filed with the agency on the date of the United States postal service postmark or the date personal service is made. 

### 17A.13 SUBPOENAS-- DISCOVERY. 1 . Agencies have all subpoena powers conferred upon themby their enabling acts or other statutes. In addition, prior to the commencement of a contested case by the notice referred to in section 17A.12, subsection 1, anagency having power to decide contested cases may subpoena books, papers, records and any other real evidence necessary for the agency to determine whether it should institute a contested case proceeding. After the commencement of a contested case, each agency having power to decide contested cases may administer oaths and issue subpoenas in those cases. Discovery procedures applicable to civil actions are available to all parties in contested cases before an agency. Evidence obtained in discovery may be used in the hearing before the agency if that evidence would otherwise be admissible in the agency hearing. Agency subpoenas shall be issued to a party on request. On contest, the court shall sustain the subpoena or similar process or demand to the extent that it is found to be in accordance with the law applicable to the issuance of subpoenas or discovery in civil actions. In proceedings for enforcement, the court shall issue an order requiring the appearance of the witness or the production of the evidence or datawithin a reasonable time under penalty ofpunishment for contempt in cases ofwillful failure to comply. 2. An agency that relies on awitness in a contested case, whether or not an agency employee, who has made prior statements or reports with respect to the subject. matter of the witness' testimony, shall, on request, make such statements or reports available; to parties for use on cross-examination, unless those statements or reports are otherwise expressly exempt from 375disclosure by Constitution or statute. Identifiable agency records that are relevant to disputed

material facts involved in a contested case, shall, upon request, promptly be made available to a party unless the requested records are expressly exempt fromdisclosure byConstitution or statute. 17A.14 RULES OF EVIDENCE -- OFFICIAL NOTICE. In contested cases: 1 . Irrelevant, immaterial, or unduly repetitious evidence should be excluded. Afinding shall be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, and may be based upon such evidence even if it would be inadmissible in ajury trial . Agencies shall give effect to the rules of privilege recognized by law

. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests ofthe parties will not be prejudiced substantially, any part of the evidence may be required to be submitted in verified written form . 2. Documentary evidence may be received inthe formof copies or excerpts, ifthe original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original, if available. 3. Witnesses at the hearing, or persons whose testimony has been submitted in written formifavailable, shall be subject to cross-examination by any party as necessary for a full and true disclosure of the facts. 4. Official notice may be taken ofall facts ofwhichjudicial notice may be taken and of other facts within the specialized knowledge of the agency. Parties shall be notified at the earliest practicable time, either before or during the hearing, or by reference in preliminary reports, preliminary decisions or otherwise, of the facts proposed to be noticed and their source, including any staffmemoranda or data, and the parties shall be afforded an opportunity to contest such facts before the decision is announced unless the agency determines as part ofthe record or decision that fairness to the parties does not require an opportunity to contest such facts. 5. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. 17A.15 FINAL DECISIONS - PROPOSED DECISIONS -- CONCLUSIVENESS - REVIEW

BY THE AGENCY. 1 . When the agency presides at the reception of the evidence in a contested case, the decision ofthe agency is a final decision. 2. When the agency did not preside at the reception of the evidence in a contested case, the presiding officer shall make a proposed decision. Findings offact shall be prepared bythe officer presiding at the reception ofthe evidence in a contested case unless the officer becomes unavailable to the agency. Ifthe officer is unavailable, the findings offact may be prepared by another person qualified to be a presiding officer who has read the record, unless demeanor of witnesses is a substantial factor. If demeanor is a substantial factor and the presiding officer is unavailable, the portions of the hearing involving demeanor shall be heard again or the case shall be dismissed. 3. When the presiding officer makes a proposed decision, that decision then becomes the final decision ofthe agencywithout further proceedings unless there is an appeal to, or review on 376motion of, the agencywithin the time provided by rule. On appeal fromor reviewof the

proposed decision, the agency has all the power which it would have in initially making the final decision except as it may limit the issues on notice to the parties or by rule. The agency may reverse or modifyany finding offact if a preponderance of the evidence will support a determination to reverse or modify such a finding, or may reverse or modify any conclusion of law that the agencyfinds to be in error. In cases where there is an appeal froma proposed decision or where a proposed decision is reviewed on motion of the agency, an opportunity shall be afforded to each party to file exceptions, present briefs and, with the consent of the agency, present oral arguments to the agency members who are to render the final decision. 4. This section shall not preclude an agency frominstituting a systemwhereby the proposed decision of a presiding officer in a contested case may be appealed to, or reviewed on motion of, a body consisting of one or more persons that is between the presiding officer and the agency. If an agency institutes such a systemof intermediate review, the proposed decision of the presiding officer becomes the final decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the intermediate reviewing bodywithin the time provided by rule. An intermediate reviewing body may be vested with all or a :part of the power which it would have in initially making the decision. Adecision of such an intermediate reviewing body is also a proposed decision and shall become the final decision ofthe agency without further proceedings unless there is an appeal to, or review on motion of, the agency within the time provided by rule. In cases where there is an appeal froma proposed decision rendered by a presiding officer to an intermediate reviewing body, or where such a proposed decision is reviewed on motion of an intermediate reviewing body, anopportunity shall be afforded to each party to file exceptions, present briefs and, with the consent ofthe intermediate reviewing body, present oral arguments to those who are to render the decision, 5. When an appeal froman agency decision in a contested case may be takento another agency pursuant to statute, or a second agency may according to statute reviewon its own motion the decision in a contested case by the first agency, the appeal or review shall be deemed a continuous proceeding as though before one agency. Adecision of the first agency in such a case is a proposed decision and shall become the final decision without further proceedings unless there is an appeal to, or review on motion of, the second agencywithin the time provided by statute or rule. In deciding an appeal fromor review of a proposed decision of the first agency, the second agencyshall have all those powers conferred upon it by statute and shall afford each party an opportunity to file exceptions, present briefs and, with its consent, present oral arguments to agency members who are to render the final decision. 17A.16 DECISIONS AND ORDERS -- REHEARING . l . Aproposed or final decision or order in a contested case shall be in writing or stated in the record. A proposed or final decision shall include findings offact and conclusions of law, separately stated. Findings offact, ifset forth in statutory language, shall be accompanied by a concise and explicit statement of underlying facts supporting the findings. The decision shall include an explanation ofwhy the relevant evidence in the record supports each material finding offact. If, in accordance with agency rules, a party submitted proposed findings offact, the decision shall include a ruling upon each proposed finding. Each conclusion oflawshall be supported by citedauthority or by a reasoned opinion. Parties shall be promptly notified of each

377proposed or final decision or order by the delivery to them of a copyof such decision or order in the manner provided by section 17A.12, subsection 1 . 2. Except as expressly provided otherwise by another statute referring to this chapter by name, any party may file an application for rehearing, stating the specific grounds for the rehearing and the relief sought, within twenty days after the date ofthe issuance of any final decision by the agency in a contested case. Acopy of the application for rehearing shall be timely mailed bythe presiding agency to all parties of record notjoining in the application. An application for rehearing shall be deemed to have beendenied unless the agency grants the application within twenty days after its filing. 17A.17 EX PARTE COMMUNICATIONS AND SEPARATIONOF FUNCTIONS. 1 . a. Unless required for the disposition of ex parte matters specifically authorized by statute, a presiding officer in a contested case, shall not communicate, directly or indirectly, in connection with any issue offact or law in that contested case, with any person or party, except upon notice and opportunity for all parties to participate as shall be provided for by agency rules. b . However, without such notice and opportunity for all parties to participate, a presiding officer in a contested case may communicate with members ofthe agency, and may have the aid and advice ofpersons other than those with a personal interest in, or those engaged in personally investigating, prosecuting or advocating in, either the case under consideration or a pending factually related case involving the same parties so long as those persons do not directly or indirectlycommunicate to the presiding officer any ex parte communications they have received ofa type that the presiding officer would be prohibited fromreceiving or that furnish, augment, diminish, or modify the evidence in the record. 2. Unless required for the disposition of ex parte matters specifically authorized by statute, parties or their representatives in a contested case and persons with a direct or indirect interest in such a case shall not communicate, directly or indirectly, in connection with any issue offact or law in that contested case, with a presiding officer in that contested case, except upon notice and opportunity for all parties toparticipate as shall be provided for by agency rules. 3. If, before serving as the presiding officer in a contested case, a person receives an ex parte communication relating directly to the merits of the proceeding over which that person subsequently presides, the person, promptly after startingto serve, shall disclose to all parties any material factual information so received and not otherwise disclosed to those parties pursuant to section 17A.13, subsection 2, or through discovery. 4. Apresiding officer who receives an ex parte communication in violation of this section shall place on the record of the pending matter all such written communications received, all written responses to the communications, and a memorandum stating the substance ofall such oral and other communications received, all responses made, and the identityof each person from whom the presiding officer received a prohibited ex parte communication, and shall advise all parties that these matters have been placed on the record. Any party desiring to rebut the prohibited ex parte communication must be allowed to do so, upon requesting the opportunity for rebuttal within ten days after notice ofthe communication. 5. Ifthe effect of an ex parte communication received inviolation of this section is so prejudicial that it cannot be cured by the procedure in subsection 4, a presiding officer who receives the communication shall be disqualified and the portions of the record pertaining to the communication shall be sealed by protective order. 3786. The agency and any party may report any violation of this section to appropriate

authorities for any disciplinary proceedings provided by law . Inaddition, each agency by rule shall provide for appropriate sanctions, including default, suspending or revoking a privilege to practice before the agency, and censuring, suspending, or dismissing agency personnel, for any violations of this section. 7. Aparty to a contested case proceeding mayfile a timely and sufficient: affidavit alleging a violation of any provision of this section. The agency shall determine the matter as part of the record in the case. When an agency in these circumstances makes such a determination with respect to an agency member, that determination shall be subject to de novojudicial review in any subsequent reviewproceeding ofthe case. 8. An individual who participates in the making of any proposed or final decision in a contested case shall not have personally investigated, prosecuted, or advocated in connection withthat case, the specific controversy underlying that case, or another pending factually related contested case, or pending factually related controversy that mayculminate in a contested case, involving the same parties. In addition, such an individual shall not be subject to the authority, direction, or discretion of any person who has personally investigated, prosecuted, or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy, involving the same parties. However, this section shall not be construed to preclude a person from serving as a presiding officer solely because that person determined there was probable cause to initiate the proceeding. 17A.18 LICENSES. 1 . When the grant, denial, or renewal of a license is required by Constitution or statute to be preceded by notice and opportunity for an evidentiary hearing, the provisions of this chapter concerning contested cases apply. 2. When a licensee has made timely and sufficient application for the renewal of a license or a new

license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seekingjudicial review ofthe agency order or a later date fixed by order of the agency or the reviewing court. 3. No revocation, suspension, annulment or withdrawal, in whole or in part, of any license is lawful unless, prior to the institution of agency proceedings, the agency gave written, timely notice by personal service as in civil actions or by restricted certified mail to the licensee offacts or conduct and the provision of law which warrants the intended action, and the licensee was given an opportunity to show, in an evidentiary hearing conducted according to the provisions of this chapter for contested cases, compliance with all lawful requirements for the retention ofthe license. 17A.18A EMERGENCY ADJUDICATIVE PROCEEDINGS. l . Notwithstanding any other provision of this chapter and to the extent consistent with the Constitution of the State of Iowa and ofthe United States, an agency may use e:mergency adjudicative proceedings in a situation involving an immediate danger to the public health, safety, or welfare requiring immediate agency action. 2. The agency may take only such action as is necessary to prevent or avoid the immediate danger to the public health, safety, or welfare thatjustifies use of emergency adjudication. 3793. The agency shall issue an order, including a briefstatement offindings offact,

conclusions of law, and policy reasons for the decision if it is an exercise of the agency's discretion, tojustify the determination of an immediate danger and the agency's decision to take the specific action. 4. The agency shall give such notice as is practicable to persons who are required to comply withthe order. The order is effective when issued. 5. After issuing an order pursuant to this section, the agency shall proceed as quickly as feasible to complete any proceedings that would be required ifthe matter did not involve an immediate danger. 6. The agency record consists of any documents regarding the matter that were considered or prepared by the agency. The agency shall maintainthese documents as its official record. 7. Unless otherwise required by a provision of law, the agency record need not constitute the exclusive basis for agency action in emergency adjudicative proceedings or forjudicial review thereof. 

### 17A.19 JUDICIAL REVIEW . Except as expressly provided otherwise by another statute referring to this chapter by name, thejudicial reviewprovisions of this chapter shall be the exclusive means bywhich a person or party who is aggrieved or adversely affected by agency action may seekjudicial review of such agency action. However, nothing in this chapter shall abridge or deny to any person or partywho is aggrieved or adversely affected by any agency action the right to seek relief fromsuch action in the courts. 1 . Aperson or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled tojudicial review thereof under this chapter. When agency action is pursuant to rate regulatory powers over public utilities or common carriers and the aggrievement or adverse effect is to the rates or charges of a public utility or common carrier, the agency action shall not be final until all agency remedies have been exhausted and a decision prescribing rates which satisfy the requirements of those provisions of the Code has been rendered. Apreliminary, procedural or intermediate agency action is immediately reviewable ifall adequate administrative remedies have been exhausted and review of the final agency actionwould not provide an adequate remedy. Ifa declaratory order has not been rendered within sixtydays after the filing of a petition therefor under section 17A.9, or by such later time as agreed by the parties, or if the agency declines to issue such a declaratory order after receipt of a petition therefor, any administrative remedy available under section 17A.9 shall be deemed inadequate or exhausted. 2. Proceedings forjudicial reviewshall be instituted by filing a petition either in Polk county district court or in the district court for the county inwhich the petitioner resides or has its principal place of business. When a proceeding forjudicial reviewhas been commenced, a court may, in the interest ofjustice, transfer the proceeding to another countywhere the venue is proper. Within ten days after the filing of a petition forjudicial review the petitioner shall serve by the means provided in the Iowa rules ofcivil procedure for the personal service ofan original notice, or shall mail copies of the petition to all parties named in the petition and, ifthe petition involves review

of agency action in a contested case, all parties of record in that case before the agency. Such personal service or mailing shall bejurisdictional . The delivery by personal service or mailing referred to in this subsection may be made upon the party's attorney of record in the 380proceeding before the agency. Amailing shall be addressed to the parties or their attorney of

record at their last known mailing address. Proofofmailing shall be byaffidavit. Any party of record in a contested case before an agencywishing to intervene and participate in the review proceeding must file an appearance within forty-five days fromthe time the petition is filed. 3. If a party files an application under section 17A.16, subsection 2, for rehearing with the agency, the petition forjudicial reviewmust be filed within thirty days after that application has been denied or deemed denied. If a partydoes not file an application under section 17A.16, subsection 2, for rehearing, the petition must be filed within thirty days after the issuance ofthe agency's final decision in that contested case. If an application for rehearing is granted, the petition for reviewmust be filed within thirty days after the issuance of the agency's final decision on rehearing. In cases involving a petition forjudicial review of agency action other than the decision in a contested case, the petition may be filed at any time petitioner is aggrieved or adversely affected by that action. 4. The petition for review shall name the agency as respondent and shall . contain a concise statement of: a. The nature ofthe agency action which is the subject ofthe petition. b . The particular agency action appealed from . c. The facts on whichvenue is based. d . The grounds on which relief is sought. e . The relief sought . 5. a. The filing ofthe petition for review does not itself stay execution or enforcement of any agency action. Unless precluded by law, the agency maygrant a stay on appropriate terms or other temporary remedies during the pendency ofjudicial review . b. Aparty may file an interlocutory motion in the reviewing court, duringthe pendency of judicial review, seeking review of the agency's action on an application for stay or other temporary remedies. c . Ifthe agency ref-uses to grant an application for stayor other temporary remedies, or application to the agency for a stay or other temporary remedies is an inadequate remedy, the court may grant reliefbut only after a consideration and balancing ofall of the! following factors: (1) The extent to which the applicant is likely to prevail when the court finally disposes of the matter. (2) The extent to which the applicant will suffer irreparable injury ifrelief is not granted. (3) The extent to which the grant of relief to the applicant will substantially harm other parties to the proceedings. (4) The extent to which the public interest relied on by the agency is sufficient tojustify the agency's action in the circumstances. d . If the court determines that relief should be granted fromthe agency's, action on an application for stayor other temporary remedies, the court may remand the matter to the agency with directions to deny a stay, to grant a stayon appropriate terms, or to grant other temporary remedies, or the court may issue an order denying a stay, granting a stay on appropriate terms, or granting other temporary remedies. 6. Within thirty days after filing ofthe petition, or within further time allowed bythe court, the agency shall transmit tothe reviewing court the original or a certified copy of the entire record of any contested case which may be the subject ofthe petition. By stipulation ofall parties to the reviewproceedings, the record of such a case may be shortened. Aparty 381unreasonably refusing to stipulate to limit the record may be taxed bythe court for the additional

costs. The court may require or permit subsequent corrections or additions to the record. 7. In proceedings forjudicial review of agency action a court may hear and consider such evidence as it deems appropriate. In proceedings forjudicial reviewof agency action in a contested case, however, a court shall not itself hear any further evidence with respect to those issues offactwhose determination was entrusted by Constitution or statute to the agency in that contested case proceeding. Before the date set for hearing a petition forjudicial review of agency action in a contested case, application may be made to the court for leave topresent evidence in addition to that found in the record of the case. If it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the contested case proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision inthe case by reason ofthe additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court and mail copies of the new findings or decisions to all parties. 8. Except to the extent that this chapter provides otherwise, in suits forjudicial reviewof agency action all ofthe following apply: a. The burden of demonstrating the required prejudice and the invalidity of agency action is onthe partyasserting invalidity. b. The validity of agency action must be determined in accordance with the standards of reviewprovided in this section, as applied to the agency action at the time that actionwas taken. 9. The court shall make a separate and distinct ruling on each material issue on which the court's decision is based. 10 . The court may affirmthe agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant other appropriate relief fromagency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seekingjudicial relief have been prejudiced because the agency action is any of the following: a. Unconstitutional on its face or as applied or is based upon a provision of law that is unconstitutional on its face or as applied. b . Beyond the authority delegated to the agency by any provision of law or in violation of any provision of law

. c. Based upon an erroneous interpretation ofa provision of law whose interpretation has not clearly been vested by a provision of lawin the discretion of the agency. d . Based upon a procedure or decision-making process prohibited by law or was taken without following the prescribed procedure or decision-making process. e. The product of decision making undertaken by persons who were improperlyconstituted as a decision-making body, were motivated by an improper purpose, or were subject to disqualification. f . Based upon a determination offact clearlyvested by a provision of lawin the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole. For purposes of this paragraph, the following terms have the following meanings: (1) "Substantial evidence" means the quantity and quality of evidencethat would be deemed sufficient bya neutral, detached, and reasonable person, to establish the fact at issue 382when the consequences resulting fromthe establishment of that fact are understood to be serious

and of great importance. (2) "Record before the court" means the agency record forjudicial review, as defined by this chapter, supplemented by any additional evidence received by the court under the provisions of this chapter. (3) "When that record is viewed as a whole" means that the adequacy of the evidence in the record before the court to support a particular finding offact must bejudged in light ofall the relevant evidence in the record cited by any party that detracts fromthat finding as well as all of the relevant evidence in the record cited byany party that supports it, including any determinations ofveracity bythe presidingofficer who personally observed the demeanor of the witnesses and the agency's explanation ofwhy the relevant evidence in the record supports its material findings offact. g. Action other than a rule that is inconsistent with a rule of the agency. h. Action other than a rule that is inconsistentwith the agency's prior practice or precedents, unless the agency has justified that inconsistency by stating credible reasons sufficient to indicate a fair and rational basis for the inconsistency. i. The product of reasoning that is so illogical as to render it wholly irrational . j . The product of a decision-making process in which the agency did not. consider a relevant and important matter relating to the propriety or desirability of the action inquestion that a rational decision maker in similar circumstances would have considered prior to taking that action. k . Not required by law and its negative impact on the private rights affected is so grossly disproportionate to the benefits accruing to the public interest fromthat action that it must necessarily be deemed to lack any foundation in rational agency policy. l. Based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion ofthe agency. m . Based upon an irrational, illogical, or wholly unjustifiable application oflaw to fact that has clearly been vested by a provision of law in the discretion ofthe agency. n. Otherwise unreasonable, arbitrary, capricious, or an abuse of discretion. 11 . In making the determinations required by subsection 10, paragraphs "a" through "n", the court shall do all ofthe following: a. Shall not give any deference to the view of the agency with respect to whether particular matters have been vested by a provision of lawin the discretion ofthe agency. b. Should not give any deference to the view ofthe agencywith respect to particular matters that have not been vested by a provision of lawin the discretion of the agency. c . Shall give appropriate deference to the view of the agency with respect to particular matters that have been vested bya provision of law inthe discretion of the agency. 12. Adefendant in a suit for civil enforcement of agency action may defend on any of the grounds specified in subsection 10, paragraphs "a" through "n", ifthat defendant, at the time the enforcement suit was filed, would have been entitled to rely upon any of those . grounds as a basis for invalidating the agency action in a suit forjudicial reviewof that action brought at the time the enforcement suit was filed. If a suit for civil enforcement of agency action in a contested case is filedwithin the time period in whichthe defendant could have filed a petition forjudicial review of that agency action, and the agency subsequently dismisses its suit far civil enforcement 383of that agency action against the defendant, the defendant may, within thirty days of that

dismissal, file a petition forjudicial reviewof the original agency action at issue if the defendant relied upon any of the grounds forjudicial review in subsection 10, paragraphs "a" through "n", in a responsive pleading to the enforcement action, or ifthe time to file a responsive pleading had not yet expired at the time the enforcement action was dismissed. 

### 17A .20 APPEALS. An aggrieved or adversely affected party to thejudicial reviewproceeding mayobtain a review of any finaljudgment ofthe district court under this chapter by appeal . The appeal shall be taken as in other civil cases, although the appeal may be taken regardless of the amount involved. 

### 17A .21 INCONSISTENCY WITHFEDERAL LAW . If it is determined by the attorney general that any provision of this chapter would cause denial offunds or services fromthe United States government which would otherwise be available to an agency ofthis state, or would otherwise be inconsistent with requirements of federal law, such provision shall be suspended as to such agency, but onlyto the extent necessary toprevent denial of such funds or services or to eliminate the inconsistency with federal requirements. If the attorney general makes such a suspension determination, the attorney general shall report it to the general assemblyat its next session. This report shall include any recommendations in regard to corrective legislation needed to conformthis chapter with the federal law

. 

### 17A .22 AGENCY AUTHORITYTOIMPLEMENT CHAPTER . Agencies shall have all the authority necessary to comply with the requirements of this chapter through the issuance ofrules or otherwise. 17A .23 CONSTRUCTION. Except as expressly provided otherwise bythis chapter or by another statute referring to this chapter by name, the rights created and the requirements imposed bythis chapter shall be in addition to those created or imposed by every other statute in existence on July 1, 1975, or enacted after that date. If any other statute in existence on July 1, 1975, or enacted after that date diminishes a right conferred upon a person by this chapter or diminishes a requirement imposed upon an agency bythis chapter, this chapter shall take precedence unless the other statute expressly provides that it shall take precedence over all or some specified portion of this named chapter. This chapter shall be construed broadlyto effectuate its purposes. This chapter shall also be construed to apply to all agencies not expressly exempted by this chapter or by another statute specifically referring to this chapter by name; and except as to proceedings in process on July 1, 1975, this chapter shall be construed to apply to all covered agency proceedings and all agency action not expressly exempted bythis chapter or by another statute specifically referring to this chapter by name. An agency shall have only that authority or discretion delegate to or conferred upon the agency by law and shall not expand or enlarge its authority or discretion beyond the powers delegated to or conferred upon the agency. 38417A .24 TO17A.30 Reserved. 

### 17A.31 AND17A.32 Repealed by 98Acts, ch 1202, § 45,46 . 17A.33 REVIEW

BYADMINISTRATIVE RULES REVIEW COMMITTEE. The administrative rules review committee shall review existing rules, as time permits, to determine if there are adverse or beneficial effects fromthese rules. The committee shall give a high priority to rules that are referred to it by small business as defined in section 17A.4A. The reviewof these rules shall be forwarded to the appropriate standing committees ofthe house and senate. 

### 17A.34 COMPETITIONWITHPRIVATE ENTERPRISE -NOTICE FOR PROPOSED RULES

. When a rule is proposed, the administrative rules coordinator shall make an initial determination ofwhether the rule may cause a service or product to be offered for sale to the public by a state agency that competes with private enterprise. If such a service or product may be offered as a result of the proposed rule, that fact shall be included inthe notice of intended action ofthe rule.

# Attachment #7

Code oflowa 135.38: Authority for criminal penalties. 

### 135.38 PENALTY. Any person who knowinglyviolates any provision of this chapter, or ofthe rules ofthe department, or any lawful order, written or oral, of the department or of its officers, or authorized agents, shall be guilty ofa simple misdemeanor.

# Attachment #8

Code ofIowa Chapter 903: Misdemeanors 903.1 MAXIMUM

SENTENCE FOR MISDEMEANANTS. 1 . Ifa personeighteen years of age or older is convicted of a simple or serious misdemeanor and a specific penalty is not provided for or ifa person under eighteen years of age has beenwaived to adult court pursuant to section 232.45 on a felony charge and is subsequently convicted of a simple, serious, or aggravated misdemeanor, the court shall determine the sentence, and shall fix the period of confinement or the amount offine, which fine shall not be suspended by the court, within the following limits: a. For a simple misdemeanor, there shall be a fine ofat least sixty-five dollars but not to exceed six hundred twenty-five dollars. The court may order imprisonment not to exceed thirty days in lieu of a fine or in addition to a fine. b. For a serious misdemeanor, there shall be a fine ofat least three hundred fifteen dollars but not to exceed one thousand eight hundred seventy-five dollars. In addition, the court may also order imprisonment not to exceed one year. 2. Whena person is convicted of an aggravated misdemeanor, and a specific penalty is not provided for, the maximum penalty shall be imprisonment not to exceed two years. There shall be a fine of at least six hundred twenty-five dollars but not to exceed six thousand two hundred fifty dollars. When ajudgment of conviction of an aggravated misdemeanor is entered against any person and the court imposes a sentence of confinement for a period of more than one year the termshall be an indeterminate term . 3. Aperson under eighteen years of age convicted of a simple misdemeanor under chapter 321, 321G, 3211,453A, 461A, 461B, 462A, 481A, 48113, 483A, 484A, or 484B, or aviolation of a county or municipal curfew or traffic ordinance, except for an offense subject to section 805.8, may be required to pay a fine, not to exceed one hundred dollars, as fixed by the court, or may be required to performcommunity service as ordered bythe court. 4. The surcharges required by sections 911 .1, 911 .2, 911 .3, and 911 .4 shall be added to a fine imposed on a misdemeanant as provided in those sections, and are not a part of or subject to the maximums set in this section. 903.2 RECONSIDERATIONOF MISDEMEANANT'S SENTENCE. For a period ofthirty days fromthe date when a personconvicted ofa rrusdemeanor begins to serve a sentence of confinement, the court may order the person to be returned to the court, at whichtime the court may reviewits previous action and reaffirmit or substitute for it any sentence permitted by law . The sentencing court retainsjurisdiction for the limited purposes of conducting such reviewand entering an appropriate order notwithstanding the timely filing of a notice of appeal or an application for discretionary review . The court's final order in the proceeding shall be delivered to the defendant personally or by regular mail . Such action is discretionary with the court and its decision to take the action or not to take the action is not subject to appeal . The other provisions ofthis section notwithstanding, for the purposes of appeal ajudgment of conviction is a finaljudgment when pronounced. 903.3 WORK RELEASE. 387The court may direct that a prisoner sentenced to confinement in a countyjail, alternatejail

facility, or community correctional residential treatment facility, be released fromcustodyduring specified hours, as provided by sections 356.26 to 356.35. 903.4 PROVIDING PLACE OF CONFINEMENT. All persons sentenced to confinement for a period of one year or less shall be confined in a place to be furnished bythe countywhere the conviction was had unless the person is presently committed to the custody of the director ofthe Iowa department of corrections, in which case the provisions ofsection 901 .8 apply. All persons sentenced to confinement for a period ofmore than one year shall be committed to the custody ofthe director of the Iowa department of corrections to be confined in a place to be designated by the director and the cost of the confinement shall be borne by the state. The director may contract with local governmental units for the use of detention or correctional facilities maintained by the units for the confinement of such persons. 

### 903.5 LOCAL FACILITIES PREFERRED FORMISDEMEANANTS. In designating places of confinement of misdemeanants, the department shall make optimumuse of local facilities offering correctional programs, where such are available. Where a choice offacilities is offered, a choice of the facility nearest the prisoner's home shall be preferred, if such choice is compatible with the rehabilitation of the prisoner. 

### 903.6 SEGREGATIONOF PRISONERS. In any detention facility, persons who are serving a sentence of confinement shall be segregated from

persons who are being detained for any other purpose, whenever such is possible.

# Attachment #9

Code ofIowa 708.4: Willful injury. 708.4 WILLFUL INJURY . Any person who does an act which is notjustified and which is intended to cause serious injury to another commits the following: l . Aclass "C" felony, if the person causes serious injury to another. 2. Aclass "D" felony, ifthe person causes bodily injury to another.

# Attachment #10

Code ofIowa 707.5: Involuntary manslaughter. 

### 707.5 INVOLUNTARY MANSLAUGHTER . 1 . Aperson commits a class "D" felony when the person unintentionally causes the death of another person by the commission of a public offense other than a forcible felony or escape. 2. Aperson commits an aggravated misdemeanor when the person unintentionally causes the death of another person bythe commission of an act in a manner likely to cause death or serious injury. Involuntary manslaughter as defined in this section is an included offense under an indictment for murder in the first or second degree or voluntary manslaughter.

# Attachment #11

Code ofIowa 714.2: Degrees oftheft. 714.2 DEGREES OF THEFT. 1 . The theft ofproperty exceeding ten thousand dollars in value, or the theft ofproperty fromthe person of another, or froma building which has been destroyed or left unoccupied because of physical disaster, riot, bombing, or the proximity of battle, or the theft ofproperty which has been removed froma building because ofa physical disaster, riot, bombing, or the proximity ofbattle, is theft in the first degree. Theft in the first degree is a class "C" felony. 2. The theft of property exceeding one thousand dollars but not exceeding ten thousand dollars in value or theft of a motor vehicle as defined in chapter 321 not exceeding ten thousand dollars in value, is theft in the second degree. Theft in the second degree is a class "D" felony. However, for purposes of this subsection, "motor vehicle" does not include a motorized bicycle as defined in section 321 .1, subsection 40, paragraph "b". 3. The theft of property exceeding five hundred dollars but not exceeding one thousand dollars in value, or the theft of any property not exceeding five hundred dollars in value by one who has before been twice convicted of theft, is theft in the third degree. Thei3 in the third degree is an aggravated misdemeanor. 4. The theft of property exceeding two hundred dollars in value but not exceeding five hundred dollars in value is theft inthe fourth degree. Theft in the fourth degree is a serious misdemeanor. 5. The theft of property not exceeding two hundred dollars in value is theft in the fifth degree. Theft in the fifth degree is a simple misdemeanor .

# Attachment #12

Code ofIowa Chapter 902: Felonies 

### 902.1 CLASS "A" FELONY . Upon a plea ofguilty, a verdict ofguilty, or a special verdict upon which ajudgment of conviction of a class "A" felony may be rendered, the court shall enter ajudgment of conviction and shall commit the defendant into the custodyofthe director of the Iowa department of corrections for the rest of the defendant's life. Nothing in the Iowa corrections code pertaining to deferredjudgment, deferred sentence, suspended sentence, or reconsideration ofsentence applies to a class "A" felony, and a person convicted ofa class "A" felony shall not be released on parole unless the governor commutes the sentence to a termofyears. 

### 902.2 COMMUTATIONPROCEDURE FORCLASS "A" FELONS . Aperson who has been sentenced to life imprisonment under section 902.1 may, no more frequently than once every tenyears, make an application to the governor requesting that the person's sentence be commuted to a termofyears. The director of the Iowa department of corrections may make a request to the governor that a person's sentence be commuted to a term ofyears at any time. Upon receipt of a request for commutation, the governor shall send a copy ofthe request to the Iowa board of parole for investigation and recommendations as to whether the person should be considered for commutation. The board shall conduct an interviewof the class "A" felon and shall make a report of its findings and recommendations to the governor. 

### 902.3 INDETERMINATE SENTENCE. When ajudgment ofconviction of a felony other thana class "A" felony is entered against a person, the court, in imposing a sentence of confinement, shall commit the person into the custody of the director ofthe Iowa department of corrections for an indeterminate term, the maximumlength ofwhich shall not exceed the limits as fixed by section 902.9, unless otherwise prescribed by statute, nor shall the termbe less than the minimum termimposed by law, if a minimumsentence is provided. However, ifthe court suspends a person's sentence under section 321J .2, subsection 2, paragraph "c", the court shall order the offender to serve time in the county jail as provided in section 32112, subsection 2, paragraph "c", notwithstanding any provision to the contrary in section 903.4. 902.3A DETERMINATE SENTENCINGANDADDITIONAL TERM OF YEARS FOR CLASS "D" FELONS. Repealed by 2003 Acts, ch 156, § 22. 902.4 RECONSIDERATIONOF FELON'S SENTENCE. For a period of one year from the date when a person convicted ofa felony, other than a class "A" felony or a felony for which a minimum sentence of confinement is imposed, begins to serve a sentence of confinement, the court, on its own motion or onthe recommendation ofthe director of the Iowa department of corrections, may order the person to be returned to the court, at which time the court may review its previous action and reaffirmit or substitute for it any sentence permitted by law . Copies ofthe order to return the person to the court shall be provided to the attorney for the state, the defendant's attorney, and the defendant. Upon a request of the attorney for the state, the defendant's attorney, or the defendant ifthe defendant has no attorney, 392the court may, but is not required to, conduct a hearing on the issue ofreconsideration of

sentence. The court shall not disclose its decisionto reconsider or not to reconsider the sentence ofconfinement until the date reconsideration is ordered or the date the one-year period expires, whichever occurs first. The district court retainsjurisdiction for the limited purposes of conducting such reviewand entering an appropriate order notwithstanding the timely filing of a notice of appeal . The court's final order in the proceeding shall be delivered to the defendant personally or by regular mail . The court's decision to take the action or not to take the action is not subject to appeal . However, for the purposes of appeal, ajudgment of conviction ofa felony is a finaljudgment when pronounced. 

### 902.5 PLACE OF CONFINEMENT. The director of the Iowa department of corrections shall determine the appropriate place of confinement of any person committed to the director's custody, in any institution administered by the director, and may transfer the person fromone institution to another during the person's period ofconfinement . 902.6 RELEASE. Aperson who has been committed to the custody ofthe director ofthe Iowa department of corrections shall remain in custody until released bythe order of the board of parole, inaccordance with the law governing paroles, or by order of thejudge after reconsideration of a felon's sentence pursuant to section 902.4 or until the maximum termofthe person's confinement, as fixed by law, has been completed. 

### 902.7 MINIMUM

SENTENCE -- USE OF ADANGEROUSWEAPON . At the trial ofa person charged with participating in a forcible felony, if the trier offact finds beyond a reasonable doubt that the person is guilty of a forcible felony and that the person represented that the person was inthe immediate possession and control of a dangerous weapon, displayed a dangerous weapon in a threatening manner, or was armed with a dangerous weapon while participating in the forcible felony the convicted person shall serve a minimum offive years of the sentence imposed by law . Aperson sentenced pursuant to this section shall not be eligible for parole until the person has served the minimum sentence of confinement imposed by this section. 902.8 MINIMUM

SENTENCE - HABITUAL OFFENDER . Anhabitual offender is any person convicted of a class "C" or a class "D" felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, bythe law underwhich the person is convicted, it is so classified at the time of the person's conviction. Aperson sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement ofthree years. 902.8A MINIMUM

SENTENCE FORCONSPIRINGTO MANUFACTURE, OR DELIVERY OF, AMPHETAMINE OR METHAMPHETAMINE TOA MINOR . Aperson who has been convicted for a first violation under section 124.401 D shall not be eligible for parole until the person has served a minimumtermof confinement often years. 393902.9 MAXIMUM SENTENCE FOR FELONS. The maximum sentence for any person convicted of a felony shall be that prescribed by statute or, if not prescribed by statute, ifother than a class "A" felony shall be determined as follows: l . A felon sentenced for a first conviction for a violation ofsection 124.401D, shall be confined for no more than ninety-nine years. 2. Aclass "B" felon shall be confined for no more than twenty-five years. 3. An habitual offender shall be confined for no more than fifteen years. 4. Aclass "C" felon, not an habitual offender, shall be confined for no more than ten years, and in addition shall be sentenced to a fine ofat least one thousand dollars but not more than ten thousand dollars. 5. A class "D" felon, not an habitual offender, shall be confined for no more than five years, and in addition shall be sentenced to a fine ofat least seven hundred fifty dollars but not more than seven thousand five hundred dollars. The surcharges required by sections 911 .1, 911 .2, and 911 .3 shall be added to a fine imposed on a class "C" or class "D" felon, as provided by those sections, and are not a part ofor subject to the maximums set in this section. 902.10 APPLICATION FOR INVOLUNTARY HOSPITALIZATION . For the purposes of chapter 229, the director ofthe Iowa department of corrections is an interested person and all applicable provisions of chapter 229, relating to involuntary hospitalization, applyto persons who have been committed to the custodyofthe Iowa department of corrections as a result ofa conviction ofa public offense. 902.11 MINIMUM

SENTENCE -- ELIGIBILITY OF PRIOR FORCIBLE FELON FOR PAROLE ORWORK RELEASE. Aperson serving a sentence for conviction ofa felony, who has a criminal record of one or more prior convictions for a forcible felony or a crime ofa similar gravity in this or any other state, shall be denied parole or work release unless the person has served at least one-half of the maximum

termof the defendant's sentence. However, the mandatory sentence provided for by this section does not apply ifeither ofthe following apply: 1 . The sentences for the prior forcible felonies expired at least five years before the date of conviction for the present felony. 2. The sentence being served is on a conviction for operating a motor vehicle while under the influence of alcohol or a drug under chapter 321J . 902.12 MINIMUM

SENTENCE FORCERTAIN FELONIES -- ELIGIBILITY FOR PAROLE ORWORK RELEASE. Aperson serving a sentence for conviction of the following felonies, including a person serving a sentence for conviction of the following felonies prior to July 1, 2003, shall be denied parole orwork release unless the person has served at least seven-tenths ofthe maximum termof the person's sentence: 1 . Murder inthe second degree in violation ofsection 707.3. 2. Attempted murder inviolation ofsection 707.11 . 3. Sexual abuse in the second degree in violation ofsection 709.3. 3944. Kidnapping in the second degree inviolation ofsection 710.3. 5. Robbery in the first or second degree in violation of section 711 .2 or ',711 .3. 6. Vehicular homicide in violation ofsection 707.6A, subsection 1 or 2, if the person was also convicted under section 321 .261, subsection 4, based on the same facts or event that resulted in the conviction under section 707.6A, subsection 1 or 2. 

### 902.13 Reserved. 902.14 ENHANCEDPENALTY-- SEXUAL ABUSE ORLASCIVIOUS ACTS WITHA CHILD . 1 . Aperson commits a class "A" felony ifthe person commits a second or subsequent offense involving any combination ofthe following offenses: a. Sexual abuse in the second degree inviolation ofsection 709.3. b. Sexual abuse in the third degree in violation ofsection 709.4 . 

### c. Lascivious acts with a child inviolation ofsection 709 .8, subsection 1 or 2

. 2. In determining ifa violation charged is a second or subsequent offense for purposes of criminal sentencing in this section, each previous violation on which conviction or deferral of judgmentwas entered prior to the date ofthe violation charged shall be consideredandcounted as a separate previous offense, regardless ofwhether the previous offense occurred before, on, or after July 1, 2005. Convictions or the equivalent ofdeferredjudgments for violations in any other states under statutes substantially corresponding to the offenses listed in subsection 1 shall be counted as previous offenses. The courts shalljudicially notice the statutes of other states which define offenses substantially equivalent to the offenses listed in subsection 1 and can therefore be considered corresponding statutes.