Delaware Register of Regulations Issue Date: December 1, 2010 Volume 14 - Issue 6, Pages 500 -591 IN THIS ISSUE: Regulations: Proposed Final Governor: Executive Orders Calendar of Events & Hearing Notices Pursuant to 2 9 Del.C. Chapter 11, Subchapter III , th is iss ue of th e Register co ntains all documents required to be pu blished, and received, on or be fore No vember 15, 2010. INFORMATION ABOUT THE DELAWARE REGISTER OF REGULATIONS DELAWARE REGISTER OF REGULATIONS The Delaware Register of Regulations is an official State publication established by authority of 69 Del. Laws, c. 107 and is published on the first of each month throughout the year. The Delaware Register will publish any regulations that are proposed to be adopted, amended or repealed and any emergency regulations promulgated. The Register will also publish some or all of the following information: • Governor’s Executive Orders • Governor’s Appointments • Agency Hearing and Meeting Notices • Other documents considered to be in the public interest. CITATION TO THE DELAWARE REGISTER The Delaware Register of Regulations is cited by volume, issue, page number and date. An example would be: 14 DE Reg. 24-47 (07/01/10) Refers to Volume 14, pages 24-47 of the Delaware Register issued on July 1, 2010. SUBSCRIPTION INFORMATION The cost of a yearly subscription (12 issues) for the Delaware Register of Regulations is $135.00. Single copies are available at a cost of $12.00 per issue, including postage. For more information contact the Division of Research at 302-744-4114 or 1-800-282-8545 in Delaware. CITIZEN PARTICIPATION IN THE REGULATORY PROCESS Delaware citizens an d othe r in terested p arties may p articipate in the pr ocess b y which a dministrative regulations are adopted, amended or repealed, and may initiate the process by which the validity and applicability of regulations is determined. Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full tex t of su ch proposals, together with copies of the existing regulation being adopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any oth er regulations th at ma y be impacted or affected by the proposal, and shall st ate the manner in wh ich persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public he aring sha ll not be sched uled less than 20 days fo llowing publication of no tice o f the p roposal in the Register of Regulations. If a public hearing will be held on the prop osal, notice of the time, date, pl ace and a summary of the n ature o f the p roposal shall a lso be published in at lea st 2 Delawa re newspapers o f g eneral circulation. The notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 INFORMATION ABOUT THE DELAWARE REGISTER OF REGULATIONS The opportunity for public comment shall be held open for a minimum of 3 0 days after the proposal is published in the Register of Regulations. At the conclusion of all hearings and after receipt, within the time allowed, of all written materials, upo n a ll the testim onial a nd written e vidence and information sub mitted, toge ther with summaries o f the e vidence a nd information b y subordinates, the agency sha ll de termine whether a r egulation should be adopted, amended or repealed and shall issue its conclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2) A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being adopted or amended; (3) A decision to adopt, amend or repeal a r egulation or to take no action and the decision shall be supported by it s findings on the evidence and infor mation received; ( 4) Th e exact te xt an d citation of such re gulation ad opted, am ended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under which the agency has authority to act; and (7) The signature of at least a quorum of the agency members. The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order adopting, amending or repealing a regulation has been published in its final form in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency under §10119. Any person aggrieved by and claiming the unlawfulness of any regulation may bring an action in the Court for declaratory relief. No action of an agency with respect to the making or consideration of a proposed adoption, amendment or repeal of a regulation shall be subject to review until final agency action on the proposal has been taken. When any regulation is the subject of an enforcement action in the Court, the lawfulness of such regulation may be reviewed by the Court as a defense in the action. Except as provided in th e pr eceding section, n o judicial r eview o f a regulation is a vailable u nless a complaint therefor is filed in the Court within 30 days of the day the agency order with respect to the regulation was published in the Register of Regulations. CLOSING DATES AND ISSUE DATES FOR THE DELAWARE REGISTER OF REGULATIONS ISSUE DATE CLOSING DATE CLOSING TIME January 1 December 15 4:30 p.m. February 1 January 17 4:30 p.m. March 1 February 15 4:30 p.m. April 1 March 15 4:30 p.m. May 1 April 15 4:30 p.m. DIVISION OF RESEARCH STAFF Deborah A. Porter, In terim Supervisor; Judi Abbo tt, Administrative S pecialist I; Jeffrey W . Hag ue, Registrar of Regulations; Robert Lupo, Printer; Ruth Ann Melson, Legislative Librarian; Deborah J. Messina, Print Shop Supervisor; Kathleen Morris, Administrative S pecialist I; Debbie Puz zo, Research A nalyst; Don Sellers, Printer; Georgia Roman, Unit Operations Support Specialist; Victoria Schultes, Administrative Specialist II; Rochelle Yerkes, Administrative Specialist II. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 TABLE OF CONTENTS Cumulative Tables............................................................................................................................ ............ 505 PROPOSED DEPARTMENT OF EDUCATION Office of the Secretary 235 Teacher of the Year Award............................................................................................. ............ 510 710 Public School Employees Workday................................................................................ ............ 512 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance Title XIX Medicaid State Plan, Medicaid Recovery Audit Contractor Program...................... ............ 513 Division of Public Health 4455 Delaware Regulations Governing a Detailed Plumbing Code...................................... ............ 517 4458 State of Delaware Food Code Regulations (2011)....................................................... ............ 526 Division of Social Services Delaware Temporary Assistance for Needy Families (TANF) Employment and Training Program, DSSM Sections 3006.1, 3006.2 and 3006.2.1................................................................ ............ 529 DSSM 11004.7, Child Care Subsidy Program....................................................................... ............ 533 DEPARTMENT OF STATE Public Service Commission PSC Regulation 3008, Rules and Procedures to Implement the Renewable Energy Portfolio Standards Act.................................................................................................................. ............ 535 DEPARTMENT OF TRANSPORTATION Division of Transportation Solutions 2403 Special Events Policies and Procedures - Traffic Management................................... ............ 546 FINAL DEPARTMENT OF AGRICULTURE Harness Racing Commission 501 Harness Racing Rules and Regulations, Section 7.0, Rules of the Race...................... ............ 553 DEPARTMENT OF EDUCATION Office of the Secretary 225 Prohibition of Discrimination........................................................................................... ............ 554 505 High School Graduation Requirements and Diplomas................................................... ............ 555 746 Criminal Background Check for Student Teaching......................................................... ............ 557 930 Supportive Instruction (Homebound).............................................................................. ............ 558 Professional Standards Board 1517 Paraeducator Permits................................................................................................... ............ 560 1583 School Psychologist...................................................................................................... ............ 562 DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Medicaid and Medical Assistance Title XIX Medicaid State Plan, Attachment 3.1-A and Attachment 4.19-B, Page 2, School-Based Wellness Center Clinic Services..................................................................................... ............ 563 Durable Medical Equipment (DME) Provider Specific Policy Manual.................................... ............ 567 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 504 TABLE OF CONTENTS Division of Public Health 4459A Regulations for the Childhood Lead Poisoning Prevention Act.................................. ............ 570 DEPARTMENT OF INSURANCE 506 Crop Insurance Adjusters and Producers............................................................................. ............ 507 Workers’ Compensation Insurance Adjusters....................................................................... ............ 573 575 DEPARTMENT OF JUSTICE Fraud and Consumer Protection Division Consumer Protection Unit 103 Consumer Protection Unit Administrative Enforcement Proceedings...................... ............ 577 DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Air and Waste Management 1125 Requirements for Preconstruction Review; 1130 Title V State Operating Permit Program...... 1138 Emission Standards for Hazardous Air Pollutants for Source Categories.................... ............ 1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation................................... ............ 579 581 583 DEPARTMENT OF STATE Public Service Commission PSC Regulation Docket No. 62; Governing the Procedure for Inspection and Copying of Public Records Under the Freedom of Information Act, Regulation 1008 General Regulations ........... 584 GOVERNOR Executive Order: No. 21: Reauthorizing the Delaware Homeland Security Advisory Council with an “All Hazards, All Persons” Approach........................................................................................................... ............ 586 CALENDAR OF EVENTS/HEARING NOTICES Delaware River Basin Commission, Notice of Public Hearing and Business Meeting................... ............ 588 State Board of Education, Notice of Monthly Meeting..................................................................... ............ 588 Dept. of Health and Social Services, Div. of Medicaid and Medical Assistance, Notices of Public Comment Periods............................................................................................ ............ 588 Division of Public Health, Notices of Public Hearing................................................... ............ 588-589 Division of Social Services, Notices of Public Comment Period.............................................. ............ 590 Dept. of State, Public Service Commission, Notice of Public Hearing and Comment Period....... ............ 591 Dept. of Transportation, Div. of Transportation Solutions, Notice of Public Comment Period.... ............ 591 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CUMULATIVE TABLES The table printed below lists the regulations that have been proposed, adopted, amended or repealed in the preceding issues of the current volume of the Delaware Register of Regulations. The regulations are listed alphabetically by the promulgating agency, followed by a citation to that issue of the Register in which th e re gulation was pu blished. Pro posed re gulations ar e desig nated with ( Prop.); Final regulations are designated with (Final); Emergency regulations are designated with (Emer.); and regulations that have been repealed are designated with (Rep.). DELAWARE COUNCIL ON POLICE TRAINING Delaware Council on Police Training....................................................................... 14 DE Reg. 342 (Emer.) DELAWARE RIVER BASIN COMMISSION Amendments to the Water Quality Regulations, Water Code and Comprehensive Plan to Update Water Quality Criteria for Toxic Pollutants in the Delaware Estuary and Extend These Criteria to the Delaware Bay................................................ 14 DE Reg. 70 (Prop.) DEPARTMENT OF AGRICULTURE Harness Racing Commission 501 Harness Racing Rules and Regulations..................................................... 14 DE Reg. 134 (Prop.) 501 Harness Racing Rules and Regulations, Subsection 5.1.8 Substance Abuse/Addiction.......................................................................................... 14 DE Reg. 23 (Final) 502 Delaware Standardbred Breeders’ Fund Regulations, Section 13.0 Races 14 DE Reg. 345 (Prop.) Nutrient Management Program 1201 Nutrient Management Certification Regulations................................. ..... 14 DE Reg. 212 (Prop.) DEPARTMENT OF EDUCATION Office of the Secretary 103 Accountability for Schools, Districts and the State...................................... 14 DE Reg. 347 (Prop.) 225 Prohibition of Discrimination....................................................................... 14 DE Reg. 221 (Prop.) 251 Family Educational Rights and Privacy Act (FERPA)................................. 14 DE Reg. 26 (Final) 405 Minor Capital Improvement Programs........................................................ 14 DE Reg. 135 (Prop.) 14 DE Reg. 454 (Final) 501 State Content Standards............................................................................. 14 DE Reg. 6 (Prop.) 14 DE Reg. 167 (Final) 505 High School Graduation Requirements and Diplomas............................... 14 DE Reg. 222 (Prop.) 545 K to 12 School Counseling Programs......................................................... 14 DE Reg. 28 (Final) 727 Credit for Experience for Educators and for Secretarial Staff..................... 14 DE Reg. 138 (Prop.) 14 DE Reg. 457 (Final) 746 Criminal Background Check for Student Teaching..................................... 14 DE Reg. 227 (Prop.) 920 Educational Programs for English Language Learners (ELLs)................... 14 DE Reg. 103 (Final) 930 Supportive Instruction (Homebound).......................................................... 14 DE Reg. 231 (Prop.) 940 Early Admission to Kindergarten for Gifted Students.................................. 14 DE Reg. 140 (Prop.) 14 DE Reg. 459 (Final) Professional Standards Board 1503 Educator Mentoring ................................................................................. 14 DE Reg. 29 (Final) 1511 Issuance and Renewal of Continuing License.......................................... 14 DE Reg. 295 (Final) 1517 Permits Paraeducators............................................................................. 14 DE Reg. 233 (Prop.) 1521 Elementary Teacher.................................................................................. 14 DE Reg. 83 (Prop.) 14 DE Reg. 299 (Final) 1582 School Nurse............................................................................................ 14 DE Reg. 354 (Prop.) 1583 School Psychologist.................................................................................. 14 DE Reg. 238 (Prop.) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CUMULATIVE TABLES DEPARTMENT OF HEALTH AND SOCIAL SERVICES Division of Long Term Care Residents Protection 3220 Training and Qualifications for Nursing Assistants and Certified Nursing Assistants..................................................................................................... 14 DE Reg. 169 (Final) Division of Medicaid and Medical Assistance Combining §1915(c) Home and Community-Based Services Waivers.............. 14 DE Reg. 88 (Prop.) 14 DE Reg. 461 (Final) Delaware Medicaid and CHIP Managed Care Quality Assessment & Improvement Strategy Draft......................................................................... 14 DE Reg. 361 (Prop.) Durable Medical Equipment (DME) Provider Specific Policy Manual................. 14 DE Reg. 244 (Prop.) Medicaid-Related General Assistance (GA) Program and Temporary Assistance for Needy Families (TANF) Program Changes.......................... 14 DE Reg. 357 (Prop.) Non-Emergency Medical Transportation Services............................................. 14 DE Reg. 103 (Final) Public Assistance Reporting Information System (PARIS)................................. 14 DE Reg. 360 (Prop.) School-Based Wellness Center Clinic Services................................................. 14 DE Reg. 142 (Prop.) DSSM: Citizenship and Alienage....................................................................... 14 DE Reg. 363 (Prop.) Division of Public Health 4455 Delaware Regulations Governing a Detailed Plumbing Code................... 14 DE Reg. 36 (Final) 4459A Regulations for the Childhood Lead Poisoning Prevention Act............... 14 DE Reg. 246 (Prop.) Division of Social Services DSSM: 3000 Temporary Assistance for Needy Families (TANF) -Definition.... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3000.4 TANF and State Only Foster Care............................................ 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3004 Specified Relationship.................................................................. 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3004.1 Living in the Home..................................................................... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3010 Participation and Cooperation in Developing CMR...................... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3018 General Assistance (GA).............................................................. 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3021 Unrelated Children........................................................................ 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3022 Ineligibility Due to Family Cap...................................................... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3027 Age as a Condition of Eligibility.................................................... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3027.2 Minor Parents............................................................................ 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3028.1 Mandatory Composition of Assistance Units............................. 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 3028.2 Optional Composition of Assistance Units................................. 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 4001 Family Budget Group.................................................................... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 4001.1 Examples to Illustrate Rules Regarding Budget Groups........... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 4004.3 Earned Income Disregards in GA.............................................. 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 4007.1 Standards of Need/Payment Standard - GA............................. 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 4009 Determining Financial Eligibility and Grant Amounts in GA.......... 14 DE Reg. 91 (Prop.) 14 DE Reg. 304 (Final) 11003.9.1: Income ................................................................................ 14 DE Reg. 8 (Prop.) 14 DE Reg. 178 (Final) 11003.9.5: Making Income Determinations .......................................... 14 DE Reg. 8 (Prop.) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CUMULATIVE TABLES 11003.9.5: Making Income Determinations ................................... ..... 14 DE Reg. 178 (Final) 11004.2: Interviews .............................................................................. 14 DE Reg. 11 (Prop.) 14 DE Reg. 182 (Final) 11004.9: Authorizing Service ............................................................... 14 DE Reg. 11 (Prop.) 11005.4: Overpayments........................................................................ 14 DE Reg. 15 (Prop.) 14 DE Reg. 187(Final) 11005.4.1: Determine the Overpayment Amount.................................. 14 DE Reg. 15 (Prop.) 11005.4.2: Overpayment Notices.......................................................... 14 DE Reg. 15 (Prop.) 11005.4.3: Role of Audit and Recovery................................................ 14 DE Reg. 15 (Prop.) 11006.3 Service Authorization.............................................................. 14 DE Reg. 39 (Final) Division of Substance Abuse and Mental Health 6001 Substance Abuse Facility Licensing Standards........................................ 14 DE Reg. 18 (Prop.) 14 DE Reg. 471 (Final) DEPARTMENT OF INSURANCE 506 Crop Insurance Adjusters and Producers......................................................... 14 DE Reg. 249 (Prop.) 507 Workers’ Compensatin Insurance Adjusters..................................................... 14 DE Reg. 251 (Prop.) 704 Homeowners Premium Consumer Comparison ............................................... 14 DE Reg. 41 (Final) 901 Arbitration of Automobile and Homeowners’ Insurance Claims (Withdrawn).... 14 DE Reg. 44 (Final) 908 Procedures for Responding to Freedom of Information Requests.................... 14 DE Reg. 144 (Prop.) 14 DE Reg. 479 (Final) 1208 New Annuity Mortality Table for Use in Determining Reserve Liabilities for Annuities...................................................................................................... 14 DE Reg. 48 (Final) 1218 Determining Reserve Liabilities For Credit Life Insurance ............................. 14 DE Reg. 49 (Final) 1404 Long-Term Care Insurance............................................................................. 14 DE Reg. 92 (Prop.) 14 DE Reg. 316 (Final) DEPARTMENT OF JUSTICE Division of Securities Rules and Regulations Pursuant to the Delaware Securities Act...................... 14 DE Reg. 367 (Prop.) 301 Victims’ Compensation Assistance Program Rules and Regulations, Section 28.0 Payment of Claims................................................................. 14 DE Reg. 383 (Prop.) Fraud and Consumer Protection Division 102 Debt Management Services....................................................................... 14 DE Reg. 93 (Prop.) 14 DE Reg. 318 (Final) 103 Consumer Protection Unit Administrative Enforcement Proceedings......... 14 DE Reg. 252 (Prop.) DEPARTMENT OF LABOR Division of Industrial Affairs 1101 Apprenticeship and Training Regulations................................................. 14 DE Reg. 50 (Final) 1327 Notice of Independent Contractor or Exempt Person Status.................... 14 DE Reg. 261 (Prop.) DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL Division of Air and Waste Management 1124 Control of Volatile Organic Compound Emissions, Section 11.0 Mobile Equipment Repair and Refinishing........................................................ ..... 14 DE Reg. 319 (Final) 1125 Requirements for Preconstruction Review................................................ 14 DE Reg. 263 (Prop.) 1130 Title V State Operating Permit Program.................................................... 14 DE Reg. 263 (Prop.) 1138 Emission Standards for Hazardous Air Pollutants for Source Categories. 14 DE Reg. 147 (Prop.) 14 DE Reg. 320 (Final) 1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation............... 14 DE Reg. 264 (Prop.) 1302 Delaware Regulations Governing Hazardous Waste................................ 14 DE Reg. 384 (Prop.) Division of Fish and Wildlife 3214 Horseshoe Crab Annual Harvest Limit..................................................... 14 DE Reg. 406 (Prop.) 3507 Black Sea Bass Size Limit; Trip Limits, Seasons; Quotas........................ 14 DE Reg. 113 (Final) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CUMULATIVE TABLES 3541 Atlantic Sharks.......................................................................................... 14 DE Reg. 191 (Final) 3702 Defnitions.................................................................................................. 14 DE Reg. 117 (Final) 3771 Oyster Harvesting Licensee Requirements............................................... 14 DE Reg. 117 (Final) 3901 Definitions.................................................................................................. 14 DE Reg. 52 (Final) 3902 Method of Take.......................................................................................... 14 DE Reg. 52 (Final) 3903 Federal Laws and Regulations Adopted................................................... 14 DE Reg. 52 (Final) 3904 Seasons.................................................................................................... 14 DE Reg. 52 (Final) 3907 Deer.......................................................................................................... 14 DE Reg. 52 (Final) 3921 Guide License........................................................................................... 14 DE Reg. 52 (Final) 3922 Hunter and Trapper Identification Number................................................ 14 DE Reg. 52 (Final) Division of Parks and Recreation 9202 Regulations Governing Natural Areas and Nature Preserves................... 14 DE Reg. 407 (Prop.) Division of Water Resources 7201 Regulations Governing the Control of Water Pollution, Section 9.5, Concentrated Animal Feeding Operation (CAFO)....................................... 14 DE Reg. 19 (Prop.) 14 DE Reg. 482 (Final) DEPARTMENT OF SAFETY AND HOMELAND SECURITY Office of the Secretary 1101 Regulations Governing Travel Restrictions During a State of Emergency.14 DE Reg. 414 (Prop.) Office of Highway Safety 1201 Driving Under the Influence Evaluation Program, Courses of Instruction, Programs of Rehabilitation and Related Fees............................................. 14 DE Reg. 419 (Prop.) 1204 Drinking Driver Programs Standard Operating Procedures....................... 14 DE Reg. 419 (Prop.) 1206 Approved Motorcycle Helmets and Eye Protection................................... 14 DE Reg. 432 (Prop.) DEPARTMENT OF STATE Division of Historical and Cultural Affairs 100 Historic Preservation Tax Credit Program................................................... 14 DE Reg. 148 (Prop.) 14 DE Reg. 485 (Final) Division of Professional Regulation Delaware Gaming Control Board 101 Regulations Governing Bingo............................................................... 14 DE Reg. 156 (Prop.) 14 DE Reg. 486 (Final) 100 Board of Accountancy................................................................................. 14 DE Reg. 54 (Final) 700 Board of Chiropractic................................................................................... 14 DE Reg. 268 (Prop.) 2700 Board of Registration for Professional Land Surveyors............................. 14 DE Reg. 102 (Prop.) 4400 Delaware Manufactured Home Installation Board..................................... 14 DE Reg. 434 (Prop.) 5100 Board of Cosmetology and Barbering....................................................... 14 DE Reg. 437 (Prop.) 5200 Board of Examiners of Nursing Home Administrators............................... 14 DE Reg. 281 (Prop.) 8800 Boxing and Combative Sports Rules and Regulations.............................. 14 DE Reg. 20 (Prop.) Office of the State Banking Commissioner 103 Freedom of Information Act Requests.................................................. ...... 14 DE Reg. 487 (Final) Public Service Commission 1008 Regulations Governing Requests made pursuant to the Freedom of Information Act............................................................................................. 14 DE Reg. 162 (Prop.) 2002 Regulations Governing Certificates of Public Convenience and Necessity for Water Utilities......................................................................... 14 DE Reg. 120 (Final) 3001 Regulations Governing Service Supplied by Electrical Corporations........ 14 DE Reg. 282 (Prop.) 3008 Rules and Procedures to Implement the Renewable Energy Portfolio Standard....................................................................................................... 14 DE Reg. 284 (Prop.) DEPARTMENT OF TRANSPORTATION Division of Planning and Policy 2307 Delaware Safe Routes to School Regulations.......................................... 14 DE Reg. 56 (Final) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CUMULATIVE TABLES 509 2311 Long-Term Lease Policies and Practices.................................................. 14 DE Reg. 21 (Prop.) 14 DE Reg. 196 (Final) EXECUTIVE DEPARTMENT Office of Management and Budget Freedom of Information Act Regulation............................................................. 14 DE Reg. 57 (Final) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS Symbol Key Arial type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text. Language which is stricken through indicates text being deleted. Proposed Regulations Under 29 Del.C. §10115 whenever an agency proposes to formulate, adopt, amend or repeal a regulation, it shall file notice and full text of su ch p roposals, tog ether with cop ies of the e xisting regulation b eing a dopted, amended or repealed, with the Registrar for publication in the Register of Regulations pursuant to §1134 of this title. The notice shall describe the nature of the proceedings including a brief synopsis of the subject, substance, issues, possible terms of the agency action, a reference to the legal authority of the agency to act, and reference to any other regulations that may be impacted or affected by the proposal, and shall st ate the manner in wh ich persons may present their views; if in writing, of the place to which and the final date by which such views may be submitted; or if at a public hearing, the date, time and place of the hearing. If a public hearing is to be held, such public he aring sha ll not be sched uled less than 20 days fo llowing publication of no tice o f the p roposal in the Register of Regulations. If a public hearing will be held on the prop osal, notice of the time, date, plac e and a summary of the nature o f th e p roposal shall a lso be pu blished in at lea st 2 Dela ware newsp apers o f g eneral circulation. The notice shall also be mailed to all persons who have made timely written requests of the agency for advance notice of its regulation-making proceedings. DEPARTMENT OF EDUCATION OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 235 PUBLIC NOTICE 235 Teacher of the Year Award Education Impact Analysis Pursuant To 14 Del.C. Section 122(D) A. Type of Regulatory Action Required Reauthorization of Existing Regulation B. Synopsis of Subject Matter of the Regulation The Secretary of Education seeks to reauthorize 14 DE Admin. Code 235 Teacher of the Year Award as part of the five-year review cycle. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before January 6, 2011 to Susan Haberstroh, Education Associate, Regulation Review, Department of Education, at 401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation is available from the above address or may be viewed at the Department of Education business office. C. Impact Criteria 1. Will the amended regulation help improve student achievement as measured against state achievement standards? The regulation is readopted as part of the 5 year review cycle. 2. Will the amended regulation help ensure that all students receive an equitable education? The regulation is readopted as part of the 5 year review cycle. 3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The regulation is readopted as part of the 5 year review cycle. 4. Will the amended regulation help to ensure that all students’ legal rights are respected? The regulation is readopted as part of the 5 year review cycle. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and school level? The regulation is readopted as part of the 5 year review cycle. 6. Will the amended regulation place unnec essary reporting or administrative requireme nts or mandates upon decision makers at the local board and school levels? The regulation is readopted as part of the 5 year review cycle. 7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The entity for decision making and accountability will not change. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational po licies, in p articular to state educational p olicies a ddressing a chievement in the cor e academic subjects of mathematics, science, language arts and social studies? The regulation is readopted as part of the 5 year review cycle. 9. Is there a le ss burdensome method for addressing the purpose of the regulation? There is not a less burdensome method for addressing the purpose of this regulation. 10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no cost to the local school boards. 235 Teacher of the Year Award This pr ogram sh all b e a dministered in accordance with 14 De l.C. Ch. 89, a nd th e follo wing rules and regulations. 1.0 Qualifications To be considered for the Teacher of the Year award a person shall: 1.1 Have taught, continuously or in termittently, for an accumulative pe riod o f three yea rs or mo re in a Delaware public school previous to the date of such person's nomination. 1.2 Have been formally nominated. 1.3 Be actively teaching in their district or charter school in this state at the time of their nomination. 1.4 Continue to actively teach in the nominating district or charter school for the duration of the school year of their nomination. 1.4.1 If the nominee chooses to leave the district or charter school during the selection period the district or charter school shall submit another nominee. 1.5 Meet all the requirements for a Standard Certificate for the position held and hold a valid and current license, as approved by the Professional Standards Board, Department of Education and the State Board of Education. 7 DE Reg. 1178 (3/1/04) 9 DE Reg. 1182 (2/1/06) 2.0 Nominations The following shall apply in preparing nominations in accordance with the requirements of the Act. 2.1 The Department of Education shall meet annually with the district coordinators of the Teacher of the Year Program and the representative for the charter schools for the purpose of providing them with detailed instru ctions and proper form s for th e pr esentation of nom inees. Each d istrict is in vited to nominate one te acher emp loyed by the district and th e ch arter sch ools ar e invited to sele ct one nominee to represent all of the charter schools. 2.1.1 Nominees shall be skillful and dedicated teachers, prekindergarten thro ugh grade 12. Administrative pe rsonnel such as principals an d gu idance co unselors a re n ot eligi ble to be considered for State Teacher of the Year. Nominees for State Teacher of the Year who are not actively eng aged in teaching in a p ublic sch ool a t the tim e at wh ich ob servations a re made pursuant to Section 2.2 below shall be disqualified. 2.2 Nominees shall su bmit a po rtfolio de scribing themselves an d setting for th their p ositions on educational issues. Format will be based on the National Teacher of the Year program. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 2.3 Following the submission of the po rtfolios, selected Department of Ed ucation st aff members and selected former state and local district Teachers of the Yearshall be assigned in pairs to read the portfolios of two no minees an d o bserve those nominees in the classroom ba sed o n the cr iteria stipulated in th e Teacher of th e Year Program Guide th at is up dated each year. Anothe r gr oup of Department of Education Staff members shall be assigned to read all of the portfolios and rate them based on forms found in the Teacher of the Year Program Guide. Based on the numerical ratings from both the portfolio readers and from the observations, three nominees shall be identified as finalists for consideration by a panel of judges. 2.4 The panel of judges shall include: the current State Teacher of the Y ear; the President of the State Congress of Parents and Teachers; the President of the State Student Council Association; a member of the State Board of Education; a representative of the Chamber of Commerce; the President of the Delaware S tate Education Ass ociation; and the Ch air of the Pro fessional S tandards Boar d or , if necessary, their designees. 2.5 The ju dges shall recommend one pe rson for the Secretary o f Education to d eclare a s the State Teacher of the Year. 3 DE Reg. 104 (7/1/99) 7 DE Reg. 1178 (3/1/04) 9 DE Reg. 1182 (2/1/06) OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 710 PUBLIC NOTICE 710 Public School Employees Workday Education Impact Analysis Pursuant To 14 Del.C. Section 122(D) A. Type of Regulatory Action Required Reauthorization of Existing Regulation B. Synopsis of Subject Matter of the Regulation The Secretary of Education seeks to reauthorize 14 DE Admin. Code 710 Public School Employees Workday as part of the five-year review cycle. Persons wishing to present their views regarding this matter may do so in writing by the close of business on or before January 6, 2011 to Susan Haberstroh, Education Associate, Regulation Review, Department of Education, at 401 Federal Street, Suite 2, Dover, Delaware 19901. A copy of this regulation is available from the above address or may be viewed at the Department of Education business office. C. Impact Criteria 1. Will the amended regulation help improve student achievement as measured against state achievement standards? The regulation is readopted as part of the 5 year review cycle. 2. Will the amended regulation help ensure that all students receive an equitable education? The regulation is readopted as part of the 5 year review cycle. 3. Will the amended regulation help to ensure that all students’ health and safety are adequately protected? The regulation is readopted as part of the 5 year review cycle. 4. Will the amended regulation help to ensure that all students’ legal rights are respected? The regulation is readopted as part of the 5 year review cycle. 5. Will the amended regulation preserve the necessary authority and flexibility of decision making at the local board and school level? The regulation is readopted as part of the 5 year review cycle. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 6. Will the amended regulation place unnec essary reporting or administrative requireme nts or mandates upon decision makers at the local board and school levels? The regulation is readopted as part of the 5 year review cycle. 7. Will the decision making authority and accountability for addressing the subject to be regulated be placed in the same entity? The entity for decision making and accountability will not change. 8. Will the amended regulation be consistent with and not an impediment to the implementation of other state educational po licies, in p articular to state educational p olicies a ddressing a chievement in the cor e academic subjects of mathematics, science, language arts and social studies? The regulation is readopted as part of the 5 year review cycle. 9. Is there a le ss burdensome method for addressing the purpose of the regulation? There is not a less burdensome method for addressing the purpose of this regulation. 10. What is the cost to the State and to the local school boards of compliance with the regulation? There is no cost to the State or local school boards for compliance with the regulation. 710 Public School Employees Workday 1.0 Required Work Hours Absent an existing collective bargaining agreement to the contrary, district employees who work less than the specified time shall have their annual salary adjusted accordingly. Upon ratification of a new or extension of an existing collective bargaining agreement, the local district shall establish hours and days worked th at are consistent wit h th ose sp ecified b elow. Other wise, effective July 1, 2001 a workday for public school employees shall be defined as follows: 1.1 Teacher, a minimum of 7 1/2 hours, inclusive of 1/2 hour for lunch, plus the amount of time required for the discharge of such duties and services as may be reasonably expected and required of a member of the professional staff of a public school. (14 Del.C. §1305 defines the number of teacher workdays per year and 14 Del.C. §1328 defines the duty free period.) 1.2 Aide and Paraprofessional, a minimum of 7 1/2 hours inclusive of 1/2 hour for lunch. 1.3 Custodian, a minimum of 8 hours inclusive of 1/2 hour for lunch. 1.4 Administrator, a minimum of 7 1/2 hours exclusive of lunch plus the amount of time required for the discharge of such duties and services as may be reasonably expected and required of a member of the professional staff of a public school. 1.5 Food Service Manager, a minimum of 7 hours exclusive of lunch. 1.6 Secretary, a minimum of 7 1/2 hours exclusive of lunch. 3 DE Reg. 1077 (2/1/00) 4 DE Reg. 1254 (2/1/01) 9 DE Reg. 1183 (2/1/06) DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) PUBLIC NOTICE Medicaid Recovery Audit Contractor Program In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 5 12, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is amending the Title XIX Medicaid DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS State Plan to comp ly with se ction 64 11 of th e Af fordable Ca re Act re garding the Medicaid Recovery A udit Contractor Program. Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Planning & Policy Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to 302-255-4425 by December 31, 2010. The action concerning the determination of whether to adopt the pro posed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. SUMMARY OF PROPOSAL The proposal amends the Title XIX Medicaid State Plan to comply with section 6411 of the Affordable Care Act which amends section 1902(a)(42) of the Social Security Act (the Act) requiring States to establish programs to contract with RACs to audit payments to Medicaid providers by December 31, 2010. Statutory Authority The Patient Protection and Affordable Care Act, Public Law 111-148, Section 6411, Expansion of the Recovery Audit Contractor (RAC) program. Background State Medicaid RACs Under Section 1902(a)(42)(B)(i) of the Act, States and Territories are required to establish programs to contract with one or more Medicaid RACs for the purpose of identifying underpayments and overpayments and recouping overpayments under the State plan and under any waiver of the State plan with respect to all services for which payment is made to any entity under such plan or waiver. States must establish these programs in a man ner consistent with S tate law, and generally in the same manner as the Secretary contracts with contingency fee contractors for the Medicare RAC program. The Centers for Medicare and Medicaid Services (CMS) will allow States to maintain flexibility in the design of Medicaid RAC program requirements and the number of entities with which the States elect to contract within the parameters of th e statutory requirements. There are a number of o perational and policy considerations in State Medicaid RAC program design (some of which will be discussed in greater depth in future rulemaking) such as: a. Qualifications of Medicaid RACs; b. Required personnel - for example physicians and certified coders; c. Contract duration; d. RAC responsibilities; e. Timeframes for completion of audits/recoveries; f. Audit look-back periods; g. Coordination with other contractors and law enforcement; h. Appeals; and i. Contingency fee considerations. Contingency Fees Sections 1902(a)(42)(B)(ii)(I) and (II) of the Act provide that payments to Medicaid RACs are to be made only from amounts “recovered” on a contingent basis for collecting overpayments and in amounts specified by the State for identifying underpayments. CMS will not dict ate c ontingency fee rate s, but w ill establish a maximum contingency rate for which F ederal Financial participation (FFP) will be available. This rate will be the highest contingency fee rate that is paid by CMS under the Medicare RAC program. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS Appeals Section 1902(a)(42)(B)(ii)(III) of the Act requires States to have an adequate process for entities to appeal any adverse decisions made by the Medicaid RACs. Each State has existing administrative appeals processes with respect to audits of Medicaid providers. So long as States are able to accommodate Medicaid RAC appeals within their existing Medicaid provider appeal structure, CMS is not requiring States to adopt a new administrative review infrastructure to conduct Medicaid RAC appeals. Reporting States will be required to report to CMS their contingency fee rates, along with other Medicaid RAC contract metrics such as the number of audits conducted, recovery amounts, number of cases referred for potential fraud, contract periods of performance, contractors’ names, and other factors such as whether a State has implemented provider or service-specific Medicaid RACs. States will report certain elements of this information via the quarterly Form CMS-64, and other information via separate data reporting forms CMS will require. Coordination Section 1902(a)(42)(B)(ii)(IV)(cc) of the Act requires that CMS ensure that States and their Medicaid RACs coordinate their recovery audit efforts with other entities. Summary of Proposal In a ccordance with th e st atutory requirements of Sectio n 64 11 of th e Af fordable Ca re Act, th e Divisio n of Medicaid and Med ical Assist ance (DMM A) inten ds to subm it a S tate pla n am endment (SP A) th rough wh ich Delaware will attest that it will establish a compliant Medicaid RAC program by December 31, 2010. State programs to contract with Medicaid RACs are not required to be fully operational by December 31, 2010. However, CMS expects States to fully implement their RAC programs by April 1, 2011. The provisions of this state plan amendment are subject to approval by the Centers for Medicare and Medicaid Services (CMS). Fiscal Impact Statement This revision imp oses no in crease in co st on the General Fun d; however, there is the p otential for administrative and system change costs. DMMA PROPOSED REGULATION #10-51 REVISION: Revision: CMS OMB No. STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT State/Territory DELAWARE SECTION 4 – GENERAL PROGRAM ADMINISTRATION 4.5 Medicaid Recovery Audit Contractor Program DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS The State has established a program under which it will contract with one or more recovery audit contractors (RACs) for the purpose of identifying Section 1902(a)(42)(B)(i) Citation underpayments and overpayments of Medicaid claims under the State plan of the Social Security Act and under any waiver of the State plan. ____The State is seeking an exception to establishing such program for the following reasons: Section 1902(a)(42)(B)(ii)(I) _____The State/Medicaid agency has contracts of the type(s) listed in of the Act section 1902(a)(42)(B)(ii)(I) of the Act. All contracts meet the requirements of the statute. RACs are consistent with the statute. Place a check mark to provide assurance of the following: The State will make payments to the RAC(s) only from amounts recovered. The State will make payments to the RAC(s) on a contingent basis for collecting overpayments. The following payment methodology shall be used to determine State Section 1902 (a)(42)(B)(ii)(II)(aa) payments to Medicaid RACs for identification and recovery of overpayments of the Act (e.g., the percentage of the contingency fee): The State attests that the contingency fee rate paid to the Medicaid RAC will not exceed the highest rate paid to Medicare RACs, as published in the Federal Register. _____ The State attests that the contingency fee rate paid to the Medicaid RAC will exceed the highest rate paid to Medicare RACs, as published in the Federal Register. The State will only submit for FFP up to the amount equivalent to that published rate. _____The contingency fee rate paid to the Medicaid RAC that will exceed the highest rate paid to Medicare RACs, as published in the Federal Register. The State will submit a justification for that rate and will submit for FFP for the full amount of the contingency fee. The following payment methodology shall be used to determine State payments to Medicaid RACs for the identification of underpayments (e.g., amount of flat fee, the percentage of the contingency fee): Section 1902 (a)(42)(B)(ii)(II)(bb) of the Act The Medicaid RAC will be paid an equivalent percentage contingency fee for the identification of underpayments. The State has an adequate appeal process in place for entities to appeal Section 1902 (a)(42)(B)(ii)(III) any adverse determination made by the Medicaid RAC(s). of the Act The State assures that the amounts expended by the State to carry out the program will be amounts expended as necessary for the proper and efficient administration of the State plan or a waiver of the plan. Section 1902 (a)(42)(B)(ii)(IV)(aa) of the Act The State assures that the recovered amounts will be subject to a State’s quarterly expenditure estimates and funding of the State’s share. Section 1902(a)(42)(B)(ii)(IV)(bb) of the Efforts of the Medicaid RAC(s) will be coordinated with other contractors Act or entities performing audits of entities receiving payments under the State plan or waiver in the State, and/or State and Federal law enforcement Section 1902 entities and the CMS Medicaid Integrity Program. (a)(42)(B)(ii)(IV)(cc) of the Act DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS DIVISION OF PUBLIC HEALTH Statutory Authority: 16 Delaware Code, Section 7906(e) (16 Del.C. §7906(e)) 16 DE Admin. Code 4455 PUBLIC NOTICE 4455 Delaware Regulations Governing a Detailed Plumbing Code The Department of Health and Social Services, Division of Public Health is proposing regulations which amend Title 16 of the Delaware Code relating to th e adoption and enforcement of a Un ified Plumbing Code. Title 16, Section 7906(e), created by House Bill 488 and signed into law on July 27, 2010, requir es that the Divis ion of Public Health shall issue plumbing permits and shall assess a $100 fee for each permit, except that no permit shall be re quired or fe e a ssessed for the r eplacement of an ex isting fix ture, p iece o f e quipment or re lated pipin g, including but not limited to hot water heaters and water conditioning systems. The Division of Public Health has proposed amended regulations governing a Detailed Plumbing Code to address this mandate. On December 1, 2010, the Division pla ns to publish proposed ame ndments to the D elaware Regula tions Governing a D etailed Plumbing Code and hold them out for public comment per Delaware law. NOTICE OF PUBLIC HEARING The Health Systems Protection Section, under the Division of Public Health, Department of Health and Social Services (D HSS), will hold a public hearing to discuss pr oposed am endments to th e De laware Reg ulations Governing a Detailed Plumbing Code. Title 16, Section 7906(e), created by House Bill 488 and signed into law on July 27, 2010, requires that the Division of Public Health shall issue plumbing permits and shall assess a $100 fee for each permit, except that no permit shall be required or fee assessed for the replacement of an existing fixture, piece of equipment or related piping, including but not limited to hot water heaters and water conditioning systems. The Division of Public Health has proposed amended regulations governing a Detailed Plumbing Code to address this mandate. The public hearing will be held on De cember 22, 2010 at 10:00 a.m. in the Third Floor Conference Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. Copies of the proposed regulations are available for review in the November 1, 2010 edition of the Delaware Register of Regulations, access ible online at: http://regulations.delaware.gov or by callin g the Of fice of Health Systems Protection at (302) 856-5496. Anyone wishing to present his or her oral comments at this hearing should contact Ms. Deborah Harvey at (302) 744-4700 by December 20, 2010. Anyone wishing to submit written comments as a supplement to or in lieu of oral testimony should submit such comments by December 31, 2010 to: Deborah Harvey, Hearing Officer Division of Public Health 417 Federal Street Dover, DE 19901 Fax (302) 739-6659 4455 Delaware Regulations Governing a Detailed Plumbing Code 1.0 State of Delaware Plumbing Code These Regulations shall hereby be known as the “State of Delaware Plumbing Code”. 14 DE Reg. 37 (07/01/10) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 2.0 Adoption of International Plumbing Code. The State of Delaware Plumbing Code adopts, as if fully set forth herein, “The International Plumbing Code 2009” as amended herein: 2.1 Amend Subsection 101.1 by deleting the subsection in its entirety. 2.2 Amend Subsection 101.2 by deleting the subsection in its entirety and by inserting in lieu thereof the following: “T he pr ovisions of this Code sha ll ap ply to the er ection, installation, alteration, rep air, relocation, replacement, addition to, use or maintenance of plumbing systems within this jurisdiction.” 2.3 Amend Subsection 102.2 by deleting the subsection in its entirety and by inserting in lieu thereof the following: “The legal use and occupancy of any structure existing on the effective date of this Code, or for wh ich it had bee n h eretofore ap proved, ma y be con tinued wi thout chan ge exce pt as may b e specifically covered in this Code or deemed necessary by the Deputy Code Official(s) for the general safety and welfare of the occupants and the public. Exception: Except that upon change of permit holder in facilities and operations regulated by the Delaware Division of Public Health such systems shall comply with the requirements of this Code and applicable regulations promulgated and standards established by the Delaware Division of Public Health.” 2.4 Amend Subsection 102.4 by deleting the second paragraph in its entirety. 2.45 Amend Subsection 1 02.10 by deleting the wor ds “local, state or federal law” and inserting in lieu thereof the following: “the Delaware Code.” 2.56 Amend Subsection 104.1 by deleting the subsection in its entirety and by inserting in lieu thereof the following: “For the purpose of this document the term “Code Official” refers to the Secretary of the Delaware Department of Health and Social Services, or his/her designee. “Plumbing Inspectors” shall have such duties and powers as are enumerated in Title 16, Section 7907 of the Delaware Code and shall have the authority of a Deputy Code Official as referenced in Section 103.3 of this Code.” 2.67 Amend Subsection 10 6.6.3 by adding thereto a n ew nu mbered paragraph f ollowing n umbered paragraph “3” to read as follows: “4. The State of Delaware Plumbing Code Office does not refund plumbing p ermit fe es.” Amend Subsection 10 6.1 by adding a n ew sentence at the end of the subsection paragraph to read as follows: “The Division of Public Health shall issue plumbing permits and a $100 fee shall be assessed for all plumbing permits issued by the Division of Public Health. All revenue ge nerated sh all be r etained by th e Division of Pub lic Hea lth in order to de fray co sts associated with the plumbing inspection program.” 2.7.1 Amend Subsection 106 .2 by ad ding th ereto a new nu mbered p aragraph following nu mbered paragraph “2” to read as follows: “3. No permit or fee is required by the Div ision of Public Health for the replacement of an existing fixture, piece of equipment or related piping, including but not limited to hot water heaters and water conditioning systems.” 2.7.2 Amend Subsection 106.2 by adding thereto a new numbered paragraph following paragraph “3” to read as follows: “4. The relocation of any plumbing fixture and related pipe requires a permit.” 2.7.3 Amend Subsection 106.2 by adding thereto a new numbered paragraph following paragraph “4” to read as follows: “5. Any new non potable fixture, piece of equipment, or system that connects to the potable water supply shall require a permit and shall meet the provisions of this Code.” 2.7.4 Amend Subsection 106.6.3 by adding thereto a new numbered paragraph following paragraph “3” to read as follows: “4. The Division of Public Health does not refund plumbing permit fees.” 2.78 Amend Subsection 108.1 by deleting the subsection in its entirety and by inserting in lieu thereof the following: “It shall be unlawful for any person to work as a licensed plumber in the State of Delaware unless such person has received a license from the Delaware Department of Administrative Services, Division of Professional Regulation, showing that said person has been duly licensed as a plumber, except as provided by Title 24, Section 1807(c) of the Delaware Code, and has a permit issued by the Delaware Division of Public Health. Exception: The hom eowner o f a single -family r esidence o ccupied, o r to b e occup ied b y th e homeowner and not for sale, rent or lease, may perform plumbing work only on such residence DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS itself or auxiliary structures, and in compliance with a permit issued by the Delaw are Division of Public Health, or applicable authority, and in compliance with all provisions of these regulations.” 2.89 Amend Subsection 108.4 by deleting the subsection in its entirety and by inserting in lieu thereof the following: “Any person who shall violate any provisions of this Code, or shall fail to c omply with the requirements thereof, or who shall install plumbing work in violation of an approved plan or directive of the Code Official or the Deputy Code Official(s), or of a permit or certificate issued under the provisions of this Code, shall be subject to penalties as provided by Title 16, Chapter 79 of the Delaware Code.” 2.910 Amend Subsection 108.5 by deleting the words: “shall be liable to a fine of not less than [AMOUNT] dollars or more than [AMOUNT] dollars” as it appears therein and inserting in lieu thereof the following: “shall be subject to penalties as provided by Title 16, Chapters 1 and 79 of the Delaware Code.” 2.1011 Section 202 General Definitions 2.1011.1 Amend Section 202 by adding thereto a new definition after the definition “Leader” and before the definition “Local Vent Stack” t o r ead a s f ollows: “ Licensed Pl umber. A person who h as complied with the provisions of the Delaware Division of Professional Regulation and the Board of Plumbing Exa miners, and has fur ther met th e certification, testing, bo nding, an d licensing requirements of the ju risdiction in which he/she plans to engage in the business of plumbing. A Licensed Plum ber sh all be re cognized as be ing re sponsible fo r a ll wo rk pe rformed und er a plumbing permit issued by the Delaware Division of Public Health.” 2.1011.2 Amend Section 202 by ad ding thereto a new de finition after the definition “ Soil Pipe ” and before the definition “ Spillproof Vacuum Breaker” to read as follows: “Solvent cement. The sealant used to connect pipes and fittings. This Code prohibits the use of all purpose glue in any reference to solvent cement.” 2.1011.3 Amend Section 202 by adding thereto a new definition after the definition “Sump Vent” and before the definition “Supports” to read as follows: “Supervision of Wo rk. Work completed under the permit of a licensed plumber while employed by the licensed plumber, or the same firm, partnership, corporation, or owners of the company as the licensed plumber.” 2.11.4 Amend Section 202 by amending the definition of “Building Drain” by deleting the reference “30” between the words “extends” and “inches” and replacing with the words “5 feet”.” 2.1112 Amend Subsection 305.6.1 by deleting the subsection in its entirety. 2.1213 Amend Subsection 31 2.3 by ad ding th ereto af ter th e last sentence the following: “In lieu of the presence of the Deputy Code Official witnessing the test, the Licensed Plumber may certify in writing upon a prescribed formthat the plumbing system piping is in accordancewith Section 312 of these regulations. This shall be applicable between November 1 and April 1 of each calendar year.” 2.1314 Amend Subsection 312.4 by deleting the subsection in its entirety. 2.1415 Amend Subsection 404.1 by deleting the subsection in its entirety and by inserting in lieu thereof the following: “All regulations pertaining to handicapped facilities in the International Plumbing Code will be governed by the most recent edition of the “American National Standards Institute (ANSI).” 2.1516 Amend Section 407 by adding thereto a new subsection after subsection 407.4 to read as follows: “407.5 Ov erflow dev ices. Ove rflow de vices o n all ba thtubs shall b e eva luated by th e Divisio n of Public Health on a case by case basis.” 2.1617 Amend Subsection 502.1 by adding thereto after the last sentence the following: “The first 12 inches of both hot and cold water lines shall be thermally rated for maximum water temperature produced by the hot water heater.” 2.1718 Amend Subsection 504.6 by adding thereto a new numbered paragraph after numbered paragraph “13” to read as follows: “14. The discharge valve shall be equipped with an approved heat transfer fitting or metallic pipe.” 2.1819 Amend Table 604 .3 by ad ding th ereto in th e secon d ro w, fir st colum n, af ter th e wor ds “Ba thtub, balanced-pressure, th ermostatic o r combination b alanced pressure/thermostatic m ixing va lve” the following: “for hand held shower fixtures.” 2.1920 Amend Table 605.3 by deleting in th e parenthetical in the seventh row, first column after the words “Copper or copper-alloy tubing” the letters “M” and “WM”. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 2.2021 Amend Table 605.4 by deleting in the parenthetical in the fifth row, first column after the words “Copper or copper-alloy tubing” the letters “M” and “WM”. 2.2122 Amend Subsection 605.16.2 by adding thereto after the words “above or below ground” the following sentence: “The use of all purpose glue is prohibited.” 2.2223 Amend Subsection 607.3 by adding thereto after the words “in accordance with Section 607.3.1 and 607.3.2” the follo wing: “All public water inst allations shall b e required to have an exp ansion t ank installed.” 2.2324 Amend Subsection 60 8.3 by adding th ereto a n ew su bsection a fter s ubsection 608.3.1 t o r ead: “608.3.2 Special eq uipment, water sup ply pro tection. There shall be suf ficient sp ace ar ound special equipment for accessibility.” 2.2425 Amend Subsection 903.2 by adding thereto after the first sentence the following sentence: “The stack shall be no less than 2 inches in diameter.” 2.2526 Amend Subsection 903.3 by deleting the words “or to a stack-type air admittance valve in accordance with Section 917.” 2.2627 Amend Subsection 912.1 by deleting the last sentence in its entirety. 2.2728 Amend Subsection 917.1 by adding thereto after the last sentence the following: “ Air admittance valves shall be approved by the Deputy Code Official prior to use or installation.” 2.2829 Amend Section 919 by deleting the section in its entirety. 2.2930 Amend Subsection 1003.3.4 by adding thereto in the last sentence after the words “shall be installed in accordance with the manufacturer’s instructions” the followin g: “or be otherwise approved by the Code Official.” 2.3031 Amend Chapter 12 by deleting the Chapter in its entirety. 14 DE Reg. 37 (07/01/10) 3.0 Miscellaneous Provisions 3.1 Procedures for License. Every person desiring to register as a plumber engaged in the business of plumbing in the State of Delaware shall file an application with the Delaware Division of Professional Regulation. 3.2 Variances 3.2.1 Permission for a variance. Upon receipt of a written application for a variance, the Deputy Code Official may recommend granting written permission to vary from particular provisions set forth in these Regulations, when the extent of the variation is clearly specified and it is documented to the Secretary of the Delaware Dep artment o f Health a nd Social Se rvices or h is/her appointed designee’s satisfaction that: 3.2.1.1 Such variation is necessary to obtain a beneficial use of an existing facility; 3.2.1.2 The variation is necessary to prevent a practical difficulty or unnecessary hardship; and 3.2.1.3 Appropriate alternative measures have been taken to protect the health and safety of the public and assure that the purpose of the provisions from which the variation is sought will be observed. 3.2.2 Time for recommendation. Within thirty (30) business days of the receipt of a written application for a variance, the Deputy Code Official shall recommend either: granting the variance, denying the variance or requesting further information from the applicant. 3.2.3 Appeal of denial. If the applicant has been denied a variance upon the recommendation of the Deputy Code Official, the applicant may appeal the decision by filing a written Notice of Appeal to the Secretary of the Delaware Department of Health and Social Services, or his/her designee. 14 DE Reg. 37 (07/01/10) 4.0 Special Provisions Regarding Plumbing For Food Establishments 4.1 Scope. Thes e S pecial Provis ions s hall be followed in add ition to an d shall n ot supersede the International Plumbing Code, the Delaware Food Code or these Regulations. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 4.2 Use of Licensed Plumber. All plumbing shall be installed by a licensed plumber under a valid, current plumbing permit in accordance with these Regulations. 4.3 Water Supply and Sewage Disposal 4.3.1 No further evaluation. Water Supply and Sewage Disposal Facilities serv ed by a public water supply and sewage system do not require further evaluation. 4.3.2 Private we lls. Private wells must comply with ch emical an d bacter iological s tandards; a satisfactory analysis is required before an operating permit may be issued. 4.3.3 Individual systems. Individual sewage disposal systems require the approval of the Department of Natural Resources and Environmental Control prior to operating the food establishment. 4.4 Backflow Prevention 4.4.1 Air gap, supply. An air gap between the water supply and the flood rim level of the plumbing fixture, equipment, or nonfood equipment shall be at least twice the diameter of the water supply inlet and may not be less than 25 mm (1 inch). (See also DE Food Code, §5.202). 4.4.2 Air gap, drainage. A direct connection may not exist between the sewage system and a dr ain originating from equipment in which food, portable equipment, or utensils are placed, except that this r equirement does no t a pply to floor d rains that o riginate in r efrigerated spaces tha t are constructed as an integral part of the building, and except that this requirement does not apply to a warewashing machine with a direct connection between its waste outlet and a floor drain when the machine is lo cated within 1.5 m ( 5 fee t) of a trapped flo or dr ain a nd th e ma chine outlet is connected to the inlet side of a properly vented floor drain trap. Equipment and fixtures utilized for the storage, preparation and handling of food shall discharge through an indirect waste pipe by means of an air gap. (See also IPC2009 § 802.1.1). 4.4.3 Floor drains. Floor drains located within walk-in refrigerators or freezers in food establishments shall be indirectly connected to the sanitary drainage system by means of an air gap except as allowed in IPC2009 § 2.24.3.2. (See also IPC2009, § 802.1.2) 4.4.4 Backflow pre vention de vice. A ba ckflow or ba ck sipho nage p revention d evice installed on a water supply system shall meet American So ciety of Sanitary Engineering (ASSE) standards for construction, ins tallation, ma intenance, inspection, an d testing for that sp ecific app lication and type of device. (See also DE Food Code, § 5-202.14). 4.4.5 Plumbing fixtures. The supply lines or fittings for every plumbing fixture shall be installed so as to prevent backflow. Plumbing fixture fittings shall provide backflow protection in accordance with ASSE A112.18.1. (See also IPC2009, § 608.2). 4.4.6 Devices, ap pliances. All devices that connec t to the wa ter sup ply shall be provided with protection a gainst backflow. Th is in cludes devices used for food pr eparation an d pro cessing, steamers, the storage of ice or food, warewashing machines, and other food service equipment. (See also IPC2009, § 608.3) 4.4.7 Hose connections. Sillcocks, hose bibs, wall hydrants and other openings with a hose connection shall be pr otected by an atmospheric-type or pr essure-type vacuum br eaker or a permanently attached hose connection vacuum breaker. This subsection does not apply to water heater drain valve or clothes washing machines. (See also IPC2009, § 608.15.4.2). 4.4.8 Beverage dispensers. The water supply connection to carbonated beverage dispensers shall be protected against backflow by a backflow preventer co nforming to ASSE 1022 or by an air gap. The portion of the backflow preventer device downstream from the second check valve and the piping downstream therefrom shall not be affected by carbon dioxide gas. (See also IPC2009, § 608.16.1). 4.5 Utility Service Installation 4.5.1 Installation location. Utility lines including gas , plumbing and electrical shall be installed inside walls, above ceilings or below floo rs whenever s tructurally prac tical, and in acc ordance with applicable code requirements. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 4.5.1.1 Front of wall lines. If lines are run in front of walls, lines shall be installed with stand-off brackets or other secure mounting method, such that a minimum clearance of one inch (1”) exists between line and wall. 4.5.1.2 No floor installation. Exposed horizontal utility service, including water supply and drain lines, may not be installed on the floor. 4.6 Joint Sealing 4.6.1 Joint sealing. Joints formed by fixtures in contact with walls or floors shall be seale d with an approved sealant. Where installation does not allow access for cleaning, fixtures shall be sealed to walls or adjoining equipment. Where not structurally practical, a minimum gap of one inch (1”) shall exist between the fixture and walls or adjoining equipment. 4.7 Toilet Facilities 4.7.1 Number required. At least one (1) toilet and not fewer than the toilets required by law shall be provided. If authorized by law and urinals are substituted for toilets, the substitution shall be done as specified by law. (See also DE Food Code, § 5-203.12). 4.7.2 Handwashing facility. A handwashing facility shall be located in, or immediately adjacent to, toilet rooms. (See also DE Food Code, § 5-204.11). 4.7.3 Toilet room. A toilet room shall be completely enclosed and provided with a tight-fitting and self- closing door, except that this requirement does not apply where a toilet room is located outside a food establishment and does not open directly into the food establishment such as a t oilet room that is provided by the management of a shopping mall. (See also DE Food Code, § 6-202.14). 4.7.3.1 Location. Toilet rooms shall be conveniently located and accessible to employees during all hours of operation (See also DE Food Code, § 6-402-11). 4.8 Sinks 4.8.1 Water supply. All sinks shall be supplied with hot and cold running water under pressure. 4.8.2 Splashguard Dividers. Where less than 18 inches lateral separation exists between sinks and adjacent fixtures, fo od co ntact surfaces or op en st orage she lving, a s plashguard divid er constructed of a material which is durable, easily cleanable, non-toxic and impervious to moisture shall be installed; such divider may be wall-attached or fixture-attached, and shall extend outward to the leading edge of the sink and extend vertically a minimum of 18 inches above the level plane of the sink bowl. 4.8.3 Handwashing sinks. These fixtures, when located in food preparation, food dispensing, beverage dispensing (including bar service area), food storage and warewashing areas, must be certified or classifiedunder an approved industry standardfor food equipment,such as NSF International, ETL Sanitation, UL for Sanitation, BISSC, or equivalent. 4.8.3.1 Separate sink required. A se parate, s ingle-compartment ha ndwashing s ink is REQUIRED in food pr eparation, food dispensing, a nd warewashing ar eas; a nd in, or immediately adjacent to, toile t rooms. Handsinks shall be inst alled within 25 travel feet within a direct line access of each primary work location. 4.8.3.2 Temperature. Tempered water temperature at a minimum of 10 0oF and a maximum of 110oF, delivered through a mixing valve or combination faucet, is REQUIRED. 4.8.3.3 Faucets. If installed, self-closing, slow-closing, or metering faucets shall provide a flow of water for at least 15 seconds without the need to reactivate the faucet. 4.8.3.4 No other purpose. A handwashing sink may not be used for any other purpose. 4.9 Food Preparation Sinks 4.9.1 Food preparation sinks. Any sink in which food is washed or thawed under running water as part of th e fo od preparation pr ocess must be certified o r classified u nder an ap proved ind ustry standard for food equipment, such as NSF International, ETL Sanitation, UL for Sanitation, BISSC, or equivalent. 4.9.2 No disposal. A food preparation sink may not be used for disposal of mop water or liquid wastes. 4.9.3 Required indirect drain line. An indirect drain line connection through an air-gap is REQUIRED. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 4.9.4 Grease trap connection. Connection to a properly sized grease trap is REQUIRED. 4.9.5 Multiple compartments. If a food preparation sink ha s two or more compartments, a separate wasteline con nection fro m ea ch sink co mpartment through a n a ir gap into a floor sink is REQUIRED. 4.10 Warewashing Sinks 4.10.1 Industry standard. Warewashing sinks must be certified or classified under an approved industry standard for food equipment, such as NSF International, ETL Sanitation, UL for Sanitation, BISSC, or equivalent. 4.10.2 Three compartments. A sink of at least three separate compartments with covered corners and integral drainboards at each en d shall be provided for manually washing, rinsing and sanitizing equipment and u tensils. Each sink compartment shall be lar ge en ough to a ccommodate the immersion of the largest equipment item or utensil. A chemical test kit that matches the type of sanitizing agent in use is required in the warewashing area. 4.10.3 No handwashing or disposal. A warewashing sink may not be used for handwashing or disposal of liquid wastes. 4.10.4 Grease trap connection. Connection to a properly sized grease trap is REQUIRED. 4.10.5 Alternative u se p rovision for wa rewashing sink . If the warewas hing sink will be us ed for washing or thawing food, a separate wasteline connection from each sink compartment through an air-gap into a floor sink is REQUIRED. The installation of a properly sized grease trap downstream of the floor sink is REQUIRED. Alternative use of a warewashing sink for food preparation requires prior approval from the Delaware Division of Public Health. 4.11 Service Sinks (for use as a janitorial sink, utility sink or mop sink) 4.11.1 Installation location. Wherever practical, fixture service sink must be installed outside of the food preparation, food dispensing, food storage and warewashing areas. 4.11.2 Industry s tandard. Se rvice sinks, when located in foo d p reparation, fo od d ispensing, food storage a nd w arewashing a reas, m ust b e ce rtified or classifie d un der an app roved ind ustry standard for food equipment, such as NSF International, ETL Sanitation, UL for Sanitation, BISSC, or equivalent. 4.11.3 Minimum number required. A minimum of one service sink or receptor is REQUIRED on each floor level of food operations. This fixture may be a sink or a curbed receptor. 4.11.4 Dual use. The dual use of a utility sink as a handwashing sink is not approved in new construction, conversion of a structure to a food establishment, nor remodeling of an existing facility. 4.11.5 Grease trap connection. Connection to a grease trap is not required. 4.12 Prewash Sinks. 4.12.1 Industry st andard. Pr ewash s inks m ust b e ce rtified o r c lassified under an a pproved in dustry standard for food equipment, such as NSF International, ETL Sanitation, UL for Sanitation, BISSC, or equivalent. 4.12.2 Grease trap connection. Connection to a properly sized grease trap is REQUIRED. 4.12.3 Food waste grinder. If a food waste grinder is installed on fixture prewash sink, the grease trap must be designed and rated for such application, or a solids interceptor is required upstream of the grease trap. 4.13 Mechanical Warewasher 4.13.1 Industry standard. Mechanical warewashers must be certified or classified under an approved industry stan dard for food eq uipment, su ch as N SF International, ETL Sanitation, U L for Sanitation, or equivalent. 4.13.2 Warewashing machine. A warewashing machine, using hot water or a chemical rinse to sanitize, may be installed. Large cookware which does not fit into the machine must be sanitized in a three compartment sink. Fa cilities withou t a thr ee compartment sink wh ose war ewashers ar e fo und functioning impr operly m ay be directed to tem porarily c lose until the mac hine is repaired. If a DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS chemical sanitizing agent is used, a test kit that matches the chemical sanitizing agent is required. 4.13.3 Grease tra p connection. Connection to a grease trap is NOT APPROVED due to high temperature, pressure and detergents. 4.13.4 Indirect drainline connection. An indirect drainline connection through an air-gap is REQUIRED. (See paragraph below for alternative installation provision.) 4.14 Alternative Installation Provision 4.14.1 Alternative installation provision for mechanical warewasher. If approved by the Delaware Division of Public Health, a direct drainline connection may be installed if the machine wastewater outlet is located within five feet of a properly trapped vented floor drain and the machine outlet is connected to the inlet side of the same properly vented floor drain trap. 4.15 Water Heater 4.15.1 Hot water supply. The water heater shall be sized to provide hot water as required to supply both the continuous requirements and the hourly peak demands of the fac ility. The continuous and hourly demands are based on the type of equipment and number of fixtures consuming hot water as required for food operations. 4.15.2 Total availability. The total hot water availability in gallons per hour (gph) from a water heater is the sum of the unit storage capacity plus the recovery rate at a 100×F rise. 4.15.3 Minimum storage capacity. A fuel-fired (gas or oil) water heater in a food establishment shall have a minim um sto rage capa city of thirty (3 0) gallons; an electric water hea ter shall ha ve a minimum storage capacity of forty (40) gallons. Storage capacities larger than the minimum shall be required, based on the type of equipment and number of fixtures consuming hot water. 4.16 Grease Trap 4.16.1 Sizing. The grease trap must be sized in accordance with PDI standard G101. 4.16.2 Grease trap connection. Connection to a properly sized grease trap is REQUIRED for all fixtures that discharge grease-laden waste, e.g. warewashing sinks, food prep sinks, pre-wash sinks for warewashers, woks, and other cooking equipment. 4.16.3 Sizing procedures. Follow these procedures for sizing a grease trap to a specific fixture: 4.16.3.1 Determine the liquid volume of the fixtu re in cubic inche s (cu in) draining to the g rease trap. 4.16.3.2 Determine the liquid capacity of the fixture in gallons (gal). 4.16.3.3 Determine the actual drainage load (75% of fixture capacity). 4.16.3.4 Determine the unit flow rate minimum for drainage period of 2 minutes. 4.16.3.5 Determine the unit liquid holding capacity minimum (40% of fixture capacity). 4.16.3.6 Select a unit corresponding to minimum unit flow rate and liquid holding capacity. Table 4.16.3a EXAMPLE OF SIZING FOR GREASE TRAP SELECTION Select a grease trap for a three compartment warewashing sink with bowl dimensions of 18” W x 24” L x 12” D 1. Volume = (18in x 24in x 12in) x 3 cmpts = (5,184 cu in) x 3 = 15,552 cubic inches 2. Capacity = Volume (cu in) / 231 (cu in/gal) = 15,552 / 231 = 67.3 gallons 3. Drainage load = 67.3 gal x 0.75 = 50.4, or approx. 50 gallons 4. Unit flow rate minimum = 50 gallons / 2 minutes = 25 gallons per minute (gpm) Unit liquid holding capacity minimum = 67.3 x 0.40 = 26.9 gallons 5. Select a grease trap with a minimum flow rate equal to or greater than 25 gpm The selected trap also must have a minimum liquid holding capacity of 26.9 gal. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS Table 4.16.3b GREASE TRAP SIZING FOR TYPICAL SINK INSTALLATIONS Bold column at far right applies PDI G101 formula to calculate minimum required grease trap flow rate in gallons per minute (gpm). Width (in) Len gth (in) Dep th (in) Volume (cuin) Volume (gal) No o f cmpts Total vol (gal) Working vol (75%) Min F low Rate (gpm) W L D W x L x D = Vc Vc / 231 = Vg #C Vg x #C = Vtg Vtg x 0.75 = Vw Vw / 2min = MFR 16.0 19.0 10.5 3192 13.8 1 2 3 13.8 27.6 41.5 10 21 31 5 10 16 16.0 19.0 13.5 4104 17.8 1 2 3 17.8 35.5 53.3 13 27 40 7 13 20 16.0 20.0 14.0 4480 19.4 1 2 3 19.4 38.8 58.2 15 29 44 7 15 22 18.0 20.0 14.0 5040 21.8 1 2 3 21.8 43.6 65.5 16 33 49 8 16 25 18.0 24.0 12.0 5184 22.4 1 2 3 22.4 44.9 67.3 17 34 50 8 17 25 20.0 20.0 16.0 6400 27.7 1 2 3 27.7 55.4 83.1 21 42 62 10 21 31 22.0 24.0 16.0 8448 36.6 1 2 3 36.6 73.1 109.7 27 55 82 14 27 41 24.0 24.0 16.0 9216 39.9 1 2 3 39.9 79.8 119.7 30 60 90 15 30 45” 9 DE Reg. 786 (11/01/05) 14 DE Reg. 37 (07/01/10) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS DIVISION OF PUBLIC HEALTH Statutory Authority: 16 Delaware Code, Section 122(3)u.1 (16 Del.C. §122(3)u.1) PUBLIC NOTICE 4458 State of Delaware Food Code Regulations (2011) The Department of Health and Social Services, Division of Public Health is proposing regulations which amend Title 16 of the Delaware Code relating to the State of Delaware Food Code. The Division of Public Health proposes to repeal the current 1999 State of Delaware Food Code in its entirety and in its place adopt with amendments the United States Public Health Service 2009 Food Code to be known as the 2011 State of Delaware Food Code. On December 1, 2010, the Division plans to publish the proposed 2011 State of Delaware Food Code and hold them out for public comment per Delaware law. NOTICE OF PUBLIC HEARING The Health Systems Protection Section, under the Division of Public Health, Department of Health and Social Services, will hold a public hearing to discuss the proposed 201 1 State of Delaware Food Code. Due to the extensive number of amendments the Department has concluded that the current regulations should be repealed and r eplaced in th eir entir ety with the proposed re gulations be ing pub lished. Th e Division of Public Health proposes to repeal the cur rent 1999 State of Delawar e Foo d Code in its entir ety an d in it s pla ce adopt with amendments the United States Public Health Service 2009 Food Code to be known as the 2011 State of Delaware Food Code. The public hearing will be held on December 21, 2010 at 9:30 a.m. in the Felton-Farmington Room, located in the Delaware Department of Transportation Building, 800 Bay Road, Dover, Delaware. Copies of the proposed regulations are available for review in the December 1, 2010 edition of the Delaware Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Office of Health Systems Protection at (302) 744-4842. Anyone wishing to present his or her oral comments at this hearing should contact Ms. Deborah Harvey at (302) 744-4700 by December 20, 2010. Anyone wishing to submit written comments as a supplement to or in lieu of oral testimony should submit such comments by December 31, 2010 to: Deborah Harvey, Hearing Officer Division of Public Health 417 Federal Street Dover, DE 19901 Fax (302) 739-6659 4458 State of Delaware Food Code Regulations (2011) 1.0 State of Delaware Food Code 1.1 Name. These Regulations shall hereby be known as the “State of Delaware Food Code”. 1.2 Effective Date. The State of Delaware Food Code shall be effective (to be determined). 1.3 Prior Regulations Repealed. All current or previous regulations or parts of regulations in conflict with this State of Delaware Food Code are hereby repealed. 1.4 Location. A copy of the complete State of Delaware Food Code is available for public view at the following locations: 1.4.1 Jesse S. Cooper Building, 417 Federal St, Dover DE 19901 1.4.2 http://dhss.delaware.gov/dhss/dph/hsp/files/99fdcodetoc.pdf DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 1.5 Severability. Sh ould an y part, su b-part, sectio n, p aragraph, senten ce or p hrase of this S tate of Delaware Fo od Code b e d eclared un constitutional or in valid by a ny comp etent authority, the remainder of this Code shall not be affected in anyway. 2.0 Adoption of United States Public Health Service 2009 Food Code 2.1 The State of Delaware Food Code adopts, as if fully set forth herein, the “United States Public Health Service 2009 Food Code” excluding Annex 1 through Annex 7, as amended herein: 2.1.1 Amend Subpart 1-101.10 by inserting th e wo rds “ State of Delaware” be fore the wo rds “F ood Code” and after the words “as the”. 2.1.2 Amend Subpart 1-102.10 by deleting the subpart in its entirety and by inserting in lieu thereof the following, “The purpose of this Code is to safeguard public health, reduce the risk of foodborne illness and provide to consumers food that is safe, unadulterated and honestly presented. The purpose is also to regulate, within the State of Dela ware, the production, transportation, storage, processing, handling, preparation and consumer service of human food; the inspections of food establishments; the issuing and revocation of permits to food establishments; and the application of compliance and enforcement procedures. 2.1.3 Subpart 1-201.10(B) Terms Defined 2.1.3.1 Amend Subpart 1-201.10(B) by adding thereto a new defined term after the defined term “Prior Fo undation Item” an d b efore the de fined te rm “P ublic wa ter sys tem” to r ead as follows: “Private” means a use or function that is intended for a particular individual or group, such as a celebration of a birthday, wedding, anniversary or funeral, and that is not intended for consumers as members of the general public. 2.1.3.2 Amend Subpart 1-201.10(B) by deleting t he d efinition f or “ Regulatory authority” a nd inserting in lieu th ereof the following: “Regulatory a uthority” means t he Secretary, Delaware Health and Social Services, or his/her authorized representative. 2.1.4 Amend Subpart 8-405.11(B) by deleting the number “10” as it appears therein and inserting in lieu thereof the following number: “7”. 2.1.5 Amend Chapter 8 by adding thereto a new part “8-6” to read as follows: “8-6 Enforcement Procedures 8-601 Re-inspection Fee 8-601.10 Fee Assessment and Failure to Pay (A) A r e-inspection fe e sha ll be asse ssed u nder o ne or more o f the following circumstances: (1) Priority (P) or Priority Foundation (Pf) violations are shown to exist during a follow- up inspection. (2) Core (c) violations are shown to exist on successive routine inspections. (3) A complaint inspection requires a follow-up inspection to confirm compliance. (4) An inspection is required to determine compliance with the terms of a corrective action plan or an administrative hearing. (5) An inspection to determine the proper posting of a valid permit. (6) Any other follow-up inspection deemed necessary by the Regulatory Authority to determine compliance with this Code. (B) The fee sha ll be that req uired by Chapter 1, Section 1 34 o f T itle 16 o f the Delaware Code. (C) Failure to p ay the re -inspection fe e, as specified, shall resu lt in the automatic suspension of the pe rmit to op erate a foo d e stablishment. T he permit sha ll remain suspended until the Regulatory Authority receives full payment of all fees. 8-602 Administrative Action 8-602.10 General DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS If the Regulatory Authority determines that a food establishment is operating without a valid permit; that one or more conditions exist which r epresent an Immin ent Health Hazard; or that serious violations, repeat violations, or general unsanitary conditions are found to ex ist, administrative ac tion may occur. Administrative action will be conducted in accordance with the law. (A) Operation without a Permit (1) Immediate Closure Order. If a food establishment is fou nd operating without a valid p ermit a s re quired by su bpart 8-301.11 of th is Co de, t he Re gulatory Authority shall order the facility immediately closed. (2) Notice of Closure. The closure shall be effective upon receipt of a written notice by the pe rson in ch arge of th e food e stablishment o r an employee of th e fo od establishment. A closure notice statement recorded on the inspection report by the representative of the Regulatory Authority constitutes a written notice. (3) Duration of Clo sure. T he foo d e stablishment shall r emain closed un til a per mit application, app licable fees a nd any r equired p lans h ave b een r eceived an d approved by the Regulatory Authority. (B) Imminent Health Hazard(s) (1) Permit Suspension wit hout Hearing. If some condition is determined to exist in a food establishment which presents an imminent health hazard to the public, the Regulatory Authority may suspend the operating permit of the food establishment without a prior hearing. The suspension shall be effective upon receipt of written notice by the person in charge of the food establishment or an employee of the food establishment. A suspension statement recorded on the inspection report by the Regulatory Authority constitutes a written notice. (2) A permit issued pursuant to subpart (1) shall not be suspended for a period longer than te n ( 10) g overnment bu siness da ys without a hearing. F ailure to ho ld a hearing within the ten (10) government business day period shall automatically terminate the suspension. (3) Hearing Request. The permit holder of the food establishment may request, in writing, a hearing before the Regulatory Authority at any time during the period of suspension, for the purpose of demonstrating that the imminent health hazard(s) no longer exist. The request for hearing shall not stay the suspension. (C) Serious Violations, Repeat Violations and General Unsanitary Conditions. When conditions exist in a food establishment that represent serious violations, repeat violations or general unsanitary conditions, the Regulatory Authority may initiate a corrective action plan or schedule a hearing. 8-603 Agency Emergency Actions 8-603.10 Examination of Food. Food may be exam ined or samp led b y th e Reg ulatory Autho rity as of ten as necessary for enforcement of this Code. 8-603.20 Wholesome and Free from Spoilage. All food shall be wholesome and free from spoilage. Food that is spoiled or unfit for hum an co nsumption sha ll not be kept on th e p remises. Th e e stablished administrative p rocedures for the im plementation and e nforcement of th e provisions of Chapter 33 of Title 16 of the Delaware Code, relating to the embargo of misbranded or ad ulterated food , an d p enalties sha ll be a pplicable to this subpart. 8-604 Penalties 8-604.10 Operation in Violation of Code. Any person (or responsible officer of that person) who violates a provision of this Code, and any person (or responsible officer of that person) who is the holder of a DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS permit or who otherwise operates a food establishment that does not comply with the requirements of this Code shall be subject to the provisions of Section 107 of Title 16 of the Delaware Code. 8-604.20 Refusal, Failure or Neglect t o Comp ly wit h Orde r of t he Regulatory Authority. Any person (or responsible officer of that person) who violates a provision of this Code, and any person (or responsible officer of that person) who is the holder of a permit or who ot herwise operates a fo od es tablishment th at re fuses, fa ils o r neglects to comply with an order of the Regulatory Authority shall be subject to an administrative penalty of not less than $100 and not more than $1,000, together with costs. 8-604.30 Injunction. The Regulatory Authority may seek to enjoin violations of this Code. 8-604.40 Public Notification. A placa rd, as pr ovided by the Division , shall b e pr ominently displaye d at all entrances of food establishments that have failed to obtain a valid permit or have a permit that is suspended, revoked, or expired. DIVISION OF SOCIAL SERVICES Statutory Authority: 31 Delaware Code, Chapter 5, §512 (31 Del.C., Ch. 5, §512) PUBLIC NOTICE Delaware Temporary Assistance for Needy Families (TANF) Employment and Training Program In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Serv ices (DHSS) / Division of Soc ial Servic es is pr oposing to amend Delaware TANF Employment and Training Program policies in the Division of Social Services Manual (DSSM) regarding Mandatory Participants. Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy, Program & Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4425 by December 31, 2010. The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. SUMMARY OF PROPOSED CHANGE The proposed change described below amends Delaware’s Temporary Assistance for Needy Families (TANF) Employment and Training (E & T) Program policies in the Division of Social Services Manual (DSSM) regarding Mandatory Participants. This change clarifies the rules for parents accessing the right to be exempted from TANF E & T requirements when the parent is caring for their child who is less than 12 months old and the parent is a single custodian parent. The Code of Federal Regulations (CFR) at 45 CFR §261.2 (n)(2)(i)) gives States the option to exempt parents caring for a child under 12 months of age for up to 12 months in the lifetime of the parent. The policy change eliminates the opportunity for parents with this exemption to vo lunteer to participate in E&T but maintains access to the E&T programs through mandatory participation. Statutory Authority 45 CFR §261.2(n)(2)(i), What definitions apply to this part? DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 45 CFR §§261.22(c)(1) and (c)(2), How will we determine a State’s overall work rate? Summary of Proposed Change Current policy allows a single custodial parent caring for a child less than 12 months of age to be exempted from employment and training for up to a lifetime limit of 12 months. Single custodian parents are automatically granted an exemption from employment and training if months within their lifetime limit ar e available. This rul e change allows a parent to request not to be exempted and to be mandatory for employment and training activities. Once a p arent is ma ndatory sh e or he may no t re turn to exempted status. A parent who is man datory for employment and training will become exempted from E&T activities if a new biological/step/or adoptive child under 12 months of age enters the home. This policy becomes effective February 1, 2011. The proposed changes affect the following policy sections: DSSM 3006.1, Mandatory Participants DSSM 3006.2, TANF Employment and Training Participation and Participation Rates DSSM 300 6.2.1, TANF Employment and Training Participants Who Count for TANF Participation According to the Provisions of Delaware’s Temporary Assistance for Needy Families. DSS PROPOSED REGULATIONS #10-48 REVISIONS: 3006.1 Mandatory Participants(45 CFR §261.2 (n)(2)(i)) All adult caretakers and other adults in the assistance unit who are not exempt must participate in Employment and Training related activities. The four possible exemptions are: A. A single custodial parent caring for a child under 12 months of age. This exemption has a lifetime limit of 12 months. A. A single custodial parent caring for a child less than 12 months of age may be exempted from employment and training activities for up to 12 months in the lifetime of the parent. Single custodial parents who are caring for a child less than 12 months of age and who have not reached their 12 month limit will be exempted from employment and training activities un less they waive their employment and training exemption. Parents who waive their employment and training exemption are subject to all the conditions and rules of the employment an d tr aining pr ogram. Pa rents who waive their emp loyment and tr aining exem ption cann ot be exempted for caring for a child less than 12 months of age again unless a new biological, step, or adopted child less than 12 months of age is added to the TANF case. Parents wh o wa ive their em ployment an d tr aining e xemption mu st m eet the re quired em ployment tra ining hours based on their family composition within 14 calendar days of waiving their exemption. Cases which fail to meet the employment and training requirement are subject to a full family sanction. B. An individual determined unemployable by a health care professional. C. On a case-by-case basis, clients who are victims of Domestic Violence. (see DSSM 3010.2.1 through DSSM 3010.2.5) D. A parent caring for a disabled family member* who lives in the home. * A parent or spouse can be excluded to care for a child or a spouse as long as the following conditions apply: 1. The parent is biological, adoptive or step. 2. The parent or spouse lives in the home with the child. 3. The need for such care is supported by medical documentation. 4. The spouse of a parent can use the caring for exemption even though the marriage is terminated by death or divorce. Children age 16 or older who are not attending school must participate in work or other alternativ e activities, e.g., GED. Individuals who are exempt from Employment and Training requirements can volunteer to participate in the Employment and Training Program. Individuals with disab ilities will be afforded the same access, supports and opportunities, including reasonable accommodations, to participate in the Employment and Training programs. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 3006.2 TANF Employment and Training Participation and Participation Rates Under the Temporary Assistance For for Needy Families Block Grant, DSS is required to meet the following work participation rates with respect to all families that include an adult or minor child head of household receiving assistance: ALL FAMILIES Fiscal Year Minimum Participation Rate Required weekly hours of participation 2002 and after 50% 30 hours TWO PARENT FAMILIES Fiscal Year Minimum Participation Rate Required weekly hours of participation 1999 and after 90% 35 hours 55 hrs a week if rec eiving Federal Child Care Subsidy DSS may face a lower work participation rate if it experiences a net caseload reduction compared to FY 2005. Example: If it is determined that DSS' average monthly caseload in FY 2006 was 4 percentage points lower than average monthly caseloads in FY 2005, then, rather than having to meet a 50% work participation rate requirement in FY 2006, the rate would be lowered by 4 percentage points to 46%. To be counted toward meeting the work participation rate, each individual must meet the required number of hours each week. Single parents who are not working 30 hours a week or making earning an equivalent of 30 hours a week times minimum wage are required to participate in wo rk and/or work related activities. Participation in work and work related activities must equal at least a minimum average of 30 hours a week; and, at least 20 of the hours per week must come from participation in federally defined core activities. Single parent/caretaker TANF recipients with a child in the T ANF household under six ar e deemed to be engaged in work for a month if the recipient is engaged in federally defined core work activities for an average of at least 20 hours per week during the month. Two-parent families where one parent is not working at least 35 hours a week or making earning the equivalent of 35 hours a week tim es minimum wage ar e re quired to participate in work and/or w ork related activ ities. Participation in work and work related activities must equal an average of at least 35 hours a week; and, at least 30 of the hours per week must come from participation in federally defined core activities. Two-parent families who receive federally funded Purchase of Care services who are not working at least 55 hours a week or making earning the equivalent of 55 hours times minimum wage are required to participate in work and/or work related activities. Participation in work and work related activities for one parent must equal 35 hours a week. Combined hours of participation in work and work related activities must equal an average of at least 55 hours a week. Of the average 55 hours a week the participants must average at least 50 hours a week of federally defined core activities. Teen p arents ar e required to a ttend school, wor k, or participate in the employment and tr aining activities. Secondary, post-secondary, vocational, training school, and participation in a GED program meets participation requirements for the month and is the equivalent to work. If they are not attending one of the above types of school or working for 30 hours a week they must participate in employment and training activities for 20 or 30 hours a week. Single custo dial p arents with a child under 12 mo nths of ag e ar e able to re ceive an exem ption fro m Employment and Training requirements for a total of 12 months in their lifetime. These 12 months can be used any time the parent has a child less than 12 months of age. Once the youngest child reaches 12 months of age, the parents are required to participate in Employment and Training. If they are already working the equivalent of their DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS required Employment and T raining hours (20, 30, 35, 55), the DCIS II sy stem will code them as volunteers for Employment and Training. REQUIRED EMPLOYMENT AND TRAINING HOURS The monthly participation rate is calculated as follows: Family Composition Required Hours Per Week Minimum rRequired Core Hours Single Parent Family A. With child under 12 months* 0 0 B. A. With a child under 6 years old 20 20 C. B. No children under 6 years old 30 20 Two Parent Family A. Not receiving subsidized child care 35 30 B. Receiving subsidized child care 55 50 * subject to 12 month lifetime limit Numerator: # of TANF families with a work-eligible- individual who meet the participation requirement for the month divided by Denominator: # of TANF families that inc lude a work -eligible individual, less # of families sanctioned in that month for failure to participate in work (for up to 3 months in preceding 12 month period), less the number of non- needy ca retaker hou seholds, le ss the num ber of sing le custodial p arents o pting to u se o ne o f th e 12 m onths allowable exemptions for caring for a child under one year of age. A parent can only use this exemption for a total of 12 months in their his/her lifetime. See 3006.2 TANF Employment and Training Participation and Participation Rates - History 3006.2.1 TANF Employment and Training Participants Who Count for TANF Participation According to provisions of Delaware's Temporary Assistance for Needy Families, the followin g individuals must participate in work related ac tivities and are included in the denominator for calculating the Federal participation rates. • Work-eligible individuals as defined in DSS TANF policy; • Work-eligible adults in the Time-Limited Temporary program; • Work-eligible adult s for whom the Contract of Mutual Responsibilit y s pecifies the employment-related activities that will be required; • Work-eligible adults who are not exempt because they are medically unable to participate; and • Work-eligible adults who are not exempt because they used their 12 month limit of child care for a child under one year of age. • Single custodial parents caring for a child less than 12 months of age who have waived their employment and training exemption or are no longer eligible for an exemption. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS DIVISION OF SOCIAL SERVICES Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) PUBLIC NOTICE Child Care Subsidy Program In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware C ode, Chapter 5, Section 5 12, Delaware Health and Social Services (DHSS) / Division of Social Services is proposing to amend Child Care Subsidy Program policies in the Division of Social Services Manual (DSSM) regarding Determination of the Child Care Parent Fee and Fee Waiving Situations. Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy, Program & Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4425 by December 31, 2010. The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. SUMMARY OF PROPOSED CHANGE The proposed change described below amends Child Care Subsidy Program policies in the Division of Social Services Manual (DSSM) regarding Determination of the Child Care Parent Fee and Fee Waiving Situations. The purpose of this revision is to reduce the number of situations in which a family does not have a parent fee. Statutory Authority 45 CFR §98.20, A child’s eligibility for child care services 45 CFR §98.40, Compliance with applicable State and local regulatory requirements Summary of Proposed Change DSSM 1 1004.7, Determination of the Child Care Parent Fee and Fee Waiving Situations is up dated to eliminate spec ific situations which allow the child care parent fee to be waived. This change is necessary to continue providing services to each family that is eligible for a child care subsidy. DMMA PROPOSED REGULATION #10-47 REVISION: 11004.7 Determination Of The of the Child Care Parent Fee and Fee Waiving Situations 45 CFR §§98.20 and 98.42 Under regulations, eligible families are required to contribute to the cost of child care services based upon their ability to pay. Families contribute to the cost of care by paying a DSS child care parent fee. DSS, however, provides child care services to certain families at no cost. Part of the process after determining the client's financial eligibility and need for child care w ould be deter mining the p arent fee and which families should have their parent fee waived. Child care fees may be waived if the family meets one of the five (5) conditions below. On a case by case basis, families active with and referred by the Division of Family Services (DFS) including foster care families. This requires supervisory approval. Families in Delaware's TANF Program in Categories 11 and 12, and General Assistance (GA) families. Caretakers in Category 31 caring for a child/children who receive TANF or GA assist ance where the adult requesting the child care is not the child's natural or adoptive parent (for example, grandparents, aunts, uncles, DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS etc.). When p aying th e fee cr eates a n excessive fin ancial burden. Excessive finan cial bu rden is de fined a s a situation where the family's disposable income prior to the deductions or after the deductions, result in the family having income below 40% of the federal poverty level. Deductions are limited to: • rent, mortgage, lot rent; • any mandatory expenses re quired b y t he la ndlord or m ortgage h older ( e.g., h omeowners insurance, property taxes, school taxes); • actual current monthly utility expenses (e.g., electric, gas, trash, water and sewer). Late fees and past due amounts are not included. • telephone expenses are capped at the same rate as the FS standard deduction for telephone bills; • un-reimbursed medical cost s (Bef ore c onsidering these medic al c osts as deductions, families not already receiving Medicaid or on the Delaware Healthy Children Program (DHCP) must first apply for either Medicaid or the DHCP . The DHC P premiums are included in the un-reimbursed medic al cost deductions. Any un-reimbursed medical costs not covered by Medicaid or the DHCP will be considered as a deduction to determine the family's income for excessive financial burden.) EXAMPLE: A family of three has gross monthly income of $1,300.00. The parent fee for this family would be 16% of the cost of care. The rent p ayment for this family is $600/month. Utility expenses are $20 for phone and $165 for electric. Total income per month equals: $1,300.00 Total expenses are: $ 85.00 After deductions: $515.00 $515.00 is less than $553.00, 40% of the federal poverty level for a family of 3, so this family can have the parent fee waived. EXAMPLE: A family of four has a gross monthly income of $2,203.00. The parent fee for this family would be 44% of the cost of care. The rent p ayment for this family is $600/month. Utility expenses are $20 for phone and $165 for electric. Total income per month equals: $2,203.00 Total expenses are: $785.00 After deductions: $1,418.00 $1,418.00 is more than $666.00, 40% of the federal poverty level for a family of 4, so this family will not have the parent fee waived. Teen parents 18 years old or younger attending high school or a high school equivalent. All requests to waive the fee must be documented in the case file and be approved by the unit supervisor. As is the case with income, a person who acts as a child's caretaker, as defined in Section 11002.9, pays a child care fee based only upon income attributable to the child, unless the family meets one of th e waived fee conditions above. See Administrative Notice: A-08-2004 Waiving Child Care Fee A-13-99 Child Care Fees/ Waiving Fees For Caretakers of ABC or GA Children Families are required to cont ribute to the cost of child care services. All families receiving subsidized child care will have a parent fee except: 1. Families active with and referred by the Division of Family Services (DFS) including foster care families. 2. Teen parents 18 years old or younger attending high school or a high school equivalent. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS DEPARTMENT OF STATE PUBLIC SERVICE COMMISSION Statutory Authority: 26 Delaware Code, Section 209(a) (26 Del.C. §209(a)) 26 DE Admin. Code 3008 IN THE MATTER OF THE ADOPTION OF RULES AND | PROCEDURES T O IMP LEMENT THE RE NEWABLE | ENERGY PORTFOLIO STANDARDS ACT, 26 DEL. C. | §§ 351-363, AS A PPLIED TO RETAIL ELECTRICITY | SUPPLIERS (OPENED AUGUST 23, 2005; | REOPENED SEPTEMBER 4, 2007; AUGUST 5, 2008; | AND SEPTEMBER 22, 2009; September 7, 2010) | PSC REGULATION DOCKET NO. 56 ORDER NO. 7862 AND NOW, this 10th day of November, 2010: WHEREAS, on September 7, 2010, the Commission entered PSC O rder 7834, which, among other things, required pu blication of pro posed chan ges to the Co mmission’s “ Rules an d Pro cedures to Im plement the Renewable Ener gy Por tfolio S tandard” (th e “RPS Ru les”) or iginally pro mulgated pur suant to the “Ren ewable Energy Portfolio Standards Act,” 26 Del.C. §§351-364 (2006 Supp.) (the “RPS Act”); and WHEREAS, Order No. 7834 also required publication of a notice regarding the proposed changes to the RPS Rules, which notice included a deadline for comments to the proposed changes to be filed by October 31, 2010 and set a hearing date of November 18, 2010; and WHEREAS, Or der No . 78 34 was published in th e Octo ber 201 0 edition of the Register of Regulations; however, du e to a cler ical e rror, the proposed changes to th e RPS ru les published in the Register did no t accurately capture the changes that the Commission approved pursuant to Order No. 7834; and WHEREAS, ac cordingly, t he Co mmission determines th at th e proposed c hanges t o t he RP S Ru les, a s approved by Order No. 78 34, must be r e-published in th e Re gister of Reg ulations, an d a cor responding new deadline for comments and a date for a public hearing must be re-set. NOW, THER EFORE, IT IS HE REBY ORDE RED B Y TH E AFFIRMA TIVE VOTE OF NO FEWER TH AN THREE COMMISSIONERS: 1. That, for the reasons set forth in the body of this Order, and pursuant to 26 Del.C. §362 and 29 Del.C. §10115, the Commission pr oposes to r evise it s “Ru les and Procedures to Imple ment the Ren ewable En ergy Portfolio Standard,” originally adopted by PSC Order No. 6931 (June 6, 2006) and published at 10 DE Reg. 151-57 (the “RPS Rules”). A copy of the proposed revised RPS Rules, approved to be published by PSC Order No. 7834, is attached to this Order as Exhibit “A”. 2. That, pursuant to 29 Del.C. §§1133 and 10115(a), the Acting Secretary shall transmit to the Registrar of Regulations for publication in the Delaware Register of Regulations a copy of this Order, along with copies of the proposed revised RPS Rules (Exhibit “A”) and the Notice of Proposed Rule-Making, attached as Exhibit “B.” The Secretary shall also cause such Notice of Proposed Rule-Making to be pu blished in The News Journal and the Delaware State News newspapers on or before December 1, 2010. The Secretary shall include proof of such publication in the docket file before the public hearing in this matter. Further, the Secretary shall serve (by regular mail or by electronic e-mail) a copy of such Notice on: (a) the Division of the Public Advocate; (b) the Delaware Energy O ffice; (c) Delm arva Power & Lig ht Company; (d) all certificated electric suppliers and rural electric cooperatives; and (e) e ach person o r e ntity who h as m ade a t imely r equest fo r ad vance notice o f r egulationmaking proceedings. 3. That, pursuant to 29 Del.C. §§ 10115(a) a nd 1 0116, pe rsons o r entities may file written comment s, suggestions, compilations of data, briefs, or other written materials, on or before December 31, 2010. Pursuant to 29 Del.C. §10117, the Commission will conduct a public hearing on the proposed revisions to the RPS Rules on February 22, 20 11 be ginning at 1:00 P .M. a t the Co mmission’s of fice a t 8 61 Silve r L ake B oulevard, Ca nnon Building, Suite 100, Dover, Delaware. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 4. That the Commission will defer for the time being referring this matter to a Hearing Examiner under 26 Del.C., §502 and 29 Del.C. §10116. Depending on what, if any, comments are received to the proposed revisions to the Regu lations, th e Commission may determine at a la ter time that it is necessary to appoint a Hearing Examiner. 5. That, pursuant to 2 6 De l.C. §§114 and 1012(c )(2), all el ectric suppliers and elec tric public utilities are hereby notified that they will be charged the costs incurred in connection with this proceeding under the provisions of 26 Del.C. §114(b)(1). 6. The Commission reserves the jurisdiction and authority to enter such further Orders in this matter as may be deemed necessary or proper. BY ORDER OF THE COMMISSION: Arnetta McRae, Chair Jeffrey J. Clark, Commissioner Joann T. Conaway, Commissioner Jaymes B. Lester, Commissioner Dallas Winslow, Commissioner ATTEST: Alisa Carrow Bentley, Secretary Notice of Proposed Rule-Making Amending “Rules and Procedures to Implement the Renewable Energy Portfolio Standard” To: All Electric Suppliers, Electric Utilities, Electric Generators using Renewable Resources, and other Interested Persons Under the “Renewable Energy Portfolio Standards Act,” 26 Del.C. §§ 351-364 (2006 Supp.) (the “RPS Act”), each electric supplier making retail electric sales in Delaware must, beginning in 2007, accumulate a portfolio of “renewable energy credits” equivalent to a specified percentage of its overall retail electric supply sales. In 2006, the Pu blic Service Commission ( “PSC”) a dopted “Ru les an d Pr ocedures to Im plement the Renewable Energy Portfolio Standard” (the “RPS Rules”). See 10 DE Reg. 151-157 (July 1, 2006). The RPS Rules have been amended twice in the interim to conform to subsequent amendments to the RPS Act. On July 28, 2010, Senate Substitute No. 1 for Senate Bill No. 119 (77 Del. Laws ch. 451) (July 28, 2009) was signed into law, which adds several new sections to the RPS Act an d amends numerous other sections. More specifically, the recently enacted law, among other things: • Modifies the minimum percentages of sales that must be from eligible energy resources and solar photovoltaics and extends the period for the minimum standard from 2019 to 2025. • Establishes a mechanism for a freeze of the minimum requirements under certain circumstances. • Provides for credits toward the minimum requirements where solar and wind installations are sited in Delaware, as long as a certain percentage of the equipment used in the installation is manufactured in Delaware, and where facilities are constructed or installed with a certain percentage of Delaware workers. • Increases the amount of solar alternative compliance payments. • Provides the State Energy Coordinator with the authority to review the reasonableness of alternative compliance payments and solar alternative compliance payments. • Establishes a Renewable Energy Taskforce to review trading mechanisms and other structures to support growth of renewable trading markets in Delaware. • Explicitly prov ides the Commiss ion with the auth ority to p romulgate ru les an d re gulations w ith respect to certain of the above-noted amendments to the RPS Act. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS The PSC now proposes to revise the RPS Rules to incorporate, and assure consistency with,the statutory changes made by the recently enacted law. You can review PSC Order No. 7862 (November 10, 2010) (the “Order”) and the proposed revised RPS Rules in the December 2010 issue of the Delaware Register of Regulations. You can also review the Order and the proposed revised RPS Rules at the PSC’s Internet website located at http://depsc.delaware.gov. If you wish to obtain written copies of the Order and proposed revised RPS Rules, please contact the PSC at (302) 736-7500. Copies are $0.25 per page. Payment is expected prior to copying (if you wish the copies to be mailed) or at the time the copies are retrieved (if you retrieve them in person). The PSC now solicits comments, suggestions, compilations of data, briefs, or other written materials about the proposed revisions to its RPS Rules. If you wish to file any such materials, you should submit an original and ten copies of such written documents on or before December 31, 2010. You should file such materials with the PSC at the following address: Public Service Commission 861 Silver Lake Boulevard Cannon Building, Suite 100 Dover, Delaware, 19904 Attn: Reg. Dckt. No. 56 If possible, you should accompany such written comments with an electronic version of the submission. Such electronic co py m ay b e f iled on a co py-capable CD -Rom dis k or se nt as an a ttachment to an In ternet e-mail addressed to Pamela.Knotts@state.de.us. The PSC will also conduct a public evidentiary hearing on the new proposed regulations on February 22, 2011 at 1:00 P .M. at the PSC ’s of fice at the address set fo rth above. Any individual with a disability desiring to participate in these proceedings or to review the filings should contact the PSC to discuss any auxiliary aids or services needed. The PSC Staff can also provide additional information about this docket. The PSC’s toll-free telephone number within Delaware is 1-800-282-8574. The PSC may be reached at (302) 736-7500 (including text telephone communications). 3008 Rules and Procedures to Implement the Renewable Energy Portfolio Standard 1.0 Definitions 1.1 The following words and terms, when used in th is Regulation, should ha ve the following meanings unless the context clearly indicates otherwise: "Alternative Co mpliance Pay ment" or "ACP" me ans a payment of a ce rtain dollar amo unt per megawatt hour , which a Retail Electricity Supplie r may submit in lieu of su pplying th e minimum percentage of RECs required under Section 3.3.4 of this Regulation. "Commission" means the Delaware Public Service Commission. "Compliance Year" means the calendar year beginning with June 1 and ending with May 31 of the following year, for which a Retail Electricity Supplier must demonstrate that it has met the requirements of this Regulation. "Customer-Sited Gene ration" means a Ge neration Unit th at is int erconnected on the End-Use Customer's side o f the r etail ele ctricity meter in such a manner that it displaces all or p art of the metered consumption of the End-Use Customer. "DNREC" means Delaware Department of Natural Resources and Environmental Control. "Eligible Energy Resources" means the following energy sources located within the PJM region or imported into the PJM region and tracked through the PJM Market Settlement System: Solar Photovolta ic En ergy Resources means solar p hotovoltaic or solar the rmal en ergy technologies that employ solar radiation to produce electricity or to displace electricity use; Electricity derived from wind energy; Electricity d erived fr om oc ean e nergy in cluding wave or tidal action, currents, or the rmal differences; Geothermal energy technologies that generate electricity with a steam turbine, driven by hot water or steam extracted from geothermal reservoirs in the earth's crust; DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS Electricity generated by a fuel cell powered by Renewable Fuels; Electricity generated by the combustion of gas from the anaerobic digestion of organic material; Electricity generated by a hydroelectric facilit y that has a max imum de sign capacity of 30 megawatts or le ss fr om a ll g enerating u nits combined that m eet a ppropriate en vironmental standards as determined by DNREC (see DNREC Regulation's Secretary's Order No. 2006-WA002735); Electricity generated from the combustion of biomass that has been cultivated and harvested in a sustainable manner as determined by DNREC, and is not comb usted to pr oduce en ergy in a waste to energy facility or in an incinerator (see DNREC Regulation's Secretary's Order No. 2006WA- 002735); Electricity generated by the combustion of methane gas captur ed from a landfill gas recov ery system; provided, however, that: Increased production of landfill gas from production facilities in operation prior to January 1, 20 04 d emonstrates a net re duction in total a ir emissions c ompared to f laring a nd leakage; Increased utilization of landfill gas at electric generating facilities in operation prior to January 1, 2004 (i) is used to of fset the consumption of coal, oil, or natural gas at those facilities, (ii) does not result in a reduction in the percentage of landfill gas in the facility's average annual fuel mix when calculated using fuel mix measurements for 12 out of any continuous 15 month period during which the electricity is generated, and (iii) causes no net increase in air emissions from the facility; and Facilities installed on or after January 1, 2004 meet or exceed 2004 Federal and State air emission standards, or the Federal and State air emission standards in place on the day the facilities are first put into operation, whichever is higher. "End-Use Customer" means a person or entity in Delaware that purchases electrical energy at retail prices from a Retail Electricity Supplier. "Fund" means the Delaware Green Energy Fund. "GATS" me ans the Generation Attr ibute Tracking System de veloped by PJM -Environmental Information Services, Inc. (PJM-EIS). "Generation At tribute" m eans a non -price cha racteristic of the e lectrical en ergy outp ut of a Generation Unit including, but no t limited to, the Unit's fuel ty pe, geographic loc ation, emissions , vintage, and RPS eligibility. "Generation Unit" means a facility that converts a fuel or an energy resource into electrical energy. "Industrial Customer" means an En d-Use Customer with a North American Industry Classification System (NAICS) Manufacturing Sector Code. "Municipal Electric Company" means a public corporation created by contract between 2 or more municipalities pursuant to provisions of Title 22, Chapter 13 of the Delaware Code and the electric utilities that are municipally owned within the State of Delaware. "New Renewable Gen eration Reso urces" means E ligible Energy Resources first going into commercial operation after December 31, 1997. "Peak Demand" shall have the same meaning as and be determined consistently with how such term or a similar term is defined and determined in the applicable utility's tariff then in effect and approved by the Commission . F or cu stomers with mo re th an one accoun t, the pe ak dem ands sh all b e aggregated for all ac counts. The c alculation w ill be applied in the c urrent year based on the P eak Demand, as defined above, in the prior year. "PJM" o r " PJM I nterconnection" mea ns the r egional tr ansmission or ganization ( RTO) th at coordinates the movement of wholesale electricity in the PJM region, or its successors at law. "PJM region" means the area within which the movement of wholesale electricity is coordinated by PJM Inter connection. The PJM r egion is as de scribed in th e Amen ded an d Rest ated Ope rating Agreement of PJM. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS "Renewable Energy Credit" or ("REC") means a tradable instrument comprised of all the Generation Attributes equal to 1 megawatt-hour of electricity derived from Eligible Energy Resources and that is used to track and verify compliance with the provisions of this Regulati on. A REC does not include emission r eduction cre dits an d/or allowan ces encumbered or used by a Gen eration Uni t for compliance wit h lo cal, st ate, or federal operating an d/or air quality pe rmits a ssociated w ith t he 1 megawatt-hour of electricity. "Renewable fuel" means a fuel that is derived from Eligible Energy Resources. This term does not include a fossil fuel or a waste product from a fossil fuel source. "RPS" and or "Renewable Energy Portfolio Standard" means the percentage of electricity sales at retail in the State that is to be derived from Eligible Energy Resources. "Retail Electricity Product" means an electrical energy offering that is distinguished by its Generation Attributes on ly an d that is of fered fo r sale by a Ret ail Elec tricity Supplier to End-Use Cus tomers. Multiple electrical energy offerings with the same Generation Attributes may be considered a single Retail Electricity Product. "Retail Electricity Suppli er" me ans a pe rson or en tity tha t sells electrical ene rgy to End-Use Customers in Delaware , including, but not limited to, non-regulated power producers, electric utility distribution companies supplying standard offer, default service, or any successor service to End-Use Customers. A Ret ail Electricity Supplier does no t include a Municip al Electric Comp any for the purposes of this Regulation. "Rural Elec tric Co operative" m eans a n on-stock, no n-profit, membership cor poration or ganized pursuant to the Federal "Rural Electrification Act of 1936" and operated under the cooperative form of ownership. "Solar Alternative Compliance Payment" or "SACP" means a payment of a certain dollar amount per megawatt-hour, which a Retail Electricity Supplier or Municipal Electric Supplier may submit in lieu of supplying th e Minimum Per centage fr om Sola r Ph otovoltaic re quired under Se ction 3.3.4 of th is Regulation. "Sustainable Energy Utility" or ("SEU") is the nonprofit entity according to the provisions of 29 Del.C. §8059 that develops and coordinates programs for energy end-users in Delaware for the purpose of promoting the sustainable use of energy in Delaware. "Solar Re newable Energy Cre dit" or "SREC" me ans a tr adable instrument that is e qual to 1 megawatt-hour of retail electricity sales in the State that is derived from Solar Photovoltaic Energy Resources and that is used to track and verify compliance with the provisions of this Regulation. "Total Retail Sales" means retail sales of electricity within the State of Delaware exclusive of sales to any Industrial Customer with a Peak Demand in excess of 1,500 kilowatts. 11 DE Reg. 1670 (06/01/08) 13 DE Reg. 952 (01/01/10) 2.0 Purpose and Scope 2.1 The benefits of electricity from renewable energy resources accrue to the public at large, and electric suppliers and consumers share an obligation to develop a minimum level of these resources in the electric supply portfolio of the State. The purpose of this Regulation, in support of 26 Del.C. §351 - 363 Subchapter III-A, is to set forth the rules for governing the RPS. 2.2 This R egulation s hall apply to all ret ail electricity sales in the S tate of De laware except fo r ret ail electricity sales of Municipal Electric Companies and retail electricity sales to any Industrial Customer with a Peak Demand in excess of 1,500 kilowatts. 2.2.1 An Industrial Customer with Peak Demand in excess of 1,500 kilowatts may elect to have their load exempt from this Regulation provided that they meet the definitions found in Section 1.1 and: 2.2.1.1 submit a notice to the Commission's Staff including, but not limited to, Name and Address of Industrial Customer, and NAICS Code and load for each account; DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 2.2.1.1.1 the Commission's Staff shall, within thirty (30) days of receipt of the notice, provide to the Industrial Customer an acknowledgement of the status, exempt or non-exempt, of the Industrial Customer and; 2.2.1.1.2 submit the Commission's Staff acknowledgement referenced in Section 2.2.1.1.1 of this Regulation to their Retail Electricity Supplier. 2.2.2 For an End-Use Customer with multiple accounts totaling in excess of 1,500 kilowatts within an applicable utility's service territory and served by a s ingle Retail Electricity Supplier, to have their load exempt, the aggregate of their accounts with an NAICS Manufacturing Sector Code must have a Peak Demand of at least 751 kilowatts and they must follow the procedure found in Section 2.2.1. 2.3 Any Rural Electric Coo perative th at is ha s opted-out o f Commission re gulation by it s me mbership pursuant to 26 Del.C. §223 of the Delaware Code shall, for all purposes of administering and applying this Re gulation, be tre ated as a Municipal Electric Co mpany du ring any per iod of time the Rura l Electric Cooperative is exempt from Commission regulation. 2.4 A Rural Electric Cooperative may elect to be exempt from the requirements of this Regulation provided that, on or before June 1, 2006, they: if it develops and implements a program for its ratepayers that is comparable to the RPS beginning in 2013. A Rural Electric Cooperative electing to be exempt from this Regulation must notify the Commission of such election and shall be subject to the requirements set f orth in 26 Del.C. §3 63. A Ru ral Electric Coop erative not electing to be exempt fr om this Regulation shall be subject to this Regulation and the applicable provisions of 26 Del.C. §363. 2.4.1 submit a written notice to the Delaware General Assembly; 2.4.2 submit a written notice to the Commission; 2.4.3 alert their End-Use Customers with notices inserted in two (2) consecutive electricity bills; 2.4.4 offer th eir En d-Use Cu stomers a v oluntary p rogram for pu rchasing r enewable en ergy un der competitive rates; and 2.4.5 either contribute to the Delaware Green Energy Fund at le vels commensurate with other Retail Electricity Suppliers or create an independent fund separate from the Delaware Green Energy Fund to be used in support of energy efficiency technologies, renewable energy technologies, or demand sid e m anagement p rograms, into which they m ake payments o f $ 0.178 fo r e ach megawatt-hour they sell, transmit, or distribute in the State. 11 DE Reg. 1670 (06/01/08) 3.0 Administration of RPS 3.1 Certifying Eligible Energy Resources: 3.1.1 The Commission through its Staff will certify Generation Units as Eligible Energy Resources based on the definition of Eligible Energy Resources found in Section 1.1 of this Regulation. 3.1.2 Any G eneration Un it s eeking certification a s an Eligible Energy Re source mus t submit an Application for Certification as an Eligible Energy Resource Under the Delaw are Renewabl e Energy Po rtfolio St andard ( Application) t o the Co mmission. This ma y include Customer-S ited Generation or a Generation Unit owned or operated by a Municipal Electric Company. 3.1.3 Commission Staff will review the Applic ation and will notify the applicant of its approval as an Eligible Energy Resource or of any deficiencies in their Application within 30 days of receipt. The applicant will have the opportunity to revise their submission, if appropriate. 3.1.4 If Commission Staff finds the Generation Unit to be in compliance with Sections 1.0 and 3.0 of this Regulation, as well as any this Regulation and other applicable Delaware statute law, Commission Staff will issue a State of Delaware Certification Number. 3.1.5 Upon receipt of the State of Delaware Certification Number, a Generation Unit will be deemed an Eligible Energy Resource. 3.1.6 Upon designation as an Eligible Energy Resource, the Generation Unit's owner shall be entitled to one (1) Renewable Energy Credit REC for each mega-watt hour of energy derived from Eligible Energy Re sources o ther t han So lar Ph otovoltaic En ergy Re sources. Upon d esignation as an DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS Eligible Energy Resource, the owner of a Gene ration Unit employing Solar Photovoltaic Energy Resources shall be entitled to one (1) Solar Renewable Energy Credit SREC for each mega-watt hour of energy derive d from Solar P hotovoltaic Energy Resource. SR ECs and R ECs will be created and supplied by the PJM-EIS GATS, or its successor at law. Elig ible Energy Resources are subject to applicable PJM-EIS GATS rules and shall pay applicable PJM-EIS GATS fees. 3.1.6.1 However, if in t he fu ture, The Commiss ion may est ablish or p articipate in another renewable energy tracking system, if the Commission finds that PJM-EIS's GATS is not applicable or not suited to meet the needs or requirements of the RPS. the Commission may establish or participate in another renewable energy tracking system. 3.1.7 RECs or SRECs created by Eligible Energy Resources on or after June 1, 2006 shall be valid to meet retail electricity supplier requirements, subject to Section 3.2.3 of this Regulation. 3.1.7.1 If a Generation Unit is deemed an Eligible Energy Resource under Section 3.1 and the Eligible Energy Resource's GATS account continues to be maintained in good standing, the Eligible Energy Resource may achiev e a Delaware des ignation for RE Cs or SRE Cs recorded with PJM-EIS's GATS for the calendar year being traded in GATS at the time of the Commission Staff's approval of the Eligible Energy Resource, but no earlier than June 1, 2006. 3.1.8 An Eligible Energy Resource w ill remain ce rtified unless substantive changes ar e mad e to its operational characteristics. Substantive changes include, but are not limited to c hanges in fuel type, fuel mix and generator type. An Eligible Energy Resource making substantive changes to its operational characteristics shall notify the Commission of such changes at least 30 days prior to the effective d ate o f such changes. At s uch t ime, the G eneration Unit sh all submit a r evised Application, which shall be subject to the process laid out in review and re-certification pursuant to Section 3.1 of this Regulation. 3.1.9 RECs or SRE Cs cr eated b y an Eligible En ergy Resource shall remain v alid for c ompliance, subject to Section 3.2.3 and Section 3.3.3 of this Regulation, even if that Eligible Energy Resource is subsequently decertified for eligibility. 3.2 Compliance with RPS 3.2.1 The Total Retail Sales of each Retail Electricity Product sold to End-Use Customers by a Retail Electricity Supplier dur ing any given Co mpliance Yea r sh all includ e a minimu m per centage of electrical en ergy sales fro m Eligib le En ergy Re sources and Sola r Pho tovoltaics as shown in Schedule 1. Any portion of a Retail Electric Supplier's renewable energy supply portfolio for 2007, 2008 and 2 009 Compliance Y ears th at is acquired un der wh olesale re newable en ergy supply entered into pursuant to the 2005 or 2006 Delaware Standard Offer Services ( "SOS") auctions shall be subject to the provisions of this Regu lation as shown in Schedule 2 below that were in effect on the date of the 2005 or 2006 SOS auction. SCHEDULE 1 Compliance Year (beginning June 1st) Cumulative Minimum Percentage from Solar Photovoltaics Energy Resources Minimum Cumulati ve Perc entage from Eligible Energy Resources 2007 2.0% 2008 0.011% 3.0% 2009 0.014% 4.0% 2010 0.018% 5.50% 2011 0.04820% 7.0% 2012 0.09940% 8.5% 2013 0.20160% 10.0% 2014 0.35480% 11.5% 2015 0.559 1.0% 13.0% DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 2016 0.803 1.25% 14.5% 2017 1.11250% 16.0% 2018 1.54775% 18.0 17.5% 2019 2.005% 2019.0% 2020 2.25% 20.00% 2021 2.50% 21.00% 2022 2.75% 22.00% 2023 3.00% 23.00% 2024 3.25% 24.00% 2025 3.50% 25.00% SCHEDULE 2 Compliance Year (beginning June 1st) Minimum Cumulative Percentage from Solar Photovoltaics Energy Resources Minimum Cumulative Percentage from Eligible Energy Resources 2007 1.00% 2008 0.011% 1.50% 2009 0.014% 2.00% 2010 0.018% 5.00% 2011 0.048% 7.00% 2012 0.099% 8.50% 2013 0.201% 10.00% 2014 0.354% 11.50% 2015 0.559% 13.0% 2016 0.803% 14.5% 2017 1.112% 16.00% 2018 1.547% 18.00% 2019 2.005% 20.00% Minimum Cumulative Percentage from Eligible Energy Resources includes the Minimum Cumulative Percentage from Solar Photovoltaics 3.2.2 A Retail Electricity Supplier's compliance with Schedule 1 shall be based on accumulating RECs and SRECs equivalent to the current Compliance Year's Cumulative Minimum Percentage of Total Retail Sales of each Retail Electricity Product sold to End-Use Customers and subject to Section 3.2.3 and, where appropriate, Commission regulations.1 Such RECs and SREC’s shall be filed annually with the Commission within 120 days following the completion of the Compliance Year. 3.2.3 Each Retail Electricity Supplier can provide no more than 1% of each Compliance Year's Total Retail Sales from Eligible En ergy Resour ces op erational be fore Decemb er 31 , 1997. Th e remainder of eachyear's retail sales, up to the required amount as specified in Section 3.2.1 of this Re gulation mu st come from New Renewable Ge neration resources. In Compliance Year 20206 and for each Compliance Year thereafter, all Eligible Energy Resources used to meet the 1. The Co mmission und erstands th e legislation to mea n that th e Total Retail Sales of each R etail E lectricity Product sold to End-Use Customers during a given Compliance Year shall include a minimum percentage of SRECs and RECs de termined by the curr ent Cumu lative M inimum Pe rcentage a s defined in Sched ule 1 or Schedule 2 . The Co mmission shall, in another proceeding, f urther d efine h ow SREC s a nd R ECs from G reen Power products, as that term is defined in Commission Docket Number 49, are to be tracked and utilized for compliance in the RPS. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS cumulative m inimum percentage re quirements set by the Commis sion rules shall be New Renewable Generation Resources. 3.2.4 A Retail Electricity Supplie r shall not use REC s or SR EC’s used to satisfy an other state's renewable en ergy p ortfolio r equirements for co mpliance with Schedule 1. A Retail Elec tricity Supplier may sell or transfer any RECs or SRECs not required to meet this Regulation. 3.2.5 On or after June 1, 2006, Eligible Energy Resources may create and accumulate RECs or SRECs for the purposes of calculating compliance with the RPS. 3.2.6 Aggregate generation from small Eligible Energy Resources, 100 kilowatts of capacity or less, may be used to meet the requirements of Schedule 1, or Schedule 2 provided that the generators or their agents, on an annual basis, document the level of g eneration, as recorded by appropriate metering. 3.2.7 A Retail Electricity Supplier or Rural Electric Cooperative shall receive 300% credit toward meeting the Minimum Cumulative Percentage from Eligible Energy Resources of Schedule 1 or Schedule 2 of the RPS for energy derived from the following sources installed on or before December 31, 2014: 3.2.7.1 Customer-Sited solar photovoltaic physically located in Delaware; or 3.2.7.2 A fuel cell powered by Ren ewable Fuels, for Retail Electricity Suppliers , and a fuel c ell sited in Delaware for Rural Electric Cooperatives. 3.2.8 A Retail Electricity Supplier or Rural Electric Cooperative shall receive 150% credit toward meeting the RPS for wind energy installations sited in Delaware on or before December 31, 2012. 3.2.9 A Co mmission regulated electric co mpany s hall r eceive 35 0% cr edit toward meeting the Renewable Energy Portfolio Standards established for energy derived from off-shore wind energy installations sited off the Delaware coast on or before May 31, 2017. 3.2.9.1 To be entitled to 350% credit, contracts for energy and renewable energy credits from such off-shore win d en ergy in stallations m ust be e xecuted b y Co mmission r egulated ele ctric companies prior to commencement of construction of such installations. 3.2.9.2 Commission regulated electric companies shall be entitled to such multiple credits for the life of co ntracts for renewable energy credits from off-shore wind inst allations executed pursuant to section 3.2.9. 3.2.10 A Retail Electricity Supplier or a Rural Electric Cooperative shall receive an additional 10% credit toward meeting the RPS for solar or wind energy installations sited in De laware provided that a minimum o f 5 0% o f th e cos t o f th e r enewable en ergy eq uipment, inc lusive o f m ounting components, are manufactured in Delaware. 3.2.11 A Retail Electricity Supplier or a Rural Electric Cooperative shall receive an additional 10% credit toward meeting the RPS for solar or wind energy installations sited in Delaware provided that the facility is constructed and/or installed with a minimum of 75% in-state workforce. 3.2.102A Retail Electricity Supplier or a Rural Electric Cooperative shall receive credit toward meeting the RPS for electricity derived from thefraction of eligible landfillgas, biomass or biogas combined with other fuels (for a Rural Electric Cooperative the Eligible Energy Resource must be sited in Delaware). 3.2.113 Cumulative minimu m percentage req uirements of Eligible Energy Resources and Solar Photovoltaic Resources shall be established by Commission rules for Compliance Year 20206 and each subsequent year. In no case sha ll the minimum percentages established by Commission rules be lower than those required for Compliance Year 201925 in Schedule 1 or Schedule 2 . Each of the rules setting such minimum percentage shall be adopted at least two years prior to the minimum percentage being required. 3.2.124 Beginning in Compliance Year 2010, and in each Compliance Year thereafter, the Commission may review the status of Schedule 1 and Schedule 2 and report to the legislature on the status of the pa ce of the scheduled p ercentage in creases toward the g oal of 20 5%. If the Commis sion concludes at this time that the schedule either needs to be accelerated or decelerated, it may also make recommendations to the General Assembly for legislative changes to the RPS. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 3.2.135 Beginning in Compliance Year 2014, and in each Compliance Year thereafter, the Commission may, in th e eve nt of cir cumstances spe cified in this sub section an d after co nducting he arings, accelerate or slow the scheduled percentage increases towards meeting the goal of 205%. The Commission may only s low the increases if t he Co mmission find s that at least 30% of RPS compliance has be en me t thr ough the ACP or SACP f or th ree (3 ) c onsecutive ye ars, de spite adequate planning by the Retail Ele ctricity Suppliers. The Commission may only accelerate the scheduled percentage increases after finding that the average price for RECs and SRECs eligible for RPS co mpliance ha s, fo r two (2) co nsecutive year s, be en be low a pr edetermined market- based price threshold to be established by the Commission. The Commission shall establish the predetermined ma rket-based price thr eshold in co nsultation with the Dela ware Energy Office. Rules that would alter the percentage targets shall be promulgated at least two years before the percentage change takes effect. In no event shall the Commission reduce the percentage target below any level reached to that point. 3.2.16 The minim um per centages from Eligible Energy Resou rces and Sola r Ph otovoltaic Ener gy Resources as shown in Schedule 1 may be frozen for Commission-regulated electric companies as authorized by, and pursuant to, 26 Del.C. § 354(i)-(j). For a freeze to occur, the Delaware Energy Office must determines that the cost of complying with the requirements of this Regulation exceeds, for Solar Photovoltaic Energy Resources, 1%, and for Eligible Energy Resources, 3%, of the total retail cost of electric ity for retail elec tricity suppliers during the same compliance year. The total cost of compliance shall include the costs associated with any ratepayer funded state renewable energy rebate program, REC and SREC purchases, and ACPs and SACPsalternative compliance payments. 3.2.16.1 Once frozen, the minimum cumulative requirements shall remain at the percentage for the compliance year in which the freeze was instituted. 3.2.16.2 The freeze may be lifted only u pon a fin ding b y the S tate En ergy Coo rdinator, in consultation with th e Co mmission, th at the total cost of co mpliance can re asonably be expected to be under the 1% or 3% threshold, as applicable. 3.2.17 The Renewable Energy Taskforce shall be formed for the purpose of making recommendations about the establish ment o f tr ading me chanisms and other str uctures to su pport the gr owth of renewable energy markets in Delaware according to 26 Del.C. §360(d). 3.3 Verification of Compliance with the RPS 3.3.1 Within 120 days of the end of a comp liance year, each Retail Electricity Supplier who has made sales to an End-use Customer in the State of Delaware must submit a completed Retail Electricity Supplier's Verification of Compliance with the Delaware Renewable En ergy Po rtfolio St andard Report (Report) which includes, but is not limited to, evidence of the specified number of SRECs and RECs required for that Compliance Year according to Schedule 1 or Schedule 2 and the Total Retail Sales of each Retail Electricity Product. 3.3.2 SRECs or RECs must have been created by PJM-EIS's GATS, or its successor at law or pursuant to Section 3.1.6.1 of this Regulation. 3.3.3 SRECs or RECs, submitted for compliance with this Regula tion, may be dated no earlier than three (3) years prior to the beginning of the current Compliance Year. 3.3.4 The three (3) year period referred to in 3.3.3 sh all be tolled during any period that a renewable energy credit or solar renewable energy credit is held by the SEU as defined in 29 Del.C. §8059. 3.3.5 In lieu of standard means of compliance with the RPS, any Retail Electricity Supplier may pay into the Fund a SACP or ACP pursuant to the provisions of , and in such amounts as stated in, 26 Del.C. §358, or in such other amounts as may be determined by the State Energy Coordinator of the Delaware Energy Office consistent with 26 Del.C. §354(a)(d)-(e). 3.3.6 The Commission Staff shall notify any Retail Electricity Supplier of any compliance deficiencies within 165 days of the close of the cur rent Compliance Year. If the Retail Electricity Supplier is found to be deficient by the Commission Staff, the Retail Electricity Supplier shall be required to pay th e ap propriate ACP or SACP, accor ding to Sectio n 3 .3.4 of th is Re gulation. All su ch DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS payments shall be due within 30 days of notification by the Commission Staff. Upon receipt of payment, the Retail Electricity Supplier shall be found to be in compliance for that given year. 3.3.7 All compliance payments, made by the Retail Electricity Supplier, shall be payable to the Delaware Green Energy Fund and sent to the Commission. 11 DE Reg. 1670 (06/01/08) 12 DE Reg. 1110 (02/01/09) 13 DE Reg. 952 (01/01/10) 4.0 Recovery of Costs 4.1 A Retail Electricity Supplier may recover, through a non-bypassable surcharge on its supply portion of the bill, actual dollar for dollar co sts incurred in complying with the State of Delaware's RPS, except that any compliance fee assessed pursuant to Section 3.3.4 and its subsections of these Rules and Regulation shall be recoverable only to the extent authorized by Section 4.2 of this Regulation. 4.2 A Retail Electricity Supplier may recover any ACP or SACP if the payment of an ACP or SACP is the least cost measure to ratepayers as compared to the purchase of RECs and SRECs to comply with the RPS; or if there are insufficient RECs and SRECs available for the Retail Electricity Supplier to comply with the RPS. 4.3 Any cost recovered under this section shall be disclosed to cu stomers at least annually on in serts accompanying customer bills. 4.4 Special provisions for customers of Public Service Commission regulated electric companies. All costs arising out o f c ontracts e ntered int o by a C ommission re gulated e lectric co mpany pursuant to 2 6 Del.C. §1007 (d) shall be distributed among the entire Delaware customer base of such companies through an adjustable non-bypassable charge which shall be established by the Commission. Such costs shall be recovered if incurred as a result of such contracts unless, after Commission review, any such costs are determined by the Commission to have been incurred in bad faith, are the product of waste or out of an abuse of discretion, or in violation of law. 11 DE Reg. 1670 (06/01/08) 12 DE Reg. 1110 (02/01/09) 5.0 Other General Rules 5.1 Under Delaware's Fr eedom o f Infor mation Act, 29 Del.C. ch. 100, all information filed w ith the Commission is c onsidered of pu blic r ecord un less it con tains "tra de se crets a nd com mercial or financial information obtained from a person which is of a privileged or confidential nature." 29 Del.C. §10002(d)(2). To qu alify as a n on-public r ecord under this e xemption, ma terials received by the Commission must be clearly and conspicuously marked on the title page and on every page containing the sensitive information as "proprietary" or "confidential" or words of similar effect. The Commission shall presumptively de em all in formation so d esignated to be exemp t fro m pu blic reco rd st atus. However, upon receipt of a request for access to information designated proprietary or confidential, the Commission may review the appropriateness of such designation and may determine to release the information requested. Prior to such release, the Commission shall provide the entity that submitted the information with reasonable notice and an opportunity to show why the information should not be released. 5.2 Any End-Use Customer, Retail Electricity Supplier, Eligible Energy Resource, potential Eligible Energy Resource or other interested party to which this Regulation may apply may file a complaint with the Commission pu rsuant to th e Rules of Practice and Proce dure of the De laware Pu blic Service Commission. 5.3 The failure to comply with this Regulation may result in penalties, including monetary assessments, suspension or revocation of eligibility as an Eligible Energy Resource, or other sanction as determined by the Commission consistent with 26 Del.C., §205(a), §217, and §1019. 10 DE Reg. 151 (07/01/06) 11 DE Reg. 1670 (06/01/08) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS DEPARTMENT OF TRANSPORTATION DIVISION OF TRANSPORTATION SOLUTIONS Statutory Authority: 17 Delaware Code, Section 141; 29 Delaware Code, Section 8404(8) 17 Del.C. §141; 29 Del.C. §8404(8) PUBLIC NOTICE 2403 Special Events Policies and Procedures—Traffic Management Under Title 17 of the Delaware Code, Section 141, as well as 29 Delaware Code Section 8404(8), the Traffic Section of the Delaware Department of Transportation (DelDOT), has the authority to regulate the traffic impacts of special events that affect the safe movement of traffic on the State’s transportation network. The Department has now drafted regulations for this purpose, and this draft accompanies this notice. The Department will take written comments on the draf t Special Event Policies and Proc edures regulations from December 1, 2010 through December 31, 2010. Copies of the draft Regulations can be obtained by reviewing or downloading a PDF copy at the following web address: http://regulations.delaware.gov/ Questions or comments regarding these proposed changes should be directed to: Adam Weiser, P.E., Traffic Section, Division of Transportation Solutions, Delaware Department of Transportation 169 Brick Store Landing Road Smyrna, DE 19977 (302) 659-4073 (telephone) (302) 653-2859 (fax), or email to: adam.weiser@state.de.us 2403 Special Events Policies and Procedures—Traffic Management 1.0 Introduction 1.1 Planned spe cial e vents includ e, b ut ar e n ot limite d to, spo rting even ts, co ncerts, festiva ls and conventions occurring at permanent multi-use venues. They also include less frequent public events such as p arades, fireworks displays, bicy cle rac es, sporting games, motorcycle rallies , marathons, seasonal festivals and block parties which may occur at temporary venues. A planned special event often cr eates th e n eed to e stablish altered traffic patterns to ha ndle the incr eased tra ffic volu mes generated by the event and traffic diverted due to the event. The size of the temporary traffic control (TTC) zone associated with a planned spe cial e vent can be small, such as closin g a str eet for a festival, or can extend throughout a municipality for larger events. 1.2 Planned special events can have direct and indirect impacts on the transportation system. Events that have direct impacts to the transportation system are those that require full roadway or lane closures to accommodate the needs of the event. Events having indirect impacts to the transportation system are those types of events that attract large crowds affecting normal traffic flow on Delaware’s roadways. 1.3 The purpose of th is Special Events Policy is to outline the r equirements for obt aining a permit to conduct a spec ial event that will imp act roadw ays in the S tate of Delaware and to des cribe the temporary traffic control that may be required to ensure the least impact to the traveling public and to provide a reasonably safe venue for the event. In addition, the policy identifies the requirements for developing necessary temporary traffic control plans as well as identifying the parties responsible for providing tem porary tr affic con trol and dete rmining who p ays th e cost s of su ch temp orary tra ffic control. 2.0 Legal Authority 2.1 Title 17, Chapter 1, Subchapter III, Section 141 of the Delaware Code gives the Delaware Department of Transportation jurisdiction and control over all state highways outside the limits of incorporated cities and towns for the purpose of regulating traffic and for the use and operation of all vehicles thereover, and gives the Department the authority to adopt any and all rules and regulations respecting the use of such highways and the operation of all vehicles upon the same. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 2.2 For state maintained roadways within the corporate limits of munic ipalities, the loc al government is responsible for approving the special event after consultation with the Department of Transportation. All temporary traffic control for special events inside the limits of municipalities shall comply with the requirements of the Delaware Manual on Unifor m Traffic Control Devices (DE MUTCD ). For thos e events occu rring on st ate ma intained ro adways wi thin the corporate limit s of municip alities, the temporary traffic control shall be reviewed and approved by DelDOT. DelDOT shall also be consulted for those events that occur on n on state maintained roadways, but divert traffic to state maintained roadways. 3.0 Special Event Permit Application 3.1 The Delaware Department of Transportation (DelDOT) requires the organizer of a planned special event that impacts the transportation system to get approval from the Department to hold such events and to review any temporary traffic control that is necessary for the event to occur. Event organizers are required to fill out D elDOT’s Special Event Permit Application and su bmit the com pleted application to the Special Events Coordinator in the Traffic Safety Section. This form can be emailed by clicking the ap propriate button at the top o f th e application. The Dep artment’s S pecial Ev ents Coordinator will review the application and the location of the event and determine if temporary traffic control measures or other requirements are needed to safely conduct the event and to minimize the impacts to the transport ation system. If additional informat ion is ne eded, the S pecial Eve nts Coordinator will coordinate that in formation with the event organizer. Once all requirement s are satisfied, an app roved cop y o f the Special Event Permit Application will be provided to the ev ent organizer. An approved copy will be held by the Traffic Safety Section. 3.1.1 The following types of Planned Special Events require a Special Events Permit from the DelDOT: 3.1.1.1 Events with a direct impact on the transportation system. These events typically require lane and/or complete road closures. 3.1.1.2 Events with an indirect impact on the transportation system. These events typically occur off of the roadway but attract large crowds which could affect normal traffic flow on Delaware’s roadways 3.2 Special Event Permit Application Procedures 3.2.1 The Special Event Permit Application shall be filled out by the ev ent organizer and submitted to the Department no fewer than 90 days pr ior to the beginning of the event. The Special Event Permit Application can be found at: http://www.deldot.gov/information/community_programs_and_services/planned_spec_events/index.shtml 3.2.2 The following information is required to be shown on the permit application: 3.2.2.1 Event Organizer Information 3.2.2.1.1 Applicant’s name, address, phone number and e-mail address 3.2.2.1.2 Organization name, address and phone number, if applicable 3.2.2.2 Event Information 3.2.2.2.1 Name and location of event 3.2.2.2.2 Type of event 3.2.2.2.3 Date of event (start and end dates) 3.2.2.2.4 Time of event (start and end times) 3.2.2.2.5 Name of a cont act per son that will be the Department’s dir ect cont act du ring the planning stages of th e e vent. A p hone number a nd em ail address sh ould a lso be provided. 3.2.2.2.6 Name of a cont act p erson in cluding ad dress and a phone number at which th at person can be reached during the day(s) of the event. 3.2.2.2.7 Proposed ro uting for the event, if th e even t is a bike ra ce, ma rathon or other on- roadway event. 3.2.2.3 Temporary Traffic Control Plan DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 3.2.2.3.1 Identify if the event will require the cl osure of any S tate maint ained roadways or intersections. If yes, list the roads or intersections that will be closed. 3.2.2.3.2 Identify if the event will requi re the c losure of any lanes on S tate maint ained roadways. If yes, list the lanes to be closed on each roadway. 3.2.2.3.3 A temporary traffic control plan, if lanes or entire roadways will be closed. Information regarding temp orary traffic control pl ans can b e fou nd in Section III an d IV of this policy. 3.2.2.3.4 Detailed temporary traffic control plans shall be submitted to the Department’s Special Events Coordinator no less than six (6) weeks prior to the start of the event. 3.2.2.4 Additional Information 3.2.2.4.1 Identify provisions for medical treatment during the event 3.2.2.4.2 Identify provisions for sanitary facilities during the event 3.2.2.4.3 Identify pr ovisions for po lice or fire p olice a ssistance during t he ev ent. I f a s igned agreement exists between the police agency and the event organizer, a copy of the agreement should be included with the application. 3.2.3 The completed application can be electronically submitted to the Special Events Coordinator by clicking on the email button at the top of the application. If the applicant desires to mail a printed version of the application, it can be sent to the following address: Delaware Department of Transportation Traffic Safety Section Special Events Coordinator 169 Brickstore Landing Road Smyrna, DE 19977 4.0 Event Traffic Control 4.1 Planned special events typically have impacts on the transportation system and these impacts can be classified as either direct or indirect. Some events have both types of impacts. This section describes the necessary temporary traffic control that is required for those events that have direct impacts on the transportation system. In addition, it describes how the event organizer works with DelDOT on the development o f a T ransportation Operations Plan fo r th ose e vents with a n in direct imp act on the transportation system. Guidelines for the use of law enforcement and the use of Portable Changeable Message Signs (PCMS) are also provided. 4.2 Events with Direct Impacts on the Transportation System: 4.2.1 Planned specia l events with dir ect im pacts o n th e tr ansportation system ar e those events th at require a lane or roadway closure in order for the event to take place. These types of events may include but are not limited to bike races/tours, marathons, block parties, parades and festivals. In order to sa fely a nd e fficiently move tr affic around t he e vent area, t emporary t raffic co ntrol is required and shall comply with the provisions of Part 6 of the Delaware Manual on Uniform Traffic Control Devices (DE MUTCD). This information can be found at: http://www.deldot.gov/information/pubs_forms/manuals/de_mutcd/index.shtml 4.2.2 For events that have direct impacts on the transportation system, the event organizer shall submit a temporary traffic control plan to DelDOT for review and approval. 4.2.3 Special Events Requiring Lane or Shoulder Closures: 4.2.3.1 Planned specia l event s with dir ect impacts o n the tr ansportation system may re quire th e closure of on e o r mo re travel lanes or a shoulder on a two -lane ro adway or multi-lane highway. In order to move traffic safely around the event area, temporary traffic control is required. In most situations, typical temporary traffic control cases from the DE MUTCD should be used and the applicable cases are listed below: 4.2.3.1.1 Two-Lane, Two-Way Traffic Shoulder Closure 4.2.3.1.2 Multilane, Divided, Non-Access Controlled Highways – Shoulder Closure DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 4.2.3.1.3 Two-Lane, Two-Way Traffic Lane Closure 4.2.3.1.4 Multilane, Divided Highways and Interstates – Lane Closure 4.2.3.2 In most situations a copy of the standard temporary traffic control case and the accompanying standard notes can be submitted for review by DelDOT. There are some instances that may require additional temporary traffic control devices and this will be determined by DelDOT through consultation with the applican t. Temporary traffic control plans must be submitted no fewer than six (6) weeks prior to the event. 4.2.3.3 Several of the standard temporary traffic control cases noted above allow the use of flaggers or require the use of flaggers to move traffic through the affected area. Due to the dangers associated with directing traffic, the only people allowed to perform flagging operations on Delaware’s roadways are the following: 4.2.3.3.1 A person with a valid flag ger registration car d from the Ame rican T raffic Safety Services Asso ciation (A TSSA). That per son shall ha ve their flagg er card in their possession while performing flagging duties. 4.2.3.3.2 Uniformed Fire Police 4.2.3.3.3 Uniformed Local Police 4.2.3.3.4 Uniformed State Police 4.2.3.4 All pe rsonnel pe rforming fla gging du ties shall we ar a sa fety v est in ac cordance wit h the Delaware MUTCD. All temporary traffic control devices shall conform to the requirements of the Delaware MUTCD. 4.2.4 Special Events Requiring Roadway Closures 4.2.4.1 Planned special events with direct impacts on the transportation system may require the full closure of one or more roadways. In order to move traffic safely around the event area, temporary tr affic c ontrol and a s igned d etour route is re quired. Detou r r outes shall be determined by DelDOT and an official detour plan with the proper approval signatures will be developed by DelDOT for the applicant. Requests for detour plans shall be submitted to DelDOT no less than six (6) weeks prior to the event. Depending upon the duration of the closure, law enforcement personnel may be used to direct traffic around the closure area, in lieu of providing a signed detour route. The use of law enforcement officers in lieu of a signed detour will be determined by DelDOT in consultation with the applicant. 4.3 Events with Indirect Impacts on the Transportation System 4.3.1 Planned Special Events may have an indirect impact on the transportation system based on the number of event participants or attendees. Events that have indirect impacts on the transportation system include concerts, sporting events, fairs/carnivals and other events that attract large crowds of people. While these events may not require the closure of roads or lanes, they do create an impact to existing traffic due to the increased traffic volumes (vehicular and/or pedestrian volumes) that are experienced, sometimes on roadways that are not designed for the increased traffic or pedestrians. To mitigate these impacts, it is necessary to develop a Transportation Operations Plan to determine how traffic will be managed when patrons are arriving at or leaving the event and how the event traffic will interact with existing traffic. If in addition, to having indirect impacts on the transportation system, the event requires the closure of roadways or lanes, please refer to the previous section for additional information. 4.3.2 The development of the Trans portation Operations Plan will typica lly be completed by DelDOT’s Traffic Section with input provided by Safety and Transportation Management Center staff and the event organizer. DelDOT and the event organizer will also meet with the state police to discuss the plan. If the event is within the limits of a municipality , DelDOT and the event organizer will also meet with the local police and other local authorities having jurisdiction. The following items are typically reviewed and determined during the plan development: 4.3.2.1 Location of event, event parking and entrances/exits to/from the event area. 4.3.2.2 Roadways surrounding the event area and expected road closures 4.3.2.3 Locations for traffic control points during entry and exit DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 4.3.2.4 Locations for parking payment, credential checks, etc. 4.3.2.5 Lane closures to accommodate entry and exit maneuvers from the event area to minimize impacts to existing traffic and to allow for free flow movements. 4.3.2.6 Pedestrian movements around the event area to provide reasonably safe pedestrian passage 4.3.2.7 Locations for po rtable cha ngeable me ssage sign s to dir ect r oad user s to an d ar ound th e event. 4.3.2.8 Locations for traffic management devices such as portable traffic cameras, portable detection units, etc. 4.3.3 The planning process for these types of events needs to start early in order to ensure a smooth event. The event organizer shall submit the Special Event Permit Application to DelDOT no fewer than 9 0 days pr ior t o t he b eginning of th e event. Once th e p ermit is r eceived b y D elDOT, a meeting will be scheduled with th e event organizer and other app licable parties to discuss the event and any operational concerns. This meeting will be scheduled eight (8) weeks prior to the event date. The final transportation operations plan, with approved permit, will be completed four (4) weeks prior to the ev ent date. The Transportation Operations Plan will include locations of all devices necessary to carry out t he plan, including locations of all lane or roadway closures that may be necessary to facilitate event traffic around the event area. 4.4 Use of Law Enforcement for Planned Special Events 4.4.1 Law enforcement officers (State Police, Local Police and/or Fire Police) may be needed to assist with tra ffic con trol d uring a p lanned special event. La w en forcement ma y also b e n eeded to provide esc orts fo r ce rtain types of ev ents su ch as fo ot races, bike races or pa rades. It is the responsibility of the event organizer to secure the appropriate number of law enforcement officers that are needed for the event and the costs of using law enforcement officers, if applicable, are the responsibility of the event organizer. 4.5 Use of Portable Changeable Message Signs 4.5.1 Portable Changeable Message Signs (PCMS) are portable devices that can display a variety of transportation rel ated me ssages. The se devices may be useful for a pla nned specia l event to direct attendees to parking areas and to direct other road users around the event to avoid traffic delays. Th e use of PCM S is gover ned by th e Delawar e MUTCD and the se devices may only display transportation related messages. They cannot be used to advertise the event or provide other non-transportation related messages to the traveling public as the device themselves can present a distraction to motorists if not used properly. 4.5.2 DelDOT has developed an approval form that must be submitted to receive approval to use PCMS in DelDOT’s right-of-way. This form can be found at: http://www.deldot.gov/information/pubs_forms/manuals/de_mutcd/pdf/PCMS_Approval_Form.doc 4.5.3 Additional information regarding the use of PCMS can be found in Part 6 of the Delaware MUTCD and in the memorandum titled “Portable Changeable Message Signs,” which can be found at: http://www.deldot.gov/information/pubs_forms/manuals/de_mutcd/pdf/Portable_Changeable_Message_Signs.pdf 5.0 Event Organizer Responsibilities 5.1 The even t or ganizer must ensu re that t he f ollowing pre-event and e vent d ay activities h ave been conducted: 5.1.1 Pre-Event Activities 5.1.1.1 Submit the Special Events Application to the Traffic Safety Section no fewer than 90 days prior to the event. 5.1.1.2 Meet with r epresentatives from DelDOT, no fewer than eight weeks prior to the event, to discuss and develop a transportation operations plan, if one is required for the event. 5.1.1.3 Submit the Temporary Traffic Control Plan to the Traffic Safety Section no fewer than six weeks prior to the event. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS 5.1.1.4 Notify the local or st ate police and fire companies no fewer than 60 days prior to the event regarding the proposed lane closures and event location. 5.1.1.5 Notify DelDOT’s Public Relations Section no fewer than 10 days prior to the event to have a press release issued notifying the public that lanes or roads will be closed within the event area. The Public Relations Section can be reached at (302) 760-2080 5.1.2 Event Day Activities 5.1.2.1 Contact the DelDOT Transportation Management Center no fewer than one hour prior to the event to notify of the impending lane closures. The Transportation Management Center can be reached at (302) 659-4600. 5.1.2.2 Place all temporary traffic control devices in accordance with the approved temporary traffic control plan and the Transportation Operations Plan, if an operations plan was developed. 5.1.2.3 A designated person must monitor the temporary traffic control devices and adjust as needed. 5.1.2.4 At th e conclu sion of the e vent, all temp orary tra ffic co ntrol devices must imme diately be removed from the roadway and the roadway restored to its normal conditions. 5.1.2.5 Contact the De lDOT Transportation M anagement Ce nter u pon r estoring t he ro adway t o normal conditions to notify of the completed event and removal of traffic restrictions. 5.2 In the even t of an emergency, th e e vent or ganizer may b e r equired to im mediately re open the roadway. Upon notification by a DelDOT official or law enforcement personnel, the event organizer shall immediately restore the roadway to normal operations. 5.3 The e vent or ganizer o r event p articipants sh all no t erect a ny ad vertising s igns o r other non-traffic control signs within DelDOT’s right-of-way. The event organizer or event participants shall not paint any markings on the roadway(s) within the event location. 6.0 Costs 6.1 As of this time, there are no permit fees for the Special Events Permit Application. In addition, there are no fees charged by DelDOT to develop temporary traffic control plans, detour plans or transportation operations plans. 6.2 The even t or ganizer is responsible for th e co sts associated with temporary traf fic control for a particular planned special event. These costs may include, but will not be limited to, the procurement of the required compliant temporary traffic control devices, the use of portable changeable message signs and labor associated with the installation and removal of temporary traffic control devices. The event organizer may request DelDOT’s assistance with the deployment of the temporary traffic control plan and/or the transportation operations plan, however, the Department must be reimbursed for all equipment and lab or co sts a ssociated with the even t. If th e e vent or ganizer re quests Del DOT assistance, the D epartment w ill generate a cost es timate and will send the c ost estimate and a concurrence le tter to th e e vent o rganizer f or re view. If the e vent or ganizer c oncurs with the cost estimate, the event organizer shall sign the concurrence letter and send it back to DelDOT. No charges will be incurred until af ter the event is completed. Upon completion of the event, the Dep artment will contact the event organizer, review all c osts incurred and then the Dep artment will send the ev ent organizer a bill for services rendered. 6.3 If the event organizer does not utilize DelDOT forces for the deployment of the temporary traffic control plan or transportation operations plan, the event organizer shall procure the necessary devices and labor from entities that have experience with temporary traffic control. Failure to have the necessary provisions in place for the day of the event will result in the revocation of the Special Events Permit and will result in the removal of all event participants from DelDOT’s right-of-way. 7.0 Coordination of Special Events There may be instances where two or more planned special events occurring in close proximity to each other will be scheduled for the same day(s). If this is the case, the Special Events Manager for DelDOT will meet with the event organizers from eac h event and determine how best to manage potential conflicts between events. This may require modifications to event routes, event traffic control DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 PROPOSED REGULATIONS plans and event schedules. DelDOT reserves the right to direct these changes to prevent event traffic control and ev ent routes from overlapping. Failure to c omply with DelDOT’ s changes will res ult in revocation of the Special Events Permit. 8.0 Revocation of Permit by DelDOT 8.1 Failure to comply with the ap proved temporary tr affic con trol pla n, the provisions of th e ap proved Special Ev ents Permit or failure to complete the pre-event and/or event day ac tivities will result in revocation of th e ap proved S pecial Event s Per mit. DelDOT res erves the right to st op the ev ent activities and restor e the roadway to no rmal cond itions if the ap proved tem porary traffic con trol is conducted in an unsafe manner or if there are unforeseen traffic delays experienced as a result of the special event. 8.2 The even t organizer or event p articipants shall n ot erect a ny ad vertising s igns o r other n on-traffic control signs within DelDOT’s right-of-way. The event organizer or event participants shall not paint any markings on the roadway(s) within the event location. Failure to comply will result in the revocation of the Special Events Permit, immediate removal of all participants from DelDOT’s right-of-way. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS Symbol Key Arial type indicates the text existing prior to the regulation being promulgated. Underlined text indicates new text added at the time of the proposed action. Language which is stricken through indicates text being deleted. [Bracketed Bold language] indicates text added at the time the final order was issued. [Bracketed stricken through] indicates language deleted at the time the final order was issued. Final Regulations The opportunity for public comment shall be held open for a minimum of 30 days after the proposal is published in the Register of Regulations. At the conclusion of all hearings and after receipt within the time allowed of all written materials, upon all the testimonial and written evidence and information submitted, together with summaries of the evidence and information by subordinates, the agency shall determine whether a regulation should be adopted, amended or repealed and shall issue its conclusion in an order which shall include: (1) A brief summary of the evidence and information submitted; (2) A brief summary of its findings of fact with respect to the evidence and information, except where a rule of procedure is being adopted or amended; (3) A decision to adopt, amend or repeal a regulation or to take no action and the decision shall be supported by its findings on the evidence and information received; (4) The exact text and citation of such regulation adopted, amended or repealed; (5) The effective date of the order; (6) Any other findings or conclusions required by the law under which the agency has authority to act; and (7) The signature of at least a quorum of the agency members. The effective date of an order which adopts, amends or repeals a regulation shall be not less than 10 days from the date the order adopting, amending or repealing a regulation has been published in its final form in the Register of Regulations, unless such adoption, amendment or repeal qualifies as an emergency under §10119. DEPARTMENT OF AGRIGULTURE HARNESS RACING COMMISSION Statutory Authority: 3 Delaware Code, Section 10005 (3 Del.C. §10005) 3 DE Admin. Code 501 ORDER 501 Harness Racing Rules and Regulations Pursuant to 29 Del.C. §10118 and 3 Del.C. §10005, the Delaware Harness Racing Commission issues this Order adopting proposed amendments to the Commission’s Rules. Following notice and a public hearing on October 12, 2010, the Commission makes the following findings and conclusions: SUMMARY OF THE EVIDENCE 1. The Commission posted public notice of the proposed amendments to DHRC Rule 7.6.6.7 in the September 1, 2010 Register of Regulations (Volume 13, Issue 3) and for two consecutive weeks in September in The News Journal and Delaware State News. The Commission proposed to update Rule 7.6.6.7 in its entirety after Rules Committee review. 2. The Commission received no written comments. The Commission held a public hearing on October 12, 2010, in which no public comments were made. FINDINGS OF FACT AND CONCLUSIONS The public was given notice and an opportunity to provide the Commission with comments in writing and by testimony at the public hearing on the proposed amendments to the Commission’s Rules. After considering the rule changes as proposed, the Commission hereby adopts the rule changes as proposed. The Commission believes that these rule changes will allow the Delaware Harness Racing Commission rules to DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS more accurately reflect current policy and procedures. The effective date of this Order will be ten (10) days from the publication of this Order in the Register of Regulations on December 1, 2010. IT IS SO ORDERED this 1st of November, 2010. Beverly H. Steele, Chairman Larry Talley, Commissioner Robert (Breezy) Brown, Commissioner Patt Wagner, Commissioner George P. Staats, Commissioner 501 Harness Racing Rules and Regulations *Please note that no changes were made to the regulation as originally proposed and published in the September 2010 issue of the Register at page 134 (14 DE Reg. 134). Therefore, the final regulation is not being republished. A copy of the final regulation is available at: 501 Harness Racing Rules and Regulations DEPARTMENT OF EDUCATION OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 225 ORDER 225 Prohibition of Discrimination I. Summary of the Evidence and Information Submitted The Secretary of Education intends to amend 14 DE Admin. Code 225 Prohibition of Discrimination. This regulation was reviewed pursuant to the five year review cycle. The amendment includes the addition of language to be consistent with Executive Order 8. The Executive Order continues the Governor’s Council on Equal Employment Opportunity, directs state agencies to pursue equal employment and promotional opportunity for all state employees and applicants, and includes a strong recruitment and retention component. Notice of the proposed regulation was published in the News Journal and the Delaware State News on October 4, 2010, in the form hereto attached as Exhibit “A”. Comments were received from the Governor’s Advisory Council for Exceptional Citizens and from the State Council for Persons with Disabilities endorsing the amendment. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 225 Prohibition of Discrimination in order to include language consistent with the Governor’s Executive Order 8. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 225 Prohibition of Discrimination. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 225 Prohibition of Discrimination attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 225 Prohibition of Discrimination hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS The text of 14 DE Admin. Code 225 Prohibition of Discrimination amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 225 Prohibition of Discrimination in the Administrative Code of Regulations for the Department of Education. V. Effective Date of Order The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on SBE date. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. IT IS SO ORDERED the 18th day of November 2010. Department of Education Lillian M. Lowery, Ed.D., Secretary of Education Approved this 18th day of November 2010 225 Prohibition of Discrimination 1.0 Prohibition of Discrimination No person in the State of Delaware shall on the basis of race, color, religion, national origin, sex, sexual orientation, genetic information, marital status, disability, age or Vietnam Era veteran’s status be unlawfully excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving approval or financial assistance from or through the Delaware Department of Education. 2 DE Reg. 1246 (01/01/99) 7 DE Reg. 1177 (03/01/04) 9 DE Reg. 1069 (01/01/06) OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 505 ORDER 505 High School Graduation Requirements and Diplomas I. Summary of the Evidence and Information Submitted The Secretary of Education seeks the consent of the State Board of Education to amend 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas to provide additional information related to the World Languages credit requirement that goes into effect for the Class of 2015 (freshmen 2011-2012). The regulation requiring the 2 credits in World languages was originally scheduled to go into effect for the Class of 2013. This was revised in January 2009 making the requirement effective for the Class of 2015. The recommendations of the Task Force on World Languages were taken into consideration in the proposed amendments. The definition of World Language includes American Sign Language. This was a recommendation of the Task Force and is also required by legislation, pursuant to HB 345 of the 145th General Assembly. Notice of the proposed regulation was published in the News Journal and the Delaware State News on Monday, October 4, 2010, in the form hereto attached as Exhibit “A”. The Department received comments from both the Governor’s Advisory Council for Exceptional Citizens and the State Council for Persons with Disabilities. The comments were similar. One comment was in regard to a News Journal article from 2006 referencing state DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS teachers’ union concerns that students with disabilities or those not college-bound “might benefit more from an extra year of science, social studies, or career preparation.” The Department did not receive comments from other entities related to this issue during this amendment period. Additionally, the Department would like to provide research that suggests that students with disabilities do gain valuable work-place and life skills from world language instruction; for example, Students With Disabilities: Yes, Foreign Language Instruction Is Important! (Kleinart, Harold L, et al, Teaching Exceptional Children, 39 no 3, 24-9, Jan/Feb 2007). Another comment related to the definition of “World Languages” and specifically substituting the word “people” for “peoples”. The definition proposed was established by members of the World Languages Task Force. Members included K-12 world language teachers, university professors, district and state administrators who represented all levels of education, elementary to post-secondary. The term “peoples” was used to be inclusive as a single world language may be spoken by more than one single community, tribe, nation or race. The Task Force also partially based its definition on Jensen and Sandrock’s (2007) work about the importance of using the term “world languages” instead of “foreign languages” as it reflects an understanding of “a world where peoples and cultures are in a constant state of movement and interaction …” The last comment related to students who are deaf and the proficiency standards. Currently, the regulation provides options for fulfilling the world language graduation requirement. Students may complete a minimum of two world language credits in the same language or demonstrate a novice-high or higher level of proficiency. Proficiency may be demonstrated in the areas of speaking, reading and writing using the levels of proficiency as identified by ACTFL OR as approved for use by the Delaware Department of Education. Since ASL is not a spoken language, a test demonstrating approximate skills such as receptive skills, interactive and expressive skills would be considered by the Department as an appropriate ASL equivalent. For classical languages such as Greek or Latin, the skills of listening and speaking may not be as appropriate and the Department could consider equivalent skills of reading and translation. Proficiency in modern alphabetic and logographic languages, classical languages or visual languages can still be measured using the levels of the ACTFL Proficiency Guidelines. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas in order to provide additional information related to the World Languages credit requirement that goes into effect for the Class of 2015 (freshmen 2011-2012). III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation The text of 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 505 High School Graduation Requirements and Diplomas in the Administrative Code of Regulations for the Department of Education. V. Effective Date of Order The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on November 18, 2010. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS IT IS SO ORDERED the 18th day of November 2010. Department of Education Lillian M. Lowery, Ed.D., Secretary of Education Approved this 18th day of November 2010 State Board of Education Teri Quinn Gray, Ph.D., President Gregory Coverdale Jorge L. Melendez, Vice President Terry M. Whittaker, Ed.D. G. Patrick Heffernan James L. Wilson, Ed.D. Barbara B. Rutt 505 High School Graduation Requirements and Diplomas *Please note that no changes were made to the regulation as originally proposed and published in the October 2010 issue of the Register at page 222 (14 DE Reg. 222). Therefore, the final regulation is not being republished. A copy of the final regulation is available at: 505 High School Graduation Requirements and Diplomas OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 746 ORDER 746 Criminal Background Check for Student Teaching I. Summary of the Evidence and Information Submitted The Secretary of Education intends to amend 14 DE Admin. Code 746 Criminal Background Check for Student Teaching for implementation of the process. Notice of the proposed regulation was published in the News Journal and the Delaware State News on October 4, 2010, in the form hereto attached as Exhibit “A”. The Department did not receive comments on the proposed amendments. II. Findings of Facts The Secretary finds that it is appropriate to amend 14 DE Admin. Code 746 Criminal Background Check for Student Teaching in order to provide additional information on the implementation process. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 746 Criminal Background Check for Student Teaching. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 746 Criminal Background Check for Student Teaching attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 746 Criminal Background Check for Student Teaching hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation The text of 14 DE Admin. Code 746 Criminal Background Check for Student Teaching amended hereby shall DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 746 Criminal Background Check for Student Teaching in the Administrative Code of Regulations for the Department of Education. V. Effective Date of Order The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on November 18, 2010. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. IT IS SO ORDERED the 18th day of November 2010. Department of Education Lillian M. Lowery, Ed.D., Secretary of Education Approved this 18th day of November 2010. 746 Criminal Background Check for Student Teaching *Please note that no changes were made to the regulation as originally proposed and published in the October 2010 issue of the Register at page 227 (14 DE Reg. 227). Therefore, the final regulation is not being republished. A copy of the final regulation is available at: 746 Criminal Background Check for Student Teaching OFFICE OF THE SECRETARY Statutory Authority: 14 Delaware Code, Section 122(b) (14 Del.C. §122(b)) 14 DE Admin. Code 930 ORDER 930 Supportive Instruction (Homebound) I. Summary of the Evidence and Information Submitted The Secretary of Education intends to amend 14 DE Admin. Code 930 Supportive Instruction (Homebound) for formatting purposes as well as clarification. The regulation was reviewed pursuant to the five year cycle. Notice of the proposed regulation was published in the News Journal and the Delaware State News on October 4, 2010 in the form hereto attached as Exhibit “A”. The Department received comments from the Governors Advisory Council for Exceptional Citizens and the State Council for Persons with Disabilities. As always, the Department appreciates the thoughtful comments provided. A comment was received related to changing language from “physician” to “physician or advanced practice nurse”. Advanced practice nurses have varying levels of authority and the Department believes changing this may cause confusion at the school level. A comment was received related to adding charter schools. This regulation is designed to address students who are not eligible to receive homebound as a result of a right created under disability laws. Such students (not eligible under the disability laws) would have no right to homebound without this regulation, and it does not appear that there is statutory authority to extend the regulation to include charter schools. Additional comments were related to language usage and whether it was “affirmative” or “non affirmative”. The Department considered the comments; however, it believes rephrasing is not needed at this time. Grammatical changes were made. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS II. Findings of Facts The Secretary of Education intends to amend 14 DE Admin. Code 930 Supportive Instruction (Homebound) for formatting purposes as well as clarification. The regulation was reviewed pursuant to the five year cycle. III. Decision to Amend the Regulation For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 930 Supportive Instruction (Homebound). Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 930 Supportive Instruction (Homebound) attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 930 Supportive Instruction (Homebound) hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation The text of 14 DE Admin. Code 930 Supportive Instruction (Homebound) amended hereby shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 930 Supportive Instruction (Homebound) in the Administrative Code of Regulations for the Department of Education. V. Effective Date of Order The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on November 18, 2010 date. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. IT IS SO ORDERED the 18th day of November 2010. Department of Education Lillian M. Lowery, Ed.D., Secretary of Education Approved this 18th day of November 2010 930 Supportive Instruction (Homebound) 1.0 Definition “Supportive Instruction” is an alternative educational program provided at home, in a hospital or at a related site for a students temporarily at home or hospitalized for a sudden illness, injury, episodic flare up of a chronic condition or accident considered to be of a temporary nature. 1.1 Procedures for eligibility shall be limited to appropriate certification that the student cannot attend school. 1.2 Services for children with disabilities as defined in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C 1400 et.seq), and its regulations (34 CFR parts 300 and 301), 14 Del.C., Ch. 31, and the State Department of Education's regulations on Children with Disabilities (14 DE Admin. Code 922 through 929) shall be provided according to the Administrative Manual: Special Education Services, in accordance with these laws and shall be processed under the district's special education authority. Nothing in this regulation shall prevent a district from providing supportive instruction to children with disabilities in a manner consistent with the Individuals with Disabilities Education Act (IDEA) and the Administrative Manual and its regulations, 14 Del.C., Chapter 31, and the Department of Education's regulations on Children with Disabilities. 1.3 Nothing in this regulation shall alter a district's duties under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act to students who are qualified individuals with disabilities. Nothing in this regulation shall prevent a district from providing supportive instruction to such students. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS 2.0 Eligibility 2.1 A student enrolled in a school district is eligible for supportive instruction when the school district receives the required certification that an accident, injury, sudden illness or episodic flare up of a chronic condition will prevent the student from attending school for at least ten (10) school days. 2.1.1 A physician must certify absences due to a medical condition. 2.1.2 Absences due to severe adjustment problems must be certified by a psychologist or psychiatrist and confirmed through a staff conference. 2.1.3 A physician must certify absences due to pregnancy complicated by illness or other abnormal conditions. 2.1.3.1 Students do A student does not qualify for supportive instruction for normal pregnancies unless there are complications. 2.1.3.2 Students A student who remain[s] enrolled in school are is eligible for supportive instruction during a postpartum period not to exceed six weeks. Postpartum absences must be certified by a physician. 2.4 Supportive instruction can be requested as an in school transitional program that follows a period of supportive instruction that was provided outside of the school setting. If the supportive instruction is provided as an in school transitional program, it must be approved through a staff conference. 9 DE Reg. 402 (9/1/05) 3.0 Implementation 3.1 Supportive instruction for a students shall begin as soon as the documentation required by 2.0 is received. Supportive instruction may continue upon the return to school setting only in those exceptional cases where it is determined that a student needs a transitional program to guarantee a successful return to the school program as delineated in setting in accordance with 2.4. 3.1.1 Supportive instruction shall adhere to the extent possible to the student's school curriculum and shall make full use of the available technology in order to facilitate the instruction. 3.1.1.1 The school shall provide a minimum of 3 hours of supportive instruction each week of eligibility for students a K to 5th grade student, and a minimum of five hours each week of eligibility for students a 6 to 12th grade student. There is no minimum for in school transition. 3.1.1.2 Nothing in this regulation shall prevent a school district [school] from providing additional hours of supportive instruction to an eligible students from either its Academic Excellence allotment [or] other available funding sources. 3.1.2 Summer instruction is permitted for a student who is otherwise eligible for supportive instruction and, as determined by the student's teachers and principal, needs the instruction to complete course work or to maintain a level of instruction in order to continue in a school program setting the following school year. 4 DE Reg. 344 (8/1/00) 4 DE Reg. 497 (9/1/00) 9 DE Reg. 402 (9/1/05) PROFESSIONAL STANDARDS BOARD Statutory Authority: 14 Delaware Code, Section 1205(b) (14 Del.C. §1205(b)) 14 DE Admin. Code 1517 REGULATORY IMPLEMENTING ORDER 1517 Paraeducator Permits I. Summary of the Evidence and Information Submitted DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS The Professional Standards Board, acting in cooperation and consultation with the Department of Education, seeks the consent of the State Board of Education to amend 14 DE Admin. Code 1517 Permits Paraeducator. It is necessary to amend this regulation in order to facilitate proper and current formatting trends, and to update renewal options. This regulation sets forth the requirements for a Paraeducator Permit. Notice of the proposed amendment of the regulation was published in the News Journal and the Delaware State News on October 1, 2010 in the form hereto attached as Exhibit “A”. The notice invited written comments. No written comments were received. II. Findings of Facts The Professional Standards Board and the State Board of Education find that it is appropriate to amend this regulation to comply with changes in statute. III. Decision to Amend the Regulation For the foregoing reasons, the Professional Standards Board and the State Board of Education conclude that it is appropriate to amend the regulation. Therefore, pursuant to 14 Del.C. §1205(b), the regulation attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), the regulation hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation The text of the regulation amended shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 1517 of the Administrative Code of Regulations of the Department of Education. V. Effective Date of Order The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. APPROVED BY THE PROFESSIONAL STANDARDS BOARD THE 4TH DAY OF NOVEMBER, 2010 Kathleen Thomas, Chair Lori Hudson Michael Casson Chris Kenton Joanne Christian David Kohan Samtra Devard Jill Lewandowski Stephanie DeWitt Wendy Murray Marilyn Dollard Whitney Price Karen Gordon Shelley Rouser Cristy Greaves Jacque Wisnauskas IT IS SO ORDERED the 18th day of November, 2010. Department of Education Lillian M. Lowery, Ed.D., Secretary of Education Approved this 18th day of November, 2010 State Board of Education Teri Quinn Gray, Ph.D., President Gregory Coverdale Jorge L. Melendez, Vice President Terry M. Whittaker, Ed.D. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS G. Patrick Heffernan James L. Wilson, Ed.D. Barbara B. Rutt 1517 Permits Paraeducators Permit *Please note that no changes were made to the regulation as originally proposed and published in the October 2010 issue of the Register at page 233 (14 DE Reg. 233). Therefore, the final regulation is not being republished. A copy of the final regulation is available at: 1517 Paraeducator Permit PROFESSIONAL STANDARDS BOARD Statutory Authority: 14 Delaware Code, Section 1205(b) (14 Del.C. §1205(b)) 14 DE Admin. Code 1583 REGULATORY IMPLEMENTING ORDER 1583 School Psychologist I. Summary of the Evidence and Information Submitted The Professional Standards Board, acting in cooperation and consultation with the Department of Education, seeks the consent of the State Board of Education to amend 14 DE Admin. Code 1583 School Psychologist. Amendments include limiting issuance of the Standard Certificate to applicants who have completed an organized graduate level program of study approved by the NASP or APA, a valid NCSP Certificate from the NASP or a valid and current license or certificate from another state in school psychology. This regulation sets forth the requirements for a School Psychologist. Notice of the proposed amendment of the regulation was published in the News Journal and the Delaware State News on October 1, 2010 in the form hereto attached as Exhibit “A”. The notice invited written comments. No written comments were received. II. Findings of Facts The Professional Standards Board and the State Board of Education find that it is appropriate to amend this regulation to comply with changes in statute. III. Decision to Amend the Regulation For the foregoing reasons, the Professional Standards Board and the State Board of Education conclude that it is appropriate to amend the regulation. Therefore, pursuant to 14 Del.C. §1205(b), the regulation attached hereto as Exhibit “B” is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), the regulation hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below. IV. Text and Citation The text of the regulation amended shall be in the form attached hereto as Exhibit “B”, and said regulation shall be cited as 14 DE Admin. Code 1583 of the Administrative Code of Regulations of the Department of Education. V. Effective Date of Order The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS APPROVED BY THE PROFESSIONAL STANDARDS BOARD THE 4TH DAY OF NOVEMBER, 2010 Kathleen Thomas, Chair Lori Hudson Michael Casson Chris Kenton Joanne Christian David Kohan Samtra Devard Jill Lewandowski Stephanie DeWitt Wendy Murray Marilyn Dollard Whitney Price Karen Gordon Shelley Rouser Cristy Greaves Jacque Wisnauskas IT IS SO ORDERED the 18th day of November, 2010. Department of Education Lillian M. Lowery, Ed.D., Secretary of Education Approved this 18th day of November, 2010 State Board of Education Teri Quinn Gray, Ph.D., President Gregory Coverdale Jorge L. Melendez, Vice President Terry M. Whittaker, Ed.D. G. Patrick Heffernan James L. Wilson, Ed.D. Barbara B. Rutt 1583 School Psychologist *Please note that no changes were made to the regulation as originally proposed and published in the October 2010 issue of the Register at page 238 (14 DE Reg. 238). Therefore, the final regulation is not being republished. A copy of the final regulation is available at: 1583 School Psychologist DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512) ORDER School-Based Wellness Center Clinic Services NATURE OF THE PROCEEDINGS: Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend the Title XIX Medicaid State Plan. The Department’s proceedings to amend the Title XIX Medicaid State Plan to update the reimbursement methodology language for School-Based Wellness Center Clinic Services were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512. The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the September 2010 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by September 30, 2010 at which time the DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS Department would receive information, factual evidence and public comment to the said proposed changes to the regulations. SUMMARY OF PROPOSAL The purpose of this proposal is to amend the Title XIX Medicaid State Plan to update the reimbursement methodology for School-Based Wellness Center Clinic Services. Statutory Authority • 42 CFR 440.205, Public Notice of Changes in Statewide Methods and Standards for Setting Payment Rates; • 42 CFR §440.90, Clinic Services; and, • State Medicaid Manual, Section 4320, Clinic Services. Summary of Proposed Amendment School-Based Wellness Center Clinics (SBWCCs), operated by the Division of Public Health in Delaware schools, provide primary prevention and early intervention services, including physical examinations, treatment of acute medical problems, community referrals, counseling and other supportive services to children in school or educational settings. The Title XIX Medicaid State Plan is being revised to update the reimbursement methodology for School- Based Wellness Center Clinic Services, as the current rate methodology expires on September 30, 2010. Effective for dates of service on October 1, 2010 and after, claims for School Based Wellness Center Clinic Services will no longer be reimbursed at a single encounter rate per child per year but will be paid based on billed procedure codes for individual services delivered by the SBWCCs at the Delaware Medicaid Physician Fee Schedule rates. No change will be made to the services provided under the school-based wellness center clinic services benefit. The provisions of this amendment are subject to approval by the Centers for Medicare and Medicaid Services (CMS). Fiscal Impact Statement The proposal imposes no increase in cost on the General Fund. SUMMARY OF COMMENTS RECEIVED WITH AGENCY RESPONSE AND EXPLANATION OF CHANGES The Governor’s Advisory Council for Exceptional Citizens (GACEC) and the State Council for Persons with Disabilities (SCPD) offered the following observations and recommendations summarized below. The Division of Medicaid and Medical Assistance (DMMA) has considered each comment and responds as follows. As background, the current system reimburses centers based on a single rate at each benefit year for any client served in a clinic. DMMA is proposing to abandon this simple reimbursement system in favor of centers billing for each discrete service based on "the DMAP physician fee schedule" which DMMA notes is published on its Website. Finally, DMMA recites that the proposal imposes no increase in cost on the General Fund. At 143. The GACEC and the SCPD have the following observations. First, we were unable to locate a document titled "DMAP physician fee schedule" at the Web address provided in the regulation. Instead, the site publishes the attached “HCPCS" and "ASC" Schedules. Assuming DMMA intends to cross reference one of these schedules, it would be preferable to adopt consistent terminology. Second, the regulation notes that the centers provide services which are not provided by physicians (e.g. "counseling and other supportive services"). At 142. It is unclear whether adopting a "physician fee schedule" would preclude billing by non-physicians (e.g. psychologist; social worker) and would include codes covering health care services typically provided by non-physicians. If not, centers will be prompted to abandon non- physician support services to the detriment of students. Agency Response: DMMA apologizes for the confusion regarding the proposed fee schedule. The proposed fee schedule is published on the DMMA website as the “HCPCS Schedule”. Even though this fee schedule is commonly referred to as the “physician” fee schedule, it does include payment for other practitioner types. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS Consequently, there would be no impact on the scope of services offered at the centers. Recent discussions with CMS that occurred after the proposed regulation was published have led to consideration of an alternative payment methodology that achieves the Social Security Act requirement for efficiency and economy but is less administratively burdensome to administer. Under this methodology, a visit rate will be computed based on the state’s costs for the SBWCs. This rate will be billed and paid for each day on which a client receives an SBWC service throughout the year. This differs from the old methodology where a visit rate was computed based on unduplicated clients and was billed only once in a calendar year. This final regulation reflects the new visit rate methodology indicated by [bracketed bold type] on Attachment 4.19-B, Page 2 and additionally, on Attachment 3.1-A, Page 4 Addendum. FINDINGS OF FACT The Department finds that the proposed changes as set forth in the September 2010 Register of Regulations should be adopted. THEREFORE, IT IS ORDERED, that the proposed regulation to update the reimbursement methodology for School-Based Wellness Center Clinic Services is adopted and shall be final effective December 10, 2010. Rita M. Landgraf, Secretary, DHSS DMMA FINAL ORDER REGULATION #10-49a REVISION: ATTACHMENT 3.1-A Page 4 Addendum State: DELAWARE AMOUNT, DURATION AND SCOPE OF MEDICAL AND REMEDIAL CARE AND SERVICES PROVIDED TO THE CATEGORICALLY NEEDY 9. Clinic Services Clinic services are provided consistent with the provisions of 42 CFR 440.90, including the requirement that they be operated under the direction of a physician as described in the State Medicaid Manual Section 4320, and include the following: • Medical or rehabilitation clinics (including Mental Health clinics which require certification by the Division of Substance Abuse and Mental Health (DSAMH) as part of the Single State Agency for Medicaid) and • State Licensed Free Standing Surgical Centers (FSSCs) which equate to federally defined Ambulatory Surgical Centers (ASCs) using related policies for ASCs described in Sections 2265 and 2266 of the Medicare Carriers Manual. • [School-Based Wellness Center Clinic Services that are provided consistent with the provisions of 42 CFR 440.90 and are operated under the direction of a physician to provide primary prevention and early intervention services, including physical examinations, treatment of acute medical problems, community referrals, counseling and other supportive services to children in school and educational settings. • School-Based Wellness Center Clinics provide primary prevention, early intervention and treatment services, including physical examinations, treatment of acute medical conditions, community referrals, counseling and other supportive services to children in school settings. Medicaid services provided by the School-Based Wellness Centers include but are not limited to: • other laboratory and X-ray services (1905(a)(3), 42 CFR 440.30) • physicians’ services (1905(a)(5), 42 CFR 440.50) • medical care, or any other type of remedial care recognized under State law, furnished by licensed practitioners with the scope of their practice as defined by State law (1905(a)(6), 42 CFR 440.170) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS • other diagnostic screening, preventive and rehabilitative services (1905(a)(13), 42 CFR 440.130) • primary care case management services (1905(a)(19), 42 CFR 440.168). Health care professionals that provide the above services at the SBWCs include: physicians, nurse practitioners, licensed clinical social workers, certified and licensed drug and alcohol counselors, certified sexual assault counselors and registered dieticians. Licensure requirements for each practitioner type are specified in the Title 24 of the Delaware Code, Professions and Occupations and in the Delaware Administrative Code. Payments to School-Based Wellness Centers shall be considered “preventive pediatric services” as per 42 CFR 433.139(b)(3)(i) for the purpose of applying third party billing requirements.] DMMA FINAL ORDER REGULATION #10-49b REVISION: ATTACHMENT 4.19-B Page 2 STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT State/Territory: DELAWARE [School-Based Wellness Center Clinic Services, operated by the Division of Public Health in Delaware schools, are reimbursed a single rate once each benefit year for any client served in one of the school- based clinics. This rate methodology will sunset on September 30, 2010 using the DMAP physician fee schedule effective for dates of service on or after October 1, 2010. Except as otherwise noted in the plan, State-developed fee schedule rates are the same for both governmental and private providers of this service and the DMAP physician fee schedule is available on the DMAP website. (http:// www.dmap.state.de.us/downloads/hcpcs.html) Payments for clinic services will not exceed the upper payment limits set forth in 42 CFR 447.321:. (1) For services covered by Medicare, payments are not to exceed the Medicare rates or the Medicare aggregate payment amount for those services; and (2) For services not covered by Medicare, aggregate payments are not to exceed an amount that could reasonably be estimated would have been paid under Medicare payment principles. Since the School-Based Wellness Centers will be paid at the DMAP physician fee schedule rates, which is paid as a percentage of the Medicare physician fee schedule, not to exceed 100%, the payments will not exceed what Medicare would have paid. Payments to School-Based Wellness Centers shall be considered “preventive pediatric services” as per 42 CFR 433.139(b)(3)(i) for the purpose of applying third party billing requirements.] [School-Based Wellness Center (SBWC) Clinic Services: 1. Payment Methodology: SBWC Clinic Services are reimbursed based on a prospective single visit per day for each day on which a medical service is provided effective for dates of service on or after October 1, 2010. The visit rate shall be calculated by dividing provider costs for the prior year by actual visits for the prior year submitted in a format specified by the Medicaid agency. The State-developed prospective visit rates for this service are the same for both governmental and private providers of this service. 2. UPL Calculation: Payments for clinic services will not exceed the upper payment limits set forth in 42 CFR 447.321. Providers will complete the Delaware Medicaid SBWC Cost Report annually within four months after the close of each fiscal year. The Medicaid SBWC Cost Report is based on the Medicare FQHC Cost Report (CMS 222) adjusted to account for the difference in the operating period for the SBWCs from a full year clinic. The actual annual visits as reported on the Cost Report shall be used as the DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS denominator to calculate a visit rate that approximates a Medicare rate. The Medicare rate will be multiplied by the annual aggregate Medicaid visits for dates of service in the applicable state fiscal year to approximate the Medicare payment which will be compared to the actual payments for the fiscal year to determine whether the upper payment limit test is met.] DIVISION OF MEDICAID AND MEDICAL ASSISTANCE Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C., §512) ORDER Durable Medical Equipment (DME) Provider Specific Policy Manual NATURE OF THE PROCEEDINGS Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance initiated proceedings to amend the existing rules in the Delaware Medical Assistance Program (DMAP) Provider Manuals regarding Durable Medical Equipment - Ownership of Equipment. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512. The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the October 2010 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by October 31, 2010 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations. SUMMARY OF PROPOSAL The purpose of this proposal is to amend the Delaware Medical Assistance Provider (DMAP) Manuals regarding the ownership of certain Durable Medical Equipment (DME). Statutory Authority 42 CFR §414.202, Definitions (DME) 42 CFR §440.70(b)(3), Home Health services 42 CFR §440.230, Sufficiency of amount, duration, and scope Background The Delaware Medical Assistance Program (DMAP) covers medically necessary durable medical supplies and equipment, under the Durable Medical Equipment (DME) program, which meet program guidelines when prescribed by a physician. The Division of Medicaid and Medical Assistance (DMMA), in collaboration with the University of Delaware, Center for Disabilities Studies (CDS), is interested in developing a durable medical equipment retrieval program. Such a program would enable high-quality products such as wheelchairs, scooters, and communication devices to be refurbished and made available to a new customer when no longer needed by the original beneficiary. Similar programs have been implemented in other states, demonstrating both fiscal and environmental advantages. Current DMMA policy assigns ownership of equipment purchased by DMMA to the client. The proposed revision would assign ownership of certain specified DME to DMMA. When the equipment is no longer needed, it will be recovered by CDS. CDS will assess and refurbish, if appropriate. A new customer service component will also be established to periodically evaluate the effectiveness of equipment in meeting the needs of the beneficiary. DMMA customers will also have the option of accepting refurbished equipment, when available, at a reduced cost to the state. Summary of Proposal The DME provider manual is revised to establish a policy of ownership for certain purchased durable medical equipment. This rule revision will allow certain durable medical equipment purchased by DMMA to remain the DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS property of the DMMA to be used by for the benefit of the Medicaid recipient until it is no longer medically necessary. At such time as the item is no longer medically necessary, DMMA may retrieve the durable medical equipment product if it is determined to be administratively and fiscally prudent. This rule will allow DMMA to establish a durable medical equipment retrieval program and meet the needs of Delawareans who do not have access to durable medical equipment and ultimately reducing the amount of uncompensated care provided by DMAP healthcare providers. This rule promulgation is the first step in establishing procedures necessary to implement a durable medical equipment retrieval program. Fiscal Impact Statement This revision imposes no increase in cost on the General Fund. SUMMARY OF COMMENTS RECEIVED WITH AGENCY RESPONSE The Governor’s Advisory Council for Exceptional Citizens (GACEC) and the State Council for Persons with Disabilities (SCPD) offered the following observations and considerations summarized below. DMMA has considered each comment and responds as follows. As background, other states have implemented assistive technology/durable medical equipment “reuse” programs. Attached please find a PowerPoint outline describing the Kansas program. It notes that there is a high national rate of abandonment of AT/DME. In addition, legislators were concerned that Medicaid-purchased AT/ DME was being sold at yard sales, and considerable cost savings resulted from adopting a system of recycling Medicaid-supplied AT/DME. Delaware’s Center for Disabilities Studies (CDS) and DMMA are now developing a similar system in Delaware. The regulation provides the following information: Current DMMA policy assigns ownership of equipment purchased by DMMA to the client. The proposed revision would assign ownership of certain specified DME to DMMA. When the equipment is no longer needed, it will be recovered by CDS. CDS will assess and refurbish, if appropriate. A new customer service component will also be established to periodically evaluate the effectiveness of equipment in meeting the needs of the beneficiary. DMMA customers will also have the option of accepting refurbished equipment, when available, at a reduced cost to the state. At 244. CDS is soliciting providers to support this new initiative. In response to my inquiry, CDS informally shared supplemental information on September 30. The following is a summary of the supplemental information: A. The CDS/DMMA project is supported by an RSA model demonstration project grant. A stakeholder group comprised of state agencies, DME vendors, service providers and individuals with disabilities has been meeting for a few years to reach consensus on the model. The plan is to contract with one or more qualified vendors to conduct the reclamation, sanitization, refurbishment, and repair. B. Health and safety is a key concern. Individuals could be hurt by “mismatched” DME or malfunctioning DME. Therefore, if a prescription is generally needed to obtain a particular piece of equipment, a prescription will be required to obtain equipment through this project to ensure the features match the individual’s needs. Only lightly-used equipment will be processed and restored to “like-new” condition. Some types of equipment will not be processed due to hygiene issues. C. DMMA is not restricting access to reclaimed equipment to Medicaid beneficiaries, but Medicaid will have the option of procuring equipment at costs far less than retail from the reuse inventory. CDS plans, under DMMA contract, to adopt a customer-service role in which Medicaid beneficiaries provided with DME will be contacted to assess whether the equipment is meeting their needs. If the equipment is no longer needed, or the beneficiary has passed away, the equipment will be retrieved and, if appropriate, refurbished for use by others. D. The program is viewed as a means of leveraging resources. The CDS is aware of Medicaid beneficiaries or their families selling DMMA-purchased DME on Craig’s List or DATI’s AT Exchange soon after delivery. This project should reduce the incidence of such sales and facilitate access to DME by uninsured and underinsured persons. E. As part of the project, Paul Solano, a University of Delaware economist, will conduct a cost/benefit analysis DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS to provide comprehensive data about the return on the reuse investment. This analysis would be of use both locally and nationally. The proposed regulation represents a “first step” towards DMMA implementation of the reuse program. The current regulation grants ownership of DME purchased through Medicaid to the beneficiary. The new regulation “carves out” certain forms of Medicaid-purchased DME which will be “owned” by DMMA. It would then be subject to retrieval and recycling when the beneficiary no longer needs the device. From a consumer perspective, there are pros and cons to the initiative. On the negative side, query whether beneficiaries will be subject to State claims if State-owned equipment is lost or damaged, even through no fault of the beneficiary. Some of the listed DME is also so inexpensive and/or subject to wear and tear (e.g. car seats) that sanitizing and refurbishing may be of questionable cost effectiveness. On the positive side, the reuse program should ultimately save DHSS money, promote recycling, and facilitate trial access to equipment. The Kansas model included receiving donations of equipment from the public with positive results. Balancing the competing interests, the Councils endorse the proposed regulation subject to DMMA considering the following. First, since Medicaid is the payor of last resort, the Councils assume there are situations in which a third party (e.g. insurer) has partially paid (e.g. 80%) for equipment and DMMA has paid a remaining balance (e.g. 20%). Under those circumstances, we query whether it is equitable for DMMA to assume full ownership of the equipment. Agency Response: DMMA’s intent is to only recover certain pieces of equipment no longer needed by Medicaid clients. Doing so will potentially enable other Medicaid clients or the general public to benefit since the recovered items will become part of the recycling effort’s larger inventory of equipment. Since the program is designed to acquire used equipment from the general public in addition to Medicaid, we believe equity will be achieved through the recycling of equipment for everyone, including non-Medicaid individuals with third party coverage who may benefit from the acquisition of a refurbished piece of equipment that may have originally been paid in full by Medicaid. No change to the regulation was made as a result of this comment. Second, DMMA should consider the extent of the beneficiary’s liability for lost or damaged equipment owned by the State. If the beneficiary exercises reasonable care, it would be inappropriate to penalize the beneficiary for loss or damage. The beneficiary should not be treated as an “insurer” of the equipment. Agency Response: Damage or loss of equipment can happen under current policy where a client retains ownership. In those instances, DMMA does not penalize clients when a replacement is needed. Under the proposed ownership change, DMMA would impose no new policy penalizing a client for damage or loss which occurred through no fault of the client. Retention of ownership by the State is solely for the purpose of assuring that equipment may be reused as part of the recycling program. We intend no new level of liability on the part of the client. No change to the regulation was made as a result of this comment. FINDINGS OF FACT: The Department finds that the proposed changes as set forth in the October 2010 Register of Regulations should be adopted. THEREFORE, IT IS ORDERED, that the proposed regulation to amend the existing rules in the Delaware Medical Assistance Program (DMAP) Provider Manuals regarding Durable Medical Equipment – Ownership of Equipment is adopted and shall be final effective December 10, 2010. Rita M. Landgraf, Secretary, DHSS DMMA FINAL ORDER REGULATION #10-50 REVISION: DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS DELAWARE MEDICAL ASSISTANCE PROGRAM Durable Medical Equipment (DME) Provider Specific Policy Manual 3.5 Purchase Versus Rental 3.5.4 If purchase is the only option (such as for a custom-made wheelchair), or is determined to be the most cost effective method of providing the equipment, the equipment will become the property of the client after the DMAP reimbursement is made. Items specified below, purchased by DMMA shall be the property of DMMA. Other equipment purchased by DMMA will become the property of the client after the DMAP reimbursement is made. • Augmentative Communication Devices • Bath Benches • Bi-Paps • C-Paps • Car Seats • Commodes • Feeder Seats • Feeding Pumps • Gait Trainers • Hospital Beds and Hospital Bed Accessories • Nebulizers • Oxygen Concentrators • Patient Lifts • Quad Canes • Scooters • Shower Chairs • Standers • Strollers • Walkers • Wheelchairs and Wheelchair Accessories DIVISION OF PUBLIC HEALTH Statutory Authority: 16 Delaware Code, Section 2602 (16 Del.C., §2602) ORDER 4459A Regulations for the Childhood Lead Poisoning Prevention Act NATURE OF THE PROCEEDINGS: Delaware Health and Social Services (“DHSS”) initiated proceedings to adopt the State of Delaware Regulations Governing the Childhood Lead Poisoning Prevention Act for Children Between the Ages of 22 and 26 Months. The DHSS proceedings to adopt the regulations were initiated pursuant to 29 Del.C., Ch. 101 and authority as prescribed by 16 Del.C., Ch. 26. On October 1, 2010 (Volume 14, Issue 4), DHSS published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Del.C. §10115. It requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by November 1, 2010, or be presented at a public hearing on October 22, 2010, after which time the DHSS would review information, factual evidence and public comment to the said proposed regulations. No oral comments were made at the public hearing and no written comments were received during the public comment period. Therefore, no evaluation or summarization of comments is presented in the accompanying “Summary of Evidence.” Two letters of endorsement were received from the Governor’s Advisory Council for DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS Exceptional Citizens and the State Council for Persons with Disabilities, respectively. SUMMARY OF EVIDENCE In accordance with Delaware Law, public notices regarding proposed Department of Health and Social Services (DHSS) Regulations Governing the Childhood Lead Poisoning Prevention Act for Children Between the Ages of 22 and 26 Months were published in the Delaware State News, the News Journal and the Delaware Register of Regulations. No oral comments were received at the October 22, 2010 public hearing and no written comments were received on the proposed regulations during the public comment period (October 1, 2010 through November 1, 2010). Only minor grammatical corrections were made to further clarify the proposed regulations. The public comment period was open from October 1- November 1, 2010. Verifying documents are attached to the Hearing Officer’s record. The regulation has been approved by the Delaware Attorney General’s office and the Cabinet Secretary of DHSS. FINDINGS OF FACT: There were no public comments received and only minor non-substantive changes were made to the proposed regulations. The Department finds that the proposed regulations, as set forth in the attached copy should be adopted in the best interest of the general public of the State of Delaware. THEREFORE, IT IS ORDERED, that the proposed State of Delaware Regulations Governing the Childhood Lead Poisoning Prevention Act for Children Between the Ages of 22 and 26 Months are adopted and shall become effective December 11, 2010, after publication of the final regulation in the Delaware Register of Regulations. Rita M. Langraf, Secretary 4459A Regulations Governing the Childhood Lead Poisoning Prevention Act for Children Between the Ages of 22 and 26 Months [of Age] 1.0 General Provisions. 1.1 Preamble. 1.1.1 These regulations are adopted by the Secretary of Delaware Health and Social Services pursuant to 16 Del.C., §122(3)(t) and § 2602. These regulations establish standards for blood lead testing of children between 22 and 26 months of age who are at high risk of lead poisoning. These regulations also establish a record retention policy, enforcement modalities and penalties for violators. 2.0 Definitions. For purposes of this chapter, the following definitions shall apply: “Blood lead registry” means the database maintained by the Department that includes the results of all blood lead testing reported to the Department. “Blood lead testing” means taking a capillary or venous sample of blood for point of care testing using a Clinical Laboratory Improvement Act of 1988 (CLIA) licensed or waived test or sending it to a laboratory to determine the level of lead in the blood. “Capillary” means a blood sample taken from the finger or heel for lead analysis. “Division” means the Delaware Division of Public Health. “Department” means the Delaware Department of Health and Social Services. “Health care provider” means the individual that generally provides medical care to a child including, but not limited to, a physician, a physician’s assistant or a nurse. “High risk” means a child between the ages of 22 and 26 months who meets any of the following conditions: DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS • Is suspected by a parent or a health care provider to be at risk for lead exposure or to exhibit the symptoms of lead poisoning. • Has a sibling or frequent playmate with lead poisoning. • Is a recent immigrant, refugee, or foreign adoptee. • Has a household member who uses traditional, folk, or ethnic remedies or cosmetics or who routinely eats food imported informally (e.g., by a family member) from abroad. • Lives in or regularly visits a house or day care center (including out buildings) built before 1978. • Lives with an adult whose job or hobby involves exposure to lead (e.g. construction, welding, pottery, mechanic, jeweler, plumber, renovator, firing range enthusiast, stained glass maker). • Lives near an active lead smelter, battery recycling plant, or other industry likely to release lead. • Lives in, attends day care in, or visits any of the following zip code areas at least 6 hours a week or 60 hours a year: • 197XX: 01, 02, 03, 06, 09, 11, 13, 20, 33 • 198XX: 01, 02, 03, 04, 05, 06, 08, 09, 10 • 199XX: 01, 04, 33, 34, 38, 39, 40, 41, 43, 45, 46, 47, 50, 52, 53, 56, 58, 60, 62, 63, 66, 68, 71, 73, 75, 77. “Laboratory” means a laboratory certified to perform either waived or non-waived blood lead analysis according to the federal Clinical Laboratory Improvement Act of 1988 (CLIA). “Low Risk” means a child between the ages of 22 and 26 months who does not meet any of the conditions listed in the definition for “High Risk”. “Venous” means a blood sample taken from a vein in the arm for lead analysis. 3.0 Requirement. The health care provider of a child between the ages of 22 and 26 months shall determine if said child is at high risk of lead poisoning. If the child is determined to be at high risk, the health care provider shall perform or cause to be performed a blood lead test. 4.0 Applicability. 4.1 The blood lead testing requirement specified in these regulations applies to all children 22 to 26 months of age except those determined not to be at high risk. 4.2 Blood lead testing is not required on a child between the ages of 22 and 26 months when said child is determined by the health care provider to be at low risk for elevated blood lead levels. If a health care provider determines that a child is low risk, the health care provider will keep the completed risk assessment questionnaire (with all “NO” responses) in the child’s chart for at least three years. 5.0 Religious exemption. A religious exemption may be granted to a child if the blood lead testing conflicts with a genuine and sincere religious belief and not a belief based merely on philosophical, scientific, moral, personal, or medical opposition to blood lead testing. A certificate of blood lead testing exemption for religious reasons shall be signed and dated by the child’s parent or guardian, notarized, and kept in the child’s medical chart. 6.0 Time line for valid blood lead testing. To be valid, a blood lead test shall be performed, as required by these regulations, on a child after completion of a risk assessment questionnaire when the child is between the ages of 22 and 26 months. Children that test with blood lead levels above the level of concern established by the Centers for Disease Control (“CDC”), which is currently 10 µg/dl, will have venous confirmation by a laboratory prior to intervention. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS 7.0 Documentation. 7.1 A health care provider and a laboratory performing a blood lead test required by these regulations shall ensure that the results of the blood lead test are reported to the Division. 7.2 Proof of blood lead testing will be verified through the Blood Lead Registry and by auditing a child’s medical charts. 8.0 Records. A completed risk assessment questionnaire, including the determination of the child’s risk of lead poisoning, shall be maintained in a child’s medical chart for at least three years. The Division will conduct scheduled and impromptu chart audits to monitor compliance. 9.0 Severability. If any provision or application of any provision of these regulations is held invalid, that invalidity shall not affect the validity of other provisions or applications of these regulations. 10.0 Penalty. Violators are subject to sanctions pursuant to 16 Del.C., §107 for each violation of the requirements established in these regulations. DEPARTMENT OF INSURANCE Statutory Authority: 18 Delaware Code, Sections 314 & 1111 (18 Del.C. §§313, 1111) ORDER 506 Crop Insurance Adjusters and Producers Proposed Regulation 506 relating to Crop Insurance Adjusters and Producers was published in the Delaware Register of Regulations on October 1, 2010. The comment period remained open until November 1, 2010. There was no public hearing on proposed Regulation 506. Public notice of the proposed Regulation 506 in the Register of Regulations was in conformity with Delaware law. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED Comment was received from Property Casualty Insurers Association of America (PCIAA). PCIAA believes the definition of Crop Adjuster is too vague and is additionally concerned that the requirements of this “new license” will negatively affect existing licensed adjusters. As noted below, the proposed regulation does not create a new adjuster license, but a new “line” within the casualty adjuster licensing realm. FINDINGS OF FACT Based on Delaware law and the record in this docket, I make the following findings of fact: The requirements of the proposed Regulation 506 best serve the interests of the public and of insurers and comply with Delaware law. The creation of a separate line of Crop Insurance Producers and of Crop Insurance Adjusters, within existing Property Insurance Producer and Adjuster licensing keeps the public better informed of who is licensed in the important Crop Insurance producing and adjusting fields. DECISION AND EFFECTIVE DATE Based on the provisions of 18 Del.C. §§314, 1111 and 29 Del.C. §§10113-10118 and the record in this docket, I hereby adopt amended Regulation 506 as may more fully and at large appear in the version attached hereto to be DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS effective on January 3, 2011. TEXT AND CITATION The text of the proposed Regulation 506 last appeared in the Register of Regulations Vol. 14, Issue 4, pages 249-250. IT IS SO ORDERED this 5th day of November, 2010. Karen Weldin Stewart, CIR-ML Insurance Commissioner 506 Crop Insurance Adjusters and Producers 1.0 Purpose 1.1 The purpose of this Chapter is to provide rules to assist the Commissioner in administering the laws relating to the licensure and regulation of crop insurance producers and adjusters, as provided for in 18 Del.C. Chapter 17 et. seq. 1.2 This regulation should not be viewed as replacing any other or additional statutory requirements not explicitly included in this regulation. 2.0 Scope This regulation applies to all persons acting as crop insurance adjusters or producers in this state. The crop insurance producer and adjuster licenses to be issued by the Commissioner. 3.0 Definitions "Commissioner" means the Commissioner of the Delaware Insurance Department. "Crop" means and includes any agricultural product, including livestock, nursery product, tree and product from a tree, as well as anything insured by the Federal Crop Insurance Corporation under a crop insurance program. “Crop insurance adjuster” means any person, who, for compensation or any other thing of value, does any of the following: • Acts or aids in investigating, verifying, substantiating, estimating, appraising, determining, presenting, and discussing the value of the claim, and/or effectuating the resolution of a claim for loss or damage covered by an insurance contract that insures crops; • Advertises for employment as an adjuster of claims arising under insurance contracts that insure crops or solicits business or represents to the public to be a crop insurance adjuster of insurance claims, for losses or damages arising out of policies of insurance that insure crops; or • Directly or indirectly solicits business, investigates or adjusts losses, or advises an insured about claims for losses or damages arising out of policies of insurance that insure crops, when doing any of the foregoing for or on behalf of another person engaged in the business of adjusting losses or damages covered by an insurance policy that insures crops, for the insured. "Department" means the Department of Insurance; “NAIC” means the National Association of Insurance Commissioners; "Person" means a natural person; “Producer” means any person required to be licensed under the laws of this State to sell, solicit, or negotiate contracts of insurance authorized within the scope of said license. "Risk Management Agency" means that agency of the United States Department of Agriculture acting on behalf of the Federal Crop Insurance Corporation to administer federal crop insurance programs. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS 4.0 Qualification for the Issuance of a License A person shall apply for and receive from the Commissioner a multi-peril crop insurance adjuster and/ or producer license to operate as a multi-peril crop insurance producer or adjuster in this State. All applications for licensure shall be in accordance with the requirements of 18 Del.C., §§1706 and 1707 (1). 5.0 Examination Requirements 5.1 All individuals applying for a multi-peril crop insurance adjuster license are required to pass the Risk Management Agency-approved Proficiency test for multi-peril crop insurance adjusters. 5.2 All individuals applying for a multi-crop insurance producer license shall be required pass a written examination as required by 18 Del.C., §1705. 5.3 The Commissioner may enter into a contract with a testing organization for the examination of applicants for a license as a multi-peril crop insurance producer or adjuster. Such contract may provide that the testing organization shall: 5.3.1 Assume responsibility for the administration and grading of the examination; and 5.3.2 Charge and collect from each applicant the fee for administering the examination. 6.0 Continuing Education Requirement 6.1 An individual, who holds a multi-peril crop insurance license shall satisfactorily complete a minimum of twenty-four (24) hours of continuing education credits. The education required by this section shall be in addition to any other continuing education requirements required for other professional licenses held by the individuals licensed under Chapter 17 of the Delaware Code. 6.2 Only continuing education courses approved by the Commissioner shall be used to satisfy the continuing education requirement of Paragraph 6.1. 7.0 Effective Date This Regulation shall take effect 10 days after execution of an Order by the Commissioner and its publication in the Register of Regulations or January 1, 2011, whichever shall occur last. DEPARTMENT OF INSURANCE Statutory Authority: 18 Delaware Code, Sections 314 & 1111 (18 Del.C. §§313, 1111) ORDER 507 Workers’ Compensation Insurance Adjusters Proposed Regulation 507 relating to Workers’ Compensation Insurance Adjusters was published in the Delaware Register of Regulations on October 1, 2010. The comment period remained open until November 1, 2010. There was no public hearing on proposed Regulation 507. Public notice of the proposed Regulation 507 in the Register of Regulations was in conformity with Delaware law. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED Comment was received from the American Insurance Association (AIA). AIA was concerned that the proposed regulation would impose additional requirements on currently licensed casualty adjusters, adjusters currently licensed to adjust workers’ compensation in other states, and those employed as such adjusters and certified by CPCU or AIC. AIA expressed concern that these adjusters would not be “waived in”. Comment along the same line was also received from Property Casualty Insurers Association of America (PCIAA). In addition, PCIAA believes the proposed regulation is vague as it defines who may need a license. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS FINDINGS OF FACT Based on Delaware law and the record in this docket, I make the following findings of fact: The requirements of the proposed Regulation 507 best serve the interests of the public and of insurers and comply with Delaware law. The concerns expressed by AIA are valid. However, the proposed regulation does not establish a new license requirement, but establishes a new line for currently-licensed casualty adjusters, licensed either in Delaware or another jurisdiction. Currently-licensed casualty adjusters who adjust workers’ compensation claims will merely add this new line to their licensing information after the effective date of the regulation. DECISION AND EFFECTIVE DATE Based on the provisions of 18 Del.C. §§314, 1111 and 29 Del.C. §§10113-10118 and the record in this docket, I hereby adopt amended Regulation 507 as may more fully and at large appear in the version attached hereto to be effective on January 3, 2011. TEXT AND CITATION The text of the proposed Regulation 507 last appeared in the Register of Regulations Vol. 14, Issue 4, pages 251-252. IT IS SO ORDERED this 5th day of November 2010. Karen Weldin Stewart, CIR-ML Insurance Commissioner 507 Workers’ Compensation Insurance Adjusters 1.0 Purpose 1.1 The purpose of this Chapter is to provide rules to assist the Commissioner in administering the laws relating to the licensure and regulation of Workers’ Compensation insurance adjusters, as provided for in 18 Del.C. Chapter 17 et. seq. 1.2 This regulation should not be viewed as replacing any other or additional statutory requirements not explicitly included in this regulation. 2.0 Scope This regulation applies to all persons acting as Workers’ Compensation insurance adjusters in this state. The Workers’ Compensation Insurance adjuster license is to be issued by the Commissioner. 3.0 Definitions. "Commissioner" means the Commissioner of the Delaware Insurance Department. "Department" means the Department of Insurance; “NAIC” means the National Association of Insurance Commissioners; "Person" means a natural person; “Workers Compensation insurance adjuster” means any person, who, as an independent contractor, or on behalf of an independent contractor, insurer or self-insurer, producer or managing general agent, investigates and/or negotiates settlement of workers’ compensation claims arising under insurance contracts. 4.0 Qualification for the Issuance of a License. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS A person shall apply for and receive from the Commissioner a Workers Compensation insurance adjuster license to operate as a workers compensation adjuster in this State. All applications for licensure shall be in accordance with the requirements of 18 Del.C. §§1706 and 1707(1). 5.0 Examination Requirements. 5.1 All individuals applying for a workers compensation insurance adjuster license are required to pass the approved proficiency test for workers compensation insurance adjusters. 5.2 The Commissioner may enter into a contract with a testing organization for the examination of applicants for a license as a workers compensation insurance adjuster. Such contract may provide that the testing organization shall: 5.2.1 Assume responsibility for the administration and grading of the examination; and 5.2.2 Charge and collect from each applicant the fee for administering the examination. 6.0 Continuing Education Requirement. 6.1 An individual, who holds a workers compensation insurance adjuster license shall satisfactorily complete a minimum of twelve (12) hours of continuing education credits, three (3) of which shall be in ethics subjects, during each biennium reporting period. The education required by this section shall be in addition to any other continuing education requirements required for other professional licenses held by the individuals licensed under Chapter 17 of the Delaware Code. 6.2 Only continuing education courses approved by the Commissioner shall be used to satisfy the continuing education requirement of Paragraph 6.1. 7.0 Effective Date This Regulation shall take effect 10 days after execution of an Order by the Commissioner and its publication in the Register of Regulations or January 1, 2011, whichever shall occur last. DEPARTMENT OF JUSTICE FRAUD AND CONSUMER PROTECTION DIVISION CONSUMER PROTECTION UNIT Statutory Authority: 29 Delaware Code, Section 2521 (29 Del.C. §2521) ORDER 103 Consumer Protection Unit Administrative Enforcement Proceedings A public hearing was held to receive comments related to the proposed rules relating to the enforcement of consumer protection laws. Notice was provided as required under the Administrative Proceedings Act 29 Del.C. §10115 in the Register of Regulations at 14 DE Reg. 252 (10/01/10) as well as in the News Journal and Delaware State News on October 14, 2010. The Director of Consumer Protection conducted the public hearing which was held at 10 a.m. on November 3, 2010 in the Attorney General’s Conference Room at the Carvel State Office Building, 6th floor, 820 N. French St., Wilmington, DE 19801. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED Written Comments received: None Oral Comments received: 1. Andrew P. Taylor, Esquire, of Cooch and Taylor, representing the Delaware Association of Realtors, provided comments about specific proposed rules as follows: DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS Proposed Rule 4.1: No notice of the reason for disqualification should be required. A statement by a Deputy Attorney General that he or she is withdrawing is sufficient. Proposed Rule 4.2: Mr. Taylor inquired about whether there is an opportunity to appeal a decision by a hearing officer to proceed with a hearing after a motion has been made for his or her disqualification. Proposed Rule 7.1: The most important comment relates to the notice initiating a proceeding. Given the importance of the proceedings, it should not be sufficient to simply have an unsigned return receipt after notice by first class mail though that is sufficient in some landlord tenant matters in the Justice of the Peace Court. Proposed Rule 12.1: The title “Director” should be defined. Proposed Rule 18.0: Although there is no discovery in these administrative proceedings, the parties would benefit from a fact-finding opportunity in advance of the hearing in order to explore the allegations much like an investigator does in fair housing investigations by the Division of Human Relations. Proposed Rule 25.1.2: Mr. Taylor inquired about the use of the word “finding” and whether it implies a hearing has been held. FINDINGS OF FACT BASED ON THE EVIDENCE AND INFORMATION SUBMITTED The change to proposed Rule 4.1 will be considered in connection with any future amendment of these Rules. It is important to publish final rules without substantive change to implement the statute expeditiously. This change is non-substantive. There is no interlocutory appeal from a decision by a hearing officer to continue after a motion for withdrawal pursuant to proposed Rule 4.2. The issue can be raised on the appeal of a final order. The flexible service provided in proposed Rule 7.1 is necessary for the enforcement of consumer fraud violations because the actors are frequently out of state and on the internet, making personal service practically difficult. I agree that the “Director” would be better identified as the “Director of Consumer Protection” in proposed Rule 12.1. The change recommended to proposed Rule 18.0 would encumber the process, which is intended to be informal and expeditious. The term “finding” of a violation in proposed Rule 25.1.2 means after a hearing. DECISION AND ORDER After considering the relevant statutes and the comments received and pursuant to the authority in 29 Del.C. §2520, I hereby adopt the proposed regulations as published in 14 DE Reg 252 (10/1/10) with one exception: In proposed Rule 12.1 the words “Director of Consumer Protection” shall be substituted for the word “Director” in the final rule. Comments on proposed Rule 4.1 will be reconsidered at a later date after a new notice and opportunity for comment. EFFECTIVE DATE The effective date shall be ten days following publication in the Register of Regulations. SO ORDERED THIS 10th day of November, 2010. DEPARTMENT OF JUSTICE Ian R. McConnel, Director of Consumer Protection 103 Consumer Protection Unit Administrative Enforcement Proceedings (Break in Continuity of Sections) 12.0 Complaints: general and summary proceedings. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS 12.1 General. If the Director [of Consumer Protection] or a Deputy Attorney General acting under his or her authority believes that any person is violating or has violated any provision of the statutes the CPU is charged to enforce, or any rule or regulation thereunder, the CPU may issue a complaint as provided herein. The service and filing of the complaint constitutes the commencement of the administrative proceeding. If no hearing officer has been generally designated, the Director [of Consumer Protection] or the Deputy Attorney General filing the complaint shall give notice to the Attorney General, Chief Deputy Attorney General, or the State Solicitor requesting the appointment of a hearing officer for the proceeding. 12.2 Summary proceedings. See Rule 25.1.3 for procedure in summary proceedings. (Break in Continuity of Sections) *Please note the only amendment to the proposed regulation was to the above section. As the balance of the regulation was not amended since it was proposed, is it is not being republished. A copy of the final regulation is available at: 103 Consumer Protection Unit Administrative Enforcement Proceedings DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL DIVISION OF AIR AND WASTE MANAGEMENT Statutory Authority: 7 Delaware Code, Chapter 60 (7 Del.C., Ch. 60) 7 DE Admin. Code 1125, 1130 1125 Requirements for Preconstruction Review1130 Title V State Operating Permit Program Secretary’s Order No.: 2010-A-0040 Date of Issuance: November 17, 2010 Effective Date of the Amendment: December 11, 2010 Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding. Background and Procedural History This Order considers proposed regulatory amendments to 7 DE Admin. Code 1125, Requirements for Preconstruction Review, Section 3.0, “Prevention of Significant Deterioration of Air Quality” and 7 DE Admin. Code 1130, Title V State Operating Permit Program, Section 2.0, “Definitions”: Greenhouse Gas (GHG) Emissions, to enable Delaware to conform to the requirements of a recent federal rule, 75 FR 31514, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (June 3, 2010), providing for the regulation of certain greenhouse gases, which are considered pollutants under existing Delaware air quality regulations. The Department is proposing to amend existing Regulations 1125 and 1130 by adding definitions which describe greenhouse gases (GHG) as composed of the aggregate group of six greenhouse gases: carbon dioxide (CO2), nitrous oxide (N20), methane (CH4), hydrofluorocarbons (HFC), perfluorocarbons (PFC), and sulfur hexafluoride (SF6), as well as for carbon dioxide equivalent emissions (CO2e). These regulations also will be amended to require consideration for permitting of certain GHG emitting sources, under Title V (Reg. 1130) and new source review (Reg. 1125), beginning January 2, 2011, that emit or have the potential to emit, 75,000 tons per year, or, 100,000 tons per year of CO2e. The Department is proposing to make these revisions now to add the new threshold limits for regulating these emissions in these regulations as shown in the recently issued federal rule 75 FR 31514, "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule", as noted above. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS On August 31, 2010, the Department’s Division of Air Quality (DAQ) commenced the regulatory development process with Start Action Notice 2010-19. The Department published the proposed regulatory amendments in the October 1, 2010 Delaware Register of Regulations and held a public hearing on November 10, 2010. The Department’s presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer’s Report dated November 12, 2010 (Report). The Report recommends certain findings and the adoption of the proposed regulatory amendments as attached to the Report as Appendix A. Findings and Discussion I find that the proposed Amendments are well-supported by the record developed by the Department, and adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendments. The Department received public comments from the regulated community, as noted in the Report, and considered and responded to all timely and relevant public comments in making its determination. I find that the Department’s experts in the Division of DAQ fully developed the record to support adoption of this Amendment. With the adoption of the regulatory amendments to 7 DE Admin. Code 1125, Requirements for Preconstruction Review, Section 3.0, “Prevention of Significant Deterioration of Air Quality” and 7 DE Admin. Code 1130, Title V State Operating Permit Program, Section 2.0, “Definitions”: Greenhouse Gas (GHG) Emissions, Delaware will be enabled to conform to the requirements of a recent federal rule, 75 FR 31514, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (June 3, 2010), providing for the regulation of certain greenhouse gases, which are considered pollutants under existing Delaware air quality regulations. Additionally, these regulations are being amended at this time to require consideration for permitting of certain GHG emitting sources, under Title V (Reg. 1130) and new source review (Reg. 1125), beginning January 2, 2011, that emit or have the potential to emit, 75,000 tons per year, or, 100,000 tons per year of CO2e. In conclusion, the following findings and conclusions are entered: 1.) The Department has jurisdiction under its statutory authority to issue an Order adopting these proposed Amendments as final; 2.) The Department provided adequate public notice of the proposed Amendments, and provided the public with an adequate opportunity to comment on the proposed Amendments, including at a public hearing; 3.) The Department held a public hearing on November 10, 2010 on the proposed Amendments in order to consider public comments before making any final decision, and fully considered and responded to all timely and relevant comments received from the regulated community concerning this matter; 4) The Department’s Hearing Officer’s Report, including its recommended record and the recommended Amendments as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order; 5.) The recommended Amendments do not reflect any substantive changes from the proposed regulation Amendments as published in the October 1, 2010, Delaware Register of Regulations; 6.) The recommended Amendments should be adopted as final regulation Amendments because (1) Delaware will be enabled to conform to the requirements of a recent federal rule, 75 FR 31514, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (June 3, 2010), providing for the regulation of certain greenhouse gases, which are considered pollutants under existing Delaware air quality regulations; (2) consideration will now be required for permitting of certain GHG emitting sources, under Title V (Reg. 1130) and new source review (Reg. 1125), beginning January 2, 2011, that emit or have the potential to emit, 75,000 tons per year, or, 100,000 tons per year of CO2e; and (3) the regulation amendments are well supported by documents in the record; and that 7.) The Department shall submit this Order approving the final regulations to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate. David S. Small (for) Collin P. O’Mara, Secretary 1125 Requirements for Preconstruction Review 1130 Title V State Operating Permit Program DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS *Please note that no changes were made to the regulations as originally proposed and published in the October 2010 issue of the Register at page 263 (14 DE Reg. 263). Therefore, the final regulations are not being republished. A copy of the final regulations are available at: 1125 Requirements for Preconstruction Review & 1130 Title V State Operating Permit Program DIVISION OF AIR AND WASTE MANAGEMENT Statutory Authority: 7 Delaware Code, Chapter 60 (7 Del.C., Ch. 60) 7 DE Admin. Code 1138 Secretary’s Order No.: 2010-A-0038 Date of Issuance: November 10, 2010 Effective Date of the Amendment: December 11, 2010 1138 Emission Standards for Hazardous Air Pollutants for Source Categories Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding. Background and Procedural History This Order considers the proposed regulatory amendment to 7 DE Admin. Code 1138, Emission Standards for Hazardous Air Pollutants for Source Categories, Section 16.0, “Area Source Asphalt Processing and Asphalt Roofing Products Manufacturing Operations”. This proposed new Section 16.0 is based upon a federal rule that the U.S. Environmental Protection Agency (EPA) promulgated at 40 CFR Part 63, Subpart AAAAAAA, and is applicable to new and existing asphalt processing operations and asphalt roofing manufacturing operations located at area sources. This area source standard addresses the emissions of polycyclic aromatic hydrocarbons (“PAHs”), which represent a broad class of aromatic compounds. EPA has classified seven PAHs (benzo[a]pyrene, benz[a]anthracene, chrysene, benzo[b]fluoranthene, benzo[k]fluoranthene, dibenz[a,h]anthracene, and indeno[1,2,3-cd]pyrene) as probable human carcinogens. The major non-cancerous effects from chronic inhalation exposure are diseases associated with the respiratory tract. The purpose of this proposed regulatory action is to provide increased protection for Delaware citizens against the aforementioned potential adverse health effects linked to the aforementioned PAHs. Facilities that will be subject to Section 16 include facilities that conduct asphalt processing operations, as well as facilities that manufacture roofing products, such as roofing shingles, rolled roofing and tar paper. Roofing companies that install built-up roofing systems on buildings are exempt from this proposed regulation, even if one of the layers is asphalt. Hot mix asphalt cement plants are also exempt from this regulation (asphalt cement is used in road construction, parking lots, and storage pads). The proposed Section 16 specifies emissions limitations from the asphalt process operations and asphalt roofing products manufacturing operations. Asphalt roofing products manufacturing operations must also limit their emissions to either a particulate matter or polycyclic aromatic hydrocarbon level. Facilities have some freedom in choosing the control technology they wish to use to maintain their emissions below said limitations. Based on the already demonstrated use in the industry, the EPA has already approved the use of thermal oxidizers, high efficiency air filter, fiber bed filters, and electrostatic precipitators to control the emissions from asphalt processing operations and asphalt roofing products manufacturing operations. Should a facility wish to use a different control technology, the proposed regulation provides the procedure to follow to request the EPA’s approval of alternative controls. In addition to the above compliance requirements for facilities subject to Section 16.0, each such facility must be found compliant with the following four requirements as well: • The development and implementation of a startup, shutdown, and malfunction plan, which shall provide appropriate operation instructions, proper corrective actions during malfunctions, required maintenance and inspection schedules, and proper maintenance procedures; DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS • The development and implementation of a site specific monitoring plan, which shall identify the appropriate monitoring locations, define the proper performance and equipment specification for the monitoring system, and document the various procedure needed to insure the quality of the data collected by the monitoring system; • The demonstration of its initial compliance with the emission limitation for each operation, which is done by conducting a performance test and comparing the emission results of the performance test with the applicable emission limitation and • The demonstration of its ongoing compliance with the emission limitation for each operation. The Department’s Division of Air Quality (DAQ) commenced the regulatory development process with Start Action Notice 2009-17. The Department published the proposed regulatory amendment in the September 1, 2010 Delaware Register of Regulation and held a public hearing on September 22, 2010. The Department’s presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer’s Report dated November 1, 2010 (Report). The Report recommends certain findings and the adoption of the proposed Amendment as attached to the Report as Appendix A. Findings and Discussion I find that the proposed Amendment is well-supported by the record developed by the Department, and adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendment. I find that the Department’s DAQ expert fully developed the record to support adoption of this Amendment. With the adoption of the regulation amendment to 7 DE Admin. Code 1138, Emission Standards for Hazardous Air Pollutants for Source Categories, Section 16.0, “Area Source Asphalt Processing and Asphalt Roofing Products Manufacturing Operations”, Delaware will be able to mirror the recently issued federal rule promulgated by the U.S. Environmental Protection Agency (EPA) at 40 CFR Part 63, Subpart AAAAAAA and provide increased protection for Delaware citizens against potential adverse health effects linked to long-term exposure to the aforementioned PAHs, which are (1) known probable human carcinogens; and (2) have additional non-cancerous effects from chronic inhalation exposure, including diseases associated with the respiratory tract. In conclusion, the following findings and conclusions are entered: 1.) The Department has jurisdiction under its statutory authority to issue an Order adopting this proposed Amendment as final; 2.) The Department provided adequate public notice of the proposed Amendment, and provided the public with an adequate opportunity to comment on the proposed Amendment, including at a public hearing; 3.) The Department held a public hearing on September 22, 2010 on the proposed Amendment in order to any consider public comments before making any final decision; 4) The Department’s Hearing Officer’s Report, including its recommended record and the recommended Amendment as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order; 5.) The recommended Amendment does not reflect any substantive change from the proposed regulation Amendment as published in the September 1, 2010, Delaware Register of Regulations; 6.) The recommended Amendment should be adopted as final regulation Amendment because Delaware will then be enabled to (1) mirror the recently issued federal rule promulgated by the U.S. Environmental Protection Agency (EPA) at 40 CFR Part 63, Subpart AAAAAAA; and (2) provide increased protection for Delaware citizens against potential adverse health effects linked to long-term exposure to the aforementioned PAHs, which are known probable human carcinogens, and have additional non-cancerous effects from chronic inhalation exposure, including diseases associated with the respiratory. Moreover, the regulation amendment is well supported by documents in the record; and 7.) The Department shall submit this Order approving the final regulation to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate. DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS David S. Small, Acting Sec. (for) Collin P. O’Mara, Secretary 1138 Emission Standards for Hazardous Air Pollutants for Source Categories *Please Note: Due to the size of the final regulation, it is not being published here. A copy of the regulation is available at: 1138 Emission Standards for Hazardous Air Pollutants for Source Categories DIVISION OF AIR AND WASTE MANAGEMENT Statutory Authority: 7 Delaware Code, Chapter 60 (7 Del.C., Ch. 60) 7 DE Admin. Code 1140 Secretary’s Order No.: 2010-A-0039 Date of Issuance: November 9, 2010 Effective Date of the Amendment: December 11, 2010 1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding. Background and Procedural History This Order considers the proposed regulatory amendment to 7 DE Admin. Code 1140, Delaware Low Emission Vehicle Program. The primary purpose of this promulgation is to reduce vehicle emissions from new vehicles in Delaware, beginning with model year 2014. Considerable benefits to human health and the environment will be realized under this program in the long term by the adoption of California’s emissions standards, which are more stringent than the current federal standards. The Low Emission Vehicle (“LEV”) Program reduces emissions of ozone precursors, particulates, toxic air pollutants, and greenhouse gases. The Department’s Division of Air Quality (DAQ) commenced the regulatory development process with Start Action Notice 2009-33. The Department published the proposed regulatory amendment in the October 1, 2010 Delaware Register of Regulation and held a public hearing on October 22, 2010. The Department’s presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer’s Report dated November 5, 2010 (Report). The Report recommends certain findings and the adoption of the proposed Amendment as attached to the Report as Appendix A. Findings and Discussion I find that the proposed Amendment is well-supported by the record developed by the Department, and adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendment. Throughout the entire regulatory development process regarding this promulgation, the Department received public comments from the regulated community, as noted in the Report, and considered and responded to all timely and relevant public comments in making its determination. I find that the Department’s DAQ expert fully developed the record to support adoption of this Amendment. The adoption of the regulation amendment to 7 DE Admin. Code 1140, Delaware Low Emission Vehicle Program, will formally establish the Delaware Low Emission Vehicle Program (DEL LEV). The inclusion of Delaware into California’s Low Emission Vehicle Program (CAL LEV) will allow additional reductions of motor vehicle emissions from new vehicles (less than 7,500 miles) transferred (i.e., sold, delivered, purchased, leased, rented, acquired, received, and/or registered) into Delaware, beginning with model year 2014, as the proposed program is more stringent than the current federal rule. The amendments to 7 DE Admin. Code 1140 will also provide increased protection for Delaware citizens against a variety of potential adverse health effects linked to long-term exposure to particulate matter (PM), volatile organic compounds (VOCs), nitrogen oxide (NOx), and greenhouse gases (GHGs). This implementation proposes DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS to adopt requirements that are at least as health protective as requirements of the existing Federal Tier 2 standards. In conclusion, the following findings and conclusions are entered: 1.) The Department has jurisdiction under its statutory authority to issue an Order adopting this proposed Amendment as final; 2.) The Department provided adequate public notice of the proposed Amendment, and provided the public with an adequate opportunity to comment on the proposed Amendment, including at a public hearing; 3.) The Department held a public hearing on October 22, 2010 on the proposed Amendment in order to consider public comments before making any final decision, and fully considered and responded to all timely and relevant comments received from the regulated community concerning this matter; 4) The Department’s Hearing Officer’s Report, including its recommended record and the recommended Amendment as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order; 5.) The recommended Amendment does not reflect any substantive change to either the intent or content of the proposed regulation Amendment as published in the October 1, 2010, Delaware Register of Regulations; 6.) The recommended Amendment should be adopted as final regulation Amendment because Delaware will then be enabled to (1) provide for additional reductions of motor vehicle emissions from new vehicles (less than 7,500 miles) transferred (i.e., sold, delivered, purchased, leased, rented, acquired, received, and/or registered) into Delaware, beginning with model year 2014, as the proposed program is more stringent than the current federal rule; and (2) provide increased protection for Delaware citizens against potential adverse health effects linked to long-term exposure to particulate matter (PM), volatile organic compounds (VOCs), nitrogen oxide (NOx), and greenhouse gases (GHGs). This implementation proposes to adopt requirements that are at least as health protective as requirements of the existing Federal Tier 2 standards. Moreover, the regulation amendment is well supported by documents in the record; and 7.) The Department shall submit this Order approving the final regulation to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate. Collin P. O’Mara, Secretary 1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation *Please Note: Due to the size of the final regulation, it is not being published here. A copy of the regulation is available at: 1140 Delaware’s National Low Emission Vehicle (NLEV) Regulation DEPARTMENT OF STATE PUBLIC SERVICE COMMISSION Statutory Authority: 29 Delaware Code, Sections 1133 and 10115(a) (29 Del.C., §§1133 & 10115(a)) IN THE MATTER OF THE ADOPTION OF RULES | AND REGULATIONS GOVERNING THE | PROCEDURE FOR INSPECTION AND COPYING | PSC REGULATION DOCKET NO. 62 OF PUBLIC RECORDS UNDER THE FREEDOM | OF INFORMATION ACT, 29 DEL.C. §§10001-10006 | (OPENED AUGUST 17, 2010) | DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 FINAL REGULATIONS ORDER NO. 7868 AND NOW, this 18th day of November, 2010: WHEREAS, from time to time, the Delaware Public Service Commission (the “Commission”) receives requests for documents pursuant to the Freedom of Information Act, 29 Del.C. §§10001-10006 (“FOIA”); and WHEREAS, section 10003 of FOIA states that it is the responsibility of public bodies to establish rules and procedures regarding access to public records as well as fees charged for copying such records; and WHEREAS, on August 17, 2010, the Commission entered PSC Order No. 7820, which opened this docket and required that notice of proposed FOIA rules, entitled the Delaware Public Service Commission Freedom of Information Act Regulations Governing the Procedure for Inspection and Copying of Public Records (“FOIA Rules”), with a deadline to provide comments, be published in the Delaware Register of Regulations and The News Journal and the Delaware State News newspapers; and WHEREAS, said notice was published as ordered; and WHEREAS, the Commission received no comments or objections to the proposed FOIA Rules; and WHEREAS, the Commission considered the proposed FOIA Rules at its meeting on November 18, 2010. NOW, THEREFORE, IT IS HEREBY ORDERED BY THE AFFIRMATIVE VOTE OF NOT FEWER THAN THREE COMMISSIONERS: 1. That, pursuant to 26 Del.C. §§209(a) and 821, and 29 Del.C. §§10111 et seq., the Commission hereby promulgates the Delaware Public Service Commission Freedom of Information Act Regulations Governing the Procedure for Inspection and Copying of Public Records (the “FOIA Rules”), a true and correct copy of which is attached hereto as Exhibit A, as official regulations as defined by 29 Del.C. §1132. 2. That, pursuant to 26 Del.C. §§10113 and 10118, the Secretary of the Commission shall transmit to the Registrar of Regulations for publication in the Delaware Register a copy of this Order (with the attached FOIA Rules). An exact copy of the FOIA Rules attached hereto shall be published as final, official regulations in the Delaware Register. 3. That the Commission reserves the jurisdiction and authority to enter such further Orders in this matter as may be deemed necessary or proper. BY ORDER OF THE COMMISSION: Jeffrey J. Clark, Commissioner Joann T. Conaway, Commissioner Dallas Winslow, Commissioner ATTEST: Alisa Carrow Bentley, Secretary 1008 Regulations Governing Requests Made Pursuant to the Freedom of Information Act *Please note that no changes were made to the regulation as originally proposed and published in the September 2010 issue of the Register at page 164 (14 DE Reg. 164). Therefore, the final regulation is not being republished. A copy of the final regulation is available at: 1008 Regulations Governing Requests Made Pursuant to the Freedom of Information Act DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 GOVERNOR’S EXECUTIVE ORDERS STATE OF DELAWARE EXECUTIVE DEPARTMENT DOVER EXECUTIVE ORDER NUMBER TWENTY-ONE TO: HEADS OF ALL STATE DEPARTMENTS AND AGENCIES RE: REAUTHORIZING THE DELAWARE HOMELAND SECURITY ADVISORY COUNCIL WITH AN "ALL HAZARDS, ALL PERSONS" APPROACH WHEREAS, on September 11, 2001, the United States was attacked by a foreign enemy intent on weakening its national infrastructure, institutions, and resolve through the application of terrorism; and WHEREAS, the magnitude and nature of the September 11, 2001 terrorist attacks, the anthrax crisis, and the resulting national alerts led governors to initiate unprecedented efforts to implement comprehensive state-based strategies to prevent, prepare for, respond to, and recover from terrorist attacks; and WHEREAS, since September 11, 2001, our nation and our state have learned valuable lessons from major catastrophic events su ch as Hu rricanes Katrin a and Rita, an d the st ate continues to im prove it s o verall preparedness for emergency events, including Nor'easters and heavy rain and snowfall; and WHEREAS, the variety of threats to our state requires recognition that homeland security is interested in not only acts of terrorism, but all events that may cause disruption to society, be they man made or natural; and WHEREAS, the State of Delaware, through the efforts of numerous persons representing the private sector, municipalities, co unties, an d st ate and fed eral ag encies, ha s r evised a nd u pgraded the Delawar e Eme rgency Operations Plan; and WHEREAS, the Delaware Homeland Security Advisory Council has taken a leadership role in incorporating advice and input from its members in the development of appropriate strategies to address risks from terrorism and other threats to the security of Delaware's citizens; and WHEREAS, it is a ppropriate to broaden the focus of the Delaware Homeland Security Advisory Council to include an “All Hazards, All Persons” approach to promoting and protecting the citizens, visitors, and infrastructure of the State of Delaware. NOW, THEREFORE, I, JACK A. MARKELL, by virtue of the authority vested in me as Governor of the State of Delaware, do hereby DECLARE and ORDER that: 1. The Delaware Homeland Security Advisory Council (hereinafter, the "Council”) is continued to pr eserve and protect the citizens, visitors, and infrastructure of the State of Delaware utilizing an “All Hazards, All Persons” approach. 2. The Council shall be comprised of the following members: (a) The Secretary of the Department of Safety and Homeland Security, who shall serve as chair; (b) The Homeland Security Advisor for the Department of Safety and Homeland Security; (c) The Adjut ant Gen eral of the De laware Na tional Guard, or a designee ap pointed by th e Adjut ant General; (d) The Chief Information Officer of the State of Delaware, or a designee appointed by the CIO; (e) The Secre tary o f the Dep artment of Natur al Re sources and Envir onmental Co ntrol, o r a de signee appointed by the Secretary; (f) The Secretary of th e De laware De partment of T ransportation, or a de signee appointed by the Secretary; (g) The Secretary of the Delaware Department of Education, or a designee appointed by the Secretary; (h) The Secretary of the Delaware Department of Agriculture, or a designee appointed by the Secretary; (i) The Commissioner of the Department of Correction, or a designee appointed by the Commissioner; (j) The Superintendent of the Delaware State Police, or a designee appointed by the Superintendent; (k) The Director of the Division of Public Health, or a designee appointed by the Director; (l) The Director of th e De laware Eme rgency Management Age ncy, or a designee appointed by the Director; (m) The Director of the Division of Motor Vehicles, or a designee appointed by the Director; DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 GOVERNOR’S EXECUTIVE ORDERS (n) The Executive Secretary of the Delaware Volunteer Firefighters’ Association, or a designee appointed by the Executive Secretary; (o) The Chair of the Delaware Police Chiefs’ Council, or a designee appointed by the Chair; (p) The Pre sident o f the League of Local Gover nments, o r a d esignee a ppointed by the Lea gue's President; and (q) Other representatives from federal, state, and local governments, private sector partners, academia, and emergency service organizations, as recommended by the Secretary of Safety and Homeland Security and appointed by the Governor. 3. The purpose of the Council shall be to provide advice, counsel and assistance to the Secretary of Safety and Homeland Security and the Homeland Security Advisor concerning: (a) The prevention, detection, preparation for, protection against, response to, and recovery from terrorist threats, a ttacks, man-made or na tural cat astrophic in cidents a nd even ts that ma y ca use d isruption to citizens, visitors and infrastructure of the State of Delaware using an “All Hazards, All Persons” approach; (b) Providing ad vice a nd co unsel to th e st ate-designated fusion ce nter, as re quired un der U.S. Department of Homeland Security “Fusion Center Baseline Capabilities;” (c) The exchange of intelligence, information and analysis concerning homeland security and the events listed in subsection (a) above; (d) Interoperability of equipment, technologies, and partnering agencies as they pertain to subsection (a) above; (e) The in tegration and maximization o f federal g rant funding r elating to homeland s ecurity, including compliance with U.S. Department of Homeland Security Grant Program requirements; (f) The dissemination of information to the citizensof Delaware, the private sector and other partnering agencies as they pertain to subsection (a) above; (g) Interaction a nd coo rdination betwee n th e Secr etary of Safe ty an d Ho meland Security and other executive agencies; (h) Homeland security planning, except as specifically assigned to another entity by statutory or executive order; and (i) Other matters of homeland security, as determined by the Secretary of Safety and Homeland Security or the Homeland Security Advisor. 4. The Council shall meet at the direction of the Secretary of Safety and Homeland Security. The Secretary of Safety and Homeland Security, in concert with the Homeland Security Advisor, shall be responsible for determining the agenda of the Council meetings. For administrative purposes, the Council will be located within the Department of Safety and Homeland Security, which shall provide staff support to the Council. 5. Executive Order Number Forty-Six, issued by Governor Ruth Ann Minner, is hereby rescinded. APPROVED this 12th day of October, 2010 Jack A. Markell, Governor 14 DE Reg. 586 (12/01/10) DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES DELAWARE RIVER BASIN COMMISSION PUBLIC NOTICE The Dela ware River Basin Comm ission will hold a pub lic hearing an d bu siness meeting on Wednesday, December 8, 2010 beginning at 10:30 a.m. The meeting location could not be confirmed as of the deadline for this notice. For more information, visit the DR BC web s ite a t www .drbc.net or co ntact Pam ela M . Bu sh, Esq., Commission Secretary and Assistant General Counsel, at 609 883-9500 extension 203. DEPARTMENT OF EDUCATION PUBLIC NOTICE The State Board of Education will hold its monthly meeting on Thursday, November 18, 2010 at 1:00 p.m. in the Townsend Building, Dover, Delaware. DEPARTMENT OF HEALTH AND SOCIAL SERVICES DIVISION OF MEDICAID AND MEDICAL ASSISTANCE Medicaid Recovery Audit Contractor Program NOTICE OF PUBLIC COMMENT PERIOD In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 5 12, Delaware Health and Social Services (DHSS) / Division of Medicaid and Medical Assistance (DMMA) is amending the Title XIX Medicaid State Plan to comp ly with se ction 64 11 of th e Af fordable Ca re Act re garding the Medicaid Recovery A udit Contractor Program. Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Planning & Policy Development Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to 302-255-4425 by December 31, 2010. The action concerning the determination of whether to adopt the propos ed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. DIVISION OF PUBLIC HEALTH 4455 Delaware Regulations Governing a Detailed Plumbing Code NOTICE OF PUBLIC HEARING The Department of Health and Social Services, Division of Public Health is proposing regulations which amend Title 16 of the Delaware Code relating to th e adoption and enforcement of a Unified Plumbing Code. Title 16, Section 7906(e), created by House Bill 488 and signed into la w on July 27, 2010, requi res that the Divis ion of Public Health shall issue plumbing permits and shall assess a $100 fee for each permit, except that no permit shall be re quired or fe e a ssessed fo r the replacement of an ex isting fixtur e, pie ce of eq uipment or re lated pipin g, including but not limited to hot water heaters and water conditioning systems. The Division of Public Health has proposed amended regulations governing a Detailed Plumbing Code to address this mandate. On December 1, 2010, the Division pla ns to publish proposed ame ndments to the Delaware Regula tions Governing a D etailed Plumbing Code and hold them out for public comment per Delaware law. The Health Systems Protection Section, under the Division of Public Health, Department of Health and Social Services (DHSS), w ill hold a public hearing to dis cuss pr oposed am endments to th e De laware Reg ulations DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES Governing a Detailed Plumbing Code. Title 16, Section 7906(e), created by House Bill 488 and signed into law on July 27, 2010, requires that the Division of Public Health shall issue plumbing permits and shall assess a $100 fee for each permit, except that no permit shall be required or fee assessed for the replacement of an existing fixture, piece of equipment or related piping, including but not limited to hot water heaters and water conditioning systems. The Division of Public Health has proposed amended regulations governing a Detailed Plumbing Code to address this mandate. The public hearing will be held on De cember 22, 2010 at 10:00 a.m. in the Third Floor Conference Room, located in the Jesse Cooper Building, 417 Federal Street, Dover, Delaware. Copies of the proposed regulations are available for review in the November 1, 2010 edition of the Delaware Register of Regulations, access ible online at: http://regulations.delaware.gov or by callin g the Of fice of Health Systems Protection at (302) 856-5496. Anyone wishing to present his or her oral comments at this hearing should contact Ms. Deborah Harvey at (302) 744-4700 by December 20, 2010. Anyone wishing to submit written comments as a supplement to or in lieu of oral testimony should submit such comments by December 31, 2010 to: Deborah Harvey, Hearing Officer Division of Public Health 417 Federal Street Dover, DE 19901 Fax (302) 739-6659 DIVISION OF PUBLIC HEALTH PUBLIC NOTICE 4458 State of Delaware Food Code Regulations (2011) The Department of Health and Social Services, Division of Public Health is proposing regulations which amend Title 16 of the Delaware Code relating to the State of Delaware Food Code. The Divis ion of Public Health proposes to repeal the current 1999 State of Delaware Food Code in its entirety and in its place adopt with amendments the United States Public Health Service 2009 Food Code to be known as the 2011 State of Delaware Food Code. On December 1, 2010, the Division plans to publish the proposed 2011 State of Delaware Food Code and hold them out for public comment per Delaware law. The Health Systems Protection Section, under the Division of Public Health, Department of Health and Social Services, will hold a public hearing to discuss the proposed 2011 State of Delaware Food Code. Due to the extensive number of amendments the Department has concluded that the current regulations should be repealed and replaced in their entirety with the proposed regulations being published. The Division of Public Health proposes to repeal the current 1999 State of Delaware Food Code in its entirety and in its place adopt with amendments the United States Public Health Service 2009 Food Code to be known as the 2011 State of Delaware Food Code. The public hearing will be held on December 21, 2010 at 9:30 a.m. in the Felton-Farmington Room, located in the Delaware Department of Transportation Building, 800 Bay Road, Dover, Delaware. Copies of the proposed regulations are available for review in the December 1, 2010 edition of the Delaware Register of Regulations, accessible online at: http://regulations.delaware.gov or by calling the Offic e of Health Systems Protection at (302) 744-4842. Anyone wishing to present his or her oral comments at this hearing should contact Ms. Deborah Harvey at (302) 744-4700 by December 20, 2010. Anyone wishing to submit written comments as a supplement to or in lieu of oral testimony should submit such comments by December 31, 2010 to: Deborah Harvey, Hearing Officer Division of Public Health 417 Federal Street Dover, DE 19901 Fax (302) 739-6659 DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES DIVISION OF SOCIAL SERVICES Delaware Temporary Assistance for Needy Families (TANF) Employment and Training Program NOTICE OF PUBLIC COMMENT PERIOD In compliance with the State's Administrative Procedures Act (APA -Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Social Services is proposing to amend Delaware TANF Employment and Training Program policies in the Division of Social Services Manual (DSSM) regarding Mandatory Participants. Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy, Program & Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4425 by December 31, 2010. The action concerning the determination of whether to adopt the propos ed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. DIVISION OF SOCIAL SERVICES Child Care Subsidy Program NOTICE OF PUBLIC COMMENT PERIOD In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 5 12, Delaware Health and Social Services (DHSS) / Division of Social Services is proposing to amend Child Care Subsidy Program policies in the Division of Social Services Manual (DSSM) regarding Determination of the Ch ild Care Parent Fee and Fee Waiving Situations. Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy, Program & Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4425 by December 31, 2010. The action concerning the determination of whether to adopt the propos ed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons. DEPARTMENT OF STATE PUBLIC SERVICE COMMISSION 3008 Rules and Procedures to Implement the Renewable Energy Portfolio Standard NOTICE OF PUBLIC COMMENT PERIOD Under the “Renewable Energy Portfolio Standards Act,” 26 Del.C. §§ 351-364 (2006 Supp.) (the “RPS Act”), each electric supplier making retail electric sales in Delaware must, beginning in 2007, accumulate a portfolio of “renewable energy credits” equivalent to a specified percentage of its overall retail electric supply sales. In 2006, the Pu blic Service Commission ( “PSC”) a dopted “Ru les an d Pr ocedures to Im plement the Renewable Energy Portfolio Standard” (the “RPS Rule s”). Se e 10 DE Reg. 1 51-157 (July 1, 20 06). Th e RPS Rules h ave been amended twice in the interim to conform to subsequent amendments to the RPS Act. The PSC now proposes to revise the RPS Rules to incorporate, and assure consistency with, the statutory changes made by the recently enacted law. You can review PSC Order No. 7862 (November 10, 2010) (the “Order”) and the proposed revised RPS Rules in the December 2010 issue of the Delaware Register of Regulations. You can also review the Order and the proposed revised RPS Rules at the PSC’s Internet website located at http://depsc.delaware.gov. If you wish to DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010 CALENDAR OF EVENTS/HEARING NOTICES obtain written copies of the Order and proposed revised RPS Rules, please contact the PSC at (302) 736-7500. Copies are $0.25 per page. Payment is expected prior to copying (if you wish the copies to be mailed) or at the time the copies are retrieved (if you retrieve them in person). The PSC now solicits comments, suggestions, compilations of data, briefs, or other written materials about the proposed revisions to its RPS Rules. If you wish to file any such materials, you should submit an original and ten copies of such written documents on or before December 31, 2010. You should file such materials with the PSC at the following address: Public Service Commission 861 Silver Lake Boulevard Cannon Building, Suite 100 Dover, Delaware, 19904 Attn: Reg. Dckt. No. 56 If possible, you should accompany such written comments with an electronic version of the submission. Such electronic co py m ay b e f iled on a co py-capable CD -Rom dis k or se nt as an a ttachment to an In ternet e-mail addressed to Pamela.Knotts@state.de.us. The PSC will also conduct a public evidentiary hearing on the new proposed regulations on February 22, 2011 at 1:00 P .M. at the PSC ’s of fice at the address set fo rth above. Any individual with a disability desiring to participate in these proceedings or to review the filings should contact the PSC to discuss any auxiliary aids or services needed. The PSC Staff can also provide additional information about this docket. The PSC’s toll-free telephone number within Delaware is 1-800-282-8574. The PSC may be reached at (302) 736-7500 (including text telephone communications). DEPARTMENT OF TRANSPORTATION DIVISION OF TRANSPORTATION SOLUTIONS 2403 Special Events Policies and Procedures—Traffic Management PUBLIC NOTICE Under Title 17 of the Delaware Code, Section 141, as well as 29 Delaware Code Section 8404(8), the Traffic Section of the Delaware Department of Transportation (DelDOT), has the authority to regulate the traffic impacts of special events that affect the safe movement of traffic on the State’s transportation network. The Department has now drafted regulations for this purpose, and this draft accompanies this notice. The Department will take written comments on the draf t Special Event Policies and Proc edures regulations from December 1, 2010 through December 31, 2010. Copies of the draft Regulations can be obtained by reviewing or downloading a PDF copy at the following web address: http://regulations.delaware.gov/ Questions or comments regarding these proposed changes should be directed to: Adam Weiser, P.E., Traffic Section, Division of T ransportation Solutions, Delaware Department of T ransportation 169 Brick Store Landing Road Smyrna, DE 19977 (302) 659-4073 (telephone) (302) 653-2859 (fax), or email to: adam.weiser@state.de.us DELAWARE REGISTER OF REGULATIONS, VOL. 14, ISSUE 6, WEDNESDAY, DECEMBER 1, 2010