Delaware Register
of
Regulations
Issue Date: October 1, 2001
Volume 5 - 988
IN THIS ISSUE:
Regulations:
Proposed
Final
Governor
Executive Order
Calendar of Events &
Hearing Notices
Pages 678 Issue 4 -
Pursuant to 29 Del.C. Chapter 11, Subchapter III, this issue of the Register contains
all documents required to be published, and received, on or before September 15, 2001.
INFORMATION ABOUT THE DELAWARE 679
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amended or repealed and any emergency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
• Attorney General's Opinions in full text
• 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:
4 DE Reg. 769 - 775 (11/1/00)
Refers to Volume 4, pages 769 - 775 of the
Delaware Register issued on November 1, 2000.
SUBSCRIPTION INFORMATION
The cost of a yearly subscription (12 issues)
for the Delaware Register of Regulations is
$120.00. 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 and other interested parties
may participate in the process by which
administrative 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or repealed, and may initiate the process by which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 text
of such 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repealed, with the Registrar for publication in the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 other
regulations that may be impacted or affected by
the proposal, and shall state the manner in which
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 hearing shall not
be scheduled less than 20 days following
publication of notice of the proposal in the
Register of Regulations. If a public hearing will
be held on the proposal, notice of the time, date,
place and a summary of the nature of the proposal
shall also be published in at least 2 Delaware
newspapers of general 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.
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
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
INFORMATION ABOUT THE DELAWARE
680 REGISTER OF REGULATIONS
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.
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 the preceding section,
no judicial review of a regulation is available
unless 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 CLOSING CLOSING
DATE DATE TIME
NOVEMBER 1 OCTOBER 15 4:30 P.M.
DECEMBER 1 NOVEMBER 15 4:30 P.M.
JANUARY 1 DECEMBER 15 4:30 P.M.
FEBRUARY 1 JANUARY 15 4:30 P.M.
MARCH 1 FEBRUARY 15 4:30 P.M.
DIVISION OF RESEARCH STAFF:
Walter G. Feindt, Deputy Director; Judi
Abbott, Secretary; Jeffrey W. Hague, Registrar
of Regulations; Maryanne McGonegal, Research
Analyst; Ruth Ann Melson, Legislative
Librarian; Deborah J. Messina, Print Shop
Supervisor; Alex W. Mull, Assistant Registrar;
Deborah A. Porter, Administrative Assistant;
Barbara Ryan, Public Information Clerk;
Victoria Schultes, Administrative Assistant; Ted
Segletes, Paralegal; Don Sellers, Printer; Thom
Shiels, Legislative Attorney; Marguerite P.
Smith, Public Information Clerk; Alice W. Stark,
Legislative Attorney; Mary Jane Starkey, Senior
Secretary; Marvin L. Stayton, Printer; Rochelle
Yerkes, Senior Secretary.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
r
t
TABLE OF CONTENTS 681
Cumulative Tables................................................. ....... 683
PROPOSED
DEPARTMENT OF ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
100 Board of Accountancy................................... ....... 687
2900 Real Estate Commission............................... ....... 697
2925 Real Estate Commission, Education............ ....... 705
3300 Board of Veterinary Medicine...................... ....... 709
5300 Board of Massage and Bodywork............... ....... 717
PUBLIC SERVICE COMMISSION
Reg. Docket No. 13, Rules & Regulations
Governing Minimum Standards for Service
Provided by Public Water Companies........... ....... 722
DEPARTMENT OF EDUCATION
103 School Accountability for Academic
Performance................................................... ....... 724
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
Delaware State Lottery Office
Video Lottery Regulations 5.0, 7.0 and 14.0........ ....... 728
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Training & Qualifications for Nursing Assistants &
Certified Nursing Assistants.......................... ....... 733
DIVISION OF PUBLIC HEALTH
Health Systems Protection Section
Uniform Controlled Substances Act, Rescheduling
of Dronabinol................................................. ....... 747
Uniform Controlled Substance Regulation
No. 4 .............................................................. ....... 750
DIVISION OF SOCIAL SERVICES
11004.7 Child Care Fee......................................... ....... 755
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Regulation 43, Not To Exceed California Heavy
Duty Diesel Engine Standards........................ ...... 756
DIVISION OF WATER RESOURCES
Regulations Governing the Design, Installation
and Operation of On-Site Wastewater
Treatment and Disposal Systems.................... ...... 760
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
Direct Grants Program........................................... ...... 817
Matching Funds Program....................................... ...... 818
FINAL
200 Board of Landscape Architecture................... ...... 821
5300 Board of Massage and Bodywork................. ...... 827
DEPARTMENT OF AGRICULTURE
HARNESS RACING COMMISSION
Required Days Off, Rule 1.................................... ...... 832
State Steward/Judges, Rule 3.0.............................. ...... 835
Associations, Rule 4.0........................................... ...... 837
Owners, Rule 5...................................................... ...... 838
Rules of the Race, Rule 7....................................... ...... 841
Medications and Foreign Substances, Rule 8........ ...... 843
THOROUGHBRED RACING COMMISSION
Rule 13.01, Owners Entitled.................................. ...... 849
DEPARTMENT OF EDUCATION
303 Certification Administrative - Assistant
Superintendent For Business.......................... ...... 851
315 Certification Manager Of School Bus
Transportation................................................. ...... 853
316 Certification Supervisor Of School Bus
Transportation................................................. ...... 853
317 Certification School Business Manage.......... ...... 853
318 Certification Manager Of School Food Service
Programs......................................................... ...... 854
319 Certification Supervisor Of School Food
Service Programs............................................ ...... 854
359 Certification Audiology.................................. ...... 855
366 Certification School Occupational Therapis.. ...... 855
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
682 TABLE OF CONTENTS
367 Certification School Physical Therapist......... ....... 855
369 Certification Speech Language Pathologist... ....... 855
1535 Certification Administrative - Administrative
Assistant......................................................... ....... 856
1536 Certification Administrative - Director........ ....... 857
1538 Certification Administrative - Supervisor.... ....... 858
1584 Permits - School, Classroom Aides And Autistic
Residential Child Care Specialists................. ....... 859
398 Degree Granting Institutions of Higher
Education....................................................... ....... 859
501 State Content Standards................................. ....... 865
745 Criminal Background Check for Public
School Related Employment.......................... ....... 869
828 Assistance with Medications on Field Trips.. ....... 873
925 Children with Disabilities............................... ....... 874
1102 Standards for School Bus Chassis and
Bodies Placed in Production on or after
March 1, 2002................................................ ....... 879
State Board of Education Procedures Manual....... ....... 880
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
DSSM 2002, Case Closures and Address Changes...... 893
DSSM Manual, Food Stamp Program, Noncitizen
Eligibility & Certification Provisions of
PL-104-193.................................................... ....... 894
DSSM Manual, Eligibility of Inmates & Eligibility
of The Breast & Cervical Cancer Goup......... ....... 925
DMMS 7004.3, Collection and Management
of Food Stamp Claims.................................... ....... 929
DEPARTMENT OF NATURAL RESOURCES AND
ENVIRONMENTAL CONTROL
Regulations Governing Delaware's Coastal Zone ....... 930
DIVISION OF AIR & WASTE MANAGEMENT
Regulation 31, Low Enhanced Inspection and
Maintenance Program.................................... ....... 940
DIVISION OF FISH & WILDLIFE
Repeal of Shellfish Regulation Nos. S-7(b), S-9,
S-11, S-13 and S-37 new Shellfish Regulations
S-63, S-65, S-67, S-69, S-71, S-73 and S-75. ....... 972
GOVERNOR
Executive Order No. 19, Delaware State Police.... ...... 976
Executive Order No. 20, State Employees'
Charitable Campaign...................................... ...... 976
CALENDAR OF EVENTS/HEARING
NOTICES
Board of Accountancy, Notice of Public Hearing. ...... 981
Real Estate Commission, Notice of Public Hearing .... 981
Real Estate Commission, Educational Guidelines,
Notice of Public Hearing................................ ...... 981
Board of Veterinary Medicine, Notice of Public
Hearing .......................................................... ...... 982
Board of Massage and Bodywork, Notice of
Public Hearing................................................ ...... 982
PSC, Notice of Proposed Amendments & Comment
Period, Reg. Docket No. 13........................... ...... 982
PSC, Rules for the Provision of Telecommunications
Services, Notice of Public Comment Period.. ...... 983
State Board of Education, Notice of Monthly
Meeting.......................................................... ...... 983
Delaware State Lottery Office, Regulations 5.0, 7.0
and 14.0, Notice of Public Hearing................ ...... 984
Health & Social Services
Div. of Long Term Care, Training & Qualifications for
Nursing Assistants & Certified Nursing
Assistants................................................. ...... 984
Div. of Public Health, Uniform Controlled
Substance Regulation No. 4.................... ...... 985
Uniform Controlled Substances Act,
Rescheduling of Dronabinol.................... ...... 985
Div. of Social Services, 11004.7 Child Care
Fee .......................................................... ...... 986
DNREC, Div. of Air & Waste Managment,
Reg. 43, Not To Exceed California Heavy
Duty Diesel Engine Standards, Notice of
Public Hearing......................................... ...... 986
Div. of Water Resources, Regulations Governing
the Design, Installation and Operation
of On-Site Wastewater Treatment and
Disposal Systems, Notice of Public Hearing. 987
DEDO, Direct Grants Program, Notice of Public
Hearing .......................................................... ...... 987
DEDO, Matching Funds Program, Notice of Public
Hearing .......................................................... ...... 988
Delaware River Basin Commission, Notice of Public
Hearing .......................................................... ...... 988
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
CUMULATIVE TABLES 683
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 the regulation was published. Proposed regulations are designated 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 SOLID WASTE AUTHORITY
Regulations of the Delaware Solid Waste Authority............................................................. .......5 DE Reg. 100 (Final)
Differential Disposal Fee Program......................................................................................... .......5 DE Reg. 115 (Final)
Statewide Solid Waste Management...................................................................................... .......5 DE Reg. 117 (Final)
DEPARTMENT OF ADMINISTRATIVE SERVICES
Division of Professional Regulation (TITLE 24 DELAWARE ADMINISTRATIVE CODE)
100 Board of Accountancy......................................................................................... .......5 DE Reg. 6 (Prop.)
5 DE Reg. 119 (Final)
200 Board of Landscape Architecture........................................................................ .......5 DE Reg. 446 (Final)
2900 Real Estate Commission...................................................................................... .......5 DE Reg. 231 (Prop.)
2925 Real Estate Commission, Education Guidelines................................................. .......5 DE Reg. 238 (Prop.)
3000 Board of Professional Counselors of Mental Health........................................... .......5 DE Reg. 452 (Final)
3100 Board of Funeral Services................................................................................... .......5 DE Reg. 606 (Final)
3500 Board of Examiners of Psychologists.................................................................. .......5 DE Reg. 612 (Final)
5100 Board of Cosmetology and Barbering................................................................. .......5 DE Reg. 243 (Prop.)
5300 Board of Massage and Bodywork....................................................................... .......5 DE Reg. 16 (Prop.)
Public Service Commission
Delaware PSC's Rules for the Provision of Telecommunications Services, Docket
Nos. 10 & 45, Proposed Amendments..................................................................... .......5 DE Reg. 435 (Prop.)
Water Utilities, Proposed Regulations Governing, Including the Commission's Jurisdiction to
Grant and Revoke Certificates of Public Convenience & Necessity Subject to the
Jurisdiction of the PSC............................................................................................ .......5 DE Reg. 212 (Final)
DEPARTMENT OF AGRICULTURE
Harness Racing Commission
Required Days Off, Rule 1.............................................................................................. .......5 DE Reg. 247 (Prop.)
State Steward/Judges, Rule 3.0....................................................................................... .......5 DE Reg. 250 (Prop.)
Associations, Rule 4.0.................................................................................................... .......5 DE Reg. 252 (Prop.)
Owners, Rule 5... ...................................................................................................... .......5 DE Reg. 253 (Prop.)
Rules of the Race, Rule 7................................................................................................ .......5 DE Reg. 255 (Prop.)
Medications and Foreign Substances, Rule 8................................................................. .......5 DE Reg. 258 (Prop.)
Plant Industries Section
Grain Inspection and Certification Regulations.............................................................. .......5 DE Reg. 458 (Final)
Thoroughbed Racing Commission
Rule 13.01, Owners Entitled........................................................................................... .......5 DE Reg. 21 (Prop.)
DEPARTMENT OF EDUCATION
101 Delaware Student Testing Program......................................................................... .......5 DE Reg. 23 (Prop.)
5 DE Reg. 620 (Final)
260 General Appeal Procedures for the Child and Adult Care Food Programs
of the United States Department of Agriculture.................................................. .......5 DE Reg. 461 (Final)
303 Certification Administrative - Assistant Superintendent for Business.................... .......5 DE Reg. 263 (Rep.)
315 Certification Manager Of School Bus Transportation............................................. .......5 DE Reg. 264 (Rep.)
316 Certification Supervisor Of School Bus Transportation.......................................... .......5 DE Reg. 265 (Rep.)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
684 CUMULATIVE TABLES
317 Certification School Business Manager................................................................... .......5 DE Reg. 265 (Rep.)
318 Certification Manager Of School Food Service Programs...................................... .......5 DE Reg. 265 (Rep.)
319 Certification Supervisor Of School Food Service Programs................................... .......5 DE Reg. 266 (Rep.)
359 Certification Audiology........................................................................................... .......5 DE Reg. 266 (Rep.)
366 Certification School Occupational Therapis.t.......................................................... .......5 DE Reg. 266 (Rep.)
367 Certification School Physical Therapist.................................................................. .......5 DE Reg. 267 (Rep.)
398 Degree Granting Institutions of Higher Education.................................................. .......5 DE Reg. 270 (Prop.)
501 State Content Standards........................................................................................... .......5 DE Reg. 276 (Prop.)
515 High School Diplomas and Record of Performance................................................ .......5 DE Reg. 28 (Prop.)
5 DE Reg. 625 (Final)
701 Unit Count... ...................................................................................................... .......5 DE Reg. 29 (Prop.)
5 DE Reg. 627 (Final)
745 Criminal Background Checks for Public Education Employees............................. .......5 DE Reg. 280 (Prop.)
828 Assistance with Medications on Field Trips............................................................ .......5 DE Reg. 284 (Prop.)
925 Children with Disabilities........................................................................................ .......5 DE Reg. 286 (Prop.)
1102 Standards for School Bus Chassis and Bodies Placed in Production
on or after March 1, 2002.................................................................................... .......5 DE Reg. 290 (Prop.)
1535 (formerly 305) Certification Administrative - Administrative Assistant................ .......5 DE Reg. 268 (Prop.)
1536 (formerly 306) Certification Administrative - Director........................................... .......5 DE Reg. 268 (Prop.)
1538 (formerly 308) Certification Administrative - Supervisor....................................... .......5 DE Reg. 269 (Prop.)
1584 (formerly 384) Permits - School, Classroom Aides and Autistic Residential
Child Care Specialists.......................................................................................... .......5 DE Reg. 270 (Prop.)
DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Divison of Long Term Care
Delaware Adult Abuse Registry..................................................................................... .......5 DE Reg. 515 (Prop.)
Group Home Facilities for Persons with Aids................................................................ .......5 DE Reg. 520 (Prop.)
Division of Public Health
Body Art Establishments, Regulations Governing......................................................... .......5 DE Reg. 319 (Prop.)
Control of Communicable and Other Disease Conditions.............................................. .......5 DE Reg. 156 (Final)
Cosmetology and Barbering Establishments, Regulations Governing........................... .......5 DE Reg. 311 (Prop.)
Managed Care Organizations (MCO)............................................................................. .......5 DE Reg. 130 (Final)
Rules and Regulations Governing Public Drinking Water Systems............................... .......5 DE Reg. 630 (Final)
Trauma System Rules & Regulations............................................................................. .......5 DE Reg. 32 (Prop.)
5 DE Reg. 632 (Final)
Division of Social Services
Manual, Eligibility of Inmates & Eligibility of the Breast & Cervical Cancer Group... .......5 DE Reg. 359 (Prop.)
Manual, Food Stamp Program, Noncitizen Eligibility & Certification Provisions of
PL-104-193.. ...................................................................................................... .......5 DE Reg. 328 (Prop.)
Reimbursement Methodology for Federally Qualified Health Centers (FQHCs).......... .......5 DE Reg. 173 (Final)
2002 Case Closures and Address Changes................................................................... .......5 DE Reg. 327 (Prop.)
2015-2019 A Better Chance & General Assistance Program........................................ .......5 DE Reg. 181 (Final)
4005.3Step-Parent Income in the ABC Program............................................................ .......5 DE Reg. 644 (Final)
7002 Food Stamp Claims............................................................................................. .......5 DE Reg. 174 (Final)
7004 Collection & Management of Food Stamp Claims............................................. .......5 DE Reg. 177 (Final)
7004.3Collection and Management of Food Stamp Claims........................................... .......5 DE Reg. 359 (Prop.)
7004.3DABC and/or GA Food Stamp Households........................................................ .......5 DE Reg. 535 (Prop.)
7005 Terminating and Writing Off Claims................................................................... .......5 DE Reg. 181 (Final)
13402 A Better Chance Welfare Reform Program......................................................... .......5 DE Reg. 183 (Final)
13403 AFDC Applicants With a Budgeted Need of Less Than $10.............................. .......5 DE Reg. 184 (Final)
14110.8.1Prohibitions .................................................................................................... .......5 DE Reg. 184 (Final)
14300 Citizenship and Alienage..................................................................................... .......5 DE Reg. 184 (Final)
14900 Enrollment in Managed Care............................................................................... .......5 DE Reg. 185 (Final)
15110.1Medicaid Eligibility........................................................................................... .......5 DE Reg. 185 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
CUMULATIVE TABLES 685
15200 Transitional Medicaid.......................................................................................... .......5 DE Reg. 185 (Final)
16100.1.2Initial Eligibility Determination...................................................................... .......5 DE Reg. 186 (Final)
16230.1.4Deducations from Earned Income.................................................................. .......5 DE Reg. 187 (Final)
16500.1Eligibility Requirements.................................................................................... .......5 DE Reg. 187 (Final)
17200 Disabled Children, New 25000 Children's Community Alternative
Disability Program (CCADP).............................................................................. .......5 DE Reg. 536 (Prop.)
18100.2Alien Status ...................................................................................................... .......5 DE Reg. 187 (Final)
DEPARTMENT OF INSURANCE
Reg. No. 81, Prompt Payment of Settled Claims................................................................... .......5 DE Reg. 645 (Final)
Reg. No. 84, Privacy of Consumer Financial & Health Information..................................... .......5 DE Reg. 188 (Final)
DEPARTMENT OF LABOR
Division of Employment & Training
Council on Apprenticeship and Training
Delaware Apprenticeship and Training Law, Section 106.5................................... .......5 DE Reg. 204 (Final)
Office of Labor Law Enforcement
Prevailing Wage Regulations................................................................................... .......5 DE Reg. 205 (Final)
DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Division of Air & Waste Management
Regulation 24, Section 2, Definitions............................................................................. .......5 DE Reg. 541 (Prop.)
Regulation 24, Section 11, Mobile Equipment Repair & Refinishing............................ .......5 DE Reg. 363 (Prop.)
Regulation 24, Section 33, Solvent Metal Cleaning....................................................... .......5 DE Reg. 367 (Prop.)
Regulation 24, Section 46, Lightering Operations......................................................... .......5 DE Reg. 379 (Prop.)
Regulation 24, Section 26, Stage IVapor Recovery....................................................... .......5 DE Reg. 545 (Prop.)
Regulation 24, Section 36, Stage IIVapor Recovery ..................................................... .......5 DE Reg. 547 (Prop.)
Regulation 31, Low Enhanced Inspection and Maintenance Program........................... .......5 DE Reg. 44 (Prop.)
Regulation 38, Subpart T, Emission Standards for Halogenated Solvent Cleaning....... .......5 DE Reg. 383 (Prop.)
Regulation 41, Section 1, Architectural and Industrial Maintenance Coatings.............. .......5 DE Reg. 389 (Prop.)
Regulation 41, Section 2, Consumer Products............................................................... .......5 DE Reg. 560 (Prop.)
Regulation 41, Section 3, Portable Fuel Containers....................................................... .......5 DE Reg. 398 (Prop.)
Regulation 42, Section 1, Control of NOx Emissions from Industrial Boilers.............. .......5 DE Reg. 400 (Prop.)
Division of Fish & Wildlife
Repeal of Shellfish Regulation Nos. S-7(b), S-9, S-11, S-13 and S-37.......................... .......5 DE Reg. 403 (Prop.)
5 DE Reg. 496 (Errata)
Regulation Nos. (Proposed) S-63, S-65, S-67, S-69, S-71, S-73 and S-75.................... .......5 DE Reg. 496 (Errata)
Tidal Finfish Regulation No. 4, Summer Flounder Size Limits; Possession
Limits; Seasons ...................................................................................................... .......5 DE Reg. 462 (Final)
Division of Water Resources
Total Maximum Daily Load (TMDL) for the Murderkill River Watershed, Delaware.. .......5 DE Reg. 404 (Prop.)
DEPARTMENT OF PUBLIC SAFETY
Divison of Boiler Safety
Boiler Safety, Rules & Regulations................................................................................ .......5 DE Reg. 584 (Prop.)
DEPARTMENT OF STATE
Division of Historical & Cultural Affairs
Historic Preservation Tax Credit, Regulations Governing............................................. .......5 DE Reg. 405 (Prop.)
Office of the State Banking Commissioner
Reg. No. 5.1101(f).0001 Election to Be Treated for Tax Purposes as a Subsidiary
Corporation of a Delaware Chartered Banking Organization or Trust Company,
National Bank Having its Principal Office in Delaware, or Out-of-state Bank
That Operates a Resulting Branch in Delaware....................................................... .......5 DE Reg. 77 (Prop.)
5 DE Reg. 647 (Final)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
686 CUMULATIVE TABLES
Reg. No. 5.1101etal.0002, Instructions for Preparation of FranchiseTax...................... .......5 DE Reg. 79 (Prop.)
5 DE Reg. 649 (Final)
Reg. No. 5.1101etal.0003, Estimated Franchise Tax Report.......................................... .......5 DE Reg. 82 (Prop.)
5 DE Reg. 652 (Final)
Reg. No. 5.1101etal.0004, Final Franchise Tax Report ................................................. .......5 DE Reg. 83 (Prop.)
5 DE Reg. 654 (Final)
Reg. No. 5.1101etal.0005, Instructions for Preparation of FranchiseTax for Federal
Savings Banks Not Headquartered in this State but Maintaining Branches
in this State.. ...................................................................................................... .......5 DE Reg. 85 (Prop.)
5 DE Reg. 656 (Final)
Reg. No. 5.1101etal.0006, Estimated Franchise Tax Report Federal Savings Banks Not
Headquartered in Delaware..................................................................................... .......5 DE Reg. 88 (Prop.)
5 DE Reg. 659 (Final)
Reg. No. 5.1101etal.0007, Final Franchise Tax Report Federal Savings Banks Not
Headquartered in Delaware..................................................................................... .......5 DE Reg. 89 (Prop.)
5 DE Reg. 660 (Final)
Reg. No. 5.1101etal.0009, Instructions for Preparation of FranchiseTax for Resulting
Branches in this State of Out-of-State Banks.......................................................... .......5 DE Reg. 90 (Prop.)
5 DE Reg. 661 (Final)
Reg. No. 5.1101etal.0010, Estimated Franchise Tax Report for Resulting Branches in
this State of Out-of-State Banks.............................................................................. .......5 DE Reg. 94 (Prop.)
5 DE Reg. 665 (Final)
Reg. No. 5.1101etal.0011, Final Franchise Tax Report for Resulting Branches in this
State of Out-of-State Banks..................................................................................... .......5 DE Reg. 96 (Prop.)
5 DE Reg. 667 (Final)
Reg. No. 5.1105.0008, Instructions for Calculation of Employment Tax Credits.......... .......5 DE Reg. 98 (Prop.)
5 DE Reg. 669 (Final)
DEPARTMENT OF TRANSPORTATION
Outdoor Advertising, Rules & Regulations........................................................................... .......5 DE Reg. 410 (Prop.)
State Scenic and Historic Highways Program....................................................................... .......5 DE Reg. 595 (Prop.)
EXECUTIVE DEPARTMENT
Governor's Office
Appointments and Nominations..................................................................................... .......5 DE Reg. 218
5 DE Reg. 465
Executive Order No. 18, Delaware Spatial Data I-Team 5 DE Reg. 671
Declaration Of Limited State Of Emergency In New Castle County, Delaware 5 DE Reg. 672
Termination Of Limited State Of Emergency in New Castle County, Delaware 5 DE Reg. 672
Delaware Economic Development Office
Regulation No. 5, Procedures Governing the Delaware Strategic Fund......................... .......5 DE Reg. 499 (Prop.)
Direct Grants Program.................................................................................................... .......5 DE Reg. 512 (Prop.)
Matching Funds Program................................................................................................ .......5 DE Reg. 514 (Prop.)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 687
Symbol Key
Roman 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 such 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 nat ure
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 state the manner in which 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 hearing shall not be scheduled less than 20 days following publication of notice of the
proposal in the Register of Regulations. If a public hearing will be held on the proposal, notice of the time, date, place and a
summary of the nature of the proposal shall also be published in at least 2 Delaware newspapers of general 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
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF ACCOUNTANCY
24 DE Admin. Code 100
Statutory Authority: 24 Delaware Code,
Section 105(1)(5), (24 Del.C. §105(1)(5))
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Sections 105(1) and 105(5), the
Delaware Board of Accountancy proposes to revise its Rules
and Regulations. The proposed amendments implement and
clarify the requirements for firm permits to practice by
revising Section 9.0 in its entirety, including proposed rules
to implement 24 Del.C. 112 regarding professional
responsibility standards. Other proposed changes include
clarifying the definition of "firm," and deleting language
from the rules and regulations relating to the conduct of
hearings.
A public hearing on the proposed Rules and Regulations
originally scheduled for August 22, 2001 has been
rescheduled and will be held on Wednesday, November 14,
2001 at 9:00 a.m., in the Second Floor Conference Room A
of the Cannon Building, 861 Silver Lake Boulevard, Dover,
Delaware, 19904. The Board will receive and consider input
in writing from any person on the proposed Rules and
Regulations. Any written comments should be submitted to
the Board in care of Dana Spruill at the above address. The
final date to submit written comments shall be at the above
scheduled public hearing. Anyone wishing to obtain a copy
of the proposed Rules and Regulations or to make comments
at the public hearing should notify Dana Spruill at the above
address by calling (302) 744-4505.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
Board of Accountancy
Statutory Authority: 24 Del.C. 105
1.0 General Provisions
2.0 Professional Conduct
3.0 Use of Designations
4.0 Applications
5.0 Examination and Certificate Requirements
6.0 Requirements for Permit to Practice Certified
Public Accountancy
7.0 Requirements for Permit to Practice Public
Accountancy
8.0 Reciprocity
9.0 Firm Permits to Practice
10.0 Continuing Education
11.0 Additional Provisions Concerning Examinations
12.0 Excepted Practices; Working Papers
13.0 Hearings
14.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
1.0 General Provisions
1.1 Pursuant to 24 Del.C. Ch. 1, the Delaware Board of
Accountancy ("the Board") is authorized to, and has
adopted, these Rules and Regulations. The Rules and
Regulations are applicable to all certified public accountants,
public accountants, permit holders and applicants to the
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688 PROPOSED REGULATIONS
Board.
1.2 Information about the Board, including its meeting
dates, may be obtained by contacting the Board's
Administrative Assistant at the Division of Professional
Regulation, Cannon Building, 861 Silver Lake Boulevard,
Ste. 203, Dover, Delaware 19904-2467, telephone (302)
739-4522. Requests to the Board may be directed to the
same office.
1.3 The Board's President shall preside at all meetings
of the Board and shall sign all official documents of the
Board. In the President's absence, the Board's Secretary
shall preside at meetings and perform all duties usually
performed by the President.
1.4 The Board may seek counsel, advice and
information from other governmental agencies and such
other groups as it deems appropriate.
1.5 The Board may establish such subcommittees as it
determines appropriate for the fair and efficient processing
of the Board's duties.
1.6 The Board reserves the right to grant exceptions to
the requirements of the Rules and Regulations upon a
showing of good cause by the party requesting such
exception, provided that the exception is not inconsistent
with the requirements of 24 Del.C. Ch. 1.
1.7 Board members are subject to the provisions
applying to "honorary state officials" in the "State
Employees', Officers' and Officials' Code of Conduct,"
found at 29 Del.C. Ch. 58. No member of the Board shall:
(1) serve as a peer reviewer in a peer review of a licensee; or
(2) be an instructor in an examination preparation course or
school or have a financial interest in such an endeavor.
2.0 Professional Conduct
2.1 A certified public accountant, or a public
accountant holding a certificate or permit issued by this
Board, agrees to comply with the Rules of Conduct
contained in the Code of Professional Ethics of the American
Institute of Certified Public Accountants. All changes in the
Rules and Interpretations made by the American Institute of
Certified Public Accountants shall automatically be made a
part of these Rules and Regulations unless specifically
rejected by the Board.
3.0 Use of Designations
3.1 Designation "Certified Public Accountant" and the
Abbreviation "CPA" in the Practice of Certified or Public
Accountancy:
3.1.1 Only the following individuals and entities
may use the designation "certified public accountant", the
abbreviation "CPA", and other designations which suggest
that the user is a certified public accountant, in the practice
of certified or public accountancy:
3.1.1.1 An individual who is registered with
the Board and holds a certificate of certified public
accountant and a current permit to practice.
3.1.1.2 A sole proprietorship, partnership,
professional association or professional corporation
corporation, or any other entity authorized under Delaware
law or a ssimilar statute of another state composed of
certified public accountants which is registered with the
Board and holds a current firm permit to practice.
3.2 Designation "Certified Public Accountant" and the
abbreviation"CPA" by certificate holders who do not
maintain a permit to practice:
3.2.1 An individual who holds a certificate of
certified public accountant but does not maintain a permit to
practice may use the designation "certified public
accountant" or the abbreviation "CPA" on business cards and
stationery if:
3.2.1.1 The certificate of certified public
accountant has not been suspended or revoked and is in good
standing.
3.2.1.2 The individual does not engage in the
practice of certified or public accountancy and does not offer
to perform certified or public accountancy services.
3.2.1.3 The individual does not hold himself or
herself out to be in the practice of certified or public
accountancy when performing or offering to perform
accounting, bookkeeping, tax or accounting-related matters.
3.2.1.4 The individual does not engage in
solicitations or advertising, including listings and
advertisements in phone directories, newspapers, or other
media (including electronic), in which the individual uses
the designation "certified public accountant" or the
abbreviation "CPA".
3.2.1.5 The individual does not publicly
display a certificate of certified public accountant to imply
that he or she is licensed in the practice of certified or public
accountancy or offering to perform certified or public
accountancy services.
3.2.1.6 The individual is employed by a
government, or an academic institution, corporation, or
company not engaged in the practice of certified or public
accountancy and uses the designation "certified public
accountant" or the abbreviation "CPA" on business cards and
stationery provided:
3.2.1.6.1 The business cards and
stationery indicate the name of the employer and the title of
the person; and
3.2.1.6.2 The business cards or stationery
are not used to solicit certified or public accountancy
services or accounting-related business.
3.2.2 An individual who holds a certificate of
certified public accountant but not a permit to practice may
not refer to his or her business as "John/Jane Doe, CPA" or
have business cards imprinted "John/Jane Doe, CPA, and
Company or Institution, Title" with the intent to offer
certified or public accountancy services.
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PROPOSED REGULATIONS 689
3.2.3 An individual who holds a certificate of
certified public accountant, but not a permit to practice, may
not perform a service related to accounting, including
bookkeeping and tax returns, while holding him or herself
out as a certified public accountant without a permit to
practice. Similarly, an individual may not prepare income
tax returns and refer to his or her business or sign tax returns
as "John/Jane Doe, CPA" without a permit to practice. Such
individual may put up a sign reading "John/Jane Doe, Tax
Preparer" and prepare and sign tax returns as "John/Jane
Doe".
3.3 Designation "Public Accountant" and the
abbreviation "PA"
3.3.1 Only the following individuals and entities
may use the designation "public accountant," the
abbreviation "PA", and other designations which suggest
that the user is a public accountant, in the practice of public
accountancy.
3.3.1.1 An individual who is registered with
the Board and holds a permit to practice public accountancy
in good standing.
3.3.1.2 A sole proprietorship, partnership,
professional association or professional corporation
corporation, or any other entity authorized under Delaware
law or a similar statute of another state composed of certified
public accountants which is registered with the Board and
holds a current firm permit to practice public accountancy.
3.3.2 An individual may not refer to his or her
business or sign tax returns as "John/Jane Doe, PA" without
a permit to practice public accountancy.
3.4 No person, sole proprietorship, partnership, or
corporation, or any other entity authorized under Delaware
law or a similar statute of another state shall hold him/her/
itself or otherwise use the title or designation "certified
accountant", "chartered accountant", "enrolled accountant",
"licensed accountant", "registered accountant", "licensed
public accountant", "registered public accountant", or any
other title or designation likely to be confused with "certified
public accountant" or "public accountant", or any other
abbreviations of any prohibited titles or designations likely
to be confused with "CPA" or "PA". It is not a violation of
this clause for an individual on whom has been conferred, by
the Internal Revenue Service, the title enrolled agent to use
that title or the abbreviation "EA".
3.5 No person, sole proprietorship, partnership, or
corporation, or any other entity authorized under Delaware
law or a similar statute of another state shall use a title or
specialized designation that includes the word "accredited"
or "certified" or an abbreviation of such a title or designation
or otherwise claim a qualification unless that designation has
been conferred by a bona fide organization after evaluation
of the individual's credentials and competencies. This
includes such designations as "CFP", "CVA", "ABV", etc.
4.0 Applications
4.1 An application for examination, certificates, permits
to practice and renewals of permits to practice shall be
submitted on forms approved by the Board.
4.2 The Board may require additional information or
explanation when it has questions about an applicant's
qualifications or application materials. An application is not
complete or in proper form until the Board has received all
required and requested documents, materials, information
and fees.
5.0 Examination and Certificate Requirements
5.1 Each applicant for a certificate must provide the
Board with the following:
5.1.1 A statement under oath or other verification
satisfactory to the Board that the applicant is of good
character as that term is defined in 24 Del.C. §107(a)(1).
5.1.2 Evidence in a form satisfactory to the Board
that the applicant has successfully passed the Uniform
Certified Public Accountant Examination or its successor
examination.
5.1.3 Evidence in a form satisfactory to the Board
that the applicant has successfully completed the AICPA
self-study program "Professional Ethics for CPAs," or its
successor course, with a grade of not less than 90%.
5.1.4 Evidence in a form satisfactory to the Board
that the applicant holds a Master's Degree, a Baccalaureate
Degree or an Associate Degree, with a concentration in
accounting.
5.1.4.1 The applicant also must, upon request,
submit proof that the college or university granting the
degree was, at the time of the applicant's graduation,
accredited by the Middle States Association of Colleges and
Secondary Schools or by another comparable regional
accrediting association. A degree granted by a college or
university not so accredited at the time of applicant's
graduation will not be accepted. Graduates of non-United
States (U.S.) degree programs will be required to have their
credentials evaluated by a credential evaluation service
acceptable to the Board, to determine equivalency to U.S.
regional accreditation.
5.1.4.2 The concentration in accounting must
be completed at an accredited college or university and
consist of at least 21 semester hours of accounting, auditing,
and federal taxation, either as part of applicant's Associate,
Baccalaureate or Master's Degree program or subsequent to
the completion of the program. Each applicant must have
completed courses in accounting (including introductory,
intermediate, advanced, and cost accounting), auditing, and
federal taxation as components of the 21 hour concentration
in accounting. Courses must have been completed in all
three areas (i.e. accounting, auditing, and federal taxation).
Courses in other business subjects, such as banking, business
law, computer science, economics, finance, insurance,
management and marketing will not be accepted as
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
690 PROPOSED REGULATIONS
accounting courses for this purpose.
5.1.4.3 Except for applicants applying under
Section 5.2 of these Rules and Regulations, the educational
qualification required by this subsection contemplates
satisfactory completion of all required courses of study by
the final date for accepting applications for the examination
at which the applicant intends to sit.
5.2 Applicants requesting to sit for the the Uniform
Certified Public Accountant Examination or its successor
examination must demonstrate that they meet the good
character and education requirements of Sections 5.1.1 and
5.1.4 of these Rules and Regulations. An applicant who
expects to meet the education requirements of Section 5.1.4
within 120 days following the examination is eligible to take
the examination provided he or she:
5.2.1 meets the character requirements of Section
5.1.1; and
5.2.2 provides evidence satisfactory to the Board
that he or she is expected to complete the education
requirements within 120 days of the examination.
6.0 Requirements for Permit to Practice Certified Public
Accountancy
6.1 For purposes of Section 6.0 of these Rules and
Regulations, the term "certificate holder" shall be defined as
the holder of a certificate of certified public accountant
issued by any jurisdiction.
6.2 Each applicant for a permit to practice certified
public accountancy must provide the Board with the
following:
6.2.1 A statement under oath or other verification
satisfactory to the Board that the applicant has not engaged
in any acts that would be grounds for discipline by the
Board;
6.2.2 A certified statement from the licensing
authority, or comparable agency, that the applicant has no
pending disciplinary proceedings or complaints against him
or her in each jurisdiction where the applicant currently or
previously held a certificate or permit to practice;
6.2.3 Evidence in a form satisfactory to the Board
that the applicant holds a valid certificate; and
6.2.4 Evidence in a form satisfactory to the Board
that the applicant meets the experience requirements
provided in 24 Del.C. §108(c)(2) and Sections 6.3 , 6.4 and
6.5 of these Rules and Regulations, as applicable.
6.3 Applicants who hold a master's degree pursuant to
the terms of 24 Del.C. §107, shall meet the following
standards and requirements for qualifying experience
pursuant to 24 Del.C. §108(c)(2):
6.3.1 Qualifying experience for holders of a
master's degree shall include the provision of any type of
service or advice involving the use of accounting, attest,
compilation, internal audit, management advisory, financial
advisory, tax or consulting skills.
6.3.1.1 "Management advisory" experience
shall be limited to the fields of accounting, financial or
business matters.
6.3.1.2 "Consulting skills" shall be limited to
providing accounting, financial or business advice.
6.3.2 Qualifying experience shall be verified by a
certified public accountant who holds a valid permit to
practice, except as noted in Rule 6.6.1.
6.4 Applicants who hold a baccalaureate degree
pursuant to the terms of 24 Del.C. §107, shall meet the
following standards and requirements for qualifying
experience pursuant to 24 Del.C. §108(c)(2):
6.4.1 Qualifying experience for holders of a
baccalaureate degree shall include experience in
engagements resulting in the preparation and issuance of
financial statements, including appropriate footnote
disclosures, and prepared in accordance with generally
accepted accounting principles or other comprehensive bases
of accounting as defined in the standards established by the
American Institute of Certified Public Accountants.
6.4.1.1 "Standards" shall include generally
accepted auditing standards and/or Statements on Standards
for Accounting and Review Services (SSARS), appropriate
to the level of engagement.
6.4.2. Experience in internal audit may be used in
lieu of or in addition to the experience described in 6.4.1.
6.4.3 Qualifying experience shall be verified by a
certified public accountant who holds a valid permit to
practice, except as noted in Rule 6.6.1.
6.5 Applicants who hold an associate degree pursuant
to the terms of 24 Del.C. §107, shall meet the following
standards and requirements for qualifying experience
pursuant to 24 Del.C. §108(c)(2):
6.5.1 The applicant shall submit evidence of
extensive experience obtained in engagement, resulting in
the preparation and issuance of financial statements prepared
in accordance with generally accepted accounting principles
or other comprehensive bases of accounting as defined in the
standards established by the American Institute of Certified
Public Accountants.
6.5.1.1 "Standards" shall include generally
accepted auditing standards and/or Statements on Standards
for Accounting and Review Services (SSARS), appropriate
to the level of engagement.
6.5.2 Qualifying experience shall be verified by a
certified public accountant who holds a valid permit to
practice, except as noted in Rule 6.6.1.
6.6 Each applicant, regardless of educational level,
must submit an affidavit from each employer with whom
qualifying experience is claimed, setting forth the dates of
employment, describing the nature of applicant's duties by
area and affirming that the applicant discharged his or her
duties in a competent and professional manner. The affidavit
must be signed by the supervising Certified Public
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 691
Accountant(s) and include a statement indicating the
jurisdiction of his or her certificate and/or license. If the
applicant has worked for multiple CPAs, the signature of a
qualifying CPA is sufficient. However, the applicant must
be able to furnish information concerning permits of other
supervising CPAs as requested by the Board.
6.6.1 In cases in which any part of the required
experience has been obtained in the practice of public
accountancy, the affidavit may be from the responsible
supervisor at each employer with whom such experience is
claimed, or from the applicant himself or herself where the
qualifying experience is claimed as an owner or principal of
a firm engaged in the practice of public accountancy. Each
affidavit shall include the dates of employment, describe the
nature of the applicant's duties, state the approximate time
devoted to each, and affirm that the applicant discharged his
or her duties in a competent and professional manner. In the
case of a sole practitioner, the Board reserves the right to
require the sole practitioner to provide additional
documentation verifying his or her qualifying experience.
6.7 Only experience obtained after the conferring of the
degree under which the candidate applies shall be accepted.
A "year" of qualifying experience shall consist of fifty (50)
weeks of full-time employment. Two weeks of part-time
experience, as defined herein, shall be equivalent to one
week of full time employment. A period of full-time
employment of less than ten consecutive weeks or part-time
employment of less than sixteen consecutive weeks will not
be recognized. Full-time employment shall be no less than
thirty-five (35) hours per week; part-time employment shall
be no less than 320 hours worked during a sixteen week
period with a minimum of ten (10) hours per week.
See 3 DE Reg. 1668 (6/1/00)
7.0 Requirements for Permit to Practice Public
Accountancy
7.1 Each applicant for a permit to practice public
accountancy must provide the Board with the following:
7.1.1 A statement under oath or other verification
satisfactory to the Board that the applicant is of good
character as that term is defined in 24 Del.C. §107(a)(1).
7.1.2 Evidence in a form satisfactory to the Board
that the applicant holds, as a minimum, an associate degree
with a concentration in accounting. The provisions of
Sections 5.1.4.1 and 5.1.4.2 of these Rules and Regulations
also apply to applicants for permits to practice public
accountancy.
7.1.3 Evidence in a form satisfactory to the Board
that the applicant has successfully passed the accounting
examination given by the Accreditation Council for
Accountancy & Taxation, which is the examination
recognized by the National Society of Public Accountants,
or both the Accounting and Reporting and the Auditing
portions of the Uniform Certified Public Accounting
Examination.
7.1.4 Evidence in a form satisfactory to the Board
that the applicant has successfully completed the AICPA
self-study program "Professional Ethics for CPAs," or its
successor course, with a grade of not less than 90%.
7.1.5 A statement under oath or other verification
satisfactory to the Board that the applicant has not engaged
in any acts that would be grounds for discipline by the
Board.
7.1.6 A certified statement from the licensing
authority, or comparable agency, that the applicant has no
pending disciplinary proceedings or complaints against him
or her in each jurisdiction where the applicant currently or
previously held a permit to practice.
8.0 Reciprocity
8.1 An applicant seeking a permit to practice through
reciprocity shall demonstrate that he or she meets
requirements of 24 Del.C. §109(a) and must provide the
Board with the following:
8.1.1 A statement under oath or other verification
satisfactory to the Board that the applicant has not engaged
in any acts that would be grounds for discipline by the
Board; and
8.1.2 A certified statement from the licensing
authority, or comparable agency, that the applicant has no
pending disciplinary proceedings or complaints against him
or her in each jurisdiction where the applicant currently or
previously held a certificate or permit to practice.
8.2 The provisions of Section 6.3 of these Rules and
Regulations shall also apply to the experience required by 24
Del.C. §109 (a) (3) for the granting of a permit by
reciprocity.
8.3 An applicant seeking a certificate through
reciprocity shall demonstrate that he or she meets the
requirements of 24 Del.C. §114 and must provide the Board
with the following:
8.3.1 A certified statement from the licensing
authority, or comparable agency, of the jurisdiction through
which the applicant seeks reciprocity that the applicant holds
a valid certificate with no past or pending disciplinary
proceedings or complaints against him or her; and
8.3.2 Copies of the law and rules or regulations
establishing the requirements for certification in the
jurisdiction through which the applicant seeks reciprocity.
9.0 Firm Permits to Practice
9.1 Definitions
9.1.1 "Firm" means a sole proprietorship,
partnership, corporation or any other entity authorized under
Delaware law or a similar statute of another state.
9.1 For purposes of 24 Del.C. §111 and this Section of
the Rules and Regulations,
9.1.2 The term "principal of a firm" is defined as
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692 PROPOSED REGULATIONS
any individual who has an equity interest in the firm.
9.2 Each firm which intends to be or is engaged in the
practice of certified public accountancy or the practice of
public accountancy in this State shall be required to obtain
and maintain a valid permit to practice. Individuals not
currently practicing certified public accountancy or public
accountancy shall not be required to obtain a firm permit to
practice until such time as that person begins to perform
certified public accounting or public accounting services in
this State or for clients located in this State.
9.3 Each applicant for issuance or renewal of a firm
permit to practice certified public accountancy shall be
required to show that: 1) each principal who performs
services in this State, who performs services for a client(s)
located in this State, or who is responsible for the accounting
work in this State, holds a valid individual permit to practice
certified public accountancy; and 2) each employee holding
a certificate who performs services in this State or who
performs services for a client(s) located in this State, except
for employees who have not as yet accumulated sufficient
experience to qualify for a permit under 24 Del. C. § 108,
holds a valid individual permit to practice certified public
accountancy. For purposes of 24 Del. C. § 111 and this
Section of the Rules and Regulations, employees of a firm
with its principal offices outside of Delaware that work in
excess of eighty (80) hours in this State or who work for a
client(s) in this State must have an individual permit to
practice.
9.4 Each applicant for issuance or renewal of a firm
permit to practice public accountancy shall be required to
show that: 1) each principal who performs services in this
State, who performs services for a client(s) located in this
State, or who is responsible for the accounting work in this
State, holds a valid individual permit to practice public
accountancy; and 2) each employee holding a certificate who
performs services in this State or who performs services for a
client(s) located in this State, except for employees who
have not yet met the requirements to qualify for a permit
under 24 Del. C. § 110, holds a valid individual permit to
practice public accountancy. For purposes of 24 Del. C. §
111 and this Section of the Rules and Regulations,
employees of a firm with its principal offices outside of
Delaware that work in excess of eighty (80) hours in this
State or who work for a client(s) in this State must have an
individual permit to practice.
9.5 An applicant for issuance or renewal of a firm
permit to practice certified public accountancy or public
accountancy shall be required to register each office of the
firm within this State with the Board, and to show that each
such office is under the charge of a person holding a valid
permit to practice.
9.6 Each holder of or applicant for a firm permit to
practice certified public accountancy or public accountancy
shall notify the Board in writing within thirty (30) days after
its occurrence of: 1) any change in the identities of principals
who work regularly within this State; 2) any change in the
number or location of offices within this State; 3) any change
in the identity of the persons supervising such offices; and 4)
any issuance, denial, revocation or suspension of a permit
issued by any other State to the firm or to any principal or
employee regulated by the Board.
9.27 Certified public accounting and public accounting
firms practicing as corporations organized pursuant to
Delaware law must be organized as professional
corporations ("P.C.") or professional associations ("P.A.") in
compliance with The Professional Service Corporation Act,
8 Del.C. § 671 601, et. seq.
9.8 All firms and accountants practicing in firms shall
be bound by professional responsibility standards no less
stringent than those stated in 8 Del. C. § 608. Each applicant
for issuance or renewal of a firm permit to practice certified
public accountancy or public accountancy shall be required
to cause a duly authorized individual to verify under oath
that upon issuance by the Board of a firm permit to practice,
the firm will be bound by professional standards no less
stringent than those stated in 8 Del. C. § 608.
9.3 Individuals not currently practicing certified public
accountancy or public accountancy shall not be required to
obtain a firm permit to practice until such a time as that
person begins to perform certified public accounting or
public accounting services.
9.49 Certified public accounting and public accounting
firms may not practice using firms names that are misleading
as to organization, scope, or quality of services provided.
10.0 Continuing Education
10.1 Hours Required: Each permit holder must have
completed at least 80 hours of acceptable continuing
professional education each biennial reporting period of each
year ending with an odd number. The eighty hours of
acceptable continuing professional education submitted must
have been completed in the immediately preceding two-year
period.
10.2 Reporting Requirements: The Board will mail
permit renewal forms which provide for continuing
professional education reporting to all permit holders. Each
candidate for renewal shall submit a summary of their
continuing education hours, along with any supporting
documentation requested by the Board, to the Board at least
60 days prior to the permit renewal date set by the Division
of Professional Regulation.
10.3 Proration: Prorated continuing professional
education regulations consisting of less than eighty hours
shall only apply to the first permit renewal, thereafter all
permit holders are required to complete at least eighty hours
of acceptable continuing professional education biennially.
10.3.1 If the initial permit was issued less than one
year prior to the renewal date, there shall be no continuing
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PROPOSED REGULATIONS 693
education requirement for that period.
10.3.2 If the initial permit was issued at least one
year, but less than two years prior to the renewal date, the
continuing education requirement shall be 40 hours for that
period.
10.4 Exceptions: The Board has the authority to make
exceptions to the continuing professional education
requirements for reasons including, but not limited to,
health, military service, foreign residency, and retirement.
10.5 Qualified Programs.
10.5.1 General Determination: The overriding
consideration in determining if a specific program qualifies
as a continuing professional education program is whether it
is a formal program of learning which contributes directly to
the professional competence of the permit holder.
10.5.2 Formal Programs: Formal programs
requiring class attendance will qualify only if:
10.5.2.1 An outline is prepared in advance and
the plan sponsor agrees to preserve a copy for five years or
the outline is provided to the participant or both.
10.5.2.2 The program is at least an hour (a
fifty-minute period) in length.
10.5.2.3 The program is conducted by a
qualified instructor or discussion leader.
10.5.2.4 A record of registration or attendance
is maintained for five years or the participant is furnished
with a statement of attendance, or both.
10.5.3 Programs deemed approved: Provided the
criteria in Sections 10.5.1 and 10.5.2 of these Rules and
Regulations are met, the following are deemed to qualify for
continuing professional education:
10.5.3.1 Programs approved by National
Association of State Boards of Accountancy (NASBA);
10.5.3.2 Professional development programs
of national, state and local accounting organizations;
10.5.3.3 Technical sessions at meeting of
national, state and local accounting organizations and their
chapters;
10.5.3.4 University or college courses:
10.5.3.4.1 Credit courses: each semester
hour credit shall equal 5 hours of continuing professional
education.
10.5.3.4.2 Non-credit courses: each
classroom hour shall equal one hour of continuing
professional education;
10.5.3.5 Programs of other organizations
(accounting, industrial, professional, etc.);
10.5.3.6 Other organized educational
programs on technical and other practice subjects including
"in-house" training programs of public accounting firms.
10.5.4 Correspondence and Individual Study
Programs: Formal correspondence or other individual study
programs which provide evidence of satisfactory completion
will qualify, with the amount of credit to be determined by
the Board. The Board will not approve any program of
learning that does not offer sufficient evidence that the work
has actually been accomplished. The maximum credit
toward meeting the continuing professional education
requirement with formal correspondence or other individual
study programs shall not exceed 30% of the total
requirement.
10.5.5 Instructors and Discussion Leaders: Credit
for one hour of continuing professional education will be
awarded for each hour completed as an instructor or
discussion leader plus two additional hours of credit for each
classroom hour for research and preparation to the extent
that the activity contributes to the professional competence
of the registrant as determined by the Board. No credit will
be awarded for repeated offerings of the same subject matter.
The maximum credit toward meeting the continuing
professional education requirement as an instructor or
discussion leader shall not exceed 50% of the total
requirement.
10.5.6 Published Articles and Books: One hour
credit will be granted for each 50 minute period of
preparation time on a self-declaration basis to a maximum of
20 hours in each biennial reporting period. A copy of the
published article must be submitted to the Board upon
request.
10.5.7 Committee, Dinner, Luncheon and Firm
Meetings. One hour credit will be granted for each 50
minutes of participation. Credit will only be granted for
those meetings which are structured as a continuing
education program.
10.6 Control and Reporting
10.6.1 Each applicant for permit renewal shall
provide a signed statement under penalty of perjury,
disclosing the following information pertaining to the
educational programs submitted in satisfaction of the
continuing education requirements:
10.6.1.1 school, firm or organization
conducting course;
10.6.1.2 location of course;
10.6.1.3 title of course or description of
content;
10.6.1.4 dates attended; and
10.6.1.5 hours claimed.
10.6.2 The Board may verify information
submitted by applicants by requesting submission of the
documentation to be retained by the applicant and/or sponsor
and may revoke permits for which deficiencies exist. If a
Continuing Professional Education Statement submitted by
an applicant for permit renewal is not approved, or if upon
verification, revocation is being considered, the applicant
will be notified and may be granted a period of time in which
to correct the deficiencies. Any license revocation or denial
of application for license renewal will proceed in accordance
with the provisions of the Administrative Procedures Act, 29
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694 PROPOSED REGULATIONS
Del.C. §10101, et. seq.
10.7 Evidence of Completion- Retention
10.7.1 Primary responsibility for documenting the
requirements rest with the applicant. Evidence in support of
the requirements should be retained for a period of five years
after completion of the educational activity.
10.7.2 Sufficiency of evidence includes retention
of course outlines and such signed statements of attendance
as may be furnished by the sponsor.
10.7.3 For courses taken for scholastic credit in
accredited universities or colleges, evidence of satisfactory
completion of the course will satisfy the course outline and
attendance record.
10.7.4 For non-credit courses at accredited
universities or colleges, a statement of the hours of
attendance signed by the instructor or an authorized official
of the sponsoring institution, must be obtained and retained
by the applicant. Course outlines may be retained by the
sponsoring institution for a period of five years in lieu of
retention of the outlines by the applicant.
10.8 Composition of Continuing Professional
Education: The biennial continuing professional education
requirement shall include a minimum of 20 percent in
accounting and/or auditing and a minimum of 20 percent in
taxation and the remaining hours may be satisfied by general
subject matters so long as they contribute to the professional
competence of the individual practitioner. Such general
subject matters include, but are not limited to, the following
areas:
Accounting
Administrative Practice
Auditing
Business Law
Communication Arts
Computer Science
Economics
Finance, Production and Marketing
Management Services Mathematics, Statistics,
Probability, and Quantitative
Applications in Business
Personnel Relations, Business Management and
Organization
Social Environment of Business
Specialized Areas of Industry
Taxation
11.0 Additional Provisions Concerning Examinations
11.1 All examinations required under 24 Del.C. Ch. 1
and these Rules and Regulations shall be graded by the
applicable grading service of the organization offering the
examination.
11.2 Applications to sit for the May or November
Uniform Certified Public Accountant examination ("CPA
examination") shall be submitted in completed form to the
Board's designated agent by the dates determined by the
Board's designated agent.
11.3 The CPA examination shall be in the subjects of
accounting and reporting, financial accounting and
reporting, auditing, and business law, and in such other or
additional subjects that may be covered in successor
examinations as may be required to qualify for a certificate.
11.4 Rules for Examination.
11.4.1 Examinations shall be in writing.
11.4.2 Applicants are permitted to use pencil and
eraser. Calculators provided at the exam site are the only
mechanical devices allowed.
11.4.3 At any examination, an applicant must
prepare and submit to the Board papers on all required
subjects for which he or she does not have current credit for
certification or permit, whichever is applicable.
11.4.4 An applicant who commits an act of
dishonesty or otherwise engages in any other form of
misconduct, will be expelled from the examination room and
may be denied the right to sit for future examinations.
11.4.5 Applicants will be informed in writing of
the results achieved in each examination.
11.5 Passing Grade on the Uniform CPA Examination
11.5.1 An applicant for a certificate who receives a
grade of 75 or higher in all four subjects at one examination
shall be deemed to have passed the Uniform Certified Public
Accountant Examination.
11.5.2 An applicant who is taking only the
Accounting and Reporting (ARE) and Financial Accounting
and Reporting (FARE) sections of the CPA examination in
order to apply for a permit to practice public accounting,
who receives a grade of 75 or higher in both required
subjects, shall be deemed to have passed the applicable parts
of the CPA examination.
11.6 Conditional Status for Subjects passed in this State
11.6.1 An applicant who sits for all required parts
of either examination and who receives a grade of 75 or
higher in one or more, but less than all subjects passed may
attain conditional status under the following circumstances:
11.6.1.1 To attain conditional status, the
applicant must obtain a grade of 75 or higher in two subjects
and obtain a grade of at least 50 in all subjects not passed.
This minimum grade requirement is waived if three subjects
are passed at a single examination.
11.6.1.2 To add to conditional status, the
applicant must obtain a grade of at least 50 in all subjects not
passed. Although a grade of less than 50 prevents the
applicant from adding to his or her conditional status, it
alone does not remove or cancel conditional status
previously attained.
11.6.1.3 To pass the examination via
conditional status, an applicant must pass the remaining
subjects within 5 consecutive examinations following the
attainment of conditional status. The conditional period may
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PROPOSED REGULATIONS 695
be extended at the discretion of the Board, if an applicant is
unable to sit for a given examination because of health,
military service or other circumstances generally beyond the
applicant's control.
11.6.1.4 An applicant who fails to pass all
subjects required during the 5 consecutive examinations
following the attainment of conditional status, shall forfeit
all credits and shall, upon application as a new applicant, be
examined again in all subjects.
11.7 Transfer of Credit for Subjects Passed in Another
Jurisdiction
11.7.1 An applicant who has passed one or more
subjects of either examination in another jurisdiction will be
permitted to transfer to this jurisdiction credit for the parts so
passed under the following conditions, and provided the
requirements of Section 11.6 of these Rules and Regulations
have been met:
11.7.1.1 At the time he or she sat for the
examination in the other jurisdiction, he or she met all the
requirements of the statute and regulations to sit for the
examination in Delaware; and
11.7.1.2 At the time he or she makes
application to sit for the examination in Delaware, he or she
meets all the requirements of the Delaware statute and
regulations; and
11.7.1.3 Credit for any subject of the
examination which is transferred from some other
jurisdiction to Delaware will be treated as if that credit had
been earned in Delaware on the same date such credit was
earned in the other jurisdiction, and all time requirements of
Delaware conditional status will be applied to it.
11.7.2 The Board will require satisfactory evidence
from the transferring jurisdiction as to the validity of the
credit.
11.7.3 If an applicant has passed all subjects of
either examination in one or more other jurisdictions, but
does not possess a certificate or permit from one of the
jurisdictions in which a subject was passed, transfer of credit
will only be permitted if a satisfactory explanation of such
lack of a certificate or permit is furnished to the Board in
writing. The Board may require a written explanation of
why no certificate or permit was issued from the jurisdiction
in which the final subject was successfully completed.
12.0 Excepted Practices; Working Papers
12.1. Excepted Practices: The offering or rendering of
data processing services by mechanical or electronic means
is not prohibited by 24 Del.C. §115. However, the exception
applies only to the processing of accounting data as
furnished by the client and does not include the classification
or verification of such accounting data or the analysis of the
resulting financial statement by other than mechanical or
electronic equipment not prohibited by this Section. The
rendering of advice or assistance in regard to accounting
controls, systems and procedures is exempt only as it
pertains to the specific equipment or data processing service
being offered. The exemption does not cover study and/or
advice regarding accounting controls, systems and
procedures in general. Persons, partnerships or corporations
offering or performing data processing services or services
connected with mechanical or electronic equipment are
subject to all provisions of 24 Del.C. Chapter 1.
12.2 Working Papers: For purposes of 24 Del.C. §120,
the term "working papers" does not properly include client
records. In some instances, a permit holder's working
papers may include data which should be part of the client's
books and records, rendering the client's books and records
incomplete. In such instances, that portion of the working
papers containing such data constitutes part of the client's
records and should be made available to the client upon
request.
13.0 Hearings
13.1 Disciplinary proceedings against any certificate or
permit holder may be initiated by an aggrieved person by
submitting a complaint in writing to the Director of the
Division of Professional Regulation as specified in 29 Del.C.
§8807(h)(1)-(3).
13.1.1 A copy of the written complaint shall be
forwarded to the administrative assistant for the Board. At
the next regularly scheduled Board meeting, a contact person
for the Board shall be appointed and a copy of the written
complaint given to that person.
13.1.2 The contact person appointed by the Board
shall maintain strict confidentiality with respect to the
contents of the complaint and shall not discuss the matter
with other Board members or with the public. The contact
person shall maintain contact with the investigator or deputy
attorney general assigned to the case regarding the progress
of the investigation.
13.1.3 In the instance when the case is being closed
by the Division, the contact person shall report the facts and
conclusions to the Board without revealing the identities of
the parties involved. No vote of the Board is necessary to
close the case.
13.1.4 If a hearing has been requested by the
Deputy Attorney General, a copy of these Rules and
Regulations shall be provided to the respondent upon
request. The notice of hearing shall fully comply with 29
Del.C. §§10122 and 10131 pertaining to the requirements of
the notice of proceedings. All notices shall be sent to the
respondent's address as reflected in the Board's records.
13.1.5 At any disciplinary hearing, the respondent
shall have the right to appear in person or be represented by
counsel, or both. A partnership or corporation may be
represented at such hearing by a duly authorized
representative of such partnership or corporation who shall
be a partner or shareholder thereof and a permit holder of the
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696 PROPOSED REGULATIONS
State in good standing, or by counsel, or both. The
Respondent shall have the right to produce evidence and
witnesses on his or her behalf and to cross examine
witnesses. The Respondent shall be entitled to the issuance
of subpoenas to compel the attendance of witnesses and the
production of documents on his or her behalf.
13.1.6 No less than 10 days prior to the date set for
a disciplinary hearing, the Department of Justice and the
accused shall submit to the Board and to each other, a list of
the witnesses they intend to call at the hearing. Witnesses
not listed shall be permitted to testify only upon a showing of
reasonable cause for such omission.
13.1.7 If the respondent fails to appear at a
disciplinary hearing after receiving the notice required by 29
Del.C. §§10122 and 10131, the Board may proceed to hear
and determine the validity of the charges against the
respondent.
13.2. General procedure
13.2.1 The Board may administer oaths, take
testimony, hear proofs and receive exhibits into evidence at
any hearing. All testimony at any hearing shall be under
oath.
13.2.2 Strict rules of evidence shall not apply. All
evidence having probative value commonly accepted by
reasonably prudent people in the conduct of their affairs
shall be admitted.
13.2.3 An attorney representing a party in a hearing
or matter before the Board shall notify the Board of the
representation in writing as soon as practical.
13.2.4 Requests for postponements of any matter
scheduled before the Board shall be submitted to the Board's
office in writing at least three (3) days before the date
scheduled for the hearing. Absent a showing of exceptional
hardship, there shall be a maximum of one postponement
allowed to each party to any hearing.
14.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
14.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
14.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
14.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
14.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
14.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
14.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
14.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
14.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 697
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
14.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
14.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
14.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
14.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
14.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
issue.
14.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
14.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
14.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
14.11 Any person who reports pursuant to this section
in good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
14.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
24 DE Admin. Code 2900
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1), (24 Del.C. §2905(a)(1))
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 2905(a)(1), the Delaware
Real Estate Commission proposes to revise its Rules and
Regulations. The proposed amendments revise several
sections of the rules and regulations. Substantive changes
are proposed to the rules and regulations regarding
advertising and the maintenance of offices that reflect further
revisions resulting from a public hearing regarding proposed
revisions held on August 9, 2001 and originally published in
the June 1, 2001 Register of Regulations. Other proposed
revisions include deleting the class size limit in real estate
courses, deleting Rule 4.1.3 relating to qualifications for
licensure of non-residents, and increasing the period of
required retention of documents demonstrating compliance
with the continuing education requirement for license
renewal.
A public hearing will be held on the proposed Rules and
Regulations on Thursday, November 8, 2001 at 9:00 a.m., in
the Second Floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Commission will receive and consider input in
writing from any person on the proposed Rules and
Regulations. Any written comments should be submitted to
the Commission in care of Joan O'Neill at the above address.
The final date to submit written comments shall be at the
above scheduled public hearing. Anyone wishing to obtain a
copy of the proposed Rules and Regulations or to make
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
698 PROPOSED REGULATIONS
comments at the public hearing should notify Joan O'Neill at
the above address by calling (302) 744-4519.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
Real Estate Commission
Statutory Authority: 24 Del.C. 2905
1.0 Introduction
2.0 Requirements for Obtaining a Salesperson's
License
3.0 Requirements for Obtaining a Real Estate Broker's
License
4.0 Reciprocal Licenses
5.0 Escrow Accounts
6.0 Transfer of Broker or Salesperson
7.0 Business Transactions and Practices
8.0 Renewal of Licenses
9.0 Availability of Rules and Regulations
10.0 Disclosure
11.0 Hearings
12.0 Inducements
13.0 Necessity of License
14.0 Out of State Land Sales Applications
15.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
1.0 Introduction
1.1 Authority
1.1.1 Pursuant to 24 Del.C. §2905, the Delaware
Real Estate Commission is authorized and empowered and
hereby adopts the rules and regulations contained herein.
1.1.2 The Commission reserves the right to make
any amendments, modifications or additions hereto, that, in
its discretion are necessary or desirable.
1.1.3 The Commission reserves the right to grant
exceptions to the requirements of the rules and regulations
contained herein upon a showing of good cause by the party
requesting such exception, provided such exception is not
inconsistent with the requirements of 24 Del.C. Ch. 29.
1.2 Applicability
1.2.1 The rules and regulations contained herein,
and any amendments, modifications or additions hereto are
applicable to all persons presently licensed as real estate
brokers or real estate salespersons, and to all persons who
apply for such licenses.
1.3 Responsibility
1.3.1 It is the responsibility of the employing
broker to insure that the rules and regulations of the
Commission are complied with by licensees. Every broker is
responsible for making certain that all of his or her sales
agents are currently licensed, and that their agents make
timely application for license renewal. A broker's failure to
meet that responsibility may result in a civil fine against the
broker of up to $ 1,000.00 per agent.
1.3.2 Each office location shall be under the
direction of a broker of record, who shall provide complete
and adequate supervision of that office. A broker serving as
broker of record for more than one office location within the
State shall apply for and obtain an additional license in his
name at each branch office. The application for such
additional license shall state the location of the branch office
and the name of a real estate broker or salesperson licensed
in this State who shall be in charge of managing the branch
office on a full time basis.
A broker shall not serve as broker of record unless
said broker has been actively engaged in the practice of real
estate, either as a licensed salesperson or a licensed broker,
for the preceding three (3) years.
Where an unforeseen event, such as a resignation or
termination from employment, death, emergency, illness,
call to military service or training, or a sanction imposed by
the Commission causes or necessitates the removal of the
sole licensed broker in an office, arrangements may be made
with the Commission for another broker to serve as broker of
record for said office on a temporary basis.
The employment of a sales manager, administrative
manager, trainer, or other similar administrator shall not
relieve the broker of record of the responsibilities contained
and defined herein.
1.1.3 The failure of any licensee to comply with the
Real Estate Licensing Act and the rules and regulations of
the Commission may result in disciplinary action in the form
of a reprimand, civil penalty, suspension or revocation of the
broker's and/or salesperson's license.
2.0 Requirements for Obtaining a Salesperson's License
The Commission shall consider any applicant who has
successfully completed the following:
2.1 Course
2.1.1 The Commission shall consider any applicant
who has successfully completed an accredited course in Real
Estate Practice.
2.1.2 Effective May 1, 1978, all real estate courses
shall be limited to thirty-five (35) students in each class. This
applies to both day and night courses. All other regulations
regarding real estate courses are issued under the
"Guidelines for Fulfilling the Delaware Real Estate
Education Requirements". The Commission reserves the
right to grant exception to this limitation.
2.2 Examination
2.2.1 Within twelve (12) months of completing an
accredited course, the applicant must make application to the
Commission by submitting a score report showing
successful completion of the examination required by the
Commission. The applicant must forward all necessary
documentation to the Commission to be considered for
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PROPOSED REGULATIONS 699
licensure.
2.2.2 An applicant may sit for the examination a
maximum of three (3) times after successful completion of
an approved course in real estate practice. If an applicant
fails to pass the examination after three (3) attempts at such,
the applicant shall be required to retake and successfully
complete an approved course in real estate practice before
being permitted to sit for the examination again.
2.3 Ability to conduct business
2.3.1 The Commission reserves the right to reject
deny licensure to an applicant based on upon a determination
that the applicant is not competent to transact business of a
real estate salesperson his or her inability to transact real
estate business in a competent manner or if it determines that
the applicant lacks a reputation for honesty, truthfulness and
fair dealings.
2.3.2 The minimum age at which a salesperson's
license can be issued is eighteen (18).
2.4 Fees
The Commission shall not consider an application
for a salesperson's license unless such application is
submitted with evidence of payment of the following fees:
2.4.1 Salesperson's application fee established by
the Division of Professional Regulation pursuant to 29
Del.C. §8807(d).
3.0 Requirements for Obtaining a Real Estate Broker's
License
The Commission shall consider the application of any
person for a broker's license upon completion of the
following:
3.1 Course
3.1.1 The Commission shall consider the
application of any person for a license after said applicant
has successfully completed an accredited course.
3.1.2 Effective May 1, 1978, all courses shall be
limited to thirty-five (35) students in each class.
3.2 Experience
3.2.1 A salesperson must hold an active license in
the real estate profession for five (5) continuous years
immediately preceding application for a broker's license. If
the licensee fails to renew his or her license by the expiration
date but then makes an application for reinstatement within
sixty (60) days of the expiration of the license and the
Commission otherwise approves the application for
reinstatement, the five-years' continuity will not be broken.
See 4 DE Reg. 846 (11/01/00)
3.2.2 The applicant shall submit to the Commission
a list of at least thirty (30) sales or other qualified
transactions, showing dates, location, purchaser's name and
seller's name. These sales must have been made by the
applicant within the previous five (5) years through the
general brokerage business and not as a representative of a
builder, developer, and/or subdivider. Transactions
involving time-shares, leases, or property management are
not qualified transactions for purposes of obtaining a real
estate broker's license. The Commission reserves the right to
waive any of the above requirements, upon evidence that the
applicant possesses sufficient experience in the real estate
business or demonstrates collateral experience to the
Commission.
3.2.3 The list of thirty (30) sales or other qualified
transactions and/or the variety of the licensee's experience
must be approved by the Commission.
3.3 Examination
3.3.1 Within twelve (12) months of completing an
accredited course, the applicant must submit a score report
showing successful completion of the examination required
by the Commission and submit all necessary documentation
including the credit report required by Paragraph E of this
rule Rule 3.5.1 to the Commission to be considered for
licensure.
3.4 Ability to conduct business
3.4.1 The Commission reserves the right to reject
deny licensure to an applicant based upon a determination
tha the applicant is not competent to transact the business of
a real estate broker, including a determination that on his or
her ability to transact real estate business in a competent
manner or if it determines that the applicant lacks
experience. , a reputation for honesty, truthfulness and fair
dealings.
3.4.2 The minimum age at which a person can be
issued a broker's license is twenty-three (23).
3.5 Credit Report
3.5.1 Each applicant shall submit a credit report
from an approved credit reporting agency, which report shall
be made directly to the Commission.
3.6 Fees
The Commission shall not consider an application
for a broker's license unless such application is submitted
with evidence of payment of the following fees:
3.6.1 Broker's application fee established by the
Division of Professional Regulation pursuant to 29 Del.C.
§8807(d).
4.0 Reciprocal Licenses
4.1 Requirements
4.1.1 A non-resident of this State who is duly
licensed as a broker in another state and who is actually
engaged in the business of real estate in the other state may
be issued a nonresident broker's license under 24 Del.C.
§2909(a).
4.1.2 A non- resident salesperson who is duly
licensed as a salesperson in another state and who is actually
engaged in the business of real estate in the other state may
be issued a non-resident salesperson's license provided such
non-resident salesperson is employed by a broker holding a
broker's license issued by the Commission.
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700 PROPOSED REGULATIONS
4.1.3 The Commission, at its discretion, may issue
a non-resident broker's or salesperson's license without the
course and examination required by Rules 2.2 or 3.3
provided the non-resident broker or salesperson passed an
equivalent course and examination in his/her resident state
and provided that such other state extends the same privilege
to Delaware real estate licensees.
5.0 Escrow Accounts
5.1 All moneys received by a broker as agent for his
principal in a real estate transaction shall be deposited within
three (3) banking days after a contract of sale or lease has
been signed by both parties, in a separate escrow account so
designated, and remain there until settlement or termination
of the transaction at which time the broker shall make a full
accounting thereof to his or her principal.
5.2 All moneys received by a salesperson in connection
with a real estate transaction shall be immediately delivered
to the appropriate broker. A licensee shall not accept, as a
good faith or earnest money deposit in connection with a real
estate transaction, a photocopy, facsimile, or other copy of a
personal check or draft, nor shall a licensee accept as a good
faith or earnest money deposit a check or draft that is
postdated.
See 4 DE Reg. 457 (9/1/00)
5.3 A broker shall not co-mingle money or any other
property entrusted to him with his money or property, except
that a broker may maintain up to $100.00 of his/her own
funds in the escrow account to cover bank service charges
and to maintain the minimum balance necessary to avoid the
account being closed.
5.4 A broker shall maintain in his office a complete
record of all moneys received or escrowed on real estate
transactions, including the sources of the money, the date of
receipt, depository, and date of deposit; and when a
transaction has been completed, the final disposition of the
moneys. The records shall clearly show the amount of the
broker's personal funds in escrow at all times.
5.5 An escrow account must be opened by the broker in
a bank with an office located in Delaware in order to receive,
maintain or renew a valid license.
5.6 The Commission may summarily suspend the
license of any broker who fails to comply with 5.4, who fails
to promptly account for any funds held in escrow, or who
fails to produce all records, books, and accounts of such
funds upon demand. The suspension shall continue until
such time as the licensee appears for a hearing and furnishes
evidence of compliance with the Rules and Regulations of
the Commission.
5.7 Interest accruing on money held in escrow belongs
to the owner of the funds unless otherwise stated in the
contract of sale or lease.
6.0 Transfer of Broker or Salesperson
6.1 All licensees who transfer to another office, or
brokers who open their own offices, but who were associated
previously with another broker or company, must present a
completed transfer form to the Commission signed by the
individual broker or company with whom they were
formerly associated, before the broker's or salesperson's
license will be transferred. In addition all brokers who are
non-resident licensees must also provide a current certificate
of licensure.
6.2 The Commission reserves the right to waive this
requirement upon a determination of good cause.
6.3 All brokers of record who move the physical
location of their office shall notify the Commission in
writing at least 30 days, or as soon as practical, prior to such
move by filing a new office application.
7.0 Business Transactions and Practices
7.1 Written Listing Agreements
7.1.1 Listing Agreements for the rental, sale, lease
or exchange of real property, whether exclusive, coexclusive
or open shall be in writing and shall be signed by
the seller or owner.
7.2 Copy of agreements
7.2.1 Every party to a listing agreement, agreement
of purchase and sale, or lease shall be furnished with an
executed copy of such contract or contracts. It shall be the
responsibility of the licensee to deliver an executed copy of
the agreements to the principals within a reasonable length
of time after execution.
7.3 Advertising
7.3.1 Any licensee who advertises, on signs,
newspapers or any other media, property personally owned
and/or property in which a licensee has any ownership
interest, and said property is not listed with a broker, must
include in the advertisement that he/she is the owner of said
property and that he/she is a real estate licensee. Any
licensee who advertises in newspapers, the Internet, or any
other media, real property personally owned or real property
in which the licensee has any ownership interest must
include in the advertisement that he or she is the owner of
said property, and that he or she is a real estate licensee.
This subsection does not apply to signs.
7.3.2 Any licensee who advertises in newspapers
or any other media, property personally owned and/or
property in which the licensee has any ownership interest,
and said property is listed with a broker, must include in the
advertisement the name of the -broker under whom he/she is
licensed, that he/she is the owner of said property, and that
he/she is a real estate licensee. This subsection does not
apply to signs. Any licensee who advertises on signs,
newspapers, the Internet, or any other media an offer to
purchase real property must include in the advertisement that
he or she is a real estate licensee.
7.3.3 Any licensee who advertises, by signs, or in
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PROPOSED REGULATIONS 701
newspapers, the Internet, or any other media, any real
property for sale, lease, exchange, or transfer that is listed
with a broker must include in legible print in the
advertisement the complete business name that has been
registered with the Commission, and office phone number of
the broker registered by the broker of record with the
Commission for that office location. of record under whom
the licensee is licensed. Nothing contained herein shall
preclude the listing of additional phone numbers. All such
advertising shall also contain language or abbreviations that
clearly identify each phone number listed; examples include,
but are not limited to: "Office"; "Home"; "Res."; "Car"; and
"Cell".
7.3.4 All advertisements for personal promotion of
licensees must include the complete business name that has
been registered with the Commission, and office phone
number of the company registered by the broker of record
with the Commission for that office location. under whom
the licensee is licensed.
7.4 Separate Office
7.4.1 Each licensed broker who is a resident of this
State shall maintain an office in this State approved by the
Commission in which to transact real estate business.
Applicants for broker's licenses and those presently licensed
must maintain separate offices in which to conduct the real
estate business. No licensee shall transact real estate
business at any office location unless an office application
has been filed with and approved by the Commission.
Nothing contained herein, however, shall preclude said
persons from sharing facilities approved by the Commission
with such other businesses as insurance, banking, or others
that the Commission shall deem compatible.
7.4.2 If a broker maintains more than one place
of business within the State, the broker shall apply for and
obtain approval by the Commission for each office location.
7.4.2 7.4.3 Any Where the office is located in a private
home must be approved by the Commission and have , said
office must have a separate entrance and must be approved
by the Commission. The broker must place a permanent sign
indicating the name under which the office is licensed
registered with the Commission in a conspicuous location.
7.5 Compensation
7.5.1 Licensees shall not accept compensation
from more than one party to a transaction, even if permitted
by law, without timely disclosure to all parties to the
transaction.
7.5.2 When acting as agent, a licensee shall not
accept any commission, rebate, or profit on expenditures
made for his principal-owner without the principal's
knowledge and informed consent.
7.6 Duty to Cooperate
7.6.1 Brokers and salespersons shall cooperate
with all other brokers and salespersons involved in a
transaction except when cooperation is not in the client's best
interest. The obligation to cooperate does not include the
obligation to share commissions or to otherwise compensate
another broker or salesperson.
8.0 Renewal of Licenses
8.1 Renewal Required by Expiration Date on License
8.1.1 In order to qualify for license renewal as a
real estate salesperson or broker in Delaware, a licensee shall
have completed 15 hours of continuing education within the
two year period immediately preceding the renewal. The
broker of record for the licensee seeking renewal shall
certify to the Commission, on a form supplied by the
Commission, that the licensee has complied with the
necessary continuing education requirements. This
certification form shall be submitted by the licensee together
with his/her renewal application and renewal fee. The broker
of record shall retain for a period of one (1) year two (2)
years, the documents supporting his/her certification that the
licensee has complied with the continuing education
requirement. A licensee who has not paid the fees and/or met
the requirements for the renewal of his or her license by the
expiration date shown thereon, shall not list, sell, lease or
negotiate for others after such date.
8.2 Delinquency Fee
8.2.1 If a licensee fails to renew his or her license
prior to the expiration date shown thereon, he or she shall be
required to pay the full license fee and an additional
delinquency fee equal to one half of the license fee. If a
licensee fails to renew his or her license within 60 days of
the expiration date shown thereon, the license shall be
cancelled.
8.2.2 Failure to receive notice of renewal by a
licensee shall not constitute a reason for reinstatement.
8.3 Reinstatement of License
8.3.1 A cancelled license shall be reinstated only
after the licensee pays the necessary fees, including the
delinquency fee, and passes any examinations required by
the Commission. If the licensee fails to apply for renewal
within 6 months of the cancellation date, the licensee shall
be required to take the state portion of the examination. If the
licensee fails to apply for renewal before the next renewal
period commences (two years), the licensee shall be required
to pass both the state and the national portions of the
examination.
8.3.2 No person whose license has been revoked
will be considered for the issuance of a new license for a
period of at least two (2) years from the date of the
revocation of the license. Such person shall then fulfill the
following requirements: he or she shall attend and pass the
real estate course for salespersons; take and pass the
Commission's examination for salespersons; and any other
criteria established by the Commission. Nothing above shall
be construed to allow anyone to take the course for the
purpose of licensing until after the waiting period of two (2)
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702 PROPOSED REGULATIONS
years. Nothing contained herein shall require the
Commission to issue a new license upon completion of the
above mentioned requirements, as the Commission retains
the right to deny any such application.
9.0 Availability of Rules and Regulations
9.1 Fee Charge for Primers
9.1.1 Since licensees are required to conform to the
Commission's Rules and Regulations and the Laws of the
State of Delaware, these Rules and Regulations shall be
made available to licensees without charge. However, in
order to help defray the cost of printing, students in the real
estate courses and other interested parties may be required to
pay such fee as stipulated by the Division of Professional
Regulation for the booklet or printed material.
10.0 Disclosure
10.1 A licensee who is the owner, the prospective
purchaser, lessor or lessee or who has any personal interest
in a transaction, must disclose his or her status as a licensee
to all persons with whom he or she is transacting such
business, prior to the execution of any agreements and shall
include on the agreement such status.
10.2 Any licensee advertising real estate for sale stating
in such advertisement, "If we cannot sell your home, we will
buy your home", or words to that effect, shall disclose in the
original listing contract at the time he or she obtains the
signature on the listing contract, the price he will pay for the
property if no sales contract is executed during the term of
the listing. Said licensee shall have no more than sixty (60)
days to purchase and settle for the subject property upon
expiration of the original listing or any extension thereof.
10.3 A licensee who has direct contact with a potential
purchaser or seller shall disclose in writing whom he/she
represents in any real estate negotiation or transaction. The
disclosure as to whom the licensee represents should be
made at the 1st substantive contact to each party to the
negotiation or transaction. In all cases such disclosure must
be made prior to the presentation of an offer to purchase. A
written confirmation of disclosure shall also be included in
the contract for the real estate transaction.
10.3.1 The written confirmation of disclosure in
the contract shall be worded as follows:
10.3.1.1 With respect to agent for seller: "This
broker, any cooperating broker, and any salesperson working
with either, are representing the seller's interest and have
fiduciary responsibilities to the seller, but are obligated to
treat all parties with honesty. The broker, any cooperating
broker, and any salesperson working with either, without
breaching the fiduciary responsibilities to the seller, may,
among other services, provide a potential purchaser with
information about the attributes of properties and available
financing, show properties, and assist in preparing an offer to
purchase. The broker, any cooperating broker, and any
salesperson working with either, also have the duty to
respond accurately and honestly to a potential purchaser's
questions and disclose material facts about properties,
submit promptly all offers to purchase and offer properties
without unlawful discrimination."
10.3.1.2 With respect to agent for buyer: "This
broker, and any salesperson working for this broker, is
representing the buyer's interests and has fiduciary
responsibilities to the buyer, but is obligated to treat all
parties with honesty. The broker, and any salesperson
working for the broker, without breaching the fiduciary
responsibilities to the buyer, may, among other services,
provide a seller with information about the transaction. The
broker, and any salesperson working for the broker, also has
the duty to respond accurately and honestly to a seller's
questions and disclose material facts about the transaction,
submit promptly all offers to purchase through proper
procedures, and serve without unlawful discrimination."
10.3.1.3 In the case of a transaction involving
a lease in excess of 120 days, substitute the term "lessor" for
the term "seller", substitute the term "lessee" for the terms
"buyer" and "purchaser", and substitute the term "lease" for
"purchase" as they appear above.
10.4 If a property is the subject of an agreement of sale
but being left on the market for backup offers, or is the
subject of an agreement of sale which contains a right of first
refusal clause, the existence of such agreement must be
disclosed by the listing broker to any individual who makes
an appointment to see such property at the time such
appointment is made.
11.0 Hearings
11.1 When a complaint is filed with the Commission
against a licensee, the status of the broker of record in that
office shall not change.
11.2 There shall be a maximum of one (1)
postponement for each side allowed on any hearing which
has been scheduled by the Commission. If any of the parties
are absent from a scheduled hearing, the Commission
reserves the right to act based upon the evidence presented.
12.0 Inducements
12.1 Real Estate licensees cannot use commissions or
income received from commissions as rebates or
compensation paid to or given to Non-licensed Persons,
partnerships or corporations as inducements to do or secure
business, or as a finder's fee.
12.2 This Rule does not prohibit a real estate broker or
salesperson from giving a rebate or discount or any other
thing of value directly to the purchaser or seller of real
estate. The real estate broker or salesperson, however, must
be licensed as a resident or non-resident licensee by the
Commission under the laws of the State of Delaware.
12.3 A real estate broker or salesperson has an
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PROPOSED REGULATIONS 703
affirmative obligation to make timely disclosure, in writing,
to his or her principal of any rebate or discount that may be
made to the buyer.
13.0 Necessity of License
13.1 For any property listed with a broker for sale, lease
or exchange, only a licensee shall be permitted to host or
staff an open house or otherwise show a listed property. That
licensee may be assisted by non-licensed persons provided a
licensee is on site. This subsection shall not prohibit a seller
from showing their own house.
13.2 For new construction, subdivision, or development
listed with a broker for sale, lease or exchange, a licensee
shall always be on site when the site is open to the general
public, except where a builder and/or developer has hired a
non-licensed person who is under the direct supervision of
said builder and/or developer for the purpose of staffing said
project.
14.0 Out of State Land Sales Applications
14.1 All applications for registration of an out of state
land sale must include the following:
14.1.1 A completed license application on the form
provided by the Commission.
14.1.2 A $100 filing fee made payable to the State
of Delaware.
14.1.3 A valid Business License issued by the State
of Delaware, Division of Revenue.
14.1.4 A signed Appointment and Agreement
designating the Delaware Secretary of State as the
applicant's registered agent for service of process. The form
of Appointment and Agreement shall be provided by the
Commission. In the case of an applicant which is a
Delaware corporation, the Commission may, in lieu of the
foregoing Appointment and Agreement, accept a current
certificate of good standing from the Delaware Secretary of
State and a letter identifying the applicant's registered agent
in the State of Delaware.
14.1.5 The name and address of the applicant's
resident broker in Delaware and a completed Consent of
Broker form provided by the Commission. Designation of a
resident broker is required for all registrations regardless of
whether sales will occur in Delaware.
14.1.6 A bond on the form provided by the
Commission in an amount equal to ten (10) times the amount
of the required deposit.
14.1.7 Copies of any agreements or contracts to be
utilized in transactions completed pursuant to the
registration.
14.2 Each registration of an out of state land sale must
be renewed on an annual basis. Each application for renewal
must include the items identified in sub-sections 14.1.2
through 14.1.4 of Rule 14.0 above and a statement
indicating whether there are any material changes to
information provided in the initial registration. Material
changes may include, but are not limited to, the change of
the applicant's resident broker in Delaware; any changes to
the partners, officers and directors' disclosure form included
with the initial application; and any changes in the condition
of title.
14.3 If, subsequent to the approval of an out of state
land sales registration, the applicant adds any new lots or
units or the like to the development, then the applicant must,
within thirty days, amend its registration to include this
material change. A new registration statement is not
required, and the amount of the bond will remain the same.
15.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
15.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
15.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
15.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
15.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
704 PROPOSED REGULATIONS
chairperson of the participating Board.
15.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
15.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
15.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
15.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
15.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
15.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
15.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
15.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
15.6.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
issue.
15.6.8 The participating Board's chairperson, his/
her designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
15.6.9 If practice is restricted, the regulated
professional may apply for unrestricted licensure upon
completion of the program.
15.6.10 Failure to enter into such agreement or to
comply with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
15.6.11 Any person who reports pursuant to this
section in good faith and without malice shall be immune
from any civil, criminal or disciplinary liability arising from
such reports, and shall have his/her confidentiality protected
if the matter is handled in a nondisciplinary matter.
15.6.12 Any regulated professional who complies
with all of the terms and completes the Voluntary Treatment
Option shall have his/her confidentiality protected unless
otherwise specified in a participating Board's rules and
regulations. In such an instance, the written agreement with
the regulated professional shall include the potential for
disclosure and specify those to whom such information may
be disclosed.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 705
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
REAL ESTATE COMMISSION EDUCATION
COMMITTEE
24 DE Admin. Code 2925
Statutory Authority: 24 Delaware Code,
Section 2905(a)(1), 2911(b)
(24 Del.C. §2905(a)(1), §2911(b))
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Sections 2905(a)(1) and 2911(b),
the Delaware Real Estate Commission proposes to revise its
Guidelines for Fulfilling the Delaware Education
Requirements. The proposed amendments insert a new
guideline relating to student requests for approval of an
educational activity.
A public hearing will be held on the proposed Education
Guidelines on Thursday, November 8, 2001 at 9:30 a.m., in
the Second Floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Commission will receive and consider input in
writing from any person on the proposed Education
Guidelines. Any written comments should be submitted to
the Commission in care of Joan O'Neill at the above address.
The final date to submit written comments shall be at the
above scheduled public hearing. Anyone wishing to obtain a
copy of the proposed Education Guidelines or to make
comments at the public hearing should notify Joan O'Neill at
the above address by calling (302) 744-4519.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
Real Estate Commission Education Committee
Statutory Authority: 24 Del.C. 2911(b)
1.0 Introduction
2.0 Objective
3.0 Administration
4.0 Education Committee
5.0 Course Approval
6.0 Program Criteria
7.0 Course Approval Process
8.0 Provider Responsibilities
9.0 Instructor Qualifications
10.0 Instructor Approval Process
Guidelines for Fulfilling the Delaware Real Estate
Education Requirements
1.0 Introduction -- Mandate for Continuing Education
1.1 24 Del.C. §2911(b) sets forth a requirement that
"...each Delaware Real Estate Certificate holder applying for
renewal shall be required to successfully complete in the two
year period prior to renewal, continuing education hours in
an amount to be prescribed by the Rules and Regulations of
the Commission. Each Delaware Real Estate Certificate
holder at the time of certificate renewal shall be required to
furnish to the Commission satisfactory evidence that they
have successfully completed the required number of hours in
approved courses......"
1.2 The continuing education requirements apply to all
licensees whether or not the certificate holder has been
officially active or inactive during the two year period prior
to expiration. The Delaware Real Estate Commission shall
be informed of the completion of the continuing education
requirement at the time of submission of the Real Estate
Certificate Renewal Application. In the case of an inactive
licensee proof of completion of the continuing education
requirement will be due upon reactivation of the license.
The number of continuing education credit hours required is
established within the Rules and Regulations of the
Commission. The number and content of mandated courses
may vary at the discretion of the Commission. The current
requirement for continuing education is included within
these guidelines. Updates may be obtained from the offices
of the Real Estate Commission or the Real Estate Education
Committee.
2.0 Objective
Through education, the licensee shall be reasonably
current in real estate knowledge and shall have improved
ability to provide greater protection and service to the real
estate consumer, thereby meeting the Delaware Real Estate
Commission's primary objective of protection of the public.
3.0 Administration
The Delaware Real Estate Commission has the
governing powers to approve or disapprove educational
course offerings and instructor certification and reserves the
right to suspend or revoke the privilege of conducting any
educational course to any course provider(s) or instructor(s)
who fail to adhere to the educational guidelines as
established by the Commission.
4.0 Education Committee
4.1 The Commission may utilize the services of a
committee, appointed by the Commission, to assist in the
educational objectives of the Commission.
4.2 Committee Structure - The Committee shall be
comprised of twelve (12) members, four (4) from each
county. Three (3) members shall be public members and the
remaining members shall hold a valid Delaware real estate
license.
4.3 Committee Officers - (Chairperson and Vice-
Chairperson) shall be elected from the Committee and shall
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
706 PROPOSED REGULATIONS
serve one year terms. Election of said officers will be held in
January.
4.4 Term of Office
4.4.1 Each appointment shall be for four (4) full
years. No person who has been appointed to the Committee
shall again be appointed to the Committee until an interim
period of at least one (1) year has passed since such person
last served.
4.4.2 A majority of members (7) shall constitute a
quorum; and no recommendation shall be effective without
the affirmative vote of a majority of the quorum. Any
member who fails to attend three (3) consecutive regular
business meetings without a valid excuse, or who fails to
attend at least half of all regular business meetings during
any calendar year, shall automatically upon such occurrence
be deemed to have resigned from office and a replacement
shall be appointed by the Commission.
4.4.3 Committee members shall be appointed by
the Commission. Applications for committee membership
will be received by the Commission, via a letter of intent and
a current resume 60 days prior to an anticipated vacancy.
Committee members may be removed by the Commission
for good cause. If an interim vacancy should occur, the
Commission shall appoint a person to fill the position for a
full four (4) year term commencing with the date of
appointment.
4.5 Committee Responsibilities
4.5.1 It shall be the duty of the Education
Committee to monitor the content and conduct of all prelicensing
courses for salesperson and broker as well as
continuing education programs offered to fulfill the
educational requirements for obtaining and maintaining
licensure in the State of Delaware.
4.5.2 The Education Committee shall have the
responsibility for reviewing all applications for pre-licensing
and continuing education credit as well as certification of
instructor applicants, to insure that all applications satisfy
the requirements.
4.5.3 After this review, the Education Committee
shall recommend that an application be approved or
disapproved by the Commission. If approval is
recommended with regard to continuing education, the
Committee shall indicate the number of full credit hours for
the course. In making its decisions, the Education
Committee shall follow the provisions contained in these
guidelines. Any recommendation for non-approval shall be
accompanied by a specific reason. Only the Delaware Real
Estate Commission shall have the power to approve or
disapprove the application for a course offering or instructor
certification.
4.5.4 The Education Committee shall undertake
such other duties and responsibilities as the Commission
shall direct from time to time.
4.5.5 Committee meeting times and places shall be
as necessary, but in all cases within two weeks prior to the
next regularly scheduled meeting of the Commission.
Committee meetings shall be conducted in accordance with
the Administrative Procedures Act.
5.0 Course Approval
5.1 General Requirements - An educational activity to
be approved as satisfying Delaware's real estate continuing
education requirements must be an organized real estate
related activity, offered under responsible sponsorship,
facilitated by an instructor certified by the Commission.
5.2 Organization - The sponsoring organization must
have a designated individual responsible for the
administration and coordination of the education program.
That designee shall be responsible to report to the
Commission and/or the Committee for the proper conduct of
each such program.
5.3 Facilities - The sponsoring organization must
provide or arrange for appropriate educational facilities, and
when necessary, library and reference materials and all
instructional aids and equipment consistent with the content,
format, and objective of each learning experience.
5.4 Performance - Attendance shall be used as the
minimum requirement for satisfactory completion, in
addition, alternative criteria for evaluating student
performance may be established by the sponsoring
organization or class instructor.
5.5 Maintenance and Availability of Records - An
individual record of participation must be maintained by the
sponsoring organization for a period of not less than three (3)
years from the date of the activity and upon request made
readily available as an official statement to each student of
his or her participation. Information which must be included
as part of this record is:
5.5.1 Name and address of the organization
offering the course.
5.5.2 Name of course topic.
5.5.3 Title of the course
5.5.4 Name, resume and certificate number of the
individual instructors.
5.5.5 Completion date of the course offering.
5.5.6 Number of hours of approved credit.
5.5.7 A detailed outline of the course.
5.5.8 A copy of the approval letter received from
the Commission
5.5.9 A copy of the individual instructor(s)
certification(s) letter(s) issued by the Commission.
5.5.10 A copy of the individual student evaluations
on forms provided by the Commission.
5.5.11 A list of the individual students attending
the course offering and their completion status, e.g.,
satisfactory or unsatisfactory.
5.6 Program Evaluation - Evaluation forms, approved
by the Real Estate Commission shall be used to measure the
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PROPOSED REGULATIONS 707
effectiveness of the program design, operation and
effectiveness of the instructor(s). These forms must be
returned to the Education Committee for review within
fifteen (15) calendar days of completion of the program.
6.0 Program Criteria
6.1 Areas of Concentration for Acceptable Courses
6.1.1 Courses of instruction and seminars, to be
considered eligible for continuing education credit approval
must be in a definable real estate topic area. Courses that
may be considered eligible must be in the following topic
areas:
6.1.1.1 Federal, State or Local Legislative
Issues (Legislative Update).
6.1.1.2 Fair Housing Law
6.1.1.3 Anti-Trust Law
6.1.1.4 Real Estate Ethics or Professional
Standards
6.1.1.5 Agency Relationships and
Responsibilities
6.1.1.6 Professional Enhancement for
Practicing Licensees
6.1.2 Courses of instruction which Are Not
acceptable for credit include, but are not limited to:
_ Any course given as part of a preparation for
examination.
_ Offerings in mechanical office and business
skills such as typing, business machines and computer
operations.
_ Personal development and/or enrichment
and motivational courses, speed reading memory
improvement, and language report writing.
_ Correspondence courses and program
learning courses not under the direct supervision of a
certified instructor.
_ General training or education required of
licensees to function in a representative capacity for an
employing broker except if said training or education
complies with the above stated topic areas, has been
approved by the Commission and is taught by a certified
instructor.
_ Meetings which are a normal part of inhouse
staff or licensee training, sales promotions or other
meetings held in connection with the general business of the
licensee and/or broker; any meetings that a licensee is
required to attend as a condition of continued employment,
whether imposed by rules of the employing broker or by a
contractual agreement between broker and franchiser, does
not qualify for continuing education credit. Work
experience does not qualify for continuing education credit.
_ Non-educational activities of associations,
trade organizations, and professional and occupational group
membership or certification are not considered accreditable
continuing education activities. Examples of such activities
are, but not limited to:
_ membership or service in a professional,
occupational or other society or organization;
_ attendance at annual, periodic or special
meetings, conventions, conferences, rallies and retreats;
_ writing or presentation of articles or
research papers;
_ a program or other type of
organizational assignment;
_ self-directed reading or study. As a
guiding principle "self-directed studies" and "individual
scholarship" are not considered accreditable educational
activities.
7.0 Course Approval Process
7.1 An application for course approval (on forms
approved by the Commission), course outline, all applicable
fees and any other documentation that may be required, must
be filed by the course sponsor or provider, with the Division
of Professional Regulation, Delaware Real Estate
Commission, Education Committee, 861 Silver Lake
Boulevard, Suite 203, Dover, Delaware 19904-2467, at least
sixty (60) days prior to the date that the course is to be
held. Failure to file within the appropriate time limit may be
cause for rejection. Recommendations of the Education
Committee shall be made to the Commission within thirty
(30) days after the Education Committee receives and
reviews the completed application. An application that is
incomplete when filed shall not be considered to have been
filed.
7.2 A course may be certified for a period of two (2)
calendar years, provided the course is conducted by the
sponsor or provider making application, the curriculum and
course length remains exactly as approved, and certified
instructors are utilized. The Education Committee may
recommend a shorter or probationary approval where good
cause for limited approval can be demonstrated. A sponsor
who receives approval to conduct a certified course or
activity, must notify the Commission in writing, of the intent
to hold such activity, at least seven (7) days in advance of the
start of the activity. Included in the letter of intent shall be
the course approval number, date(s) and time(s) and location
of the course, topic area, course name, instructor name(s)
and instructor certification number(s). Courses can not be
automatically renewed. Sponsors providers will need to
reapply by the course expiration date and before conducting
further courses. The Education Committee shall have the
right to recommend to the Commission that a provider's
privilege of conducting a certified course be revoked for the
remainder of the approval period, if the Education
Committee determines that the provider is not maintaining
7.3 An application for an individual student request for
approval of an educational activity (on forms approved by
the Commission), course outline, instructor resume of a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
708 PROPOSED REGULATIONS
qualified instructor, and any other documentation that may
be required, may be filed by the individual student with the
Delaware Real Estate Commission, Real Estate Education
Committee within twelve (12) months. Recommendations of
the Education Committee shall be made to the Commission
within thirty (30) days after the Education Committee
receives and reviews the completed application. An
application that is incomplete when filed shall not be
considered to have been filed. The subject educational
activity must comply with Section 6.0 herein and any other
applicable Guidelines.
8.0 Provider Responsibilities
8.1 The organization receiving approval of a course or
program accepts the responsibility to maintain a permanent
record of the course activity for not less than three years
from the date of the course offering. The permanent record
shall include the documents as listed in "Maintenance and
Availability of Records".
8.2 The sponsor or provider of all continuing education
courses shall arrange for an on-site monitor in addition to the
certified instructor for each activity. The monitor shall be
responsible, at a minimum, for ensuring faithful and
complete attendance by students, as well as facilities
management. The monitor may be a student for educational
credit for that course or activity.
8.3 The course sponsor or provider, will supply to the
student at the completion of the course or program, a
certificate of completion. This certificate must contain, but
is not limited to, the following information:
_ Student Name
_ Sponsors Name
_ Topic Area Name
_ Course Title
_ Date course was completed
_ Number of Credit Hours
_ Course Approval Number
_ Instructor Name(s)
_ Instructor Certificate Number(s)
8.4 The organization offering the course, shall, within
fifteen (15) days after the completion of the activity, provide
a list of participants, their real estate license numbers (if
applicable) and a copy of each student's course and instructor
evaluation form and an evaluation summary report form to
the Commission's Office. The evaluation summary report
form shall be signed by any instructors who participated in
the delivery of the course thus indicating each has had the
opportunity to review the evaluation result. Failure of the
organization to provide this information may be grounds to
suspend the approval of that course or educational activity,
in the absence of a showing of good cause for that failure.
8.5 Where the provider is a prelicensing school, the
administrator thereof is responsible to apply to the Delaware
Department of Public Instruction for certification and to
maintain such certification. Proof of current certification
must be attached to the application for course approval
submitted to the Education Committee.
8.6 Prelicensing schools are to solicit the names of
students interested in being contacted by recruiters by the
second class meeting. Any students joining after the first
class must be informed of the opportunity to be a part of the
recruiting roster at the first class attended. Schools must
supply the recruiting roster within seven (7) days of
receiving a request from a broker.
8.7 Prelicensing schools will also furnish each student
with current information regarding the prelicensing
examination to include the "Real Estate Candidate
Handbook" which is available to prelicensing schools
through the testing service for this purpose.
8.8 Members of the Real Estate Commission or
Education Committee And/or Their Official Representatives
Shall Have the Right to Monitor Any Approved Course
Without Notice.
9.0 Instructor Qualifications
9.1 It is the stated policy of the Delaware Real Estate
Commission that qualified instructors must be directly
involved in presenting any professional educational activity.
Qualifications are determined by all or a combination of:
9.1.1 competence in the subject matter (may be
evidenced by experience in which command of subject
matter is recognized by the individual's peers, and/or by a
formal education or training, and/or by demonstrated
knowledge through publication in professional journals or
appropriate media);
9.1.2 ability to transmit the educational content to
the participants as determined by student evaluations and/or
test results from previous instructional assignments;
9.1.3 understanding of the program objectives; and
9.1.4 knowledge and skill in the instructional
methodology and learning processes to be employed.
9.2 The persons applying for instructor certification in
teaching a real estate related topic must have five (5) years of
full time experience in the trade, business, or profession that
relates to the topic of instruction to be taught, and meet at
least one (1) of the following sets of qualifications:
9.2.1 An approved instructor must meet two of the
following criteria:
9.2.1.1 a Bachelor's degree
9.2.1.2 a Broker's Certificate
9.2.13 a professional designation such as, but
not limited to; ALC (Accredited Land Consultant), CRS
(Certified Residential Specialist), CCIM (Certified
Commercial Investment Member) CPM (Certified Property
Manager), CRB (Certified Residential Broker), CRE
(Counselor Real Estate), MAI (Member Appraisal Institute),
SIOR (Society Industrial Office Realtors) SRA (Senior
Residential Appraiser), SRPA (Senior Real Property
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 709
Appraiser), but not including GRI (Graduate Realtor
Institute);
9.2.2 Possession of a valid teaching credential or
certificate issued in the State of Delaware (or any State with
qualifications that are equal to, or that exceed the
qualification standards of the State of Delaware), and/or five
(5) years of teaching experience in an accredited public,
private, or parochial school; and/or five (5) years teaching
experience in an accredited junior college, college or
university.
9.2.3 A fully designated senior member of the Real
Estate Educators Association who has been issued the DREI
(Designated Real Estate Instructor) designation.
9.3 The Commission may waive the above
requirements contingent upon review of proof of collateral
experience in related fields of real estate. The Commission
reserves the right to exercise its discretion in denying an
applicant who has had a disciplinary action taken against
him/her.
9.4 In addition to the qualifications listed above, the
Commission shall take into consideration evaluations from
previous programs that the applicant has instructed. The
Commission will also take into consideration
recommendations or absence thereof of course providers,
course coordinators, administrators and institutions that have
employed the applicant.
9.5 The Education Committee may, at its discretion,
subject to Commission approval, require a potential
instructor to take a teaching methodology course (such as
those given by colleges and universities) and/or a teaching
methods seminar (such as currently given by the National
Association of Realtors or Real Estate Educator's
Association).
10.0 Instructor Approval Process
10.1 Applicants for instructor shall submit an
application (on forms approved by the Commission), resume
and any applicable fees to the Division of Professional
Regulation, Delaware Real Estate Commission, Education
Committee, 861 Silver Lake Boulevard, Suite 203, Dover,
DE 19904-2467, at least sixty (60) days prior to the
employment starting date. Failure to file within the
appropriate time limit may be cause for rejection.
Recommendations of the Education Committee shall be
made to the Commission within thirty (30) days after the
Education Committee receives and reviews the application.
An application that is incomplete when filed shall not be
considered to have been filed.
10.2 Upon approval, an instructor may be certified for a
period of two (2) calendar years. An instructor may be
certified in more than one subject or topic area, (e.g. prelicensing
math, pre-licensing law, fair housing, ethics, etc.).
An instructor may only teach courses as preapproved by the
Commission. Instructor certification can not be
automatically renewed. Instructors will need to reapply by
the certification expiration date and before teaching any
further courses or programs. Applications are available from
the Commission office.
10.4 An Instructor may receive credit for continuing
education hours towards the real estate license renewal
requirement in the same amount of hours as approved for
credit for the course/topic being taught. This is a one time
credit per licensure period, regardless of the number of times
that said course/topic is taught during said course or
instructor certification period.
10.5 The Education Committee shall have the right to
recommend to the Commission that a certified instructor lose
the privilege of certification for the remainder of the
certification period if the Education Committee determines
that the instructor is not maintaining the standards and/or
policies required in these guidelines.
10.6 It is the Stated Policy of the Delaware Real Estate
Commission That at No Time During Periods of Instruction
Shall Any Person Involved in Any Approved Real Estate
Educational Activity, Use, or Attempt to Use, the Position of
Instructor, Sponsor or Provider Etc., to Solicit Employees or
Sales Representatives.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF VETERINARY MEDICINE
24 DE Admin. Code 3300
Statutory Authority: 24 Delaware Code,
Section 3306(a)(1) (24 Del.C. 3306(a)(1))
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 3306 (a) (1), the
Delaware State Board of Veterinary Medicine proposes to
revise its rules and regulations. The proposed changes
would be comprehensive revision of the current rules and
regulations. The proposed revisions seek to redefine the role
of support personnel, unprofessional conduct by a
veterinarian, standards for veterinary premises and
equipment, privileged communications between a
veterinarian and a client, and requirements for continuing
education. The proposed changes also affect other aspects of
licensure including renewal and reinstatement of licenses.
The proposed regulations serve to implement or clarify
specific sections of 24 Del.C. Chapter 33.
A public hearing will be held on the proposed Rules and
Regulations on Tuesday, November 13, 2001 at 6:00 p.m. in
the second floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Board will receive and consider input in writing
from any person on the proposed Rules and Regulations.
Any written comments should be submitted to the Board in
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
710 PROPOSED REGULATIONS
care of Susan Miccio at the above address. The final date to
submit written comments shall be at the above scheduled
public hearing. Anyone wishing to obtain a copy of the
proposed Rules and Regulations or to make comments at the
public hearing should notify Susan Miccio at the above
address or by calling (302) 744-4506.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
Board of Veterinary Medicine
Statutory Authority: 24 Del.C. 3306(a)(1)
1.0 Filing Date for Examinations
2.0 Qualification for Licensure by Examination as a
Veterinarian
3.0 Character of Examination - National Board
Examination and Clinical Competency Test
4.0 Licensure - Renewal
5.0 Licenses, Certifications and Registrations Display
6.0 Continuing Education
7.0 Reciprocity
8.0 Voluntary Treatment Option for Chemically Dependent
or Impaired Professionals
1.0 Filing Date for Examinations
1.1 An applicant taking examinations in the State of
Delaware must have the completed application filed with the
Board office nine weeks before the announced date of the
examination as established by the testing service.
1.2 The examination will be given at least once
annually on the date(s) established by the testing service.
See 1 DE Reg. 1573 (4/1/98)
2.0 Qualification for Licensure by Examination as a
Veterinarian
2.1 Applicant shall file the following documents:
2.1.1 Completed application form obtained from
the Board office.
2.1.2 Official transcript from an AVMA approved
veterinary college or university or its equivalent
(Educational Commission for Foreign Veterinary
Graduates).
2.1.3 Letters of good standing from any other
jurisdictions in which applicant is/or has been licensed.
2.1.4 Official National Board Examination (NBE)
and Clinical Competency Test (CCT) scores.
2.1.5 Check or money order payable to the "State
of Delaware" for the amount prescribed by the Division of
Professional Regulation
See 1 DE Reg. 1573 (4/1/98)
2.2 Only completed applications will be accepted. In
case of incomplete applications, omissions will be noted to
the applicant. Any information provided to the Board is
subject to verification.
See 1 DE Reg. 1573 (4/1/98)
3.0 Character of Examination - National Board
Examination and Clinical Competency Test
3.1 Examination for licensure to practice veterinary
medicine in the State of Delaware shall consist of the
National Board Examination ("NBE") and the Clinical
Competency Test ("CCT").
3.1.1 Passing scores for the NBE and CCT shall be
the score as recommended by the National Board
Examination Committee.
4.0 Licensure - Renewal
4.1 All licenses are renewed biennially (every 2 years).
A licensee may have his/her license renewed by submitting a
renewal application to the Board by the renewal date and
upon payment of the renewal fee prescribed by the Division
of Professional Regulation along with evidence of
completion of continuing education requirements. The
failure of the Board to give, or the failure of the licensee to
receive, notice of the expiration date of a license shall not
prevent the license from becoming invalid after its expiration
date.
4.2 All licensees must meet the continuing education
requirements of a total of twenty-four (24) hours for two (2)
years.
4.3 Any licensee who fails to renew his/her license by
the renewal date may still renew his/her license during the
one (1) year period immediately following the renewal date
provided the licensee pay a late fee established by the
Division of Professional Regulation in addition to the
prescribed renewal fee.
5.0 Licenses, Certifications and Registrations Display
Each licensed veterinarian shall have posted or
displayed at his/her office, in full view of clients, his/her
Delaware license to practice veterinary medicine.
6.0 Continuing Education
6.1 Any veterinarian (active or inactive) licensed to
practice in the State of Delaware shall meet the following
continuing education requirements to the satisfaction of the
Board.
6.1.1 Twenty-four (24) hours of approved certified
continuing education credits for the immediate two year
period preceding each biennial license renewal date.
6.1.2 The number of credit hours shall be
submitted to the Board with each biennial license renewal
application on the proper reporting form supplied by the
Board.
6.2 The Board may approve continuing education
courses or sponsors upon written application on Board
supplied forms. In addition, the Board may approve
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 711
continuing education courses or sponsors on its own motion.
6.3 The following organizations are approved for
formal continuing education activities.
6.3.1 AVMA
6.3.2 AVMA accredited schools
6.3.3 Federal/State/County Associations
6.3.4 Correspondence and In-House: Compendium
on continuing education for the practicing veterinarian;
Internet; NOAH; VIN. This may be used to satisfy 1/2 of the
continuing education requirement.
6.3.5 Other forms of CE as long as a Veterinary
Board Certified Diplomate or Veterinary Board Qualified
Presenter presents the activity and the activity is approved
by the Delaware Board of Veterinary Medicine. This may
be used to satisfy 1/2 of the continuing education requirement.
6.3.6 University course work consisting of postgraduate
credits, subject to Board approval.
6.4 Accreditation by the Board of continuing education
courses will be based upon program content. Continuing
education courses shall be directed toward improvement,
advancement, and extension of professional skill and
knowledge relating to the practice of veterinary medicine.
6.5 The Board may at any time re-evaluate an
accredited course or sponsor and withdraw its approval of a
previously accredited continuing education course or
sponsor.
See 1 DE Reg. 1573 (4/1/98)
7.0 Reciprocity
Applications for licensure by reciprocity shall be the
same application used for licensure by examination and be
subject to the same application requirements set forth in
Section 2.0
8.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
8.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
8.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
8.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
8.4 A regulated professional with chemical dependency
or impairment due to addiction to drugs or alcohol may enter
into the Voluntary Treatment Option and continue to
practice, subject to any limitations on practice the
participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
8.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
8.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
8.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
8.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
712 PROPOSED REGULATIONS
reports are made in good faith and without malice.
8.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
8.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
8.6.5 Agreement by the regulated professional that
failure to satisfactorily progress in such treatment program
shall be reported to the participating Board's chairperson or
his/her designate or designates or to the Director of the
Division of Professional Regulation or his/ her designate by
the treating professional who shall be immune from any
liability for such reporting made in good faith and without
malice.
8.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
8.7 The regulated professional's records of participation
in the Voluntary Treatment Option will not reflect
disciplinary action and shall not be considered public records
open to public inspection. However, the participating Board
may consider such records in setting a disciplinary sanction
in any future matter in which the regulated professional's
chemical dependency or impairment is an issue.
8.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
8.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
8.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
8.11 Any person who reports pursuant to this section in
good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
8.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
1.0 Direct Supervision
2.0 Unprofessional Conduct
3.0 Privileged Communications
4.0 Veterinary Premises and Equipment
5.0 Qualification for Licensure by Examination as a
Veterinarian
6.0 Character of Examination - North American
Veterinary
Licensing Examination (NAVLE)
7.0 Reciprocity
8.0 Licensure - Renewal
9.0 Continuing Education
10.0 Voluntary Treatment Option
1.0 DIRECT SUPERVISION (24 Del. C. § 3303(10))
1.1 Direct Supervision - refers to the oversight of
any person performing support activities (support personnel)
by a licensed Delaware veterinarian. Oversight includes
control over the work schedule of the person performing
support activities and any remuneration the person receives
for performing such activities. Oversight does not include
remuneration paid directly to support personnel by the
public. The constant physical presence of the licensed
veterinarian on the premises is not required, however, if the
licensed veterinarian is accessible to support personnel by
electronic means or has arranged for another supervising
licensed veterinarian to be accessible by electronic means.
All acts by support personnel not prohibited by Rule 1.2
which constitute the practice of veterinary medicine under
24 Del.C. §3302 (6) must be performed under direct
supervision. Direct supervision of support personnel also
includes:
1.1.1 The initial examination of the animal by
the veterinarian prior to the delegation of work to be
performed by support personnel. The veterinarian may,
however, authorize support personnel to administer
emergency measures prior to the initial examination.
1.1.2 The development of a treatment plan by
the veterinarian that shall be referenced by support
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 713
personnel.
1.1.3 The authorization by the veterinarian of
the work to be performed by support personnel.
1.2 At no time may support personnel perform the
following activities (24 Del. C. § 3303(10)):
1.2.1 Diagnosing.
1.2.2 Prescribing.
1.2.3 Inducing Anesthesia.
1.2.4 Performing Surgery.
1.2.5 Administration of RabiesVaccinations.
1.2.6 Operative dentistry and oral surgery.
1.2.7 Centesis of body structures (not to include
venipuncture and cystocentesis) in other than emergency
situations.
1.2.8 The placement of tubes into closed body
structures, such as chest tubes, in other than emergency
situations (not to include urinary or IV catheters).
1.2.9 Splinting or casting of broken bones in
other than emergency situations.
1.2.10 Euthanasia.
1.2.11 Issue health certificates.
1.2.12 Perform brucellosis, equine infectious
anemia and tuberculosis tests and other tests which are
regulated by federal and state guidelines.
2.0 UNPROFESSIONAL CONDUCT (24 Del.C.
§3313(a)(1))
2.1 Unprofessional conduct in the practice of
veterinary medicine shall include, but not be limited to, the
following;
2.1.1 Allowing support personnel to perform the
acts forbidden under Section 1.2 of the Rules and
Regulations.
2.1.2 Allowing support personnel to perform
tasks without the required direct supervision as specified in
Section 1.1 of the Rules & Regulations.
2.1.3 Representation of conflicting interests
except by express consent of all concerned. A licensee
represents conflicting interests if while employed by a buyer
to inspect an animal for soundness he or she accepts a fee
from the seller. Acceptance of a fee from both the buyer and
the seller is prima facie evidence of fraud.
2.1.4 Use by a veterinarian of any certificate,
college degree, license, or title to which he or she is not
entitled.
2.1.5 Intentionally performing or prescribing
treatment, which the veterinarian knows to be unnecessary,
for financial gain.
2.1.6 Placement of professional knowledge,
attainments, or services at the disposal of a lay body,
organization or group for the purpose of encouraging
unqualified groups or individuals to perform surgery upon
animals or to otherwise practice veterinary medicine on
animals that they do not own.
2.1.7 Destruction of patient records (including
rabies records, radiographs and ultrasounds) before three
years have elapsed.
2.1.8 Cruelty to animals. Cruelty to animals
includes, but is not limited to, any definition of cruelty to
animals under 11 Del.C. §1325.
2.1.8.1 Animal housing (such as cages,
shelters, pens and runs) should be designed with maintaining
the animal in a state of relative thermal neutrality, avoiding
unnecessary physical restraint, and providing convenient
access to appropriate food and water. If animals are group
housed, they should be maintained in compatible groups
without overcrowding.
2.1.8.2 Housing should be kept in good repair
to prevent injury to the animal.
2.1.8.3 Failure to take precautions to prevent
the spread of communicable diseases in housing animals.
2.1.9 Leaving an animal during the maintenance
stage of anesthesia.
2.1.10 Improper labeling of prescription drugs.
The package or label must contain:
2.1.10.1 Name, strength, and quantity of the
drug;
2.1.10.2 Usage directions.
2.1.11 Failure to make childproof packaging
available for prescription drugs upon the request of a client.
2.1.12 Misrepresenting continuing education
hours to the Board.
2.1.13 Failure to obey a disciplinary order of the
Board.
3.0 PRIVILEGED COMMUNICATIONS (24 Del.C.
§3313(a)(7))
3.1 Privileged Communications. Veterinarians
must protect the personal privacy of patients and clients by
not willfully revealing privileged communications regarding
the diagnosis and treatment of an animal. The following are
not considered privileged communications:
3.1.1 The sharing of veterinary medical
information regarding the diagnosis and treatment of an
animal when required by law, subpoena, or court order or
when it becomes necessary to protect the health and welfare
of other individuals or animals.
3.1.2 The sharing of veterinary medical
information between veterinarians or facilities for the
purpose of diagnosis or treatment of animals.
3.1.3 The sharing of veterinary medical
information between veterinarians and peace officers,
humane society officers, or animal control officers who are
acting to protect the welfare of individuals or animals.
4.0 VETERINARY PREMISES & EQUIPMENT (24
Del.C. §3313 (9))
4.1 The animal facility shall be kept clean. A
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
714 PROPOSED REGULATIONS
regular schedule of sanitary maintenance is necessary,
including the elimination of wastes.
4.2 Animal rooms, corridors, storage areas, and
other parts of the animal facility shall be washed, scrubbed,
vacuumed, mopped, or swept as often as necessary, using
appropriate detergents and disinfectants to keep them free of
dirt, debris, and harmful contamination.
4.3 Animal cages, racks, and accessory equipment,
such as feeders and water utensils, shall be washed and
sanitized as often as necessary to keep them physically clean
and free from contamination. In addition, cages should
always be sanitized before new animals are placed in them.
Sanitizing may be accomplished either by washing all soiled
surfaces with a cleaning agent having an effective
bactericidal action or with live steam or the equivalent
thereof.
4.4 Cages or pens from which animal waste is
removed by hosing or flushing shall be cleaned and suitably
disinfected one or more times daily. Animals should be
removed from cages during servicing in order to keep the
animals dry.
4.5 If litter or bedding such as paper is used in
animal cages or pens, it shall be changed as often as
necessary to keep the animals clean.
4.6 Waste disposal must be carried out in
accordance with good public health practice and federal and
state regulations. Waste materials should be removed
regularly and frequently so that storage of waste does not
create a nuisance.
4.7 Biomedical waste such as culture plates, tubes,
contaminated sponges, swabs, biologicals, needles, syringes,
and blades, must be disposed of according to federal and
state guidelines. Before disposing of blood soiled articles,
they shall be placed in a leak-proof disposable container
such as a plastic sack or a plastic-lined bag.
4.8 Proper refrigeration and sterilization
equipment should be available.
4.9 Adequate safety precautions must be used in
disposing animal carcasses and tissue specimens. An animal
carcass shall be disposed of promptly according to federal
and state law and regulations. If prompt disposal of an
animal carcass is not possible, it shall be contained in a
freezer or stored in a sanitary, non-offensive manner until
such time as it can be disposed. Livestock shall be disposed
of by any acceptable agricultural method.
4.10 The elimination or effective control of vermin
shall be mandatory.
5.0 QUALIFICATION FOR LICENSURE BY
EXAMINATION AS A VETERINARIAN (24 Del.C.
§3307)
5.1 The applicant shall file the following
documents:
5.1.1 Completed application form obtained from
the Board office. The application fee shall be set by the
Division of Professional Regulation. The check for the
application fee should be made payable to the State of
Delaware.
5.1.2 Official transcript from an AVMA
approved veterinary college or university or its equivalent
(Educational Commission for Foreign Veterinary
Graduates).
5.1.3 Letters of good standing from any other
jurisdictions in which the applicant is/or has been licensed.
5.1.4 North American Veterinary Licensing
Examination (NAVLE) score or both the official National
Board Examination (NBE) and Clinical Competency Test
(CCT) scores, unless the applicant meets the statutory
exemptions in 24 Del. C. § 3303.
5.1.5 Check or money order for the amount
established by the Division of Professional Regulation. The
license fee shall by set by the Division of Professional
Regulation. Fees should be made payable to the "State of
Delaware."
5.2 Only completed application forms will be
accepted. In the case of incomplete application forms,
omissions will be noted to the applicant. Any information
provided to the Board is subject to verification.
5.3 Applications for any licensure submitted by
final year veterinary students enrolled in an AVMA
accredited university for the purpose of taking the NAVLE
exam will be considered complete only upon proof of the
applicant's graduation. Such applicants must demonstrate
probability of graduation and will not be considered for any
licensure until proof of graduation is submitted to the Board.
6.0 CHARACTER OF EXAMINATION - NORTH
AMERICAN VETERINARY LICENSING
EXAMINATION (NAVLE) (24 Del.C. §3306)
6.1 Examination for licensure to practice
veterinary medicine in the State of Delaware shall consist of
the North American Veterinary Licensing Examination
(NAVLE) after November 2000 or its successor.
6.1.1 The passing score for the NAVLE shall be
the score as recommended by the National Board of
Veterinary Medical Examiners or its successor.
7.0 RECIPROCITY (24 Del.C. §3309)
Applications for licensure by reciprocity shall be the
same application used for licensure by examination and be
subject to the same application requirements set forth in 24
Del.C. §3309.
8.0 LICENSURE - RENEWAL (24 Del.C. §3311)
8.1 All licenses are renewed biennially (every 2
years). A licensee may have his/her license renewed by
submitting a renewal application to the Board by the renewal
date and upon payment of the renewal fee prescribed by the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 715
Division of Professional Regulation along with evidence of
completion of continuing education requirements.
Continuing education requirements for renewal are specified
in Section 9.0. The failure of the Board to give, or the failure
of the licensee to receive, notice of the expiration date of a
license shall not prevent the license from becoming invalid
after its expiration date.
8.2 Any licensee who fails to renew his/her license
by the renewal date may still renew his/her license during the
one (1) year period immediately following the renewal date
provided the licensee pay a late fee established by the
Division of Professional Regulation in addition to the
established renewal fee and submitting the continuing
education requirements for renewal as specified in Section
9.0.
9.0 CONTINUING EDUCATION (24 Del.C. §3311(b))
9.1 Any veterinarian actively licensed to practice
in the State of Delaware shall meet the following continuing
education requirements to the satisfaction of the Board.
9.1.1 Twenty-four (24) hours of approved
certified continuing education credits must be completed for
the immediate two year period preceding each biennial
license renewal date.
9.1.2 The number of credit hours shall be
submitted to the Board with each biennial license renewal
application on the proper reporting form supplied by the
Board. The continuing education credit hours shall be
submitted to the Board no later than 60 days prior to the
biennial license renewal date. The Board may audit the
continuing education credit hours submitted by a licensee.
9.1.3 A veterinarian may apply to the Board in
writing for an extension of the period of time needed to
complete the continuing education requirement for good
cause such as illness, extended absence from the country, or
unique personal hardship which is not the result of
professional negligence.
9.2 Continuing Education Requirements for
Reinstatement of Lapsed Licence
9.2.1 Any veterinarian whose license to practice
in the State of Delaware has lapsed and who has applied for
reinstatement shall meet the following continuing education
requirements to the satisfaction of the Board.
9.2.1.1 Lapse of 12 to 24 months. Twentyfour
(24) hours of continuing education credits must be
completed. The 24 hours of continuing education credits
must have been completed within 2 years prior to the request
for reinstatement.
9.2.1.2 Lapse of over 24 months. Thirty-six
(36) hours of continuing education credits must be
completed. The 36 hours of continuing education credits
must have been completed within 4 years prior to the request
for reinstatement.
9.3 Continuing Education Requirements for
Reinstatement of Inactive License
9.3.1 Twenty-four (24) hours of continuing
education credits must be submitted for licensees on the
inactive roster who wish to remove their license from
inactive status. The 24 hours of continuing education credits
must have been completed within 2 years prior to the request
for removal from inactive status.
9.4 The Board may approve continuing education
courses or sponsors upon written application on Board
supplied forms. In addition, the Board may approve
continuing education courses or sponsors on its own motion.
9.5 The following organizations are approved for
formal continuing education activities.
9.5.1 AVMA.
9.5.2 AVMA accredited schools.
9.5.3 Federal/State/County Veterinary
Associations & USDA.
9.5.4 Compendium on Continuing Education for
the Practicing Veterinarian; NOAH; VIN.
9.5.5 Registry of Approved Continuing
Education (RACE) courses.
9.6 Accreditation by the Board of continuing
education courses will be based upon program content.
Continuing education courses shall be directed toward
improvement, advancement, and extension of professional
skill and knowledge relating to the practice of veterinary
medicine.
9.6.1 University course work, subject to Board
approval.
9.6.2 Veterinary course work completed prior to
graduation may be approved for continuing education credit
for the first renewal period after graduation provided the
course work was completed no more that 2 1/2 years before
the renewal date.
9.6.3 Government Agencies.
9.6.4 Other forms of CE as long as and the
activity is approved by the Board.
9.7 The Board may at any time re-evaluate an
accredited course or sponsor and withdraw future approval
of a previously accredited continuing education course or
sponsor.
10.0 VOLUNTARY TREATMENT OPTION
10.1 If the report is received by the chairperson of
the regulatory Board, that chairperson shall immediately
notify the Director of Professional Regulation or his/her
designate of the report. If the Director of Professional
Regulation receives the report, he/she shall immediately
notify the chairperson of the regulatory Board, or that
chairperson's designate or designates.
10.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
716 PROPOSED REGULATIONS
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
10.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
10.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
10.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
10.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
10.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
10.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
10.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
10.6.4 Agreement by the regulated professional
to be personally responsible for all costs and charges
associated with the Voluntary Treatment Option and
treatment program(s). In addition, the Division of
Professional Regulation may assess a fee to be paid by the
regulated professional to cover administrative costs
associated with the Voluntary Treatment Option. The
amount of the fee imposed under this subparagraph shall
approximate and reasonably reflect the costs necessary to
defray the expenses of the participating Board, as well as the
proportional expenses incurred by the Division of
Professional Regulation in its services on behalf of the Board
in addition to the administrative costs associated with the
Voluntary Treatment Option.
10.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
10.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
10.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
issue.
10.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 717
10.9 If practice is restricted, the regulated
professional may apply for unrestricted licensure upon
completion of the program.
10.10 Failure to enter into such agreement or to
comply with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF MASSAGE & BODYWORK
24 DE Admin. Code 5300
Statutory Authority: 24 Delaware Code,
Section 5306(1) (24 Del.C. 5306(1))
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Sections 5306(1) and 5306(7),
the Delaware Board of Massage and Bodywork proposes to
revise its Rules and Regulations. The proposed revisions
seek to clarify Rule 6.3.2, popularly known as "the 25%
Rule." The proposed revisions will assist licensees in
understanding that the application of this continuing
education rule results in a limitation of the total number of
continuing education hours that are permissible in specified
areas and methods during a licensure period.
A public hearing will be held on the proposed Rules and
Regulations on Thursday, November 1, 2001 at 1:30 p.m., in
the Second Floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Board will receive and consider input in writing
from any person on the proposed Rules and Regulations.
Any written comments should be submitted to the Board in
care of Susan Miccio at the above address. The final date to
submit written comments shall be at the above scheduled
public hearing. Anyone wishing to obtain a copy of the
proposed Rules and Regulations or to make comments at the
public hearing should notify Susan Miccio at the above
address by calling (302) 744-4506.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
1.0 Definitions
2.0 Filing of Application for Licensure as
Massage/Bodywork Therapist
3.0 Examination
4.0 Application for Certification as Massage Technician.
5.0 Expired License or Certificate
6.0 Continuing Education
7.0 Scope of Practice
8.0 Voluntary Treatment Option for Chemically Dependent
or Impaired Professionals
1.0 Definitions and General Definitions
1.1 The term "500 hours of supervised in-class study"
as referenced in 24 Del.C. §5308(a)(1) shall mean that an
instructor has controlled and reviewed the applicant's
education on the premises of a school or approved program
of massage or bodywork therapy, and can document that the
applicant has successfully completed a curriculum that is
substantially the same as referenced in 24 Del.C. §
5308(a)(1) and which includes hands-on technique and
contraindications as they relate to massage and bodywork.
More than one school or approved program of massage or
bodywork therapy may be attended in order to accumulate
the total 500 hour requirement.
1.2 The term a "100-hour course of supervised in-class
study of massage" as referenced in 24 Del.C. §5309(a)(1)
shall mean that an instructor has controlled and reviewed the
applicant's education on the premises of a school or
approved program of massage or bodywork therapy, and can
document that the applicant has successfully completed a
100 hour course which includes hands-on technique and
theory, and anatomy, physiology, and contraindications as
they relate to massage and bodywork.
1.2.1 The 100 hour course must be a unified
introductory training program in massage and bodywork,
including training in the subjects set forth in Rule 1.2. The
entire 100 hour course must be taken at one school or
approved program. The Board may, upon request, waive the
"single school" requirement for good cause or hardship, such
as the closure of a school.
4 DE Reg. 1245 (2/1/01)
1.3 The "practice of massage and bodywork" includes,
but is not limited to, the following modalities:
Acupressure
Chair Massage
Craniosacral Therapy
Deep Tissue Massage Therapy
Healing Touch
Joint Mobilization
Lymph Drainage Therapy
Manual Lymphatic Drainage
Massage Therapy
Myofascial Release Therapy
Neuromuscular Therapy
Orthobionomy
Process Acupressure
Reflexology
Rolfing
Shiatsu
Swedish Massage Therapy
Trager
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
718 PROPOSED REGULATIONS
Visceral Manipulation
1.4 The practice of the following modalities does not
constitute the "practice of massage and bodywork":
Alexander Technique
Aroma therapy
Feldenkrais
Hellerwork
Polarity Therapy
Reiki
Shamanic Techniques
Therapeutic Touch
3 DE Reg. 1516 (5/1/00)
2.0 Filing of Application for Licensure as Massage/
Bodywork Therapist
2.1 A person seeking licensure as a massage/bodywork
therapist must submit a completed application on a form
prescribed by the Board to the Board office at the Division of
Professional Regulation, Dover, Delaware. Each application
must be accompanied by (1) a copy of a current certificate
from a State certified cardiopulmonary resuscitation
program as required by 24 Del.C. §5308(3); and (2) payment
of the application fee established by the Division of
Professional Regulation pursuant to 24 Del.C. §5311.
2.2 In addition to the application and materials
described in 2.1 of this Rule, an applicant for licensure as a
massage/bodywork therapist shall have (1) each school or
approved program of massage or bodywork where the
applicant completed the hours of study required by 24 Del.C.
§5308(a)(1) submit to the Board an official transcript or
official documentation showing dates and total hours
attended and a description of the curriculum completed; and
(2) Assessment Systems, Incorporated or its predecessor,
submit to the Board verification of the applicant's score on
the written examination described in Rule 3.0 herein.
2.3 The Board shall not consider an application for
licensure as a massage/bodywork therapist until all items
specified in 2.1 and 2.2 of this Rule are submitted to the
Board's office.
2.3.1 The Board may, in its discretion, approve
applications contingent on receipt of necessary
documentation. If the required documentation is not
received within 120 days from the date when the application
is first reviewed by the Board, the Board will propose to
deny the application.
2.3.2 If an application is complete in terms of
required documents, but the candidate has not responded to a
Board request for further information, explanation or
clarification within 120 days of the Board's request, the
Board will vote on the application as it stands.
2.4 Renewal. Applicants for renewal of a massage/
bodywork therapist license shall submit a completed renewal
form, renewal fee, proof of continuing education pursuant to
Rule 6.0 and a copy of a current certificate from a State
certified cardiopulmonary resuscitation program. License
holders shall be required to maintain current CPR
certification throughout the biennial licensure period.
4 DE Reg. 1245 (2/1/01)
3.0 Examination
The Board designates the National Certification
Examination administered by the National Certification
Board for Therapeutic Massage and Bodywork
("NCBTMB") as the written examination to be taken by all
persons applying for licensure as a massage/bodywork
therapist. The Board will accept as a passing score on the
exam the passing score established by the NCBTMB.
4.0 Application for Certification as Massage Technician
4.1 A person seeking certification as a massage
technician must submit a completed application on a form
prescribed by the Board to the Board office at the Division of
Professional Regulation, Dover, Delaware. Each application
must be accompanied by (1) a copy of current certificate
from a State certified cardiopulmonary resuscitation
program as required by 24 Del.C. §5309(a)(2); and (2)
payment of the application fee established by the Division of
Professional Regulation pursuant to 24 Del.C. §5311.
4.2 In addition to the application and materials
described in 4.1 of this Rule, an applicant for certification as
a massage technician shall have the school or approved
program of massage or bodywork therapy where the
applicant completed the hours or study required by 24 Del.C.
§5309(a)(1) submit to the Board an official transcript or
official documentation showing dates and total hours
attended and a description of the curriculum completed.
4.3 The Board shall not consider an application for
certification as a massage technician until all items specified
in 4.1 and 4.2 of this Rule are submitted to the Board's
office.
3 DE Reg. 1516 (5/1/00)
4.3.1 The Board may, in its discretion, approve
applications contingent on receipt of necessary
documentation. If the required documentation is not
received within 120 days from the date when the application
is first reviewed by the Board, the Board will propose to
deny the application.
4.3.2 If an application is complete in terms of
required documents, but the candidate has not responded to a
Board request for further information, explanation or
clarification within 120 days of the Board's request, the
Board will vote on the application as it stands.
4.4 Renewal. Applicants for renewal of a massage
technician certificate shall submit a completed renewal form,
renewal fee, proof of continuing education pursuant to Rule
6.0 and a copy of a current certificate from a State certified
cardiopulmonary resuscitation program. Certificate holders
shall be required to maintain current CPR certification
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 719
throughout the biennial licensure period.
4 DE Reg. 1245 (2/1/01)
5.0 Expired License or Certificate
An expired license as a massage/bodywork therapist or
expired certificate as a massage technician may be reinstated
within one (1) year after expiration upon application and
payment of the renewal fee plus a late fee as set by the
Division of Professional Regulation, and submission of
documentation demonstrating compliance with the
continuing education requirements.
6.0 Continuing Education
6.1 Hours required. For license or certification periods
beginning September 1, 2000 and thereafter, each massage/
bodywork therapist shall complete twenty-four (24) hours of
acceptable continuing education during each biennial
licensing period, except as otherwise provided in these Rules
and Regulations. Each massage technician shall complete
twelve (12) hours of acceptable continuing education during
each biennial licensing period, except as otherwise provided
in these Rules and Regulations. Completion of the required
continuing education is a condition of renewing a license or
certificate. Hours earned in a biennial licensing period in
excess of those required for renewal may not be credited
towards the hours required for renewal in any other licensing
period.
6.1.1 Calculation of Hours. For academic course
work, correspondence courses or seminar/workshop
instruction, one (1) hour of acceptable continuing education
shall mean 50 minutes of actual instruction. One (1)
academic semester hour shall be equivalent to fifteen (15)
continuing education hours; one (1) academic quarter hour
shall be equivalent to ten (10) continuing education hours.
4 DE Reg. 1245 (2/1/01)
6.1.2 If during a licensing period an individual
certified by the Board as a massage technician is issued a
license as a massage and bodywork therapist, the continuing
education requirement for that licensing period is as follows:
6.1.2.1 If the license is issued more than
twelve (12) months prior to the next renewal date, the
licensee shall complete twenty-four (24) hours of acceptable
continuing education during the licensing period.
6.1.2.2 If the license is issued less than twelve
(12) months prior to the next renewal date, the licensee shall
complete twelve (12) hours of acceptable continuing
education during the licensing period.
4 DE Reg. 1944 (6/1/01)
6.2 Proration. Candidates for renewal who were first
licensed or certified twelve (12) months or less before the
date of renewal are exempt from the continuing education
requirement for the period in which they were first licensed
or certified.
6.3 Content.
6.3.1 Except as provided in Rule 6.3.2, continuing
education hours must contribute to the professional
competency of the massage/bodywork therapist or massage
technician within modalities constituting the practice of
massage and bodywork. Continuing education hours must
maintain, improve or expand skills and knowledge obtained
prior to licensure or certification, or develop new and
relevant skills and knowledge.
6.3.2 No more than twenty-five percent (25%) of
the continuing education hours required in any licensing
period may be earned in any combination of the following
areas and methods described or listed in Rules 6.3.2.1
through 6.3.2.5. For example, a licensed massage therapist
licensed for the entire licensing period may obtain no more
than six (6) hours of the required twenty-four (24) hours in
any combination of the following areas and methods:
6.3.2.1 Courses in modalities other than
massage/bodywork therapy
6.3.2.2 Personal growth and self-improvement
courses
6.3.2.3 Business and management courses
6.3.2.4 Courses taught by correspondence or
mail
6.3.2.5 Courses taught by video,
teleconferencing, video conferencing or computer
6.4 Board approval.
6.4.1 "Acceptable continuing education" shall
include any continuing education programs meeting the
requirements of Rule 6.3 and offered or approved by the
following organizations:
6.4.1.1 NCBTMB
6.4.1.2 American Massage Therapy
Association
6.4.1.3 Association of Oriental Bodywork
Therapists of America
6.4.1.4 Association of Bodywork and Massage
Practitioners
6.4.1.5 Delaware Nurses Association
6.4.2 Other continuing education programs or
providers may apply for pre-approval of continuing
education hours by submitting a written request to the Board
which includes the program agenda, syllabus and time spent
on each topic, the names and resumes of the presenters and
the number of hours for which approval is requested. The
Board reserves the right to approve less than the number of
hours requested.
6.4.3 Self-directed activity: The Board may, upon
request, review and approve credit for self-directed
activities, including, but not limited to, teaching, research,
preparation and/or presentation of professional papers and
articles. A licensee must obtain pre-approval of the Board
prior to undertaking the self-directed activity in order to
assure continuing education credit for the activity. Any selfdirected
activity submitted for approval must include a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
720 PROPOSED REGULATIONS
written proposal outlining the scope of the activity, the
number of continuing education hours requested, the
anticipated completion date(s), the role of the licensee in the
case of multiple participants (e.g. research) and whether any
part of the self-directed activity has ever been previously
approved or submitted for credit by the same licensee.
6.4.4 The Board may award additional continuing
education credits, on an hour for hour basis, to continuing
education instructors for the first-time preparation and
presentation of an approved continuing education course for
other practitioners, to a maximum of 6 additional hours. (e.g.
an instructor presenting a 8 hour course for the first time may
receive up to 6 additional credit hours for preparation of the
course ). This provision remains subject to the limitations
of Rule 6.3.2.
6.5 Reporting.
6.5.1 For license or certification periods beginning
September 1, 2000 and thereafter, each candidate for
renewal shall submit a summary of their continuing
education hours, along with any supporting documentation
requested by the Board, to the Board on or before May 31 of
the year the license or certification expires. No license or
certification shall be renewed until the Board has approved
the required continuing education hours or granted an
extension of time for reasons of hardship. The Board's
approval of a candidate's continuing education hours in a
particular modality does not constitute approval of the
candidate's competence in, or practice of, that modality.
6.5.2 If a continuing education program has
already been approved by the Board, the candidate for
renewal must demonstrate, at the Board's request, the actual
completion of the continuing education hours by giving the
Board a letter, certificate or other acceptable proof of
attendance provided by the program sponsor.
6.5.3 If a continuing education program has not
already been approved by the Board, the candidate for
renewal must give the Board, at the Board's request, all of
the materials required in Rule 6.4.2 and demonstrate the
actual completion of the continuing education hours by
giving the Board a letter, certificate or other acceptable proof
of attendance provided by the program sponsor.
6.6 Hardship. A candidate for renewal may be granted
an extension of time in which to complete continuing
education hours upon a showing of unusual hardship.
"Hardship" may include, but is not limited to, disability,
illness, extended absence from the jurisdiction and
exceptional family responsibilities. Requests for hardship
consideration must be submitted to the Board in writing prior
to the end of the licensing or certification period for which it
is made. If the Board does not have sufficient time to
consider and approve a request for hardship extension prior
to the expiration of the license, the license will lapse upon
the expiration date and be reinstated upon completion of
continuing education pursuant to the hardship exception.
The licensee may not practice until reinstatement of the
license.
3 DE Reg. 1516 (5/1/00)
7.0 Scope of Practice
Licensed massage/bodywork therapist and certified
massage technicians shall perform only the massage and
bodywork activities and techniques for which they have been
trained as stated in their certificates, diplomas or transcripts
from the school or program of massage therapy where
trained.
8.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
8.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
8.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
8.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
8.4 A regulated professional with chemical dependency
or impairment due to addiction to drugs or alcohol may enter
into the Voluntary Treatment Option and continue to
practice, subject to any limitations on practice the
participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 721
8.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
8.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
8.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
8.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
8.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
8.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary
Treatment Option.
8.6.5 Agreement by the regulated professional that
failure to satisfactorily progress in such treatment program
shall be reported to the participating Board's chairperson or
his/her designate or designates or to the Director of the
Division of Professional Regulation or his/ her designate by
the treating professional who shall be immune from any
liability for such reporting made in good faith and without
malice.
8.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
8.7 The regulated professional's records of participation
in the Voluntary Treatment Option will not reflect
disciplinary action and shall not be considered public records
open to public inspection. However, the participating Board
may consider such records in setting a disciplinary sanction
in any future matter in which the regulated professional's
chemical dependency or impairment is an issue.
8.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
8.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
8.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
8.11 Any person who reports pursuant to this section in
good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
8.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
722 PROPOSED REGULATIONS
PUBLIC SERVICE COMMISSION
Statutory Authority: 26 Delaware Code,
Section 211 (26 Del.C. §211)
IN THE MATTER OF THE |
PROPOSED REVISION OF THE |
RULES AND REGULATIONS | PSC REGULATION
BY THE PUBLIC SERVICE | DOCKET NO. 13
COMMISSION GOVERNING |
MINIMUM STANDARDS FOR |
SERVICE PROVIDED BY |
PUBLIC WATER COMPANIES |
(OPENED MAY 14, 1985; |
REOPENED AUGUST 21, 2001) |
ORDER NO. 5787
AND NOW, to-wit, this 21st day of August, 2001;
WHEREAS, in PSC Order No. 2076 (May 27, 1980)
entered In The Matter of the Proposed Revision of Rules and
Regulations by the Public Service Commission Governing
Minimum Standards for Service Provided by Public Water
Companies ("Minimum Standards"), PSC Regulation
Docket No. 13, the Commission originally adopted
Minimum Standards Governing Service Provided by Public
Water Companies; and
WHEREAS, Standard 4.2.4 of such Minimum
Standards requires public water utilities to ensure the
accuracy of meters by conducting testing procedures on all
meters in service on a specified frequency keyed to the size
of the meter; and
WHEREAS, in October, 2000, United Water Delaware,
Inc. ("United"), filed a request with the Commission for a
waiver of the application of the testing procedures under
Standard 4.2.4 in the context of testing the 32,000 5/8"
meters utilized by United; and
WHEREAS, as part of its application for a waiver,
United proposed undertaking a plan to move completely to
the use of encoder meters (with 12,000 such meters already
and future replacement of 20,000 non-encoder units) for 5/8"
service, and during the contemplated replacement period, to
use a statistical sampling technique (testing of 50 meters
from a 3,000 meter group) to monitor the accuracy of the
non-encoder meters remaining in service and, after
substantial completion of the encoder installations, to then
use a random sampling testing procedure (involving up to 3
tests of each of 100 meters randomly selected from agelinked
groups) to assure accuracy of United's meters; and
WHEREAS, in light of United's submission, the
Commission Staff has recently reviewed the Minimum
Standards and has proposed an amendment to Standard 4.2.4
to allow a public water utility to ensure the accuracy of its
meters by either: (1) conducting periodic tests on meters
under the presently mandated schedule; or (2) conducting
tests on a sampling of meters pursuant to a statistical meter
sampling program submitted by the water utility and
approved by the Commission; and
WHEREAS, the Staff has reviewed United's statistical
meter sampling program and has determined that United's
program is a reasonable one; and
WHEREAS, the Commission is authorized, by 26
Del.C. § 211, to fix, after hearing, just and reasonable rules
and standards to secure the accuracy of meters and like
appliances used by public utilities; and
WHEREAS, the Commission deems it appropriate to
propose an amendment of Standard 4.2.4 of the Minimum
Standards, as offered by its Staff, pursuant to the procedures
for amendment of agency regulations set forth in 29 Del.C.
§§ 10113-10119;
Now, therefore, IT IS HEREBY ORDERED THAT:
1. The Commission proceedings captioned In The
Matter of the Proposed Revision of Rules and
Regulations by the Public Service Commission
Governing Minimum Standards for Service Provided by
Public Water Companies, PSC Regulation Docket No. 13,
are hereby reopened to consider an amendment of the
Minimum Standards Governing Service Provided by Public
Water Companies as originally promulgated in PSC Order
No. 2076.
2. William F. O'Brien is designated as the Hearing
Examiner for this matter pursuant to the terms of 26 Del.C.
§502 and 29 Del.C. §10116, to organize, classify, and
summarize all materials and other testimony filed in this
proceeding, and to make findings and recommendations to
the Commission concerning the proposed amendment on the
basis of the materials and information submitted. Hearing
Examiner O'Brien is specifically authorized to solicit
additional comments and to conduct, upon due notice, one or
more public hearings so as to allow for additional public
comment in order to develop a complete record in this
matter. Francis J. Murphy, Jr., Esquire, is designated as
Staff Counsel for this matter.
3. The Commission solicits public comment and input
concerning the proposed amendment to Standard 4.2.4 of its
Minimum Standards Governing Service Provided by Public
Water Companies, and to comply with the requirements of
29 Del.C. §§ 10113 and 10115, the Commission hereby
issues the Notice of Proposed Rules Amendment attached
hereto as Exhibit "A" for publication in the Register of
Regulations and in two (2) newspapers of general circulation
in the State.
4. Pursuant to 26 Del.C. §211 and 29 Del.C.
§10111 et seq., the Commission hereby proposes a revision
of Standard 4.2.4 of the Minimum Standards Governing
Service Provided by Public Water Companies as set forth in
the form attached hereto as Exhibit "B." Exhibit "B" reflects
the existing Standard 4.2.4 of the Minimum Standards
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 723
Governing Service Provided by Public Water Companies
and the proposed amended Standard 4.2.4.
5. The Secretary shall file the Notice of Proposed
Rules Amendment, together with a copy of the existing text
of Standard 4.2.4 of the Minimum Standards Governing
Service Provided by Public Water Companies and the
proposed amendment thereto, with the Registrar of
Regulations for publication in the Register of Regulations, as
required by 29 Del.C. §10115, on October 1, 2001. In
addition, the Secretary shall, contemporaneous with such
filing, cause the Notice, attached as Exhibit "A," and the
proposed revised Minimum Standards Governing Service
Provided by Public Water Companies, attached as Exhibit
"B," to be sent by United States Mail to: (a) all public water
utilities regulated by the Commission; (b) all persons who
have made timely requests for advance notice of such
proceedings; and (c) the Division of the Public Advocate.
6. The Secretary shall cause the publication of the
Notice of Proposed Rules Amendment attached hereto as
Exhibit "A" to be made in The News Journal and the
Delaware State News newspapers on the following dates, in
two column format, outlined in black:
October 1, 2001 (The News Journal)
October 2, 2001 (Delaware State News)
7. The public water utilities regulated by the
Commission are notified that they may be charged for the
cost of this proceeding under 26 Del.C. §114.
8. The Commission shall forego any enforcement
action under the present Standard 4.2.4 against United Water
Delaware, Inc., during the pendency of this proceeding so
long as United Water Delaware, Inc., adheres to its
Statistical Meter Program as outlined in its submission of
October 11, 2000.
9. The Commission reserves the jurisdiction and
authority to enter such further Orders in this matter as may
be deemed necessary or proper.
10. 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:
Arnetta McRae, Chair
Joshua M. Twilley, Vice Chair
Donald J. Puglisi, Commissioner
Jaymes B. Lester, Commissioner
Joann T. Conaway, Commissioner
ATTEST:
Karen J. Nickerson, Secretary
E X H I B I T "A"
BEFORE THE PUBLIC SERVICE COMMISSION
OF THE STATE OF DELAWARE
IN THE MATTER OF THE |
PROPOSED REVISION OF THE |
RULES AND REGULATIONS | PSC REGULATION
BY THE PUBLIC SERVICE | DOCKET NO. 13
COMMISSION GOVERNING |
MINIMUM STANDARDS FOR |
SERVICE PROVIDED BY |
PUBLIC WATER COMPANIES |
(OPENED MAY 14, 1985; |
REOPENED AUGUST 21, 2001) |
NOTICE OF PUBLIC COMMENT PERIOD AND
PROPOSED AMENDMENT TO THE DELAWARE
PUBLIC SERVICE COMMISSION'S MINIMUM
STANDARDS GOVERNING SERVICE PROVIDED
BY PUBLIC WATER COMPANIES
On August 21, 2001, the Delaware Public Service
Commission ("the Commission") entered an Order
proposing a revision to Standard 4.2.4 of the Commission's
Minimum Standards Governing Service Provided by Public
Water Companies ("Minimum Standards").
Currently, Standard 4.2.4 requires public water utilities
to undertake periodic testing of their meters based on a
schedule linked to the size of the meter. The proposed
amendment will allow a public water utility the alternative to
propose to the Commission a statistical sampling
methodology for testing the accuracy of its meters. If such a
plan is approved by the Commission, the public water utility
could, thereafter, in lieu of testing all meters on a periodic
basis, test a random sampling of particular groups of meters
in order to ascertain the accuracy of its meters. The
Commission has proposed allowing public water utilities this
alternative in light of changes and improvements in the
design and manufacturing of water meters.
The full text of the proposed amendment to Standard
4.2.4 has been filed with the Delaware Registrar of
Regulations for publication in the Register of Regulations.
The full text of the proposed amendment is also available at
the Commission's website located at www.state.de.us/delpsc.
The Commission has authority to promulgate the
regulations pursuant to 26 Del.C. §211 and 29 Del.C.
§10111 et seq.
The Commission hereby solicits written comments,
suggestions, compilations of data, briefs, or other written
materials concerning the proposed amendment to Standard
4.2.4. Twelve (12) copies of such materials shall be filed
with the Commission at its office located at 861 Silver Lake
Boulevard, Cannon Building, Suite 100, Dover, Delaware
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
724 PROPOSED REGULATIONS
19904. All such materials shall be filed with the
Commission on or before October 31, 2001. Persons who
wish to participate in the proceedings, but who do not wish
to file written materials, are asked to send a letter informing
the Commission of their intention to participate. Such letter
must be received on or before October 31, 2001.
In addition, the Commission will conduct a public
hearing on the proposed amendment to Standard 4.2.4 on
Wednesday, November 7, 2001, at the Commission's Dover
office at the address set forth above. Such hearing shall
begin at 10:00 AM. At such hearing, persons may present
comments, evidence, and other materials concerning the
proposed amendment.
ONLY PERSONS WHO SUBMIT COMMENTS,
PARTICIPATE IN THE HEARING, OR FILE A NOTICE
OF INTENT TO PARTICIPATE WILL RECEIVE
NOTICE OF FURTHER PROCEEDINGS IN THIS
MATTER.
The proposed and existing Standard and the materials
submitted in connection therewith are available for public
inspection and copying at the Commission's Dover office
during normal business hours. The fee for copying is $0.25
per page. The proposed amendment is also available for
review on the Commission's website: www.state.de.us/
delpsc.
Any individual with disabilities who wishes to
participate in these proceedings should contact the
Commission to discuss any auxiliary aids or services needed
to facilitate such review or participation. Such contact may
be in person, by writing, telephone (including text telephone
and TRS), or otherwise. The Commission's toll-free
telephone number in Delaware is (800) 282-8574. The
Commission may also be contacted at (302) 739-4333
(including text telephone). Inquiries can also be sent by
Internet e-mail to connie.mcdowell@state.de.us.
E X H I B I T "B"
BEFORE THE PUBLIC SERVICE COMMISSION
OF THE STATE OF DELAWARE
IN THE MATTER OF THE |
PROPOSED REVISION OF THE |
RULES AND REGULATIONS | PSC REGULATION
BY THE PUBLIC SERVICE | DOCKET NO. 13
COMMISSION GOVERNING |
MINIMUM STANDARDS FOR |
SERVICE PROVIDED BY |
PUBLIC WATER COMPANIES |
(OPENED MAY 14, 1985; |
REOPENED AUGUST 21, 2001) |
4.2.4 Meter Testing. Each utility shall make
periodic tests of meters to assure their accuracy. The
periodic test interval shall not be longer than provided in the
following schedule: Each utility shall have in place, and
implement, a program for the testing of its meters to ensure
their accuracy. Such program shall consist of either:
(a) The periodic testing of meters at intervals no
longer than provided in the following schedule:
(1) 5/8 inch and 3/4 inch:
Once every 15 years
(2) 1 inch and 1-1/2 inch:
Once every 10 years
(3) 2 inch, 3 inch, and 4 inch:
Once every 3 years
(4) 6 inches and larger: Once every year
or
(b) The periodic testing of a random sampling of
particularly-grouped meters under a meter testing plan
submitted by the utility and specifically approved by the
Commission. Such a plan may apply to the testing of all
sizes of meters or meters of a particular size. The sampling
procedures in any such plan shall be sufficient to ensure
confidence in the accuracy of the meters included in the
group represented by the sample. With such plan, the utility
shall submit sufficient information and data to establish the
ability of the sampling procedure to establish the accuracy of
the utility's meters. The results of testing under any such
approved plan shall be available to the Commission.
DEPARTMENT OF EDUCATION
Statutory Authority: 14 Delaware Code,
Section 122(a) (14 Del.C. 122(a))
EDUCATIONAL IMPACT ANALYSIS PURSUANT
TO 14 DEL.C. SECTION 122(d)
103 SCHOOL ACCOUNTABILITY FOR ACADEMIC
PERFORMANCE
A. TYPE OF REGULATORY ACTION REQUESTED
Amendment to Existing Regulation
B. SYNOPSIS OF SUBJECT MATTER OF
REGULATION
The Secretary of Education seeks the approval of the
State Board of Education to amend regulation 103 School
Accountability for Academic Performance. The amendments
are necessary to bring the regulation in line with the changes
in the statute as per H.B. 220. Three new sections were
added, 4.0 Performance Classifications, 5.0 School Review
Process and 6.0 Appeals Process and in sections 2.3.2, 2.4
and 3.0 the word "accreditation" was changed to the word
"performance".
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 725
C. IMPACT CRITERIA
1. Will the amended regulation help improve student
achievement as measured against state achievement
standards? The amended regulation addresses school
accountability and it is based on the results of the Delaware
Student Testing Program. The DSTP is designed to assist in
approving student achievement.
2. Will the amended regulation help ensure that all
students receive an equitable education? The amended
regulation addresses school accountability not equity issues.
3. Will the amended regulation help to ensure that all
students' health and safety are adequately protected? The
amended regulation addresses school accountability not
health and safety issues.
4. Will the amended regulation help to ensure that all
students' legal rights are respected? The amended regulation
addresses school accountability not legal rights issues.
5 Will the amended regulation preserve the necessary
authority and flexibility of decision makers at the local board
and school level? The amended regulation will preserve the
necessary authority and flexibility of decision makers at the
local board and school level.
6. Will the amended regulation place unnecessary
reporting or administrative requirements or mandates upon
decision makers at the local board and school levels? The
amended regulation will not place unnecessary reporting or
administrative requirements or mandates upon decision
makers at the local board and school levels
7. Will decision making authority and accountability
for addressing the subject to be regulated be placed in the
same entity? The decision making authority and
accountability for addressing the subject to be regulated will
remain in the same entity
8. Will the amended regulation be consistent with and
not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies? The amended regulation will be consistent with and
not an impediment to the implementation of other state
educational policies, in particular to state educational
policies addressing achievement in the core academic
subjects of mathematics, science, language arts and social
studies.
9. Is there a less burdensome method for addressing
the purpose of the amended regulation? The amendments to
the statute require that the regulation also be amended.
10. What is the cost to the state and to the local school
boards of compliance with the amended regulation? The
legislature has provided funding for the implementation of
school accountability.
103 School Accountability for Academic Performance
1.0 Accountability School: The school to which a student's
performance is assigned shall be the Accountability School.
Except as defined in sections 1.1 to 1.3 the Accountability
School shall be the school that provided the majority of
instructional services to that student in a given school year so
long as the student was enrolled in the school for more than
530 school hours or more than 90 school days. No student
shall have his/her performance assigned to more than one
Accountability School in a given school year.
1.1 Except as in section 1.1.1, for students enrolled in
an intra-district intensive learning center or intra-district
special school or program operating within one or more
existing school facilities the school facility in which the
student is served shall be the Accountability School.
1.1.1 If in such a program the number of
students included in a School Composite Score would be
greater than or equal to 30 a school district may elect to
define the program as an Accountability School.
1.1.2 Within 30 days of request by the Secretary
of Education school districts shall inform the Secretary of
Education in writing of any Accountability Schools they
elect to define pursuant to section 1.1.1. Such definitions
may not be changed for four measurement cycles.
1.2 For students enrolled in inter-district special
schools or programs that have an agreement to serve students
from multiple school districts that school or program shall be
the Accountability School provided the number of students
included in the School Composite Score is greater than or
equal to 30.
1.2.1 If in such a school or program the number
of students included in a School Composite Score is less than
30 the student scores shall be assigned to the Accountability
School the student would have been assigned to if an
Individual Education Program was not in place.
1.3 For students enrolled in alternative school programs
pursuant to 14 Del.C., Chapter 16, or the Delaware
Adolescent Program the Accountability School shall be the
school that assigned them to the program. For the purposes
of this chapter the time the students were enrolled in the
alternative or transitional program shall be credited to the
Accountability School.
2.0 Composite Score: A School Composite Score for each
Accountability School shall be created utilizing the formula
found in 14 Del. C., Section 154(b)(1).
2.1 The School Composite Score shall include the
collective performance of all students in each Standards
Cluster as defined in section 2.6 and 2.7 below on the
assessments administered pursuant to 14 Del.C., Section 151
(b) and (c).
2.1.1 For students who take a portion of the
assessment more than once within a measurement cycle, the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
726 PROPOSED REGULATIONS
best test score except re-tests by 12th grade students shall be
included in the School Composite Score.
2.1.2 For school accountability purposes a
student not assessed either pursuant to 14 Del.C., Section
151 (b) and (c) or not assessed with alternate assessments
approved by the Department of Education shall be assigned
to Performance Level 0, and such score shall be assigned to
the school that failed to assess the student.
2.1.3 Except for students who participate in outof-
level testing, students who test with non-aggregable
conditions as defined in the Department of Education's
Guidelines for the Inclusion of Students with Disabilities and
Students with Limited English Proficiency shall have her/his
performance level included in the School Composite Score.
2.1.4 For school accountability purposes a
student who tests but does not meet attemptedness rules as
defined in the Department of Education's Scoring
Specifications, who participates in out-of-level testing or
otherwise receives an invalid score shall be assigned to
Performance Level 1.
2.1.5 A student participating in alternate
assessments shall have her/his performance level included in
the School Composite Score.
2.2 Schools with more than one tested grade shall
receive a single School Composite Score determined by
aggregating the performance levels of students who score at
each performance level in each tested grade.
2.3 Baselines for Accountability Schools shall be
determined using two years of their students' performance,
beginning with the Accountability School's first two
administrations of the Delaware Student Testing Program.
New School Composite Scores shall be established each two
years thereafter.
2.3.1 Prior to 2003 reading, writing and
mathematics results shall be utilized to determine School
Composite Scores.
2.3.2 In 2003 two School Composite Scores
shall be calculated. The School Composite Score used to
determine accreditation performance shall include reading,
writing and mathematics results. The School Composite
Score used as the school's new baseline shall include
reading, writing, mathematics, science and social studies
results.
2.3.3 After 2003 reading, writing, mathematics,
science and social studies results shall be utilized to
determine all School Composite Scores.
2.4 Schools shall be evaluated for accreditation
performance by comparing their performance on the three
measures defined in section 3.0 over a measurement cycle.
2.5 Student performance in a tested grade shall be
apportioned in equal weights to each grade in a Standards
Cluster, except that Kindergarten shall be weighted at 10%.
2.6 Prior to the inclusion of science and social studies
results in the School Composite Score the weights assigned
to each subject shall be 40% for reading, 40% for
mathematics and 20% for writing.
2.6.1 Standards Clusters shall be defined as
follows:
Standards Cluster Spring Assessments, Calendar
Year A
Grades K-3 Grade 3 ading. writing,
mathematics
Grades 4-5 Grade 5 ading. writing,
mathematics
Grades 6-8 Grade 8 ading, writing,
mathematics
Grades 9-10 Grade 10 reading, writing,
mathematics
re
re
re
2.7 When science and social studies results are
included in the School Composite Score, the weights
assigned to each subject shall be as follows:
2.7.1 For assessments in grades 3 through grade
6: 35% for reading, 35% for mathematics, 10% for writing,
10% for science and 10% for social studies.
2.7.2 For assessments in grades 8 through grade
11: 20% for reading, 20% for mathematics, 20% for writing,
20% for science and 20% for social studies.
2.7.3 Standards Clusters shall be defined as
follows:
Standards
Cluster
Spring Assessments,
Calendar Year A
Fall Assessments,
Calendar Year A
Grades K-3 Grade 3 reading.
writing, mathematics
Grade science,
social studies
Grades 4-5 Grade 5 reading.
writing, mathematics
Grade science,
social studies
Grades 6-8 Grade 8 reading,
writing, mathematics,
science, social studies
Grades 9-10 Grade 10 ading,
writing, mathematics
Grades 9-11 Grade 1 science,
social studies
4
6
re
1
3.0 Performance Criteria: The Department of Education
shall determine the accreditation performance status of a
school by utilizing three measures of performance.
3.1 Absolute Performance: The Absolute Performance
of the school's student body on the assessments administered
pursuant to 14 Del.C., Section 151 (b) and (c) measured
using the School Composite Score. Target School
Composite Scores shall be determined by the Department of
Education with the consent of the State Board of Education.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 727
3.2 Improvement Performance: The school's
record in improving its School Composite Score over a
measurement cycle by an amount determined by the
Department of Education with the consent of the State Board
of Education.
3.2.1 The expected improvement for a given
school shall be the difference between the school's current
composite score and a target School Composite Score that all
schools are expected to achieve divided by the number of
measurement cycles the school has to reach the target School
Composite Score.
3.2.2 For schools that have already met the
target School Composite Score, a higher target shall be
established. Target School Composite Scores and time
periods shall be determined by the Department of Education
with the consent of the State Board of Education.
3.3 Distributional Performance: The school's record in
improving the performance of low achieving students over a
measurement cycle by an amount determined by the
Department of Education with the consent of the State Board
of Education.
3.3.1 The expected Distributional Performance
for a given school shall be a specified decrease in the
percentage of students performing below the standard (those
in levels 0, 1, and 2) in tested content areas while the
percentage of students in Level 0 and the percentage of
students in Level 1 in tested content areas do not increase by
a targeted amount.
3.3.1.1 All regulations utilized to calculate
school composite scores pursuant to 2.0 shall also apply to
calculate distributional performance.
3.3.2 An Accountability School that has no
change in the percentage of students performing below the
standard or reduces that percentage by less than the target
shall be assessed by whether the Distributional Composite
Score, calculated by including only those students who have
not met the standard, increases by a targeted amount.
Distributional Targets shall be determined by the
Department of Education with the consent of the State Board
of Education.
4.0 Accreditation: RESERVED.
Performance Classifications: Schools shall be rated by
the Department of Education based on their collective
performance on the three specific measures of performance
described in section 3.0. The performance classification of
each school shall be reported in School Profiles.
4.1 Superior Performance: A school's performance is
deemed excellent. Schools in this category shall have met or
exceeded performance targets as determined by the
Department of Education with the consent of the State Board
of Education.
4.2 Commendable Performance: A school's
performance is deemed acceptable. Schools in this category
shall have met sufficient performance targets as determined
by the Department of Education with the consent of the State
Board of Education.
4.3 Under School Improvement: A school's
performance is deemed as needing improvement. Schools in
this category have not met sufficient performance targets as
determined by the Department of Education with the consent
of the State Board of Education. Schools initially classified
in this category shall be evaluated using a School Review
Process pursuant to section 5.0 below. Following a final
classification of a school as Under School Improvement the
school shall be required to undertake improvement and
accountability activities as defined in 14 Del.C., Section
154(d)(2).
4.4 Unsatisfactory Performance: A school's
performance is deemed as unacceptable. Schools Under
School Improvement who after two years have not met
sufficient performance targets as determined by the
Department of Education with the consent of the State Board
of Education shall be classified as Unsatisfactory. Schools
in this category shall be required to undertake improvement
and accountability activities as defined in 14 Del.C., Section
154(d)(3).
4.5 Schools required to develop a school improvement
plan pursuant to 14 Del.C., Section 154(d)(2) and (3) shall
include specific strategies to improve the performance of
students in each low performing sub-population as defined
by the Department of Education.
5.0 Appeals process: RESERVED.
5.0 School Review Process: Schools classified as Under
School Improvement shall be evaluated by a School Review
Team.
5.1 The purpose of the evaluation is to determine
whether additional evidence of school performance
demonstrates that a school should be reclassified as
Commendable.
5.2 For each school subject to review, the School
Review Team shall consist of two representatives of the
Department of Education and two educators from Delaware
public schools, and may include educators who have retired
within the previous five years. Each team shall be chaired
by a representative of the Department of Education. All
School Review Team members shall be appointed by the
Secretary of Education.
5.3 Schools subject to review shall provide the
Department of Education with evidence of school
performance in a form acceptable to the Department. Such
evidence, along with school performance data available to
the Department of Education, shall provide the basis for the
evaluation of the school's performance.
5.4 Criteria used to evaluate other evidence of school
performance shall include at a minimum:
5.4.1 Curriculum aligned to state content
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
728 PROPOSED REGULATIONS
standards and assessments aligned to curriculum and
standards.
5.4.2 Instruction aligned to the curriculum and
teaching strategies selected based on student needs.
5.4.3 School community collaborations that
support high standards of student achievement and behavior
for all students.
5.4.4 The use of data to improve instruction for
all students.
5.4.5 Development and maintenance of a
climate in the school that supports high achievement.
5.4.6 Development and implementation by
school community of a comprehensive plan to address all
students' needs.
5.4.7 Professional development opportunities
that support the acquisition of new knowledge and the
transference of skills to classroom practices.
5.4.8 Resources identified and used effectively
to support best educational practices.
5.5 The School Review Team shall evaluate evidence
of school performance with respect to the criteria in section
5.4 above using a scoring process approved by the
Department of Education. A target score shall determine
whether a school should receive a site visit or shall remain
classified as Under School Improvement. Target scores for
site visits shall be determined by the Department of
Education with the consent of the State Board of Education.
No school with a score below the target shall receive a site
visit or be reclassified.
5.5.1 Schools that are designated to receive a
site visit shall have the option of declining such a visit. No
school shall receive a recommendation to be reclassified to
Commendable without a site visit by a School Review Team.
The district in which the school is located shall have five
working days to notify the Secretary of Education in writing
if they do not wish to receive a site visit. Charter schools
shall have five working days to notify the Secretary of
Education in writing if they do not wish to receive a site
visit. All schools that decline a site visit shall remain
classified as Under School Improvement.
5.6 Following any site visits the School Review Team
shall recommend to the Secretary of Education whether a
school shall remain Under School Improvement or whether
additional evidence exists to reclassify the school to
Commendable Performance. Target scores used as the basis
for such recommendations shall be determined by the
Department of Education with the consent of the State Board
of Education.
5.6.1 Upon such a recommendation the
Secretary of Education may reclassify a school to
Commendable Performance subject to the consent of the
State Board of Education.
6.0 Appeals Process: A school may appeal its
performance classification as follows.
6.1 The school must file a written notice of appeal with
the Secretary no later than 30 days after receiving written
notification of its performance classification. The notice of
appeal shall state with specificity the grounds for the appeal,
and shall be signed by the principal of the school and the
superintendent of the district that has authority over the
school.
6.2 Upon receipt of a satisfactory form of notice of
appeal, the Secretary will decide whether to hear the appeal
or assign it to a hearing officer.
6.3 The Secretary or hearing officer, as the case may
be, will establish a date upon which the appeal will be heard.
The school shall be given not less than 20 days notice of the
hearing date. A written position statement, legal brief or
memorandum in support of its appeal shall be filed by the
school with the Secretary or hearing officer no later than 10
days prior to the hearing date. Any written statement must
clearly identify the issues raised in the appeal. Briefs or
legal memoranda shall be submitted with the written
statement if the appeal is based upon a legal issue or
interpretation.
6.4 A school challenging its classification must prove
by clear and convincing evidence that the classification
assigned to it by the department was contrary to law or
regulations, was not supported by substantial evidence, or
was arbitrary or capricious, or should be changed because of
other extraordinary mitigating circumstances beyond the
school's control.
6.5 If the appeal has been assigned to a hearing officer,
the hearing officer will issue a recommended decision to the
Secretary in the form of a Proposed Order. The Secretary
will not conduct any further hearings on the matter, but will
issue a final decision within 30 days thereafter.
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
DELAWARE STATE LOTTERY OFFICE
Statutory Authority: 29 Delaware Code,
Section 4805(a) (29 Del.C. §4805(a))
The Delaware Lottery Office proposes to amend Video
Lottery Regulations 5.2.1(2), 7.2, 7.3, and 14.7. The Lottery
proposes to amend the Regulations as follows:
5.2.1 All contracts with technology providers who
are video lottery machine manufacturers shall
include without limitations, provisions to the
following effect:
...
(2)The technology provider shall submit video
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 729
lottery machine illustrations, schematics, block
diagrams, circuit analysis, technical and operation
manuals, program source code and object code and
any other information requested by the Director for
purposes of analyzing and testing the video lottery
machines. A maximum of twenty-five ($25) onehundred
($100) shall be permitted for wagering on
a single play of any video game.
7.2 Video games shall be based on bills, coins,
tokens, or credits, worth between $.05 and $25.00
$100.00 each, in conformity with approved
business plans as amended.
7.3 The Director, in his or her discretion, may
authorize extended play features from time to time
to which the maximum wager limit of $25.00
$100.00 shall not apply
14.7 The Lottery shall communicate the results of
the determination of suitability in writing, to the
license applicant or licensee within thirty (30) days
of receipt of the criminal history information,
unless extenuating circumstances require a longer
period. If a determination is made to deny a person
licensure, the person shall have an opportunity to
appeal for reconsideration as set out below:
(1) Appeal shall be initiated by a person
notified that he/she is being denied a license
pursuant to 29 Del. C. §4807A and Video Lottery
Regulation 13.3 by submitting a request for a
hearing to the Director within ten (10) working
days of the receipt of the written notice.
(2) The appeal shall be reviewed by the Lottery
Director and the person shall be given the right to
be heard by the Director or the Director's designee
within thirty (30) working days of the receipt of the
letter of appeal, unless extenuating circumstances
require a longer period. Any hearing will be
pursuant to the procedures in the Video Lottery
Regulations 13.5-13.11, whichever is applicable.
(3) A written decision shall be rendered by the
Director or the Director's designee within thirty
(30) working days of the hearing unless extenuating
circumstances require a longer period. All
decisions made by the Lottery under this appeal
procedure are final.
(4) A person determined to be unsuitable for
licensure pursuant to these Regulations shall be
prohibited from reapplying for licensure for a
period of twelve (12) months.
The Lottery proposes these Regulation amendments
pursuant to 29 Del.C. §4805(a). The Lottery will accept
written comments from October 1, 2001 through October 31,
2001. The Lottery will hold a public hearing on the
proposed amendments on October 22, 2001 at 10:00 a.m. at
the Lottery Office, Second Floor Conference Room, 1575
McKee Road, Suite 102, Dover, DE 19904-1903. Written
comments should be submitted to the Lottery at the above
address and noted to the attention of Lottery Director Wayne
Lemons.
5.0 Technology Providers: Contracts; Requirements;
Duties
5.1. The Director shall, pursuant to the procedures set
forth in chapter 69 of title 29 of the Delaware Code enter into
contracts with licensed technology providers as he or she
shall determine to be appropriate, pursuant to which the
technology providers shall furnish by sale or lease to the
State video lottery machines in such numbers and for such
video games as the Director shall approve from time to time
as necessary for the efficient and economical operation of
the lottery, or convenience of the players, and in accordance
with the agents' business plans as approved and amended by
the Director. No single technology provider shall supply
more than 65% of the total number of video lottery machines
at the premises of any agent. No more than 1,000 video
lottery machines shall be located within the confines of an
agent's premises unless the Director approves up to an
additional 1,000 machines or other number approved by the
Director as permitted by law.
5.2.1 All contracts with technology providers who are
video lottery machine manufacturers shall include without
limitation, provisions to the following effect:
(1) The technology provider shall furnish a person
to work with the agency and its consultants to provide
assistance as needed in establishing, planning and executing
acceptance tests on the video lottery machines provided by
such technology provider. Technology provider assistance
shall be provided as requested by the agency in
troubleshooting communication and technical problems that
are discovered when video lottery machines are initially
placed at the agent's site;
(2) The technology provider shall submit video
lottery machine illustrations, schematics, block diagrams,
circuit analysis, technical and operation manuals, program
source code and object code and any other information
requested by the Director for purposes of analyzing and
testing the video lottery machines. A maximum of twenty
five dollars ($25) one-hundred ($100) shall be permitted for
wagering on a single play of any video game;
(3) For testing, examination and analysis purposes,
the technology provider shall furnish working models of
video lottery machines, associated equipment, and
documentation at locations designated by the Director. The
technology provider shall pay all costs of any testing,
examination, analysis and transportation of the video lottery
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
730 PROPOSED REGULATIONS
machines, which may include the entire dismantling of the
machines and some tests that may result in damage or
destruction to one or more electronic components of the
machines. The agency and its agents shall have no liability
for any damage or destruction. The agency may require that
the technology provider provide specialized equipment or
the agency may employ the services of an independent
technical laboratory expert to test the video lottery machine
at the technology provider's expense;
(4) Technology providers shall submit all
hardware, software, and test equipment necessary for testing
of their video lottery machines and shall provide the Director
with keys and locks subject to the Director's specifications
for each approved video lottery machine;
(5) The EPROMs of each video lottery machine
shall be certified to be in compliance with published
specifications;
(6) No video lottery machine shall be put into use
prior to certification of its model by the Director;
5.2.2 All contracts with technology providers shall
include without limitation, provisions to the following
effect:
(1) Technology providers shall agree to promptly
report any violation or any facts or circumstances that may
result in a violation of these rules; provide immediate access
to all its records and its physical premises for inspection at
the request of the Director; attend all trade shows or
conferences as required by the Director;
(2) Technology providers shall agree to modify
their hardware and software as necessary to accommodate
video game changes directed by the agency from time to
time;
(3) Technology providers shall provide such bonds
and provide evidence of such insurance as the Director shall
require from time to time and in such amounts and issued by
such companies as the Director shall approve; and
(4) Technology providers shall have a valid license
to conduct business in the State of Delaware, shall comply
with all applicable tax provisions, and shall in all other
respects be qualified to conduct business in Delaware.
5.3 Each video lottery machine certified by the
Director shall bear a decal and shall conform to the exact
specifications of the video lottery machine model tested and
certified by the Director.
5.4 No video lottery machine may be transported
out of the State until the decal has been removed and no
decal shall be removed from a video lottery machine without
prior agency approval.
5.5 Technology providers shall hold harmless the
agency, the State of Delaware, and their respective
employees for any claims, loss, cost, damage, liability or
expense, including, without limitation, legal expense arising
out of any hardware or software malfunction resulting in the
wrongful award or denial of credits or cash.
5.6 A technology provider shall not distribute a
video lottery machine for placement in the state unless the
video lottery machine has been approved by the agency.
Only licensed technology providers may apply for approval
of a video lottery machine or associated equipment. The
technology provider shall submit two copies of video lottery
machine illustrations, schematics, block diagrams, circuit
analysis, technical and operation manuals, program source
code and object code, and any other information requested
by the agency for purposes of analyzing and testing the video
lottery machine or associated equipment.
5.7 The agency may require that two working
models of a video lottery machine be transported to the
location designated by the agency for testing, examination,
and analysis. The technology provider shall pay all costs of
testing, examination, analysis and transportation of
such video lottery machine models, which may include the
entire dismantling of the video lottery machine and tests
which may result in damage or destruction to one or more
electronic components of such video lottery machine model.
The agency may require that the technology provider
provide specialized equipment or the services of an
independent technical expert in testing the terminal.
5.8 After each test has been completed, the agency
shall provide the video lottery machine technology provider
with a report that contains findings, conclusions, and pass/
fail results. Prior to approving a particular video lottery
machine model, the agency may require a trial period not in
excess of sixty (60) days for a licensed agent to test the video
lottery machine. During the trial period, the technology
provider may not make any modifications to the video
lottery machine model unless such modifications are
approved by the agency.
5.9 The technology provider is responsible for the
assembly and initial operation, in the manner approved and
licensed by the agency, of all its video lottery machines and
associated equipment. The technology provider may not
change the assembly or operational functions of any of its
video lottery machines approved for placement in Delaware
unless a "request for modification to an existing video lottery
machine prototype" is made to the agency, that request to
contain all appropriate information relating to the type of
change, reason for change, and all documentation required.
The agency must approve such request prior to any changes
being made, and the agency shall reserve the right to require
second testing of video lottery machines after modifications
have been made.
5.10 Each video lottery machine approved for
placement in a licensed agent's place of business shall
conform to the exact specifications of the video lottery
machine prototype tested and approved by the agency. Any
video lottery machine which does not so conform shall be
disconnected from the Delaware video lottery system until
compliance has been achieved. Each video lottery machine
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 731
shall at all times operate and be placed in accordance with
the provisions of these regulations.
5.11 The following duties are required of all
licensed technology providers, without limitation:
(1) Manufacture terminals and associated
equipment for placement in Delaware in accordance with the
specifications of the agency.
(2) Manufacture terminals and associated
equipment to ensure timely delivery to licensed Delaware
agents.
(3) Maintain and provide an inventory of
associated equipment to assure the timely repair and
continued, approved operation and play of licensed video
lottery machines acquired under the contract for placement
in Delaware.
(4) Provide an appropriate number of service
technicians with the appropriate technical knowledge and
training to provide for the service and repair of its licensed
video lottery machines and associated equipment so as to
assure the continued, approved operation and play of those
licensed video lottery machines acquired under contract for
placement in Delaware.
(5) Obtain any certification of compliance required
under the applicable provisions of rules adopted by the
Federal Communications Commission.
(6) Promptly report to the agency any violation or
any facts or circumstances that may result in a violation of
State or Federal law and/or any rules or regulations adopted
pursuant thereto.
(7) Conduct video lottery operations in a manner
that does not pose a threat to the public health, safety, or
welfare of the citizens of Delaware, or reflect adversely on
the security or integrity of the video lottery.
(8) Hold the agency and the State of Delaware and
its employees harmless from any and all claims that may be
made against the agency, the State of Delaware, or the
employees of either, arising from the technology provider's
participation in or the operation of a video lottery game.
(9) Defend and pay for the defense of all claims
that may be made against the agency, the State of Delaware,
or the employees of either, arising from the technology
provider's participation in video lottery operations.
(10) Maintain all required records.
(11) Lease or sell only those licensed video
lottery machines, validation units and associated equipment
approved under these regulations.
(12) It shall be the continuing duty of the
technology provider licensee to provide the Director with an
updated list of the names and addresses of all its employees
who are involved in the daily operation of the video lottery
machines. These employees will include individuals or
their supervisors involved with (1) the repair or maintenance
of the video lottery machines, or (2) positions that provide
direct access to the video lottery machines. It shall be the
continuing duty of the technology provider licensee to
provide for the bonding of each of these individuals to
ensure against financial loss resulting from wrongful acts on
their parts.
(13) It shall be the ongoing duty of the
technology provider licensee to notify the Director of any
change in officers, partners, directors, key employees, video
lottery operations employees, or owners. These individuals
shall also be subject to a background investigation. The
failure of any of the above-mentioned individuals to satisfy a
background investigation may constitute "cause" for the
suspension or revocation of the technology provider's
license.
(14) Provide the agents with the technical
ability to distribute the proceeds of the video lottery in
accordance with the requirements of these regulations and 29
Del. C. chapter 48.
(15) Supervise its employees and their
activities to ensure compliance with these rules.
(16) Promptly report to the Lottery any
violation or any facts or circumstances that may result in a
violation of State or Federal law and/or any rules or
regulations pursuant thereto, excluding violations
concerning motor vechile laws.
(17) Comply with such other requirements as
shall be specified by the Director.
7.0 Game Requirements
7.1 The Director shall authorize such video games
to be played on the agent's premises in conformity with
approved business plans, as amended.
7.2 Video games shall be based on bills, coins,
tokens or credits, worth between $.05 and $25.00 $100.00
each, in conformity with approved business plans as
amended.
7.3 The Director, in his or her discretion, may
authorize extended play features from time to time to which
the maximum wager limit of $25.00 $100.00 shall not apply.
7.4 Each video game shall display the amount
wagered and the amount awarded for each possible winning
occurrence based on the number of credits wagered.
7.5 Each video game shall provide a method for
players to view payout tables.
7.6 Each player shall be at least twenty-one (21)
years of age. In the event an underage player attempts to
claim a prize, the video lottery agent should treat the play of
the game as void and the underage player shall not be
entitled to any prize won or a refund of amounts bet.
7.7 Agents shall redeem credit slips or tokens
presented by a player in accordance with procedures
proposed by the agent and approved by the Director prior to
the opening of the premises for video game play. Such
procedures shall be modified at the direction of the Director
in his or her sole discretion at any time. Nothing in this
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
732 PROPOSED REGULATIONS
subsection (7.7) shall prohibit the use of coin-in/coin-out
machines.
7.8 Credit slips may be redeemed by a player at the
designated place on the premises where the video game
issuing the credit slip is located during the one hundred and
eighty (180) day redeeming period commencing on the date
the credit slip was issued.
7.9 No credit slip shall be redeemed more than one
(1) year from the date of issuance. No jackpot from a coinin/
coin-out machine shall be redeemed more than one (1)
year from the date on which the jackpot occurred. Funds
reserved for the payment of a credit slip or expired
unclaimed jackpot shall be treated as net proceeds if
unredeemed one (1) year from the date of issuance of the
credit slip or occurrence of the winning jackpot. The one (1)
year redemption policy in this regulation shall be
prominently displayed on the premises of the video lottery
agent.
7.10 No payment for credits awarded on a video
lottery machine may be made unless the credit slip meets the
following requirements:
(1) It is presented on a fully legible, valid,
printed credit slip on paper approved by the agency,
containing the information as required;
(2) It is not mutilated, altered, unreadable, or
tampered with in any manner, or previously paid;
(3) It is not counterfeit in whole or in part; and
(4) It is presented by a person authorized to
play.
7.11 Method of Payment - The management of
each licensed agent shall designate employees authorized to
redeem credit slips during the hours of operation. Credits
shall be immediately paid in cash or by check when a player
presents a credit slip for payment meeting the requirements
of this section. No credits may be paid in tokens, chips or
merchandise.
7.12 Restrictions on Payment - Agents may only
redeem credit slips for credits awarded on video lottery
machines located on its premises. The agency and the State
of Delaware are not liable for the payment of any credits on
any credit slips.
7.13 Redeemed Tickets Defaced - All credit slips
redeemed by a licensed agent shall be marked or defaced in a
manner that prevents any subsequent presentment and
payment.
7.14 Liability for Malfunction - The agency and
the State of Delaware are not responsible for any video
lottery machine malfunction or for any error by the agent
that causes credit to be wrongfully awarded or denied to
players.
7.15 Video lottery machines shall not be operated or
available for play on Christmas, Easter, or between the hours
of 2:00 a.m. and 1:00 p.m. on Sundays, or between the hours
of 2:00 a.m. and 8:00 a.m. on any day other than Sunday.
14.0 Fingerprinting Procedure
14.1 The license applicant, licensee, or video lottery
agent or technology provider employee will contact the State
Bureau of Identification or the Delaware State Police Video
Lottery Enforcement Unit to make arrangements for
fingerprint processing.
14.2 A fee is required to be paid for state and federal
processing of fingerprint cards and criminal history cards
and criminal history records. The fee is set by the State
Bureau of Identification and payment is to be made directly
to that agency.
14.3 Applicants must complete fingerprint cards
with the necessary personal information to sign the waiver
form to release criminal history to the Director or the Video
Lottery Enforcement Unit. At the time of the processing, the
applicant must show proof of identification to complete the
criminal history request.
14.4 Certified copies of the criminal history record
will be forwarded to the Director of the Lottery or the Video
Lottery Enforcement Unit. The Lottery Director or Video
Lottery Enforcement Unit will forward copies of the
criminal history to license applicants or licensees. For
employees of video lottery agents or technology providers,
the Director or the Video Lottery Enforcement Unit will
forward copies of the employee's criminal history to the
employer's designated contact person upon request.
14.5 The State Bureau of Identification shall act as
the intermediary for the receipt of the federal criminal
history record checks performed by the Federal Bureau of
Identification. The State Bureau of Identification shall
forward the results of these federal record checks to the
attention of the Lottery Director and/or the Video Lottery
Enforcement Unit in a confidential manner.
14.6 A person subject to 29 Del. C. §4807A shall
have the opportunity to respond to the Lottery Director
regarding any information obtained prior to a determination
of suitability for licensure. Such a response shall be made
within ten (10) working days of the person's receipt of the
criminal background information from the State Bureau of
Identification.
The determination of suitability for licensure shall
be made by the Lottery pursuant to the factors listed in 29
Del. C. §4807A regarding an applicant's criminal history.
The Lottery will also consider the factors contained in 29
Del. C. chapter 48 and these Video Lottery Regulations in
considering applications for licensure. The Lottery will
consider the truthfulness of the applicant, licensee, or
employee in disclosing their criminal history. Under 29 Del.
C. §4805(a)(16)(17), the Lottery Director shall consider the
background of key employees or video lottery operations
employees in order to determine if the person's reputation,
habits, and associations pose a threat to the public interest of
the State or to the reputation of or effective regulation and
control of the video lottery. It is specifically provided,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 733
pursuant to 29 Del. C. §4805(a)(16)(17), that any person
convicted of any felony, a crime involving gambling, or a
crime of moral turpitude within ten (10) years prior to
applying for a license or at any time thereafter shall be
deemed unfit. The Director may determine whether the
licensing standards of another state are comprehensive,
thorough and provide similar adequate safeguards and, if so,
may in the Director's discretion, license an applicant already
licensed in such state without the necessity of a full
application and background check. The Delaware State
Police shall conduct the security, fitness, and background
checks required by §4805(a)(16)(17) and the Video Lottery
Regulations.
14.7 The Lottery shall communicate the results of
the determination of suitability in writing, to the license
applicant or licensee within thirty (30) days of receipt of the
criminal history information, unless extenuating
circumstances require a longer period. If a determination is
made to deny a person licensure, the person shall have an
opportunity to appeal for reconsideration as set out below.
(1) Appeal shall be initiated by a person notified
that he/she is being denied a license pursuant to 29 Del. C.
§4807A and Video Lottery Regulation 13.3 by submitting a
request for a hearing to the Director within ten (10) working
days of the receipt of the written notice.
(2) The appeal shall be reviewed by the Lottery
Director and the person shall be given the right to be heard
by the Director or the Director's designee within thirty (30)
working days of the receipt of the letter of appeal, unless
extenuating circumstances require a longer period. Any
hearing will be pursuant to the procedures in the Video
Lottery Regulations 13.5-13.11, whichever is applicable.
(3) A written decision shall be rendered by the
Director or the Director's designee within thirty (30)
working days of the hearing unless extenuating
circumstances require a longer period. All decisions made
by the Lottery under this appeal procedure are final.
(4) A person determined to be unsuitable for
licensure pursuant to these Regulations shall be prohibited
from reapplying for licensure for a period of twelve (12)
months.
14.8 The Lottery or the Video Lottery Enforcement
Unit will communicate the results of suitability in writing
regarding an employee to either the video lottery agent or
technology provider employing said individual. The Lottery
will provide a copy of the criminal history record to the
employee upon request.
14.9 All records pertaining to criminal background
checks, pursuant to 29 Del. C. §4807A and copies of
suitability determinations of applicants for licensure, shall be
maintained in a confidential manner, including, but not
limited to the following:
(1) Access to criminal background check
records, and letters of reference accompanying out-of-state
criminal background checks, and determinations of
suitability of applicants shall be limited to the Director and
designated personnel;
(2) All such records shall be kept in locked,
fireproof cabinets;
(3) No information from such records shall be
released without the signed release of the applicant.
14.10 Subsequent criminal history shall be sent by
the State Bureau of Identification to the Director of the
Lottery and/or the Video Lottery Enforcement Unit. This
subsequent criminal history information shall be used by the
Lottery and the Video Lottery Enforcement Unit in making a
determination about the person's continued suitability as a
licensee or employee of a video lottery agent. The licensee
or employee shall notify the Video Lottery Enforcement
Unit within twenty-four (24) hours of any change in his
criminal history information.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
Statutory Authority: 16 Delaware Code,
Sections 3001A-3006A (16 Del.C. §§3001A-
3006A)
PUBLIC NOTICE
Delaware Health and Social Services (DHSS), in
compliance with Senate Bill 20 passed in the 140th General
Assembly, has prepared revised draft regulations governing
training and qualifications for nursing assistants and certified
nursing assistants as required in Title 16 Del.C., Chapter
30A.
These regulations address certified nursing assistant
training, the composition of the certified nursing assistant
training course and curriculum, the mandatory orientation
period and senior certified nursing assistant certification.
INVITATION FOR PUBLIC COMMENT
Public hearings will be held as follows:
Tuesday, November 6, 2001, 10:00 AM
Department of Natural Resources &
Environmental Control Auditorium
89 Kings Highway
Dover
Thursday, November 8, 2001, 9:00 AM
Room 301, Main Building
Herman Holloway Campus
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
734 PROPOSED REGULATIONS
1901 N. DuPont Highway
New Castle
For clarification or directions, please call Gina
Loughery at 302-577-6661.
Written comments are also invited on these proposed
revised regulations and should be sent to the following
address:
Elise MacEwan
Division of Long Term Care Residents Protection
3 Mill Road
Wilmington, DE 19806
The last time to submit written comments will be at the
public hearing November 8, 2001.
The Regulations currently in place are being replaced in
their entirety by the new ones being submitted for
publication on October 1, 2001.
Training and Qualifications for Nursing Assistants and
Certified Nursing Assistants
57.606 NURSE AIDE/NURSE ASSISTANT
REQUIREMENTS:
Each nurse aide/nurse assistant employed by any
nursing home either as contract/agency or facility staff as of
October 1, 1990 shall be required to meet the following:
A. Training/Testing
1. Nurse aide/nurse assistant shall complete a nurse
aide training course approved by the Delaware State Board
of Nursing and by the State Board of Health.
2. Nurse aide/nurse assistant is required to pass
competency evaluation test approved by the State of
Delaware.
3. Employees of Delaware nursing homes shall by duly
certified within 4 months of employment.
4. Contract aides must be certified prior to placement in
any nursing home.
B. A nurse aide/nurse assistant who has not performed
nursing related services for pay for a continuous 24 month
period after completion of a training and testing program,
must complete and pass a new training and competency
evaluation (testing) program.
C. A nurse aide/nurse assistant who has not been employed
in health care setting for three years will be required to meet
the requirements in Section (A) above.
D. A nurse aide/nurse assistant trained and certified outside
the State of Delaware may be deemed qualified to meet the
Board of Health requirements based on a case by case review
and approval.
E. Employees hired as nurse aide/nurse assistant who are
currently, enrolled in a nursing program and have
satisfactorily completed the fundamentals of nursing course
with a clinical component will be deemed to meet the
training and testing requirements. These individuals will be
approved with submittal of a letter from their school of
nursing attesting to current enrollment status and satisfactory
course completion as described.
57.607 NURSE AIDE TRAINING PROGRAM
CURRICULUM
The following material identifies the minimum
curriculum content for nurse aides/nursing assistants being
prepared to work in nursing home facilities either as direct or
contract staff.
The curriculum content for the nurse aide training
program . must include material which will provide a basic
level of both knowledge and demonstratable skills for each
individual completing the program. The program must be a
minimum of 75 hours in length, divided equally between
skills training and classroom instruction. Additional hours
may be in either of these areas or both.
Programs may expand the curriculum content to provide
opportunities for nurse aides to be placed in settings where
nurse aides/nursing assistants are employed to perform basic
skills as.delegated by a licensed nurse in support of a
professional plan of care.
A. THE NURSE AIDE ROLE AND FUNCTION
Key Concepts:
Introduces the characteristics of an effective nurse aide:
. personal attributes, onthejob conduct, appearance,
grooming, health and ethical behavior. Also presented are
the responsibilities of the nurse aide as a member of the
patient care team. Legal aspects of patient care and patient
rights are presented. Relevant Federal and State statutes are
referenced.
Competencies:
A.1 Function as a nurse aide within the legal and ethical
standards setforth by the profession of nursing.
A.1.1 Define the role and functions of the nurse aide
and provide awareness of the legal limitations of being a
nurse aide.
A.1.2 Recognize the responsibilities of the nurse aide as
a member of the health care team.
A.1.3 Identify the "chain of command" in the
organizational structure of the health care agency.
A.1.4 Maintain acceptable.personal hygiene and exhibit
appropriate dress practices.
A.1.5 Recognize the importance of punctuality and
commitment on the job.
A.1.6 Differentiate between ethical and unethical
behavior on the job.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 735
A.2 Demonstrate behavior which maintains resident's and/or
client's rights.
A.2.1 Provide privacy and maintenance of
confidentiality.
A.2.2 Promote the resident's right to make personal
choices to accommodate individual needs.
A.2.3 Give assistance in resolving grievances.
A.2.4 Provide needed assistance in giving to and
participating in resident and family groups and other
activities.
A.2.5 Maintain care and security of resident's personal
possessions.
A.2.6 Provide care which maintains the residents free
from abuse, mistreatment or neglect and report any instances
of such poor care to appropriate facility staff.
A.2.7 Maintain the resident's environment and care
through appropriate nurse aide behavior so as to minimize
the need for physical and chemical restraints.
B. Environmental Needs of the Patient
Key Concepts:Introduces the nurse aide to the need to
keep patients safe from injury and infection in the longterm
care setting. The nurse aide is taught why and how to use
infection control and isolation techniques. Safety through
prevention of fires and accidents, and emergency procedures
for fire and other disasters are presented.
Competencies:
B.1 Apply the basic principles of infection control.
B.1.1 Identify how diseases are transmitted.
B.1.2 Demonstrate handwashing technique.
B.1.3 Perform basic cleaning, disinfecting, and
sterilizing tasks.
B.1.4 Demonstrate proper isolation and safety
techniques in care of infectious resident.
B.2 Assist with basic emergency procedures.
B.2.1 Follow safety and emergency procedures.
B.2.2 Identify safety measures that prevent accidents to
residents.
B.2.3 Recognize signs, when a resident is choking or
may have an obstructed airway.
B.2.4 Assist with clearing obstructed airway.
B.2.5 Call for help when encountering convulsive
disorders, loss of consciousness, shock, hemorrhage,and
assist the resident until professional help arrives.
B.2.6 Follow disaster procedures.
B.2.7 Report emergencies accurately and immediately.
B.2.8 Identify potential fire hazards.
B.3 Provide a safe, clean environment.
B.3.1 Identify the resident's need for a clean and
comfortable environment.
B.3.2 Report unsafe conditions.
B.3.3 Report pests.
B.3.4 Report nonfunctioning equipment.
B.3.5 Prepare soiled linen for laundry.
B.3.6 Clean and disinfect unit for admission or
following discharge.
B.3.7 Arrange furniture and equipment for the
resident's convenience.
C. PSYCHOSOCIAL NEEDS OF THE PATIENT
Key Concepts:Focus is placed on the social, emotional,
recreational and religious needs of patients in a long term
care setting. It describes some of the physical, mental, and
emotional changes associated with aging and
institutionalization, and presents ways in which the nurse
aide may effectively communicate with patients and their
families.
Competencies:
C.1 Demonstrates appropriate and effective communication
skills.
C.1.1 Demonstrate effective verbal and nonverbal
communications in keeping with the nurse aide's role with
residents and their families.
C.1.2 Observe by using'the senses of sight, hearing,
touch and smell to report resident behavior to the licensed
nurse.
C.1.3 Document observations using appropriate terms.
C.1.4 Recognize the importance of maintaining the
patient's record.
C.1.5 Communicate with residents according to their
state of development.
C.2 Demonstrate basic skills by identifying the psychosocial
characteristics of the populations being served in the nursing
facility including persons with mental retardation, mental
illness and persons with dementia, Alzheimerfs disease and
related disorders.
C.2.1 Indicate the ways to meet the resident's basic
human needs for life and mental well being.
C.2.2 Modify his/her own behavior in response to
resident's behavior.
C.2.3 Identify developmental tasks associated with the
aging process.
C.2.4 Provide training in, and the opportunity for, self
care according to resident"s capabilities.
C.2.5 Demonstrate principles of behavior management
by reinforcing appropriate behavior and reducing or
eliminating inappropriate behavior.
C.2.6 Demonstrate skills supporting age appropriate
behavior by allowing the resident to make personal choices,
providing and reinforcing other behavior consistent with
resident's dignity.
C.2.7 Utilize resident's family as a source of emotional
support.
C.2.8 Recognize how age, illness and disability affect
sexuality.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
736 PROPOSED REGULATIONS
D. PHYSICAL NEEDS OF THE PATIENT
Key ConceptsPresents the basic skills which nurse use
in the physical care of patients. nurse aide will learn basic
facts about systems and what is needed to promote
functioning. The nurse aide will lear provide physical care to
patients safe to keep the patient clean, dry comfortable. The
nurse aide will also learn to make observations regarding
patients and to record and/or report observations. The nurse
aide will learn to maintain range of motion while providing
physical care to patient. Introduction of the basics of range
of motion and its integration into routine personal care
activities.
Competencies:
D.1 Apply the principles of basic nutrition in the preparation
and serving of meals.
D.1.1 List general principles of basic nutrition.
D.1.2 Read the instructions for special diets.
D.1.3 Serve prepared foods as instructed.
D.1.4 Identify cultural variations in diet.
D.2 Recognize abnormal signs and symptoms of common
diseases and conditions. Examples are:
D.2.1 Upper respiratory infection - Report coughing,
sneezing, elevated temperatures, etc.
D.2.2 Diabetes Report excessive thirst, frequent
urination, change in urine output and drowsiness, excessive
perspiration and headache.
D.2.3 Urinary tract infection Report frequent urination,
burning or pain on urination, change in color of urine, blood
or sediment in urine and strong odors.
D.2.4 Cardiovascular conditions - Report shortness of
breath, chest pain, blue color to lips, indigestion, sweating,
change in pulse, etc
D.2.5 Cerebral vascular conditions - Report dizziness,
changes in vision such as seeing double, etc., change in
blood pressure, numbness in any part of the body, or
inability to move arm or leg, etc.
D. 2.6 Skin conditions Report break in skin,
discoloration such as redness, black and blue areas, rash,
itching, etc.
D.2.7 Gastrointestinal conditions - Report nausea,
vomiting, pain, inability to swallow, bowel movement
changes such as color, diarrhea, constipation. (Continue to
list common diseases and conditions based on the population
being served.)
D.3 Provide personal care and basic nursing skills as
directed by the licensed nurse.
D.3.1 Provide for resident's privacy when providing
personal care.
D.3.2 Assist the resident to dress and undress.
D.3.3 Assist the resident with bathing and personal
grooming.
D.3.4 Observe and report condition of the skin.
D.3.5 Assist the resident with oral hygiene.
D.3.6 Administer oral hygiene for the unconscious
resident.
D.3.7 Demonstrate measures to prevent decubitus,
ulcers, i.e., positioning, turning, and applying heel and elbow
protectors.
D.3.8 Assist the resident in using the bathroom.
D.3.9 Assist the resident in using a bedside commode,
urinal and bedpan.
D.3.10 Demonstrate proper bed making procedures.
D.3.11 Feed residents oral table foods in an appropriate
manner.
D.3.12 Distribute nourishment and water.
D.3.13 Accurately measure and record:
a. intake and output
b. height and weight
c. T,P,R
D.3.14 Assist the resident with.shaving.
D.3.15 Shampoo and groom hair.
D.3.16 Provide basic care of toenails and fingernails if
appropriate.
D.3.17 Assist with catheter care.
D.3.18 Assist the professional nurse with a physical
examination.
D.3.19 Apply a nonsterile dressing.
D.3.20 Apply nonsterile compresses and soaks.
D.3.21 Apply cold and/or heat applications.
D.4 Demonstrate skills which incorporate principles of
restorative care under the direction of a licensed nurse.
D.4.1 Assist the resident in bowel and bladder training.
D.4.2 Assist the resident in activities of daily living and
encourage self help activities.
D.4.3 Assist the resident with ambulation aids, i.e.,
cane, quadcane, walker, crutches, wheelchair and transfer
aids, i.e.1 hydraulic lifts.
D.4.4 Perform range of motion exercise as instructed by
the physical therapist or the professional nurse.
D.4.5 Assist in care and use of prosthetic devices.
D.4.6 Assist the resident in proper use of body
mechanics.
D.4.7 Assist the resident with dangling, standing and
walking.
D.4.8 Demonstrate proper turning and/or positioning
both in bed and in a chair.
D.4.9 Demonstrate proper technique of transferring
resident from bed to chair.
D.5 One man cardiopulmonary resuscitation (CPR) skills in
the checking of conscious and unconscious victims.
D.6 Provide care to resident when death is imminent.
D.6.1 Discuss own feelings and attitude about death.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 737
D.6.2 Explain how culture and religion influence a
person's attitude toward death.
D.6.3 Discuss the stages of dying.
D.6.4 Recognize and report the common signs of
approaching death.
D.6.5 Provide care (if appropriate) to the resident's
body after death.
57.608INSTRUCTORS
A. Primary instructor As an individual responsible for
overall coordination and implementation of nurse aide
training program.
QUALIFICATIONS:
1. RN licensure in the State of Delaware.
2. Two (2) years nursing experience in caring for the
elderly and/or chronically ill of any age.
3. For instructors without prior teaching experience:
a. Successful completion of a "Train the Trainer"
program which provides preparation in teaching adult
learners principles of effective teaching and teaching
methodologies.
4. Waiver of the Train the Trainer requirement is made
for those nurses who demonstrate at least one (1) year of
continuous teaching experience at the nursing assistant or
LPN or RN program level.
B. Program Trainer (s) is the individual (s) who provide
assistance to primary instructors as resource personnel from
the health field.
QUALIFICATIONS:
1. Trainers may include: registered nurses, licensed
practical nurses, pharmacists, dietitians, social workers,
physical or occupational therapists, environmental health
specialists, etc.
2. One (1) year of current experience in caring for the
elderly and/or chronically ill of any age or have equivalent
experience.
3. Trainers are to be licensed, registered and/or certified
in their field, where
applicable.
57.609 TRAINING FOR PRIMARY INSTRUCTORS
The approved instructors will develop into competent
trainers, possessing the necessary skills to train nursing
assistants to meet the established certification criteria. The
trainers will understand the roles. and responsibilities
associated with training. They will be able to design and
implement a training program, assess its value, and modify it
as needed. They will recognize the characteristics of adult
learners and create a training environment conducive to
effective learning.
A. Training course outline shall include:
I. Role of trainer.
II. Communication techniques.
III. Demonstration skills.
IV. Teaching a process.
V. Teaching techniques.
VI. Training techniques.
VII. Developing a formal training plan.
B. Course Management Information
I. Training time will consist of sixteen minimum hours.
II. The instructor must have formal educational
preparation or experience with skills of adult learning.
SECTION 57.7 PERSONNEL/ADMINISTRATIVE
57.701 The administrator (s) shall be responsible for
complying with the regulations herein contained. In the
absence of the administrator, an employee shall be
authorized, in writing, to be in charge.
57.702 All administrators of nursing homes must be
licensed by the Board of Examiners of Nursing Home
Administrators. Such administrators must be full time (40
hours per week) employees.
57.703 A staff of persons sufficient in number and
adequately trained to meet requirements for care shall be
employed. In addition to the staff engaged in the direct care
and treatment of patients, there must be sufficient personnel
to provide basic services; such as: food service, laundry,
housekeeping and plant maintenance.
57.704 No employee shall be less than sixteen (16)
years of age, unless they have been issued proper working
papers.
57.705 The institution shall have written personnel
policies and procedures that adequately support sound
patient care. Personnel records are to be kept current and
available for each employee, and contain sufficient
information to support placement in the positions to which
assigned.
57.706 Minimum requirements for employee physical
examination:
A. Each person, including volunteers, who is involved
in the care of patients shall have a screening test for
tuberculosis as a prerequisite to employment. Either a
negative intradermal skin test or a chest xray showing no
evidence of active tuberculosis shall satisfy this requirement.
B. A report of this test shall be on file at the facility of
employment.
57.707 No person having a communicable disease.
shall be permitted to give care or service. All reportable
communicable diseases shall be reported to the County
Health Officer.
SECTION 57.8 SERVICES TO PATIENTS
57.801 General Services:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
738 PROPOSED REGULATIONS
A. The skilled care nursing facility shall provide to all
patients the care deemed necessary for their comfort, safety,
nutritional requirements and general wellbeing.
B. The skilled care nursing facility shall have in effect a
written transfer agreement with one (1) or more hospitals
which provides the basis for effective working arrangements
under which inpatient hospital care, or other hospital
services, are available promptly to the facility's patients,
when needed.
C. The skilled care nursing facility shall have a written
provision for promptly obtaining required laboratory, xray
and other diagnostic. services. These services may be
obtained from other facilities that are approved by the State
Board of Health.
57.802 Medical Services:
A. All persons admitted to an institution (skilled care
nursing home) shall be under the care of a licensed
physician.
B. All nursing homes shall arrange for one (1) or more
licensed physicians to be called in an emergency. Names and
phone numbers of these physicians must be posted at all
nurse's stations.
C. All orders for medications, treatments, diets,
diagnostic services, etc. shall be in writing and signed by the
attending physician.
D. All orders shall be renewed and signed by the
physician at least every thirty (30) days.
E. A progress note shall be written and signed by the
physician on each visit.
SECTION 69.100 - DEFINITIONS
69.101 Advanced Practice Nurse- shall mean an
individual whose education and licensure meet the criteria
outlined in 24 Del., C. Chapter 19 and who is certified in at
least one of the following specialty areas: (1) Adult nurse
practitioner; (2) Gerontological clinical nurse specialist; (3)
Gerontological nurse practitioner; (4) Psychiatric/mental
health clinical nurse specialist; (5) Family nurse practitioner.
69.102 Assisted Living Facility - Assisted living
facility is a residential arrangement for fee licensed pursuant
to 16 Del. C., Chapter 11.
69.103 Certified Nursing Assistant (CNA) - a duly
certified individual under the supervision of a licensed nurse,
who provides care which does not require the judgment and
skills of a licensed nurse. The care may include, but is not
limited to, the following: bathing, dressing, grooming,
toileting, ambulating, transferring and feeding, observing
and reporting the general well-being of the person(s) to
whom they are providing care.
69.104 Department - the Department of Health and
Social Services.
69.105 Division- the Division of Long Term Care
Residents Protection.
69.106 Intermediate Care Facility - Facility licensed
pursuant to 16 Del. C., Chapter 11 with a license designated
for intermediate care beds.
69.107 Licensed Nurse - shall mean a licensed
practical nurse, registered nurse and/or advanced practice
nurse whose education and licensure meet the criteria in 24
Del. C., Chapter 19.
69.108 Licensed Practical Nurse (LPN) - a nurse who
is licensed as a practical nurse in Delaware or whose license
is recognized to practice in the State of Delaware, and who
may supervise LPN's, CNA's, NA's and other unlicensed
personnel.
69.109 Nursing Assistant (NA) - an individual who
has completed the requisite training to become a Certified
Nursing Assistant but is awaiting certification.
69.110 Nursing Services Direct Caregivers- those
individuals, as defined in 16 Del. C., Section 1161(e),
assigned to the direct care of nursing facility residents.
69.111 Personal Care Services - those health-related
services that include general supervision of, and direct
assistance to, individuals in their activities of daily living.
69.112 Physician - a physician licensed to practice in
the State of Delaware.
69.113 Registered Nurse (RN) - a nurse who is a
graduate of an approved school of professional nursing and
who is licensed in Delaware or whose license is recognized
to practice in the State of Delaware.
69.114 Rehabilitation - the restoration or maintenance
of an ill or injured person to self-sufficiency at his or her
highest attainable level.
69.115 Resident - a person admitted to a nursing
facility or similar facility licensed pursuant to 16 Del. C.,
Chapter 11.
69.116 Restraint - "physical restraints" are defined as
any manual method or physical or mechanical device,
material or equipment attached or adjacent to the resident's
body that the individual cannot remove easily which restricts
freedom of movement or normal access to one's body.
"Chemical restraints" are defined as a psychopharmacologic
drug that is used for discipline or convenience and not
required to treat medical symptoms.
69.117 Senior Certified Nursing Assistant - a
Certified Nursing Assistant who has met the requirements
and training specified in Section 4 of these regulations.
69.118 Skilled Care Facility - Facility licensed
pursuant to 16 Del. C., Chapter 11 with a license designated
for skilled care beds.
69.119 Student - a person enrolled in a course offering
certification as a CNA.
69.120 Supervision - direct oversight and inspection of
the act of accomplishing a function or activity.
SECTION 69.200 - GENERAL TRAINING
REQUIREMENTS AND COMPETENCY TEST
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PROPOSED REGULATIONS 739
Each Nursing Assistant/Certified Nursing Assistant
employed by any nursing facility either as contract/agency or
facility staff shall be required to meet the following:
69.201 An individual shall complete a nursing
assistant training course approved by the Department on the
recommendation of the CNA Training Curriculum
Committee. The Committee shall consist of individuals with
experience in the knowledge and skills required of CNAs.
69.202 Nursing Assistants are required to pass a
competency test provided by the Department or by a
contractor approved by the Department.
69.203 Nursing Assistants shall take the competency
test within 30 days of completion of an approved program or
when the nearest testing location is available to the nursing
assistant, whichever is later. Nursing assistants who fail to
obtain a passing score may repeat the test two additional
times, but must obtain certification within 90 days of
program completion. Nursing assistants who fail to obtain a
passing score after testing three times must repeat the CNA
training program before retaking the test, or they cannot
continue to work as a nursing assistant.
69.204 A Certified Nursing Assistant must perform at
least 64 hours of nursing related services in a health care
setting during each 24-month certification period in order to
qualify for recertification. A certified nursing assistant who
does not perform at least 64 hours of nursing related services
in a certification period must complete and pass a new
training course and competency test, or competency test.
69.205 A Certified Nursing Assistant trained and
certified outside the State of Delaware shall be deemed
qualified to meet the Department's requirements based on a
current certificate from the jurisdiction where he/she
presently practices, documentation of the equivalent of one
year of full-time experience as a certified nursing assistant
and verification that he/she is in good standing on that
jurisdiction's Registry.
69.206 Employees hired as Nursing Assistants/
Certified Nursing Assistants who are currently enrolled in a
nursing program and have satisfactorily completed a
Fundamentals/Basic Nursing course with a clinical
component will be deemed to meet the training
requirements. These individuals will be approved to take the
competency test upon submission of a letter from their
school of nursing attesting to current enrollment status and
satisfactory course completion as described.
69.207 For the purpose of calculating minimum
staffing levels, any individual who has completed all of the
classroom training and half of the clinical training in a
facility sponsored training program may be considered as a
member of such facility's staff while undergoing the last
37.5 hours of clinical training at such facility.
SECTION 69.300 - CNA TRAINING PROGRAM
REQUIREMENTS
69.301 General
To obtain approval, the curriculum content for
the Certified Nursing Assistant training programs shall meet
each of the following requirements:
A. The curriculum shall include material that will
provide a basic level of both knowledge and demonstrable
skills for each individual completing the program.
B. The program shall be a minimum of 150 hours
in length, divided equally between clinical skills training and
classroom instruction. Additional hours may be in either of
these areas or both.
C. Classroom instruction and demonstrated
proficiency in each skill shall be completed prior to students'
performing direct resident care. Programs shall maintain
documentation of required skills that each student has
successfully demonstrated to the RN instructor.
D. Classroom ratios of student to RN instructor
shall not exceed 24:1. Clinical and laboratory ratios of
student to instructor shall not exceed 8:1.
E. The RN instructor shall directly supervise
students at all times during clinical instruction. Students
shall remain in visual contact with the RN instructor in the
clinical setting while performing any skills for which they
have not yet demonstrated and the program has documented
proficiency.
F. Programs must notify the State's recertification
agency in writing when changes to the program or the
program's personnel are made.
69.302 Equipment
All programs shall have available at a
minimum the following equipment:
A. Audio/Visual (Overhead projector and/or TV
with VCR)
B. Teaching Mannequin, Adult, for catheter and
perineal care
C. Hospital Bed
D. Bedpan/Urinal
E. Bedside commode
F. Wheelchair
G. Scale
H. Overbed Table
I. Sphygmomanometer
J. Stethoscope
K. Resident Gowns
L. Thermometers, Glass and Electronic
M. Crutches
N. Canes (Variety)
O. Walker
P. Miscellaneous Supplies: i.e., Bandages,
Compresses, Heating Pad, Hearing Aid, Dentures,
Toothbrushes, Razors.
Q. Foley Catheter Drainage Bag
R. Hydraulic Lift
S. Adaptive eating utensils/equipment
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740 PROPOSED REGULATIONS
69.303 Curriculum Content
The following material identifies the minimum
competencies that the curriculum content shall develop.
Nursing assistants being prepared to work in skilled,
intermediate, or assisted living facilities either as direct or
contract staff shall master each competency. All
demonstrable competencies for each student must be
documented as mastered by the RN instructor in order for a
student to qualify as successfully having completed that
section of programming.
A. THE NURSING ASSISTANT ROLE AND
FUNCTION
Introduces the characteristics of an effective
nursing assistant: personal attributes, on-the-job conduct,
appearance, grooming, health and ethical behavior. Also
presented are the responsibilities of the nursing assistant as a
member of the resident care team. Legal aspects of resident
care and resident rights are presented. Relevant Federal and
State statutes are also reviewed.
Competencies:
(1) Function as a nursing assistant within the
standards described below:
a. Define the role and functions of the
nursing assistant and provide awareness of the legal
limitations of being a nursing assistant.
b. Recognize the responsibilities of the
nursing assistant as a member of the health care team.
Understand the relevant State and Federal regulations for
long term care and legalities of reporting and documenting
incidents and accidents.
c. Understand the role of Long Term
Care advocates, investigators and surveyors.
d. Identify the "chain of command" in
the organizational structure of the health care agency.
e. Maintain personal hygiene and exhibit
dress practices which meet professional standards.
f. Recognize the importance of
punctuality and commitment to the job.
g. Differentiate between ethical and
unethical behavior on the job.
h. Understand the role, responsibility
and functional limitations of the nursing assistant.
(2) Demonstrate behavior that maintains
resident's rights.
a. Provide privacy and maintenance of
confidentiality.
b. Promote the resident's right to make
personal choices to accommodate individual needs.
c. Give assistance in resolving
grievances.
d. Provide needed assistance in going to
and participating in resident and family groups and other
activities.
e. Maintain care and security of
resident's personal possessions as per the resident's desires.
f. Provide care which ensures that the
residents are free from abuse, mistreatment, neglect or
financial exploitation and report any instances of such poor
care to the Division of Long Term Care Residents
Protection. Discuss the psychological impact of abuse,
neglect, mistreatment, misappropriation of property of
residents and/or financial exploitation.
g. Maintain the resident's environment
and care through appropriate nursing assistant behavior so as
to keep the resident free from physical and chemical
restraints.
h. Discuss the potential negative
outcomes of physical restraints, including side rails.
B. ENVIRONMENTAL NEEDS OF THE
RESIDENT
Key Concepts: Introduces the nursing assistant to
the need to keep residents safe from injury and infection in
the long-term care setting. The nursing assistant is taught
why and how to use infection control and isolation
techniques. Safety through prevention of fires and accidents,
and emergency procedures for fire and other disasters are
presented.
Competencies:
(1) Apply the basic principles of infection
control.
a. Identify how diseases are transmitted
and understand concepts of infection prevention.
b. Demonstrate proper hand washing
technique.
c. Demonstrate appropriate aseptic
techniques in the performance of normal duties and
understand the role of basic cleaning, disinfecting, and
sterilization tasks.
d. Demonstrate proper isolation and
safety techniques in the care of the infectious resident and
proper handling and disposal of contaminated materials.
(2) Assist with basic emergency procedures.
a. Follow safety and emergency
procedures.
b. Identify safety measures that prevent
accidents to residents.
c. Recognize signs when a resident is
choking or may have an obstructed airway.
d. Assist with clearing obstructed
airway.
e. Call for help when encountering
convulsive disorders, loss of consciousness, shock,
hemorrhage, and assist the resident until professional help
arrives.
f. Follow disaster procedures.
g. Report emergencies accurately and
immediately.
h. Identify potential fire hazards.
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PROPOSED REGULATIONS 741
(3) Provide a safe, clean environment.
a. Identify the resident's need for a clean
and comfortable environment. Describe types of common
accidents in the nursing home and their preventive measures.
Be aware of the impact of environmental factors on the
resident in all areas including but not limited to light and
noise levels.
b. Report unsafe conditions to
appropriate supervisor. Use the nurse call system
effectively.
c. Report evidence of pests to
appropriate supervisory personnel.
d. Report nonfunctioning equipment to
appropriate supervisory/charge personnel.
e. Prepare soiled linen for laundry.
f. Make arrangement of furniture and
equipment for the resident's convenience and to keep
environment safe.
C. PSYCHOSOCIAL NEEDS OF THE
RESIDENT
Key Concepts: Focus is placed on the diverse
social, emotional, recreational and spiritual needs of
residents in a long term care setting. The curriculum shall
describe some of the physical, mental, and emotional
changes associated with aging and institutionalization, and
present ways in which the nursing assistant may effectively
communicate with residents and their families.
Competencies:
(1) Demonstrate basic skills by identifying the
psychosocial characteristics of the populations being served
in the nursing facility including persons with mental
retardation, mental illness and persons with dementia,
Alzheimer's disease, developmental disabilities and other
related disorders.
a. Indicate the ways to meet the
resident's basic human needs for life and mental well being.
b. Modify his/her own behavior in
response to resident's behavior. Respect the resident's
beliefs recognizing cultural differences in holidays,
spirituality, clothing, foods and medical treatments.
c. Identify methods to ensure that the
resident may fulfill his/her maximum potential within the
normal aging process.
d. Provide training in, and the
opportunity for, self-care according to the resident's
capabilities.
e. Demonstrate principles of behavior
management by reinforcing appropriate behavior and
reducing or eliminating inappropriate behavior.
f. Demonstrate skills which allow the
resident to make personal choices and promote the resident's
dignity.
g. Utilize resident's family as a source of
emotional support and recognize the family's need for
emotional support.
h. Recognize how age, illness and
disability affect memory, sexuality, mood and behavior,
including wandering.
i. Describe aggressive and wandering
behavior; recognize responsibility of staff related to
wanderers and aggressive residents.
j. Discuss how appropriate activities are
beneficial to residents with cognitive impairments.
k. Recognize and utilize augmentative
communication devices and methods of nonverbal
communication.
(2) Demonstrate appropriate and effective
communication skills.
a. Demonstrate effective verbal and
nonverbal communications in keeping with the nursing
assistant's role with residents, their families and staff.
b. Observe by using the senses of sight,
hearing, touch and smell to report resident behavior to the
licensed nurse.
c. Document observations using
appropriate terms and participate in the care planning
process.
d. Recognize the importance of
maintaining the resident's record accurately and completely.
e. Communicate with residents
according to their state of development. Identify barriers to
effective communication. Recognize the importance of
listening to residents.
f. Participate in sensitivity training in
order to understand needs of residents with physical or
cognitive impairments.
D. PHYSICAL NEEDS OF THE RESIDENT
Key Concepts: Presents the basic skills which
nursing assistants use in the physical care of residents. The
nursing assistant will learn basic facts about body systems
and what is needed to promote good functioning. The
nursing assistant will learn to provide physical care to
residents safely and to keep the resident nourished, hydrated,
clean, dry and comfortable. The nursing assistant will also
learn to make observations regarding residents and to record
and/or report observations. The nursing assistant will be
introduced to the basics of range of motion and learn to
integrate range of motion into routine personal care
activities.
Competencies:
(1) Apply the principles of basic nutrition in
the preparation and serving of meals.
a. Incorporate principles of nutrition and
hydration in assisting residents at meals.
b. Understand basic physiology of
nutrition and hydration.
c. Understand basic physiology of
malnutrition and dehydration.
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742 PROPOSED REGULATIONS
d. Identify risk factors for poor
nutritional status in the elderly:
i. compromised skin integrity
ii. underweight or overweight
iii. therapeutic or mechanically
altered diet
iv. poor dental status
v. drug-nutrient interactions
vi. acute/chronic disease
vii. depression or confusion
viii. decreased appetite
e. Recognize how the aging process
affects digestion.
f. Accurately calculate and document
meal intake and report inadequate intake or changes in
normal intake.
g. Accurately calculate and document
fluid intake and report inadequate intake or changes in
normal intake.
h. Recognize and report signs and
symptoms of malnutrition and dehydration.
i. Understand concepts of therapeutic
diets including dysphagia diets and the related risks
associated with dysphagia including aspiration and
aspiration pneumonia.
j Incorporate food service principles
into meal delivery including:
i. distributing meals as quickly as
possible when they arrive from the kitchen to maintain food
temperature.
ii. assisting residents with meal set-
up if needed (i.e., opening packets or cartons, buttering bread
if desired).
iii. serving meals to all residents
seated together at the same time.
iv. offering appropriate substitutions
if the residents don't like what they have received.
k. Utilize tray card or other mechanism
to ensure the resident is served his/her prescribed diet and
identify who to notify if a resident receives the wrong diet.
l. Demonstrate understanding of how to
read menus.
m. Assist residents who are unable to
feed themselves.
n. Demonstrate techniques for feeding
someone who:
i. bites down on utensils
ii. can't or won't chew
iii. holds food in mouth
iv. pockets food in cheek
v. has poor lip closure
vi. has missing or no teeth
vii. has ill fitting dentures
viii. has a protruding tongue or tongue
thrust
ix. will not open mouth
o. Demonstrate proper positioning of
residents at mealtime.
p. Demonstrate skills for feeding
residents who:
i. are cognitively impaired
ii. have swallowing difficulty
iii. have sensory problems
iv. have physical deformities
q. Demonstrate positioning techniques
for residents who:
i. have poor sitting balance
ii. must take meals in bed
iii. fall forward when seated
iv. lean to one side
v. have poor neck control
vi. have physical deformities
r. Demonstrate use of assistive devices.
s. Identify signs and symptoms that
require alerting a nurse, including:
i. difficulty swallowing or chewing
ii. coughing when swallowing
liquids
iii. refusal of meal
iv. choking on food or fluids
v. excessive drooling
vi. vomiting while eating
vii. significant change in vital signs
t. Incorporate principles of a pleasant
dining environment when assisting residents at mealtime
including ensuring adequate lighting and eliminating
background noise.
u. Demonstrate positive interaction with
residents recognizing individual resident needs.
v. Ensure residents are dressed
appropriately.
w. Allow residents to eat at their own
pace.
x. Encourage independence and assist as
needed.
y. Recognize and report as appropriate
the risk factors and signs and symptoms of malnutrition,
dehydration and fluid overload.
z. . Accurately calculate and document
intake and output including meal percentages and fluids.
(2) Demonstrate understanding of basic
anatomy and physiology in the following areas:
a. Respiratory system
b. Circulatory system
c. Digestive system
d. Urinary system
e. Musculoskeletal system
f. Endocrine system
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PROPOSED REGULATIONS 743
g. Nervous system
h. Integumentary system
i. Sensory system
j. Reproductive system
(3) Recognize abnormal signs and symptoms
of common illness and conditions. Examples are:
a. Respiratory infection - Report
coughing, sneezing, elevated temperatures.
b. Diabetes - Report excessive thirst,
frequent urination, change in urine output, drowsiness,
excessive perspiration and headache. Understand the
healing process as it relates to diabetes.
c. Urinary tract infection - Report
frequent urination, burning or pain on urination, elevated
temperature, change in amount and color of urine, blood or
sediment in urine and strong odors.
d. Cardiovascular conditions - Report
shortness of breath, chest pain, blue color to lips, indigestion,
sweating, change in pulse, edema of the feet or legs.
e. Cerebral vascular conditions - Report
dizziness, changes in vision such as seeing double, change
in blood pressure, numbness in any part of the body, or
inability to move arm or leg.
f. Skin conditions - Report break in
skin, discoloration such as redness, black and blue areas,
rash, itching.
g. Gastrointestinal conditions - Report
nausea, vomiting, pain, inability to swallow, bowel
movement changes such as color, diarrhea, and constipation.
h. Infectious diseases.
(4) Provide personal care and basic nursing
skills as directed by the licensed nurse in the appropriate
licensed entity.
a. Provide for resident's privacy and
dignity when providing personal care.
b. Assist the resident to dress and
undress.
c. Assist the resident with bathing and
personal grooming.
d. Observe and report condition of the
skin.
e. Assist the resident with oral hygiene,
including prosthetic devices.
f. Administer oral hygiene for the
unconscious resident.
g. Demonstrate measures to prevent
decubitus ulcers, i.e., positioning, turning and applying heel
and elbow protectors.
h. Assist the resident in using the
bathroom. Understand consequences of not assisting
resident to the bathroom.
i. Assist the resident in using a bedside
commode, urinal and bedpan.
j. Demonstrate proper bed making
procedures for occupied and unoccupied beds.
k. Feed residents oral table foods in an
appropriate manner. Demonstrate proper positioning of
residents who receive tube feeding.
l. Distribute nourishment and water.
m. Accurately measure and record with a
variety of commonly used devices:
i. Blood pressure
ii. Height and weight
iii. Temperature, pulse, respiration
n. Assist the resident with shaving.
o. Shampoo and groom hair.
p. Provide basic care of toenails unless
medically contraindicated.
q. Provide basic care of fingernails
unless medically contraindicated.
r. Demonstrate proper catheter care.
s. Demonstrate proper perineal care.
t. Assist the licensed nurse with a
physical examination.
u. Apply a non-sterile dressing properly.
v. Apply non-sterile compresses and
soaks properly and safely.
w. Apply cold and/or heat applications
properly and safely.
x. Demonstrate how to properly apply
elastic stockings.
y. Demonstrate proper application of
physical restraints including side rails.
(5) Demonstrate skills which incorporate
principles of restorative care under the direction of a licensed
nurse.
a. Assist the resident in bowel and
bladder training.
b. Provide enemas within the scope of
duties of the nurse assistant.
c. Assist the resident in activities of
daily living and encourage self-help activities.
d. Assist the resident with ambulation
aids, i.e., cane, quadcane, walker, crutches, wheelchair and
transfer aids, i.e., hydraulic lifts.
e. Perform range of motion exercise as
instructed by the physical therapist or the licensed nurse.
f. Assist in care and use of prosthetic
devices.
g. Assist the resident in proper use of
body mechanics.
h. Assist the resident with dangling,
standing and walking.
i. Demonstrate proper turning and/or
positioning both in bed and in a chair.
j. Demonstrate proper technique of
transferring resident from low and high bed to chair.
(6) Demonstrate safety and emergency
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744 PROPOSED REGULATIONS
procedures including proficiency in the Heimlich maneuver.
(7) Provide care to resident when death is
imminent.
a. Discuss own feelings and attitude
about death.
b. Explain how culture and religion
influence a person's attitude toward death.
c. Discuss the role of the CNA, the
resident's family and significant others involved in the dying
process.
d. Discuss the stages of death and dying
and the role of the nurse assistant.
e. Provide care, if appropriate, to the
resident's body after death.
SECTION 69.400 - MANDATORY ORIENTATION
PERIOD
69.401 - SKILLED AND INTERMEDIATE CARE
FACILITIES
A. GENERAL REQUIREMENTS
(1) All Nursing Assistants hired to work in a
skilled or intermediate care facility, after completing 150
hours of training, shall undergo a minimum of 80 hours of
orientation at least 40 of which shall be clinical. An
exception to this requirement is that any Nursing Assistant
who has undergone 150 hours of training, sponsored by the
facility where the Nursing Assistant will be employed
immediately thereafter, shall only be required to complete
additional facility specific orientation of 40 hours in the
same facility.
(2) All Certified Nursing Assistants hired to
work in a skilled or intermediate care facility shall undergo a
minimum of 80 hours of orientation; at least 40 of which
shall be clinical.
(3) While undergoing orientation, Nursing
Assistants shall have direct physical contact with residents
only while under the visual observation of a Certified
Nursing Assistant or licensed nurse employed by the facility.
(4) Any Certified Nursing Assistant or
Nursing Assistant undergoing orientation may be considered
a facility employee for purposes of satisfying the minimum
facility staffing requirements.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory orientation program shall
include but is not limited to a review and written instruction
on the following material by a licensed nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication (including the facility
chain of command) and documentation requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies, including scales, lifts, special beds and tubs.
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
(a.) Role and function of the
CNA/NA
(b.) Resident rights/abuse
reporting
(c.) Safety and body mechanics:
transfer techniques
(d.) Vital signs
(e.) Psychosocial needs
(f.) Facility policies and
procedures
(2) Nursing Assistants shall satisfactorily
demonstrate competency in clinical skills including:
a. Taking and recording vital signs
b. Measuring and recording height and
weight
c. Handwashing and infection control
techniques
d. Caring for the resident's environment
e. Bathing and skin care, including foot
and nail care
f. Grooming and mouth care, including
denture care
g. Dressing
h. Toileting, perineal and catheter care
i. Assisting with eating and hydration
j. Proper feeding techniques
k. Positioning, turning and transfers
l. Range of motion
m. Bowel and bladder training
n. Care and use of prosthetic and
orthotic devices
o. Assisting with ambulation
p. Measuring intake and output
q. Use of elastic stockings, heel and
ankle protectors
r. Bedmaking skills
69.402 - ASSISTED LIVING FACILITIES
A. GENERAL REQUIREMENTS
(1) Nursing Assistants hired to work in an
assisted living facility, after completing 150 hours of
instruction, shall undergo a minimum 64 hours of
orientation, at least 24 of which shall be clinical. An
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 745
exception to this requirement is that any Nursing Assistant
who has undergone 150 hours of training in a training
program sponsored by the facility where the Nursing
Assistant will be employed immediately thereafter shall only
be required to complete an additional 32 hours of facility
specific orientation in the same facility.
(2) Certified Nursing Assistants hired to work
in an assisted living facility shall undergo a minimum of 64
hours of orientation at least 24 of which shall be clinical.
(3) While undergoing orientation, Nursing
Assistants shall have direct physical contact with residents
only while under the visual observation of a Certified
Nursing Assistant or licensed nurse employed by the facility.
(4) Any Certified Nursing Assistant or
Nursing Assistant undergoing orientation may be considered
a facility employee for purposes of satisfying the minimum
facility staffing requirements as set forth by the Department.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory orientation program shall
include but is not limited to a review and written instruction
on the following material by a licensed nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication and documentation
requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies, including but not limited to scales, lifts, and
wheelchairs.
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
h. Role and function of the CNA/NA
i. Resident rights/abuse reporting
j. Safety and body mechanics: transfer
techniques
k. Vital signs
l. Psychosocial needs
m. Facility policies and procedures
(2) Nursing Assistants shall satisfactorily
demonstrate competency in clinical skills including:
a. Taking and recording vital signs
b. Measuring and recording height and
weight
c. Handwashing and infection control
techniques
d. Caring for the resident's environment
e. Bathing and skin care
f. Grooming and mouth care, including
denture care
g. Dressing
h. Toileting, perineal and catheter care
i. Assisting with eating and hydration
j. Proper feeding techniques
k. Positioning, turning and transfers
l. Range of motion
m. Bowel and bladder training
n. Care and use of prosthetic and
orthotic devices
o. Assisting with ambulation
p. Measuring intake and output
q. Use of elastic stockings, heel and
ankle protectors
r. Bedmaking skill
69.403 - TEMPORARY AGENCIES
A. GENERAL REQUIREMENTS
(1) All Certified Nursing Assistants employed
by temporary agencies and placed in a facility in which they
have not worked within the previous six (6) months shall
undergo a minimum of two (2) hours of orientation prior to
beginning their first shift at the facility.
(2) Any Certified Nursing Assistant employed
by a temporary agency and undergoing orientation shall not
be considered a facility employee for purposes of satisfying
the minimum facility staffing requirements.
(3) Nursing Assistants employed by a
temporary agency must be certified prior to placement in any
nursing home.
B. ORIENTATION PROGRAM
REQUIREMENTS
(1) The mandatory two-hour orientation
program shall include but is not limited to a review and
written instruction on the following material by a licensed
nurse:
a. Tour of the facility and assigned
residents' rooms
b. Fire and disaster plans
c. Emergency equipment and supplies
d. Communication and documentation
requirements
e. Process for reporting emergencies,
change of condition and shift report
f. Operation of facility equipment and
supplies including but not limited to scales, lifts, special beds
and tubs
g. Review of the plan of care for each
assigned resident including:
i. ADL/personal care needs
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
746 PROPOSED REGULATIONS
ii. Nutrition, hydration and feeding
techniques and time schedules
iii. Bowel and bladder training
programs
iv. Infection control procedures
v. Safety needs
SECTION 69.500 - VOLUNTARY SENIOR
CERTIFIED NURSING ASSISTANT
CERTIFICATION
69.501 - TRAINING REQUIREMENTS AND
COMPETENCY TEST
Any Certified Nursing Assistant may pursue
designation as a Senior Certified Nursing Assistant and shall
be so designated if such individual meets the following
minimum requirements:
A. Has been a Certified Nursing Assistant for
a minimum of three years, in good standing with no adverse
findings entered on the Nurse Aide Registry;
B. Has successfully completed an additional
50 hours of advanced training in a program approved by the
Department;
C. Has passed a competency test provided by
the Department or by a contractor approved by the
Department.
69.502 - VOLUNTARY SENIOR CNA
CURRICULUM
The Senior CNA program must meet the same
requirements as those specified in Section 2 of these
regulations in terms of classroom ratios of students to
instructors. The Senior CNA curriculum must meet the
following minimum course content, which will provide an
advanced level of knowledge and demonstrable skills. All
demonstrable competencies shall be documented by the RN
instructor.
A. LEADERSHIP TRAINING AND
MENTORING SKILLS
Key Concepts: Senior Certified Nursing Assistants
will learn how to teach new Nursing Assistants standards of
care. Senior CNAs will learn how to be a role model and
preceptor for new Nursing Assistants and CNAs. Senior
CNAs will learn how prepare assignments, conduct team
meetings and resolve conflicts.
Competencies: Function effectively as a team
leader and mentor/preceptor within the facility.
(1) Define the role and functions of an
effective team leader and mentor.
(2) Identify principles of adult learning.
(3) Recognize various learning styles and
communication barriers.
(4) Assess learner knowledge.
(5) Supervise, evaluate and act as a preceptor
for the Nursing Assistant and Certified Nursing Assistant
during orientation.
(6) Demonstrate effective communication
techniques.
(7) Recognize the importance of teamwork.
(8) Actively participate in resident care plan
and team meetings.
(9) Identify strategies for conflict
management.
(10) Learn how to prepare assignments, assist
with scheduling and other administrative duties.
B. DEMENTIA TRAINING
Key Concepts: The senior CNA will gain greater
knowledge of Alzheimer's Disease and related dementias.
The senior CNA will gain the skills necessary to effectively
care for residents exhibiting signs and symptoms of
dementia. The senior CNA will act as a role model and
resource person for other CNAs.
Competencies: Demonstrate appropriate skills and
techniques necessary to provide care to residents exhibiting
signs and symptoms of dementia.
(1) Recognize signs and symptoms of
Alzheimer's Disease and related disorders.
(2) Identify types of dementias.
(3) Discuss methods for managing difficult
behavior.
(4) Demonstrate effective communication
techniques.
(5) Recognize specific issues that arise in
providing care to persons with Alzheimer's Disease and
other memory loss conditions and appropriate interventions
for dealing with these problems including, but not limited to,
agitation, combativeness, sundown syndrome, wandering.
C. ADVANCED GERIATRIC NURSING
ASSISTANT TRAINING
Key Concepts: The senior CNA will gain greater
knowledge of anatomy and physiology with emphasis on the
effects of aging. The senior CNA will effectively carry out
restorative nursing skills as specified in the resident's plan of
care.
Competencies:
(1) Verbalize understanding of anatomy,
physiology and pathophysiology of common disorders of the
elderly.
a. Describe the effects of aging on the
various organs and systems within the body.
b. Describe signs and symptoms of
common disorders.
c. Describe the pathophysiology of
common disorders.
d. Identify measures to assist residents
with common medical problems (e.g., promoting
oxygenation in residents with breathing problems).
e. Observe, report and document
condition changes using appropriate medical terminology.
f. Recognize basic medical emergencies
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 747
and how to respond appropriately.
(2) Maintain or improve resident mobility and
the resident's ability to perform activities of daily living.
Understand the reasons for rehabilitation (physiologically),
reasons for, and benefits of Restorative Nursing and be able
to demonstrate the same.
a. Assist the resident with exercise
routine as specified in his/her care plan.
b. Carry out special rehabilitation
procedures as ordered including working with the visually
impaired, special feeding skills/devices, splints, ambulatory
devices and prostheses.
c. Identify ways to prevent contractures.
d. Effectively communicate with the
Rehabilitation Department.
SECTION 69.600 - SENIOR CNA TRAINING
PROGRAM INSTRUCTORS
A. The Primary Instructor is an individual
responsible for the overall coordination and implementation
of the senior certified nursing assistant training program.
The primary instructor is present and available during
clinical training. The primary instructor and all who serve as
instructors in the program must meet the following
qualifications:
(1) RN licensure in the State of Delaware.
(2) Three (3) years nursing experience in
caring for the elderly or chronically ill of any age.
(3) Instructors shall demonstrate:
a. Successful completion of "Train-the-
Trainer" program which provides preparation in teaching
adult learners principles of effective teaching and teaching
methodologies or;
b. Successful completion of a college
level course of at least one semester in length, that was
related to education and the principles of adult learning.
(4) Waiver of the Train-the-Trainer and the
college level education course requirement is made for those
nurses who demonstrate at least one (1) year of continuous
teaching experience at the nursing assistant or LPN or RN
program level.
B. Program Trainer(s) may provide assistance to
instructors as resource personnel from the health field. They
may provide limited assistance and instruction in the senior
certified nursing assistant program. Senior CNAs are
excluded from conducting training. Program trainers shall
meet the following qualifications:
(1) Trainers shall be registered nurses,
licensed practical nurses, pharmacists, dietitians, social
workers, physical, speech or occupational therapists,
environmental/fire safety specialists, activity directors, or
other licensed health care professionals.
(2) One (1) year of current experience in
caring for the elderly or have equivalent experience.
(3) Trainers shall be licensed or certified in
their field, where applicable.
SECTION 69.700 - TRAIN-THE-TRAINER
PROGRAM REQUIREMENTS
Each train-the-trainer program shall ensure that an RN
designated as primary instructor meets the following
minimum requirements:
69.701 TRAINING COURSE CONTENT
A. Role of Trainer
B. Communication techniques
C. Demonstration skills
D. Teaching a process
E. Teaching techniques
F. Training techniques
G. Developing a formal training plan
69.702 COURSE MANAGEMENT
INFORMATION
A. Training time shall consist of sixteen minimum
hours.
B. The train-the-trainer instructor must have
formal educational preparation or experience with skills of
adult learning.
DIVISION OF PUBLIC HEALTH
Health Systems Protection Section
Statutory Authority 16 Delaware Code,
Section 4711(1) (16 Del.C. 4711(1))
Notice of proposed amendments to the Uniform
Controlled Substance Act
Under the authority set forth in 16 Del.C., Section 4711
(1), the Secretary of the Department of Health and Social
Services proposes amendments to 16 Del.C. §4716(g) and
§4718(l). The amendments to these two Statutes will
reschedule the drug Dronabinol in the Delaware Controlled
Substances Act following the rescheduling of Dronabinol
within the federal schedules of controlled substances by the
Attorney General of the United States pursuant to 21 USC
§811.
NOTICE OF PUBLIC HEARING
The Health Systems Protection Section, Division of
Public Health, Department of Health & Social Services, will
hold a public hearing to discuss the proposed adoption of the
controlled substance rescheduling of Dronabinol from
schedule II to schedule III. This amendment mimics the
federal rescheduling of this drug. The amendment will
remove Dronabinol from 16 Del.C. 4716(g) and place
Dronabinol in 16 Del.C. 4718 (l)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
748 PROPOSED REGULATIONS
The public hearing will be held on Wednesday, October
31, 2001, at 1:00 PM, in the 3rd floor conference room (Rm
309), Jesse Cooper Building, Federal and Water Streets,
Dover, Delaware. Information concerning the proposed
rescheduling of Dronabinol is available at the following
locations:
Office of Narcotics & Dangerous Drugs
Jesse Cooper Building
Federal & Water Streets
P.O. Box 637
Dover, DE 19903
(302) 739-4798
Anyone wishing to present his or her oral comments at
this public hearing should contact Dave Walton at (302) 739-
4700 by October 30, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of, oral
testimony should submit such comments by November 1,
2001, to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
PROPOSED 16 Del.C. STATUTE AMENDMENTS
§4716. Schedule II.
(a) The controlled substances listed in this section are
included in Schedule II.
(b) Any of the following substances, except those
narcotics drugs listed in other schedules, whether produced
directly or indirectly by extraction from substances of
vegetable origin, or independently by means of chemical
synthesis, or by combination of extraction and chemical
synthesis:
1) Opium and opiate, and any salt compound
derivative or preparation of opium or opiate.
2) Any salt, compound, isomer, derivative or
preparation thereof which is chemically equivalent or
identical with any of the substances referred to in paragraph
(1), but not including the isoquinoline alkaloids of opium.
3) Opium poppy and poppy straw.
4) Coca leaves, including cocaine and ecgonine
and their salts, isomers, derivatives and salts of isomers and
derivatives, and any salt, compound, derivative or
preparation of coca leaves, and any salt, compound,
derivative or preparation thereof which is chemically
equivalent or identical with any of these substances, but not
including decocainized coca leaves or extractions which do
not contain cocaine or ecgonine.
(c) Any of the following opiates, including their
isomers, esters, ethers, salts and salts of isomers, whenever
the existence of these isomers, esters, ethers and salts is
possible within the specific chemical designation:
1) Alphaprodine;
2) Anileridine;
3) Bezitramide;
4) Dihydrocodeine;
5) Diphenoxylate;
6) Fentanyl;
7) Isomethadone;
8) Levo-alphacetylmethodol (also known as levoalpha-
acetylmethadol, levomethadyl acetate, "LAAM")
9) Levomethorphan;
10) Levorphanol;
11) Metazocine;
12) Methadone;
13) Methadone-Intermediate, 4-cyano-2-
dimethylamino-4, 4-diphenyl butane;
14) Moramide-Intermediate 2-methyl-3-
morpholino-1, 1-diphenyl-propane-carboxylic acid;
15) Pethidine;
16) Pethidine-Intermediate-A, 4-cyano-1-methyl-
4-phenylpiperidine;
17) Pethidine-Intermediate-B, ethyl-4-
phenylpiperidine-4-carboxylate;
18) Pethidine-Intermediate-C, 1-methyl-4-
phenylpiperidine-4-carboxylic acid;
19) Phenazocine;
20) Piminodine;
21) Racemethorphan;
22) Racemorphan;
23) Sufentanil; and
24) Alfentanil.
(d) Any material, compound, mixture or preparation
which contains any quantity of the following substances
having a potential for abuse associated with a stimulant
effect on the central nervous system:
1) Amphetamine, its salts, optical isomers and salt
of its optical isomers;
2) Phenmetrazine and its salts;
3) Any substance which contains any quantity of
methamphetamine including its salts, isomers and salts of
isomers; and
4) Methylphenidate.
(e) Any material, compound, mixture or preparation
which contains any quantity of the following substances
having a potential for abuse associated with a depressant
effect on the central nervous system:
1) Methaqualone and its salts;
2) Amobarbital;
3) Secobarbital;
4) Pentobarbital;
5) Phencyclidine;
6) Phencyclidine Immediate Precursors:
a) 1-Phenylcyclohexylamine; and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 749
b) 1-Piperidinocylohexane Carbonitrile
(PCC); and
7) Glutethimide.
(f) 1) Immediate Precursor to Amphetamine and
Methamphetamine.
2) Phenylacetone (P-2-P).
(g) Dronabinol (synthetic) in sesame oil and
encapsulated in a soft gelatin capsule in a U.S. Food and
Drug Administration approved drug product. (16 Del.C.
1953, § 4716; 58 Del. Laws, c. 424, § 1; 59 Del. Laws, c. 59,
§ 1; 66 Del. Laws, c. 66 § 1; 67 Del. Laws, c. 201 § 2.)
§4718. Schedule III.
(a) The controlled substances listed in this section are
included in Schedule III.
(b) Unless specifically excepted or unless listed in
another schedule, any compound, mixture or preparation
containing limited quantities of any stimulant drugs or any
salts, isomers or salts of isomers thereof and 1 or more active
medicinal ingredients not having a stimulant effect on the
central nervous system and in such combinations, quantity,
proportion or concentration that reduce the potential abuse of
the substances which have a stimulant effect on the central
nervous system:
(c) Unless listed in another schedule, any material,
compound, mixture or preparation which contains any
quantity of the following substances having a potential for
abuse associated with a depressant effect on the central
nervous system.
1) Any substance which contains any quantity of
a derivative of barbituric acid, or any salt of a derivative of
barbituric acid, except those substances which are
specifically listed in other schedules;
2) Chlorhexadol;
3) Lysergic acid;
4) Lysergic acid amide;
5) Methyprylon;
6) [Rescheduled];
7) Sulfondiethylmethane;
8) Sulfonethylmethane; and
9) Sulfonmethane.
(d) Nalorphine.
(e) Any material, compound, mixture, or preparation
containing limited quantities of any of the following narcotic
drugs, or any salts thereof;
1) Not more than 1.8 grams of codeine or any of
its salts per 100 milliliters or not more than 90 milligrams
per dosage unit, with an equal or greater quantity of an
isoquinoline alkaloid of opium;
2) Not more than 1.8 grams of codeine, or any of
its salts, per 100 milliliters or not more than 90 milligrams
per dosage unit, with 1 or more active, nonnarcotic
ingredients in recognized therapeutic amounts;
3) Not more than 300 milligrams of
dihydrocodeinone, or any of its salts, per 100 milliliters or
not more than 15 milligrams per dosage unit, with a fourfold
or greater quantity of an isoquinoline alkaloid of opium;
4) Not more than 300 milligrams of
dihydrocodeinone, or any of its salts, per 100 milliliters or
not more than 15 milligrams per dosage unit, with 1 or more
active, nonnarcotic ingredients in recognized therapeutic
amounts;
5) Not more than 1.8 grams of dihydrocodeine, or
any of its salts, per 100 milliliters or not more than 90
milligrams per dosage unit, with 1 or more active,
nonnarcotic ingredients in recognized therapeutic amounts;
6) Not more than 300 milligrams of
ethylmorphine, or any of its salts, per 100 milliliters or not
more than 15 milligrams per dosage unit, with 1 or more
ingredients in recognized therapeutic amounts;
7) Not more than 500 milligrams of opium per
100 milliliters or per 100 grams or not more than 25
milligrams per dosage unit with 1 or more active,
nonnarcotic ingredients in recognized therapeutic amounts;
and
8) Not more than 50 milligrams of morphine or
any of its salts per 100 milliliters or per 100 grams with 1 or
more active, nonnarcotic ingredients in recognized
therapeutic amounts.
(f) Anabolic steroids and combinations:
1) Boldenone;
2) Chlorotestosterone (4-dihydrotestosterone);
3) Clostebol;
4) Dehydrochlormethyltestosterone;
5) Dihydrotestosterone (4-dihydrotestosterone);
6) Drostanolone;
7) Ethylestrenol;
8) Fluoxymesterone;
9) Formebulone (formebulone);
10) Mesterolone;
11) Methandienone;
12) Methandranone;
13) Methandriol;
14) Methandrostenolone;
15) Methenolone;
16) Methyltestosterone;
17) Mibolerone;
18) Nandrolone;
19) Norethandrolone;
20) Oxandrolone;
21) Oxymesterone;
22) Oxymetholone;
23) Stanolone;
24) Stanozolol;
25) Testolactone;
26) Testosterone;
27) Trenbolone; and
28) Any salt, ester, or isomer of a drug or substance
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
750 PROPOSED REGULATIONS
described or listed in this paragraph, if that salt, ester, or
isomer promotes muscle growth.
(g) Clortermine.
(h) Benzphetamine.
(i) Chlorphentermine.
(j) Phendametrazine.
(k) Ketamine
(l) Dronabinol (synthetic) in sesame oil and
encapsulated in a soft gelatin capsule in a U.S. Food and
Drug Administration approved drug product.
(l) (m)The Secretary may except by rule any compound,
mixture or preparation containing any stimulant or
depressant substance listed in subsections (b) and (c) from
the application of all or any part of this chapter if the
compound, mixture or preparation contains 1 or more active
medicinal ingredients not having a stimulant or depressant
effect on the central nervous system and if the admixtures
are included therein in combinations, quantity, proportion or
concentration that vitiate the potential for abuse of the
substances which have a stimulant or depressant effect on
the central nervous system.
(m) (n)Any anabolic steroid, as listed in subsection (f),
which is a combination of estrogen and anabolic steroid and
which is expressly intended for administration to hormonedeficient
women, shall be exempt from the provisions of this
chapter. If any person prescribes, dispenses or distributes an
anabolic steroid which is a combination of estrogen and
anabolic steroid for use by persons who are not hormonedeficient
women, such person shall be considered to have
prescribed, dispensed or distributed an anabolic steroid
within the meaning of this chapter. (16 Del. C. 1953, §
4718; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 201 § 1; 70
Del. Laws, c. 81 § 2; 71 Del. Laws, c. 50, § 1.)
DIVISION OF PUBLIC HEALTH
Health Systems Protection Section
Statutory Authority 16 Delaware Code,
Section 4731 (16 Del.C. 4731)
The proposed amendment to the Uniform Controlled
Substance Regulation #4 is to be adopted in accordance with
Title 16, Delaware Code, Section 4731.
The amendment to Regulation #4, paragraph (h) as
attached will provide greater quantities of controlled
substances to be dispensed while still protecting the public's
safety and welfare. This amendment would provide for at
least a 31-day supply and a mechanism for the pharmacist to
validate an outdated and otherwise voided schedule II or III
controlled substance prescription via practitioner
authorization.
NOTICE OF PUBLIC HEARING
The Health Systems Protection Section, Division of
Public Health, Department of Health & Social Services, will
hold a public hearing to discuss the proposed adoption of the
regulatory amendment to Regulation 4, paragraph (h) of the
Uniform Controlled Substance Regulations. This
amendment will provide greater quantities of controlled
substances to be dispensed while still protecting the public's
safety and welfare. This amendment would provide for at
least a 31-day supply and a mechanism for the pharmacist to
validate an outdated and otherwise voided schedule II or III
controlled substance prescription via practitioner
authorization.
The public hearing will be held on Wednesday, October
31, 2001, at 10:00 AM, in the 3rd floor conference room
(Rm 309), Jesse Cooper Building, Federal and Water Streets,
Dover, Delaware. Information concerning the proposed
regulatory amendment is available at the following
locations:
Office of Narcotics & Dangerous Drugs
Jesse Cooper Building
Federal & Water Streets
P.O. Box 637
Dover, DE 19903
(302) 739-4798
Anyone wishing to present his or her oral comments at
this public hearing should contact Dave Walton at (302) 739-
4700 by October 30, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of, oral
testimony should submit such comments by November 1,
2001, to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
PROPOSED REGULATION AMENDMENT
Uniform Controlled Substance Regulations
Regulation #4 - - Prescriptions
h. Expiration of Prescription
Prescriptions for controlled substances in Schedules II
and III will become void unless dispensed within seven (7)
days of the original date of the prescription or if the original
prescriber authorizes the prescription past the seven (7) days
period. Such prescriptions cannot be written nor dispensed
for more than 100 dosage units nor can more than 100
dosage units be dispensed or a 31 day supply whatever is the
greater at one time. As an exception to dosage limitations
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 751
set forth in this subparagraph, and in accordance with 21
C.F.R. Section 1306.1(b), prescriptions for controlled
substances in Schedule II for patients either having a
medically documented terminal illness or patients in Long
Term Facilities (LTCF), may be filled in partial quantities, to
include individual dosage units. For each partial filling, the
dispensing pharmacist shall record on the back of the
prescription (or another appropriate record, uniformly
maintained, and readily retrievable) the date of the partial
filling, quantity dispensed, remaining quantity authorized to
be dispensed and the identification of the dispensing
pharmacist. The total quantity of Schedule II controlled
substances dispensed in all partial fillings must not exceed
the total quantity prescribed. Schedule II prescriptions for
terminally ill or LTCF patients, shall be valid for a period
not to exceed 60 days from the issue date unless sooner
terminated by the discontinuance of the medication.
UNIFORM CONTROLLED SUBSTANCES ACT
REGULATIONS
(Adopted by the Secretary of Health and Social Services
pursuant to 16 Del. C. § 4731 effective February, 1973
amended July 8, 1974, May 27, October 30, 1975,
September 27, 1976, February 1, 1983, July 1, 1985, January
28, 1987, March 5, 1992, and August 29, 1995.)
1. Adoption of Federal Regulations
To the extent consistent with 16 Del. C. Ch. 47,
regulations promulgated by the Federal Government
pursuant to the Federal Comprehensive Drug Abuse
Prevention and Control Act of 1970, and in effect as of this
date, are adopted as a part of these regulations.
Readopted October 30, 1975.
2. Requirements
a. Requirements
Registration shall be on a biennial basis upon forms
supplied by the Secretary for that purpose. The registration
fee for prescribers, dispensers, researchers and laboratories
will be $40. The registration fee for manufacturers or
distributors will be $100. A separate registration is required
at each principal place of business or professional practice
where controlled substances are manufactured, distributed,
dispensed, or kept for research substances are manufactured,
distributed, dispensed, or kept for research or analysis.
b. Revocation and Suspension
1) Revocation of registration by the Federal
Government will result in automatic revocation of the State
registration.
2) Proceedings for denying, suspending or
revoking a Legislation shall be informal in nature. Persons
complained against may appear personally or by counsel,
and may produce any competent evidence in their behalf in
answer to the alleged violation. Such proceedings shall be
tape recorded.
3) Whenever a registration is denied, suspended,
or revoked, the Secretary or his designee will reduce in
writing his findings and rulings, and the reasons therefore,
and forward them to the persons complained against within
15 days. This provision shall in no way stay any such denial,
suspension, or revocation.
3. Records and Inventory
a. Requirements
1) Practitioners authorized to prescribe or
dispense controlled substance shall maintain a record with
the following information:
(a) Name and address of patient
(b) Date prescribed
(c) Name, strength and amount of medication.
2) Other records required by 21 CFR 1300 to end
of 1316. The information for prescribed controlled
substances may be kept either in a log or on patient records
provided such records or logs are made available for
inspection. The information for dispensed controlled
substances must be maintained in a separate log at least 8 by
11 inches in dimension. Entries must include the date
dispensed, name and address of the patient, name and
strength of medication, and amount dispensed.
3) Other persons registered to manufacture,
distribute, or dispense controlled substances shall maintain a
record with the following information:
(a) Amount received or distributed.
(b) Names, addresses and dates regarding
these transactions.
(c) Other records required by 21 CFR 1300 to
the end of 1316.
b. Accountability Audits
1) Pharmacies - Accountability audits in
pharmacies will be accomplished through a review of
invoices, prescription files, other records required by 21
CFR 1300 to the end of 1316.
2) Medical, dental an veterinary - Accountability
audits of medical, dental and veterinary practitioners will be
accomplished through a review of records to be kept by
paragraph (a) of this section.
3) Manufacturers and distributors -
Accountability audits of manufacturers and distributors
(including wholesalers) will be accomplished through a
review of invoices received and distributed and other records
required by 21 CFR 1300 to the end of 1316.
c. Final inventory
1) Pharmacies
Whenever the pharmacist in charge of a
pharmacy in the State of Delaware leaves his position, a
complete inventory of all medication covered by 16 Del. C.,
Ch. 47 will be taken by the present and prospective
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
752 PROPOSED REGULATIONS
pharmacist-in-charge. A copy of such inventory will be sent
to the Office of Narcotics and Dangerous Drugs and another
copy retained on the premises. For the purpose of this
regulation, the "pharmacist-in-charge" is a pharmacist
registered with the State Board of pharmacy and who is
responsible for the prescription department of the registrant.
2) Medical, dental and veterinary
Medical, dental and veterinary practitioners
who cease legal existence or discontinue business or
professional practice shall notify the Office of Narcotics and
Dangerous Drugs promptly of such fact, and shall provide
the Office with an inventory off controlled substance on
hand.
d. Retention of Records
All records required by this Regulation must be
retained for a period of at least two (2) years.
4. Prescriptions
a. Definitions
As used in this section:
1) The term "Act" means the Controlled
Substance Act, 16 Del. C., Ch. 47.
2) The term "individual practitioner" means
physician, dentist, veterinarian, or other individual, licensed,
registered, or otherwise permitted, by the United States or
the State of Delaware to dispense a controlled substance in
the course of professional practice but does not include a
pharmacist, a pharmacy, or an institutional practitioner.
3) The term "pharmacist" means any pharmacist
licensed by the State of Delaware to dispense controlled
substances and shall include any other person (e.g.
pharmacist intern) authorized by the State of Delaware to
dispense controlled substances under the supervision of a
pharmacist licensed by this State.
4) The term "prescription" means an order for
medication which is dispensed to or for an ultimate user but
does not include an order for medication which is dispensed
for immediate administration to the ultimate user. (e.g, an
order to dispense a drug to a bed patient for immediate
administration in a hospital is not a prescription.)
5) The terms "register" and "registered" refer to
registration required by 16 Del. C., §4732.
b. Persons Entitled to Issue Prescriptions
1) A Prescription for a controlled substance may
be issued only by an individual practitioner who is:
(a) Authorized to prescribe controlled
substances by the jurisdiction in which he is licensed to
practice his profession; and
(b) Either registered or exempt from
registration pursuant to 16 Del. C. § 4732.
2) A verbal prescription for a controlled substance
may only be communicated to a pharmacist by the
prescriber. Prescriptions for controlled substances
communicated by an employee or agent of the prescriber are
not valid.
3) Written prescriptions for controlled substances
may be transmitted via facsimile by a practitioner or by the
practitioner's authorized agent to a pharmacy only when the
transmission complies with 21 CFR 1306.11, 1306.21 and
1306.31.
c. Purposes of Issue of Prescription
1) A prescription for a controlled substance to be
effective, must be issued for a legitimate medical purpose by
an individual practitioner acting in the usual course of his
professional practice. The responsibility for proper
prescribing and dispensing of controlled substances is upon
the prescribing practitioner, but a corresponding
responsibility rests with the pharmacist who fills the
prescription. An order purporting to be a prescription not
issued in the usual course of professional treatment or in
legitimate and authorized research is not a prescription
within the meaning and intent of §4738 of the Act and the
person knowingly filling such a purported prescription, as
well as the person issuing it shall be subject to the penalties
provided for violation of the provisions of law relating to
controlled substances.
2) A prescription may not be issued in order for
an individual practitioner to obtain controlled substances for
supplying the individual practitioner for the purpose of
general dispensing to patients.
3) A prescription may not be issued for the
dispensing of narcotic drugs listed in any schedule to a
narcotic drug dependent person for the purpose of continuing
his dependence upon such drugs, unless otherwise
authorized by law.
d. Manner of Issuance of Prescriptions
1) All prescriptions for controlled substances
shall be dated and signed on the day when issued and shall
bear the full name and address of the patient, and the name,
address and registration number of the practitioner. A
practitioner may sign a prescription in the same manner as he
would sign a check or legal document (e.g. J.H. Smith or
John H. Smith). When an oral order is not permitted,
prescriptions shall be written with ink or indelible pencil or
typewriter and shall be manually signed by the practitioner.
The prescriptions may be prepared by a secretary or agent
for the signature of a practitioner but the prescribing
practitioner is responsible where the prescription does not
conform in all essential respects to the law and regulations.
A corresponding liability rests upon the pharmacist who fills
a prescription not prepared in the form prescribed by these
regulations. Each written prescription shall have the name
of the practitioner stamped, typed, or hand-printed on it, as
well as the signature of the practitioner.
e. Persons Entitled to fill Prescriptions
A prescription for controlled substances may only
be filled by a pharmacist acting in the usual course of his
professional practice and either registered individually or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 753
employed in a registered pharmacy or by a registered
institutional practitioner.
f. Dispensing Narcotic Drugs for Maintenance
Purposes
No person shall administer or dispense narcotic
drugs listed in any schedule to a narcotic drug dependent
person for the purpose of continuing his dependence except
in compliance with and as authorized by Federal law and
regulation.
g. Emergency Dispensing of Schedule II Substances
In an emergency situation a pharmacist may
dispense controlled substances listed in Schedule II upon
receiving oral authorization of a prescribing individual
practitioner, provided that the procedures comply with
Federal law and regulation.
h. Expiration of Prescription
Prescriptions for controlled substances in Schedules
II and III will become void unless dispensed within seven (7)
days of the original date of the prescription or if the original
prescriber authorizes the prescription past the seven (7) days
period. Such prescriptions cannot be written nor dispensed
for more than 100 dosage units nor can more than 100
dosage units be dispensed or a 31 day supply whatever is the
greater at one time. As an exception to dosage limitations
set forth in this subparagraph, and in accordance with 21
C.F.R. Section 1306.1(b), prescriptions for controlled
substances in Schedule II for patients either having a
medically documented terminal illness or patients in Long
Term Facilities (LTCF), may be filled in partial quantities, to
include individual dosage units. For each partial filling, the
dispensing pharmacist shall record on the back of the
prescription (or another appropriate record, uniformly
maintained, and readily retrievable) the date of the partial
filling, quantity dispensed, remaining quantity authorized to
be dispensed and the identification of the dispensing
pharmacist. The total quantity of Schedule II controlled
substances dispensed in all partial fillings must not exceed
the total quantity prescribed. Schedule II prescriptions for
terminally ill or LTCF patients, shall be valid for a period
not to exceed 60 days from the issue date unless sooner
terminated by the discontinuance of the medication.
i. Mail Order Prescription
Before dispensing prescriptions for Schedules II,
III, IV, V controlled substances by mail, the registrant and/or
the pharmacist-in-charge must assure that the prescription is
valid and written by a prescriber properly registered with the
Federal Government. Such verification may be made either
in writing or orally.
j. Pursuant to authority granted by 16 Del. C. §4732
the Secretary finds that waiver of the registration
requirements contained in that section as to non-resident
physicians or dentists is consistent with the public health and
safety subject to the conditions contained in this regulation.
Pharmacists may dispense controlled substances pursuant to
a prescription written by a non-resident physician or dentist
(who is not registered under 16 Del. C., Ch. 47) provided
that:
1) The pharmacist must establish that the nonresident
physician or dentist is properly registered to
prescribe controlled substances under Federal Law. The
pharmacist may keep a record which contains the name and
address of the non-resident physician or dentist, his Federal
registration number, and the name and address of the source
of the registration data.
2) The pharmacist must verify the identification
of the bearer of the prescription by reference to a driver's
license or some other identification which contains the
bearer's photograph, and must keep a record of such person.
3) The pharmacist must establish that the name of
the non-resident physician or dentist does not appear on the
list kept by the Office of Narcotics and Dangerous Drugs of
the Division of Public Health of those non-resident
physicians and dentists to whom the waiver granted by this
regulation does not apply.
The waiver of the registration requirement
provided by the registration shall not apply to non-resident
physicians and dentists determined by the Office of
Narcotics and Dangerous Drugs of the Division of Public
Health to have acted in a manner inconsistent with the Public
Health and Safety, and Safety, and the Office of Narcotics
and Dangerous Drugs shall maintain a list of those nonresident
physicians and dentists found by them to have so
acted. Pharmacists shall not honor the prescriptions of nonresident
physicians and dentists whose names appear on that
list unless such non-resident physicians and dentists have
registered pursuant to the provisions of 16 Del. C. § 4732.
k. Except when dispensed directly by a practitioner
other than a pharmacy to an ultimate user, no Schedule V
cough preparation containing codeine, dilaudid or any other
narcotic cough preparation may be dispensed without the
written or oral prescription of a practitioner - effective date
January 1, 1974.
l. The pharmacist or an employee under his/her
supervision must verify the identity of the person receiving a
dispensed controlled substance at the time it is transferred to
that person. A driver's license or a similar document
containing a photograph and the name and address of the
person is an acceptable document. The name and address of
the person should be recorded on either the prescription or
patient's profile. The pharmacist or employee is not required
to follow this procedure for each transaction if the identify of
the person is clearly established by visual recognition. In
those cases, the information shall be recorded at least once.
5. Security and Disposal
a. Security
1) Schedule II Substances Storage
(a) Pharmacies and medical, dental and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
754 PROPOSED REGULATIONS
veterinary practitioners must store Schedule II controlled
substances in a burglar resistant type safe or GSA Class 5
grade steel cabinet or their equivalent. If the safe weighs
less than 750 pounds, it must be bolted, cemented, or secured
to the wall or floor in such a way that it cannot be readily
removed. Other types of substantially construed, securely
locked cabinets or drawers are acceptable provided that the
room, storage area or areas shall be provided with electronic
intrusion detection equipment to all sections of the said area
or areas where Schedule II controlled substances are stored,
so as to detect four-step movement (as defined in Section
12.8 of U.L. Standards 681). The aforementioned electronic
intrusion detection equipment shall be installed using
equipment that must be U.L. approved and listed. The said
system must be capable of transmitting a local alarm to an
outside audible device that shall comply with U.L. Standard
4.64. A local alarm connection shall not be permitted if the
controlled substance premise is located more than 400 feet
from a public roadway. If said controlled substances
premise is more than 400 feet from public roadway or found
to be within a location where such an alarm would not be
effective, then the alarm system on said controlled
substances premises shall transmit an alarm signal to a
certified station or directly into a law enforcement agency
that has 24-hour monitoring capabilities. The Secretary may
require additional security requirements if he deems it
necessary as a result of excessive diversion of controlled
substances. DEFINITIONS: Four-step movement - 12.8 -
The system shall respond to the movement of a Four-step
person walking not more than four consecutive steps at a rate
of one step per second. Such Four-step movement shall
constitute a "trial", and a sufficient number of detection units
shall be installed so that, upon test, an alarm will be initiated
in at least three out of every four consecutive "trials" made
moving progressively through the protective area.
(b) Safes, cabinets or drawers containing
Schedule II controlled substances must be kept locked at all
times. They may be opened only by the practitioner or by
the pharmacist-in charge or other designees, who must be
licensed medical professionals.
(c) Practitioners who store no more than 400
total dosage units of Schedule II substances are not required
to comply with the safe or alarm requirements of the
Regulation. However, their Schedule II controlled
substances must be stored in securely locked, substantially
constructed cabinets.
(d) Controlled substances listed in Schedules
III, IV and V shall be stored in a securely locked,
substantially constructed cabinet. Pharmacies may disperse
such substances in Schedule III, IV and V throughout the
stock of non-controlled substances in such a manner as to
obstruct the theft or diversion of the controlled substances.
The immediate area in a pharmacy containing dispersed,
controlled drugs must be secured in a manner approved by
the Office of Narcotics and Dangerous Drugs which will
prevent entry by unauthorized persons. The keys to such
area shall at all times be carried by a pharmacist. The doors
shall be locked whenever the area is not directly under the
supervision of a pharmacist or a responsible person
designated by the pharmacist.
2) Pharmacies
Schedule II controlled substances kept in areas
other than prescription areas in pharmacies must be placed in
safes, cabinets or drawers of the type described above.
These must be kept locked at all times and may be opened
only by the pharmacist-in-charge or his designee, who must
also be a registered pharmacist. Schedule III through V
controlled substances kept in areas other than prescription
areas in pharmacies must be kept in adequately locked
enclosures. They may be opened only by the pharmacist-incharge,
or his designees, who must be licensed pharmacists.
3) Report of Loss or Theft
Registrants shall notify the Office of Narcotics
and Dangerous Drugs, Division of Public Health, of any
theft or significant loss of any controlled substances, or of
any prescription blanks, upon the discovery of such loss or
theft. In addition, registrants shall complete the Federal
forms regarding such loss or theft, one copy of which must
be filed with the Office of Narcotics and Dangerous Drugs.
4) Hypodermic syringes and needles must be
secured in an area only accessible to personnel authorized
under 16 Del. C., Ch. 47 to dispense such items.
b. Disposal
1) Controlled Substances
Any registrant in possession of any controlled
substances and desiring or required to dispose of such
substance or substances shall contact the Office of Narcotics
and Dangerous Drugs of the Division of Public Health for
proper instructions regarding disposal.
2) Hypodermic Syringe or Needle
Hypodermic syringes or needles shall be
destroyed before disposal in such a manner as will render it
impossible to adapt them for the use of narcotic drugs by
subcutaneous injections.
6. Procedures for Adoption of Regulations
a. Notice
Prior to the adoption, amendment or repeal of any
of these controlled substances regulations, the Secretary will
give at least twenty (20) days notice of the intended action.
The notice will include a statement of either the terms of
substance of the intended action or a description of the
subjects and issues involved, and the time when , the place
where present their views thereon. The notice will be mailed
to persons who have made timely request of the Office of
Narcotics and Dangerous Drugs for advance notice of such
rule-making proceedings and shall be published in a
newspaper of general circulation in this State.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 755
b. Hearing
The Secretary will afford all interested persons a
reasonable opportunity to submit data, views or arguments,
orally or in writing. He may appoint subordinates to preside
over such hearings.
c. Emergency Regulations
If the Secretary finds that an imminent peril to the
public health, safety or welfare requires adoption of a
regulation upon fewer then twenty (20) days notice and
states in writing his reasons for that finding, he may proceed
without prior notice or hearing or upon any abbreviated
notice and hearing he finds practicable, to adopt an
emergency regulation. Such rules will be effective for a
period not longer than 120 days, but the adoption of an
identical rule under the procedures discussed above is not
precluded.
d. Finding and Availability
The Secretary will file any adoption, amendment or
repeal of these regulations with the Secretary of State.
Regulations will become effective upon such filing. In
addition, copies of these regulations will be available for
public inspection at the Office of Narcotics and Dangerous
Drugs of the Division of Public Health, Jesse S. Cooper
Building, Dover, Delaware, 19901.
7. Severability
If any provision of these regulations is held invalid the
invalidity does not effect other provisions of the regulations
which can be given effect without the invalid provisions or
application, and to this end the provisions of the regulation
are severable. Pursuant to 16 Del. C. §4718 (f) and 16 Del.
C. §4720 (c) the Secretary finds that the compounds,
mixtures or preparations listed in 21 CFR 1301.21, 21 CFR
1308.24 contain one or more active medical ingredients not
having a stimulant or depressant effect on the central
nervous system and that the admixtures included therein are
in combinations, quantities, proportions, or concentrations
that vitiate the potential for abuse of the substances which
have a stimulant or depressant effect on the central nervous
system, and therefore: The Secretary, as authorized by 16
Del. C. §4718 (f) and 16 Del. C. §4720 (c), does hereby
except by rule the substances listed in 21 CFR 130.21, CFR
1308.24 and 21 CFR 1308.32 from Schedules III and IV of
the Uniform Controlled Substances Act, 16 Del. C., Chapter
47.
DIVISION OF SOCIAL SERVICES
Statutory Authority 31 Delaware Code,
Section 505 (31 Del.C. 505)
CHILD CARE FEE
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services is proposing
to implement a policy change to the Division of Social
Services Manual, Section 11004.7, clarifying when the child
care fee will be waived.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed revised regulation must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by October 31, 2001.
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 REGULATION
Provides for situations where parent fees can be waived
when paying the parent fee would create an excessive
financial burden for certain families. The revised policy
would define excessive financial burden as situations where
the family_s disposable income after deductions result in the
family having income below 75% of the Federal Poverty
Level. Deductions are limited to:
• Rent, mortgage, lot rent;
• Any mandatory expense required by the landlord or
mortgage holder (e.g., homeowner_s insurance,
property taxes, school taxes);
• Actual utility expenses (e.g., electric, gas, water,
sewer).
REVISION
11004.7 Determination Of The Child Care Fee & Fee
Waiving
Under regulations, 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 child care
fee. DSS, however, provides child care services to certain
families at no cost. Part of the process, therefore, of
determining fees includes not only the decision of how much
parent/caretakers should pay for the cost of care, but also
which families should receive services at no cost.
Parent/caretakers who have a need for service or who
receive child care services in Categories 11 and 12 receive
service at no cost. In addition, Caretakers in Category 31,
who have a need for services and who are the caretakers of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
756 PROPOSED REGULATIONS
children who receive ABC or GA assistance, will receive
service at no cost. Also, parent/caretakers in Category 31
who are in need of protective services will receive service at
no cost, unless the Division of Family Services specifically
requests that a parent/caretaker pay a fee.
NOTE: the CCMIS is designed so that if Category 11 or
12 is entered as the child care category, the child care fee is
waived automatically.
Parent/Caretakers in Categories 13, 21, and 31 are to
pay a child care fee, unless the fee is waived.
In categories other than 13 where parent/caretakers are
to pay a child care fee, the fee may be still be waived under
the following circumstances:
A. a family has extensive medical expenses for which
there are no payments through Medicaid or other insurance
carriers;
B. a family_s shelter costs exceed 30 percent of
household expenses;
C. a family's utility costs, exclusive of telephone,
exceed 15 percent of household income;
D. a family has additional food expenses resulting
from diets prescribed by a physician;
E. a family has additional transportation costs due to
lack of public transportation in rural areas;
F. a family is homeless;
G. a family has a special need and this need poses a
financial hardship; or
H. other situations of hardship exist (multiple children
in care, household crisis, etc.).
Document the decision to waive the fee as well as obtain
supervisory approval before doing so. The CCMIS User
Manual contains the appropriate waiver codes for waiving
fees in the CCMIS.
All child care fees will be waived if the family meets
one of the four (4) conditions below.
1. For all families in Category 31 active with the
Division of Family Services (DFS) including foster care
families.
2. For all families in Delaware_s A Better Chance
Welfare Reform Program (DABC) in Categories 11 and 12,
General Assistance (GA) families, and caretakers in
Category 31 caring for children who receive DABC or GA
assistance where the adult requesting the child care is not the
child's natural or adoptive parent (for example,
grandparents, aunts, uncles, etc.).
3. When paying the fee creates an excessive financial
burden (as defined below). Excessive financial burden is
defined as situations where the family_s disposable income,
after deductions listed below, result in the family having
income below 75% of the federal poverty level. Deductions
are limited to:
• rent, mortgage, lot rent;
• any mandatory expense required by the landlord or
mortgage holder (e.g., homeowners insurance,
property taxes, school taxes);
• actual utility expenses (e.g., electric, gas, water,
sewer);
4. Families where the need for service is based on the
special needs of the child or the caretaker.
All requests to waive the fee must be documented in the
case file and be approved by the unit supervisor. Requests to
waive the fee for Division of Social Service (DSS)
employees (seasonal, merit system) or temporary employees
working for DSS must be approved by the Operations
Administrator, as well as 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 the waived fee conditions
above.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Air Quality Management Section
Statutory Authority: 7 Delaware Code,
Section 6010, (7 Del.C. 6010)
REGISTER NOTICE
1. TITLE OF THE PROPOSAL:
State Implementation Plan Development: A new
regulation #43 that will incorporate by reference the "Not to
Exceed" California rules covering new heavy duty diesel
engines registered for model years 2005 and 2006
2. BRIEF SYNOPSIS OF THE SUBJECT,
SUBSTANCE AND ISSUES:
The proposed regulation requires manufacturers to
perform supplemental test procedures, in addition to the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 757
existing Federal Test Procedure (FTP). The regulation will
cover a gap in the legal requirements on manufacturers for
these two model years that will ensure diesel powered heavy
duty vehicles will continue to reduce NOx (nitrogen oxides)
emissions in the years between those covered by a court
consent decree and the adopted federal standards which
begin in model year 2007.
Under this regulation, manufacturers and dealers must
provide documentation to purchasers of the applicable heavy
duty diesel vehicles they sell in the State that verifies the
vehicles are equipped with engines that comply with the
"Not to Exceed" California rules. Anyone registering these
vehicles must submit a copy of this documentation to the
Division of Motor Vehicles.
3. POSSIBLE TERMS OF THE AGENCY ACTION:
N/A
4. STATUTORY BASIS OR LEGAL AUTHORITY
TO ACT:
• 7 D el. C. Section 6010
• 29 D el. C. Chapter 101
5. OTHER REGULATIONS THAT MAY BE
AFFECTED BY THE PROPOSAL:
None
6. NOTICE OF PUBLIC COMMENT:
Public Hearing is on October 31, 2001, 6 P.M. 156
South State Street, Second Floor, Dover
7. PREPARED BY:
Philip A. Wheeler, 739-4791, September 10, 2001
Proposed Regulation 43
Not To Exceed California Heavy Duty Diesel Engine
Standards
xx/xx/2001
Section 1 - Applicability
These rules apply to heavy-duty diesel engines
produced for the 2005 and 2006 model years, and to new
motor vehicles with a gross vehicle weight rating (GVWR)
of greater than 14,000 pounds containing such engines that
are sold, leased, offered for sale or lease, imported,
delivered, rented acquired, or received in the State of
Delaware
xx/xx/2001
Section 2 - Definitions
The following definitions are applicable to this
regulation:
Department means The Delaware Department of
Natural Resources and Environmental Control.
Division means The Delaware Division of Motor
Vehicles of the Delaware Department of Public Safety
Emergency vehicle means any publicly owned and
operated ambulance, lifeguard, or lifesaving equipment or
any privately owned or operated to operate in response to
emergency calls. Any publicly owned vehicle operated by
the following persons, agencies, or organizations: (1) Any
federal, state, or local agency, department, or district
employing peace officers for use by those officers in the
performance of their duties. (2) Any forestry or fire
department of any public agency or fire department Any
vehicle owned by the state, or any bridge and highway
district, and equipped and used either for fighting fires, or
towing or servicing other vehicles, caring for injured
persons, or repairing damaged lighting or electrical
equipment. Any state-owned vehicle used in responding to
emergency fire, rescue or communications calls and
operated either by the Delaware Emergency Management
Agency or by any public agency or industrial fire department
to which the Delaware Emergency Management Agency has
assigned the vehicle. Any vehicle owned or operated by any
department or agency of the United States government when
the vehicle is used in responding to emergency fire,
ambulance, or lifesaving calls or is actively engaged in law
enforcement work. Any vehicle for which an authorized
emergency vehicle permit has been issued by the
Superintendent of the Delaware State Police.
Executive Order means a document issued by the
California Air Resources Board (CARB) certifying that a
specified engine family or model year vehicle has met all
applicable Title 13 CCR requirements for certification and
sale in California.
Heavy-duty diesel engine means a diesel engine that is
used to propel a motor vehicle with a Gross Vehicle Weight
Rating of 14,001 pounds or greater.
Heavy-duty motor vehicle means a motor vehicle with a
Gross Vehicle Weight Rating of 14,001 pounds or greater
Model year means the manufacturer's annual production
period which includes January 1 of a calendar year or, if the
manufacturer has no annual production period, the calendar
year. In the case of any vehicle manufactured in two or more
stages, the time of manufacture shall be the date of
completion of the chassis.
New motor vehicle means a motor vehicle, the equitable
or legal title to which has never been transferred to an
ultimate purchaser
New motor vehicle engine means a new engine in a
motor vehicle.
Ultimate purchaser means, with respect to any new
motor vehicle or new motor vehicle engine, the first person
who in good faith purchases a new motor vehicle or new
motor vehicle engine for purposes other than resale.
Ultra-small volume manufacturer means any
manufacturer with Delaware sales less than or equal to 300
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
758 PROPOSED REGULATIONS
new passenger cars, light-duty trucks, medium-duty
vehicles, heavy-duty vehicles, and heavy-duty engines per
model year based on the average number of vehicles and
engines sold by the manufacturer in the previous three
consecutive model years.
Urban bus means a passenger-carrying vehicle powered
by a heavy heavy-duty diesel engine, or of a type normally
powered by a heavy heavy-duty diesel engine, with a load
capacity of fifteen (15) or more passengers and intended
primarily for intra-city operation, i.e., within the confines of
a city or greater metropolitan area. Urban bus operation is
characterized by short rides and frequent stops. To facilitate
this type of operation, more than one set of quick-operating
entrance and exit doors would normally be installed. Since
fares are usually paid in cash or token, rather than purchased
in advance in the form of tickets, urban buses would
normally have equipment installed for the collection of fares.
Urban buses are also typically characterized by the absence
of equipment and facilities for long distance travel, e.g.,
restrooms, large luggage compartments, and facilities for
stowing carry-on luggage.
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Section 3 - Severability
Each section of this regulation shall be deemed
severable. If any section of this regulation is held to be
invalid, the remainder shall continue in full force and effect.
xx/xx/2001
Section 4 - Reporting Requirements
All manufacturers of 2005 and 2006 model year heavyduty
diesel vehicles with a MGVWR of 14,001 pounds or
greater shall provide certification that the engine used in the
manufacturer's vehicle comply with the applicable exhaust
emissions standards under Title 13, Section 1956.8 of the
California Code of Regulations, and shall be consistent with
the Executive Order issued by CARB for the appropriate
engine family or model year. This certification shall be sent
to the Department thirty (30) days prior to the date of the
first vehicle being potentially available for sale.
xx/xx/2001
Section 5 - Dealer Compliance
No person who is a resident of this state, or who
operates an established place of business within this state,
shall sell, lease, rent, import, deliver, lease, purchase,
acquire, or receive in the State of Delaware, or offer for sale,
lease, or rental in this state (or attempt or assist in any such
prohibited action) any of the following types of motor
vehicles or engines that are intended primarily for use or for
registration in the State of Delaware, unless the
manufacturer has certified on the Certificate of Origin that
the engine in the vehicle complies with Title 13, Section
1956.8 of the California Code of Regulations last amended
on July 25, 2001 or complies with other documentation
approved and provided by the Department:
a. A 2005 or 2006 model year heavy-duty diesel
engine;
b. A new motor vehicle equipped with a 2005 or 2006
model year heavy-duty diesel engine; or
c. A motor vehicle with a new 2005 or 2006 model
year heavy-duty diesel engine.
xx/xx/2001
Section 6 - Exemptions and Technology Review
Notwithstanding Section 4, the requirements of this
regulation shall not apply to:
a. A model year 2005 or 2006 heavy-duty diesel
engine manufactured by an ultra-small volume manufacturer
or intended for use in an urban bus;
b. An engine if, following a technology review, the
California Air Resources Board determines that it is
inappropriate to require compliance for heavy-duty diesel
engines of that particular model year and engine family;
c. A vehicle acquired by a resident of this state for the
purpose of replacing a vehicle registered to such resident
which was damaged or became inoperative beyond
reasonable repair or was stolen while out of this state;
provided that such replacement vehicle is acquired out of
state at the time the previously owned vehicle was either
damaged or became inoperative or was stolen;
d. A vehicle transferred by inheritance, or by a decree
of divorce, dissolution, or legal separation entered by a court
of competent jurisdiction;
e. A motor vehicle having a certificate of conformity
issued pursuant to the Clean Air Act (42 U.S.C. §7401 et
seq.) and originally registered in another state by a resident
of that state who subsequently establishes residence in this
state and who, upon registration of the vehicle in this state
provides satisfactory evidence to the Division of the
previous residence and registration;
f. An emergency vehicle;
g. A military tactical vehicle or equipment; or
h. Any other vehicles exempted by the California
Health and Safety Code, section 43656 as of March 20,
2001.
xx/xx/2001
Section 7 - Manufacturer Compliance with California
Orders and Voluntary Recalls
a. Any order or enforcement action taken by the
California Air Resources Board to correct noncompliance
with any heavy-duty diesel engine requirements adopted by
such Board on December 8, 2000 shall be applicable to all
such engines and motor vehicles subject to this regulation,
sold, leased, or rented, offered for sale, lease, or rental, or
registered in Delaware, except where the manufacturer
demonstrates to the Department satisfaction, within 21 days
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 759
of issuance of such CARB action, that this action is not
applicable to such engines or vehicles in Delaware.
b. Any voluntary or influenced emission-related recall
campaign initiated by any manufacturer pursuant to Title 13,
sections 2113 through 2121 of the California Code of
Regulations shall extend to all applicable engines and motor
vehicles subject to this regulation, sold, leased, or rented,
offered for sale, lease, or rental, or registered in Delaware,
except where the manufacturer demonstrates to the
Department's satisfaction, within 21 days of approval of the
campaign by the CARB, that this campaign is not applicable
to such engines or vehicles in Delaware.
xx/xx/2001
Section 8 - Adoption and Incorporation by Reference of
California Rules
The Department hereby adopts and incorporates by
reference the exhaust emission standards (and associated
performance test procedures) for model year 2005 and 2006
heavy-duty diesel engines adopted by the California Air
Resources Board on December 8, 2000, and any future
amendments to these provisions that the CARB may
promulgate These standards are found in section 1956.8 of
Title 13 of the California Code of Regulations, which
incorporates by reference the test procedures for determining
compliance with the standards.
xx/xx/2001
Section 9 - Requirements for Vehicle Registration and
Transactions
a. No new motor vehicle equipped with a 2005 or
2006 model year heavy-duty diesel engine may be registered
with the Division unless the applicant provides a copy of the
Certificate of Origin which complies with Section 5 of this
regulation or the Department provides notification to the
Division that all vehicles from a specific manufacturer are in
compliance with Section 5 of this regulation or other
documentation approved by the Department.
b. No person who is a resident of this state, or who
operates an established place of business within this state,
shall sell, lease, rent, import, deliver, lease, purchase,
acquire, or receive in this state, or offer for sale, lease, or
rental in this state (or attempt or assist in any such prohibited
action) any of the following types of motor vehicles or
engines that are intended primarily for use or for registration
in this state, unless the manufacturer of the engine has
received such an Certificate of Origin complies with the
standards adopted in Section 4 of this regulation or the
manufacturer provides other Department approved
documents certifying compliance with Title 13, Section
1956.8 of the California Code of Regulations, last amended
July 25, 2001:
1. A 2005 or 2006;
2. A new motor vehicle equipped with a 2005 or
2006 model year heavy-duty diesel engine; or
3. A motor vehicle with a new 2005 or 2006
model year heavy-duty diesel engine.
xx/xx/2001
Section 10 - Exemptions and Technology Review
Notwithstanding section 8 the requirements of this
regulation shall not apply to:
a. A model year 2005 or 2006 heavy-duty diesel
engine manufactured by an ultra-small volume manufacturer
or intended for use in an urban bus;
b. An engine if, following a technology review, the
CARB determines, and is subsequently approved by the
Department, that it is inappropriate to require compliance for
heavy-duty diesel engines of that particular model year and
engine family;
c. A vehicle acquired by a resident of this state for the
purpose of replacing a vehicle registered to such resident
which was damaged or became inoperative beyond
reasonable repair or was stolen while out of this state;
provided that such replacement vehicle is acquired out of
state at the time the previously owned vehicle was either
damaged or became inoperative or was stolen;
d. A vehicle transferred by inheritance, or by a decree
of divorce, dissolution, or legal separation entered by a court
of competent jurisdiction;
e. A motor vehicle having a certificate of conformity
issued pursuant to the Clean Air Act (42 U.S.C. §7401 et
seq.) and originally registered in another state by a resident
of that state who subsequently establishes residence in this
state and who, upon registration of the vehicle in this state
provides satisfactory evidence to the Division of the
previous residence and registration;
f. An emergency vehicle;
g. A military tactical vehicle or equipment; or
h. Any other vehicles exempted by the California
Health and Safety Code, section 43656 as of March 20,
2001.
xx/xx/2001
Section 11 - Manufacturer Compliance with California
Orders and Voluntary Recalls
a. Any order or enforcement action taken by the
CARB to correct noncompliance with any heavy-duty diesel
engine requirements adopted by such Board on December 8,
2000 shall be applicable to all such engines and motor
vehicles subject to this regulation, sold, leased, or rented,
offered for sale, lease, or rental, or registered in State of
Delaware, except where the manufacturer demonstrates to
the Department's satisfaction, within 21 days of issuance of
such CARB action, that this action is not applicable to such
engines or vehicles in Delaware.
b. Any voluntary or influenced emission-related recall
campaign initiated by any manufacturer pursuant to Title 13,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
760 PROPOSED REGULATIONS
sections 2113 through 2121 of the California Code of
Regulations shall extend to all applicable engines and motor
vehicles subject to this regulation:
1. Sold, leased, or rented,
2. Offered for sale, lease, or rental, or
3. Registered in Delaware,
except where the manufacturer demonstrates to the
Department's satisfaction, within 21 days of approval of the
campaign by the CARB, that this campaign is not applicable
to such engines or vehicles in Delaware.
DIVISION OF WATER RESOURCES
Statutory Authority: 7 Delaware Code,
Section 6010, (7 Del.C. 6010)
REGISTER NOTICE
1. Brief Synopsis of the Subject, Substance and Issues:
The State of Delaware revised on-site wastewater
treatment and disposal system criteria and standards to keep
pace with the industry and maintain its prominence as a
nationally recognized leader in this field. To ensure the
Regulations Governing the Design, Installation and
Operation of On-Site Wastewater Treatment and
Disposal Systems are current with industry standards,
engineering practices, soil science principles and compliance
issues, the State of Delaware, in accordance with 7 Del.C.
§6010, will amend Sections 2 through 10 and the Exhibits.
2. Possible Terms of the Agency Action:
N/A
3. Statutory Basis or Legal Authority to Act:
7 Del C. Section 6010
4. List of Other Regulations That May be Impacted or
Affected by the Proposal:
N/A
5. Notice Of Public Comment:
The Department of Natural Resources and
Environmental Control, Division of Water Resources, will
conduct a public hearing on October 23, 2001, beginning at
6:00 p.m., in the auditorium of the Richardson and Robbins
Building, 89 Kings Highway, Dover, Delaware, to hear
testimony and receive comments on the proposed
amendments to the Regulations Governing the Design,
Installation and Operation of On-Site Wastewater
Treatment and Disposal Systems.
The State of Delaware revised on-site wastewater
treatment and disposal system criteria and standards to keep
pace with the industry and maintain its prominence as a
nationally recognized leader in this field. To ensure the
Regulations Governing the Design, Installation and
Operation of On-Site Wastewater Treatment and
Disposal Systems are current with industry standards,
engineering practices, soil science principles and compliance
issues, the State of Delaware, in accordance with 7 Del. C.
§6010, will amend Sections 2 through 10 and the Exhibits.
For additional information or to request a copy of the
proposed revisions to the regulations please contact the
Ground Water Discharges Section at (302) 739-4761.
The procedures for public hearings are established in 7
Del.C. § 6006 and 29 Del.C. §10117. Inquiries regarding
the public hearing should be directed to Lisa A.Vest at (302)
739-4403. Statements and testimony may be presented
orally or in written form at the hearing. It is requested that
those interested in presenting statements register in advance
by mail. The deadline for inclusion of written comments in
the hearing record will be announced at the time of the
hearing. Written statements may be presented prior to the
hearing and should be addressed to: Lisa A. Vest, Paralegal,
DNREC, 89 Kings Highway, Dover, DE 19901.
THE REGULATIONS GOVERNING THE DESIGN,
INSTALLATION AND OPERATION OF ON-SITE
WASTEWATER TREATMENT AND DISPOSAL
SYSTEMS
ADOPTED: January 4, 1985
EFFECTIVE: January 4, 1985 - Sections 1.00000,
2.00000, 3.00000, 7.00000, 9.00000
and Exhibits
May 1, 1985, Section 4.00000
July 10, 1985 Sections 5.00000, 6.00000,
8.00000 and 10.00000
Amended 7/10/85
8/15/86
9/30/89
1/31/95
July 25, 2001 Revision of all Sections and
Exhibits from public workshops and
written comments
FORWARD
The Department of Natural Resources and
Environmental Control (the Department) finds that a
substantial portion of the State's population lives where
centralized water supplies or wastewater treatment services
are limited. It is the intent of the Department to aid and
assist the public in the installation of on-site wastewater
treatment and disposal systems, where possible, by utilizing
the best information, techniques and soil evaluations for the
most suitable system that site and soil conditions permit.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 761
Statewide regulations governing the installation and
operation of septic tank wastewater treatment and disposal
systems have existed since 1968. Inappropriate installations
and poor operation and maintenance practices resulted in
disposal system malfunctions. Inadequately renovated
wastewater contaminated the State's ground water and
presented a threat to the public health, safety, and welfare.
Corrective measures required the replacement of water
supply and wastewater systems at a very high cost which
was sometimes borne by the general public. Several well
known studies examined these conditions. They found that
the Department's regulations governing the site evaluation,
siting density, installation and operation of on-site
wastewater treatment and disposal systems have been
identified as required revisions.
In considering these findings, the Department
determined that the adoption of effective on-site wastewater
treatment and disposal regulations was the proper course of
action. Through a process that included considerable staff
research, consultant studies, the development of over 650
pages of background "working papers", interaction with a 21
member public/private sector On-Site Wastewater Advisory
Committee, public meetings and presentations, public
workshops, a public hearing and a hearing officer's report
along with five four draft versions of these Regulations were
prepared, reviewed and revised. This final version is the
result of those various activities, and incorporates, as best as
possible, all valid concerns into its provisions.
The purpose of these Regulations, is to prevent the
problems listed above. They are based on the best
information available and include the establishment of a
process for updating Regulations as information changes.
They include what are considered to be the best engineered
design standards for on-site systems, as determined by
research and practical experience. These Regulations seek
to require the use of on-site systems that will function
according to their performance criteria without causing the
State's ground water resources to violate U.S.
Environmental Protection Agency Drinking Water Standards
on an average annual basis. Wastewater management
actions necessary to achieve those standards were
recommended to the Department in Delaware's 1983
Comprehensive Committee's Final Report which has since
been adopted as state policy.
The proper siting of systems is addressed by the
establishment of various soil criteria which lead to the
selection of the most suitable on-site wastewater treatment
and disposal system for local conditions. System selection
and sizing are determined using the results of the site
specific soil evaluations and percolation tests. Density is
addressed by the adoption of minimum lot sizes tied to
appropriate treatment and disposal techniques, and in some
cases, the use of scientific ground water and geological
analyses that both assure renovation of degradable pollutants
and dilution of wastes which are inadequately treated in the
soil. Site evaluation and system selection, design,
installation and pump-outs are required to be performed by
individuals licensed under these regulations. Alternative and
experimental system design criteria are established to enable
proper waste treatment and disposal to occur in locations
where conventional systems would be inappropriate.
Finally, a specific variance procedure is established to
provide an opportunity to reconsider any provision of these
Regulations, provided that proper public disclosure and
adequate consideration of the consequences are provided.
In developing these Regulations, the Department
operated under the philosophy that where soil and site
conditions permit, the least complex, easy to maintain and
most economical system should be used. Although it has not
been possible to include directly every method of on-site
treatment and disposal, the Department's policy is to
encourage development of systems, processes and
techniques which may benefit significant numbers of people
within Delaware. It is expected that these Regulations will
be reviewed and revised periodically and that standards for
other alternative systems will be prepared as more
experience and research data become available. The
Regulations contain provisions that enable that process to
occur.
SECTION 1.00000 - AUTHORITY AND SCOPE
1.01000 These Regulations are adopted by the
Secretary of the Department of Natural Resources and
Environmental Control under and pursuant to the authority
set forth in 7 Del. C., Chapter 60.
1.02000 These Regulations shall apply to all
aspects of:
1.02010 The planning, design, construction,
operation, maintenance, rehabilitation, replacement, and
modification of individual and community on-site
wastewater treatment and disposal systems within the
boundaries of the State of Delaware; and
1.02020 The planning, design, construction
and operation and maintenance of on-site wastewater
holding tanks within the boundaries of the State of
Delaware; and
1.02030 The licensing of percolation testers,
on-site wastewater treatment and disposal system designers,
site evaluators, on-site wastewater treatment and disposal
system contractors, system inspectors and liquid waste
haulers within the boundaries of the State of Delaware.
1.03000 These Regulations shall supersede and
replace Water Pollution Control Regulations #2 Governing
The Installation and Operation of Septic Tank Sewage
Disposal Systems, the Guidelines for Septic Tank Systems,
and Part II of Section 9 of the Regulations Governing the
Control of Water Pollution. With respect to the other
provisions of the Regulations Governing the Control of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
762 PROPOSED REGULATIONS
Water Pollution these Regulations shall supersede such
Regulations only to the extent of any inconsistency. These
Regulations shall apply throughout the State of Delaware.
1.04000 The Department has the authority to
establish and collect fees for the defraying of expenses
incurred by the Department for facilities and services needed
to provide for the administration of its programs. The
authority is contained within Amendment 4701(a), 7 Del.C.,
Chapter 60, which also contains the schedule of fees.
SECTION 2.00000 - DEFINITIONS
2.01000 Words and Phrases
The following words and phrases, when used in
these Regulations still have the meaning ascribed to them as
follows, unless the text clearly indicates otherwise:
2.01010 Absorption Facility: System of
open-jointed or perforated piping, alternative distribution
units, or other seepage systems for receiving the flow from
septic tanks or other treatment facilities and designed to
distribute effluent for oxidation and absorption by the soil
within the zone of aeration.
2.01015 Aggregate-free Chambers: A buried
structure used to create an enclosed unobstructed soil bottom
absorption area and side-wall absorption area for infiltration
and treatment of wastewater which can be use to replace the
filter aggregate and distribution pipe in an absorption
facility.
2.01020 Alteration: An expansion and/or
change Any physical change in the design capacity location
of an existing system, or any part thereof.
2.01030 Alternating System: Two or more
disposal fields, equal in size with dosing provided
alternatively to each field. by means of diversion valves or a
diversion box.
2.01040 Alternative Treatment or and
Disposal System: A wastewater treatment or disposal system
not specified in these regulations which has been proven to
provide at least an equivalent level of treatment or disposal
as the conventional systems included in these regulations.
2.01050 Applicant: The owner or legally
authorized agent of the owner as evidenced by sufficient
written documentation.
2.01060 Authorization Notice to use existing
system: A written document issued by the Department which
establishes that an on-site wastewater treatment and disposal
system appears adequate to serve the purpose for which a
particular application is made. Applications for
Authorization Notices shall be made on forms provided by
the Department and shall be received only when the forms
are complete.
2.01065 Aquifer: A part of a formation, a
formation, or a group of formations that contains sufficient
saturated permeable material to yield economically useful
quantities of water to wells or springs.
2.01070 Backfill: Soil which is clean and free
of foreign debris, placed over the disposal area and fill
extensions.
2.01075 Blackwater: Waste carried off by
toilets, urinals, and kitchen drains.
2.01080 Building Sewer: Piping carrying
which carries liquid wastes wastewater from a building to
the treatment tank or holding tank first component of the
treatment and disposal system.
2.01090 Cesspool: A covered pit with a porous
lining into which wastewater is discharged and allowed to
seep or leach into the surrounding soils with or without an
absorption facility. Note: Cesspools can not be certified for
real estate transfers.
2.01100 Commercial Facility: Any structure or
building, or any portion therefore, other than a residential
dwelling.
2.01110 Community System: An on-site
wastewater treatment and disposal system which will serve
more than one (1) three (3) lots or parcels or more than one
(1) three (3) condominium units or more than one (1) three
(3) units of a planned unit development.
2.01120 Completed Application: One in which
the application form is properly completed in full, is signed
by the owner applicant, is accompanied by all required
exhibits, detailed plans and specifications, and required fee
and is correct.
2.01123 Confined Aquifer: An aquifer
bounded above and below by impermeable beds or by beds
of distinctly lower percolation than that of the aquifer itself
and containing ground water. An aquifer containing ground
water which is everywhere at a pressure greater than
atmospheric pressure and from which water in a well will
rise to a level above the top of the aquifer.
2.01126 Confining Layer: A body of
impermeable or distinctly less permeable material
stratigraphically adjacent to one or more aquifers.
2.01130 Construction Permit: A permit issued
by the Department for the construction, modification
alteration, repair or replacement of an on-site wastewater
treatment and/or disposal system.
2.01132 Construction Report: A report
prepared by the contractor and submitted to the Department
within 10 calendars days after the absorption facility has
been completely installed.
2.01136 Conventional On-Site Wastewater
Systems: gravity, pressure-dosed, low pressure pipe and
elevated sand mound.
2.01140 Conventional Sand Filter: A filter
with two (2) feet of medium sand designed to filter and
biologically treat septic tank or other treatment unit
effluent.from a pressurize distribution system at an
application rate not to exceed one and twenty-three
hundredths (1.23) gallons per square sand surface area per
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 763
day applied at a dose not to exceed twenty (20) percent of the
projected daily sewage flow per cycle.
2.01150 Department: The Department of
Natural Resources and Environmental Control of the State of
Delaware (DNREC).
2.01160 Developer: A person, persons,
partnership, firm, corporation, or cooperative enterprise
undertaking or participating in the development of a
subdivision, mobile home park, or multi-unit housing
project.
2.01170 Director: The Director of the Division
of Water Resources for the State of Delaware or his/her
authorized representative.
2.01180 Disposal Area: The entire area used
for underground dispersion of the liquid portion of sewage
the absorption facility.
2.01190 Distribution Box: A box for
distributing wastewater equally to separate distribution
laterals of a disposal area the absorption facility.
2.01200 Distribution System: Piping or other
devices used in the distribution of wastewater within the
disposal area absorption facility. Also referred to as
distribution laterals.
2.01210 Diversion Box: A device which
provides for the alternating use of portion of a disposal area
2.01220 Dosing: The pumped or regulated
flow of wastewater to a disposal area the absorption facility.
2.01230 Dosing Chamber: A receptacle for
retaining wastewater until pumped or siphoned regulated to
the disposal area absorption facility.
2.01235 Down gradient: An area at which the
potentiometric surface is lower (hydraulic head lower) than
it is at some given point of comparison.
2.01240 Dwelling: Any structure or building,
or any portion thereof which is used, intended, or designed to
be occupied for human living purposes including but not
limited to, houses, houseboats, boathouses, mobile homes,
manufactured homes, travel trailers, hotels, motels,
apartments, and condominiums.
2.01245 Easement: An interest in land owned
by another that entitles its holder to a specific limited use or
enjoyment.
2.01247 Effluent filter: A device placed in the
outlet compartment of a septic tank which conforms to
ANSI/NSF Standard 46 for the purpose of removing
particulate matter before the effluent enters the absorption
facility.
2.01250 Effluent Line: The pipe beginning at
the treatment unit or septic tank and terminating at the
disposal area absorption facility.
2.01255 Elevated Sand Mound: An on-site
wastewater treatment and disposal system which maintains a
36 inch separation distance above the limiting zone which is
pressurized into suitable fill material constructed above
existing grade.
2.01260 Emergency Repair: Repair of a failing
broken system component where immediate action is
necessary to repair a broken pressure sewer pipe protect
public health.
2.01270 Escarpment: Any naturally occurring
slope greater than thirty (30) percent which extends
vertically six (6) feet or more as measured from toe to top,
and which is characterized by a long cliff or steep slope
which separates two (2) or more comparatively level or
gently sloping surfaces, and may intercept one (1) or more
layers than limit soil depth.
2.01280 Existing On-Site Sewage Disposal
Wastewater Treatment and Disposal System: (existing
system) Any installed on-site sewage wastewater treatment
and disposal system constructed in conformance with the
rules, laws and local ordinances in effect at the time of
construction, or which would have conformed substantially
satisfactorily with system design provided for in Department
regulations. Also referred to as an existing system.
2.01290 Experimental Treatment or Disposal
System: Wastewater treatment or disposal systems not
specified in these Regulations which require demonstration
in rural or low density areas to prove it will provide an
equivalent level of treatment or disposal as systems included
in these Regulations.
2.01290 Feasibility Study: A site/soil
investigative report identifying the suitability of a parcel of
land for on-site wastewater treatment and disposal systems.
The report includes information pertinent to the Department
and other local government agencies in the determination of
certain land use decisions.
2.01300 Fill: Soil material which has been
transported to and placed over the original soil or bedrock
and is characterized by a lack of distinct horizons or color
patterns as found in naturally developed, undisturbed soils.
2.01310 Filter Aggregate: Washed gravel or
crushed stone ranging in size from 3/4" to 2 l/2" in any
dimension and clean and free of dust or other fine materials
(dust) or meeting grading specifications in Section 6.01042.
2.01315 Filter Fabric: Any material approved
by the Department which is permeable but does not allow
soil particles to pass through for the purpose of protecting
the filter aggregate or aggregate free chambers within the
absorption facility.
2.01317 Full Depth Gravity: A gravity fed onsite
wastewater treatment and disposal system which
maintains a 36 inch separation distance above the limiting
zone where the trench or bed is installed 24 inches into the
natural soil.
2.01320 Governmental Unit: Means The state
or any county, municipality, or political subdivision, or any
part therefore thereof.
2.01330 GPD: Gallons per day.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
764 PROPOSED REGULATIONS
2.01340 Grade: The inclination or slope of a
conduit or ground or plane surface.
2.01344 Gravity Capping Fill: A gravity fed
on-site wastewater treatment and disposal system which
maintains 36 inches separation distance above the limiting
zone where the trench or bed is installed between 12 and 23
inches into the natural soil below a soil cap of a specified
depth and texture.
2.01347 Greywater: The untreated wastewater
which has not come into contact with toilet waste. Greywater
includes wastewater from bathtubs, showers, bathroom wash
basins, clothes washing machines, laundry tubs and other
waste water which does not present a threat from
contamination by unhealthy processing, manufacturing or
operating wastes. It does not include wastewater from
kitchen sinks or dishwashers.
2.01350 Grease Trap: A watertight tank for the
collection and retention of grease which is accessible for
periodic removal. of the contents.
2.01360 Groundwater: Subsurface water
occupying the saturation zone seasonally or year-round.
Groundwater: Any water naturally found under the surface
of the earth.
2.01370 Holding Tank: A watertight
receptacle used to contain store wastewater prior to being
removed from the premises. by a licensed permitted waste
hauler.
2.01380 Impervious Strata and Formation: An
underground or surface layer of soil or rock which will not
allow water to pass through it at a rate permissible for subsurface
disposal and having a percolation rate greater slower
than one hundred and twenty (120) minutes per inch.
2.01390 Invert: The floor, bottom or lowest
portion of the internal cross section of a closed conduit or
structure.
2.01400 Isolation Distance: The horizontal
distance between a system component and selected site
features or structures.
2.01410 Large System: Any on-site
wastewater treatment and disposal system with a projected
daily sewage wastewater design flow rate greater than two
thousand five hundred (2,500) gallons per day.
2.01415 Lift Pump Station: A receptacle for
pumping wastewater to a system component to overcome
slope differentials for the use of gravity distribution.
2.01420 Limiting Zone: Any horizon or
condition in the soil profile or underlying strata which
includes:
(a) A seasonal high water table, whether
perched or regional, determined by direct observation well
measurements which can be demonstrated to be
representative of the maximum height of the water table on
an annual basis during years of normal precipitation, or by
the depth in the soil at which mottling first occurs; or. The
presence of seasonal or perennial saturation as evidenced by
redoximorphic features or direct measurement of
observation wells; or
(b) Rock with open joints, fractures or
solution channels, masses of loose rock fragments, or loose
weathered rock, including gravel, with insufficient fine soil
to fill the voids between the fragments; or
(c) Rock formation, other stratum, or soil
condition which is so slowly permeable that it effectively
limits downward passage of effluent. Geologic stratum or
soil zone in which the percolation of the stratum or zone
effectively limits the movement of water.
2.01430 Lot: A portion of a subdivision or
parcel of land. intended to accommodate one dwelling unit
or its equivalent in wastewater flow.
2.01433 Low Pressure Pipe Capping Fill: A
pressurized on-site wastewater treatment and disposal
system which is installed as trenches and maintains 18 inch
separation distance above the limiting zone. The trenches
are installed between 9-17 inches into natural soil below a
soil cap of a specified depth and texture.
2.01435 Low Pressure Pipe Full Depth: A
pressurized on-site wastewater treatment and disposal
system which is installed as trenches and maintains 18 inch
separation distance above the limiting zone. The trenches
are installed 18 inches into natural soil.
2.01440 Malfunctioning System: A system
which is not functioning inadequately renovating or
hydraulically eliminating the wastewater it is receiving as
evidenced by, but not limited to, the following conditions:
(a) Failure of a system to accept wastewater
discharge or the backup of wastewater into the structure
served by the system.
(b) Direct discharge of wastewater to the
surface of the ground, surface water, or groundwater without
adequate renovation (This includes cesspools).
2.01450 Manifold: A pipe with numerous
branches to convey fluids effluent between a large pipe and
several smaller pipes, or to permit choice of diverting flow
from one of several sources or to one of several discharge
points.
2.01460 Medium Sand: A mixture of sand with
l00 percent passing the 3/8 inch sieve, 95 percent to l00
percent passing the No. 4 sieve, 5 percent to 30 percent
passing the No. 50 sieve, and one (1) percent to seven (7)
percent passing the No. l00 sieve.
2.01460 Manufactured Home: A home built
entirely in the factory under a federal building code
administered by the Department of Housing and Urban
Development (HUD). Manufactured homes may be single
or multi-section and are transported to the site and installed.
2.01470 Mineral Soil: A soil, excluding the
natural organic layers of the surface, consisting of naturally
occurring mineral matter with organic materials not
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 765
exceeding 20 percent by weight.
2.01475 Monitor Well: A well installed for the
sole purpose of the determination of subsurface conditions
and collecting groundwater samples.
2.01480 Mottling: Soil irregularly marked with
spots of different colors that vary in number and size which
may indicate indicating poor aeration, lack of drainage and
the upper extent of the seasonal high water table.
2.01490 Natural Soil Drainage: The condition
of frequency and duration of periods of saturation or partial
saturation that existed during the development of the soil, as
opposed to altered drainage, which is commonly the result of
artificial drainage or irrigation but may be caused by the
sudden deepening of channels or the blocking of drainage
outlets. Seven different classes of natural soil drainage are:
(a) Excessively drained: Soils which are
commonly very porous and rapidly permeable and have a
low water-holding capacity and are free from mottling
throughout their profile.
(b) Somewhat excessively drained: Soils
which are also very permeable and are free from mottling
throughout their profile.
(c) Well drained: Soils which are nearly free
from mottling and are commonly of intermediate texture.
(d) Moderately well drained: Soils which
commonly have a slowly permeable layer in or immediately
beneath the solum. They have uniform color in the A and
upper B horizons and have mottling in the lower B and C
horizons.
(e) Somewhat poorly drained: Soils which are
wet for significant periods but not all the time, and
commonly have mottling below 6 to l6 inches, in the lower
part of the A horizon and in the B and C horizons.
(f) Poorly drained: Soils which are wet for
long periods and are light gray and generally mottled from
the surface downward, although mottling may be absent or
nearly so in some soils.
(g) Very poorly drained: Soils which are wet
nearly all the time. They have a dark gray or black surface
layer and are gray or light gray with or without mottling in
the deeper parts of the profile.
2.01495 Observation well: A well used for the
sole purpose of determining groundwater levels.
2.01500 On-Site Sewage Wastewater Treatment
and Disposal System: Any existing or proposed on-site
sewage disposal system including, but not limited to a
standard subsurface Conventional or alternative,
experimental or non-water carried sewage wastewater
disposal systems installed or proposed to be installed on land
of the owner of the system or on other land as to which the
owner of the system has the legal right to install the system.
2.01505 On-Site System Advisory Board
(OSSAB): A panel of licensee's representing the on-site
industry, asked to serve by the Secretary, on all matters
pertaining to the issuance and revocation of all on-site
license's.
2.01510 Owner: The person in whom is vested a
good legal or equitable title to real or personal property,
including an on-site sewage wastewater treatment and
disposal system.
2.01520 Pan: A hard, cement-like layer within
or just beneath the surface of the soil.
2.01530 Percolation rate: The downward
movement of water through soil.
2.01540 Percolation: The property or capacity
of a porous medium (rock or soil) for transmitting a fluid.
which is described in the following terms: very slow, slow,
moderately slow, moderate, moderately rapid, rapid, and
very rapid.
2.01550 Permit: The written document issued
and signed approved by the Department which authorizes the
permittee to install the installation of a system or any part
thereof, which may also require operation and maintenance
of the system.
2.01560 Person Permittee: Any individual,
partnership, corporation, association, institution, cooperative
enterprise, agency, municipality, commission, political
subdivision or duly established entity to which a permit is
issued.
2.01565 Piezometer: A small diameter nonpumping
well with a short screen that is used to measure
elevation of the water table or potentiometric surface.
2.01570 Platy Structure: Soil aggregates that
are developed predominantly along the horizontal axes;
laminated; flaky.
2.01580 Pollution or Water Pollution: Any
alteration of the physical, chemical or biological properties
of any waters of the state, including change in temperature,
taste, color, turbidity, silt or odor of the waters, or such
discharge of any liquid, gaseous, solid, radioactive or other
substance into any waters of the state, which will or tends to,
either by itself or in connection with any other substance,
create a public nuisance or which will or tends to render such
waters harmful, detrimental or injurious to public health,
safety or welfare, or to domestic, commercial, industrial,
agricultural, recreational or other legitimate beneficial uses
or to livestock, wildlife, fish or other aquatic life or the
habitat thereof.
2.01582 Pressure Dosed Capping Fill: A
pressurized on-site wastewater treatment and disposal
system which maintains a 36 inch separation distance above
the limiting zone where the trench or bed is installed
between 12 and 23 inches into the natural soil below a soil
cap of a specified depth and texture.
2.01587 Pressure Dosed Full Depth: A
pressurized on-site wastewater treatment and disposal
system which maintains a 36 inch separation distance above
the limiting zone where the trench or bed is installed 24
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
766 PROPOSED REGULATIONS
inches into the natural soil.
2.01590 Pressurized Distribution: A network
of piping with small diameter orifices designed to evenly
distribute wastewater under pressure through the entire
absorption facility.
2.01600 Professional Engineer: A person
registered by the Delaware Association of Professional
Engineers to practice professional engineering in the State of
Delaware.
2.01610 Professional Geologist: A person
registered by the Delaware State Board of Registration of
Geologists to practice professional geology in the State of
Delaware.
2.01620 Project Site: The total area within the
property lines of an individual lot or within the division lines
of a parcel or subdivision.
2.01630 Public Health Hazard: A condition
whereby there are sufficient types and amounts of biological,
chemical or physical, including radiological, agents relating
to water or sewage which are likely to cause human illness,
disorders or disability. These include, but are not limited to,
pathogenic, viruses, bacteria, parasites, toxic chemicals, and
radioactive isotopes.
2.01635 Redoximorphic Features:
Characteristic color patterns associated with wetness that
result from alternating periods of reduction and oxidation of
iron and manganese compounds in the soil.
2.01640 Repair: Means Any modification to an
existing on-site wastewater treatment and disposal system
necessary to fix a problem or malfunction. installation of all
portions of an system necessary to insure eliminate a public
health hazard or pollution of public waters created by a
failing system.
2.01650 Replacement System: An area set
aside for construction of a second disposal system to be used
in the event the original disposal system malfunctions or is
expanded
2.01650 Replacement System: An on-site
wastewater treatment and disposal system to replace the
existing on-site wastewater treatment and disposal system or
a portion therof.
2.01660 Sand: Individual mineral particles in a
soil that range in diameter from the upper limit of silt (0.05
millimeters) to 2.0 millimeters.
2.01670 Sand Filter System: The combination
of septic tank or other treatment unit, dosing system with
effluent pump(s) and controls, or dosing siphons, piping, and
fittings, sand filter, and absorption facility used to treat
sewage.
2.01680 Sand Lined System: A pressure dosed
type of seepage trench and or seepage bed soil absorption
system facility constructed in the fill material below the
natural soil surface and may require pressurization. The fill
material is used to replace a natural impermeable or slowly
IM permeable soil layer or to completely remove an existing
absorption facility.
2.01685 Sandy Fill: Materials that consist of
medium sand, sandy loam, loamy sand/sandy loam mixtures
(see sieve requirements in Section 6.01041).
2.01690 Sand Mound: A soil absorption
system that is elevated above the natural soil surface in a
suitable fill material.
2.01700 Scarifying: Scraping or loosening the
surface soil bottom and sidewall soil surfaces in the
preparation of percolation test holes, seepage trenches and
beds, or similar excavations.
2.01710 Scum: A mass of sewage solids
floating at the surface of sewage effluent and buoyed up by
entrained gas, grease or other substances.
2.01720 Seasonal High Water Table: The
highest zone of soil or rock that is seasonally or permanently
saturated by a perched or shallow water table. A planar
surface below which all pores in rock or soil (whether
primary or secondary) that is seasonally or permanently
saturated.
2.01730 Secretary: Secretary of the
Department of Natural Resources and Environmental
Control or a duly authorized designee.
2.01740 Seep: An area where water oozes
from the earth, often forming the source of a small trickling
stream.
2.01750 Seepage Bed: An absorption system
facility consisting of an area from which the entire earth
contents have been removed and replaced with a network of
perforated pipe, filter aggregate or aggregate-free chambers
and covered with suitable backfill material.
2.01755 Seepage Pit: Synonymous with
"cesspool" except it is usually preceded by a septic tank
where a cesspool is not. Note: Seepage pits can not be
certified for real estate transfers.
2.01760 Seepage Trench: A soil absorption
system facility consisting of ditches with vertical sides and
flat bottoms partially filled with filter aggregate and
containing perforated pipe or aggregate-free chambers and
covered with suitable backfill material.
2.01770 Septage: The liquid and solid contents
of a septic tank.
2.01780 Septic Tank: A watertight receptacle
which receives the discharge of sewage wastewater from a
house structure sewer or part thereof and is designed and
constructed so as to permit settling of settleable solids from
the liquid, digestion of the organic matter by detention, and
discharge of the liquid portion into an disposal area
absorption facility.
2.01790 Serial Distribution System: A soil
absorption system consisting of a series of interconnected
disposal trenches arranged so that each trench is forced to
pond to the full depth of the gravel fill before liquid flows
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 767
into a relief line and fills the succeeding trench.
2.01800 Sewage: Water-carried human or
animal waste from septic tanks, water closets, residences,
buildings, industrial establishments, or other places, together
with such groundwater infiltration, subsurface water, and
mixtures of industrial wastes or other wastes as may be
present.
2.01810 Single Family Dwelling: A residence
intended for single family residential use.
2.01820 Siphon: A hydraulically operated
device designed to rapidly discharge the entire contents of a
dosing tank between predetermined hydraulic levels.
2.01830 Site Evaluation: The practice of
investigating, evaluating and reporting basic soil and site
conditions which apply to the on-site wastewater treatment
and disposal system type and design criteria.
2.01840 Slope: Deviation of a plane surface
from the horizontal. It is usually expressed as a ratio or
percentage of number of units of vertical rise or fall per unit
of horizontal distance.
2.01850 Soil Absorption System: A
wastewater disposal method utilizing the natural biological,
chemical and physical properties of the soil to renovate the
wastewater.
2.01860 Soil Horizon: A layer of soil or soil
material approximately parallel to the land surface and
differing from adjacent genetically related layers in physical,
chemical, and biological properties or characteristics such as
color, structure, texture, consistence and pH.
2.01870 Soil Profile: The collection of all soil
horizons, including the natural organic layers on the surface,
ranging from 0" to 10" deep in shallow soils to in excess of
60" deep for deep soils.
2.01880 Soil Structure: The combination or
arrangement of primary soil particles into secondary
compound particles or clusters, the principle forms of which
are: platy (laminated); prismatic (prisms with rounded tops);
blocky (angular or subangular); and granular and columnar.
2.01890 Soil Texture: The grain sizes that
comprise a soil consisting of three textural classes; sand, silt
and clay amount of each soil separate in a soil mixture. Field
methods for judging the texture of a soil consist of forming a
cast of soil, both dry and moist, in the hand and pressing a
ball of moist soil between thumb and finger.
(a) The major textural classifications are
observed and can be determined in the field as follows:
(1) Sand: Individual grains can be seen
and felt readily. Squeezed in the hand when dry, this soil will
fall apart when the pressure is released. Squeezed when
moist, it will form a cast that will hold its shape when the
pressure is released, but will crumble when touched.
(2) Sandy Loam: Consists largely of
sand, but has enough silt and clay present to give it a small
amount of stability. Individual sand grains can be readily
seen and felt. Squeezed in the hand when dry, this soil will
readily fall apart when the pressure is released. Squeezed
when moist, it forms a cast that will not only hold its shape
when the pressure is released, but will withstand careful
handling without breaking. The stability of the moist cast
differentiates this soil from sand.
(3) Loam: Consists of an even mixture of
sand and of silt and a small amount of clay. It is easily
crumbled when dry and has a slightly gritty yet fairly smooth
feel. It is slightly plastic. Squeezed when moist, it forms a
cast that will not only hold its shape when the pressure is
released, but will withstand careful handling without
breaking. The stability of the moist cast differentiates this
soil from sand.
(4) Silt Loam: Consists of a moderate
amount of fine grades of sand, a small amount of clay, and a
large quantity of silt particles. Lumps in a dry, undisturbed
state appear quite cloddy, but they can be pulverized readily;
the soil then feels soft and floury. When wet, silt loam runs
together in puddles. Either dry or moist, casts can be handled
freely without breaking. When a ball of moist soil is pressed
between thumb and finger, it will not press out into a
smooth, unbroken ribbon, but will have a ribbon appearance.
(5) Clay: Consists of an even mixture of
sand, silt, and clay, which breaks into clods or lumps when
dry. When a ball of moist soil is pressed between the thumb
and finger, it will form a thin ribbon that will readily break,
barely sustaining its own weight. The moist soil is plastic
and will form a cast that will withstand considerable
handling.
(6) Silty Clay Loam: Consists of a
moderate amount of clay, a large amount of silt, and a small
amount of sand. It breaks into moderately hard clods or
lumps when dry. When moist, a thin ribbon or one-eight (1/
8) inch wire can be formed between thumb and finger that
will sustain its weight and will withstand gentle movement.
(7) Silty Clay: Consists of even amounts
of silt and clay and very small amounts of sand. It breaks
into hard clods or lumps when dry. When moist, a thin
ribbon or one-eight (1/8) inch or less sized wire formed
between thumb and finger withstand considerable movement
and deformation.
(8) Clay: Consists of large amounts of
clay and moderate to small amounts of sand. It breaks into
very hard clods or lumps when dry. When moist, a thin, long
ribbon or one-sixteenth (1/l6) inch wire can be molded with
ease. Fingerprints will show on the soil, and a dull to bright
polish is made on the soil by a shovel.
(b) These and other soil textural
characteristics are defined as shown in the United States
Department of Agricultural Textural Classification Chart
which is hereby adopted as part of these Regulations (See
Exhibit B). This textural classification chart is based on the
Standard Pipette Analysis as defined in the United States
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
768 PROPOSED REGULATIONS
Department of Agriculture, Soil Conservation Service Soil
Survey Investigations Report No. 1.
(c) Throughout these Regulations where soil
textural classes and other terminology describing soils are
utilized, definition and interpretation shall be in accordance
with the latest edition of Soil Taxonomy, USDA SCS
Agricultural Handbook No. 436 as published by the U.S.
Department of Agriculture.
2.01900 Soil Type: The lowest unit in the
natural system of soil classification consisting of describing
soils that are alike in all characteristics.
2.01910 Solum: The upper part of the soil
profile (A, E and B horizons) above the parent material in
which the processes of soil formation are active.
2.01915 Spare Area: An area set aside for
construction of a second absorption facility to be used in the
event the original absorption facility malfunctions or is
expanded.
2.1920 Standard Disposal System: On-site
systems designated as gravity or pressure dosed seepage
trenches, seepage beds, elevated sand mounds and sand lined
systems.
2.01930 Subdivision: Any tract or parcel of
land which has been divided into two or more lots for which
development is intended.
2.01940 System: Abbreviation for on-site
sewage wastewater treatment and disposal system.
2.01945 System Inspector: A person licensed
by the Department to inspect, investigate, collect data and
make determinations regarding the present operational
condition of an on-site wastewater treatment and disposal
system.
2.01950 Test Pit: An excavation used to
determine inspect the soil profile, assign percolation rates
and assess conditions.
2.01960 Topography: Natural Ground surface
variations or contours of the earth's surface, both natural and
anthropogenic.
2.01965 Unconfined Aquifer: An aquifer in
which no relatively impermeable layer exists between the
water table and the ground surface and an aquifer in which
the water is at atmospheric pressure.
2.01970 Undisturbed Soil: Soil or soil profile,
unaltered by filling, removal, or other man-made changes,
with the exception of agricultural activities, for a minimum
of four years prior to testing.
2.01975 Upgradient: An area at which the
potentiometric surface is higher (hydraulic head greater)
than it is at some given point of comparison.
2.01980 Wastewater: The liquid and water
borne wastes derived from residential, industrial,
institutional or commercial sources. Water-carried waste
from septic tanks, water closets, residences, buildings,
industrial establishments, or other places, together with such
groundwater infiltration, subsurface water, and mixtures of
industrial wastes or other wastes as may be present.
2.01990 Wastewater Utility: Any person who
engages in the business of providing wastewater disposal
and related services to the public for a fee, charge, or other
remuneration in the State of Delaware.
2.02000 Watercourse: Any ocean, bay, lake,
pond, stream, river or defined ditch body of water drained by
a stream, dry ditch, or any depression that will permit
drainage into any surface water body, excluding ephemeral
watercourses as defined below.
a) Ephemeral - A watercourse which flows
briefly, only in direct response to precipitation in the
immediate vicinity, and whose invert is above the seasonal
high water table.
2.02010 Water Table: The upper surface of a
zone of saturation where the body of ground water is not
confined by an overlying impermeable formation The
surface of an unconfined aquifer where the groundwater pore
water pressure is equal to atmospheric pressure.
2.02020 Waters of the State: Public waters,
including lakes, bays, sounds, ponds, impounding reservoirs,
springs, wells, rivers, streams, creeks, estuaries, marshes,
inlets, canals, the ocean within the territorial limits of the
State, and all other bodies of surface or underground water,
natural or artificial, inland or coastal, fresh or salt, within the
jurisdiction of the State of Delaware.
2.02023 Well: Any excavation that is drilled,
cored, bored, washed, driven, dug, jetted, or otherwise
constructed when the intended use of such excavation is for
the location, testing, acquisition, use; for extracting water
from or for the artificial recharge of subsurface fluids; and
where the depth is greater than the diameter or width. For
the purpose of this regulation this definition does not include
geotechnical test, soil, telephone and construction piling
borings, fence posts, test pits, or horizontal closed loop heat
pump circulation systems constructed within twenty (20)
feet of the ground surface.
2.02030 Zone of Aeration: The unsaturated
zone that occurs below the ground surface and above the
point at which the upper limit of the water table exists. A
subsurface zone containing water under pressure less than
that of the atmosphere, including water held by capillary and
containing air or gases generally under atmospheric
pressure. This zone is limited above by the land surface and
below by the surface of the zone of saturation, i.e., the water
table.
SECTION 3.0000 - GENERAL STANDARDS,
PROHIBITIONS AND PROVISIONS
3.01000 Each and every owner of real property is
jointly and severally responsible for:
(a) Disposing of wastewater sewage on that
property in conformance with these applicable Regulations;
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 769
and
(b) Connecting all plumbing fixtures on that
property, from which sewage wastewater is or may be
discharged, to a central wastewater system or on-site sewage
wastewater treatment and disposal system approved by the
Department; and
(c) Maintaining, repairing, and/or replacing the
system as necessary to assure proper operation of the system.
3.01500 All wastewater treatment and disposal
systems which are proposed for construction in a watershed
where total maximum daily loads (TMDL's) have been
established for nitrogen and phosphorus shall be designed to
reduce effluent nutrient levels prior to discharging to the
absorption facility. The wastewater treatment system shall
be designed to reduce nutrient concentration by the
percentage reduction established by the Pollution Control
Strategy (PCS) for that watershed.
3.02000 No person shall construct, install, modify,
rehabilitate, or replace an on-site wastewater treatment and
disposal system or construct or place any dwelling, building,
mobile home, modular home or other structure capable of
discharging wastewater on-site unless such person has a
valid permit issued by the Department pursuant to these
Regulations.
3.03000 No permit may be issued by the
Department under these Regulations unless the County or
Municipality having land use jurisdiction has first approved
the activity through zoning procedures provided by law.
3.04000 Any county may assume responsibility
and authority for administering its own regulatory program
for on-site wastewater treatment and disposal systems
pursuant to 7 Del. C., Chapter 60, Section 6003(d), if the
delegated permit program establishes standards no less
stringent than the standards established in these Regulations.
under a pre-existing memorandum of agreement, shall
continue in force until reauthorized under a new
memorandum of agreement as its standards established in
those regulations are more appropriate to the conditions of
New Castle County and in some cases may be more stringent
than these Regulations.
3.05000 Administrative and judicial review and the
enforcement under these Regulations shall be in accordance
with the provisions of 7 Del. C., Chapter 60.
3.06000 If any part of these Regulations, or the
application of any part thereof, is held invalid or
unconstitutional, the application of such part to other persons
or circumstances, and the remainder of these Regulations,
shall not be affected thereby and shall be deemed valid and
effective.
3.07000 These Regulations, being necessary for the
health and welfare of the State and its inhabitants, shall be
liberally construed in order to preserve the land, surface
water and ground water resources of the State.
3.08000 At the sole discretion of the Department, if
the proposed operation of a system would may cause
pollution of public waters or create a public health hazard,
system installation or use shall not be authorized.
3.09000 All wastewater shall be treated and
disposed of in a manner approved by the Department.
3.10000 No person shall dispose of sewage
wastewater or septage at any location not authorized by the
Department under applicable laws and regulations for such
disposal.
3.11000 Discharge of untreated or partially treated
wastewater or septic tank effluent directly or indirectly onto
the ground surface or into surface waters of the State, unless
authorized by a permit issued by the Department, constitutes
a public health hazard and is prohibited.
3.12000 No cooling water, air conditioning water,
groundwater, oil, water softener brine or roof drainage shall
be discharged into any system without specific authorization
of the Department. Water softener brine shall be discharged
in a manner that does not allow surface discharge (curtain
drain ).
3.13000 Except where specifically allowed within
these Regulations, no person shall connect a dwelling or
commercial facility to a system if the total projected
wastewater flow would be greater than that allowed under
the original system construction permit.
3.14000 Each system shall have adequate capacity
to properly treat and dispose of the maximum projected daily
wastewater flow. The quantity of wastewater shall be
determined from these Regulations or other information the
Department determines to be valid that may show different
flows.
3.15000 A permit to install a new system can be
issued only if each site has received an approved site
evaluation and is free of encumbrances (e.g., easements,
deed restrictions, etc.), which could prevent the installation
or operation of the system from being in conformance with
these Regulations.
3.16000 A recorded utility easement is required
whenever a system crosses a property line separating
property under different ownership. The easement must
accommodate that part of the system, including setbacks,
which lies beyond the property line, and must allow entry to
install, maintain and repair the system.
3.17000 Whenever real property is recorded as two
separate lots under common ownership and an on-site
sewage wastewater treatment and disposal system crosses
the common boundary of the recorded lots, the owner shall
execute and record, in the appropriate county office of
Recorder of Deeds, an affidavit which notifies prospective
purchasers of this fact on a form approved by the
Department.
3.18000 Except as provided in these Regulations,
the system replacement spare area shall be kept vacant, free
of vehicular traffic and soil modifications.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
770 PROPOSED REGULATIONS
3.19000 All systems shall be operated and
maintained so as not to create a public health hazard or cause
water pollution.
3.20000 Exhibits A through Z are incorporated into
these Regulations by reference.
3.21000 No person shall transfer any portion of real
property if the transfer would create a lot boundary which
would cross an existing system or any part thereof including
required setbacks and isolation distances unless, a utility
easement is granted to the owner of the existing system and
recorded in the appropriate county office of Recorder of
Deeds.
(a) A utility easement is granted to the owner of
the existing system; and
(b) The transferred parcel is of sufficient size to
accommodate an independent on-site system which would
comply with all requirements of these Regulations.
3.22000 The Department shall have the power to
enter, at reasonable times, upon any private or public
property for the purpose of inspecting and investigating
conditions relative to the enforcement of these Regulations.
3.23000 No person shall transfer any portion of real
property after the issuance of a permit pursuant to these
regulations if the transfer would result in the use of the
permitted on-site system on a lot which does not comply
with these Regulations and the terms of the permit, including
density, set back and isolation distance requirements.
SECTION 4.00000 - LICENSES
4.01000 The Department shall administer a
program for the licensing of percolation testers, system
designers, site evaluators, system contractors, and liquid
waste haulers and system inspectors. The licensing program
shall provide the issuance of licenses as follows;
(a) Class A - Percolation Tester: The Class license
authorizes the performance of percolation tests and other
types of infiltrometer testing.
(b) Class B - Designer: The Class B license
authorizes the design of standard conventional on-site
wastewater treatment and disposal systems which utilize
gravity distribution systems for seepage beds and seepage
trenches and certain standardized pressure distribution and
disposal systems as provided in these Regulations and lift
pump stations as provided for in these Regulations.
(c) Class C - Designer: The Class C license
authorizes the design of standard conventional and
alternative and experimental on-site sewage wastewater
treatment and disposal systems and all pressure distribution
and disposal systems.
(d) Class D - Site Evaluator: The Class D license
authorizes the performance of site soil evaluations,
percolation and/or percolation tests.
(e) Class E - System Contractor: The Class E
license authorizes the construction, repair and installation of
on-site wastewater treatment and disposal systems.
(f ) Class F - Liquid Waste Hauler: The Class F
license authorizes the removal or disposal of waste
petroleum products or the solid and liquid contents of septic
tanks, cesspools, seepage pits, holding tanks or other
wastewater treatment or disposal facilities as specified and
required under these Regulations.
(g) Class GB - Designer: The Class GB license
authorizes the design of combined well and conventional
on-site wastewater treatment and disposal systems which
utilize gravity distribution systems for bed and trench
designs.
(h) Class GC - Designer: The Class GC license
authorizes the design of combined well and conventional and
alternative on- site wastewater treatment and disposal
systems and all pressure distribution systems.
(i) Class H - System Inspector: The Class H
license authorizes the inspection, investigation, data
collection and certification/non-certification of on-site
wastewater treatment and disposal systems for the express
purpose of real estate transfers and/or governmental or
municipalities requirements.
4.02000 It shall be necessary to have the Class A,
Class B, Class C, Class D, Class E, and Class F, Class GB,
Class GC and Class H licenses in order to engage in the
specified activities under Section 4.01000 of these
Regulations. Any person expecting to be licensed as of May
l, 1985 should submit a completed application no later than
March 1, 1985.
4.03000 Any person seeking a license under this
Section shall submit a complete application to the
Department on a standard form provided by the Department,
references and pay the non-refundable application fee, if
required. All applicants for a Class A, B, or E, F, GB and H
license will be required to pass an examination prepared and
administered by the Department to test the competency and
knowledge of the applicant regarding pertinent subject
matter and the application and use of these Regulations. (GB
and GC licenses shall not be available until Section 3.04 of
the Regulations Governing the Construction and Use of
Wells is amended. Class H license's shall not become
effective until one (1) year after the adoption of these
Regulations.)
4.03050 In the event an applicant fails to receive a
passing grade on the examination, he/she shall be so notified
by the Board within 30 days. The applicant may re-apply for
a subsequent examination. In the event an applicant fails to
receive a passing grade on the subsequent examination they
will be required to complete a training course approved by
the On-Site System Advisory Board (OSSAB). The
examination may be taken no more than twice in a twelve
(12) month time period unless the applicant provides
certification of completion of an approved training course.
4.04000 With respect to Class C licenses the
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PROPOSED REGULATIONS 771
following shall constitute the Department's requirements:
(a) Registration as a Professional Engineer with
the Delaware Association of Professional Engineers; and
(b) A complete qualifications statement on
approved Department forms which verifies the individual's
knowledge and competency in the field of on-site sewage
wastewater treatment and disposal system engineering and
design.
4.05000 With respect to Class D licenses the
following shall constitute the Department's requirements:
(a) A completed qualifications statement on
appropriate Department forms which verifies the individual's
knowledge and competency in the field of site evaluations
for on-site sewage wastewater treatment and disposal
systems; and
(b) Registration as a Professional Soil Scientist or
Soil Classifier with the American Registry of Certified
Professionals in Agronomy, Crops and Soils (ARCPACS);
or
NOTE: If not ARCPACS certified, a field
practicum shall be performed to assess whether competency
exists for soils in Delaware. This field practicum shall be
administered by the soil scientist(s) on the On-Site System
Advisory/Site Interpretations Boards and/or from DNREC.
(c) Six (6) years of professional experience in soil
classifications, mapping and interpretations with nine (9)
semester hours in soil science and six (6) semester hours in
geological sciences from an accredited college or university;
or
(d) Four (4) years of professional experience in
soils classifications, mapping and interpretations and an
undergraduate degree from an accredited college or
university with nine (9) semester hours in soil science and
six (6) semester hours in geological sciences; or
(e) Two (2) years of professional experience in
soils classifications, mapping and interpretations and a
graduate degree from an accredited college or university,
with thirty (30) semester hours or the equivalent in
biological, physical and earth sciences with fifteen (15) of
such semester hours in soil science.
4.06000 With respect to Class E licenses the
following shall constitute the Department's requirements:
(a) A completed qualification's statement, on
appropriate Department forms, which verifies the
individuals knowledge and competency of the application
and requirements of these Regulations.
(b) A minimum of two (2) years of experience
under the guidance of an experienced supervisor in the
construction of on-site wastewater treatment and disposal
systems.
(c) Show proof of insurance for a minimum of
$300,000.00 for general liability and $100,000.00 per
occurrence.
4.06050 With respect to Class GB licenses the
following shall constitute the Department's requirements:
(a) A complete qualifications statement on
approved Department forms which verify the individual's
knowledge and competency in the field of gravity on-site
wastewater treatment and disposal systems; and
(b) A complete qualifications statement on
approved Department forms which verify the individual's
knowledge and competency in the placement of wells and
the Regulations Governing the Construction and Use of
Wells.
4.06100 With respect to Class GC licenses the
following shall constitute the Department's requirements:
(a) Registration as a Professional Engineer with
the Delaware Association of Professional Engineers; and
(b) A complete qualifications statement on
approved Department forms which verify the individual's
knowledge and competency in the field of engineering and
the design of on-site wastewater treatment and disposal
systems.
(c) A complete qualifications statement on
approved Department forms which verify the individual's
knowledge and competency in the placement of wells and
the Regulations Governing the Construction and Use of
Wells.
4.06200 With respect to Class H licenses the
following shall constitute the Department's requirements:
(a) Has had at least two (2) years experience in the
on-site wastewater industry;
(b) Furnishes certification of training completed
under the National Association of Waste Transporters
(NAWT) guidelines, Del-Tech certification program or as
approved by the Board.
4.06250 Responsibilities of Licensees
4.06260 Any Class D licensed site evaluator
shall may be required to notify the Department orally or in
writing at least thirty-six (36) hours, excluding Saturdays,
Sundays and state holidays, prior to conducting the site
evaluation. This is at the sole discretion of the Department.
4.06270 All Class A, B, C, D, E, F, GB, GC
and H licensee's are responsible for correct and complete
information submitted to the Department as it pertains to
current Regulations.
4.06300 All Class E licensed system contractors
shall:
(a) Initiate work only on systems for which a
construction permit has been granted; and
(b) Comply with all applicable regulations and
requirements; and
(c) Be responsible for Supervise the work carried
out by their employees; and
(d) Submit to the Department within ten (10) days
of completion of a system, a Completion Construction
Report on forms provided by the Department, signed by the
licensed contractor; installer system contractor, for systems
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772 PROPOSED REGULATIONS
for which the Department has waived pursuant to Section
5.0402 of these Regulations and
(e) Notify the Department 24 hours prior to
construction start up to receive an authorization number; and
(f) Be the sole contact person to the Department
regarding inspection call-ins, consequential changes or
problems. An individual employed by the licensee may be
the contact person for inspection call-ins provided that
person is a Class E licensee or has been designated as a
contact person in writing to the Department by the licensee
prior to calling; and
(g) Submit proof of insurance annually.
4.06400 All Class F licensed liquid waste haulers
shall:
(a) Display the name, address and permit number
of the licensee in standard block letters no less than three (3)
inches high on both sides of each vehicle used for hauling
purposes; and
(b) Equip every vehicle used for hauling purposes
with a watertight tank or body and be maintained in a clean
and sanitary condition. Liquid wastes shall not be
transported in an open body vehicle unless contained within
suitable receptacles. All pumps and hose lines shall be free
of leaks; and
(c) Assure all receptacles used for transporting
liquid or solid wastes are watertight, equipped with tight
fitting lids and are cleaned daily; and
(d) Obtain prior approval in writing from the
Department for every site at which a hauler plans to
discharge a specified amount of waste material collected. No
waste material shall be discharged on a site without such
prior approval. Written approval will be based upon the
applicant having satisfied the requirements of all applicable
regulations adopted by the Department. Waste material
collected by the hauler shall not be discharged into ditches,
watercourses, lakes, ponds, tidewater or at any point where it
can pollute any watercourse, water supply source, bathing
area, or shellfish growing area. It shall not be deposited
within 300 feet of any highway, except as provided in
subpart (e) thereunder; and
(e) Discharge liquid wastes into approved
wastewater treatment facilities unless otherwise authorized
by the Department, provided such facilities have sufficient
capacity and capability to handle such liquid wastes; and
(f) Fit all truck pumping and discharge hoses with
automatic shutoff valves; and
(g) Separately identify vehicles used to haul
waste petroleum products as specified by the Department.
Remove all wastewater from the
appropriate tanks in accordance with National Standards as
set forth by the National Association of Waste Transporters
(NAWT).
(h) May repair, add or replace risers and baffles on
or within septic tanks.
4.06430 All Class H System Inspectors shall:
(a) All certification/non-certification of onsite
wastewater treatment and disposal systems shall be
submitted to the Department on forms approved by the
Department (See Exhibit A). These forms shall be submitted
within seventy two (72) hours of inspection completion.
4.06450 Any person who engages in the
practice of professional engineering or professional geology
in the specified activities under this Section shall be duly
registered in conformance with the requirements of the laws
of the State of Delaware.
4.06460 The Department may issue temporary
Class A, B, or E licenses to property owners who wish to
conduct their own percolation testing, system design, or
system installation on their own property and for their own
use. Certification of the intended use will be required. The
applicant shall submit an application on Department forms
along with any required fee and shall demonstrate his
competency in those fields by successfully completing a test
conducted by the Department. The term of the temporary
Class A, B, or Elicense shall expire upon completion of
work conducted by the applicant for which the permit was
issued.
4.07000 In exercising exclusive licensing authority
under this section, the Department shall seek the views of an
On-Site Systems Advisory Board regarding licensing
matters. The Board shall consist of six (6) members
designated by the Secretary. The board shall, if possible,
have one (1) member who is a representative of the
Department, one (l) member who is a Professional Engineer,
one (1) member who is a Professional Geologist, one (1)
member who is a representative of the USDA, one (1)
member who is a Class D Site Soil Evaluator, and one (1)
member who is a Class E System Contractor. The members
of the Board shall serve at the discretion of the Secretary.
The Board shall advise the Department on matters relating to
issuance of Class A, Class B, Class C, Class D, Class E,
Class F, Class GB, Class GC and Class H licenses.
4.07100 Upon adoption of these Regulations, the
applicant for a license renewal shall submit with the renewal
application proof that he/she has attended and/or
satisfactorily completed a minimum of ten (10) hours of
continuing education training relating to the wastewater
industry. This is to include siting, design, construction,
operation and/or maintenance of on-site wastewater
treatment and disposal systems. Class D licensee's not
ARCPAC certified must attend at least three (3) hours of soil
related curriculum. Any training must be sponsored by
recognized governmental, educational or industrial groups
which include equipment manufacturers and be approved by
the OSSAB. The number of hours of continuing education
for first year licensee's will be decided by the OSSAB and
be based upon license issuance date.
4.07500 The Secretary may suspend or revoke the
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PROPOSED REGULATIONS 773
license of a percolation tester, designer, system contractor,
or liquid waste hauler, Class A, B, C, D, E, F, GB, GC or H
licensee after considering the recommendations of the
On-Site Systems Advisory Board and demonstration that the
licensee has practiced fraud or deception; that reasonable
care, judgment, or the application or their knowledge or
ability was not used in performance of their duties; or that
the licensee is incompetent or unable to perform their duties
property and;.
(a) Violated any provision of these Regulations;
(b) Violated any lawful order or rule rendered or
adopted by the Department;
(c) Obtained his/her license or any order, ruling, or
authorization by means of fraud, misrepresentation, or
concealment of material facts;
(d) Failure to obtain the necessary hours of
continuing education training required by these Regulations;
(e) Been found guilty of misconduct in the pursuit
of his/her profession.
4.08000 Any person whose application for a
license has been denied or person whose license has been
suspended or revoked shall be notified in writing and
provided reasons for the decision. Within thirty (30) twenty
(20) days of notification, the person shall notify the
Secretary, in writing, if a public hearing an appeal pursuant
to 7 Del. C., Chapter 60, Section §6006 6008 is to be
required requested. If no hearing appeal request is received
within the designated period the decision shall become final.
4.09000 Licenses issued pursuant to this Section
are not transferable and shall expire on June 30 December 31
of each year. A license may be renewed for one year without
examination for an ensuing year provided the licensee makes
application for renewal at least sixty (60) days prior to the
expiration date, by November 30th of each year, shows proof
of the number of hours of continuing education training and
pays any applicable renewal fees adopted by the
Department. If the licensee fails to renew the license he/she
may reapply, without examination, within the first year. If
more than a year passes the licensee must reapply for the
license and take all necessary examinations. A reminder will
be sent to the licensee to renewal his/her license by the
Department. The reminder will be sent to the address on file
for the licensee. It is the licensee's responsibility to renew
the license yearly and notify the Department of any changes.
SECTION 5.00000 - SITE EVALUATIONS AND
PERMITS
5.01000 Site Evaluation Procedures
5.01010 A site evaluation is the first step in the
process of obtaining a construction permit for an on-site
wastewater disposal system. Any person applying for a
permit to install a new or replacement on-site sewage
wastewater treatment and disposal system shall first obtain a
site evaluation report prepared by a Class D Licensee
licensed site evaluator. The Department shall conduct site
evaluations only for hHome rRehabilitation lLoan
pPrograms (HRLP), block grant households, State
Revolving Fund (SRF) sites and other qualifying low income
individual programs with similar criteria. All other site
evaluations shall be conducted by a private site evaluator.
5.01020 Applications for site evaluations to be
conducted by the Department shall be made on forms
approved by the Department. Each report shall be
completed in full, signed by the owner or his legal
authorized agent, and shall be accompanied by all required
exhibits, site plats (sketches), and the appropriate fee.
5.01020 Site evaluations performed for the
purpose of siting large/community systems refer to the
necessary criteria in Section 5.12000.
5.01025 All other site evaluations shall be
conducted by a private site evaluator. Each report shall be
completed in full and be accompanied by all required
exhibits, site plats approval page(s) (excluding sites not
suitable for conventional on-site wastewater treatment and
disposal systems (OWTDS), report page(s), site plat, soil
profile notes, zoning verification form and the appropriate
fee. The site evaluation report shall contain specific site
conditions or limitations including, but not limited to,
isolation and separation distances, slopes, existing wells,
cuts and fills, and unstable landforms. The report shall
contain the appropriate zoning verification. The Department
shall prepare and provide to site evaluators a standardized
form to be used for design specifications including
percolation rates and siting requirements such as isolation
distances.
5.01028 The site evaluator Class D Licensee
shall specify on the approval page the type of on-site
wastewater treatment and disposal system that may be
constructed in the acceptable on-site disposal area as
indicated on the site plat. Any other on-site wastewater
treatment and disposal options available in the evaluated
area shall be specified by the site evaluator Class D
Licensee. The evaluator licensee shall either assign a
percolation rate or have the appropriate hydraulic
conductivity or percolation test conducted in the proposed
disposal area prior to submittal.
5.01030 A site plat (sketch) to scale showing
the information referenced in Section 5.01080. accurate
dimensions and configuration of the property, proposed and/
or existing structures, driveways, encumbrances, easements,
underground and overhead utilities on the property, adjacent
sewage disposal systems, bodies of water, drainageways,
agricultural drain tile, wells, cisterns, and springs for a
minimum of 150 feet from the evaluated area shall be
submitted. All site plats are required to show a reference
point such as a numbered utility pole, telephone or electrical
box, building(s), property corners or fixed survey marker. A
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774 PROPOSED REGULATIONS
minimum of two reference points are required for navigation
and mapping without supplied bearings. If the site plat is
based on a survey by a professional surveyor, only property
corner markers as shown by the survey shall be required.
Plats shall be at appropriate magnitude scales not to exceed
1" = 100'. Any site plat which exceeds 8.5" X 11" must be
submitted in duplicate for the purpose of providing the client
with this documentation.
5.01035 Showing the location of all on-site
and adjacent wells within 150 feet of the approved soils area
is the responsibility of the Class D licensee. The following
procedure shall be used in all cases when on-site or adjacent
well(s) cannot be located. For instances where the on-site or
adjacent well(s) are below ground and the homeowner or
adjacent property owner states that the well is located in a
certain area, this information shall suffice for verification of
well location. Any well(s) that can not be verified must be
researched through the Water Supply Section of the
Department. The search attempts to locate any well(s) that
are near the affected parcel. If, after this search is
completed, the well location(s) cannot be identified the Class
D licensee can state "records were researched under this
property owner's name and no information was found". The
Department then sends a letter to the adjacent well owners
notifying them of the need to locate their well(s) due to the
future installation of an on-site wastewater treatment and
disposal system. If no response is rendered within fifteen
(15) days of receipt then the new system is to be designed to
maximize the isolation distance from the property line.
5.01040 A site evaluation prescription for a
subsurface soil absorption system shall follow an approach
that includes consideration of topography, available area,
slope gradient and uniformity, soil profile (thickness and
depth of each horizon, color, percolation, absorption rate,
redoximorphic features, texture (see Exhibit B), and zones of
saturation), drinking water supplies, bodies of water, and
shellfish growing areas. All suitable soils shall be delineated
regardless of isolation distances, encumbrances and
easement requirements as well as any of the above
conditions which may exist.
5.01045 All test soil borings, holes and/or pits
shall be flagged, identified and adequately shown on the site
plat along with the distance to the nearest fixed point of
reference.
5.01060 The Department or site evaluator shall
evaluate the site of the proposed system, shall consider
system options, and shall provide a report of such evaluation
that determines if the site is suitable for an on-site disposal
system. In describing the soils and soil profile, the site
evaluator Class D licensee shall adhere to the procedures and
techniques provided in the latest edition of the Soil Survey
Manual, USDA Agricultural Handbook No. 18, as published
by the U.S. Department of Agriculture.
5.01080 The report shall contain, at a
minimum, a site plat and observations of the following site
characteristics if present:
(a) Parcel size, location map of project site,
configuration and approximate dimensions
(b) Slope - in absorption area and replacement
areas percent and direction
(c) Surface streams, springs or other bodies of
water and their definition (i.e. shellfish, intermittent,
ephemeral, etc.)
(d) Existing and proposed wells within 150
feet of approved soils area
(e) Escarpments
(f) Cuts and fills
(g) Unstable landforms
(h) Soil profiles A representative number of
soil profile descriptions in the evaluated area(s) and shall
identify the soil series or classification to the subgroup level
(i.e. Sassafras or Typic Hapludult).
(i) Zones of saturation (as indicated by
redoximorphic features)
(j) Useable area of initial and replacement
disposal fields Approved soils area(s)
(k) Encumbrances
(l) Central wastewater or water systems
availability
(m) Any other applicable information such as
hydric soils (if any delineated and recorded state or federal
wetlands), beach preservation line, and topographic contour
lines of at least two (2) feet intervals for slopes greater than
5%.
(n) Any overhead or underground utilities
(o) Existing dwellings
5.01100 A copy of the report from the evaluator
shall be sent directly to the property owner and/or
hisdesignated agent. Another copy shall be sent with
appropriate fee to DNREC prior to the submittal for the
application/construction permit. The copy sent to DNREC
shall have the correct address and phone number of the
property owner and/or his designated agent. The
application/construction permit report may be submitted
with the site evaluation, in an emergency situation, when
there is a public health risk associated with a malfunctioning
system. The permit shall not be approved until the site
evaluation is reviewed and complies with the Regulations.
Site evaluations needed to replace the malfunctioning system
shall be given a priority review.
5.01105 Once received, the report shall be
reviewed for compliance with current Regulations by a
DNREC soil Environmental Scientist with a soil science
background. If the report is in non-compliance, a notice shall
be sent to the owner or his/her authorized agent and the Class
D licensee shall be notified. site evaluator. The Class D
licensee site evaluator shall contact the Department to rectify
the discrepancy. The Department shall not modify any site
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PROPOSED REGULATIONS 775
evaluation report unless requested by the Class D individual.
The corrections shall be submitted to the Department from
the evaluator and a corrected copy to the owner, etc. The
review process, which may include a field check, shall take
place within ten (10) calendar working days of receipt from
the post mark date if mailed or the Departmental date stamp
if submitted in person. (NOTE: If approval cannot be issued
within ten (10) working days, the property owner or
authorized agent shall be notified of the delay and a tentative
date of approval or denial shall be given). Once If approved,
the report shall be stamped as so and mailed to the property
owner or his/her authorized agent. A percentage of randomly
chosen site evaluations submitted shall be field verified by
DNREC staff. Site evaluations requiring test pits
(particularly in northern New Castle County) should be
reported to the Department prior to conducting the site
evaluation.
5.01125 An approved site evaluation report
allows a permit to be issued for construction of a system on
that property provided procedures and conditions for permit
issuance found in these Regulations are met. Approval of a
site evaluation indicates only that the site evaluation was
conducted in compliance with these Regulations. It is not an
indication of the correctness or quality of the site evaluation
nor an indication that a permit can be issued.
5.01130 In order to obtain an approved site
evaluation report, the conditions outlined in these
regulations shall be met.
5.01140 The approved site evaluation report
shall indicate the type of the initial and type of replacement
system for which the site is approved.
5.01160 Approval of a site evaluation shall be
denied where the conditions for approval are not met.
5.01170 Technical regulation changes shall not
invalidate an approved site evaluation but may require the
use of a different type of system.
5.01172 The approved site evaluation shall be
valid for five (5) years from the date of the Department's
approval or the adoption of this regulation revision unless a
base plan restricting well and on-site wastewater treatment
and disposal system locations has been approved by the
Department and recorded in the local Recorder of Deeds
Office. After the five (5) year period, an updated site
evaluation as outlined in Section 5.01080, shall be submitted
to the Department for approval. This updated site evaluation
will be reviewed as outlined in Sections 5.01100 and
5.01105.
5.01175 Any request for modification of a site
evaluation found to be in compliance shall be submitted in
writing to the Department either by the property owner or the
legally authorized agent. Any modification to a site
evaluation resulting in system type change requires a new
report be submitted to the Department with the appropriate
fee. The report shall once again be reviewed by procedures
outlined in Sections 5.011000 and 5.01105.
5.01176 Supplemental soil information
submitted after the original site evaluation report has been
submitted approved shall include a revised approval page,
report page, soil profile notes, and revised plat drawing
locating supplemental borings/test pits. In all cases, the new
report shall be approved provided all criteria for approval are
met. Supplemental borings/test pits conducted on parcels of
one acre or less for the sole purpose of moving a system shall
not require a fee. However, I if the purpose of supplemental
work is to change the type of system previously prescribed,
another review fee shall be required. Likewise, any borings/
test pits conducted greater than 100 ft. from the previously
evaluated approved area, with or without a system change,
shall require a review fee. On larger parcels, the area
evaluated shall be delineated on the site plat.
5.01180 The Department shall issue a notice of
its intention to deny a site evaluation when appropriate.
Alternative technologies for on-site wastewater treatment
and disposal systems, system, if appropriate, shall be
included in the letter. of denial. The tentative site evaluation
denial may be reviewed by the Director at the request of the
applicant. The application for review shall be submitted to
the Director in writing, within thirty (30) days of the date of
the notice to deny the site evaluation, and shall be
accompanied by the denial review fee. The review shall be
conducted and a report prepared by the Director. The
applicant still maintains his/her right to appeal the decision
of the Secretary, within 20 days of receipt, in accordance
with 7 Del. C., Chapter 60, Section §6008.
5.01190 A property owner or agent has the
option to use observation wells to demonstrate that soil
mottling or other color patterns redoximorphic features at a
particular site are not an indication of zones of saturation.
The following procedures for the use of observation wells to
determine the depth and duration of zones of saturation shall
be implemented.
5.0A1200 Observation Wells
5.0A1210 Observing Determining the zones of
saturation using observation wells shall follow these
procedures:
(a) The property owner or authorized agent
shall notify the Department, in writing, of the intent to
observe use observation wells to determine the zones of
saturation.
(b) At least three (3) observation wells shall
be installed and monitored at a site. for the proposed initial
and replacement on-site wastewater disposal systems. If, in
the judgment of the Department, more than three (3)
observation wells are needed, the property owner or agent
shall be so advised notified in writing within ten (10) days of
receipt of the letter of intent.
(c) The design illustrated in Exhibit Y shall be
used when constructing observation wells. At least two (2)
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
776 PROPOSED REGULATIONS
wells shall extend to a depth of at least six (6) feet below
ground surface. and shall be a minimum of three (3) feet
below the proposed gravel depth. However, with layered
mottled soil over permeable unmottled soil, at least one (1)
well shall terminate within the mottled layer. Site conditions
may, in some cases, require monitoring at greater depths. It
shall be the responsibility of the site evaluator Class D
licensee to determine the depth of the observation wells for
each site and, if in doubt, they shall request the guidance of
the Department.
(d) All observation wells are required to be
permitted by the Department Water Supply Branch.
(e) Observation wells shall be installed by or
under the direct on-site supervision of a well driller licensed
by the State of Delaware.
(f) Monitoring of water levels shall be done
by an Class , B, C, D individual or by a well driller, all of
whom are is licensed by the State of Delaware Division of
Water Resources. The property owner/agent or any relative
shall not, at anytime, be allowed to monitor the water levels
of these wells.
(g) The preferred monitoring is from October
15th December 1st through May 15th of the following year to
verify the depth and duration of the zones of saturation
during years of near normal precipitation for fall, winter and
spring seasons. However, the Class D Licensee site
evaluator may, at his/her discretion, allow clients to install
wells at any time he/she deems appropriate. Depending on
when peaks are observed, the State may or may not accept
the monitoring for that season. A near normal fall, winter
and spring monitoring period is when precipitation received
at a local weather station is at or near the thirty year average
as reported by the weather station. The licensed individual
shall be responsible for relating precipitation levels received
during the monitoring period to precipitation received in the
previous three years. (Dover, Georgetown, or Wilmington)
is equal to or exceeds, for both periods October 1st to March
1st and March 1st to May 1st, 13.55 inches and 11.23 inches,
respectively. A precipitation gauge may be installed at the
site. Otherwise precipitation data shall be compiled from the
nearest local weather station. (The modal precipitation
values were determined from 30 years of precipitation data
from the U. S. National Weather Service for Dover,
Georgetown and Wilmington for the years 1958 to 1987
with the ten (10) driest years being thrown out and using the
11th year as modal.)
(i) The Department shall field check the
monitoring periodically during the time of expected
saturated soil conditions at their discretion.
(ii) The first observation shall be made on
or before October 15th. Observations shall be thereafter
made every seven (7) days or less until May 1st or until the
site is determined to be unacceptable, whichever comes first.
If water is observed above the critical depth twenty (20)
inches from the soil surface or present grade) at any time, an
observation shall be made one (1) week later. If water is
present above the critical depth at both observations,
monitoring may cease because the site is then considered
unacceptable. If water is not present above the critical depth,
monitoring shall continue until May 1st. If any two (2)
observations seven (7) days apart show the presence of water
above the critical depth, the site is unacceptable and the
Department shall be notified in writing.
(iii) The occurrence of rainfall(s) of 1/2
inch or more in a 24 hour period during monitoring may
necessitate observations at more frequent intervals.
(iv) The Department may, at any time
during the observation period, verify the observed water
depth by conducting a soil boring next to, and of equal depth
with, any of the observation wells. If the water level in the
fresh boring, after 24 hours, presents a discrepancy with the
water level observed in the well, then at the discretion of the
Department, the data may be declared invalid. If the data is
declared invalid, then an the Department will notify the
owner in writing of the invalid data within ten (10) days of
determination. an unsuccessful site procedure shall be
initiated.
5.0A102 When monitoring shows saturated
conditions above the critical depth, data giving test locations,
ground elevations at the wells, soil profile descriptions, dates
observed, depths to observed water and local precipitation
data (monthly from October 15th to May 1st and daily
during monitoring) shall be submitted to the Department, in
writing, accompanied by two (2) copies of the same.
5.0A12203 When water well monitoring discloses
that the site is acceptable, documentation including location
and depth of wells, ground elevations at wells, soil profile
descriptions, dates observed, result of observations, local
precipitation data and information on artificial drainage shall
be submitted in writing to the Department in a site evaluation
report with appropriate review fee. When monitoring
determines that the site is suitable, the Department will
request that a new site evaluation be submitted. The
monitoring information must be incorporated into the new
site evaluation. shall approve the site evaluation and, if
necessary, rescind the denial. An approved site evaluation
report shall be issued indicating the appropriate system
type(s).
5.0A104 The monitoring of soil borings for
periods of time less than the above stated time frame may be
permitted to help determine if observation well procedures,
as outlined above, are warranted to determine if the site
evaluation needs to be revised.
5.0A12305 Observation wells are required to be
abandoned in accordance with the current Regulations
Governing the Construction and Use of Water Wells.
5.0A106 Areas which are to be monitored shall
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PROPOSED REGULATIONS 777
be carefully checked for drainage tile and open ditches
which may have altered natural high ground water levels.
Where such factors are involved, information on the
location, design, ownership and maintenance responsibilities
for such drainage shall be provided. Documentation shall be
provided to show that the drainage network has an adequate
outlet, and can and shall be maintained. Sites affected by
agricultural drain tile shall not be acceptable for system
installation.
5.0B13000 Site Interpretation Advisory Council
5.0B13100 The purpose of the Site Interpretation
Advisory Council (Council) is to act as an objective peer
group in the review of discrepancies between the
Department of Natural Resources and Environmental
Control (DNREC) and Class D licensee's soil scientists
regarding questions of interpretation of soil and site
information for siting on-site wastewater treatment and
disposal systems.
5.0B13202 The Council shall restrict its charge to
those items normally and commonly addressed when
conducting a site evaluation as discussed below. The
Council specifically excludes instances regarding the
engineering design and/or installation of septic on-site
wastewater treatment and disposal systems except when it is
directly applied to the soil science practice.
(a) The description and interpretation of soil
morphology in regard to the proper functioning of on-site
wastewater treatment and disposal systems utilizing the soil
as part of the treatment process.
(b) The characterization of lithologic and
hydrologic limiting layers and geomorphology pertinent to
the proper siting and functioning of on-site septic wastewater
treatment and disposal systems.
(c) The recognition and documentation of site
limitations for the placement of on-site septic wastewater
treatment and disposal systems (i.e. existing wells and septic
on-site wastewater treatment and disposal systems) in
accordance with standard practice in Delaware.
5.0B13303 The Site Interpretation Advisory
Council shall be appointed by the Secretary and consist of
the following members:
(a) Four (4) non-governmental Class D
licensee's site evaluators actively practicing in the State of
Delaware for two (2) or more years with one (1) acting as an
alternate.
(b) One (1) employee of the Department with
soils and on-site wastewater industry expertise.
(c) One (1) soil scientist designated by the
State Conservationist through the State Soil Scientist, SCS
NRCS, USDA.
(d) The A manager of the Soil Assessment
Branch (SAB) Ground Water Discharges Section (GWDS),
DNREC, shall serve as a liaison to the Council without
voting privileges.
(e) All members shall serve three (3) year
terms. Procedures shall be established by the Council to
stagger terms so as to provide continuity.
5.0B13404 Documentation and testimony
regarding a review shall be submitted to the Council. After
the initial review by the Council, a determination shall be
made as to whether sufficient information has been
submitted to render an informed decision. The Council may
request additional information from the applicant before
proceeding with the review. There shall be no cost to the
Council for any information submitted.
5.0B13505 Within thirty (30) days from receipt of
the documentation, the Council shall render a decision,
based on a simple majority vote, regarding which system(s),
if any, are suitable under the Delaware Regulations law.
5.0B13606 A site visit shall be conducted by at
least four (4) members of the Council. The applicant is
responsible for all costs that may be incurred. Council
members shall not be reimbursed for any expenses.
5.0B13707 Council decisions may be used by the
Director of Water Resources in Director's Reviews.
However, a Any decision rendered by the Council may shall
be considered by the Secretary but shall not and may be the a
deciding factor in his/her decision. The applicant still
maintains his/her right to appeal the decision of the Secretary
in accordance with 7 Del. C., Chapter 60, Section §6008.
5.0B13808 The Council shall designate one of its
members representing the private sector to serve as
chairperson man for a period of one year. The chairperson
man, or his/her designee, serving as the principal contact
person between the Council and the a manager of the Soils
Assessment Branch Ground Water Discharges Section
(GWDS), shall perform the following duties:
(a) Call and preside at all Council meetings.
(The SAB A GWDS manager may also call a meeting, but is
not entitled to preside at a Council meeting.)
(b) Upon receipt of a request, poll the Council
members and communicate the results to the SAB GWDS
manager calling a Council meeting when appropriate. (This
function may also be performed by the SAB GWDS
manager when necessary.)
(c) Prepare a letter communicating the
Council's decision in each case. (The letter shall be sent
within fifteen (15) working days after the Council's decision
to the SAB GWDS manager for signature and returned for
mailing within three (3) working days.)
5.0B13909 The following services shall be
furnished by the DNREC to facilitate the operation of this
Council:
(a) The A manager of the Soil Assessment
Branch Ground Water Discharges Section shall represent the
Section's position at all Council meetings.
(b) All submittals for consideration shall be
circulated to the Council under the direction of the SAB
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778 PROPOSED REGULATIONS
GWDS manager within ten (10) working days.
(c) The SAB A GWDS manager, at the
request of the Council chairperson man, shall reserve space
in the DNREC facilities for Council meetings.
(d) The DNREC shall provide clerical
services for record keeping. Records of the Council
meetings shall be furnished to all Council members within
fifteen (15) working days following the meetings.
(e) The clerical person shall prepare and mail
the decisions of the Council upon receipt from the
chairperson man.
5.0B14010 The Council shall restrict reviews to
those submittals directly affected by the expertise of the soil
scientist's decision, using one of the following two (2)
methods:
(a) A submittal from the Secretary, DNREC;
or
(b) A submittal from a DNREC Class D
licensee site evaluator.
5.0B14101 All submittals shall be circulated to
the Council membership. A majority vote of the Council is
required for any submittal to be accepted for Council review.
5.02000 Permit Application Procedures - General
Requirements
5.02010 No person shall cause or allow
construction, alteration, or repair of a system, or any part
thereof, without a permit. An exception may be allowed for
certain emergency repairs as set forth in these Regulations.
5.02020 Applications for permits shall be
made by the owner of the property or the owner's legally
authorized agent on forms provided and approved by the
Department.
5.02030 An application is complete only when
the form is completed in full, is signed by the owner or the
owner's legally authorized agent, is accompanied by all
required exhibits (including provided an approved site
evaluation report is on file) and fee and includes, from the
appropriate government unit having jurisdiction, a statement
that the local governmental unit has approved the activity by
zoning. Incomplete applications will not be processed and
may be returned.
5.02040 The application form shall be received
by the Department only when the form is complete, as
detailed in these Regulations.
5.02050 Upon receipt of an application The
Department shall deny the permit if:
(a) The application contains false
information;
(b) The proposed system would not comply
with these Regulations;
(c) The proposed system, if constructed,
would violate a Department moratorium;
(d) A central wastewater wastewater system
which can serve the proposed sewage wastewater flow is
both legally and physically available as described in Sections
5.02060 and 5.02070 of these Regulations;
(e) Construction of an on-site wastewater
treatment and disposal system is prohibited by codes,
ordinances or county or municipal regulations having
jurisdiction.
5.02055 The completed application shall
include at a minimum the following site information;
(a) Parcel and/or lot dimensions and size with
a location map of project site;
(b) Slope - in absorption facility and
replacement areas (percent and direction);
(c) Existing wells within 150 feet of the
proposed system.
(d) Any and all watercourses or bodies of
water;
(e) Distances of the on-site well(s) and on-site
wastewater treatment and disposal systems from the nearest
two fixed points of reference. Points of reference as defined
in Section 5.01030;
(f) Soil boring and test pit locations along
with limits of approved area as indicated on the approved
site evaluation;
(g) Any other information required to satisfy
these Regulations.
5.02060 A central wastewater system shall be
deemed physically available if its nearest connection point
from the property to be served is:
(a) For a single family dwelling, or other
establishment with a maximum projected daily sewage
wastewater flow of not more than five hundred (500)
gallons, within three two hundred (300) (200) feet;
(b) For a proposed subdivision or group of
two (2) to five (5) single family dwellings, or equivalent
projected daily sewage wastewater flow, not further than two
hundred (200) feet multiplied by the number of dwellings or
dwelling equivalents.
(c) For proposed subdivision or other
developments with more than five (5) single family
dwellings, or equivalents, the determination of central
wastewater availability shall be in the sole discretion of the
Department.
However, a central wastewater system shall not
be considered available by the Department if topographic or
manmade features make connection physically impractical.
5.02070 A central wastewater system shall be
deemed legally available if the system is not under a
Department connection permit moratorium and the
wastewater system owner is willing or obligated to provide
sewer service.
5.02080 A permit shall be issued only to the
owner or easement holder of the land on which the system is
to be installed.
5.02090 The Department shall either issue or
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PROPOSED REGULATIONS 779
deny the permit within twenty (20) working days after
receipt of the completed application. However, if conditions
prevent the Department from acting to either issue or deny
the permit within twenty (20) working days, the applicant
shall be notified in writing. The Department shall either
issue or return deny the permit within thirty (30) working
days after the mailing date of such notification.
5.02100 All permits issued for on-site
wastewater treatment and disposal systems pursuant to these
Regulations shall be effective for one (1) two (2) years from
the date of issuance. If the system has been started the
Department may issue a limited time period extension. and is
not transferable. A one year limited extension may will, if
requested, be granted by the Department upon demonstration
by the applicant that no changes have occurred in system
design, siting, or Regulations applicable to the permit since
the permit was issued and written certification to such
factual findings is provided and all appropriate fees are paid.
5.02105 If any portion of the approved
disposal area is disturbed during site construction activities,
through grubbing, tree removal or other activities utilizing
heavy equipment, additional soil borings or test pits shall be
performed within the disturbed area(s) to substantiate the
initial site evaluation.
5.03000 Permit Denial Review
5.03010 The Department shall issue a notice of
its intention to deny a permit. The tentative permit denial
shall be reviewed by the Director at the request of the
applicant. The application for review shall be submitted to
the Director in writing, within thirty (30) days of the date of
the tentative permit denial notice from the Department and
be accompanied by the denial review fee. The denial review
shall be conducted and a report prepared by the Director.
The Department shall make a decision on the application
which it determines will best implement the purposes of 7
Del. C., Chapter 60 and these Regulations. The providing of
the requisite information in the application procedure by the
applicant shall not be construed as a mandatory prerequisite
for the issuance of the permit by the Department.
5.03020 Permit denials for systems and denial
reviews may be appealed to the Environmental Appeals
Board in accordance with 7 Del. C., Chapter 60, Section
6008.
5.03030 If the Department intends to deny a
permit for a parcel of ten (10) acres or larger in size, the
Department shall:
(a) Provide the applicant with a Notice of
Intent to Deny;
(b) Specify reasons for the intended denial;
and
(c) Offer an public hearing appeals process in
accordance with 7 Del. C., Chapter 60, Section 6006 8.
5.04000 Pre-Cover Inspections
5.04005 The Class E contractor shall contact
the Department 24 hours prior to system construction to
obtain a startup number to authorize the construction.
5.04006 Changes to a permit which result in
only a relocation of the system can be done by submitting a
pre-inspection as-built, which requires a minimal check
against the site evaluation to ensure the system is still located
within approved soils and that all required isolation distances
are met. These "as-builts" are to be submitted to the
Department by the Class E contractor prior to installation.
The Class E contractor must obtain permission from the
designer prior top submittal.
5.04010 When construction, alteration or
repair of a system is complete, except for backfill (cover), or
as required by permit, the owner system Class E contractor
installer shall notify the Department. The Department
inspector shall inspect the installation to determine if it
complies with these Regulations and the terms and
conditions of the permit, unless the inspection is waived by
the Department in accordance with Section 5.04020.
5.04013 It is the responsibility of the Class E
contractor to confirm the results of the pre-cover inspection
prior to backfilling the system.
5.04017 An inspector shall be either:
(a) An employee of the Ground Water
Discharges Section;
(b) A Class "C" designer or his/her
designee.The Class C designer must submit a list of
authorized personnel, on company letterhead, to the
Department for review and approval.
(c) Any person officially authorized by the
Department to perform inspections of on-site wastewater
treatment and disposal systems.
5.04020 The Department may waive the
pre-cover inspection, provided:
(a) The installation is a standard subsurface
system gravity fed on-site wastewater treatment and disposal
system installed by a licensed person pursuant to these
Regulations; and
(b) After system completion the installer
provides a completion construction report which certifies in
writing that the system complies with the Department's
Regulations. If any changes were made to the system the
contractor must provide a detailed "as-built" plan (drawn to
scale).
5.04021 Failure to comply with Departmental
Regulations and the conditions of the permit will result in
verbal notification to the Class E contractor. Failure to
correct deficiencies within calendar 10 days (weather
permitting) will result in written notification of such to both
the Class E contractor and permittee. Additional inspections
may be required by the Department.
5.04023 Once a system has received a
satisfactory pre-cover inspection or authorization to cover
without a Departmental inspection, the system may be
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780 PROPOSED REGULATIONS
covered as specified in the approved permit. Backfilling
must be completed within ten (10) calendar days of a
satisfactory pre-cover inspection, weather permitting.
5.04027 Systems requiring earthen caps and all
mound systems shall require a final cover inspection
pursuant to Section 5.04010 or 5.04020. Capping of systems
must be completed within ten (10) calendar days of a
satisfactory pre-cover inspection or authorization to cover
without Departmental inspection, weather permitting.
5.04030 Precover inspection details shall be
recorded by the installer on a form approved by the
Department.
5.04033 Inspections performed by Class C
designers shall conform to guidelines established by the
Department.
5.04037 In situations where the Designer is not
comfortable approving a system, he/she is to contact the
Department immediately.
5.05000 Certificate of Satisfactory Completion
5.05010 The Department shall issue a
Certificate of Satisfactory Completion, if, upon inspection of
the installation, the system complies with the Department's
Regulations, and the conditions of the permit, and a
construction report is submitted to the Department.
5.05020 If the inspection is not made within
forty-eight (48) hours excluding Saturdays, Sundays, and
holidays after notification of completion, or the inspection is
waived, a Certificate of Satisfactory Completion shall be
deemed issued by operation of law. In such cases, a modified
Certificate shall be issued to the owner upon compliance
with the requirements of Section 5.04020.
5.05030 A system shall be backfilled (covered)
when:
(a) The permittee Class E contractor is
notified by the Department that inspection has been waived;
or
(b) The inspection has been done and
authorization has been granted to cover the system; or
(c) An authorization to cover has been issued
by operation of law where the inspection had not been
conducted within forty-eight (48) hours, excluding
Saturdays, Sundays, and holidays, of notification of
completed installation.
5.05040 Corrections necessary to meet
requirements for satisfactory completion shall be made
within thirty (30) seven (7) calendar days after written
notification by the Department, and posting of a Notice of
Violation, unless otherwise required.
5.05050 Unless otherwise required by the
Department the contractor shall backfill (cover) a system
within ten (10) days after being authorized to do so for that
system.
5.05060 A Certificate of Satisfactory
Completion shall be valid for a period of one (1) two (2)
years from the date of issuance. After the one (1) two (2)
year period, the Regulations for Authorization Notices to
Use an Existing System Permit or Alteration Permits apply.
5.05070 Denial of a Certificate of Satisfactory
Completion may be appealed in accordance with 7 Del. C.,
Chapter 60, Section 6008.
5.05080 If the system has been placed into
operation without the required Certificate of Satisfactory
Completion, a Notice of Non-Compliance shall be issued to
the owner and must be corrected within ten (10) calendar
days or system must be abandoned in accordance with
Section 5.06020.
5.06000 Abandonment of Systems
5.06005 General Requirements
(a) All systems shall be abandoned by a Class
E licensee or other governmental appointee.
(b) Within (10) calendar days of abandonment,
the Class E licensee shall submit a System Abandonment
Report on a form provided by the Department (see Exhibit Z).
The report shall be filled out completely and signed by the
licensee.
5.06010 The system shall be properly
abandoned when:
(a) A central wastewater system becomes
available and the building sewer has been connected thereto;
or
(b) The source of wastewater has been
permanently eliminated; or
(c) The system has been operated in violation
of these Regulations, until a repair permit and Certificate of
Satisfactory Completion are subsequently issued therefore;
or
(d) The system has been constructed,
installed, altered, or repaired without a required permit
authorizing same, unless and until a permit is subsequently
issued therefore; or
(e) The system has been operated or used
without a required Certificate of Satisfactory Completion or
Authorization Notice authorizing same, until a Certificate of
Satisfactory Completion or Authorization Notice is
subsequently issued therefore.
5.06020 Procedures for Abandonment:
(a) The septic tank, cesspool or other
treatment unit shall be pumped by a Class F licensed hauler
liquid waste hauler to remove all of the contents;
(b) The septic tank, cesspool or other
treatment unit shall be removed or filled with reject sand,
barnk run gravel, or other material approved by the
Department;
(c) The system building sewer shall be
permanently capped.
5.07000 Authorization to Use an Existing System
Permit
5.07010 Application for an Authorization to
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PROPOSED REGULATIONS 781
Use an Existing System Notices Permit shall be made on
forms provided by the Department and shall be received
accepted only when the forms are complete.
5.07020 No person shall place into service,
change the use of, or increase the projected daily sewage
wastewater flow above design standards into an existing
system without first obtaining an Authorization Notice to
Use an Existing System Permit or Alteration, Repair or
Replacement Permit as appropriate.
5.07030 An Authorization Notice to Use an
Existing System Permit is not required:
(a) Where there is a replacement of a mobile
manufactured home or recreational vehicle with similar units
in mobile manufactured home communities parks or
recreational vehicle facilities with on-site sewage
wastewater treatment and disposal systems approved by the
Department when an annual inspection has taken place by
the Department or an authorized designee certifying that the
existing system(s) is/are not malfunctioning and/or a
cesspool.
(b) For use of a previously unused system for
which a Certificate of Satisfactory Completion has been
issued within one (l) year of the date that such system is
placed into service, provided the projected daily sewage
wastewater flow does not exceed the design flow.
5.07040 For changes in the use of an existing
system where no increase in sewage wastewater flow above
design standards is projected, or where the design flow is not
exceeded an Authorization Notice to Use an Existing System
Permit shall be issued if:
(a) The existing system is not malfunctioning
and/or a cesspool; and
(b) All isolation distances from the existing
system can be maintained; and
(c) At the sole discretion of the Department,
Tthe proposed use would not create a public health hazard;
and
(d) If the Department has no record of an
existing on-site wastewater treatment and disposal system,
no connection to that system shall be permitted until an
inspection has been performed provided the following are
uncovered and left uncovered prior to the inspection:
(i) Septic tank
(ii) Distribution box
(iii) Corners of each trench or the bed
(additional area may be required upon inspection)
5.07050 If the conditions of Section 5.07040
cannot be met, an Authorization Notice to Use an Existing
System Permit shall be withheld until such time as
alterations and/or repairs to the system are made. in
accordance with these Regulations.
5.07060 For changes in the use of a system
where projected daily sewage wastewater flows would be
increased above design criteria an Alteration, Repair or
Replacement permit must be obtained.
5.07070 The Department may allow a mobile
home to use an existing system serving another dwelling, in
order to provide temporary housing for a family member
suffering hardship, by issuing an Authorization Notice to
Use an Existing System Permit, if:
(a) The Department receives satisfactory
evidence which indicates the family member is suffering
physical or mental impairment, infirmity, or is otherwise
disabled and is in need of temporary housing; and
(b) The system is not malfunctioning and/or is
not a cesspool; and
(c) The application is for a mobile home; and
(d) Evidence is provided that a hardship
mobile home placement is allowed on the subject property
by the governmental agency that regulates zoning, land use
planning, and/or building; and
(e) A full system replacement area is available
according to an approved site evaluation.
5.07080 An Authorization Notice to Use an
Existing System Permit issued for personal hardship shall
remain in effect for a specified period, not to exceed
cessation of the hardship. The Authorization Notice is
renewable on an annual basis. The Department shall impose
conditions in the Authorization Notice to Use an Existing
System Permit which are necessary to assure ensure
protection of public health. If the system fails and additional
replacement area is no longer available, the mobile home
shall must be removed from the property.
5.08000 Alteration of Existing Systems:
5.08010 No person shall alter or increase the
design capacity of an existing system without first obtaining
an Alteration Permit.
5.08020 No person shall increase the projected
daily sewage wastewater flow into an existing system
beyond the design capacity of the system until an Alteration
Permit is obtained.
5.08030 The Department may issue an
Alteration Permit if:
(a) The existing system is not malfunctioning
and/or is not a cesspool; and
(b) An approved site evaluation report has
been obtained; and
(c) The proposed installation will be in full
compliance with these Regulations.
5.08040 Upon completion of installation of
that part of a system for which an Alteration Permit has been
issued, the permittee shall obtain a Certificate of Satisfactory
Completion from the Department. An increase in the
projected daily sewage flow into the system shall be
prohibited until the Certificate is issued.
5.09000 Repair and Replacement of Existing
Systems
5.09010 Steps to repair a malfunctioning
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782 PROPOSED REGULATIONS
system shall be initiated immediately and followed until
repaired. However, if at the sole discretion of the
Department, it is determined that adverse soil conditions
exist due to climatic conditions that would likely preclude a
successful repair, the Department may allow a delay in
commencing repairs until the soil conditions improve. If this
allowance is made, a compliance date and interim system
maintenance requirements shall be specified in a Notice of
Violation system construction deficiencies to the system
owner.
5.09020 No person shall repair a
malfunctioning system without first obtaining a Repair
Permit. Emergency repairs of broken pressure or sewer pipes
system components, as specifically defined in these
Regulations (see Section 2.01260), may be made without
first obtaining a permit provided that a permit is applied for
within three (3) working days after the emergency repairs are
begun. Such a delayed application submittal does not relieve
any person from complying with subsequent requirements or
conditions of approval as may be imposed by the
Department.
5.09030 Upon completion of installation of
that part of a system for which a repair permit has been
issued, the permittee shall obtain a Certificate of Satisfactory
Completion from the Department.
5.09040 The following criteria for a repair or
replacement permit shall apply:
(a) If the site characteristics and standards
described in these Regulations can be met, then the repair
installation shall conform to them.
(b) If the site characteristics or standards
described in these Regulations cannot be met, the
Department may allow a reasonable repair or replacement
installation in order to eliminate a public health hazard.
Reasonable repairs or replacements may require the
installation of an alternative system in order to eliminate a
public health hazard. In such cases the Department shall use
its best professional judgment in approving repairs or
replacements that will reasonably enable the system to
function properly.
5.09050 Malfunctioning systems which cannot
be repaired shall be abandoned in accordance with these
Regulations.
5.10000 Experimental Alternative Wastewater
Treatment and Disposal Systems
5.10010 Policy. Alternative technology to
standard on-site sewage wastewater treatment and disposal
systems may be are appropriate for areas planned for rural or
low density development where site constraints limit the
suitability for conventional system types. The Department
shall consider applications for alternative wastewater
treatment and disposal systems on a case-by-case basis. It is
the policy of the Department to pursue a program of
experimentation for the purpose of obtaining sufficient data
for the development of alternative sewage wastewater
treatment and disposal systems, which may benefit
significant numbers of the people within of Delaware. For
the purposes of this section, applications for community
systems that employ advanced treatment units which are in
conformance with standard engineering practice as
determined by the Department shall not be considered
alternative.
5.10015 Applications for alternative
wastewater treatment and disposal systems shall provide
documentation of the capabilities of the proposed system.
Such documentation shall be in the form of proven data of
long term usage of facilities similar to those specified in
these Regulations, or short term documentation from
controlled projects from reliable sources such as Universities
or the National Sanitation Foundation. The Department shall
approve only treatment and disposal system applications that
provide thorough documentation of proven technology.
Alternative wastewater treatment and disposal systems shall
provide, at a minimum, an equivalent level of treatment and
disposal as a conventional wastewater system. Alternative
wastewater products will require the same documentation as
above, however, these will not require a Class C licensee to
incorporate into a design.
5.10020 No person shall construct an
experimental alternative on-site sewage wastewater
treatment and disposal system without first obtaining a
permit from the Department.
5.10030 Applications for experimental
alternative systems shall be made on to the Department
forms. The application shall be complete, signed by the
owner and accompanied by the required fee. The application
shall include detailed system design specifications, and plans
and any additional information requested by the Department.
5.10035 Applications for alternative
wastewater treatment and disposal systems shall include, but
not be limited to, the following:
(a) Volume and rate of wastewater flow
(b) Characteristics of the wastewater
(c) The degree and extent of treatment
expected.
(d) Design criteria, specifications, and
drawings including a description of the system, its
capabilities, operation and maintenance requirements,
unique technical features and system advantages for
treatment systems.
(e) Construction materials
(f) Operational and maintenance details along
with their requirements.
(g) The seal of a Professional Engineer having
a Class C license may be required.
(h) Any other information required by the
Department.
5.10040 Sites may be considered for
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PROPOSED REGULATIONS 783
experimental alternative system permits where:
(a) Soils, climate, ground water, or
topographical conditions are common enough to benefit
large numbers of people The seasonal high water table or a
limiting condition is encountered deeper than ten (10) inches
below the soil surface or observation well data determines
the seasonal high water table is deeper than ten (10) inches;
and
(b) A specific acceptable backup alternative is
available in the event of system failure; and
(c) For absorption systems, soils in both
original and system replacement areas are similar; and
(c) Installation of a particular system is
necessary to provide a sufficient sampling data base; and
(d) Zoning, planning, and building
requirements allow system installation; and
(f) A single family dwelling will be served;
and
(e) The system will be used on a continuous
basis during the life of the test project; and
(f) Resources for monitoring, sample
collection, and laboratory testing are available; and
(g) The property owner records with the deed,
a Department approved affidavit, which notifies prospective
property owner purchasers of the existence of an
experimental system; and
(j) The parcel size is at least one-half (l/2)
acre.
5.10050 The system installation permit shall:
(a) Specify method and manner of system
installation, operation, and maintenance;
(b) Specify method, manner, and duration of
system testing and monitoring, at the Department's
discretion;
(c) Identify when and where the system is to
be inspected;
(d) Not be transferable;
(ed) Require system construction and use
within one two (1 2) years of permit issuance.
5.10060 Inspections of an installed system
shall be performed by a Class C designer and the
Department. Upon completing ion of construction for each
phase requiring inspection by the permit, the permit holder
Class E contractor shall notify the Department and the Class
C designer.
5.10070 The Department may inspect
construction at any time to determine whether it complies
with permit conditions and requirements.
5.10080 After system installation is complete
and the Department has determined that it complies with
permit conditions, a Certificate of Satisfactory Completion
shall be issued.
5.10090 If the Department finds the operation
of the system is unsatisfactory, the owner, upon written
notification by the Department shall promptly repair or
modify the system, replace it with another acceptable
system, or abandon the system.
5.10100 The system may will be monitored by
the Department in accordance with a schedule contained in
the permit.
5.10110 Should any additional guidelines be
developed by the Department, the permitee would be
responsible for meeting these guidelines.
5.11000 Community Systems
5.11010 Without first applying for and
obtaining a construction installation permit, no person shall
install a community on-site wastewater treatment and
disposal system.
5.11015 A community on-site wastewater
treatment and disposal system shall be required for a
subdivision when any of the following conditions exist:
(a) Lot size is less than one (1) acre and more
than 55% of the subdivision or planned unit development
contains soil mapping units identified as being suitable for
on-site wastewater treatment and disposal systems that
require pressurization; or
(b) Where overall density of the subdivision
or planned unit development is more than one dwelling unit
per 1/2 acre.
(c) Where the number of dwelling units
exceeds one hundred (100) and advanced treatment will be
necessary.
5.11020 Permit applications for all community
systems shall include operation and maintenance details
including details for financing the system operation and
maintenance, utilization of qualified system operators, and
financial capability to satisfy the cost requirements of the
system for its design life. Permit applications for community
systems to serve condominiums, townhouses, subdivisions,
or multi-family dwellings where treatment and/or disposal
may be under common or joint control shall be made by
submitting to the Department a properly executed agreement
(tri-party) among the Department, developers including their
successors or assigns, and Council on behalf of the unit
property owners or owners' association in subdivisions
which addresses ownership, transfer of ownership,
maintenance, repairs, operation, performance, and necessary
funds. The permit application shall also include the
following documents for legal review by the Department.
(a) Identification of a long term trustee to
assume operation and management of the wastewater
treatment plant, pump stations, manholes, sewer lines,
effluent disposal system, and all appurtenances (herein after
called the wastewater utility system). The following
information regarding the trustee shall be submitted to the
Department:
i) The full name and business address of
the trustee; and
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784 PROPOSED REGULATIONS
ii) A description of the trustee's
experience, training, and education in the wastewater
treatment and disposal industry, together with any
supporting data showing the trustee's qualifications to
engage in such a business; and
iii) Proof of trustee's financial solvency,
including a statement of financial encumbrances; and
iv) A list of licensed wastewater
treatment facility operators employed by the trustee.
(b) Terms and conditions under which the
Trustee shall assume possession, ownership and
responsibility of the wastewater utility system.
(c) A detailed description of the wastewater
utility system.
(d) A disclosure of any existing
encumbrances, liens, or other indebtedness to the title of the
wastewater utility system.
(e) Provisions for the proper abandonment of
the wastewater utility system in the event that a
governmental sewer district is established in the area served
by the wastewater utility system and requires the community
to connect to the sewer district.
(f) Provisions for long term management of
the wastewater transmission and conveyance system in the
event that the community, business or industry is required to
connect to a regional sewer district that will not accept
responsibility for the wastewater transmission and
conveyance system.
(g) An operating budget to provide sufficient
funds for the proper operation and maintenance of the
wastewater utility system, including the accumulation of
funds necessary to provide for replacement of mechanical
components of the wastewater utility system, based on
manufacturer recommendations.
Applications for permits to construct
community on-site wastewater treatment and disposal
systems shall provide documentation which addresses
ownership, transfer of ownership, maintenance, repairs,
operation, performance and funding of the on-site
wastewater treatment and disposal system through the design
life of the system. This documentation shall be in the form of
a "Trust Indenture" between the applicant for the
construction permit, the "permittee", and an operator or
owner, the "Trustee", and a non-profit organization that
represents the residential property owners, the "Homeowners
Association". The final Trust Indenture must:
a) Identify a Trustee that will assume the
operation, management, maintenance and repairs of the
community on-site wastewater and disposal system, "the
wastewater system", upon satisfactory completion of the
construction, by providing:
1) Full name and business address of the
Trustee;
2) A description of Trustee's experience,
training and education in the wastewater treatment and
disposal industry, together with any supporting data
regarding Trustee's qualifications in the industry;
3) Proof of Trustee's financial solvency
by providing a business financial statement (including
balance sheet) that is not more than six (6) months old, and a
statement of financial encumbrances;
4) A list of licensed wastewater
treatment facility operators employed by the Trustee.
b) Identify the terms and conditions under
which the Trustee shall assume operational responsibility or
ownership of the wastewater system.
c) Provide a detailed description of the
wastewater system.
d) Disclose any existing encumbrances, liens,
or other indebtedness to the title of the wastewater system.
e) Provide for the proper abandonment of the
wastewater system in the event that a governmental sewer
district is established in the area served by the wastewater
system and requires the community to connect to the sewer
district.
f) Provide for the long-term management of
the wastewater transmission and conveyance system,
including sewer lines, manholes, pump stations, etc., in the
event the community is required to connect to a regional
sewer district that will not accept responsibility for the
wastewater transmission and conveyance system.
g) Be approved by the Department and fully
executed before residential units may connect to the
wastewater system.
h) Provide an operating budget with
sufficient funds for the proper operation and maintenance of
the wastewater system, including the accumulation of funds
necessary to provide for repair or replacement of mechanical
components of the wastewater system based on
manufacturer recommendation. The operating budget shall
include the establishment of an escrow account to be used
exclusively for repair and replacement of failed or failing
components of the wastewater system. The escrow account
may not be used for phasing construction or the expansion of
the wastewater system to accommodate additional
residential units.
1) The value of the escrow account shall
be equivalent to 25% of the cost of all mechanical equipment
(e.g., pumps, flow meters, aerators, blowers, gear boxes,
etc.) plus 50% of the cost of construction of the wastewater
treatment and disposal system (e.g., infiltration beds,
trenches, etc.).
2) Funds shall be deposited into the
escrow account as residential units are connected to the
wastewater system. The amount of funds deposited shall be
equivalent to the percentage of units connected to the
wastewater system (i.e., at 50% of build-out, the balance of
the escrow account shall equal 50% of the amount
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
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PROPOSED REGULATIONS 785
established in 1, above).
3) The escrow account shall be
transferred to either the Trustee or the Homeowners
Association upon satisfactory completion of construction of
the wastewater system.
4) The owner of the wastewater system
shall notify the Department, in writing, of intent to access
funds from the escrow account. The escrow funds may not
be used without prior approval of the Department. When
escrow funds are used for the repair and/or replacement of
mechanical equipment, the owner must submit a plan for the
reestablishment of the escrow fund balance through the use
of user fees or other sources.
5) The escrow account established for a
community or a development can only be used for the
community or development for which it was established.
Accounts for non-contiguous communities or developments
may not be co-mingled.
6) If the community wastewater system
for which the escrow account was established is abandoned,
and the community development connects to a regional or
municipal wastewater treatment facility, the escrow account
may be reduced to cover 25% of the replacement cost of all
mechanical equipment associated with the transmission and
conveyance sewer lines. If the transmission and conveyance
sewer lines are all gravity lines, with no lift stations, pumps,
or other mechanical equipment, the escrow account may be
terminated and the funds returned to the wastewater system
owner.
i) The Department shall have the right to
inspect and review the financial records of the owner of the
wastewater system, to include the operating budget, escrow
account, and financial statements.
5.11021 An application for a permit to
construct a community system shall provide the Department
with a performance bond, irrevocable letter of credit, or
other security, as approved by the Department, for every
wastewater system they are constructing. The performance
bond shall be made payable to the Department of Natural
Resources and Environmental Control (DNREC) and the
obligation of the performance bond shall be conditioned
upon the fulfillment of all requirements related to the
construction permit. Terms of the performance bond shall
be:
a) The amount shall be equivalent to 50% of
the construction cost of the wastewater system (excluding
the conveyance system and its appurtenances), but in no case
shall it be less than $25,000, nor more than $100,000 for any
single community system. Developers constructing multiple
community systems shall file a performance bond for each
system they are constructing, not to exceed a maximum total
performance bond of $500,000.
b) A performance bond is not required for
any local, municipal, county, state, federal government
agency, non-profit association representing property owners,
subdivision, or utility that is regulated by the Public Service
Commission.
c) Liability under the performance bond shall
run to the State for a continuous period. The Department
shall release the bond only after the wastewater system has
been turned over to an established homeowners association,
their designee, or exempted trustee identified in Section
5.11021(b) above, provided the requirements of Section
5.11021(g) are met.
d) The performance bond shall be executed
by the permittee through a corporate surety licensed to do
business in the State of Delaware. In lieu of a performance
bond, the permittee may elect to provide an original
irrevocable letter of credit equal to the required sum of the
performance bond.
e) The obligation of the permittee under the
performance bond shall become due and payable for the
purposes of properly fulfilling the requirements of the permit
when the Department has:
1) Notified the permittee that the
conditions of the permit have not been fulfilled and specified
the specific deficiencies in the fulfillment of the permit
conditions;
2) Given the permittee a reasonable
opportunity to correct the deficiencies and to fulfill all the
conditions of the permit; and
3) Determined that, at the end of a
reasonable length of time, some or all of the deficiencies
specified under Section 5.11021(e)(1) above remain
uncorrected.
f) The Department has the authority to
designate a new Trustee in the event that the provisions of
Section 5.11021(e) have been implemented. Upon formal
transfer of ownership of a community wastewater system to
an established homeowners association, their designee, or
entity identified in 5.11021(b), the performance bond
requirement shall cease, provided the Trustee acknowledges,
in writing, that the wastewater system has been constructed
in accordance with approved plans and is operating properly.
g) Upon formal transfer of ownership of a
community wastewater utility system to an established
homeowners association, their designee, or entity identified
in 5.11021 (b), the Department shall, in writing, release the
permittee from the requirements of the performance bond,
provided the Trustee acknowledges, in writing, that the
wastewater system has been constructed in accordance with
approved plans and is operating properly.
5.11022 The permit application shall also
include the following documents for legal review by the
Department;
(a) A Purchase and Sale Agreement which
specifies that the purchaser or a dwelling unit has an
encumbrance on the title for wastewater treatment and
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786 PROPOSED REGULATIONS
disposal system operation fees, easements, and other
assessments related to the community system.
(b) An Acknowledgment of Buyer -- which is
appended to the Purchase and Sale Agreement and signed by
the buyer after being furnished copies of appropriate
agreements, covenants, restrictions, Articles of
Incorporation and Bylaws of the Owner's Association, and
indicates understanding that the buyer is obligated to pay
assessments for maintaining the community system.
(c) The Articles of Incorporation -- which
establishes the owner's association as a state-chartered,
nonprofit corporation and gives the owners' association
specific authority to operate, maintain, and repair the
community system; to collect fees and special assessments;
and to enforce any covenants, restrictions, or agreements.
(d) The Bylaws of the Owners' Association --
which govern the operation of the owners' association and
specifically authorizes the Board of Directors to supervise
the operation and maintenance of the community system,
collect fees and special assessments, and to take appropriate
action when the public health is imperiled by the
malfunctioning of the community system.
(e) A Declaration of Covenants, Restrictions,
and Easements -- which establishes, among many other
limitations, the easements for the on-site sewage collection,
treatment, and disposal system, and specifies responsibilities
of the developers, their successors or assigns, and any
owners' association regarding the community system. It
further sets the fees and assessments for operation and
maintenance of the community system.
5.11023 For developments that do not contain
homeowner's associations, the above list of documents may
be modified, at the Department's discretion, to include only
those documents that are applicable.
5.11025 All community systems that are
owned solely by one owner, partnership or corporation, who
own the property that the system will be installed on must
execute a Declaration of Covenants and Restrictions (DCR).
The DCR must be notarized and recorded at the County's
Office of the Recorder of Deeds after it has been approved
by the Department. The recorded copy should then be
returned to the Department. Community systems meeting
this requirement shall be exempt from Sections 5.11020,
5.11021 and 5.11022.
5.11030 The site criteria for approval of
community systems shall be the same as required for large
systems (Section 5.12000).
5.11040 Responsibility for operation and
maintenance of community systems shall be vested in a
governmental unit or a Council on behalf of the unit property
owners pursuant to 25 Del. C., Chapter 22 or a wastewater
utility pursuant to 26 Del. C., Chapter 12, or for subdivisions
with an owners' association duly incorporated within the
State with specific authority to operate, maintain, and repair
the community system; to collect fees and special
assessments; and to enforce any covenants, restrictions or
agreements (See Section 5.11021).
5.11050 Unless otherwise required by permit,
community systems shall be inspected at least annually by
the responsible person.
5.11060 A private wastewater utility
corporation may be permitted subject to the following
provisions:
(a) It must be duly incorporated within the
State and remain in good standing.
(b) It must remain financially solvent on a
continuous basis through a method of financing
construction, maintenance, operation, and emergency work
related to the community system to the exclusion of
whatever other obligations the corporation may assume in
other fields. A certification of compliance with this
provision shall be provided to the Department annually.
(c) There must be a person as identified under
Section 5.11040 to whom control and operation of the
community system will pass in trusteeship in the event no
persons are willing to serve as officers of the private utility
corporation. Such person shall have the opportunity to
review and comment on plans and specifications and
perform inspections during construction. They shall also be
notified of any future construction or major repairs.
(d) Funds collected for operation and
maintenance of the system must be kept in an account to be
used for the sole purpose of carrying out the functions of the
community system.
(e) There shall be lien powers to assure the
collection of delinquent debts.
5.12000 Large Systems
5.12010 Unless otherwise authorized by the
Department, large systems shall comply with the following
requirements:
(a) Prior to initiating the soils investigation
report, a meeting with the Class D site evaluator, Class C
designer, DNREC personnel and any other interested parties
shall be held to discuss the project.
(b) All soils investigation reports for a large
system ( > 2,500 GPD) and permit application(s) shall be
submitted to the Large Wastewater Systems Branch for
review and approval.
(c) The proposed disposal area shall be
mapped on a seventy five (75) foot grid, at a minimum using
a combination of auger borings and test pits.
(d) A soils investigation report shall contain a
description of the hydrologic properties of the water table
aquifer, including horizontal and vertical conductivity,
ground water flow direction, and water table elevations.
(e) A minimum of one percolation test (one
group of three tests) shall be performed per mapping unit
delineated in the proposed disposal area. Two representative
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PROPOSED REGULATIONS 787
tests shall be performed per acre if only one mapping unit is
delineated.
(f) Proposed disposal areas wooded at the
time of investigation shall be inspected by the Class D
licensee after tree clearing and prior to disposal system
installation. Written documentation shall be submitted to the
Department confirming site suitability.
(g) Large system absorption facilities shall be
designed with pressure distribution.
(h) The disposal area system shall be divided
into relatively equal units areas. For effluent distribution
each area is compromised of units as follows. The length to
width ratio for seepage beds and elevated sand mounds shall
be 4:1 or greater. Each unit shall receive no more than one
half (l/2) of the projected daily sewage flow per day one
thousand three hundred (1,300) gallons per day if seepage
beds are utilized and no more than two thousand six hundred
(2,600) gallons per day if seepage trenches are utilized. The
Department has sole discretion to deviate from this
requirement if site constraints warrant such deviation.
(i) The replacement (repair) disposal area
shall be divided into relatively equal units, with a
replacement disposal area unit located adjacent to an initial
disposal area unit. and sufficient replacement area must
exist. Upgrading the initial system(s) will not suffice as
replacement area.
(j) Effluent distribution shall alternate
between the disposal area units. The absorption facilities
shall be at least 10 feet apart.
(k) Each system shall have at least two (2)
pumps or siphons.
(l) Large systems treating domestic wastes
which utilize conventional septic tank treatment shall be
required to install an effluent filter following the primary
treatment.
(m) Large systems shall be designed with a
means to measure wastewater flow. Flow data will be
recorded and reported to the Department by the licensed
operator in accordance with the permit requirements.
(n) Expected flows > 20,000 GPD shall
incorporate secondary wastewater treatment as approved by
the Department.
(o) Guidelines established by the Department
may require additional information beyond the scope
presented here.
(p) The applicant shall provide as written
assessment of the impact of the proposed system upon the
quality of waters of the state and public health. Such
assessment may require the use of an analysis that conforms
with the requirements of Sections 7.06000 and 7.07000. The
Department may require modifications to the application if
the assessment shows a significant adverse environmental
impact. a Preliminary Ground Water Impact Assessment
(PGIA). The PGIA shall assess the potential impact of the
large system upon waters of the State and upon public
health. The PGIA shall comply with current guidelines
established by the Department.
(q) Any on-site wastewater treatment and
disposal system receiving over 2,500 GPD will require a
licensed wastewater operator. The class of operator will be
determined based on the board of certification for licensed
wastewater operators.
5.12020 Detailed plans and specifications for
large systems shall be prepared by a professional with
education and experience in the specific technical field
involved and having a Class C license.
5.12020 Unless waived by the Department,
groundwater monitoring is required at all sites utilizing large
on-site wastewater treatment and disposal systems. Such
monitoring shall continue as long as required by the
Department. Upon completion of the PGIA review, the
Department may require the submittal of a monitoring plan.
If monitoring is required, three (3) monitor wells, one up
gradient and two down gradient from the proposed disposal
areas must be installed and surveyed from a common datum
to the nearest 1/100th of a foot.
5.12030 If, after review of the PGIA, the
Department determines that there is a potential for
significant adverse impact to the environment or public
health, a more detailed Groundwater Impact Assessment
(GIA) may be required.
5.13000 Holding Tanks
5.13010 The use of a holding tank is an
unusual circumstance wherein sewage all wastewater is
permitted to be held in a watertight structure until it is
pumped and transported by vehicle to a point of disposal.
The use of a holding tank on a permanent basis is prohibited
except as provided in these Regulations.
5.13015 Permanent holding tanks are not
permitted on unimproved lots.
5.13020 No person shall install a holding tank
without first obtaining a permit from the Department.
5.13025 All holding tank permit applications
and designs must be completed by a Class C licensee.
5.13030 Permits may be issued by the
Department for the permanent use of holding tanks when all
the following conditions are met:
(a) The site is not approvable for installation
of an on-site sewage disposal system; and
(a) The site is improved with a dwelling that
was platted, created or deeded prior to April 8, 1984 and has
been evaluated for all means of on-site wastewater treatment
and disposal, including alternative technologies, and has
been deemed not suitable for an on-site wastewater treatment
and disposal system; and
(b) No community or area-wide central
wastewater system is available or expected to be available
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788 PROPOSED REGULATIONS
within five (5) years; and
(c) The same isolation distances as required
for septic tanks can be met; and
(d) A governmental unit or wastewater utility
enters into a contract with the Department setting forth that
the governmental unit or wastewater utility will provide
hauling services, either directly or through a licensed private
hauler, to the home(s), commercial establishment(s) or
occupied structure(s) for the period the occupied structure is
utilized or until connection can be made to an approved
wastewater facility. The owner(s) enter into a contract with
a licensed liquid waste hauler to provide hauling services to
the dwelling for the period it is utilized or until connection
can be made to an approved wastewater facility. Should the
owners change waste haulers, a new contract shall be
submitted to the Department; and
(e) Upon completion of the contract between
the Department and the government unit or wastewater utility
a single holding tank permit shall be issued to the
governmental unit or wastewater utility. A separate
construction permit shall be issued to the governmental unit
or wastewater utility for each holding tank facility. The
holding tank facility(s) shall be designed and constructed in
accordance with the Department's Regulations. The proposed
holding tank will comply with the requirements of these
Regulations; and The property deed shall be amended with
an Affidavit of Ownership at the time of permit issuance,
which states that the dwelling is served by a permanent
holding tank. The Affidavit of Ownership must be recorded
at the Recorder of Deeds.
(f) When the governmental unit or
wastewater utility provides the hauling services directly, it
shall conform to the requirements for liquid waste haulers;
and
(g) Have a water meter installed to measure
the in-flow of water into the building or house or a metering
device measuring the flow to the tank.
5.13040 In an area under the control of a
governmental unit, or a wastewater utility which has a
recorded covenant with the owner that runs with the land,
either of which is authorized to construct, operate, and
maintain a community or area-wide central wastewater
system, a holding tank may be installed for temporary use
provided:
(a) The application for permit includes a copy
of a legal commitment from the governmental unit or
wastewater utility that within five (5) years from the date of
application the governmental unit or wastewater utility will
extend the property covered by the application a community
or area- wide central wastewater system meeting the
requirements of the Department; and
(b) The community or area-wide central
wastewater system has received the necessary approvals for
full operation (established sewer district) which includes the
anticipated flow to the holding tank; and
(c) The proposed holding tank will comply
with the requirements of these Regulations.
(d) The holding tank will be owned and
operated by the governmental unit or wastewater utility.
5.13050 Temporary use of a holding tank may
be approved when:
(a) Installation of an approved on-site system
has been delayed by weather conditions; or
(b) The tank is to serve a temporary
construction site (up to five (5) years)
5.13060 The following general requirements
shall apply to all holding tank installations.
(a) No building may be served by more than
one (1) holding tank.
(b) A holding tank may not serve more than
one (1) dwelling unless the holding tank is under the control
of a governmental unit or wastewater utility.
(c) All site restoration shall be conducted
according to the specifications set forth in these regulations.
5.13070 Applications for holding tank
installation shall contain plans and specifications in
sufficient detail for each holding tank proposed to be
installed and shall be submitted to the Department for review
and approval. The application for a permit shall be made on
the forms provided by the Department and contain:
(a) A copy of a contract with a licensed liquid
waste hauler shall contain as a minimum the following
conditions:
(1) Duration of contract;
(2) Pumping schedule;
(3) Availability of equipment;
(4) Emergency response capability;
(5) Contents will be disposed of in a
manner and at a facility or location approved by the
Department;
(6) Evidence that the owner or operator of
the proposed disposal facility will accept the pumping for
treatment and disposal.
(7) Method of measuring wastewater use
(water meter, wastewater meter, etc.)
(b) A record of pumping dates and the
amounts pumped shall be maintained by both the treatment
facility owner, the property owner and the liquid waste
hauler, and be made available to the Department along with
in-flow meter readings as part of the annual renewal of the
permit.
(c) The appropriate application annual
inspection fee.
5.13080 Each holding tank shall:
(a) Be sized to provide a minimum holding
capacity equal to 150% of the anticipated peak storage
needed between pumping. In no case shall the tank have a
capacity less than seven days average flow from the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 789
wastewater generating facility or 1,000 gallons, whichever is
larger. When holding tanks are designed to serve the needs
of a community system, the size shall be in conformance
with standard engineering practice as determined by the
Department and in accordance with an acceptable
monitoring and pumping schedule.
(b) Comply with standards for septic tanks as
prescribed in these Regulations (Section 6.0700).
(c) Be located and designed to facilitate
removal of contents by pumping.
(d) Be equipped with both an audible and
visual alarm installed on an AC circuit and placed in a
location acceptable to the Department, to indicate when the
contents of the tank are at seventy-five (75) percent of
capacity.
(e) Have no overflow vent at an elevation
lower than the overflow level of the lowest fixture served.
(f) Be designed for anti-buoyancy if test hole
examination or other observations indicate that seasonally
high groundwater may float the tank when empty.
(g) Be constructed of the same materials
approved for septic tanks. Holding tanks shall be watertight
and structurally sound to withstand internal and external
loads.
(h) Be equipped with an 18 inch diameter or
square access opening. The access opening shall be extended
to grade level.
(i) All tanks constructed on-site (i.e. cast-inplace,
concrete block, etc.) shall be tested to assure
watertight conditions. Alarms shall be tested for proper
operation.
5.13090 Each holding tank installed under
these Regulations shall be inspected annually. A fee shall be
charged for each annual inspection by the Department and
all required documentation shall be submitted also.
5.13100 No liquid waste from a holding tank
shall be applied directly or indirectly onto the ground surface
or into surface waters.
5.13120 Prior to purchase of a dwelling that is
currently served by a holding tank or is proposed to be
served by a holding tank, the prospective buyer must sign an
Affidavit of Understanding of the terms and conditions
associated with use of a holding tank. This Affidavit shall be
submitted to the Department to be filed with the permit.
5.14000 Moratorium Areas
5.14010 Whenever As soon as the Department
finds determines that construction of on-site sewage
wastewater treatment and disposal systems should be limited
or prohibited in an area, it shall issue an order limiting or
prohibiting such construction.
5.14020 The order shall be issued only after a
public hearing for which shall insure that more than twenty
(20) days notice is given.
5.14030 The order shall be a rule which
contains a specific description of the moratorium area and
shall be limited to the area immediately threatened with
ground water or surface water contamination if construction
in that area continues.
5.14040 In issuing an order under this section
the Department shall consider the factors contained in 7 Del.
C., Chapter 60, Section 6001.
5.14050 The moratorium shall be limited to a
period of five years, after which re-establishment of the
moratorium may be considered.
SECTION 6.00000 -- DESIGN AND CONSTRUCTION
6.01000 General Requirements
6.01010 Location: All disposal systems shall
be located according to the minimum horizontal isolation
distances specified in these Regulations (see Exhibit T). All
isolation distances for capped systems and elevated sand
mounds shall be measured from the perimeter edge of fill
material the aggregate or aggregate-free chamber. Siting
and construction of on-site disposal systems on areas which
have been disturbed is prohibited unless there is at least 3
feet of undisturbed soil horizon above the limiting zone. Fine
textured soils shall be examined to make sure they have not
been compacted.
6.01015 All pressurized systems must be
constructed in such a manner that the operating pressure can
be checked at the end of the distal lateral (permanent tee,
etc).
6.01020 Disposal System Sizing
6.01021 All disposal systems shall be
sized based on the estimated wastewater flow and the results
of the percolation tests or the assigned percolation rate.
Percolation rates shall be based on USDA soil textures and
assigned by the Class D licensee. The table of percolation
rates used by the Department (Exhibit W) does not assign
rates, it gives estimates based upon textures. Percolation
rates of less than 20 minutes per inch (mpi) will not be
allowed for designing any on-site wastewater treatment and
disposal system, unless otherwise approved by the
Department.
6.01022 The minimum disposal area required
for trench systems with percolation rates between 6 and less
than 120 mpi shall be determined from the following
equation:
A = 0.33 Q (t)0.5
Where
A = the minimum disposal area required in
square feet
Q = wastewater application rate in gallons per
day
t = the average percolation rate in minutes per
inch (minimum rate is 20 mpi for design)
6.01023 The minimum disposal area required
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
790 PROPOSED REGULATIONS
for seepage bed systems with percolation rates between 6
and less than 120 mpi shall be determined from the
following equation:
A = 0.42 Q (t)0.5
Where
A = the minimum disposal area required in
square feet
Q = wastewater application rate in gallons per
day
t = the average percolation rate in minutes per
inch (minimum rate is 20 mpi for design)
6.01024 Where percolation rates are faster
than 6 mpi, such as in soils with USDA textures of sands,
and loamy sands, a pressurized distribution system is
required; the minimum disposal area shall be determined
from the following equation:
A = 0.82 1.2 Q
Where:
A = the minimum disposal area required in
square feet
Q = design flow rate in gallons per day
(minimum rate is 20 mpi for design)
6.01025 The minimum disposal area required
for low-pressure pipe systems with percolation rates less
than 120 mpi shall be determined from the following
equation:
A = UQ
Where:
A = the minimum disposal are required in
square feet
Q = design flow rate in gallons per day
U = unit absorption area (see Exhibit X)
6.01030 Excavation
6.01031 Clearing and Grubbing: All
vegetation shall be cut and removed from the grade surface
at a distance of ten (10) feet beyond the perimeter of the
disposal area. Trees and shrubs shall be cut and removed at
grade level while roots may be left in place. All cut
materials shall be removed from the disposal area.
6.010315 Special care should be taken
when clearing vegetation from an approved disposal area as
disturbance of the soil surface may render the site unsuitable.
6.01032 All unsuitable excavation materials
shall be discarded and the excavation shall be kept dry and
de-watered from surface drainage until backfilling is
completed.
6.01033 Excavation machinery shall be of
such type and operated in such a manner that they will not
compact or smear the trench or bed sidewall soils. If
smearing does occur, the smeared surfaces shall be hand
raked to expose an unsmeared soil interface. Trenchers are
preferred for excavation of LPP trenches.
6.01035 Excavations below the design depth
shall be brought up to proper elevation with approved fill
materials installed in accordance with these Regulations and
the requirements for sand-lined systems. Additional stone or
gravel aggregate may only be used when a minimum of three
(3) feet of undisturbed soil can be maintained between the
bottom of the stone or gravel aggregate and the limiting
zone. In no case shall more than one (l) foot of additional
stone or gravel aggregate be used.
6.01036 The sides of the trenches or beds shall
be practically plumb and scarified.
6.01037 The bottom of the trench or bed area
shall be practically level as determined by using a transit, or
laser level, with a maximum grade tolerance of two inches
per 100 feet.
6.01038 All trench or bed excavations shall be
kept free of water and dry. Tamping of trench sides and
bottoms is not permitted.
6.01040 Materials
6.01041 Sandy fill materials of construction
shall be medium sand, sandy loam, loamy sand/sandy loam
mixture. The fill material shall have the following
characteristics:
Sieve Size Maximum Percentage Passing Sieve
3/8" 100%
No. 4 95-100%
No. 50 5-30%
No. 100 1-7%
6.010412 Filter aggregate shall consist of:
washed gravel or crushed stone ranging in size from 3/4" to
2 1/2" in any dimension Filter aggregate must come from a
supplier approved by the Department. Storage and cleaning
procedures must be approved by DNREC before supplier
can be included on approved list. Random inspection of
supply pits and supplier's storage facilities shall be
performed by the Department.
Note: The Class E contractor shall submit upon
request a Certification of Materials for fill and aggregate
used in systems. This certificate shall be obtained from the
supplier
6.01043 Grade boards or blocks may be used
Sieve Size Maximum Percentage Passing Sieve
2 1/2" 100% minimum
2" 100% minimum
1 1/2" 100% minimum
1" 100% minimum
1/2" 50% maximum
#4 10% maximum
#8 0% maximum
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 791
in pipe installation to assure a proper slope of less than two
inches per 100 feet for gravity distribution lines.
6.01044 Filter fabric shall be placed over the
gravel with a two (2) inch overlap turned up on each side of
the trench or bed.
6.01045 Aggregate-free chambers or any other
similar devices may be used in the design, installation, and
operation of on-site wastewater treatment and disposal
systems in Delaware, but are subject to approval of the
Department. The minimum disposal area required when
using aggregate-free chambers shall be calculated by
utilizing the most recent guidelines and Sections 6.01022
and 6.01023.
6.01050 Distribution Networks
6.01051 All systems requiring a total of more
than 1,250 2,500 square feet of disposal area shall have a
pressurized distribution system pursuant to these
Regulations.
6.01052 All systems requiring more than 2,500
square feet of disposal area shall be divided into a minimum
of two separate alternating systems of equal size with
pressurized distribution provided alternatively to each
system. The minimum separation between absorption
facilities shall be ten (10) feet, which, with the exception of
subsurface irrigation systems, will be determined on a case
by case basis.
6.01053 Distribution networks for all elevated
sand mounds and sand lined systems shall be pressurized and
constructed of the same materials required for pressurized
distribution systems.
6.01054 All systems installed on lots where
percolation rates are faster than six (6) mpi shall have
pressure distribution systems.
6.01055 A minimum distance of four (4) feet
and a maximum distance of six (6) feet shall separate
adjacent laterals in a bed. Laterals shall be placed no farther
than three (3) feet from the sidewalls of the bed. The length
to width ratio for seepage beds and elevated sand mounds
shall be 4:1 or greater and maximum bed width shall not
exceed twenty five (25) feet, unless approved by the
Department. A minimum distance of six (6) feet shall
separate laterals in a trench disposal system. and a maximum
of eight (8') feet shall separate laterals in a trench disposal
system.
6.01056 All Gravity system distribution
laterals shall may be connected in closed loop systems.
6.01057 The maximum allowable lateral
length is 100 feet for gravity distribution systems and
pressure distribution systems with more than l,250 ft. 2 of
disposal area. Pressure distribution laterals shall have a
maximum length of 50 feet for areas less than l,250 ft.2 of
disposal area unless designed by Class C Designer.
6.01058 Each trench or bed system shall
contain at least two distribution laterals. Trenches shall be
utilized in all distribution systems located on slopes in
excess of two (2) percent.
6.01059 All pressure distribution systems shall
be tested to insure even dozing throughout the network prior
to placement of backfill ensure equal distribution when
designed on slopes.
6.01060 Conventional Treatment and Disposal
Systems
6.01061 Gravity Trenches and Beds (See
Exhibits K, L, M and N)
(a) A minimum of 12 inches of filter
aggregate shall be placed in the bed or trench. A minimum of
six inches of aggregate shall be placed under the distribution
laterals. The remaining filter material aggregate shall be
placed so that a minimum depth of no less than two inches
exists above the crown of the distribution pipe.
(b) For trenches or beds with a minimum
sidewall depth of twenty-four (24) inches, backfill shall be
placed in accordance with permit requirements. Unless
otherwise required by the Department, the construction
sequence shall be as follows:
(1) The backfill material shall be at least
12 inches in depth above the barrier material filter fabric or
and sloped returned to the original grade.
(2) Backfill material shall be carefully
deposited in the trench by methods which will not damage or
disturb the distribution pipe or result in undue compaction of
the backfill.
(3) Backfill over trenches or beds shall
not be tamped.
(4) Material containing an excess of
moisture shall be permitted to dry until the moisture content
is within workable limits. The moisture content of the
material being placed shall be within plus or minus 3% of
optimum as determined by AASHTO Designation T-99.
(5) Backfill material which is too dry for
proper placement shall be wetted. All materials shall be free
of stones larger than two (2) inches in diameter, debris, trash,
wood or other similar materials.
(c) For trenches or beds with a minimum
sidewall depth of twelve (12) inches but less than
twenty-four (24) inches, a capping fill shall be placed over
the disposal system. The cap shall be constructed pursuant to
permit requirements (See Exhibit M and P N). Unless
otherwise required by the Department, the construction
sequence shall be as follows:
(1) The capping soil shall be examined
and approved by the Department prior to placement. The
texture of the soil used for the cap shall be of the same
textural class, or of one textural class finer, as the natural
topsoil. All materials shall be free of stones larger than two
(2) inches in diameter, debris, trash, wood or other similar
materials. The minimum gradient of 3 to 1 with 5 to 1
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
792 PROPOSED REGULATIONS
recommended by the Department.
(2) Construction of capping fills shall not
occur when the natural soil is at a moisture content which
causes loss of soil structure and porosity when worked.
(3) The disposal area and the borrow site
shall be scarified to destroy the vegetative mat.
(4) The system shall be installed as
specified in the construction permit. There shall be a
minimum of ten (10) feet of separation between the edge of
the fill and the absorption facility.
(5) Suitable backfill shall be applied to
the fill site and worked in so that the two (2)contact layers
(native soil and fill) are mixed. Fill material shall be evenly
graded to a final depth of sixteen (16) inches over the gravel
aggregate.
(6) The site shall be landscaped according
to permit conditions and be protected from livestock,
automotive traffic or other activity that could damage the
system.
(d) The following minimum inspections shall
be performed for each capping fill installed:
(1) Both the disposal area and borrow
material must be inspected for scarification, soil texture, and
moisture content, prior to cap construction.
(2) Pre-cover inspection of the installed
absorption facility.
(3) After cap is placed, to determine that
there is good contact between fill material and native soil (no
obvious contact zone visible), adequate depth of material,
and uniform distribution of fill material.
(4) Final inspection, after completion of
all site work and restoration. A certificate of Satisfactory
Completion may be issued at this point.
6.01062 Sand Mounds (See Exhibit O P)
(a) Sand mound absorption areas shall be
plowed 6 to 8 inches deep parallel to the contour after
removing the vegetative mat. Plowing shall not be done on
wet soils. No plowing instruments which compact the soil
shall be used. Two bottom plows, Moldboard plows, or
chisel plows are recommended.
(b) Immediately after plowing, sandy fill shall
be placed on the up-slope edges of the plowed mound
absorption area and spread to a minimum depth of 24"
throughout the absorption area as specified in the permit.
Only lightweight equipment such as small track type tractors
shall be allowed.
(c) A 12 inch bed of coarse filter aggregate
shall be placed over the sand fill. Six inches of aggregate
shall be placed under the distribution lateral. The remaining
filter aggregate shall be placed to an additional six inches in
depth with at least two inches over the crown of the
distribution pipe.
(d) A minimum allowable distance of four (4)
feet and a maximum distance of six (6) feet shall separate
adjacent laterals in an elevated sand mound bed.
(e) The slope of the sand fill not directly
beneath the filter aggregate shall be 1 to 2 3, with 1 to 5
recommended by the Department.
(f) Mound covering or berm soil shall be
loamy sand or sandy loam.
(g) The mound berm shall extend at least 12
inches and one- half (l-l/2) feet above the 12 inch filter
aggregate layer with plus at least six inches of topsoil cover.
(h) The outside slopes of the mound cover or
berm shall be approximately 1 to 2 3 with 1 to 5
recommended by the Department.
(i) Grass shall be planted over the entire
mound. Shrubs may be planted at the base of the mound.
Erosion control shall be provided over the complete mound
in one of the following manners:
1) Grass shall be planted over the entire
mound and stabilized with mulch, or
2) Sod entire mound, or
3) Other pre-authorized methods of
erosion control.
6.01063 Low Pressure Pipe Systems (See
Exhibit O & X)
(a) A trench width of twelve (12) inches shall
be used.
(b) Trenches shall not be less than five (5) feet
on center.
(c) There shall be six (6) inches of aggregate
below the pipe and two (2) inches of aggregate above the
pipe. There shall be a minimum of six (6) inches and a
maximum of nine (9) inches of soil cover.
(d) Filter fabric shall be placed on top of the
aggregate in the trench with a two (2) inch overlap turned up
on each side of the trench.
(e) Check valves are required to eliminate the
back siphoning of effluent from the laterals.
(f) Turn ups or cleanouts shall be finished
below grade and protected by a four (4) inch diameter or
greater Sch. 40 PVC sleeve with a cap and ferrule finished at
grade.
(g) Timers or other electrical on/off delay
devices shall be installed to insure dosing frequencies.
6.01070 Site Restoration:
6.01071 The finished grade of the backfill over
the seepage bed, trench and sand-lined disposal areas
absorption facilities shall be crowned from the center of the
disposal area at a 3% slope and extend three feet beyond the
edge of the disposal area. At that point, the fill shall be
sloped at a uniform grade of no greater than 10% to the
original ground kept to provide positive drainage.
6.01072 The land adjacent to all disposal areas
absorption facilities shall be graded to prevent both the
accumulation of surface water on the disposal area
absorption facility and the flow of surface water across the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 793
disposal area absorption facility. The finished disposal area
absorption facility and fill extensions shall be seeded and
mulched to prevent erosion.
6.01073 Trees and shrubs shall not be planted
within 10 feet of the perimeter of disposal area but may be
planted on fill extensions absorption facility. All trees and
shrubs shall be located to prevent root intrusion into the
disposal area absorption facility and other components of the
system. Shallow rooted shrubs are permitted (ie,
rhododendrons, azalea's, etc.).
6.01074 All areas of disturbance due to the
installation of the absorption facility disturbed sites shall be
either limed, fertilized sodded or seeded and mulched to
establish a permanent grass cover.
6.01080 Filled Areas
6.01081 On-site disposal systems to be
constructed on fill materials may be considered only when
guidelines and specifications for fill placement have been
approved by the Department.
6.01082 The texture of the fill material shall be
moderately coarse, medium, or moderately fine. These
general groups contain the soil textural classes as follows:
(a) Moderately coarse-textured soils
(1) Sandy loam
(2) Fine sandy loam
(b) Medium-textured soils
(1) Very fine sandy loam
(2) Loam
(3) Silt loam
(4) Silt
(c) Moderately fine textured soils
(1) Clay loam
(2) Sandy clay loam
(3) Silty clay loam
6.01083 Moderately coarse textured fills shall
be handled to minimize segregation during loading,
unloading and spreading. Moderately coarse fines shall only
be moved when moist to minimize segregation.
6.01084 Moderately coarse fill materials shall
be placed in one foot depths and lightly compacted with a
front end loader. Packing of fill material shall achieve a bulk
density in the range of 82 to 94 pounds per cubic foot.
6.01085 Moderately coarse fill material shall
be allowed to settle through at least one wet-dry cycle before
system installation. The fill shall be saturated above field
capacity and allowed to dry until the moisture content is
below field capacity. Artificial saturation may be used by
applying water over the entire area in a manner that does not
cause erosion of the fill.
6.01086 Moderately fine or medium textured
fill material shall not be moved when wet (above field
capacity) and shall not be compacted when moved.
6.01087 Moderately fine or medium textured
fill materials shall be allowed to settle one year for each foot
of fill material.
6.01088 All fills shall contain less than twenty
percent (20%) by volume of coarse fragments and organic
matter content shall be less than five percent (5%) by weight.
6.01089 On-site disposal systems constructed
in filled areas shall be sized so that when the effluent is
distributed throughout the disposal area, the underlying fill
shall remain unsaturated. The wastewater application rate
shall not exceed 0.75 gallons per square foot of disposal
area. Only pressurized distribution systems shall be allowed
with on-site systems constructed in filled areas.
6.01090 Replacement System Spare Area
6.01091 Each site utilizing an on-site system
or community sewage wastewater treatment and disposal
system shall have sufficient area to accommodate a complete
replacement system or an acceptable alternative approved by
the Department which satisfies the requirements of these
Regulations. This area shall be maintained so that it is free
from encroachments by accessory buildings and additions to
the main building. Encroachment shall include the ten (10)
foot isolation distance to buildings as required by these
Regulations. This requirement may be waived if the
application for a permit includes a copy of a legal
commitment from the governmental unit that states that
within five years from the date of the application the
governmental unit will extend to the property a community
or area-wide central wastewater system meeting the
requirements of the Department or an acceptable alternative
is approved by the Department. The and that the community
or area-wide central wastewater system has received the
necessary approvals for full operation which includes the
anticipated flow to the on-site wastewater treatment and
disposal system.
6.01095 A replacement area is not required in
areas under control of a governmental unit such as a city,
county, or sanitary district, provided the governmental unit
gives a written commitment that central wastewater service
shall be provided within five (5) years.
6.01100 Artificially Drained Systems
6.01101 Disposal systems shall not be
constructed on sites where curtain drains, vertical drains,
underdrains, or similar drainage methods are utilized to
artificially lower the level of the water table to meet the
requirements of these Regulations. Observation wells may
be used to demonstrate the change in the hydrology of a
particular property for the purpose of siting an on-site
wastewater treatment and disposal system.
6.02000 Test Pits
6.02010Test pits shall be used to evaluate soils for
the selection and design of on-site systems when deemed
necessary by the Department in its sole discretion. When the
Department conducts the site evaluation and a test pit is
deemed necessary, the property owner shall be responsible
for pit excavation in accordance with these Regulations.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
794 PROPOSED REGULATIONS
6.02020 The number and location of test pits
for non-residential or community systems or pre-testing for
entire subdivisions shall be as directed by the Department.
The Department may require additional test pits in areas of
varying soil structure or when warranted at the sole
discretion of the Department. because of size of the required
disposal area. Test pits shall be located adjacent to proposed
disposal areas.
6.02030 The procedure used to install and
evaluate the test pits shall be as follows:
(a) The pit configuration shall be at least (2 )
feet wide, (6) feet long and (5) feet deep (or to rock or water
table if encountered at a depth of less than (5) feet). Soil
borings shall be taken in the bottom of the pit to a minimum
depth of 2 feet (or to rock or water table if encountered at a
depth of less than 2 feet). The removed soils shall be
examined as removed for the presence of mottling, structure,
rock or other indicators of unsuitability. The excavation shall
be aligned to make the best use of available sunlight.
(b) The sidewalls of the pit shall be checked to
determine which wall will be described. The soil face which
best represents the soil conditions present shall be used.
Through use of a pick type tool, such as a knife or
screwdriver, the sidewall shall be probed from the top to
bottom to reveal a fresh surface at least 10 inches wide. A
general description of the pit shall be provided including
such factors as; slope of the area, depth of the probe, depth to
a pan, depth to water table, depth to seeps, and depth of the
root zone. Changes in soil density may be identified based
on relative penetration resulting from repeated jabbing of the
sidewall of the pit.
(c) Through the use of the prepared section of
the test pit, horizons shall be identified; the depth to the
beginning and end of the horizons shall be measured; and
lower boundaries shall be marked with nails or other
identifying objects.
(d) Work shall be conducted from lowest
horizons toward the top of the test pit to avoid disrupting the
undescribed horizons as the lower soil is examined.
(e) The characteristics of each horizon shall
be described using color, texture, consistency, structure,
presence of roots or animal life, coarse fragments, rock and
mottling. The coarse fragments and rock shall be examined
and identified if possible.
(f) The findings of the soil evaluation shall be
recorded on a standard form provided by the Department. As
a part of the soil description the evaluator shall designate the
type of limiting zone present and its depth from the mineral
soil surface as observed.
6.03000 Soil Percolation Rate Determination
6.03003 Percolation rates are assigned by State
environmental scientists and Class D site evaluators based
upon observed soil structure and textures during the site
evaluation. The Department has established percolation
rates based upon USDA soil textures (see Exhibit W).
6.03005 Soil Percolation Test
6.03010 The soil percolation test shall provide
a measure of the rate at which water moves from an uncased
bore hole into the surrounding soil under nearly constant
head in both vertical and horizontal directions.
6.03015 One soil percolation test shall consist
of three (3) test holes.
6.03020 The percolation test shall be
performed only after a site evaluation has indicated that the
soil may be suitable for an on-site wastewater disposal
system. The percolation test shall evaluate the soil suitability
by be used to determining e the rate at which sewage
wastewater effluent can be expected to seep into the soil.
This rate shall be used in conjunction with a projected daily
flow rate to determine the area required to for properly
dispose al. of the projected daily sewage flow.
6.03030 The depth of the percolation test holes
shall not be determined until a soil site evaluation is
completed and a limiting zone, if any, is identified. The
depth of the percolation test holes shall be as follows:
(a) If the limiting zone is located 60 inches or
more from the mineral soil surface, the bottom of the
percolation holes shall be at the depth of the proposed
infiltration surface bottom. If the limiting zone occurs at
least 20 inches from the soil surface, the percolation test
holes shall be within the soil horizon that is controlling the
water movement vertically and/or horizontally to a depth of
60 inches.
(b) If the limiting zone occurs at least 20
inches from the soil surface but less than 60 inches from the
soil surface, the percolation holes shall be at the soil zone
which is controlling the water movement vertically and/or
horizontally.
(c b)If the limiting zone occurs at less than 20
inches from the surface, the site is unsuitable for a
conventional on-site wastewater treatment and disposal
system. However, if replacing a failing or malfunctioning
system, item (a) should be used without regard for the 20
inch limiting condition. In situations where sand-lining
through an impermeable or less permeable horizon within
the top 48 inches, a percolation test should be performed
within the soil zone which is controlling the water movement
vertically and/or horizontally beneath the restrictive material
to a depth of 60 inches.
6.03040 The following procedures shall be
used for percolation tests:
(a) A minimum of three (3) test holes shall be
dug within the proposed installation area of the soil
absorption system facility. Test holes shall be located on the
same site in which the final soil absorption system is to be
installed. Additional tests may be required in areas of with
varying soil structure characteristics or when warranted at
the sole discretion of the Department due to the size of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 795
required disposal area.
(b) Test holes with a horizontal diameter of
six (6) inches shall be dug or bored. A post hole digger,
auger or mechanical digger may be used to dig the holes.
(c) The bottom and sides of the each test hole
shall be scarified to remove any smeared soil surfaces that
result from digging. Loose soil shall be removed from the
hole. Two (2) inches of coarse sand or fine gravel aggregate
shall be placed in the bottom of the hole to prevent sealing of
the hole bottom when water is added.
(d) The hole shall be filled with water to a
minimum depth of twelve (12) inches above the gravel
aggregate or sand. This level shall be maintained for a period
of at least four (4) hours.
(e) The water level shall then be adjusted to
six (6) inches over the gravel or sand. The hole shall be
allowed to stand undisturbed for thirty (30) minutes. The
water level shall again be adjusted to six (6) inches over the
gravel and the hole allowed to stand undisturbed for another
thirty (30) minutes.
(f) Where the drop in the water level is two
(2) inches or more in thirty (30) minutes, the interval for
readings during the percolation test shall be ten (10) minutes.
Where the drop in the water level is less than two inches in
30 minutes, the interval for readings during the percolation
test shall be thirty (30) minutes. The drop in water level shall
be recorded after each reading and the water level shall be
adjusted to six (6) inches above the gravel. Readings shall
continue for a minimum of four (4) hours where the interval
between readings is thirty (30) minutes. Where the interval is
ten (10) minutes due to fast percolation, the readings may be
discontinued after one (l) hour. Where the drop between
readings has not stabilized at the end of the minimum period,
the reading shall continue until a steady rate is established.
A steady rate is established when two (2) successive water
level drops do not vary by more than one-sixteenth of an
inch. If any of the holes has a rate that is significantly
different from the other holes, it shall be examined to see if
this hole is in a soil that is different from the soil described in
the site evaluation. If the hole is determined, by the licensed
percolation tester, to be uncharacteristic of the site it shall be
excluded from analysis but listed on the application.
(g) The percolation rate for the site shall be
determined by taking the arithmetic average of all
percolation tests conducted. Percolation rates slower than
one hundred and twenty (120) minutes per inch (mpi) are
unacceptable and shall not be used to determine the
arithmetic average percolation rate but shall be reported.
On-site wastewater treatment and disposal systems shall not
be placed on those portions of any sites which have
percolation rates slower than one hundred and twenty (120)
minutes per inch mpi.
6.03045 Hydraulic Conductivity Test
6.03050 At the discretion of the Department, a
hydraulic conductivity test may be required as a substitute
for the soil percolation test. Approved test methods are
given in the current addition of Methods of Soil Analysis,
ASA. Part , Physical and Mineralogical Methods Agronomy
Monograph No. 9 (2nd Edition), ASA 1986.
6.04000 Wastewater Sewage Design Flow Rates
6.04010 The projected peak daily sewage
wastewater flow shall be used to determine the appropriate
size and design of on-site and community wastewater
treatment and disposal systems.
6.04020 Where actual calibrated metered flow
data indicating peak daily flows over the most recent three
year period are available for a similar facility, such peak
flow data may be substituted for the sewage wastewater
flows listed in this Section subject to the approval of the
Department. When ranked in descending order the adjusted
design daily flow shall be determined by taking the
numerical average of the daily readings that fall within the
upper ten (10) percent of the daily readings.
6.04030 The minimum design sewage
wastewater flow from residential dwellings, including single
family, multiple family, mobile homes, and apartments
served by individual on-site or community sewage
wastewater treatment and disposal systems shall be 120
gallons per day per bedroom. The minimum design flow for
any residential dwelling shall be 240 gallons per day. Credit
for water conservation devices will be accounted for
according to current Department guidelines.
6.04040 The minimum design sewage
wastewater flow from other residential, commercial/
institutional facilities served by individual on-site or
community systems shall be as prescribed in Exhibit D.
6.04050 Disposal systems shall be designed to
receive all sewage wastewater, except for water softener
brine, from the building or structure served unless otherwise
approved by the Department.
6.04060 All restaurants or other establishments
involved in food preparation activities shall install external
grease traps when as required by the Department.
6.04070 Laundromat and car wash wastewater
shall be pretreated as specified by the Department prior to
discharge to any disposal system absorption facility under
these Regulations.
6.04080 Industrial wastewater shall not be
discharged into a septic tank system unless prior approval is
obtained from the Department.
6.05000 Isolation Distances
6.05010 The minimum isolation distances set
forth in Exhibit C shall be maintained when designing,
cating, constructing, repairing, replacing, and installing
individual on-site and community wastewater treatment and
disposal systems.
6.05020 The Department may require greater
isolation distances for systems when conditions warrant for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
796 PROPOSED REGULATIONS
purposes of protecting environmental resources and the
public health.
6.05030 Isolation distances may be decreased
by the Department based on a site specific geological and
hydrogeological analysis performed pursuant to the
requirements of these Regulations, provided that the
Department is satisfied that such decrease will allow for
protection of environmental resources and the public health.
6.05040 Existing on-site wastewater treatment
and disposal systems which are repaired or replaced shall be
subject to the requirements of this Section, provided
however, that if it is impossible to comply with such
requirements due to lot size limitations, the repaired or
replaced system shall conform to the maximum extent
practicable with the requirements of this Section as
determined by the Department in its sole discretion.
6.06000 Standard Conventional On-Site
Wastewater Treatment and Disposal Systems Criteria
6.06010 All standard full depth gravity and
capping fill gravity trench and bed treatment and disposal
systems shall be designed in accordance with the following
criteria. (See Exhibits K, L, M or N).
6.06011 Landscape Position: Areas with good
surface drainage which allow surface water to run off easily
without ponding and which are not prone to flooding.
6.06012 Slope: 0-15%. Bed systems can not be
sited on slopes > 2%. All systems must be constructed with
level bottoms and shall incorporate construction procedures
prohibiting equipment from entering the excavation. Trench
systems on slopes in excess of 15% shall be permitted only if
the design is prepared by a licensed Class C professional
engineer Designer. having a Class C license. Any such
design shall incorporate construction procedures. Systems
placed on slopes between 10% and 15% shall provide for
serial distribution.
6.06013 Soil depth: Deep to very deep.
6.06014 Soil Drainage: Well to excessively
drained. > 48 inches to evidence of a limiting zone.
6.06015 Soil Texture: Coarse to medium
textured.
6.06016 Soil Structure: Granular, blocky,
subangular blocky, and prismatic structure.
6.06017 Depth to Limiting Zone: The limiting
zone shall be a minimum of three (3) feet below the bottom
of the trench (i.e., a minimum of five feet below existing
grade for standard two (2) foot deep trench systems). ???48
inches beneath the soil surface.
6.06018 Percolation Rates:
(a) 6-6 120 min/in mpi: Gravity distribution
systems may be allowed unless otherwise required by these
Regulations. Construction of seepage trenches and beds in
soils with percolation rates slower than 6 120 min/in mpi
shall not be permitted.
(b) Less than 6 min/in mpi: A pressurized
distribution system is required for seepage trenches or beds.
The trench or bed may be placed between 12 and 24 inches
in order to maintain 36 inch separation distance between
rapidly permeable material and the limiting zone.
6.06020 All standard gravity and capping fill
gravity bed disposal systems shall be designed in accordance
with the following criteria. (See Exhibit M or P)
6.06021 Landscape Position: Areas with good
surface drainage which allow surface water to run off easily
without ponding and are not prone to flooding.
6.06022 Slope: 0-5%. Bottom of bed shall be
constructed level. Design shall incorporate construction
procedures prohibiting construction equipment from
entering the excavation.
6.06023 Soil Depth: Deep to very deep.
6.06024 Soil Drainage: Well to excessively
drained. > 48 inches to evidence of a limiting zone.
6.06025 Soil Texture: Coarse to medium
textured.
6.06026 Soil Structure: Granular, blocky,
subangular blocky, and prismatic structure.
6.06027Depth to Limiting Zone: The limiting zone
shall be a minimum of three feet below the bottom of the bed
(i.e., a minimum of five feet below existing grade for
standard two foot deep bed systems).
6.06028 Percolation Rates:
(a) 6-60 min/in mpi: Gravity distribution
systems may be allowed unless otherwise required by these
Regulations. Construction of seepage beds in soils with
percolation rates slower than 60 min/in shall not be
permitted.
(b) Less than 6 min/in mpi: A pressurized
distribution system is required for seepage beds.
6.06030 All Low Pressure Pipe Treatment and
Disposal Systems shall be designed in accordance with the
following criteria (See Exhibit O & X)
6.06031 Landscape Position: Areas with good
surface drainage which allow surface water to run off easily
without ponding and are not prone to flooding. Low
pressure pipe treatment and disposal systems shall not be
prescribed in coastal beach sands.
6.06034 The depth to the bottom excavation
shall be nine (9) inches to eighteen (18) inches. Trench width
shall be no larger than twelve (12) inches for LPP systems
unless otherwise approved by the Department.
6.06035 Depth to limiting zone: The limiting
zone shall be a minimum of 18 inches below the bottom of
the trench (i.e. a minimum of 27 inches below existing grade
for a 9 inch deep LPP trench system). Shallow disposal
trenches (placed not less than nine (9) inches into the
original soil profile) may be used with a capping fill to
achieve the minimum separation distance specified above.
The capping fill, if required, shall be placed in accordance
with these Regulations (See Exhibit O). A capping fill cover
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 797
is required for all LPP disposal systems with trench depths
less than 18 inches.
6.06037 Additional criteria:
(a) Lateral lines of the LPP disposal system
which are placed on lower landscape positions (i.e. concave
slope) shall have an interceptor drain installed upslope of the
uppermost lateral to intercept and divert subsurface waters
away from the absorption facility as determined by a Class D
licensee.
(b) There shall be no soil disturbance to the
proposed disposal area except the minimum required for
installation. The soils may be rendered unsuitable should
unnecessary soil disturbance occur. Particular care should
be taken when clearing wooded lots so as not to remove the
surface soil material.
(c) LPP disposal systems shall be installed
only with equipment approved by DNREC.
(d) LPP disposal systems shall not be allowed
where sand-lining is required or where soils have been filled
or disturbed.
6.06040 All Elevated Sand Mound Treatment
and Disposal Systems shall be designed in accordance with
the following criteria (See Exhibit P O).
6.06041 Landscape Position: Areas with good
surface drainage which allow surface water to run off easily
without ponding and are not prone to flooding.
6.06042 Slope:
(a) 0-6% for soils with percolation rates
slower than 60 min/in mpi.
(b) 0-12% for soils with percolation rates
faster than 60 min/in mpi.
6.06033 Filled Areas: Elevated sand mound
systems may be permitted in filled areas at the sole
discretion of the Department provided it can be
demonstrated that the filled area is of sufficient size and
uniformity and will remain stable during system operation.
Filled areas must comply with the requirements of Section
6.01080 of these Regulations. System design shall conform
with the requirements of Section 6.01089.
6.06043 Soil Depth: Shallow
6.06044 Soil Drainage: Moderate to
excessively drained. Depth to Limiting Zone: > 20 inches to
evidence of a limiting zone.
6.06036 Soil Texture: Coarse to medium
textured.
6.06037 Soil Structure: Granular, blocky,
subangular blocky, and prismatic structure.
6.06045 Percolation Rate: 0-120 min/in mpi.
Construction on soils with slower percolation rates is not
permitted. A pressurized distribution system is required in
all cases.
6.06050 All Pressure-Dosed Full Depth and
Capping Fill Treatment and Disposal Systems shall be
designed in accordance with the following criteria (See
Exhibit Q & R).
6.06051 Landscape Position: Areas with good
surface drainage which allows surface water to run off easily
without ponding and are not prone to flooding.
6.06052 Slope: 0-15%. Bed systems can not be
sited on slopes > 2%. All designs must be constructed with
level bottoms and shall incorporate construction procedures
prohibiting equipment from entering the excavation. Slopes
in excess of 15% shall be permitted only if the design is
prepared by a licensed Class C professional engineer. Any
such design shall incorporate construction procedures.
6.06053 Soil Depth: Deep to very deep.
6.06054 Depth to Limiting Zone: > 48 inches
to evidence of a limiting zone.
6.06055 Depth to Limiting Zone: 48 inches or
greater from original grade and three (3) feet below bottom
of filter aggregate. (i.e. a minimum of five (5) feet below
existing grade for two (2) foot deep trench and bed systems).
6.06056 Percolation Rate: 0 - 120 mpi.
Construction on soils with slower percolation rates is not
permitted. A pressurized distribution system is required in
all cases.
6.06060 All Sand-lined Treatment and
Disposal Systems shall be designed in accordance with the
following criteria (See Exhibit S)
6.06061 Landscape Position: Areas with good
surface drainage which allow surface water to run off easily
without ponding and are not prone to flooding.
6.06062 Slope: 0-15%. Slopes in excess of
15% shall only be allowed if the design is prepared by a
Class C Professional Engineer designer. with a Class C
license. Any such design shall incorporate construction
procedures.
(b) Systems on slopes between 10% and l5%
shall use serial distribution.
6.06063 Soil Depth: Deep to very deep.
6.06064 Soil Drainage Depth to Limiting Zone:
Well drained Unsaturated for at least 12 inches below the
depth of sand-lining.
6.06045 Soil Texture: Coarse to medium
textured.
6.06046 Soil Structure: Granular, blocky,
subangular blocky, prismatic structure.
6.06065 Depth to Limiting Zone: 48 inches or
greater from original grade and three (3) feet below bottom
of filter aggregate. A minimum of two (2) feet of fill
replacement below the filter aggregate shall be provided.
Sand lined systems shall not be used where there is less than
one (l) foot of unsaturated soil between the limiting zone and
the impermeable or slowly permeable soil zone. Sand-lining
will not be permitted into the water table, except in instances
where it is necessary for replacement systems to function
hydraulically. If a perched water table occurs above an
impermeable zone, but the soils below the impermeable zone
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
798 PROPOSED REGULATIONS
remain unsaturated, the depth to the perched water table can
be as shallow as 36 inches. A minimum of two (2) feet of
suitable soil shall be placed below the filter aggregate.
6.06066 Percolation Rate: 0-60 min/in 120
mpi. A pressurized distribution system is may be required.
The percolation test shall be taken in the permeable soil
below the impermeable or poorly less permeable soil zone.
The bottom of the percolation test hole shall extend a
minimum of six (6) inches below the poor slowly permeable
soil zone but in no case shall it be less than six (6) inches
above the underlying limiting zone. If the percolation tests
are to be conducted at a depth too deep to obtain accurate
percolation rates, a percolation rate based on USDA soil
textures shall be assigned (Exhibit W). Otherwise, hydraulic
conductivity tests may be substituted.
6.06067 Additional Criteria:
(a) Sand lined systems may be used where the
site evaluation has shown that there is an impermeable or
very poorly slowly permeable soil zone located over an
acceptable soil. Use of the this system requires removal of
that zone within the disposal area and its replacement with a
sandy fill as prescribed under Section 6.01041. The system
shall be constructed in accordance with specifications for
sand-lined seepage trenches and beds (See Exhibit S).
Installation shall require a Class D site evaluator on site to
monitor depth to sand-lining.
(b) Sand lined systems shall not be used
where there is less than one (l) foot of unsaturated soil
between the limiting zone and the very poorly impermeable
or slowly impermeable soil zone. Sand-lining will not be
permitted into the water table.
(c) When clay or other slowly permeable soil
textures are encountered on a site, the following applies:
(1) For excavation from 0-24 inches a
gravity disposal system may be installed.
(2) For excavation from 25 - 36 inches a
full depth gravity disposal system with extra stone may be
installed if 36 inches can be maintained between the bottom
of the stone and limiting zone.
(3) For excavation greater than 36 inches
a sand lined disposal system may be installed.
6.07000 Septic Tanks:
6.07100 The standard sewage wastewater
treatment system used for on-site sewage wastewater
treatment and disposal shall be the septic tank.
6.07200 All septic tank treatment units shall be
designed in accordance with the following requirements.
(See Exhibit F G)
6.07201 The location of septic tanks shall be in
accordance with the minimum isolation distances set forth in
these Regulations as prescribed in Exhibit C.
6.07202 Minimum liquid volume capacity of a
septic tank shall be 1,000 gallons.
6.07203 The capacity of septic tanks for
residential use shall be:
(a) For 1, 2, 3 or 4 bedroom residences:
Minimum liquid capacity shall be 1000 gallons. For flows
?????500 GPD the minimum liquid capacity shall be 1,000
gallons.
(b) For each additional bedroom over 4:
Minimum liquid capacity shall be an additional 250 gallons/
bedroom. For flows > 500 GPD but ????15,000 GPD shall
have a capacity of 1.5 times the expected flow rate with a
minimum liquid capacity of 1,500 gallons.
(c) For flows > 15,000 GPD shall be
determined on a case by case basis at the sole discretion of
the Department.
6.07204 All septic tanks shall be capable of
providing twenty-four (24) hours detention at peak flow
rates and maximum sludge and scum accumulation.
6.07205 Septic tanks for residential
community, commercial, industrial, and institutional use
shall have a capacity of 1.5 times the peak flow rate for
systems having flows less than 1,500 GPD. Flows in excess
of 1,500 GPD but no greater than 15,000 GPD shall be sized
according to the following equation:
V = 1,125 + 0.75 Q
where:
V = net volume of septic tank in gallons
Q = peak daily wastewater flow in gallons
6.07206 If large flow surges are anticipated the
septic tank shall be increased in size to accommodate the
surges without causing sludge or scum to be discharged from
the tank.
6.07207 Residential, commercial, industrial,
and institutional flows greater than 15,000 GPD shall be
pretreated by use of a two (2) compartment treatment tank
which accomplishes sedimentation in the first compartment
and sludge digestion in the second compartment. The
treatment tank shall be designed by a Class C licensee and
provide for adequate sludge and scum storage. The
Department may approve such designs in its sole discretion.
6.07208 All tanks shall be watertight,
non-corrosive, durable and structurally sound. Materials of
construction for tanks shall be one of the following:
(a) Cast-in-place reinforced concrete.
(b) Pre-cast reinforced concrete.
(c) Concrete block, brick or other masonry
materials for tanks with a liquid capacity of 2,000 gallons or
more. If cinder blocks are used, the hollow cores shall be
filled with concrete and reinforced steel.
(d) Or other suitable material approved as
equal by and at the sole discretion of the Department.
6.07209 All septic tanks shall be of
multi-compartment design with a minimum of two (2)
compartments. The first compartment of a two (2)
compartment tank shall contain two-thirds the liquid
capacity of the total volume of the tank. Tanks shall be of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 799
rectangular design.
6.07210 Pre-cast reinforced concrete tanks
shall have a minimum wall thickness of two and one-half
inches.
6.07211 Cast-in-place reinforced concrete
tanks shall have a minimum wall thickness of four (4)
inches.
6.07212 All inlet and outlet connections shall
be sanitary tees or baffles constructed of cast-in-place
concrete, vitrified clay or PVC. Inlet openings may have a
minimum diameter equivalent to the diameter of the house
sewer but in no instance shall the diameter be less than three
(3) inches. The outlet invert shall be two (2) inches below
the inlet invert. The inlet and outlet baffles or sanitary tees
shall extend at least twelve (12) inches below the liquid
level, but to a level no deeper than 40% of the liquid depth.
Baffles or sanitary tees are not necessary for any portion of
the tank to be used as a pumping chamber.
6.07213 All pipe cutouts for inlet and outlet
connections shall be sealed with watertight bentonite grout
or standard rubber gaskets.
6.07214 Connections between
multi-compartment tanks shall consist of either a four (4)
inch diameter sanitary tee or two (2) or more openings
equally spaced across the width of the tank. Such openings
shall be six (6) inches wide. All compartment connections
shall extend to a level no deeper than 40% of the liquid depth
as measured from the liquid level.
6.07215 All inlet, outlet and intercompartment
connections shall be located to provide a
minimum air space of one (1) inch between the top of the
connection and the underside of the tank cover.
6.07216 Each tank compartment shall be
equipped with an access opening and cover. The opening
shall be located to provide access to each tank compartment
as well as providing access to the inlet and outlet
connections for routine inspections. Access openings shall
be at least eighteen (18) inches square or in diameter and
extended to no more than twelve (12) inches below grade
level with an appropriate manhole extension.
6.07217 A four (4) inch diameter inspection
port shall be located over each inter compartment connection
and shall be extended no more than six (6) inches below
grade level to facilitate routine inspection.
6.07217 Each septic tank shall be constructed
with a watertight access riser for each compartment and shall
extend above grade. The riser and lid shall be made of
concrete, masonry or an equivalent durable material.
6.07218 All below grade access covers shall be
watertight and equipped with lifting lugs for easy removal.
6.07219 All above Ggrade level access covers
shall be water and air tight and shall be secure from
vandalism.
6.07225 All septic tanks shall be equipped
with an approved tank outlet filter. The maintenance of
these filters is the responsibility of the property owner and
must remain in service for the life of the septic tank. This
unit must be maintained in accordance with the
manufacturer's service instructions.
6.07300 All installations of septic tank treatment
units shall be in accordance with the following requirements:
6.07301 Excavation: The excavation shall be
large enough to allow safe, unencumbered working
conditions but in no case shall the size of the excavation be
less than two (2) feet beyond the perimeter of the tank.
Excavations shall be kept dewatered from surface drainage
until backfilling is complete.
6.07302 Foundations: The tank shall be placed
on firm, dry, granular, undisturbed soil that has been graded
level. A gravel bedding shall be used on damp or fine
grained soils. A gravel bed foundation shall consist of stone
no larger than that which will pass through a 3/4" sieve and
shall be placed level to a minimum thickness of six (6)
inches in the excavation. The gravel bed shall extend one (l)
foot beyond the perimeter of the tank.
6.07303 All tanks shall be placed on a level
grade and at a depth that provides adequate gravity flow
from the source. Where adequate flow from the source is
maintained through the use of pumping equipment, the
impact of pumping rates and potential surge flows shall be
evaluated so as to maintain the treatment efficiency of the
septic tank unit.
6.07304 Previously excavated material from
the tank excavation may be used for backfill provided the
excavation material is dry and free of stones larger than four
(4) inches in diameter, construction debris, concrete, wood
and other similar materials. To equalize external pressure
against the septic tank, backfill material shall be placed and
compacted, extending a minimum of two (2) feet beyond the
perimeter of the tank.
6.07305 Backfill materials shall be placed in
uniform layers not more than eight (8) inches thick and
compacted to no less than 85% Modified Proctor Density.
Tamping shall be done in a manner that will not produce
undue stress or strain on the tank. Backfilling machinery
shall not be allowed within five (5) feet of any part of the
system. All backfill shall be free of excessive moisture.
6.07400 Testing: All tanks constructed on-site
(i.e., cast-in place, concrete block, etc.) shall be tested to
ensure watertight conditions and to check alignment and
operation of inlet, inter-compartment and outlet connections
prior to backfill. When tested, tanks shall be filled to
overflowing with water to observe operation of all
connections and fittings. All visible leaks in the tank
observed by the installer shall be repaired prior to
backfilling.
6.08000 Grease Traps:
6.08010 Grease traps shall be utilized for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
800 PROPOSED REGULATIONS
commercial and industrial wastewater sources at the sole
discretion of the Department to assure the effectiveness of
on-site sewage wastewater treatment and disposal systems.
Grease interceptors shall not be approved for new
construction designs as replacement for the grease trap.
Grease interceptors may be allowed for replacement systems
when there are site limitations and low flow applications.
6.08020 All grease traps shall be designed in
accordance with the following requirements. The minimum
size grease trap shall be 1,000 gallons. (See Exhibits E & F)
6.08021 The location of grease traps shall be in
accordance with the minimum isolation distances set forth in
these Regulations as prescribed in Exhibit C.
6.08022 The sizing of grease traps shall be
based on wastewater flow data and grease retention capacity.
The grease retention capacity in pounds shall be equal to at
least twice the peak flow capacity in gallons per minute. The
flow capacity can be determined from the individual flows
from fixtures discharging into the grease trap. Exhibit E
contains the minimum flow rate fixture capacities which
shall be used for grease trap designs when actual calibrated
metered flow data indicating peak daily flows over a three
year period are not available.
6.08023 All grease traps shall have
multi-compartments.
6.08024 All inlet and outlet connections shall
be sanitary tees or baffles constructed of cast-in-place
concrete, vitrified clay or PVC. Inlet and outlet openings
shall be a minimum of four (4) inches in diameter. The
outlet invert shall be two (2) inches below the inlet invert.
The inlet baffle or sanitary tee shall extend at least 24 inches
below the liquid level. The bottom of the outlet baffle or
sanitary tee shall be eight (8) inches above the tank bottom.
6.08025 Connections between multicompartment
tanks shall consist of a four (4) inch diameter
sanitary tee. The bottom of the sanitary tee shall be twelve
(12) inches above the tank bottom.
6.08026 The requirements of Section 6.07208,
6.07210, 6.07211, 6.07213, 6.07215, 6.07216, 6.07217,
6.07218 and 6.07219 shall apply to all grease traps approved
in accordance with these Regulations.
6.08030 All installations of grease traps shall
be in accordance with the requirements of Section 6.07300
and testing shall be conducted in accordance with Section
6.07400 of these Regulations.
6.08031 Grease traps must have access at grade.
6.09000 Dosing and Diversion Systems
6.09010 Effluent from on-site sewage
wastewater treatment and disposal systems shall be
transmitted to the disposal area absorption facility by gravity
or pressure distribution systems or lifted by a lift station (see
Exhibit V) to overcome elevational differences between the
septic tank and the absorption facility.
6.09020 Gravity dosing and distribution
systems may be used when the design sewage wastewater
flow requires less than 2,500 ft2 of disposal area for seepage
trenches or seepage beds and the percolation rate is equal to
or slower than six (6) minutes per inch.
6.09030 Gravity distribution systems shall
conform to the following requirements:
6.09031 All unperforated gravity transmission
pipe up to the distribution box shall be Sch. 40 PVC or ANSI
Class 22 thickness cast iron and shall be at least four inches
or greater in diameter unless lifted by a lift station to a surge
tank or the distribution box in which case 1 1/2 inch or 2 inch
Sch. 40 PVC pipe would be permissible with a minimum of
twenty (20) feet of 4 inch diameter Sch. 40 PVC pipe prior to
entering the distribution box.
6.09032 All gravity transmission pipes shall be
placed on a firm undisturbed or well compacted soil. All
joints shall be watertight. A minimum grade of 1/4 inch per
foot shall be provided for gravity transmission piping. Clean
backfill shall be placed around and over the pipe and hand
tamped to provide compaction.
6.09033 All gravity distribution laterals shall
be thin walled or Sch. 40 PVC and shall be at least four
inches or greater in diameter. Perforated PVC pipe shall
have 3/8 to 3/4 inch diameter holes a maximum of thirty (30)
inches on center. Coiled and corrugated piping shall not be
used. A grade of less than two (2) inches per one hundred
(100) feet shall be provided for all gravity distribution
laterals.
6.09034 The design and construction of the
gravity distribution system shall provide uniform application
of the effluent. All distribution laterals shall be of equal
length unless approved by the Department. The effluent
shall be equally divided between laterals of the gravity
distribution system by means of a distribution box.
6.09035 Serial distribution systems may be
used on sloping ground. All perforated distribution pipe shall
be thin-walled or Sch. 40 PVC and shall be at least four (4)
inches in diameter. A grade of less than two (2) inches per
one hundred (100) feet shall be provided. All serial relief
lines shall be ANSI Class 22 thickness cast iron or Sch. 40
PVC pipe and shall be at least four inches in diameter and of
the same diameter as the perforated distribution pipe it
interconnects. All relief line joints shall be watertight and
lines shall be placed on a firm undisturbed or well
compacted soil. Clean backfill shall be placed around and
over the pipe and hand tamped to provide compaction (See
Exhibit R). Stepped trenches shall be used on sloping
ground.
6.09040 All distribution boxes shall conform
to the following requirements (see Exhibit H):
6.09041 Location: Distribution boxes shall be
used with all gravity dosed systems. They shall be located in
accordance with the minimum horizontal isolation distances
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 801
set forth in Exhibit C. A minimum distance of three feet shall
separate the inlet face of the distribution box from the septic
tank outlet.
6.09042 Capacity: Distribution boxes shall be
sized to accommodate the number of distribution laterals
required for the distribution system.
6.09043 An inlet baffle shall be installed in all
distribution boxes. The baffle shall be perpendicular to the
inlet pipe and situated six (6) inches from the end of the
inlet. The baffle shall be constructed of the same material as
the distribution box and shall be a twelve (12) inch square
rising from the box floor, centered with the inlet connection,
and permanently affixed. PVC tee's may be incorporated as
baffles when plastic distribution boxes are used.
6.09044 The inverts of all outlets shall be of
the same elevation and at least one (l) inch below the inlet
invert.
6.09045 Each inlet and outlet distribution
lateral shall be connected separately to the distribution box.
Unperforated distribution piping shall extend a minimum of
five feet from the distribution box.
6.09046 The requirements of Sections
6.07208, 6.07210, 6.07211, 6.07213 and 6.07215 shall apply
to all distribution boxes approved in accordance with these
Regulations.
6.09047 Distribution boxes shall be accessible
either by means of a removable cover approved by the
Department constructed of steel or reinforced concrete or
access manhole which shall be located not more than twelve
(12) inches below grade.
6.09048 All installations of distribution boxes
shall be in accordance with the requirements of Section
6.07300.
6.09049 All installed distribution boxes shall
be tested to insure watertight conditions and leveled to insure
an even distribution of flow to each lateral under operating
conditions.
6.09050 Pressure distribution systems shall be
utilized with:
(a) Trench or bed systems receiving flows
requiring more than 1,250 2,500 ft2 of disposal area.
(b) All sand mounds.
(c) All sand filter systems.
(d) All Certain sand-lined systems.
(e) All absorption systems facilities located
on soils where percolation rates are faster than six (6)
minutes per inch or slower than 60 minutes per inch.
(f) All low pressure pipe systems.
6.09060 Pressure distribution systems shall
conform with the following requirements:
6.09061 All unperforated pressure
transmission pipes shall be Sch. 40 or SDR 26 PVC pipe
unless approved by the Department. The pipe shall be two
(2) to four (4) inches in diameter and sized to provide a
minimum flow rate of two (2) feet per second in the pipe. At
the discretion of the Department, larger diameter pipes may
be used for large systems provided all proper engineering
principles and practices are adhered to.
6.09062 All pressure transmission pipe shall
be placed below the frost line, whenever possible. All joints
shall be watertight and all pipes shall be placed on a firm
undisturbed or well compacted soil. Clean backfill shall be
placed around and over the pipe and hand tamped to provide
compaction. Frost line minimums for each county are as
follows:
Sussex - 18 inches, Kent - 24 inches, New
Castle - 32 inches.
6.09063 All pressure distribution laterals shall
be Sch. 40 and SDR 26 PVC pipe with a diameters between
one (l) to three (3) inches as determined by a Class C
licensee. Minimum hole diameters for perforated pressure
distribution laterals shall be 1/4 to 1/2 inch for trenches and
beds and 3/16 inch diameter holes for LPP's placed no less
than 30 inches on center along the length of the pipe, and
spacing intervals as determined by a Class C licensee and be
placed on center along the length of the pipe. Recommended
maximum hole spacing shall be determined by percolation
rates as follows:
Percolation RateMaximum Hole Spacing
20 - 30 MPI Sixty (60) inches
30 - 60 MPI Seventy (70) inches
60 - 90 MPI Ninety six (96) inches
90 - 120 MPIOne hundred twenty (120) inches
6.09064 All laterals shall be connected to
manifolds with tees or sanitary tees constructed of PVC, one
(1) to three (3) linches in diameter, corresponding to the size
of the connecting laterals.
6.09065 Distribution of effluent from the
dosing chamber header pressure transmission pipe to the
distribution laterals shall be by a central PVC manifold
ranging in diameter from one and one-half (1-1/2) inches to
three (3) inches.
6.09066 The dose volume shall be designed so
that the estimated daily flow shall be discharged to the
absorption facility in a minimum of equal four (4) doses.
Dose volume shall be five (5) times the internal (liquid)
capacity of the pressure transmission pipe, manifold, and
laterals not flooded.
6.09067 The size of the dosing pumps or
siphons shall be selected to maintain a minimum pressure of
one (1) psi (2.31 feet of head) at the end of each distribution
line. Pump characteristics and head calculations which
include maximum static lift, pipe friction and orifice head
requirements shall be submitted with permit applications.
6.09100 Dosing Chambers (See Exhibit I)
6.09101 Location: Dosing chambers shall be
located in compliance with the minimum isolation distances
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
802 PROPOSED REGULATIONS
of these Regulations (See Exhibit C).
6.09102 Size/capacity: The dosing chamber
shall be designed so that the estimated daily flow shall be
discharged to the absorption facility in a minimum of three
(3) equal doses. Dose volume shall be five (5) times the
internal (liquid) capacity of the dosing chamber header,
manifold, and laterals. The volume per dosing cycle shall
not exceed 1.25 gallons per square foot of absorption area.
The dosing volume for installations without check valves
shall be sized to account for backflow of effluent into the
dosing chamber after the end of the dosing cycle. If the
design daily flow is ???500 GPD, the dosing chamber shall
have a minimum liquid capacity equal to the designed dose
volume plus the design daily flow. If the design daily flow is
??500 GPD, the dosing chamber shall have minimum liquid
capacity equal to two (2) times the designed dose volume.
(The dosing chamber shall have a minimum liquid capacity
equal to the designed dose volume plus the design daily flow
volume. The size of the dosing pumps or siphons shall be
selected to maintain a minimum pressure of one (1) PSI
(2.31 feet of head) at the end of each distribution line. Pump
characteristics and head calculations which include
maximum static lift, pipe friction, and orifice head
requirements shall be submitted with permit applications.
6.09103 The requirements of Sections
6.07208, 6.07210, 6.07211, 6.07215, 6.07216, 6.07218, and
6.07219 shall apply to all dosing chambers approved in
accordance with these Regulations.
6.09104 All inlet pipe connections shall be
located above the high water level as predetermined by the
pump or siphon installation.
6.09105 All pipe cutouts shall be sealed
watertight with bentonite grout or standard rubber gaskets.
6.09106 Dosing chambers shall be constructed
with a ventilation port and a watertight access manhole. The
ventilation port shall be extended at least six (6) inches
above grade while the access manhole shall be extended to
the finished grade at a minimum, the Department
recommends six (6) inches above grade. The vent shall be
three (3) inches in diameter and the access manhole shall be
sized for easy removal of pumps or siphons. In no case shall
the manhole be less than twenty (20) inches square in
diameter. The vent shall be turned down and shall be fitted
with and insect and rodent proof, corrosion resistant screen.
6.09107 Pumps and siphons which are suitable
for handling septic tank effluent shall be used to meet dosing
requirements. Pumps and siphons shall be installed in
accordance with the manufacturer's recommendations.
6.09108 Dosing chambers using pumps shall
have an installed pump for which a replacement is readily
available in the event of failure.
6.09109 Pumps and siphons shall be sized to
discharge a flow rate equal to the combined flows from all
discharge holes in the laterals when operating at designed
level or head.
6.09110 Pumps and valves shall be equipped
with suitable connections so that they may be removed for
inspection or repair without entering the dosing chamber. A
slide rail system or disconnect coupling accessible from
outside the dosing chamber shall be utilized to allow
removal and access to the pump and pump check valve for
repairs and maintenance. A corrosion-proof lifting chain
device shall be attached to the pumps and tied off at the
access manhole.
6.09111 Check valves shall be allowed only
with dual pumping systems piping discharges below the frost
line. All systems larger than 500 gallons per day shall utilize
check valves required on all pressure distribution systems.
6.09112 An audible and visual high level
warning device shall be installed for all siphons and pumps,
and shall be installed on a separate AC circuit from the
pump. when a pump is required.
6.09113 All pump electrical connections and
alarm controls shall be corrosion resistant and waterproof.
Controls for systems larger than 500 gallons per day shall
also be explosion proof.
6.09114 Maximum and minimum Eelevations
for pump controls and high water level sensor elevations
shall be provided in the plan and specifications design.
6.09115 Unperforated distribution piping shall
extend a minimum of five (5) feet from the distribution
manifold. This requirement does not apply in the case of
tee'd or branched manifolds.
6.09120 Testing: All dosing chambers
constructed on-site (i.e., cast-in-place, concrete block, etc.)
shall be field tested to ensure watertight conditions. Pumps,
siphons, alarm controls and related appurtenances shall also
be field tested to ensure accuracy and proper operation in
accordance with the manufacturer's recommendations. A
minimum schedule for periodic testing and calibration of the
dosing chambers, pumps, siphons, alarm controls and related
appurtenances shall be established and incorporated into the
permit. All installed pumps and siphons shall be
accompanied by instruction manuals which include
operation and maintenance procedures and pump
characteristics.
6.09200 Diversion Boxes and Diversion Valves.
6.09210 Location: Diversion boxes or
diversion valves for alternating dual systems shall be located
according to the requirements set forth in Exhibit C.
6.09220 Capacity: Diversion boxes and valves
shall be sized to accommodate the piping connected to them.
6.09230 Diversion Valves: All pressure dosed
alternating dual disposal systems shall use diversion valves.
6.09240 All installation of diversion boxes
shall be in accordance with the requirements of Section
6.07300.
6.09250 Diversion boxes shall be pre-cast
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 803
concrete or other approved products. with treated cypress or
redwood gates. Diversion valve systems shall be
commercially available diversion or gate valves constructed
of durable cast iron or plastic.
6.09260 Diversion Box and Diversion Valve
Specifications: (See Exhibit K J)
6.09261 All diversion boxes and diversion
valves shall be installed level with connecting piping to
minimize stress.
6.09262 Cast iron valves shall be free of dirt
and rust. Plastic valves shall be clean and dry before
installation.
6.09263 Diversion boxes may be standard
distribution boxes with selective flow diversion devices.
6.09264 All inlet and outlet cutout connections
shall be sealed watertight with grout or approved rubber
gaskets.
6.09270 Appurtenances: All buried valves
shall be furnished with a suitable box constructed of durable
material extended to grade with a tight fitting access cap.
6.09280 Testing: Installed valves and gates
shall be tested in the field prior to back fill. Pre-cast boxes
shall be tested for watertight conditions.
6.10000 Building Sewers
6.10010 The minimum requirements contained in
this Section shall apply to all conduits, pipes or sewers
which transmit sewage wastewater flows from building or
house drains to a septic tank (or other treatment device) and
from the septic tank (or other treatment device) to the
distribution box or dosing tank. Collection systems
servicing three (3) or more units (i.e., community systems)
meet all other requirements of the Ten States Standards shall
be in conformance with National Standards.
6.10020 Building sewers shall comply with the
following requirements:
6.10021 Location: A minimum horizontal
separation of ten (10) feet shall be provided between a house
or building sewer and any water line. Suction lines from
wells shall not cross under house or building sewers.
6.10022 Size: Building sewers shall be sized to
serve the expected flow from the connected fixtures. All
building gravity sewer sewers plumbing shall be at least as
large as the internal building sewer plumbing but in no case
less than three (3) inches in diameter. Pressure building
sewers transmitting wastewater to a septic tank (or other
device) shall be a minimum of two inches in diameter.
6.10023 Foundation: All building sewers shall be
laid on a firm compacted bed through its entire length.
Building sewers placed in wet soil shall have a four (4) inch
bedding of 3/4" to 1-1/2" gravel or stone aggregate.
6.10024 Materials: Building sewers shall be
constructed of ANSI Class 22 thickness cast iron, Sch. 40 or
Sch. 80 PVC, reinforced concrete, or Sch. 40 or Sch. 80 ABS
pipe. Cast iron pipe of or PVC pipe in a cast iron sleeve
encased in six (6) inches of concrete shall be used for
building sewers located under < 3 feet below driveways,
parking area, or other areas subject to vehicular traffic or
similar loadings. The cast iron pipe or encasement shall
extend a minimum of two (2) feet beyond the edge of
driveways, parking areas, or other areas subject to vehicular
traffic or similar loading and shall be adequately bedded.
6.10025 Joints: All pipe joints shall be watertight
and protected against external and internal loads.
6.10026 Grade: A building sewer shall be installed
in a straight line to the maximum extent practicable with a
uniform continuous grade not less than l/8 inch/foot, unless
it can be demonstrated to the satisfaction of the Department
that an alternative design can maintain adequate flow from
the source and is approveable under the applicable local
building code.
6.10027 Cleanouts: Building sewer cleanouts shall
be installed at minimum intervals of fifty (50) feet for three
(3) inch diameter pipe and one hundred (100) feet for four
(4) inch and larger diameter pipe. Cleanouts shall be
provided at all changes in direction greater than 45o.
Wherever possible, bends should be limited to 45o. Every
house or building sewer shall have at least one (1) cleanout
fitting to provide access to the sewer plumbing. Cleanouts
may be placed at greater distances provided National
Standards are used to design the total collection system.
6.11000 Water Conservation Devices.
6.11010 Twenty five percent reductions in design
flow are allowed for water conservation. However, there
shall be suitable reserve area available to dispose of the
proposed design flow without the reductions for
conservation methods. The soil absorption system facility
shall be enlarged to the original required size if the
conservation devices are removed, become inoperative, or
the system malfunctions.
6.11020 Water saving plumbing devices are
encouraged to lengthen the life of the soil absorption system
facility. However, only permanent water saving plumbing
devices such as low flush toilets shall be considered in
reducing the size of the disposal area absorption facility.
Devices such as inserts in showers are considered temporary.
6.12000 Alternative Sewage Wastewater Treatment and
Disposal Systems
6.12010 The Department shall consider
applications for alternative sewage treatment and/or disposal
systems on a case-by-case basis. when it has been
demonstrated that the use of a standard sewage treatment
and/or disposal system is unacceptable. For the purposes of
this section, applications for community systems that
employ pretreatment devices which are in conformance with
standard engineering practice as determined by the
Department shall not be considered alternative.
6.12020 Applications for alternative sewage
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
804 PROPOSED REGULATIONS
treatment and/or disposal systems shall provide
documentation of the capabilities of the proposed system.
Such documentation shall be in the form of proven data of
long term usage of facilities similar to those specified in
these Regulations, or short term documentation from
controlled projects from reliable sources such as Universities
or the National Sanitation Foundation. The Department shall
approve only treatment and/or disposal system applications
which provide thorough documentation of proven
technology. Alternative sewage treatment and/or disposal
systems shall provide, at a minimum, an equivalent level of
treatment and disposal as a conventional wastewater system.
provided by those treatment and/or disposal systems
specified in these Regulations.
6.12030 Applications for alternative sewage
treatment and/or disposal systems shall include, but not be
limited to, the following:
(a) Volume and rate of sewage flow.
(b) Characteristics of the sewage.
(c) The degree and extent of treatment
expected.
(d) Design criteria, specifications, and
drawings including a description of the system, its
capabilities, operation and maintenance requirements,
unique technical features and system advantages for
treatment systems.
(e) Materials of construction.
(f) For disposal systems the type of sewage
treatment preceding the disposal system and the degree and
extent of treatment expected with respect to: bacteria and
virus removal; nitrate generation and removal; inorganic,
organic, soluble and suspended solids removal.
(g) The seal of a Professional Engineer having
a Class C license.
(h) Any other information required by the
Department.
6.12040 Alternative sewage treatment and/or
disposal systems shall be designed and operated to achieve
the following criteria:
(a) Within the project boundaries the total
discharge from all sources to the groundwaters of the State
does not exceed 0.0000834 pounds of total nitrogen per
gallon of discharge.
(b) No pathogen or virus migration beyond the
boundaries of the project site.
6.13000 Sand Filter Systems
6.13010 Each sand filter system installed under
these Regulations may be inspected annually. An annual fee
may be required. The Department may waive the annual fee
during years when the inspection is not performed.
6.13020 Sand filters may be permitted on any site
meeting requirements for standard disposal systems
contained under Section 6.06000 or where disposal trenches
would be used, and all the following minimum site
conditions can be met:
(a) The highest level attained by the water
table would be equal to or more than distances specified as
follows:
(b) Soils or fractured bedrock diggable with a
backhoe occur such that a standard twenty-four (24) in deep
trench can be installed.
6.13030 Shallow disposal trenches (placed not less
than twelve (12) inches into the original soil profile) may be
used with a capping fill to achieve the minimum separation
distances from the water table. The fill shall be placed in
accordance to the provisions of these Regulations.
6.13040 Water table levels shall be determined in
accordance with methods contained in Section 5.01000.
Sand filters shall not discharge more than five hundred (500)
gallons of effluent per one-half (1/2) acre per day except
where:
(a) A site specific geologic and hydrogeologic
analysis discloses loading rates exceeding five hundred
(500) gallons per one half (1/2) acre per day would not
increase the total nitrogen concentrations in the groundwater
beneath the site, or any down gradient location, above ten
(10) milligrams per liter.
6.13050 The size of sand filter absorption facilities
shall be determined in the same manner as provided under
Section 6.01020 for subsurface disposal system sizing
except that, the minimum disposal area may be reduced to
one-third of the area determined by the appropriate sizing
equation.
6.13060 Sites with soil textures of sand, loamy
sand, or sandy loam in a continuous section at least two (2)
feet thick in contact with and below the bottom of the sand
filter, that meet all other requirements of Section 6.13000,
may utilize either a conventional sand filter without a bottom
or a sand filter in a trench that discharges treated effluent
directly into those materials. The application rate shall be
based on the design sewage flow and the basal area of the
sand in either type of sand filter. A minimum twenty-four
(24) inch separation shall be maintained between a water
table and the bottom of the sand filter.
6.13070 Materials:
Soil Textures Minimum
Separation Distance
from Bottom of the
Seepage Area
sandy, loamy sand, sandy
loam
24 inches
Loam, silt loam, sandy
clay loam, clay loam
18 inches
silty clay loam, silty clay,
clay, sandy clay
12 inches
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 805
6.13071 All materials used in sand filter system
construction shall be structurally sound, durable and capable
of withstanding normal installation and operation stresses.
Component parts subject to malfunction or excessive wear
shall be readily accessible for repair and replacement.
6.13072 All filter containers shall be placed over a
stable level base.
6.13073 Piping and fittings for the sand filter
distribution system shall be as required under these
Regulations for pressure distribution systems.
6.13080 Conventional Sand Filter Design Criteria
6.13081 Design sewage flows for a system
proposed to serve a single family dwelling or commercial
facility shall be limited to five hundred (500) gallons or less
per day except as provided in these Regulations.
6.13082 Minimum Filter Area. Sand filters shall be
sized based on an application rate of no more than one and
twenty-three hundredths (1.23) gallons septic tank effluent
per square foot medium sand surface per day.
6.13083 Sand filter containers, piping, medium
sand, gravel, gravel cover, and soil crown material for a sand
filter system discharging to disposal trenches shall meet
minimum specifications indicated in Exhibit Q unless
otherwise authorized by the Department.
6.13090 Container Design and Construction
6.13091 A reinforced concrete container consisting
of floor and walls as shown in Exhibit Q is required where
water tightness is necessary to prevent groundwater from
infiltrating into the filter.
6.13092 The container may be constructed of
materials other than concrete where equivalent function,
workmanship, watertightness and at least a twenty (20) year
serve life can be documented.
6.13093 Flexible membrane liner (FML) materials
shall have properties which are at least equivalent to thirty
(30) ml unreinforced polyvinyl chloride (PVC) described in
Exhibit S. To be approved for filter installation, FML
materials must:
(a) Have field repair instructions and materials
which are provided to the purchaser with the liner; and
(b) Have factory fabricated "boots" suitable
for field bonding onto the liner to facilitate the passage of
piping through the liner in a waterproof manner.
6.13094 Where accepted for use, flexible
membrane liners shall be placed against relatively smooth,
regular surfaces. Surfaces shall be free of sharp edges,
corners, roots, nails, wire, splinters and other projections
which might puncture, tear, or cut the liner. Where a
smooth, uniform surface cannot be assured in the field, filter
system plans must include specifications for liner protection.
A four (4) inch bed of clean sand or a non-degradable filter
fabric acceptable to the Department, shall be used to provide
liner protection.
6.13100 Other Sand Filter Design Criteria
6.13101 Other sand filters which vary in design
from the conventional sand filter may be authorized by the
Department if they can be demonstrated to produce
comparable effluent quality.
6.13102 Pre-application Submittal. Prior to
applying for a construction permit for a variation to the
conventional sand filter the Department must approve the
design. To receive approval the applicant shall submit the
following required information to the Department:
(a) Effluent quality data. Filter effluent quality
samples shall be collected and analyzed by a testing agency
acceptable to the Department using procedures identified in
the latest edition of "Standard Methods for the Examination
of Wastewater", published by the American Public Health
Association, Inc. The duration of filter effluent testing shall
be sufficient to ensure results are reliable and applicable to
anticipated field operation conditions. The length of the
evaluation period and number of data points shall be
specified in the test report. The following parameters shall
be addressed: BOD5; Suspended Solids; Fecal Coliform;
Total Nitrogen; Ammonia Nitrogen; Organic Nitrogen;
Nitrite Nitrogen; and Nitrate Nitrogen.
(b) A description of unique technical features
and process advantages.
(c) Design criteria, loading rates.
(d) Filter media characteristics.
(e) A description of operation and
maintenance details and requirements.
(f) Any additional information specifically
requested by the Department.
6.13103 Construction Procedure. Following
pre-application approval, a permit application shall be
submitted in the usual manner. Applications shall include
applicable drawings, details and written specifications to
fully describe proposed construction and allow system
construction by contractors. Included must be the specific
site details peculiar to that application, including soils data,
groundwater type and depth, slope, setbacks existing
structures, wells, roads, streams, etc. Applications shall
include a manual for homeowner operation and maintenance
of the system.
6.13110 Sand Filter System Operation and
Maintenance
6.13111 Sand filter operation and maintenance
tasks and requirements shall be specified in the construction
permit and may be supplemented in the Certificate of
Satisfactory Completion. Where a conventional sand filter
system or other sand filter system with comparable operation
and maintenance requirements is used, the system owner
shall be responsible for the continuous operation and
maintenance of the system.
6.13112 The owner of any sand filter system shall
provide the Department written verification that the system's
septic tank has been pumped at least once each thirty-six
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
806 PROPOSED REGULATIONS
(36) months by a licensed liquid waste hauler. Service start
date shall be assumed to be the date of issuance of the
Certificate of Satisfactory Completion. The owner shall
provide the Department certification of tank pumping within
two (2) months of the date required for pumping.
6.13113 No permit shall be issued for the
installation of any other sand filter which in the judgment of
the Department would require operation and maintenance
significantly greater than the conventional sand filter, unless
arrangements for system operation and maintenance meeting
the approval of the Department have been made which will
ensure adequate operation and maintenance of the system.
6.13114 Each permitted installation may be
inspected by the Department at least every twelve (12)
months and checked for necessary corrective maintenance.
The payment of an annual fee will be required. The
Department may waiver the annual fee during years when
the inspection is not performed.
6.14000 Standardized Pressure Dosed Systems (See
Exhibit T)
6.14010 The standardized systems contained in
these Regulations may be utilized in locations where a
pressure distribution system is required by Section 6.09050,
Paragraph (e). Designs for standardized pressure dosed
systems shall conform with the approved criteria described
in Exhibit T and may be prepared by either a Class B or
Class C Designer.
6.14020 The pressure distribution system shall
conform to the requirements of Section 6.09060. The dosing
chamber shall conform to the requirements of Section
6.09100. (See Exhibit I)
6.14030 Pumps: Pumps shall be submersible
sewage pumps consisting of a motor, shaft, pump impeller
and casing. The pump motor shall be designed for
continuous submersible service, within open windings,
operating in clean dielectric oil. The motor shaft and housing
shall be sealed with a mechanical shaft seal with seal ring of
ceramic and carbon materials, or other approved seal
designed to prevent the entry of water or dirt into the motor
housing. The motor shaft shall be stainless steel. The motor
and pump housing shall be cast iron, bronze, or another
approved corrosion-resistant material. The pump impeller
shall be non-clog, capable of passing 1-1/4 inch spherical
solids, constructed of cast iron, bronze, or another approved
corrosion-resistant material. The pump shall have a
minimum two (2) inch discharge. All fasteners shall be
stainless steel. The pump shall be capable of running dry
without damage to the components, and shall have a
maximum operating temperature of 150 degrees Fahrenheit.
6.14040 Controls: The pump level controls shall be
float type mercury switches set to control the pumps
according to the levels required by the design selected. The
mercury tube switches shall be sealed in solid floats of
polyurethane or another approved material, designed for
corrosion and shock resistance. Each float shall be
suspended on a support wire with a heavy neoprene jacket
and a weight shall be attached to the cord above the float to
hold the switch in place in the pumping chamber. Three float
switches shall be provided, one each for pump off, pump on
and high water alarm (this may be reduced to two switches if
a single switch can be adjusted to provide the proper dosing
volume between the pump off and pump on levels).
Manufacturers may submit float specifications to the
Department for prequalification.
6.14050 Accessories: The pump shall be equipped
with a quick-disconnect coupling or slide rail system in order
to provide easy removal for maintenance or repair. If a
quick-disconnect coupling is installed, it shall be placed in
the discharge piping within reach of the access manhole. If a
slide rail system is used, the rails and other hardware shall be
of a corrosion-resistant material. The pump shall be
equipped with a lifting chain or strap made of stainless steel,
nylon webbing or other corrosion-resistant materials
designed to lift the weight of the pump and piping. The
lifting chain or strap shall be tied off on a hook within reach
of the access manhole. All piping is to meet the requirements
of Section 6.09061.
6.14060 Electrical: The pump motors shall be
designed for operation with 115 volt, single phase, 60 hertz
electrical service (three phase motors may be substituted).
All wiring within the pumping chamber shall be water and
oil proof. All wiring connections to the motor, float controls
and junction boxes shall be waterproof. Junction boxes,
control boxes, or any other electrical enclosures located
within the pumping chamber shall be minimum NEMA Type
4. Each pumping system shall be supplied with a control
panel equipped with a contactor and circuit for the pump
(one for each pump if a duplex system is installed), mercury
switch level controls, a hand-off-automatic switch,and, if
necessary, a transformer to supply a control current. The
control panel shall be contained in a suitable enclosure,
NEMA Type 3R if installed outside, NEMA Type l if
installed inside. Each system shall be equipped with a high
water alarm activated by the high water alarm float,
consisting of both an audio and visual alarm. The audio
alarm may be either a bell or a horn, and the visual horn shall
be a flashing red light. The alarm may be installed in the
system control panel enclosure, or within it own enclosure,
which shall meet the requirements for the control panel
enclosure. All electrical work shall meet the requirements of
the National Electrical Code, the National Electrical Safety
Code, and any applicable local codes. Upon completion of
the installation, an electrician licensed in the State of
Delaware shall certify that the electrical work complies with
all of the requirements of this Section.
6.14070 Pump Selection: The use of the
Standardized Pressure Dosed Systems requires the selection
of a pump by the Designer. Exhibit T indicates the Pump
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
--
PROPOSED REGULATIONS 807
Group required for each system. The minimum performance
requirements for each Pump Group are as follows:
Pump Group A - 90 GPM @ 12.0' TDH
Pump Group B - 100 GPM @ 12.0' TDH
Pump manufacturers may submit specifications
and performance data on their pumps for prequalification by
the Department in any of the Pump Groups listed above. The
Designer shall select the pump he wishes to use from the
Department prequalified list and specify it on the
application.
SECTION 7.00000 SITING DENSITY AND
HYDROGEOLOGICAL REQUIREMENTS
7.01000 The minimum isolation distances and siting
densities set forth in these Regulations shall be maintained
when designing, locating, constructing, repairing, replacing
and installing holding tanks, commercial and individual onsite
or and community wastewater treatment and disposal
systems.
7.02000 The following maximum siting densities shall
be maintained:
7.02010 For residential dwellings, the maximum
siting density shall be one (1) dwelling unit per one-half (1/
2) acre.
(a) For single family residences, only the area
within the property lines of the lot shall be considered.
(b) For multiple family dwellings or where
more than one (1) dwelling is to be served by an on-site
sewage wastewater treatment and disposal system, the
maximum siting density shall be based on the net pervious
area (i.e., unpaved, without structures) available for
groundwater recharge after total project completion. The
following criteria shall be utilized in determining the
maximum siting densities:
(i) For projects utilizing only a standard
septic tank for treatment prior to discharge to the soil
absorption facility system, the maximum siting density shall
be one (1) dwelling unit per one-half (1/2) acre of pervious
area.
(ii) For projects utilizing advanced
treatment systems, in conformance with standard
engineering practice and providing higher degrees of
nitrogen removal, the maximum siting density shall be
determined based on the degree of nitrogen removal prior to
discharge to the soil absorption facility system. The degree
of nitrogen removal required shall be determined in
accordance with Exhibit U. The degree of nitrogen removal
may be adjusted in accordance with a schedule for total
project completion submitted by the applicant and approved
by the Department. The owner of a treatment system which
provides a higher degree of nitrogen removal, shall post a
performance bond or certified letter of credit in an amount
equal to the total cost of the treatment system for the project.
The performance bond shall be held by the Department until,
such time as the treatment system demonstrates an
acceptable level of compliance with the terms and conditions
of a permit for a minimum period of one (1) year. Upon
demonstration of a satisfactory level of compliance, the
performance bond or certified letter of credit will be returned
to the owner.
7.02020 For commercial facilities the maximum
siting density shall be established by dividing the projected
design flow by five hundred (500) gallons per day per
one-half (1/2) acre and shall be based on the net pervious
area (i.e., unpaved, without structures) available for
groundwater recharge after total project completion.
Campgrounds intended for overnight or transient use are
evaluated as commercial facilities as opposed to mobile
home parks, which are evaluated as single family residential
facilities.
7.02030 In establishing maximum siting densities
the Department may consider impervious areas where it can
be demonstrated that through the establishment of an
acceptable stormwater management plan, all runoff will be
recharged to the groundwater of the State within the
boundaries of the project site. Stormwater management
plans shall be based upon a ten (10) year - one (1) hour storm
event as a minimum and provide recharge of the runoff
within 72 hours of the storm event.
7.03000 If the deed or instrument, under which an
owner acquired title to a lot or parcel, was of record prior to
April 8, l984 and if such lot or parcel does not conform to the
requirements of Section 7.02010, then the Department may
approve a feasibility study and/or issue a construction permit
for an on-site wastewater treatment and disposal system.
This system is to serve a single family dwelling or for
multiple systems to serve dwellings to be situated within an
area which has been given final site plan approval prior to
April 8, l984 for single or multi-family dwellings provided
that:
(a) The number of dwelling units per net pervious
area (i.e., unpaved, without structures) does not increase
from those approved prior to April 8, l984 by the local
governmental unit having jurisdiction; and
(b) At the time the permit is issued or report of site
suitability feasibility study is approved, the lot or parcel
complies with the requirements of Section 3.00000 through
Section 6.00000 of these Regulations.
When it may be necessary to increase the net pervious
area or reduce the number of dwelling units within a lot or
parcel and thus create a new date of recordation or final site
plan approval, the Department shall utilize the previous date
of recordation or approval in determining conformance with
these Regulations. The owner shall provide, prior to any
action by the Department, all documentation determined by
the Department to be necessary in establishing conformance
with this section.
7.04000 For lots created by plats or deeds recorded
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
808 PROPOSED REGULATIONS
after April 8, l984 and/or when the on-site wastewater
treatment and disposal system will serve a commercial
facility, the Department may approve a feasibility study
evaluation of site suitability, and/or issue a construction
permit for a new on-site wastewater treatment and sewage
disposal system if it is determined that all Regulations of the
Department can be met.
7.05000 Isolation distances and siting densities may be
modified by the Department based upon a site specific
geological and hydrogeological analysis Groundwater
Impact Assessment (GIA) provided that in the sole
discretion of the Department such modification will allow
for the protection of environmental resources and the public
health, safety and welfare. A site specific geologic and
hydrogeologic analyses GIA may not be required when the
proposed treatment prior to disposal will discharge no
greater than five (5) milligrams per liter of total nitrogen as
an average of all samples collected within a calendar year
and not exceed ten (10) milligrams per liter of total nitrogen
during any one month while providing adequate disinfection
at all times.
7.06000 Site specific geological and hydrogeological
analyses shall be performed by a Registered Professional
Geologist and shall be based upon site-specific
investigations and testing which shall include:
(a) Topographic location of the proposed disposal
area.
(b) Relationship of topography to groundwater
flow.
(c) Depth of water table at the proposed site,
including seasonal variations.
(d) Existing groundwater quality, quantity, and
uses of existing wells within a 1000 foot perimeter
surrounding the proposed disposal area. Groundwater
quality characteristics shall include but not be limited to the
following:
(1) Total and Fecal Coliform
(2) pH
(3) Total nitrogen
(4) BOD-5
(5) Turbidity
(e) The location, quality, flow characteristics and
designated uses of any surface water within 1000 feet of the
proposed disposal area.
(f) A valid analytical groundwater dispersion
equation which shall be utilized to demonstrate the
following:
(1) The groundwater quality at representative
locations around the perimeter of the disposal area for
parameters specified by the Department.
(2) The distances from the proposed disposal
area where the total nitrogen concentration is 10 mg/l.
(3) Validity and accuracy of the equation
parameters used in the dispersion equation.
Upon receipt, the Department shall attempt to
review the analysis within thirty (30) days. The Department
may require more detailed hydrogeological information
based upon the information submitted and the projected
impact on the environmental resources, public health, safety
and welfare.
7.06000 The Department may require an applicant,
owner or operator to perform a site specific Groundwater
Impact Assessment (GIA). The GIA should be performed
by a Delaware Registered Professional Geologist and shall
be based upon site specific investigations and testing. If
information required in the GIA was previously submitted in
a PGIA for the site, the required information need not be
resubmitted. The applicant may reference the PGIA and
state that the information was submitted in the report. The
Department will provide guidelines for preparation of the
GIA.
7.097000 The requirements of this Section are subject
to waiver by the Department for a specific area upon petition
by an appropriate governmental unit. Such petition shall
provide reasonable evidence that development using
individual on-site sewage wastewater treatment and disposal
systems will not cause unacceptable degradation of
groundwater quality or surface water quality or it shall
provide equally adequate evidence that degradation of
groundwater or surface water quality will not occur as a
result of such waiver.
7.10000 No waiver of the minimum siting densities or
isolation distances shall be made until after a public notice of
the proposed action has been made and a public hearing held
in accordance with 7 Del. C., Chapter 60, Section 6006.
SECTION 8.00000 -- MAINTENANCE
8.01000 The owner shall be responsible for maintaining
and operating on-site wastewater treatment and disposal
systems. Upon transfer of ownership, the new owner shall be
responsible for proper operation and maintenance of the
system and will be subject to all penalties for any violation
of these Regulations.
8.02000 Each on-site wastewater treatment and
disposal system shall be pumped by a licensed liquid waste
hauler in accordance with a schedule established in the
permit once every three years and alternative treatment
systems shall be pumped according to manufacturer
recommendations unless determined that the tank is less than
one-third (1/3) full of sludge. The schedule shall be
prescribed in accordance with current Department guidelines
based on the size of the treatment unit and anticipated
number of residents. The owner of the on-site wastewater
treatment and disposal system shall maintain a record
indicating the system has been pumped and provide such
documentation to the Department upon request.
8.03000 Organic chemical septic tank cleaning agents
shall not be used in individual or community on-site
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 809
wastewater treatment and disposal systems.
8.04000 Grease traps shall be cleaned when 75 percent
of the grease retention capacity has been reached.
8.05000 The sites of the initial and replacement
absorption facilities shall not be covered by asphalt or
concrete or subject to vehicular traffic or other activity
which would adversely affect the soils. These sites shall be
maintained so that they are free from encroachments by
accessory buildings and additions to the main building.
8.06000 The Department may impose specific
operation and maintenance requirements for individual or
community on-site wastewater treatment and disposal
systems to assure continuity of performance. Unless
otherwise required by permit, community systems shall be
inspected at least annually by the responsible entity.
8.07000 For large systems which serve communities
that experience a significant variation in flow on an annual
basis, the Department may prescribe specific criteria in the
permit for taking certain treatment units out of service during
periods of low flow. The criteria will establish procedures
for winterization and restart and the minimum levels of
treatment which must be provided at all times and in no
event shall it be less than the level of treatment provided by a
standard sewage conventional on-site wastewater treatment
and disposal system.
8.08000 The Department shall impose, in any permit
for large or community systems, standards for evaluating
treatment system performance and compliance with these
Regulations. The standards may be in the form of limitations
on flow and pollutant concentrations and/or mass loadings.
The standards shall reflect the utilization of best
management and operational practices.
8.09000 Unless otherwise required by a permit, all
community and large systems shall be inspected annually by
the Department or its designee.
8.09500 Alternative systems shall be inspected once
every three years and a fee may be required by the
Department. In addition, the Department recommends
alternative systems be inspected annually, at a minimum, by
a Class H inspector.
SECTION 9.00000 -- PRELIMINARY SUBDIVISION
APPROVAL
9.01000 It is the policy of the Department to facilitate
compliance with these Regulations through review of
proposed development projects as early as possible in the
development process to avoid unnecessary conflicts and
expense. Those persons proposing to subdivide a parcel and
use individual on-site or large and/or community wastewater
treatment and disposal systems must submit a preliminary
plan letter of intent prior to initiating any preliminary soils
investigations.
9.01010 The Letter of Intent must contain the
following details:
(a) The name of the Developer and landowner
(b) The size of parcel and number of proposed
lots or projected flow rates
(c) Indication of type of system(s) - individual
versus large/community
(d) Projected start date of site/soil
investigative work
9.01020 A preliminary plan feasibility study shall
be filed with the Department setting forth the proposed
manner of compliance with these Regulations. Other
development projects may submit a feasibility study to
satisfy other local government approval processes. The plan
feasibility study shall contain information of the nature
required to accompany a permit application under these
Regulations, and satisfy the following information:
(a) Site plan must bBe drawn to scale not to
exceed one (1) inch equals 200 feet.
(b) Illustrate topography by two (2) foot
contours intervals unless the Department approves the use of
an alternate scale due to extreme variations in elevation on
the site.
(c) Illustrate the location of all wells, water
systems courses, sewerage systems, septic tanks, on-site
sewage disposal systems, roads, houses, rights-of-way, and
easements within 200 150 feet of the perimeter of the
property.
(d) Conduct a soil suitability evaluation of the
project site following procedures prescribed in Section
5.01000. The extent and nature of the soil evaluation shall be
determined by a Class D licensed e site evaluator. The site
evaluator Class D licensee shall coordinate the planning of
the soils evaluation with the Department prior to initiating
work.
(e) Indicate the type of limiting zone, its depth,
and list the results of the site and soils analysis on the
appropriate forms. as provided by the Department.
(f) A representative number of percolation
tests shall be conducted on the project site. The licensed
Class A percolation tester shall coordinate his planning with
the Class D site evaluator and the Department prior to
initiating work. Each soil mapping unit identified for
potential on-site wastewater disposal shall have at least one
percolation test conducted within it to establish
representative percolation rates for each mapping unit.
(g) Lot numbers and approximate lot areas
shall be provided.
(h) A general site location map shall be
included on the preliminary plan for reference identification
of the area.
(i) The results of a geological and
hydrogeological analysis conducted pursuant to the
requirements of Section 7.00000 shall be included where the
maximum siting density does not conform to the
requirements of these Regulations. Proposed stormwater
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
810 PROPOSED REGULATIONS
management areas
(j) Location of jurisdictional wetlands, if
delineated.
9.02000 The Department shall conduct a general review
of the preliminary plan and give the owner/developer a
non-binding soil investigation report which shall contain a
statement of on-site wastewater treatment and disposal
feasibility. This Section shall not be construed to relieve the
applicant of the responsibility of obtaining individual site
evaluations and a permits from the Department for each lot
prior to commencement of construction of any on-site
wastewater treatment and disposal system. If site specific
soil analysis information is submitted, and the Department
determines that the soils conditions identified are
representative of the entire parcel or subdivision, the
Department may waive individual lot site evaluation
requirements at the sole discretion of the Department.
However, in any event, a minimum of one (1) soil profile per
acre shall be submitted. If granted, such a waiver must be in
writing and accompany the statement of feasibility.
9.03000 All wastewater treatment and disposal systems
which are proposed for construction in a watershed where
total maximum daily loads (TMDL's) have been established
for nitrogen and phosphorus shall be designed to reduce
effluent nutrient levels prior to discharging to the absorption
facility. The wastewater treatment system shall be designed
to reduce nutrient concentration by the percentage reduction
established by the Pollution Control Strategy (PCS) for that
watershed.
9.04000 If, in the estimation of the Department, more
than fifty five (55) percent of the proposed absorption
facilities for the subdivision will require pressurized disposal
systems, due to limiting conditions, a community wastewater
treatment and disposal system shall be utilized unless lot
density is equal to or greater than one acre per dwelling unit.
9.05000 Any lot created, recorded or platted after April
8, 1984 shall not have permanent holding tanks permitted as
a means of on-site wastewater treatment and disposal.
9.06000 Any other information required by the
Department.
SECTION 10.0000 -- VARIANCES
10.01000 Rural Area Variances
10.01010 Variances for any provision of these
Regulations may be granted by the Secretary in certain rural
zones provided that:
(a) The governing zoning agency designates
and the Department accepts specific rural zoning
classifications for purposes of this Section; and The owner
executes and records in the appropriate County Office of the
Recorder of Deeds an affidavit, on a form approved by the
Department, which notifies prospective purchasers that the
property is subject to a Rural Area Variance; and
(b) The minimum parcel size considered under
this Section is designated by the governing zoning agency,
but in no event shall it be less than ten (10) acres; and The
parcel size is not less than ten (10) acres; and
(c) The parcel is an existing parcel that does
shall not have an area approveable for any standard type of
on-site wastewater treatment and disposal system. The Class
D licensee shall provide a soils map of the subject area and
identify the area most suitable for wastewater treatment and
disposal. Logged soil profile descriptions shall be provided
for this area. Representative descriptions shall be provided
for each other mapping unit identified; and
(d) The permit is for an on-site wastewater
treatment and disposal system designed to serve a single
family dwelling, or for a commercial facility with an
equivalent or less sewage flow permitted by county zoning
regulations; and
(e) The on-site wastewater treatment and
disposal system will function in a satisfactory manner so as
not to create a public health hazard, or cause pollution of
waters of the State; and
(f) Requiring strict compliance with these
Regulations would in the sole discretion of the Department
be unreasonable, burden- some, or impractical due to special
physical conditions.
(f) Applications must be completed per
Section 10.02030 to obtain final approval for the Rural Area
Variance.
10.01020 The conditions for rural area variances
shall be set forth in a memorandum of agreement (contract)
between the governing zoning agency and the Department.
10.02000 Formal Variances
10.02010 Variances from any provisions contained
in these Regulations may be granted after a public notice and
hearing, if any. Notice shall be provided to all contiguous
property owners. A public hearing will be held if a
meritorious request is received within a reasonable time as
stated in the advertisement. A public hearing request shall be
deemed meritorious if it exhibits a familiarity with the
application and a reasoned statement of the variance's
probable impact.
10.02020 No variance may be granted unless the
hearing officer finds, or in the case of an appeal to the
Environmental Appeals Board, it is found that;
(a) The requirements of 7 Del. C., Chapter 60,
Section 6011 have been satisfied; and
(b) Strict compliance with the provision of
these Regulations is inappropriate for cause; or
(c) Special physical conditions render strict
compliance unreasonable, burdensome, or impractical.
10.02030 Applications for Variances
10.02031 A separate application shall be made to
the Department for each site considered for a variance.
10.02032 Each Rural Area Variance application
shall be accompanied by include:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 811
(a) A site evaluation report conducted by a
Class D licensee, unless waived by the Department, to
include the requirements of Section 10.01000; and
(b) A percolation test conducted by a Class A
licensee Proof the parcel is a minimum of ten (10) acres
(survey or statement from zoning office); and
(c) Plans and specifications for the proposed
system prepared by a Class B or C licensee Site evaluation
report of the entire parcel by the Class D licensee with
information including logged soil borings, detailed plot
drawing and statement from the licensee that no suitable
soils were found on the parcel and a wetland delineation
shall also accompany the site evaluation report depicting any
jurisdictional wetlands; and
(d) The appropriate fee A proposed disposal
location which is a minimum of 100 feet from all property
boundaries (when soil conditions allow); and
(e) Other information necessary for rendering
a proper decision The location of all wells within 1,000 feet
of the proposed absorption facility; and
(f) The property owner's signature shall
provide a list of all property owners names and addresses
within 1,000 feet of parcels property lines; and
(g) A percolation test conducted by a Class A
percolation tester or an assigned percolation rate by the Class
D licensee based upon USDA soil textures (see Exhibit W);
and
(h) Submit soils report with appropriate site
evaluation fee, if fee not paid already. Upon reviewing the
soils report, the Department will determine the system type,
design specifications and return this information to the
owner, or designated agent: and
10.2035 Upon completion of Section 10.02032, the
following criteria will be required:
(a) A completed permit application prepared
by a licensed designer; and
(b) An affidavit of a Rural Area Variance (as
part of the permit application); and
(c) Appropriate fee's for the permit application
and Rural Area Variance, if not already paid; and
(d) The Department shall advertise the
application for a Rural Area Variance in a local newspaper to
include direct notification of adjacent property owners. The
Department will not hold a public hearing unless a
meritorious request is made to the Department.
10.03000 Hardship Variances
10.03010 The Secretary may grant variances from
any provision of these Regulations in cases of extreme and
unusual hardship.
10.03020 The Department may consider the
following factors in reviewing an application for a variance
based on hardship:
(a) Advanced age or bad health of the
applicant.
(b) Need of applicant to care for aged,
incapacitated, or disabled relatives.
(c) Relative insignificance of the
environmental impact of granting a variance.
10.03030 Hardship variances granted by the
Secretary may contain conditions such as:
(a) Permits for the life of the applicant.
(b) Limiting the number of permanent
residents using the system.
(c) Use of experimental conventional on-site
wastewater treatment and disposal systems for specified
periods of time.
(d) Any other conditions which the Secretary
finds in his sole discretion to be appropriate.
10.03040 Before an application is considered for a
hardship variance it must have been denied a formal variance
on the basis of technical Regulation considerations. At the
time of the application, the applicant must designate on the
application that it is to be reconsidered for a hardship
variance.
10.03050 Documentation of hardship must be
provided before the application is referred to the Department
for action.
10.03060 Department personnel shall strive to aid
and accommodate the needs of applicants for variances due
to hardship.
10.04000 Variance Hearings
10.04010 The hearing officer shall hold a public
hearing in conformance with 7 Del. C., Chapter 60, Section
6006.
10.04020 The hearing shall be held in the county
where the property described in the application is located.
10.04030 Each hearing shall be held within thirty
(30) days after receipt of a completed application and public
notice has been given subsequent to receipt of the completed
application.
10.04040 A decision to grant or deny the variance
shall be made in writing to the applicant within thirty (30)
days after completion of the hearing. If the variance is
granted, the Department shall issue the appropriate
construction permit and perform necessary inspections to
assure proper installation of the system.
10.05000 Variance Appeals
10.05010 Decisions of the Secretary to grant or
deny a variance may be appealed to the Environmental
Appeals Board.
Table of Contents
Exhibits A through Z
A. Existing System Inspection Report
B. Textural Triangle for Soil Classification
C. Minimum Isolation Distances
D. Wastewater Design Flow Rates
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
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812 PROPOSED REGULATIONS
E. Grease Trap Design Capacities
F. Typical Grease Trap
G. Typical Two Compartment Septic Tank
H. Typical Distribution Box
I. Typical Pump Dosing Chamber
J. Diversion Equipment for Dual Fields
K. Typical Aggregate Trench/Bed Design - Full Depth
Gravity
L. Typical Aggregate Free Trench/Bed Design - Full
Depth Gravity
M. Typical Aggregate Trench/Bed Design - Capping Fill
Gravity
N. Typical Aggregate Free Trench/Bed Design - Capping
Fill Gravity
O. Typical Low Pressure Pipe Design
P. Typical Elevated Sand Mound Design
Q. Typical Pressure-Dosed Trench/Bed Design - Full
Depth
R. Typical Pressure-Dosed Trench/Bed Design - Capping
Fill
S. Typical Sand-Lined Trench/Bed Design
T. System Information Quick Reference Guide
U. Total Nitrogen Concentrations for Community Systems
V. Septic Tank Lift Station
W. Percolation Rates Based Upon USDA Soil Textures
X. Low Pressure Pipe Design Percolation Rates &
Maximum Hole Spacing Distances
Y. Observation Well Construction Diagram
Z. System Abandonment Report
EXHIBIT C
MINIMUM ISOLATION DISTANCES (FEET)
Compo- Well Water Watercours Dwelling Othe Natural
nents or Supply e (Streams, s, r or
Sucti Pressure Lakes, Property activ manon
Line Federal or Line, e on- made
Line State Easemen lot Slope
Regulated t or sys- >25%
Wetlands Right-of- tems
or other way
surface
water)
Septic tank 50 10 25 10 (f)
Grease 50 10 25 10
trap
Distributio 50 10 25 10
n box
Dosing 50 10 25 10
chamber
Disposal 100 10 100(b) 10 (g) 20 15
area (a)(d 10
(c) (h) (i) )(e)
Diversion
valve or
box
50 10 25 10
Notes:
a) Approval of a lesser distance to a minimum isolation
distance of 50 feet may be approved by the Department if the
well has a permanent watertight casing installed through the
aquifer receiving the effluent from the on-site disposal
system as per the Delaware Regulations Governing the
Construction and Use of Wells, adopted February 6, 1997.
The applicant shall provide documentation regarding well
distances, depths, and construction to the Department upon
request.
b) Approval of a lesser distance to a minimum isolation
of fifty (50) feet may be approved by the Department if the
watercourse has not been designated for use as a public
water supply or shellfish or the applicant and/or agent can
prove there will be no adverse effect to the watercourse.
NOTE: There is no setback from an ephemeral watercourse.
It is the sole responsibility of the Class D licensee to
determine whether a watercourse is, by definition,
ephemeral.
c) For elevated sand mound and capping fill systems
distances shall be measured from the outer edge of the berm
or fill stone or gravel less chamber.
d) For public or industrial wells the minimum isolation
distance shall be 150 feet. NOTE: Paragraph 8.03(c) of
Regulations Governing the Use of Water Resources and
Public Subaqueous Lands states, "Every new or replacement
well shall be located at least 150 feet from septic tanks, tile
fields (absorption facility), and seepage pits."
e) For lots created by plat or deed and recorded prior to
April 8, 1984, Aan isolation distance of 50 feet between
domestic and commercial wells and disposal area absorption
facility may be considered by the Department where the lot
size will not allow an isolation distance of 100 feet and an
alternative source of water supply is not available. The well
must be cased to a depth of 50 40 feet exclusive of the screen
and pressure grouted with either concrete or bentonite clay to
a minimum depth of 40 feet. The applicant shall provide
documentation regarding well distances, depths, and
construction to the Department upon request.
f) Except in the case of a septic tank for a central sewer
system where the disposal field absorption facility is not
located on the same lot as the septic tank in which case the
distance shall be 5 feet from the interior lot or easement lines
within a recorded subdivision.
g) Except in the case of a central sewer system where
the disposal area absorption facility can be 5 feet from an
interior lot of easement lines within a recorded subdivision.
h) For replacement systems, if an additional twelve (12)
inches of suitable soil exists below the required separation
distance then the well isolation distance may be reduced
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 813
from 100 feet to 50 feet. (ie. 36 inch separation for gravity
systems to 48 inch separation for well isolation reduction).
i) For replacement systems, if advanced treatment is
incorporated then the well isolation distance may be reduced
from 100 feet to 50 feet.
EXHIBIT D
SEWAGE WASTEWATER DESIGN FLOW RATES
TYPE OF
ESTABLISHMENT
UNIT GALLONS/
UNIT/DAY
Airport Person 5
Assembly Hall, Auditoriums,
Indoor Theaters
Seat 3
Banquet Halls
With bar & food
Seat 15
30
Barber Shop Chair 50
Bar w/min food prep Seat 20
Bath House Person 10
Beauty Shop Chair 125
Boarding or rooming houses
Staff
Person
Person
50
10
Bowling Alley with no bar or
restaurant
With bar or restaurant
Lane
Lane
100
200
Camps
Work
Summer
Trailer w/o sewer h/up
Trailer w/ sewer h/up
Person
Person
Site
Site
50 40
50 40
50
150 125
Churches Seat 5
Country Clubs Person 70 100
Day Care
Day Care - In-home
Child
Employee
Bedroom
+ per child
15
120/bedroom +
8/child
Dentist Office
Office staff add
Chair
Person
200
20
Factories
w/ shower
Person
Person
25
35
Gas & Go's w/o food and w/
restrooms
Gas & Go's w/food and w/
public restrooms
Employee/
shift
Bathroom/
shift
10
130
Hospitals Bed 225 250+
Hotels Room 120
Laundromat Machine 500
or
Marinas
Marinas w/restrooms
Boat Slip
Boat Slip
10
30
Mini-markets w/food /o
restrooms
Mini-markets w/food /
restrooms
Ft 2
Bathroom/
shift
.1
130
Motels
w/ kitchen
Room
Room
100
150
Medical office buildings and
clinics
Doctors, nurses and medical
staff
Office staff
Patients
Persons 70
20
7
Offices Employee 20
Outdoor sporting facilities Persons
per day
5
Parks with beaches
Lavatory waste only
Bath house, showers, lavatories
Person
Person
5
13
Picnic Grounds, Public Swimming
Pools
Picnic with toilets only
Picnic with lavatories and
showers
Swimming Pools and Beaches
with lavatories and showers
Person
Person
Person
5
11
13
Residential Dwellings Bedroom 120
w
w
Restaurants
24 hour service
18 hour service
12 hour service
Add for bars & cocktail
lounges
Seat 35
40
30
20
5
Rest/Nursing Homes Bed 125
Schools
w/ gym, showers, cafeteria
w/ cafeteria
Boarding
Non-resident staff
Student
Student
Student
Student
Staff
10
20 25
15
75
15
Service Station Island 500
Stores (Retail) ft2 .1
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
814 PROPOSED REGULATIONS
Theaters
Drive in
Movie Theaters
Space
Seat
10
4
EXHIBIT E
GREASE TRAP DESIGN CAPACITIES
EXHIBIT S
FLEXIBLE MEMBRANE LINERS FOR SAND FILTERS
TREATING SEPTIC TANK EFFLUENT.
Unsupported polyvinyl chloride (PVC) shall have the
following properties:
Property Test Method
TYPE OF
FIXTURE
FLOW
RATE
(GPM)
GREASE
RETENTIO
N
CAPACITY
(LB)
REQUIRED
CAPACITY
PER
FIXTURE
CONNECTE
D TO TRAP
(GAL)
Restaurant
kitchen sink
15 30 50.0
Singlecompartment
sink
20 40 50.0
Doublecompartment
sink
25 50 62.5
Triplecompartment
sink
30 60 75.0
2 single
compartment
sinks
25 50 62.5
2 triple
compartment
sinks
40 80 100.0
Dishwasher
for restaurants
Up to 30 gallons
water
Up to 50 gallons
50 to 100
gallons
15
25
40
30
50
80
50.0
62.5
100.0
(a) Thickness ASTM D1593 30 mil,
minimum Para 8.1.3
(b) Specific Gravity ASTM D792
(minimum) Method A
(c) Minimum Tensile Properties ASTM D882
(each direction)
(A) Breaking Factor Method A or B69
(pounds/inch width) (1 inch wide)
(B) Elongation at BreakMethod A or B300
(percent)
(C) Modulus (force) at Method A or B27
100% Elongation
(pounds/inch width)
(d) Tear Resistance (pounds, ASTM D10048
minimum) DIE C
(e) Low Temperance ASTM D1790 -20oF
(f) Dimensional Stability ASTM D1204 +/-5
(each direction, percent 212oF, 15 min
change maximum)
(g) Water Extraction ASTM D1239 -0.35% max.
(h) Volatile Loss ASTM D1203 0.7% max.
Method A
(i) Resistance to Soil Burial ASTM D3083
(percent change max.
in original value)
(A) Breaking Factor -5
(B) Elongation at Break -20
(C) Modulus at 100% +/-10
Elongation
(j) Bonded Seam Strength ASTM D3083 55.2
(factory seam, breaking
factory, ppi width)
(k) Hydrostatic Resistance ASTM D7512
Method A
Installation Standards:
(a) Patches, repairs and seams shall have the same
physical properties as the parent material.
(b) Site considerations and preparation:
(A) The supporting surface slopes and foundation
to accept the liner shall be stable and structurally sound
including appropriate compaction. Particular attention shall
be paid to the potential of sink hole development and
differential settlement.
(B) Soil stabilizers such as cementations or
chemical binding agents shall not adversely affect the
membrane, cementations and chemical binding agents may
be potentially abrasive agents.
(c) Only fully buried membrane liner installation shall
be considered to avoid weathering.
(d) Unreinforced liners have high elongation and can
conform to irregular surfaces and follow settlements within
limits. Unreasonable strain reduces effective thickness and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 815
may reduce life expectancy by lessening the chemical
resistance of the thinner (stretched) material. Every effort
shall be made to minimize the strain (or elongation)
anywhere in the flexible membrane liner.
(e) Construction of site:
(A) Surface condition:
(i) Preparation of earth subgrade. The
prepared subgrade shall be of soil types no larger than
Unified Soil Classification System (USCS) sand (SP) to a
minimum of four (4) inches below the surface and free from
loose earth, rock, fractured stone, debris, cobbles, rubbish
and roots. The surface of the completed subgrade shall be
properly compacted, smooth, uniform and free from sudden
changes in grade. Importing suitable soil may be required.
(ii) Maintenance of subgrade. The earth
subgrade shall be maintained in a smooth, uniform and
compacted condition during installation of the lining.
(B) Climatic conditions:
(i) Temperature: The desirable temperature
range for membrane installation is 42oF to 78oF. Lower or
higher temperatures may have an adverse effect on
transportation, storage, field handling and placement,
seaming and backfilling and attaching boots and patches
may be difficult. Placing liner outside the desirable
temperature range shall be avoided.
(ii) Wind: Wind may have an adverse effect
on liner installation such as interfering with liner placement.
Mechanical damage may result. Cleanliness of areas for
boot connection and patching may not be possible.
Alignment of seams and cleanliness may not be possible.
Placing the liner in high wind shall be avoided.
(iii) Precipitation: When field seaming is
adversely affected by moisture, portable protective
structures and/or other methods shall be used to maintain a
dry sealing surface. Proper surface preparation for bonding
boots and patches may not be possible. Seaming, patching
and attaching "boots" shall be done under dry conditions.
(C) Structures: Penetration of a flexible liner by
any designed means shall be avoided. Where penetrations
are necessary, such as horizontal and vertical pipes, it is
essential to obtain a secure, liquid-tight seal between the
pipes and the flexible liner. Liners shall be attached to pipes
with a mechanical type seal supplemented by a chemically
compatible caulking or adhesive to effect a liquid-tight seal.
The highest order of compaction shall be provided in the
area adjacent to pipes to compensate for any settlement.
(D) Liner Placement:
(i) Size: the final cut size of the liner shall be
carefully determined and ordered to generously fit the
container geometry without field seaming or excess straining
of the liner material.
(ii) Transportation, handling and storage:
Transportation, handling and storage procedures shall be
planned to prevent material damage. Material shall be stored
in a secrured area and protected from adverse material.
(iii) Site Inspection: A site inspection shall be
carried out by the Department and the installer prior to liner
installation to verify surface conditions, etc.
(iv) Deployment: Panels shall be positioned to
minimize handling. Seaming should not be necessary.
Bridging or stressed conditions shall be avoided with proper
slack allowances for shrinkage. The liner shall be secured to
prevent movement and promptly backfilled.
(v) Anchoring trenches: The liner edges
should be secured frequently in a backfilled trench.
(vi) Field seaming: Field seaming, if
absolutely necessary, shall only be attempted when weather
conditions are favorable. the contact surfaces of the
materials should be clean of dirt, dust, moisture, or other
foreign materials. The contact surfaces shall be aligned with
sufficient overlap and bonded in accordance with the
suppliers recommended procedures. Wrinkles shall be
smoothed out the seams should be inspected by
nondestructive testing techniques to verify their integrity.
As seaming occurs during installation, the field seams shall
be inspected continuously and any faulty area repaired
immediately.
(vii)Field repairs: It is important that traffic on the
liner area be minimized. Any necessary repairs to the liner
shall be patched using the same lining material and
following the recommended procedure of the supplier.
(viii) Final Inspection and acceptance: As
completed, the liner installation should be tested for
functional integrity. All joints, seams and mechanical seals
should be checked both during and after installation.
Hydrostatic testing to evaluate watertightness of the
completed liner installation before placement of any backfill
may be required at the discretion of either the Department or
the owner/purchaser. The lined basin shall be filled to the
four (4) foot level with water after the pipe inlets and outlets
have been fitted with temporary plugs. Acceptance of
workmanship shall be based upon a leakage rate of no more
than 0.25 inches in a 24 hour period. Virtually no leakage
should result from good workmanship, however.
(ix) Operation and Maintenance Standards: The owner/
purchaser of a sand filter system must recognize that he
assumes the continuous responsibility to preserve the
installation as near as practical in its "as built" state. This
responsibility includes the control or erosion of any
"mound", the control and removal of large perennial plants,
the fencing out of livestock and the control of burrowing
animals.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
816 PROPOSED REGULATIONS
EXHIBIT T
STANDARDIZED PRESSURE DOSED TRENCH
SYSTEMS
PARAMETERS
Width of trench (in) 24 24 24 36 36 36
Design flow (gpd) 240 360 480 240 360 480
No. of laterals 4 6 8 3 4 5
Length
laterals(ft)
45 45 45 40 45 50
Diam of laterals (in) 1 1/2 1 1/2 1 1/2 2 1 1/2 1 1/2
Diam of holes (in) 1/4 1/4 1/4 5/16 1/4 1/4
Spacing f holes
(in)
30 36 42 30 30 30
Dosing olume
(gal)
80 120 120 80 120 120
Diam of
transmission ine
(in)
2 1/2 3 3 2 1/2 2 1/2 3
Pump Group a b b a a b
of
o
V
l
STANDARDIZED PRESSURE DOSED BED SYSTEMS
EXHIBIT U
TOTAL NITROGEN EFFLUENT CONCENTRATIONS
REQUIRED FOR COMMUNITY TREATMENTS
SYSTEMS PROVIDING A HIGH DEGREE OF
NITROGEN REMOVAL (mg/L)
Average Dwelling Unit Design Flow (GPD)
240 300 360 420 480
Maximum Siting Density
(dwelling units per pervious
acre)
3
4
5
6
7
8
9
10
35
29
22
14
13
11
10
10
30
22
13
11
10
10
10
10
23
14
11
10
10
10
10
10
22
13
10
10
10
10
10
10
14
11
10
10
10
10
10
10
EXHIBIT X
LOW PRESSURE PIPE DESIGN PERCOLATION RATES
& MAXIMUM HOLE SPACING DISTANCES
MPI FACTOR MAX. SPC'G
20 3.70 60
25 4.20 60
30 4.80 72
35 5.50 72
40 5.58 72
45 5.87 72
50 6.16 72
55 6.45 72
60 6.65 72
65 7.35 96
70 8.05 96
75 8.75 96
80 9.45 96
85 10.15 96
90 10.99 96
95 11.76 96
100 12.74 96
105 13.86 96
110 15.26 96
115 16.52 96
120 17.50 96
PERCOLATION RATES
BASED UPON USDA SOIL TEXTURES
USDA TEXTURE DNREC ASSIGNED
PERCOLATION RATE (MPI)*
Sands 5
Loamy Sand 10
Sandy Loam 20
Sandy Clay Loam 30
PARAMETER
Design flow (gpd) 240 360 480
Bed size (ft) 15 X 30 14 X 30 18 X 50
No. of laterals 3 3 3
Spacing of laterals (in) 4.5 4 6.0
Diameter of laterals (in) 1.5 2 2
Diameter of Holes (in) 5/16 5/16 5/16
Spacing of holes (in) 30 30 30
Dosing volumes (gal) 80 120 120
Diameter of transmission
line (in)
2 1/2 2 1/2 2 1/2
Pump group a b b
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 817
Loam 30
Silt Loam 50
Silt 50
Clay Loam 75
Silty Clay Loam 75
Sandy Clay 120
Silty Clay 120
Clay 120
* Other soil properties such as high bulk density,
structure, total porosity, and size and continuity of the pores
may significantly affect these percolation rates. Textures of
loamy coarse sand and coarse sandy loam may have
percolation rates faster than assigned, while loamy very fine
sand, loamy fine sand, very fine sandy loam and fine sandy
loam may have percolation rates slower than assigned.
Percolation Class Percolation Rate (mpi)
Very Slow >120
Slow 50 - 120
Moderate 25 - 49
Moderately Rapid 10 - 25
Rapid 6 - 10
Very Rapid < 6
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
DELAWARE TOURISM OFFICE
Statutory Authority: Laws of Delaware
Volume 73, Chapter 74, Section 67
Direct Grants Program
In accordance with the procedures set forth in 29 Del. C.
Ch. 11, Subch. III, 29 Del. C. Ch 101 and 73 Delaware Laws
Ch. 74, Section 67 (June 28, 2001), the Director of the
Delaware Economic Development Office ("DEDO") (of
which the Delaware Tourism Office ("DTO") is a
subdivision), in cooperation with the Tourism Advisory
Board (the "Board"), is proposing to adopt a regulation for
the administration of the direct grants program set forth in 73
Delaware Laws Ch. 74, Section 67 (the "Direct Grants
Program") and for the application and award procedure of
the Direct Grants Program. The regulation originally
proposed in 5 DE Reg. 512-13 (September 1, 2001) is hereby
withdrawn and is re-proposed in the form set forth below.
The regulation describes the Direct Grants Program, the
eligibility criteria and application procedure for awards
under the Direct Grants Program, the procedure for making
of awards and the uses to which Direct Grants Program
awards may not be put.
The Director of the Delaware Economic Development
Office, or an employee of the Delaware Economic
Development Office designated by the Director, and the
Board will hold a public hearing at which members of the
public may present comments on the proposed regulation on
November 9, 2001 in the conference room of the offices of
the Delaware Economic Development Office at 99 Kings
Highway, Dover, DE, 19901 at 9:00 a.m. Additionally,
members of the public may present written comments on the
proposed regulation by submitting such written comments to
Ms. Julie Miro Wenger at the address of the Delaware
Economic Development Office set forth above. Written
comments must be received on or before November 9, 2001
at 9:00 a.m. Members of the public may receive a copy of
the proposed amendments to the regulation at no charge by
United States Mail by writing or calling Ms. Julie Miro
Wenger, Delaware Tourism Office of the Delaware
Economic Development Office, 99 Kings Highway, Dover,
DE, 19901-7305, phone (302) 739-4271.
1.0 Program Description
1.1 The purpose of the program is to attract visitors to
Delaware and to bring in overnight business to Delaware.
The goal of the Direct Grant Program is to increase the
visibility of Delaware's tourism product. Direct Grants are
only toward not-for-profit tourism entities are eligible. All
projects must tie in to the State Marketing Plan.
1.2 The total amount available is for direct grants is
designated by the general assembly in the operating budget.
It is expected that there will be a number of direct grant programs
awarded.
1.3 To be eligible, organizations must have a marketing
plan with a clear vision as to how to attract out-of-state
visitors.
1.4 The grants are to be used for the marketing of
tourism organizations, products, programs or areas.
1.5 Use of Funds:
1.5.1 It is expected that the funds will be used to
actively market the petitioning tourism organization or
partnership of organizations to attract new visitors to the
state of Delaware.
1.5.2 The same organization may apply for more
than one Direct Grant program.
2.0 Award Determination:
2.1 The organizations receiving awards will be selected
by a panel composed of the following:
2.1.1 DelawareTourism Office
2.1.2 Governor'sTourism Advisory Board
3.0 Criteria:
3.1 Organizations must demonstrate that their vision
supports one or more of the attract goals of the Delaware
tourism industry's Five-Year Strategic Plan and Marketing
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
818 PROPOSED REGULATIONS
Plan. Awards will be based on the organization's ability to
communicate a vision that the panel believes is possible and
has the potential to increase tourism. The program must
support the Delaware Tourism Office Marketing Plan. DTO
logo must appear on all created collateral. There will be no
attempt to balance the awards geographically, politically, or
categorically.
4.0 Award Process
4.1 All complete applications that are received by the
deadline will be forwarded to the awards panel for rating.
The applications receiving the highest average rating will be
scheduled to make an oral presentation to the panel.Awards
will be announced the following week.
4.2 Direct Grant Award Payments:
4.2.1 Payments will be paid upon proof of
completion of the project and submission of invoices
supporting the funds expenditures. All requirements and
criteria of the program need to be met.
5.0 Eligibility
5.1 Not-for-profit tourism related businesses and
organizations.
5.2 Submitting organizations must submit proof of notfor-
profit status.
5.3 Only in-state tourism entities may apply
5.4 The organization's main product or program must
fit into the Industry's 5-Year Strategic Plan.
6.0 Application Requirements
6.1 Incomplete applications will not be considered (see
application for required attachments).
6.2 More than one application may be submitted per
organization.
6.3 All completed applications must sent to the
Delaware Tourism Office at 99 Kings Highway, Dover, DE
19901. Applications will not be accepted after the deadline
or at any other location.
6.4 It is the responsibility of the applicant to ensure that
the application is complete and received prior to deadline.
7.0 Grant Awards
7.1 Awards will be granted based on the merit of the
program being submitted. The purpose of the Direct Grant
Program is to attract new visitors and overnight business to
Delaware. The goal of the Direct Grant Program is to
increase the visibility of Delaware's tourism product. Only
not-for-profit entities are able to submit direct grant
proposals. All projects must tie in to the State Marketing
Plan. There will be no attempt to balance the awards
geographically, politically, or categorically.
8.0 Payments
8.1 Final payments may be requested after all project
completion requirements have been met and proper
documentation is submitted.
8.2 All invoices must be submitted to the Delaware
Tourism Office.
9.0 Use of Funds
9.1 Funds may not be used for:
9.1.1 General operating expenses including staff
salaries.
9.1.2 Administrative expenses, including any
commissions, fees or other expenses for administration of
the project.
9.1.3 Food and beverages
9.1.4 Equipment purchase and rental
9.1.5 Business directories
9.1.6 Postage and office supplies
9.1.7 Meeting expenses
9.1.8 Anything contrary to state law.
9.1.9 Other restrictions on the use of the funds may
be added at the time of the award based on the project
definition.
10.0 Project Completion Requirements
10.1 At a minimum the following must be submitted for
final payment:
10.1.1 Completed project report
10.1.2 Invoices must be submitted.
10.1.3 Marketing plan
10.1.4 Delaware Tourism Office name and logo
must appear on all created collateral
10.2 Other project completion requirements may be
added at the time of the award based on project definition.
11.0 Applicant Information
11.1 Applicants shall fill out the Direct Grant program
Applicant Information Sheet as prescribed by the Delaware
Tourism Office. The Applicant Information is available at 99
Kings Highway, Dover, DE 19901.§
DELAWARE ECONOMIC DEVELOPMENT OFFICE
DELAWARE TOURISM OFFICE
Statutory Authority: Laws of Delaware
Volume 73, Chapter 74, Section 67
Matching Funds Program
NOTICE OF PUBLIC HEARING
In accordance with the procedures set forth in 29 Del. C.
Ch. 11, Subch. III, 29 Del. C. Ch 101 and 73 Delaware Laws
Ch. 74, Section 67 (June 28, 2001), the Director of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
PROPOSED REGULATIONS 819
Delaware Economic Development Office ("DEDO") (of
which the Delaware Tourism Office ("DTO") is a
subdivision), in cooperation with the Tourism Advisory
Board (the "Board"), is proposing to adopt a regulation for
the administration of the matching grants program set forth
in 73 Delaware Laws Ch. 74, Section 67 (the "Matching
Grants Program") and for the application and award
procedure of the Matching Grants Program. The regulation
describes the Matching Grants Program, the matching funds
requirement of the Matching Grants Program, the eligibility
criteria and application procedure for awards under the
Matching Grants Program, the procedure for making of
awards and the uses to which Matching Grants Program
awards may not be put.
The Director of the Delaware Economic Development
Office, or an employee of the Delaware Economic
Development Office designated by the Director, and the
Board will hold a public hearing at which members of the
public may present comments on the proposed regulation on
November 9, 2001in the conference room of the offices of
the Delaware Economic Development Office at 99 Kings
Highway, Dover, DE, 19901 at 9:00 a.m. Additionally,
members of the public may present written comments on the
proposed regulation by submitting such written comments to
Ms. Julie Miro Wenger at the address of the Delaware
Economic Development Office set forth above. Written
comments must be received on or before November 9, 2001
at 9:00 a.m. Members of the public may receive a copy of
the proposed amendments to the regulation at no charge by
United States Mail by writing or calling Ms. Julie Miro
Wenger, Delaware Tourism Office of the Delaware
Economic Development Office, 99 Kings Highway, Dover,
DE, 19901-7305, phone (302) 739-4271.
1.0 Program Description
1.1 The purpose of the program is to attract visitors to
Delaware and to bring in overnight business to Delaware.
The goal of the Matching Funds Program is to increase the
visibility of Delaware's tourism product. Only not-for-profit
entities are able to submit matching funds proposals.
However, for profit businesses are allowed to participate in
partnership programs submitted by notfor-profits. All
packaging programs must include at least one hotel property
in order to promote overnight business to Delaware. All
projects must tie in to the State Marketing Plan.
1.2 The total amount available for matching grants is
designated by the general assembly in the operating budget.
It is expected that there will be a number of matching funds
programs awarded. Four or more properties working
together on a package will be able to receive a match of 2 to
1 instead of 1 to 1.
1.3 To be eligible, the applicant organization must have
a marketing plan with a clear vision as to how to attract
outofstate visitors.
1.4 The grants are to be used for the marketing of
tourism organizations, products, programs or areas.
1.5 Use of Funds:
1.5.1. It is expected that the funds will be used to
market the petitioning tourism organization or partnership of
organizations to attract new visitors to the state of Delaware:
1.5.2 The same organization may apply for more
than one Matching Fund program.
1.5.3 The purpose is to attract visitors to Delaware
and to bring in overnight business. Therefore, advertising
applicants must show a plan to advertise out of state.
2.0 Matching Funds:
2.1 Matching funds are required. The organization's
matching fund commitment is part of the application. The
organization's matching fund commitment must be met for
full payment of the grant. No other state grant funds may be
used for the organization's match.
3.0 Award Determination:
3.1 The organizations receiving awards will be selected
by a panel composed of the following:
3.1.1 DelawareTourism Office
3.1.2 Governor's Tourism Advisory Board
4.0 Criteria:
4.1 Organizations must demonstrate that their vision
supports the Delaware tourism industry's FiveYear Strategic
Plan and Marketing Plan. Awards will be based on the
organization's ability to communicate a vision that the panel
believes is possible and has the potential to increase tourism.
There will be no attempt to balance the awards
geographically, politically, or categorically.
5.0 Award Process
5.1 All complete applications that are received by the
deadline will be forwarded to the awards panel for rating.
The applications receiving the highest average rating will be
scheduled to make an oral presentation to the panel. The
awards will be announced a week later.
5.2 Grant Award Payments:
5.2.1 The payments will be paid upon proof of
completion of the project and submission of invoices
supporting the funds expenditures. To receive final
payment, all organizations will need to complete all project
completion requirements.
6.0 Eligibility
6.1 Notforprofit tourism related businesses and
organizations.
6.2 Submitting organizations must submit proof of notfor-
profit status.
6.3 For profit tourism businesses may be part of
programs submitted for grant programs ,however, they must
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
820 PROPOSED REGULATIONS
be a partner of a not-for-profit applicant organization.
6.4 Only instate tourism entities may apply.
6.5 The organization's main product or program must
be intended to attract new visitors and overnight business.
6.6 Partnerships between four or more tourism entities
are encouraged. Partnerships will receive a 2 to 1 dollar
match instead of a 1 to 1 dollar match.
7.0 Application Requirements
7.1 Incomplete applications will not be considered (see
application for required attachments).
7.2 More than one application may be submitted per
organization.
7.3 All completed applications must be received at the
Delaware Tourism Office at 99 Kings Highway, Dover, DE
19901. Applications will not be accepted after the deadline
or at any other location. Applications may not be submitted
electronically, via fax or email.
7.4 It is the responsibility of the applicant to ensure that
the application is complete and received prior to deadline.
7.5 If the creation of a package is a proposal for
Matching Funds the package must include a hotel property.
7.6 All invoices must be received at the Delaware
Tourism Office, 99 Kings Highway, Dover DE 19901.
8.0 Matching Funds
8.1 All funds must be raised and collected prior to
payment of the award.
8.2 No other state grant funds may be used for the
organization's match.
8.3 Staff salaries, volunteer labor and inkind donations
do not qualify as a match.
9.0 Grant Awards
9.1 Awards will be granted based on the merit of the
program being submitted. The purpose of the Matching
Funds Program is to attract new visitors and overnight
business to Delaware. The goal of the Matching Funds
Program is to increase the visibility of Delaware's tourism
product. Four or more properties working together
including at least one hotel, through a package will be able to
receive a match of 2 to 1 instead of 1 to 1. Only not for
profit entities are able to submit matching funds proposals.
However, for profit businesses are allowed to participate in
partnership programs submitted by nonprofits. All package
programs must include at least one hotel property in order to
promote overnight business to Delaware. All projects must
tie in to the State Marketing Plan. There will be no attempt to
balance the awards geographically, politically, or
categorically.
10.0 Payments
10.1 Final payments may be requested after all project
completion requirements have been met and proper
documentation is submitted.
10.2 All invoices must be sent to the Delaware Tourism
Office.
11.0 Use of Funds
11.1 Funds may not be used for:
11.1.1 General operating expenses including staff
salaries.
11.1.2 Administrative expenses, including any
commissions, fees or other expenses for administration of
the project.
11.1.3 Food and beverages
11.1.4 Equipment purchase and rental
11.1.5 Business directories
11.1.6 Postage and office supplies
11.1.7 Meeting expenses
11.1.8 Anything contrary to state law.
11.1.9 Other restrictions on the use of the funds
may be added at the time of the award based on the project
definition.
12.0 Project Completion Requirements
12.1 At a minimum the following must be submitted for
final payment:
12.1.1 Completed project report
12.1.2 Invoices
12.1.3 Marketing plan
12.1.4 Delaware Tourism Office name and logo
must appear on all created collateral.
12.2 Other project completion requirements may be
added at the time of the award based on project definition.
13.0 Applicant Information
13.1 Applicants shall fill out the Matching Funds
program Applicant Information Sheet as prescribed by the
Delaware Tourism Office. The Applicant Information is
available at: 99 Kings Highway, Dover, DE 19901.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 821
Symbol Key
Roman 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
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF LANDSCAPE ARCHITECTURE
24 DE Admin. Code 200
Statutory Authority: 24 Delaware Code,
Section 205(a)(1) (24 Del. C. § 205(a)(1))
Order Adopting Rules and Regulations
AND NOW, this 7th day of September, 2001, in
accordance with 29 Del. C. § 10118 and for the reasons
stated hereinafter, the Board of Landscape Architecture of
the State of Delaware (hereinafter "the Board") enters this
Order adopting amendments to Rules and Regulations.
I. Nature of the Proceedings
Pursuant to the Board's authority under 24 Del. C. §
205(a)(1), the Board proposed to revise its existing Rules
and Regulations to implement and clarify the requirement
that applicants seeking licensure pursuant to 24 Del. C. §
206(a)(1) graduate from an approved or accredited college or
university. The proposed revisions to the Rules and
Regulations further clarified that applicants seeking
licensure pursuant to 24 Del. C. § 206(a)(3) take their
courses in landscape architecture from an approved or
accredited college or university. Notice of the public hearing
to consider the proposed amendments to the Rules and
Regulations was published in the Delaware Register of
Regulations dated May 1, 2001, and two Delaware
newspapers of general circulation, in accordance with 29
Del. C. § 10115. The public hearing was held on June 26,
2001 at 9:00 a.m. in Dover, Delaware, as duly noticed, and at
which a quorum of the Board was present. The Board
deliberated and voted on the proposed revisions to the Rules
and Regulations. This is the Board's Decision and Order
ADOPTING the amendments to the Rules and Regulations
as proposed.
II. Evidence and Information Submitted
The Board received no written comments in response to
the notice of intention to adopt the proposed revisions to the
Rules and Regulations. At the June 26, 2001 hearing, the
Board received no comment from the public regarding the
proposed revisions.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Rules and Regulations and offered an
adequate opportunity to provide the Board with comments.
2. The proposed amendments to the Rules and
Regulations are necessary to implement and clarify the
requirement that applicants seeking licensure pursuant to
Section 206(a)(1) of the Board's statutes graduate from an
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
822 FINAL REGULATIONS
approved or accredited college or university and that
applicants seeking licensure pursuant to Section 206(a)(3) of
the Board's statutes take their courses in landscape
architecture from an approved or accredited college or
university. The proposed amendments will assist licensees
in understanding the requirements for licensure under these
two sections of 24 Delaware Code, Chapter 2.
3. The Board concludes that it has statutory authority to
promulgate rules and regulations pursuant to 24 Del. C. §§
205(a)(1) that implement or clarify the Board's statutes.
4. For the foregoing reasons, the Board concludes that it
is necessary to adopt amendments to its Rules and
Regulations, and that such amendments are in furtherance of
its objectives set forth in 24 Del. C. § 200.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Board, IT IS ORDERED, that the Rules and
Regulations are approved and adopted in the exact text as set
forth in Exhibit A attached hereto. The effective date of this
Order is ten (10) days from the date of its publication in the
Delaware Register of Regulations pursuant to 29 Del. C. §
10118(g).
By Order Of The Board Of Landscape Architecture
(As Authenticated By A Quorum Of The Board)
Paul DeVilbiss, RLA, President, Professional Member
Lorene Athey, RLA, Secretary, Professional Member
Marlene A. Bradley, Treasurer, Public Member
Abby L. Betts, Public Member
Denise Husband, RLA, Professional Member
1.0 Filing of Applications for Written Examination
2.0 Filing of Applications for Reciprocity
3.0 Filing of Applications for Certificate
of Authorization
4.0 Licenses
5.0 Seal
6.0 Renewal of Licenses
7.0 Continuing Education as a Condition of
Biennial Renewal
8.0 Inactive Status
9.0 Disciplinary Proceedings and Hearings
10.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
1.0 Filing of Applications for Written Examination
1.1 Persons seeking licensure pursuant to 24 Del.C. §
206 shall submit an application for written examination on a
form prescribed by the Board to the Board's office at the
Division of Professional Regulation (the "Division") along
with the application fee established by the Division.
Applicants for written examination shall be filed in such
office of the Board no later than twelve (12) weeks prior to
the opening date of the examination.
1.2 Applicants seeking licensure pursuant to 24 Del. C.
§ 206(a)(1) shall have graduated from a school or college of
landscape architecture approved or accredited by the
national Council of Landscape Architectural Registration
Boards, the American Society of Landscape Architects
Landscape Architectural Accreditation Board, or other
legitimate national association of landscape architects.
1.3 For purposes of 24 Del. C. § 206(a)(3), courses in
landscape architecture shall have been taken at a school or
college of landscape architecture approved or accredited by
the national Council of Landscape Architectural Registration
Boards, the American Society of Landscape Architects
Landscape Architectural Accreditation Board, or other
legitimate national association of landscape architects.
1.2 1.4 Each applicant must submit documentary
evidence, as more fully described on the application form, to
show the Board that the applicant is clearly eligible to sit for
the examination under 24 Del.C. § 206.
1.3 1.5 The Board shall not consider an application for
written examination until all items described in paragraphs
1.1 and 1.2 of this Rule have been submitted to the Board's
office.
1.4 1.6 The Board reserves the right to retain as a
permanent part of the application any or all documents
submitted.
1.5 1.7 The examination shall be the Council of
Landscape Architectural Registration Board's ("CLARB")
current uniform national examination. CLARB establishes a
passing score for each uniform national examination.
Statutory Authority: 24 Del.C. §§206, 207
2.0 Filing of Applications for Reciprocity
2.1 Persons seeking licensure pursuant to 24 Del.C. §
208, shall submit payment of the fee established by the
Division and an application on a form prescribed by the
Board which shall include proof of licensure and good
standing in each state or territory of current licensure, and
on what basis the license was obtained therein, including the
date licensure was granted. Letters of good standing must
also be provided for each state or jurisdiction in which the
applicant was ever previously licensed.
2.2 The Board shall not consider an application for
licensure by reciprocity until all items described in 24 Del.C.
§ 208 and paragraph 2.1 of this Rule have been submitted to
the Board's office.
2.3 A passing exam score for purposes of reciprocity
shall be the passing score set by CLARB, or the passing
score accepted by the Delaware Board, for the year in which
the exam was taken.
Statutory Authority: 24 Del.C. §208.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 823
3.0 Filing of Applications for Certificate of
Authorization
Corporations or partnerships seeking a certificate of
authorization pursuant to 24 Del. C. § 212 shall submit an
application on a form prescribed by the Board. Such
application shall include the (a) names and addresses of all
officers and members of the corporation, or officers and
partners of the partnership, and (b) the name of a corporate
officer in the case of a corporation, or the name of a partner
in the case of a partnership, who is licensed to practice
landscape architecture in this State and who shall be
responsible for services in the practice of landscape
architecture on behalf of the corporation or partnership.
Statutory Authority: 24 Del.C. §212.
4.0 Licenses
Only one license shall be issued to a licensed landscape
architect, except for a duplicate issued to replace a lost or
destroyed license.
5.0 Seal
5.1 Technical Requirements
5.1.1 For the purpose of signing and sealing
drawings, specifications, contract documents, plans, reports
and other documents (hereinafter collectively referred to as
"drawings"), each landscape architect shall provide him or
herself with an individual seal of design and size as approved
by the Board to be used as hereinafter directed on documents
prepared by him or her or under his/her direct supervision for
use in the State of Delaware.
5.1.2 The application of the seal impression or
rubber stamp to the first sheet of the bound sheets of the
drawings (with index of drawings included), title page of
specifications, and other drawings and contract documents
shall constitute the licensed landscape architect's stamp.
5.1.3 The seal to be used by a licensee of the Board
shall be of the embossing type or a rubber stamp, and have
two (2) concentric circles. The outside circle measures
across the center 1 13/16 inches. The inner circle shall
contain only the words "NO." and "State of Delaware." At
the bottom the words "Registered Landscape Architect"
reading counterclockwise, and at the top the name of the
licensee.
5.1.4 An impression of the seal is to be submitted
to the Board to be included in the licensee's records.
5.2 Use of the Seal
5.2.1 A landscape architect shall not sign or seal
drawings unless they were prepared by him/her or under his/
her direct supervision.
5.2.2 "Supervision" for purposes of signing and/or
sealing drawings shall mean direct supervision, involving
responsible control over and detailed professional
knowledge of the contents of the drawings throughout their
preparation. Reviewing, or reviewing and correcting,
drawings after they have been prepared by others does not
constitute the exercise of responsible control because the
reviewer has neither control over, nor detailed professional
knowledge of, the content of such drawings throughout their
preparation.
5.2.3 The seal appearing on any drawings shall be
prima facie evidence that said drawings were prepared by or
under the direct supervision of the individual who signed
and/or sealed the drawings. Signing or sealing of drawings
prepared by another shall be a representation by the
registered landscape architect that he/she has detailed
professional knowledge of and vouches for the contents of
the drawings.
Statutory Authority: 24 Del.C. §205(a)(1); 212(a).
6.0 Renewal of Licenses
6.1 Each application for license renewal or request for
inactive status shall be submitted on or before the expiration
date of the current licensing period. However, a practitioner
may still renew his or her license within 60 days following
the license renewal date upon payment of a late fee set by the
Division. Upon the expiration of 60 days following the
license renewal date an unrenewed license shall be deemed
lapsed and the practitioner must reapply pursuant to the
terms of 24 Del.C. §210(b).
6.2 It shall be the responsibility of all licensees to keep
the Board and the Division informed of any change in name,
home or business address.
Statutory Authority: 24 Del.C. §210.
7.0 Continuing Education as a Condition of Biennial
Renewal
7.1 General Statement: Each licensee shall be required
to meet the continuing education requirements of these
guidelines for professional development as a condition for
license renewal. Continuing education obtained by a
licensee should maintain, improve or expand skills and
knowledge obtained prior to initial licensure, or develop new
and relevant skills and knowledge.
7.1.1 In order for a licensee to qualify for license
renewal as a landscape architect in Delaware, the licensee
must have completed 20 hours of continuing education
acceptable to the Board within the previous two years, or be
granted an extension by the Board for reasons of hardship.
Such continuing education shall be obtained by active
participation in courses, seminars, sessions, programs or
self-directed activities approved by the Board.
7.1.1.1 For purposes of seminar or classroom
continuing education, one hour of acceptable continuing
education shall mean 60 minutes of instruction.
7.1.2 To be acceptable for credit toward this
requirement, all courses, seminars, sessions, programs or
self-directed activities shall be submitted to the Board. The
Board shall recommend any course, seminar, session or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
824 FINAL REGULATIONS
program for continuing education credit that meets the
criteria in sub-paragraph 7.1.2.1 below.
7.1.2.1 Each course, seminar, session,
program, or self-directed activity to be recommended for
approval by the Board shall have a direct relationship to the
practice of landscape architecture as defined in the Delaware
Code and contain elements which will assist licensees to
provide for the health, safety and welfare of the citizens of
Delaware served by Delaware licensed landscape architects.
7.1.2.2 The Board shall meet at least once
during each calendar quarter of the year and act on each
course, seminar, session or program properly submitted for
its review. Each program, or portion thereof, shall be either
recommended for approval, recommended for disapproval or
deferred for lack of information. If deferred or disapproved,
the licensee will be notified and may be granted a period of
time in which to correct deficiencies. The Board may also
seek verification of information submitted by the licensee.
7.1.3 Continuing Education courses offered or
sponsored by the following organizations will be
automatically deemed to qualify for continuing education
credit:
7.1.3.1 American Society of Landscape
Architects (National and local/chapter levels)
7.1.3.2 Council of Landscape Architectural
Registration
7.1.4 Erroneous or false information attested to by
the licensee shall constitute grounds for denial of license
renewal.
7.2 Effective Date: The Board shall commence
requiring continuing education as a condition of renewal of a
license for the license year commencing on February 1,
1995. The licensee shall be required to successfully
complete twenty (20) hours of continuing education within
the previous two calendar years (example: February 1, 1993
through January 31, 1995).
7.3 For licensing periods beginning February 1, 1999
and thereafter, requests for approval of continuing education
activity, along with the required supporting documentation,
shall be submitted to the Board on or before November 1 of
the year preceding the biennial renewal date of the licenses.
A license shall not be renewed until the Board has approved
twenty (20) hours of continuing education classes as
provided in Rule 7.1 or has granted an extension of time for
reasons of hardship.
7.4 Reporting: The licensee shall submit the following
documentation to the Board for each continuing education
activity completed:
A completed Continuing Education Reporting
Form
A syllabus, agenda, itinerary or brochure published
by the sponsor of the activity
A document showing proof of attendance (i.e.
certificate, a signed letter from the sponsor attesting to
attendance, report of passing test score).
7.4.1 Each licensee must retain copies of Board
approved continuing education reporting forms and all
supporting materials documenting proof of continuing
education compliance. Licensees will be required to
complete a continuing education log form prior to license
renewal and to submit supporting materials upon request.
7.5 Hardship: The Board will consider any reasonable
special request from individual licensees for continuing
education credits and procedures. The Board may, in
individual cases involving physical disability, illness, or
extenuating circumstances, grant an extension, not to exceed
two (2) years, of time within which continuing education
requirements must be completed. In cases of physical
disability or illness, the Board reserves the right to require a
letter from a physician attesting to the licensee's physical
condition. No extension of time shall be granted unless the
licensee submits a written request to the Board prior to the
expiration of the license.
7.6 Self-directed Activities: For renewal periods
beginning February 1, 2001, the following rules regarding
self-directed activity shall apply. The Board will have the
authority to allow self-directed activities to fulfill the
continuing education requirements of the licensees.
However, these activities must result in a book draft,
published article, delivered paper, workshop, symposium, or
public address within the two (2) year reporting period.
Self-directed activities must advance the practitioner's
knowledge of the field and be beyond the practitioner's
normal work duties. Instructors will not be granted CE
credit for studies customarily associated with their usual
university or college instruction teaching loads.
7.6.1 The Board may, upon request, review and
approve credit for self-directed activities in a given biennial
licensing period. A licensee must obtain pre-approval of the
Board prior to undertaking the self-directed activity in order
to assure continuing education credit for the activity. Any
self-directed activity submitted for approval must include a
written proposal outlining the scope of the activity, the
number of continuing education hours requested, the
anticipated completion date(s), the role of the licensee in the
case of multiple participants and whether any part of the selfdirected
activity has ever been previously approved or
submitted for credit by the same licensee. Determination of
credit will be made by the Board upon review of the
completed final project.
7.7 Exemptions: New licensees by way of uniform
national examination or by way of reciprocity shall be
exempt from the continuing education requirements set forth
herein for their first renewal period.
Statutory Authority: 24 Del.C. §205(12).
8.0 Inactive Status
8.1 A licensee may, upon written request to the Board,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 825
place his/her license on inactive status.
8.2 A licensee who has been granted inactive status and
who wishes to re-enter the practice of landscape architecture,
shall submit a written request to the Board along with a prorated
renewal fee and proof of completion of twenty (20)
hours of continuing education during the period of inactive
status.
8.3 Licensees on inactive status shall renew their
inactive status by notification to the Division of Professional
Regulation at the time of biennial license renewal.
Statutory Authority: 24 Del.C. §210(c).
9.0 Disciplinary Proceedings and Hearings
9.1 Disciplinary proceedings against any licensee may
be initiated by an aggrieved person by submitting a
complaint in writing to the Director of the Division of
Professional Regulation as specified in 29 Del.C..
§8807(h)(1)-(3).
9.1.1 A copy of the written complaint shall be
forwarded to the administrative assistant for the Board. At
the next regularly scheduled Board meeting, a contact person
for the Board shall be appointed and a copy of the written
complaint given to that person.
9.1.2 The contact person appointed by the Board
shall maintain strict confidentiality with respect to the
contents of the complaint and shall not discuss the matter
with other Board members or with the public. The contact
person shall maintain contact with the investigator or deputy
attorney general assigned to the case regarding the progress
of the investigation.
9.1.3 In the instance when the case is being closed
by the Division, the contact person shall report the facts and
conclusions to the Board without revealing the identities of
the parties involved. No vote of the Board is necessary to
close the case.
9.1.4 If a hearing before the Board has been
requested by the Deputy Attorney General, a copy of these
Rules and Regulations shall be provided to the respondent
upon request. The notice of hearing shall fully comply with
29 Del.C.. Sec. 10122 and 10131 pertaining to the
requirements of the notice of proceedings. All notices shall
be sent to the respondent's address as reflected in the Board's
records.
9.1.5 At any disciplinary hearing, the respondent
shall have the right to appear in person or be represented by
counsel, or both. The Respondent shall have the right to
produce evidence and witnesses on his or her behalf and to
cross examine witnesses. The Respondent shall be entitled to
the issuance of subpoenas to compel the attendance of
witnesses and the production of documents on his or her
behalf.
9.1.6 No less than 10 days prior to the date set for a
disciplinary hearing, the Department of Justice and the
respondent shall submit to the Board and to each other, a list
of the witnesses they intend to call at the hearing. Witnesses
not listed shall be permitted to testify only upon a showing of
reasonable cause for such omission.
9.1.7 If the respondent fails to appear at a
disciplinary hearing after receiving the notice required by 29
Del.C. §10122 and 10131, the Board may proceed to hear
and determine the validity of the charges against the
respondent.
Statutory authority: 24 Del.C. §§213 and 215; 29 Del.C.
§§10111, 10122 and 10131
9.2 Hearing procedures
9.2.1 The Board may administer oaths, take
testimony, hear proofs and receive exhibits into evidence at
any hearing. All testimony at any hearing shall be under
oath.
9.2.2 Strict rules of evidence shall not apply. All
evidence having probative value commonly accepted by
reasonably prudent people in the conduct of their affairs
shall be admitted.
9.2.3 An attorney representing a party in a hearing
or matter before the Board shall notify the Board of the
representation in writing as soon as practicable.
9.2.4 Requests for postponements of any matter
scheduled before the Board shall be submitted to the Board's
office in writing no less than three (3) days before the date
scheduled for the hearing. Absent a showing of exceptional
hardship, there shall be a maximum of one postponement
allowed to each party to any hearing.
9.2.5 A complaint shall be deemed to "have merit"
and the Board may impose disciplinary sanctions against the
licensee if a majority of the members of the Board find, by a
preponderance of the evidence, that the respondent has
committed the act(s) of which he or she is accused and that
those act(s) constitute grounds for discipline pursuant to 24
Del.C. §213.
Statutory authority: 24 Del.C. §§205(7)(8); 213, 214,
215.
10.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
10.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
10.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
826 FINAL REGULATIONS
10.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
10.4 A regulated professional with chemical
dependency or impairment due to addiction to drugs or
alcohol may enter into the Voluntary Treatment Option and
continue to practice, subject to any limitations on practice
the participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
10.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
10.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
10.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
10.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
10.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
10.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary Treatment
Option.
10.6.5 Agreement by the regulated professional
that failure to satisfactorily progress in such treatment
program shall be reported to the participating Board's
chairperson or his/her designate or designates or to the
Director of the Division of Professional Regulation or his/
her designate by the treating professional who shall be
immune from any liability for such reporting made in good
faith and without malice.
10.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
10.7 The regulated professional's records of
participation in the Voluntary Treatment Option will not
reflect disciplinary action and shall not be considered public
records open to public inspection. However, the participating
Board may consider such records in setting a disciplinary
sanction in any future matter in which the regulated
professional's chemical dependency or impairment is an
issue.
10.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
10.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 827
10.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
10.11 Any person who reports pursuant to this section
in good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
10.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF MASSAGE & BODYWORK
24 DE Admin. Code 5300
Statutory Authority: 24 Delaware Code,
Section 5306(1) (24 Del.C. 5306(1))
Order Adopting Rules and Regulations
AND NOW, this 6th day of September, 2001, in
accordance with 29 Del. C. § 10118 and for the reasons
stated hereinafter, the Board of Massage and Bodywork of
the State of Delaware (hereinafter "the Board") enters this
Order adopting amendments to Rules and Regulations.
I. Nature of the Proceedings
Pursuant to the Board's authority under 24 Del. C. §
5306(1) and 5312(c), the Board proposed to revise its
existing Rules and Regulations to increase to one year the
period of time within which a licensed massage and
bodywork therapist or a certified massage technician may
still renew such license or certificate notwithstanding the
fact that such licensee or certificate holder has failed to
renew on or before the renewal date. Notice of the public
hearing to consider the proposed amendments to the Rules
and Regulations was published in the Delaware Register of
Regulations dated July 1, 2001, and two Delaware
newspapers of general circulation, in accordance with 29
Del. C. § 10115. The public hearing was held on August 2,
2001 at 1:30 p.m. in Dover, Delaware, as duly noticed, and at
which a quorum of the Board was present. The Board
deliberated and voted on the proposed revisions to the Rules
and Regulations. This is the Board's Decision and Order
ADOPTING the amendments to the Rules and Regulations
as proposed.
II. Evidence and Information Submitted
The Board received no written comments in response to
the notice of intention to adopt the proposed revisions to the
Rules and Regulations. At the August 2, 2001 hearing,
although members of the public were present, the Board
received no public comment regarding the proposed
changes.
III. Findings of Fact and Conclusions
1. The public was given notice of the proposed
amendments to the Rules and Regulations and offered an
adequate opportunity to provide the Board with comments.
2. The proposed amendments to the Rules and
Regulations are necessary to increase the period of time
within which a licensed massage and bodywork therapist or
a certified massage technician may still renew their license
or certificate even though they failed to renew on or before
the renewal date, and to clarify that documentation of
compliance with the continuing education requirements shall
be submitted. The proposed amendments will assist
licensees and certificate holders in understanding late
renewal of a license or certificate.
3. The Board concludes that it has statutory authority to
promulgate rules and regulations pursuant to 24 Del. C. §
5306(1). The Board further concludes that it has statutory
authority to determine by rule and regulation the period of
time within which a licensed massage and bodywork
therapist or a certified massage technician may still renew
such license or certificate notwithstanding the fact that such
licensee or certificate holder has failed to renew on or before
the renewal date under 24 Del. C. § 5312(c).
4. For the foregoing reasons, the Board concludes that it
is necessary to adopt amendments to its Rules and
Regulations, and that such amendments are in furtherance of
its objectives set forth in 24 Del. C. Chapter 53.
IV. Decision and Order to Adopt Amendments
NOW, THEREFORE, by unanimous vote of a quorum
of the Board, IT IS ORDERED, that the Rules and
Regulations are approved and adopted in the exact text as set
forth in Exhibit A attached hereto. The effective date of this
Order is ten (10) days from the date of its publication in the
Delaware Register of Regulations pursuant to 29 Del. C. §
10118(g).
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
828 FINAL REGULATIONS
By Order of the Board Massage and Bodywork
(As authenticated by a quorum of the Board)
Allan Angel, President, Public Member
Phyllis E. Mikell, Vice President, Professional Member
Daniel Stokes, Secretary, Professional Member
Carla Arcaro, Professional Member
Patricia A. Beetschen, Professional Member
Vivian L. Cebrick, Public Member
Katherine J. Marshall, Public Member
1.0 Definitions
2.0 Filing of Application for Licensure as
Massage/Bodywork Therapist
3.0 Examination
4.0 Application for Certification as Massage Technician.
5.0 Expired License or Certificate
6.0 Continuing Education
7.0 Scope of Practice
8.0 Voluntary Treatment Option for Chemically Dependent
or Impaired Professionals
1.0 Definitions and General Definitions
1.1 The term "500 hours of supervised in-class study"
as referenced in 24 Del.C. §5308(a)(1) shall mean that an
instructor has controlled and reviewed the applicant's
education on the premises of a school or approved program
of massage or bodywork therapy, and can document that the
applicant has successfully completed a curriculum that is
substantially the same as referenced in 24 Del.C. §
5308(a)(1) and which includes hands-on technique and
contraindications as they relate to massage and bodywork.
More than one school or approved program of massage or
bodywork therapy may be attended in order to accumulate
the total 500 hour requirement.
1.2 The term a "100-hour course of supervised in-class
study of massage" as referenced in 24 Del.C. §5309(a)(1)
shall mean that an instructor has controlled and reviewed the
applicant's education on the premises of a school or
approved program of massage or bodywork therapy, and can
document that the applicant has successfully completed a
100 hour course which includes hands-on technique and
theory, and anatomy, physiology, and contraindications as
they relate to massage and bodywork.
1.2.1 The 100 hour course must be a unified
introductory training program in massage and bodywork,
including training in the subjects set forth in Rule 1.2. The
entire 100 hour course must be taken at one school or
approved program. The Board may, upon request, waive the
"single school" requirement for good cause or hardship, such
as the closure of a school.
4 DE Reg. 1245 (2/1/01)
1.3 The "practice of massage and bodywork" includes,
but is not limited to, the following modalities:
Acupressure
Chair Massage
Craniosacral Therapy
Deep Tissue Massage Therapy
Healing Touch
Joint Mobilization
Lymph Drainage Therapy
Manual Lymphatic Drainage
Massage Therapy
Myofascial Release Therapy
Neuromuscular Therapy
Orthobionomy
Process Acupressure
Reflexology
Rolfing
Shiatsu
Swedish Massage Therapy
Trager
Visceral Manipulation
1.4 The practice of the following modalities does not
constitute the "practice of massage and bodywork":
Alexander Technique
Aroma therapy
Feldenkrais
Hellerwork
Polarity Therapy
Reiki
Shamanic Techniques
Therapeutic Touch
3 DE Reg. 1516 (5/1/00)
2.0 Filing of Application for Licensure as Massage/
Bodywork Therapist
2.1 A person seeking licensure as a massage/bodywork
therapist must submit a completed application on a form
prescribed by the Board to the Board office at the Division of
Professional Regulation, Dover, Delaware. Each application
must be accompanied by (1) a copy of a current certificate
from a State certified cardiopulmonary resuscitation
program as required by 24 Del.C. §5308(3); and (2) payment
of the application fee established by the Division of
Professional Regulation pursuant to 24 Del.C. §5311.
2.2 In addition to the application and materials
described in 2.1 of this Rule, an applicant for licensure as a
massage/bodywork therapist shall have (1) each school or
approved program of massage or bodywork where the
applicant completed the hours of study required by 24 Del.C.
§5308(a)(1) submit to the Board an official transcript or
official documentation showing dates and total hours
attended and a description of the curriculum completed; and
(2) Assessment Systems, Incorporated or its predecessor,
submit to the Board verification of the applicant's score on
the written examination described in Rule 3.0 herein.
2.3 The Board shall not consider an application for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 829
licensure as a massage/bodywork therapist until all items
specified in 2.1 and 2.2 of this Rule are submitted to the
Board's office.
2.3.1 The Board may, in its discretion, approve
applications contingent on receipt of necessary
documentation. If the required documentation is not
received within 120 days from the date when the application
is first reviewed by the Board, the Board will propose to
deny the application.
2.3.2 If an application is complete in terms of
required documents, but the candidate has not responded to a
Board request for further information, explanation or
clarification within 120 days of the Board's request, the
Board will vote on the application as it stands.
2.4 Renewal. Applicants for renewal of a massage/
bodywork therapist license shall submit a completed renewal
form, renewal fee, proof of continuing education pursuant to
Rule 6.0 and a copy of a current certificate from a State
certified cardiopulmonary resuscitation program. License
holders shall be required to maintain current CPR
certification throughout the biennial licensure period.
4 DE Reg. 1245 (2/1/01)
3.0 Examination
The Board designates the National Certification
Examination administered by the National Certification
Board for Therapeutic Massage and Bodywork
("NCBTMB") as the written examination to be taken by all
persons applying for licensure as a massage/bodywork
therapist. The Board will accept as a passing score on the
exam the passing score established by the NCBTMB.
4.0 Application for Certification as Massage Technician
4.1 A person seeking certification as a massage
technician must submit a completed application on a form
prescribed by the Board to the Board office at the Division of
Professional Regulation, Dover, Delaware. Each application
must be accompanied by (1) a copy of current certificate
from a State certified cardiopulmonary resuscitation
program as required by 24 Del.C. §5309(a)(2); and (2)
payment of the application fee established by the Division of
Professional Regulation pursuant to 24 Del.C. §5311.
4.2 In addition to the application and materials
described in 4.1 of this Rule, an applicant for certification as
a massage technician shall have the school or approved
program of massage or bodywork therapy where the
applicant completed the hours or study required by 24 Del.C.
§5309(a)(1) submit to the Board an official transcript or
official documentation showing dates and total hours
attended and a description of the curriculum completed.
4.3 The Board shall not consider an application for
certification as a massage technician until all items specified
in 4.1 and 4.2 of this Rule are submitted to the Board's
office.
3 DE Reg. 1516 (5/1/00)
4.3.1 The Board may, in its discretion, approve
applications contingent on receipt of necessary
documentation. If the required documentation is not
received within 120 days from the date when the application
is first reviewed by the Board, the Board will propose to
deny the application.
4.3.2 If an application is complete in terms of
required documents, but the candidate has not responded to a
Board request for further information, explanation or
clarification within 120 days of the Board's request, the
Board will vote on the application as it stands.
4.4 Renewal. Applicants for renewal of a massage
technician certificate shall submit a completed renewal form,
renewal fee, proof of continuing education pursuant to Rule
6.0 and a copy of a current certificate from a State certified
cardiopulmonary resuscitation program. Certificate holders
shall be required to maintain current CPR certification
throughout the biennial licensure period.
4 DE Reg. 1245 (2/1/01)
5.0 Expired License or Certificate
An expired license as a massage/bodywork therapist or
expired certificate as a massage technician may be reinstated
within ninety (90) days one (1) year after expiration upon
application and payment of the renewal fee plus a late fee as
set by the Division of Professional Regulation, and
submission of documentation demonstrating compliance
with the continuing education requirements.
6.0 Continuing Education
6.1 Hours required. For license or certification periods
beginning September 1, 2000 and thereafter, each massage/
bodywork therapist shall complete twenty-four (24) hours of
acceptable continuing education during each biennial
licensing period, except as otherwise provided in these Rules
and Regulations. Each massage technician shall complete
twelve (12) hours of acceptable continuing education during
each biennial licensing period, except as otherwise provided
in these Rules and Regulations. Completion of the required
continuing education is a condition of renewing a license or
certificate. Hours earned in a biennial licensing period in
excess of those required for renewal may not be credited
towards the hours required for renewal in any other licensing
period.
6.1.1 Calculation of Hours. For academic course
work, correspondence courses or seminar/workshop
instruction, one (1) hour of acceptable continuing education
shall mean 50 minutes of actual instruction. One (1)
academic semester hour shall be equivalent to fifteen (15)
continuing education hours; one (1) academic quarter hour
shall be equivalent to ten (10) continuing education hours.
4 DE Reg. 1245 (2/1/01)
6.1.2 If during a licensing period an individual
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
830 FINAL REGULATIONS
certified by the Board as a massage technician is issued a
license as a massage and bodywork therapist, the continuing
education requirement for that licensing period is as follows:
6.1.2.1 If the license is issued more than
twelve (12) months prior to the next renewal date, the
licensee shall complete twenty-four (24) hours of acceptable
continuing education during the licensing period.
6.1.2.2 If the license is issued less than twelve
(12) months prior to the next renewal date, the licensee shall
complete twelve (12) hours of acceptable continuing
education during the licensing period.
4 DE Reg. 1944 (6/1/01)
6.2 Proration. Candidates for renewal who were first
licensed or certified twelve (12) months or less before the
date of renewal are exempt from the continuing education
requirement for the period in which they were first licensed
or certified.
6.3 Content.
6.3.1 Except as provided in Rule 6.3.2, continuing
education hours must contribute to the professional
competency of the massage/bodywork therapist or massage
technician within modalities constituting the practice of
massage and bodywork. Continuing education hours must
maintain, improve or expand skills and knowledge obtained
prior to licensure or certification, or develop new and
relevant skills and knowledge.
6.3.2 No more than 25% of the continuing
education hours required in any licensing period may be
earned in any combination of the following areas and
methods:
6.3.2.1 Courses in modalities other than
massage/bodywork therapy
6.3.2.2 Personal growth and self-improvement
courses
6.3.2.3 Business and management courses
6.3.2.4 Courses taught by correspondence or
mail
6.3.2.5 Courses taught by video,
teleconferencing, video conferencing or computer
6.4 Board approval.
6.4.1 "Acceptable continuing education" shall
include any continuing education programs meeting the
requirements of Rule 6.3 and offered or approved by the
following organizations:
6.4.1.1 NCBTMB
6.4.1.2 American Massage Therapy
Association
6.4.1.3 Association of Oriental Bodywork
Therapists of America
6.4.1.4 Association of Bodywork and Massage
Practitioners
6.4.1.5 Delaware Nurses Association
6.4.2 Other continuing education programs or
providers may apply for pre-approval of continuing
education hours by submitting a written request to the Board
which includes the program agenda, syllabus and time spent
on each topic, the names and resumes of the presenters and
the number of hours for which approval is requested. The
Board reserves the right to approve less than the number of
hours requested.
6.4.3 Self-directed activity: The Board may, upon
request, review and approve credit for self-directed
activities, including, but not limited to, teaching, research,
preparation and/or presentation of professional papers and
articles. A licensee must obtain pre-approval of the Board
prior to undertaking the self-directed activity in order to
assure continuing education credit for the activity. Any selfdirected
activity submitted for approval must include a
written proposal outlining the scope of the activity, the
number of continuing education hours requested, the
anticipated completion date(s), the role of the licensee in the
case of multiple participants (e.g. research) and whether any
part of the self-directed activity has ever been previously
approved or submitted for credit by the same licensee.
6.4.4 The Board may award additional continuing
education credits, on an hour for hour basis, to continuing
education instructors for the first-time preparation and
presentation of an approved continuing education course for
other practitioners, to a maximum of 6 additional hours. (e.g.
an instructor presenting a 8 hour course for the first time may
receive up to 6 additional credit hours for preparation of the
course ). This provision remains subject to the limitations
of Rule 6.3.2.
6.5 Reporting.
6.5.1 For license or certification periods beginning
September 1, 2000 and thereafter, each candidate for renewal
shall submit a summary of their continuing education hours,
along with any supporting documentation requested by the
Board, to the Board on or before May 31 of the year the
license or certification expires. No license or certification
shall be renewed until the Board has approved the required
continuing education hours or granted an extension of time
for reasons of hardship. The Board's approval of a
candidate's continuing education hours in a particular
modality does not constitute approval of the candidate's
competence in, or practice of, that modality.
6.5.2 If a continuing education program has
already been approved by the Board, the candidate for
renewal must demonstrate, at the Board's request, the actual
completion of the continuing education hours by giving the
Board a letter, certificate or other acceptable proof of
attendance provided by the program sponsor.
6.5.3 If a continuing education program has not
already been approved by the Board, the candidate for
renewal must give the Board, at the Board's request, all of
the materials required in Rule 6.4.2 and demonstrate the
actual completion of the continuing education hours by
giving the Board a letter, certificate or other acceptable proof
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 831
of attendance provided by the program sponsor.
6.6 Hardship. A candidate for renewal may be granted
an extension of time in which to complete continuing
education hours upon a showing of unusual hardship.
"Hardship" may include, but is not limited to, disability,
illness, extended absence from the jurisdiction and
exceptional family responsibilities. Requests for hardship
consideration must be submitted to the Board in writing prior
to the end of the licensing or certification period for which it
is made. If the Board does not have sufficient time to
consider and approve a request for hardship extension prior
to the expiration of the license, the license will lapse upon
the expiration date and be reinstated upon completion of
continuing education pursuant to the hardship exception.
The licensee may not practice until reinstatement of the
license.
3 DE Reg. 1516 (5/1/00)
7.0 Scope of Practice
Licensed massage/bodywork therapist and certified
massage technicians shall perform only the massage and
bodywork activities and techniques for which they have been
trained as stated in their certificates, diplomas or transcripts
from the school or program of massage therapy where
trained.
8.0 Voluntary Treatment Option for Chemically
Dependent or Impaired Professionals
8.1 If the report is received by the chairperson of the
regulatory Board, that chairperson shall immediately notify
the Director of Professional Regulation or his/her designate
of the report. If the Director of Professional Regulation
receives the report, he/she shall immediately notify the
chairperson of the regulatory Board, or that chairperson's
designate or designates.
8.2 The chairperson of the regulatory Board or that
chairperson's designate or designates shall, within 7 days of
receipt of the report, contact the individual in question and
inform him/her in writing of the report, provide the
individual written information describing the Voluntary
Treatment Option, and give him/her the opportunity to enter
the Voluntary Treatment Option.
8.3 In order for the individual to participate in the
Voluntary Treatment Option, he/she shall agree to submit to
a voluntary drug and alcohol screening and evaluation at a
specified laboratory or health care facility. This initial
evaluation and screen shall take place within 30 days
following notification to the professional by the participating
Board chairperson or that chairperson's designate(s).
8.4 A regulated professional with chemical dependency
or impairment due to addiction to drugs or alcohol may enter
into the Voluntary Treatment Option and continue to
practice, subject to any limitations on practice the
participating Board chairperson or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional, deem necessary,
only if such action will not endanger the public health,
welfare or safety, and the regulated professional enters into
an agreement with the Director of Professional Regulation or
his/her designate and the chairperson of the participating
Board or that chairperson's designate for a treatment plan
and progresses satisfactorily in such treatment program and
complies with all terms of that agreement. Treatment
programs may be operated by professional Committees and
Associations or other similar professional groups with the
approval of the Director of Professional Regulation and the
chairperson of the participating Board.
8.5 Failure to cooperate fully with the participating
Board chairperson or that chairperson's designate or
designates or the Director of the Division of Professional
Regulation or his/her designate in regard to the Voluntary
Treatment Option or to comply with their requests for
evaluations and screens may disqualify the regulated
professional from the provisions of the Voluntary Treatment
Option, and the participating Board chairperson or that
chairperson's designate or designates shall cause to be
activated an immediate investigation and institution of
disciplinary proceedings, if appropriate, as outlined in
subsection (h) of this section.
8.6 The Voluntary Treatment Option may require a
regulated professional to enter into an agreement which
includes, but is not limited to, the following provisions:
8.6.1 Entry of the regulated professional into a
treatment program approved by the participating Board.
Board approval shall not require that the regulated
professional be identified to the Board. Treatment and
evaluation functions must be performed by separate agencies
to assure an unbiased assessment of the regulated
professional's progress.
8.6.2 Consent to the treating professional of the
approved treatment program to report on the progress of the
regulated professional to the chairperson of the participating
Board or to that chairperson's designate or designates or to
the Director of the Division of Professional Regulation or
his/her designate at such intervals as required by the
chairperson of the participating Board or that chairperson's
designate or designates or the Director of the Division of
Professional Regulation or his/her designate, and such
person making such report will not be liable when such
reports are made in good faith and without malice.
8.6.3 Consent of the regulated professional, in
accordance with applicable law, to the release of any
treatment information from anyone within the approved
treatment program.
8.6.4 Agreement by the regulated professional to
be personally responsible for all costs and charges associated
with the Voluntary Treatment Option and treatment
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
832 FINAL REGULATIONS
program(s). In addition, the Division of Professional
Regulation may assess a fee to be paid by the regulated
professional to cover administrative costs associated with the
Voluntary Treatment Option. The amount of the fee imposed
under this subparagraph shall approximate and reasonably
reflect the costs necessary to defray the expenses of the
participating Board, as well as the proportional expenses
incurred by the Division of Professional Regulation in its
services on behalf of the Board in addition to the
administrative costs associated with the Voluntary Treatment
Option.
8.6.5 Agreement by the regulated professional that
failure to satisfactorily progress in such treatment program
shall be reported to the participating Board's chairperson or
his/her designate or designates or to the Director of the
Division of Professional Regulation or his/ her designate by
the treating professional who shall be immune from any
liability for such reporting made in good faith and without
malice.
8.6.6 Compliance by the regulated professional
with any terms or restrictions placed on professional practice
as outlined in the agreement under the Voluntary Treatment
Option.
8.7 The regulated professional's records of participation
in the Voluntary Treatment Option will not reflect
disciplinary action and shall not be considered public records
open to public inspection. However, the participating Board
may consider such records in setting a disciplinary sanction
in any future matter in which the regulated professional's
chemical dependency or impairment is an issue.
8.8 The participating Board's chairperson, his/her
designate or designates or the Director of the Division of
Professional Regulation or his/her designate may, in
consultation with the treating professional at any time during
the Voluntary Treatment Option, restrict the practice of a
chemically dependent or impaired professional if such action
is deemed necessary to protect the public health, welfare or
safety.
8.9 If practice is restricted, the regulated professional
may apply for unrestricted licensure upon completion of the
program.
8.10 Failure to enter into such agreement or to comply
with the terms and make satisfactory progress in the
treatment program shall disqualify the regulated professional
from the provisions of the Voluntary Treatment Option, and
the participating Board shall be notified and cause to be
activated an immediate investigation and disciplinary
proceedings as appropriate.
8.11 Any person who reports pursuant to this section in
good faith and without malice shall be immune from any
civil, criminal or disciplinary liability arising from such
reports, and shall have his/her confidentiality protected if the
matter is handled in a nondisciplinary matter.
8.12 Any regulated professional who complies with all
of the terms and completes the Voluntary Treatment Option
shall have his/her confidentiality protected unless otherwise
specified in a participating Board's rules and regulations. In
such an instance, the written agreement with the regulated
professional shall include the potential for disclosure and
specify those to whom such information may be disclosed.
DEPARTMENT OF AGRICULTURE
HARNESS RACING COMMISSION
Statutory Authority: 3 Delaware Code,
Section 10027 (3 Del.C. §10027)
Order
Pursuant to 29 Del. C. §10118 and 3 Del. C. §10027, the
Delaware Harness Racing Commission ("Commission")
hereby issues this Order promulgating proposed
amendments to the Commission's Rules. Following notice
and a public hearing held on September 6, 2001 on the
proposed Rule amendments, the Commission makes the
following findings and conclusions:
Summary of Evidence and Information Submitted
1. The Commission posted public notice of the
proposed rule revisions in the August 1, 2001 Register of
Regulations and in the News-Journal and the Delaware State
News. The proposal contained proposed amendments to
Rules 1.0, 3.2.4, 4.1.1, 4.4.5, 5.2.1.3, 5.3.3, 7.1.6.1.3, and
8.3.3. The proposed amendment to Rule 1.0 would add a
definition for the phrase "Required Days Off". The
proposed amendment to Rule 3.2.4 would delete the
requirement that the State Steward/judges investigate and
keep a record of every objection and complaint, and would
add a time limit for the filing of a protest. The proposed
amendment to Rule 4.1.1 would provide that associations
comply with, rather than enforce, Commission rules. The
proposed amendment to Rule 4.4.5 would delete the
requirement that an association notify the Commission of
any exclusion. The proposed amendment to Rule 5.2.1.3
would permit the licensing of an owner younger than
fourteen years of age provided that such an owner may not
access the paddock. The proposed deletion of Rule 5.3.3
would delete the requirement that a trainer be responsible for
all horses owned wholly or in part that are participating in a
race meet. The proposed amendment to Rule 7.1.6.1.3
would clarify the procedure for determination of preference
dates. The proposed amendment to Rule 8.3.3 would clarify
the definition of a foreign substance that interferes with
testing procedures.
2. The Commission held a public hearing on September
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 833
6, 2001 and received public comments. Salvatore DiMario,
Executive Director of the Delaware Standardbred Owners
Association (_DSOA_), noted objection to the proposed
amendment to Rule 8.3.3. Mr. DiMario stated that the
proposed Rule was inconsistent with the Commission_s
adoption of the RCI guidelines in the Commission Rules,
and could lead to subjective interpretation. Russ
MacKinnon, a DSOA Director, stated that the proposed Rule
8.3.3 would be a benefit to the horsemen and would prevent
the administration of foreign substances like solvents.
Presiding Judge Don Harmon testified that he had spoken to
the Joseph Strug of Dalare Associates, the Commission_s
testing laboratory. According to Mr. Strug, the laboratory
has difficulty testing samples when a person gives the horse
a cocktail containing a number of different substances.
3. On the proposed amendment to Rule 4.1.1, Charles
Lockhart, Vice President-Horse Racing of Dover Downs,
stated the amendment would not impact the current nature of
harness racing. The track does not currently enforce the
Commission rules, but more accurately complies with the
orders of the Commission. On proposed amendment to Rule
4.4.5, Mr. Lockhart stated that the track was in favor of the
rule so that it would not have to publicize its reason for
exclusions.
Findings of Fact
4. The public was given notice and an opportunity to
provide the Commission with comments in writing and by
testimony at the public hearing regarding the proposed rule
amendments.
5. The Commission received no public comments
regarding the proposed amendments to Rule 1.0, 3.2.4, 5.3.3,
7.1.6, and 5.2.1.3. The Commission finds that these
proposed amendments are in the best interests of harness
racing and necessary for the effective regulation of harness
racing. The Commission adopts these Rules in their
proposed form.
6. The Commission received public comment both for
and against the proposed amendment to Rule 8.3.3.3.4. The
Commission finds that the proposed Rule change would
simply prohibit a licensee from administering a foreign
substance to a horse that interferes with laboratory testing
procedures. The Commission finds no justification to permit
a licensed trainer to attempt to mask or hide an illegal drug
by administering a foreign substance to interfere with the
laboratory testing. The Commission believes the rule is a
necessary enforcement measure for the Commission_s
medication regulations in Chapter 8. The Commission will
adopt the amendment to Rule 8.3.3.3.4 as proposed. The
Commission received public statements from Charles
Lockhart regarding proposed amendments to Rule 4.1.1 and
Rule 4.4.5. The Commission received no other comments
regarding these proposed rules. The Commission finds the
rule amendments to Rule 4.1.1 and 4.4.5 are in the best
interests of racing and are consistent with the Commission_s
role as the regulator of the licensed associations. The
Commission will adopt the proposed amendments to Rule
4.1.1 and Rule 4.4.5 in their proposed form.
Conclusions
7. The proposed rule amendments to Rules 1.0, 3.2.4,
4.1.1, 4.4.5, 5.2.1.3, 5.3.3, 7.1.6.1.3, and 8.3.3 were
promulgated by the Commission in accord with its statutory
duties and authority as set forth in 3 Del. C. §10027. The
proposed rule amendments are necessary for the
Commission to regulate and oversee the sport of harness
racing in the public interest as required by 3 Del. C. §10005.
The Commission concludes that the proposed Rules should
be adopted in their proposed form.
8. The effective date of this Order shall be ten (10) days
from the publication of this order in the Registrar of
Regulations on October 1, 2001.
IT IS SO ORDERED this 7th day of September, 2001.
Beth Steele, Chairman
Mary Ann Lambertson, Commissioner
Thomas P. Conaty, IV, Commissioner
Robert Everett, Commissioner
Kenny Williamson, Commissioner
1.0 Definitions
"Act" is Chapter 100 of Title 3 of the Delaware Code.
"Added Money" is the amount exclusive of trophy
added into a stakes by the association, or by sponsors,
state-bred programs or other funds added to those monies
gathered by nomination, entry, sustaining and other fees
coming from the horsemen.
"Age" of a horse foaled in North America shall be
reckoned from the first day of January of the year of foaling.
"Also Eligible" pertains to a number of eligible horses,
properly entered, which were not drawn for inclusion in a
race, but which become eligible according to preference or
lot if an entry is scratched prior to the scratch time deadline.
"Appeal" is a request for the Commission or its designee
to investigate, consider and review any decisions or rulings
of steward/judges of a meeting.
"Association" is a person or business entity holding a
license from the commission to conduct racing and/or
pari-mutuel wagering.
"Association Grounds" is all real property utilized by
the association in the conduct of its race meeting, including
the racetrack, grandstand, concession stands, offices, barns,
stable area, employee housing facilities and parking lots and
any other areas under the jurisdiction of the Commission.
"Authorized Agent" is a person licensed by the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
834 FINAL REGULATIONS
Commission and appointed by a written instrument, signed
and acknowledged before a notary public by the owner in
whose behalf the agent will act.
"Betting Interest" is one or more horses in a pari-mutuel
contest which are identified by a single program number for
wagering purposes.
"Bleeder" is a horse which has demonstrated external
evidence of exercise induced pulmonary hemorrhage
(epistaxis, or bleeding from one or both nostrils) and/or the
existence of hemorrhage into the trachea post exercise as
observed upon endoscopic examination.
"Bleeder List" is a tabulation of all bleeders to be
maintained by the Commission.
"Claiming Race" is a race in which any horse starting
may be claimed (purchased for a designated amount) in
conformance with the rules.
"Commission" is the Delaware Harness Racing
Commission.
"Conditioned Race" is an overnight race to which
eligibility is determined according to specified conditions
which include age, sex, earnings, number of starts and
position of finishes.
"Controlled Substance" is any substance included in the
five classification schedules of the (U.S.) Controlled
Substance Act of 1970.
"Coupled Entry" is two or more contestants in a contest
that are treated as a single betting interest for pari-mutuel
wagering purposes (also see "Entry").
"Course" is the track over which horses race.
"Dead Heat" is the finish of a race in which the noses of
two or more horses reach the finish line at the same time.
"Declaration" is the naming of a particular horse as a
starter in a particular race.
"Draw" is the process of assigning post positions and the
process of selecting contestants in a manner to ensure
compliance with the conditions of the rules of racing.
"Driver" is a person who is licensed to drive in races.
"Early Closing Race" is a race for a definite amount of
money to which entries close at least six weeks prior to the
race.
"Entry" (see "Coupled Entry").
"Exhibition Race" is a race on which no wagering is
permitted.
"Financial Interest" is an interest that could result
directly or indirectly in receiving a pecuniary gain or
sustaining a pecuniary loss as a result of ownership or
interest in a horse or business entity; or as a result of salary,
gratuity or other compensation or remuneration from any
person. The lessee and lessor of a horse have a financial
interest.
"Guest Association" is an association which offers
licensed pari-mutuel wagering on contests conducted by
another association (the host) in either the same jurisdiction
or another jurisdiction.
"Handicap" is a race in which allowances are made
according to a horse's age, sex, claiming price and
performance.
"Handle" is the total amount of all pari-mutuel wagering
sales excluding refunds and cancellations.
"Host Association" is the association conducting a
licensed pari-mutuel meeting from which authorized
contests or entire performances are simulcast.
"In Harness" is when the horses are attached to a dual
shaft sulky. All sulkies used in a race must be equipped with
unicolored or colorless wheel discs of a type approved by the
Commission and placed on the inside and outside of the
wheel. Any change in the basic design of a sulky and/or
major equipment shall require Commission approval. Rules,
regulations, standards and/or guidelines affecting the use of
any new sulky and/or equipment must be approved by the
Commission before their adoption.
"Inquiry" is when the judges suspect that a foul or any
other misconduct occurred during a heat or dash.
"Late Closing Race" is a race for a fixed amount of
money to which entries close less than six weeks but not
more than three days before the race is to be contested.
"Licensee" is any person or entity holding a license from
the Commission to engage in racing or a regulated activity.
"Maiden" is a stallion, mare or gelding that has never
won a heat or race at the gait at which it is entered to start
and for which a purse is offered; provided, however, that
other provisions of these Rules notwithstanding, races and/or
purse money awarded to a horse after the 'Official Sign' has
been posted shall be considered winning performance and
effect status as a maiden, and in such cases a horse placed
first by virtue of disqualification shall acquire a win race
record only if such horse's actual time can be determined by
photo finish or electronic timing in accordance with the
provisions of Rule 7.2.1.
1 DE Reg. 501 (11/01/97)
"Match Race" is a race between two or more horses
under conditions agreed to by their owners.
"Matinee Race" is a race in which no entrance fee is
charged and where the premiums, if any, are other than
money.
"Meeting" is the specified period and dates each year
during which an association is authorized to conduct racing
and/or pari-mutuel wagering by approval of the
Commission.
"Minus Pool" occurs when the amount of money to be
distributed on winning wagers is in excess of the amount of
money comprising the net pool.
"Mutuel Field" is two or more contestants treated as a
single betting interest for pari-mutuel wagering purposes
because the number of betting interests exceeds the number
that can be handled individually by the pari-mutuel system.
"Net Pool" is the amount of gross ticket sales less
refundable wagers and statutory commissions.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 835
"No Contest" is a race canceled for any reason by the
stewards/judges.
"Nomination" is the naming of a horse to a certain race
or series of races generally accompanied by payment of a
prescribed fee.
"Objection" is a verbal claim of foul in a race lodged by
the horse's driver.
"Off Time" is the moment at which, on the signal of the
official starter, the starting gate is opened, officially
dispatching the horses in each contest.
"Official Order of Finish" is the order of finish of the
horses in a contest as declared official by the judges.
"Official Starter" is the official responsible for
dispatching the horses for a race.
"Official Time" is the elapsed time from the moment the
first horse crosses the timing beam until the first horse
crosses the finish line.
"Optional Claiming Race" is a conditioned race in
which a horse may be entered for a stated claiming price. In
the case of horses entered to be claimed in such a race, the
race shall be considered, for the purpose of these rules, a
claiming race. In the case of horses not entered to be
claimed in such a race, the race shall be considered a
conditioned race.
"Overnight Race" is a contest for which declarations
close not more than seven days, omitting Sunday, before the
date on which it will be contested. In the absence of
conditions or notice to the contrary, declarations must close
not later than 6:00 p.m. of the day preceding the race.
"Owner" is a person who holds any title, right or
interest, whole or partial in a horse, including the lessee and
lessor of a horse.
"Paddock" is an enclosure in which horses scheduled to
compete in a contest are confined prior to racing.
"Pari-Mutuel System" is the manual, electro-mechanical
or computerized system and all software (including the
totalisator, account betting system and off-site betting
equipment) that is used to record bets and transmit wagering
data.
"Pari-Mutuel Wagering" is a form of wagering on the
outcome of an event in which all wagers are pooled and held
by an association for distribution of the total amount, less the
deductions authorized by law, to holders of tickets on the
winning horses.
"Patron" is a member of the public present on the
grounds of a pari-mutuel association during a meeting for the
purpose of wagering or to observe racing.
"Person" is any individual, partnership, corporation or
other association or entity.
"Post Position" is the pre-assigned position from which
a horse will leave the starting gate.
"Post Time" is the scheduled starting time for a contest.
"Primary Laboratory" is a facility designated by the
Commission for the testing of samples.
"Programmed" means listed in the official program
made available for sale or distribution to the public.
"Protest" is a written complaint alleging that a horse is
ineligible to race.
"Purse" is the total cash amount for which a race is
contested.
"Race" is a contest between horses at a licensed
meeting.
"Required Days Off" horses restricted from racing for a
specified number of days will start their days the day of the
scheduled race.
"Restricted Area" is an enclosed portion of the
association grounds to which access is limited to licensees
whose occupation or participation requires access.
"Result" is that part of the official order of finish used to
determine the pari-mutuel payout of pools for each
individual contest.
"Rules" are the Rules of the Delaware Harness Racing
Commission.
"Satisfactory Charted Line" is one that meets the
standards at the track at which a horse participates.
"Scoring" is the preliminary practice given to horses
after the post parade and prior to being called to line up for
the start of a race by the official starter.
"Scratch" is the act of withdrawing an entered horse
from a contest after the closing of entries.
"Simulcast" is the live audio and visual transmission of
a contest to another location for pari-mutuel wagering
purposes.
"Split Sample Laboratory" is a facility approved by the
Commission to test split samples.
"Stakes Race" is a race which will be contested in a
calendar year subsequent to the closing of nominations.
"Sulky" is a dual wheel racing vehicle with dual shafts
not exceeding the height of the horse's withers. Shafts must
be hooked separately on each side.
"Totalisator" is the system used for recording,
calculating, and disseminating information about ticket
sales, wagers, odds and payoff prices to patrons at a parimutuel
wagering facility.
"Tubing" is the administration of any substance via a
naso-gastric tube.
Rule 3.0
3.2 State Steward/Judges
3.2.1. General Authority
3.2.2.1 The State Steward and judges for each
meeting shall be responsible to the Commission for the
conduct of the race meeting in accordance with the laws of
this jurisdiction and these rules.
3.2.2.2 The State Steward and judges shall
enforce these rules and the racing laws of the State of
Delaware.
3.2.2.3 The State Steward's authority includes
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
836 FINAL REGULATIONS
supervision of all racing officials, licensed personnel, other
persons responsible for the conduct of racing and patrons, as
necessary to ensure compliance with these rules.
3.2.2.4 The State Steward and Presiding Judge
shall have authority to resolve conflicts or disputes related to
racing and to discipline violators in accordance with the
provisions of these rules.
3.2.2.5 The State Steward and judges have the
authority to interpret the rules and to decide all questions of
racing not specifically covered by the rules.
3.2.2.6 The State Steward shall be a
representative of the Commission at all race meetings which
the Commission may direct such State Steward to attend.
The State Steward shall be the senior officer at such
meetings and, subject to the control and direction of the
Commission, shall have general supervision over the racing
officials, medication program and drug-testing officials, and
all other employees and appointees of the Commission
employed at such race meet or meetings. The State Steward
shall, subject to the general control of the Commission,
monitor the conduct of the racing and the pari-mutuel
department, and supervise the testing of horses and drivers.
The State Steward at all times shall have access to all parts of
the association grounds, including the racecourse, physical
plant and grounds. Upon instruction from the Commission,
the State Steward shall conduct hearings and investigations,
and report his findings to the Commission. The State
Steward shall act for the Commission in all matters requiring
its attention, to receive from all persons having knowledge
thereof information required by the Commission and to
perform all other duties for the compliance of the rules and
regulations of the Commission and the laws of the State of
Delaware.
3.2.2 Period of Authority
The State Steward's and judges' period of
authority shall commence five (5) business days prior to the
beginning of each race meeting and shall terminate with
completion of their official business pertaining to the
meeting.
3.2.3 Disciplinary Action
3.2.3.1 The State Steward and judges shall
take notice of alleged misconduct or rule violations and
initiate investigations into the matters.
3.2.3.2 The State Steward and judges shall
have authority to charge any licensee for a violation of these
rules, to conduct hearings and to impose disciplinary action
in accordance with these rules.
3.2.3.3 The State Steward and judges may
compel the attendance of witnesses and the submission of
documents or potential evidence related to any investigation
or hearing.
3.2.3.4 The State Steward and judges may at
any time inspect license documents, registration papers and
other documents related to racing.
3.2.3.5 The State Steward and judges have the
power to administer oaths and examine witnesses.
3.2.3.6 The State Steward and judges may
consult with the State Veterinarian to determine the nature
and seriousness of a laboratory finding or an alleged
medication violation.
3.2.3.7 The State Steward and judges may
impose, but are not limited to, any of the following penalties
on a licensee for a violation of these rules:
3.2.3.7.1 issue a reprimand;
3.2.3.7.2 assess a fine;
3.2.3.7.3 require forfeiture or
redistribution of purse or award, when specified by
applicable rules;
3.2.3.7.4 place a licensee on probation;
3.2.3.7.5 suspend a license or racing
privileges;
3.2.3.7.6 revoke a license;
3.2.3.7.7 exclude from grounds under the
jurisdiction of the Commission; or
3.2.3.7.8 any relief deemed appropriate.
3.2.3.8 The State Steward and judges may take
any appropriate actions against any horse for a violation or
attempted violation of these rules.
3.2.3.9 The State Steward and judges may
suspend a license; or they may impose a fine in accordance
with these Rules for each violation; or they may suspend and
fine; or they may order that a person be ineligible for
licensing.
3.2.3.10 A State Steward's or judges' ruling
shall not prevent the Commission from imposing a more or
less severe penalty.
3.2.3.11 The State Steward or judges may refer
any matter to the Commission and may include
recommendations for disposition. The absence of a State
Steward's or judges' referral shall not preclude Commission
action in any matter.
3.2.3.12 Purses, prizes, awards, and trophies
shall be redistributed if the State Steward or judges or
Commission order a change in the official order of finish.
3.2.3.13 All fines imposed by the State
Steward or judges shall be paid to the Commission within
ten (10) days after the ruling is issued, unless otherwise
ordered.
3.2.4 Protests, Objections and Complaints
The State Steward or judges shall investigate
promptly and render a decision in every protest, objection
and complaint made to them. They shall maintain a record
of all protests, objections and complaints. The State Steward
or judges shall file daily with the Commission a copy of each
protest, objection or complaint and any related ruling. All
protests must be in writing and lodged with the State
Steward or judges not later than forty-eight (48) hours after
the race in question.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 837
3.2.5 Judges' Presence
A board of judges shall be present in the
judges' stand during the contesting of each race.
3.2.6 Order of Finish for Pari-Mutuel Wagering
3.2.6.1 The judges shall determine the official
order of finish for each race in accordance with the rules of
the race (see Rule 7.0).
3.2.6.2 The decision of the judges as to the
official order of finish, including the disqualification of a
horse or horses as a result of any event occurring during the
contesting of the race, shall be final for purposes of
distribution of the pari-mutuel wagering pool.
. 3.2.7 Cancel Wagering
The State Steward or judges have the authority
to cancel wagering and order refunds where applicable on an
individual betting interest or on an entire race and also have
the authority to cancel a pari-mutuel pool for a race or races,
if such action is necessary to protect the integrity of
pari-mutuel wagering.
3.2.8 Steward's List
3.2.8.1 The judges shall maintain a Steward's
List of the horses which are ineligible to be entered in a race.
3.2.8.2 A horse that is unfit to race because it
is dangerous, unmanageable or unable to show a
performance to qualify for races at the meeting, scratched as
a result of a high blood gas test, or otherwise unfit to race at
the meeting may be placed on the Steward's List by the
Presiding Judge and declarations and/or entries on the horse
shall be refused. The owner or trainer shall be notified of
such action and the reason shall be clearly stated. When any
horse is placed on the Steward's List, the clerk of the course
shall make a note on the eligibility certificate of such horse,
showing the date the horse was put on the Steward's List the
reason and the date of removal if the horse has been
removed.
1 DE Reg. 501 (11/01/97)
2 DE Reg. 1243 (01/01/99)
3.2.8.3 All horses scratched by a veterinarian
for either lameness or sickness will be put on the Steward's
List and can not race for seven (7) days from the date of the
scratched race. Entries will be accepted during this seven (7)
day period for a race to be contested after the seventh day.
4 DE Reg 336 (8/1/00)
Veterinarians may put a horse on the
Steward's List for sickness or lameness for more than seven
(7) if necessary. In that instance, the horse may not race until
proscribed number of days has expired. Entries will be
accepted during this period for a race to be contested after
the proscribed number of days has expired.
2 DE Reg. 1244 (01/01/99)
4 DE Reg 336 (8/1/00)
3.2.8.4 No Presiding Judge or other official at
a fair meeting shall have the power to remove from the
Steward's List and accept as an entry any horse which has
been placed on a Steward's List and not subsequently
removed therefrom for the reason that he/she is dangerous or
an unmanageable horse. Such meetings may refuse
declarations and/or entries on any horse that has been placed
on the Steward's List and has not been removed therefrom.
3.2.8.5 No horse shall be admitted to any
racetrack facilities in this jurisdiction without having had a
negative official test for equine infectious anemia within
twelve (12) months.
3.2.8.6 The judges may put any horse on the
Steward's List for performance when such horse shows a
reversal of form or does not race near its own capabilities.
Such horse shall qualify in a time comparable to its known
capabilities from one to three times, at the discretion of the
judges, before being allowed to start.
3.2.8.7 Any horse put on the Steward's List as
unmanageable or dangerous must qualify in a satisfactory
manner for the judges at least two times.
3.2.8.8 The judges may put any horse on the
Steward's List for being noncompetitive or unfit to race at
the meeting.
3.2.8.9 The judges may place a horse on the
Steward's List when there exists a question as to the exact
identification, ownership or management of said horse.
3.2.8.10 A horse which has been placed on the
Steward's List because of questions as to the exact
identification or ownership of said horse, may be removed
from the Steward's List when, in the opinion of the judges,
proof of exact identification and/or ownership has been
established.
3.2.8.11 A horse may not be released from the
Steward's List without the permission of the judges.
3.2.9 List of Nerved Horses
The judges shall maintain a list of nerved
horses which are on association grounds and shall make the
list available for inspection by other licensees participating
in the race meeting.
Rule 4.0
4.0 Associations
4.1 General Duty
4.1.1 An association, its officers, directors, officials
and employees shall abide by and enforce comply with the
Act and the rules and orders of the Commission, the State
Steward and judges.
4.1.2 An association may request an exemption
from a requirement in this chapter to utilize new technology
or innovative construction or design of the racetrack
facilities. The Commission may grant an exemption if the
Commission determines that:
4.1.2.1 the association's proposal
substantially satisfies the purpose of the requirement; and
4.1.2.2 the exemption is in the best interests
of the race horses, the racing industry and the citizens of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
838 FINAL REGULATIONS
Delaware.
4.4 Operations
4.4.1 Security
4.4.1.1 An association conducting a race
meeting shall maintain security controls over its premises.
Security controls are subject to the approval of the
Commission.
4.4.1.2 An association may establish a system
or method of issuing credentials or passes to restrict access
to its restricted areas or to ensure that all participants at its
race meeting are licensed as required by these rules.
4.4.1.3 An association shall prevent access to
and shall remove or cause to be removed from its restricted
areas any person who is unlicensed, or who has not been
issued a visitor's pass or other identifying credential, or
whose presence in such restricted area is unauthorized.
4.4.1.4 Unless otherwise authorized by the
Commission, an association shall provide continuous
security in the stable area during all times that horses are
stabled on the grounds. An association shall require any
person entering the stable area to display valid credentials
issued by the Commission or a visitor's pass issued by the
association. An association shall provide security fencing
around the stable area in a manner that is approved by the
Commission.
4.4.1.5 On request by the Commission, an
association shall provide a list of the security personnel,
including the name, qualifications, training, duties duty
station and area supervised by each employee.
4.4.1.6 Each day, the chief of security for an
association shall deliver a written report to the State Steward
regarding occurrences on association grounds relating to
harness horse racing on the previous day. Not later than 24
hours after an incident occurs requiring the attention of
security personnel, the chief of security shall deliver to the
State Steward a written report describing the incident. The
report must include the name of each individual involved in
the incident, the circumstances of the incident and any
recommended charges against each individual involved.
4.4.2 Fire Prevention
4.4.2.1 An association shall develop and
implement a program for fire prevention on association
grounds. An association shall instruct employees working on
association grounds of the procedures for fire prevention.
4.4.2.2 No person shall:
4.4.2.2.1 smoke in stalls, feed rooms
or under shed rows;
4.4.2.2.2 burn open fires or oil and gas
lamps in the stable area;
4.4.2.2.3 leave unattended any
electrical appliance that is plugged-in to an electrical outlet.
4.4.2.2.4 permit horses to come within
reach of electrical outlets or cords;
4.4.2.2.5 store flammable materials
such as cleaning fluids or solvents in the stable area; or
4.4.2.2.6 lock a stall which is occupied
by a horse.
4.4.2.3 An association shall post a notice in
the stable area which lists the prohibitions outlined in
4.4.2.2.1 - 4.4.2.2.6 above.
4.4.3 Insect and Rodent Control
An association and the licensees occupying the
association's barn area shall cooperate in procedures to
control insects, rodents or other hazards to horses or
licensees.
4.4.4 Complaints
4.4.4.1 An association shall designate a
location and provide personnel who shall be readily
available to the public to provide or receive information.
4.4.4.2 An association shall promptly notify
the Commission of a complaint regarding:
4.4.4.2.1 an alleged violation of the
Act or a rule of the Commission;
4.4.4.2.2 an alleged violation of
ordinances or statutes;
4.4.4.2.3 accidents or injuries; or
4.4.4.2.4 unsafe or unsanitary
conditions for patrons, licensees or horses.
4.4.5 Ejection and Exclusion
An association may eject or exclude a person
for any lawful reason. An association shall immediately
notify the State Steward and the Commission in writing of
any person ejected or excluded by the association.
Rule 5.0
5.2 Owners
5.2.1 Licensing Requirements for Owners
5.2.1.1 Each person who has an ownership or
beneficial interest in a horse is required to be licensed.
5.2.1.2 An applicant for an owner's license
shall own or lease a horse which is eligible to race, registered
with the racing secretary and under the care of a trainer
licensed by the Commission. An owner shall notify the
stewards/judges of a change in trainer of his/her horse. A
horse shall not be transferred to a new trainer after entry.
5.2.1.3 The provisions of 5.1.3 5.1.4.
notwithstanding, a horse owner of at least 14 years of age
may apply for an owner's license a person younger than 14
years of age may apply for an owner's license, provided that
no licensed owner younger than 14 years of age will be
permitted paddock access at any licensed association. If
younger than 18 years of age, an applicant for an owner's
license shall submit a notarized affidavit from his/her parent
or legal guardian stating that the parent or legal guardian
expressly assumes responsibility for the applicant's financial,
contractual and other obligations relating to the applicant's
participation in racing.
5.2.1.4 If the Commission or its designee has
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 839
reason to doubt the financial responsibility of an applicant
for an owner's license, the applicant may be required to
complete a verified financial statement.
5.2.1.5 Horses not under lease must race in
the name of the bona fide owner. Each owner shall comply
with all licensing requirements.
5.2.1.6 The Commission or its designee may
refuse, deny, suspend or revoke an owner's license for the
spouse or member of the immediate family or household of a
person ineligible to be licensed as an owner, unless there is a
showing on the part of the applicant or licensed owner, and
the Commission determines that participation in racing will
not permit a person to serve as a substitute for an ineligible
person. The transfer of a horse to circumvent the intent of a
Commission rule or ruling is prohibited.
5.2.2 Licensing Requirements for Multiple Owners
5.2.2.1 If the legal owner of any horse is a
partnership, corporation, limited liability company, syndicate
or other association or entity, each shareholder, member or
partner shall be licensed as required in 5.1.1 of this section.
5.2.2.2 Each partnership, corporation, limited
liability company, syndicate or other association or entity
shall disclose to the Commission all owners holding a five
percent or greater beneficial interest, unless otherwise
required by the Commission.
5.2.2.3 Each partnership, corporation, limited
liability company, syndicate or other association or entity
which includes an owner with less than a five percent
ownership or beneficial interest shall file with the
Commission an affidavit which attests that, to the best of
their knowledge, every owner, regardless of their ownership
or beneficial interest, is not presently ineligible for licensing
or suspended in any racing jurisdiction.
5.2.2.4 To obtain an owner's license, an
owner with less than a five percent ownership or beneficial
interest in a horse shall establish a bona fide need for the
license and the issuance of such license shall be approved by
the Commission.
5.2.2.5 Application for joint ownership shall
include a designation of a managing owner and a business
address. Receipt of any correspondence, notice or order at
such address shall constitute official notice to all persons
involved in the ownership of such horse.
5.2.2.6 The written appointment of a
managing owner or authorized agent shall be filed with the
United State Trotting Association or Canadian Trotting
Association and with the Commission.
5.2.3 Lease Agreements
A horse may be raced under lease provided a
completed breed registry or other lease form acceptable to
the Commission is attached to the certificate of registration
and on file with the Commission. The lessor and lessee shall
be licensed as horse owners. For purposes of issuance of
eligibility certificates and/or transfers of ownership, a lease
for an indefinite term shall be considered terminable at the
will of either party unless extended or reduced to a term
certain by written documentation executed by both lessor
and lessee.
1 DE Reg. 502 (11/01/97)
5.2.4 Racing Colors
Drivers must wear distinguishing colors, and
shall not be permitted to drive in a race or other public
performance unless, in the opinion of the judges/stewards,
they are properly dressed, their driving outfits are clean and
they are well groomed. During inclement weather
conditions, drivers must wear rain suits in either of their
colors or made of a transparent material through which their
colors can be distinguished.
5.3 Trainers
5.3.1 Eligibility
5.3.1.1 A person shall not train horses, or be
programmed as trainer of record at extended meetings,
without first having obtained a trainer license valid for the
current year by meeting the standards for trainers, as laid
down by the United State Trotting Association, and being
licensed by the Commission. The "trainer of record" shall be
any individual who receives compensation for training the
horse. The holder of a driver's license issued by the United
States Trotting Association is entitled to all privileges of a
trainer and is subject to all rules respecting trainers.
5.3.1.2 Valid categories of licenses are:
5.3.1.2.1 "A," a full license valid for
all meetings and permitting operation of a public stable.; and
5.3.1.2.2 "L," a license restricted to
the training of horses while owned by the holder and/or his
or her immediate family at all race meetings.
5.3.1.3 If more than one person receives any
form of compensation, directly or indirectly, for training the
horse, then the principal trainer or trainers must be listed as
"trainer of record". It shall be a violation for the principal
trainer or trainers of a horse not to be listed as "trainer of
record", and, if such unlisted principal trainer or trainers are
licensees of the Commission, then he, she or they shall be
subject to a fine and/or suspension for such violation. In
addition, it shall be a violation for a person who is not the
principal trainer of the horse to be listed as "trainer of
record", and such person shall be subject to a fine and/or
suspension for such violation. Principal trainers and
programmed trainers shall be equally liable for all rule
violations. For purposes of this rule, the Steward and judges
shall use the following criteria in determining the identity of
the principal trainer or trainers of a horse:
5.3.1.3.1 The identity of the person
who is responsible for the business decisions regarding the
horse, including, but not limited to, business arrangements
with and any payments to or from owners or other trainers,
licensed or otherwise, veterinarians, feed companies, hiring
and firing of employees, obtaining workers' compensation
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
840 FINAL REGULATIONS
or proof of adequate insurance coverage, payroll, horsemen's
bookkeeper, etc.;
5.3.1.3.2 The identity of the person
responsible for communicating, or who in fact does
communicate, with the racing secretary's office, stall
manager, association and track management, owners, etc.
regarding racing schedules and other matters pertaining to
the entry, shipping and racing of the horse;
5.3.1.3.3 The identity of the person
responsible for the principal conditioning of the horse;
5.3.1.3.4 The identity of the person
responsible for race day preparation including, but not
limited to, accompanying the horse to the paddock or ship-in
barn, selection of equipment, authority to warm up the horse
before the public, discussion with the driver of race strategy,
etc.; and
5.3.1.3.5 The identity of the person
who communicates on behalf of the owner with the Steward,
judges and other Commission personnel regarding the horse,
including regarding any questions concerning the location or
condition of the horse, racing or medication violations, etc.
1 DE Reg. 505 (11/01/97)
5.3.2 Trainer Responsibility
5.3.2.1 A trainer is responsible for the
condition of horses entered in an official race and is
responsible for the presence of any prohibited drug,
medication or other substance, including permitted
medication in excess of the maximum allowable level, in
such horses. A positive test for a prohibited drug,
medication or substance, including permitted medication in
excess of the maximum allowable level, as reported by a
Commission-approved laboratory, is prima facie evidence of
a violation of this rule. In the absence of substantial
evidence to the contrary, the trainer shall be responsible.
Whenever a trainer of a horse names a substitute trainer for
program purposes due to his or her inability to be in
attendance with the horse on the day of the race, or for any
other reason, both trainers shall be responsible for the
condition of the horse should the horse test positive.
5.3.2.2 A trainer shall prevent the
administration of any drug or medication or other prohibited
substance that may cause a violation of these rules.
5.3.2.3 A trainer whose horse has been
claimed remains responsible for any violation of rules
regarding that horse's participation in the race in which the
horse is claimed.
5.3.3 Other Responsibilities
A trainer is responsible for:
5.3.3.1 the condition and contents of stalls,
tack rooms, feed rooms, sleeping rooms and other areas
which have been assigned by the association;
5.3.3.2 maintaining the assigned stable area
in a clean, neat and sanitary condition at all times;
5.3.3.3 ensuring that fire prevention rules are
strictly observed in the assigned stable area;
5.3.3.4 providing a list to the Commission of
the trainer's employees on association grounds and any other
area under the jurisdiction of the Commission. The list shall
include each employee's name, occupation, social security
number and occupational license number. The Commission
shall be notified by the trainer, in writing, within 24 hours of
any change;
5.3.3.5 the proper identity, custody, care,
health, condition and safety of horses in his/her charge;
5.3.3.6 disclosure of the true and entire
ownership of each horse in his/her care, custody or control;
5.3.3.7 training all horses owned wholly or in
part by him/her which are participating at the race meeting;
5.3.3.8 registering with the racing secretary
each horse in his/her charge within 24 hours of the horse's
arrival on association grounds;
5.3.3.9 ensuring that, at the time of arrival at
a licensed racetrack, each horse in his/her care is
accompanied by a valid health certificate which shall be filed
with the racing secretary;
5.3.3.10 having each horse in his/her care that
is racing, or is stabled on association grounds, tested for
Equine Infectious Anemia (EIA) in accordance with state/
provincial law and for filing evidence of such negative test
results with the racing secretary;
5.3.3.11 using the services of those
veterinarians licensed by the Commission to attend horses
that are on association grounds;
5.3.3.12 immediately reporting the alteration
of the sex of a horse in his/her care to the horse identifier and
the racing secretary, whose office shall note such alteration
on the certificate of registration;
5.3.3.13 promptly reporting to the Presiding
Judge, racing secretary and the State veterinarian any horse
on which a posterior digital neurectomy (heel nerving) is
performed and ensuring that such fact is designated on its
certificate of registration;
5.3.3.14 promptly notifying the State
veterinarian of any reportable disease and any unusual
incidence of a communicable illness of any horse in his/her
charge;
5.3.3.15 promptly reporting the death of any
horse in his/her care on association grounds to the State
Steward or judges and the State veterinarian and compliance
with the rules in Chapter 8 governing post-mortem
examinations;
5.3.3.16 maintaining a knowledge of the
medication record and status of all horses in his/her care;
5.3.3.17 immediately reporting to the State
Steward and the State veterinarian if he/she knows, or has
cause to believe, that a horse in his/her custody, care or
control has received any prohibited drugs or medication;
5.3.3.18 representing an owner in making
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 841
entries and scratches and in all other matters pertaining to
racing;
5.3.3.19 horses entered as to eligibility and
allowances claimed;
5.3.3.20 ensuring the fitness of a horse to
perform creditably at the distance entered;
5.3.3.21 ensuring that his/her horses are
properly prepared and equipped;
5.3.3.22 presenting his/her horse in the
paddock at a time prescribed by the Presiding Judge before
the race in which the horse is entered;
5.3.3.23 personally attending to his/her horses
in the paddock and supervising the preparation thereof,
unless excused by the Paddock Judge;
5.3.3.24 attending the collection of a urine or
blood sample from the horse in his/her charge or delegating a
licensed employee or the owner of the horse to do so; and
5.3.3.25 notifying horse owners upon the
revocation or suspension of his/her trainer's license. Upon
application by the owner, the State Steward may approve the
transfer of such horses to the care of another licensed trainer,
and upon such approved transfer, such horses may be entered
to race.
5.3.4 Restrictions on Wagering
A trainer shall only be allowed to wager on his/
her horse or entries to win or finish first in combination with
other horses.
5.3.5 Substitute Trainers
If any licensed trainer is to be absent from the
association grounds where his/her horse is programmed to
race the Presiding Judge shall be immediately notified and at
that time a licensed substitute trainer, acceptable to the
Presiding Judge, shall be appointed to assume responsibility
for the horse(s) racing during the absence of the regular
trainer. The name of the substitute trainer shall appear on the
program if possible.
7.0 Rules of the Race
7.1 Declarations and Drawing
7.1.1 Declarations
7.1.1.1 Unless otherwise specified in the
conditions, the declaration time shall be as follows:
7.1.1.1.1Extended pari-mutuel meetings,
9:00 a.m.
7.1.1.1.2All other meetings, 10:00 a.m.
7.1.1.2 The time when declarations close will
be considered to be local time at the track where the race is
being contested.
7.1.1.3 No horse shall be permitted to start in
more than one race on any one racing day. Races decided by
more than one heat are considered a single race.
7.1.1.4 The association shall provide a locked
box with an aperture through which declarations shall be
deposited.
7.1.1.5 The Presiding Judge shall be in charge
of the declaration box.
7.1.1.6 Just prior to opening of the box at
extended pari-mutuel meetings where futurities, stakes, early
closing or late closing events are on the program, the
Presiding Judge shall check with the racing secretary to
ascertain if any declarations by mail, telegraph, facsimile
machine or otherwise, are in the office and not deposited in
the entry box, and shall see that they are declared and drawn
in the proper event. At other meetings, the Presiding Judge
shall ascertain if any such declarations have been received
by the speed superintendent or racing secretary of the fair,
and shall see that they are properly declared and drawn.
7.1.2 Drawing
7.1.2.1 The entry box shall be opened at the
advertised time by the Presiding Judge, who shall ensure that
at least one horseman or an official representative of the
horsemen is present. No owner or agent for a horse with a
declaration in the entry box shall be denied the privilege of
being present. Under the supervision of the Presiding Judge,
all entries shall be listed, the eligibility verified, preference
ascertained, starters selected and post positions drawn. If it
is necessary to reopen any race, public announcement shall
be made at least twice and the box reopened to a definite
time.
7.1.2.2 Subject to Commission approval, at
non-extended meetings in the event of the absence or
incapacity of the Presiding Judge, the functions enumerated
above may be performed by one or more associate judges, or
by a person designated by the Presiding Judge, for whose
acts and conduct Presiding Judge shall be wholly
responsible. If a substitution is made as herein provided, the
name and address of the associate judge(s) or person so
substituting shall be entered in the Judges' Book.
At extended meetings in the event of
the absence or incapacity of the Presiding Judge, the
functions enumerated above may be performed by one or
more associate judges who shall have been designated by the
Presiding Judge, prior to the start of the meeting, in the form
of a written notice to the Commission and to the association
conducting the meeting. A record shall be kept in the
Judges' Book showing the name of the individual who
performed such functions on each day of the meeting.
7.1.2.3 In races of a duration of more than
one dash or heat at pari-mutuel meetings, the judges may
draw post positions from the stand for succeeding dashes or
heats.
7.1.2.4 Declarations by mail, telegraph,
facsimile machine or telephone actually received and
evidence of which is deposited in the box before the time
specified to declare in, shall be drawn in the same manner as
the others. Such drawings shall be final. Mail, telegraph,
facsimile machine and telephone declarations must state the
name and address of the owner or lessee; the name, color,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
842 FINAL REGULATIONS
sex, sire and dam of the horse; the driver's name and racing
colors; the date and place of last start; a current summary,
including the number of starts, firsts, seconds, thirds,
earnings and best winning time for the current year; and the
event or events in which the horse is to be entered.
7.1.2.5 Failure to declare as required shall be
considered a withdrawal from the event.
7.1.2.6 After declaration to start has been
made no horse shall be withdrawn except by permission of
the judges. A fine, not to exceed $500, or suspension may be
imposed for withdrawing a horse without permission, the
penalty to apply to both the horse and the party who violates
the regulation.
7.1.2.7 Where the person making the
declaration fails to honor it and there is no opportunity for a
hearing by the judges, this penalty may be imposed by the
commission representative.
7.1.2.8 Where a horse properly declared is
omitted from the race by error of the association, the race
shall be redrawn; provided, however, that the error is
discovered prior to the publication of the official program.
7.1.2.9 In the event there are two tiers of
horses, the withdrawing of a horse that has drawn or earned a
position in the front tier shall not affect the position of the
horses that have drawn or earned positions in the second tier,
except as provided for in handicap claiming races.
Whenever a horse is drawn from any tier, horses on the
outside move in to fill up the vacancy. When there is only
one trailer, it may start from any position in the second tier.
When there is more than one trailer, they must start from
inside any horse with a higher post position.
7.1.3 Qualifying Races
7.1.3.1 Qualifying races and starting gate
schooling shall be held according to the demand as
determined by the Presiding Judge or State Steward.
7.1.3.2 Qualifying standards shall be set at
each track by the racing secretary and the judges. These may
vary at different times of the year to accommodate weather
and the class of horse available. Standards for trotters will
be two seconds slower than pacers.
7.1.3.3 At all extended pari-mutuel meetings
declarations for overnight events shall be governed by the
following:
7.1.3.3.1Before racing at a chosen gait, a
horse must go a qualifying race at that gait under the
supervision of a licensed judge and acquire at least one
charted line by a licensed charter. In order to provide
complete and accurate chart information on time and beaten
lengths, a standard photo finish shall be in use.
7.1.3.3.2Any horse that fails to race within
thirty (30) days of its last start must go a qualifying race as
set forth in a) above. However, at any race meeting this
period can be extended up to sixty (60) days upon receiving
approval of the Commission. The time period allowed shall
be calculated from the date of the last race to and including
the date of declaration. Horses entered and in to go in a race
or races which are canceled due to no fault of their own,
shall be considered to have raced in that race, and no start
shall be counted for date preference purposes.
7.1.3.3.3When a horse has raced at a
charted meeting and then gone to meetings where the races
are not charted the information from the uncharted lines may
be summarized including each start and consolidated in
favor of charted lines to include a charted line within the last
thirty (30) days before the horse is permitted to race. The
consolidated line shall carry date, place, time, driver, finish,
track condition and distance.
7.1.3.3.4The judges may permit a horse to
qualify by means of a timed workout consistent with the time
of the races in which he will compete in the event adequate
competition is not available for a qualifying race.
7.1.3.3.5When, for the purpose of
qualifying the driver, a horse is declared in to race in a
qualifying race, its performance shall be applicable to the
horse's eligibility to race and the chart line shall be notated to
indicate driver qualifying.
7.1.3.3.6If a horse takes a win race record
in either a qualifying race or a matinee race, such record
must be prefaced with the letter "Q" wherever it appears,
except in a case where, immediately prior to or following the
race, the horse taking the record has been submitted to an
approved urine, saliva or blood test. It will be the
responsibility of the Presiding Judge to report the test on the
Judges' Sheet.
7.1.3.4 Any horse regularly wearing hopples
shall not be permitted to be declared to race without them
and any horse regularly racing without hopples shall not be
permitted to wear hopples in a race without first having
qualified with this equipment change. In addition to the
foregoing, any horse regularly wearing hopples and which is
not on a qualifying list or Stewards' List, is allowed one start
without hopples in a qualifying race; and this single
performance shall not affect its eligibility to race with
hopples in a subsequent event to which it is declared.
7.1.3.5 In their discretion the judges may
require a horse to qualify for any reason; provided, however,
that a horse making a break in each of two consecutive races
may not be required to qualify if the breaks were solely
equipment breaks and/or were caused solely by interference
and/or track conditions.
7.1.3.6 A horse must qualify if:
7.1.3.6.1 it does not finish for reasons
other than interference or broken equipment.
3 DE Reg 1520 (5/1/00)
7.1.3.7 A charted line containing only a break
or breaks caused by interference or an equipment break shall
be considered a satisfactory charted line.
7.1.3.8 The judges shall use the interference
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 843
break mark only when they have reason to believe that the
horse was interfered with by another horse or the equipment
of another horse.
7.1.3.9 If qualifying races are postponed or
canceled, an announcement shall be made to the participants
as soon as the decision is made.
7.1.4 Coupled Entries
When the starters in a race include two or more
horses owned by the same person, or trained in the same
stable or by the same management, they shall be coupled as
an "entry", and a wager on one horse in the entry shall be a
wager on all horses in the "entry"; provided, however, that
when a trainer enters two or more horses in a stake, early
closing, futurity, free-for-all or other special event under
bona fide separate ownership, such horses may, at the
request of the association, made through the State Steward,
and with the approval of the Commission, be permitted to
race as separate entries. If the race is split in two or more
divisions, horses in an "entry" shall be seeded in separate
divisions insofar as possible, but the divisions in which they
compete and their post positions shall be drawn by lots. The
above provisions shall also apply to elimination heats. The
person making the declaration of a horse that qualifies as a
coupled entry with another horse entered in the same event
shall be responsible to designate the word "entry" on the
declaration blank. The Presiding Judge shall be responsible
for coupling horses. In addition to the foregoing, horses
separately owned or trained may be coupled as an entry
where it is necessary to do so to protect the public interest for
the purpose of pari-mutuel wagering only; provided,
however, that where this is done entries may not be rejected.
7.1.5 Also Eligibles
Not more than two horses may be drawn as
also eligibles for a race and their positions shall be drawn
along with the starters in the race. In the event one or more
horses are excused by the judges, the also eligible horse or
horses shall race and take the post position drawn by the
horse that it replaces, except in handicap races. In handicap
races the also eligible horses shall take the place of the horse
that it replaces in the event that the handicap is the same. In
the event the handicap is different, the also eligible horse
shall take the position on the outside of horses with a similar
handicap. No horse may be added to a race as an also
eligible unless the horse was drawn as such at the time
declarations closed. No horse may be barred from a race to
which it is otherwise eligible by reason of its preference due
to the fact that it has been drawn as an also eligible. A horse
moved into the race from the also eligible list cannot be
drawn except by permission of the judges, but the owner or
trainer of such a horse shall be notified that the horse is to
race and it shall be posted at the racing secretary's office. All
horses on the also eligible list and not moved in to race by
Scratch Time on the day of the race shall be released.
7.1.6 Preference Dates
Preference dates shall be given to horses in all
overnight events at extended pari-mutuel tracks in
accordance with the following:
7.1.6.1 The date of the horse's last previous
start in a purse race is its preference date with the following
exceptions:
7.1.6.1.1 The preference date on a horse
that has drawn to race and has been scratched is the date of
the race from which scratched.
7.1.6.1.2 When a horse is racing for the
first time after February 1 in the current year, the date of the
first declaration into a purse race shall be considered its
preference date.
7.1.6.1.3 Wherever horses have equal
preference in a race, the actual preference of said horses in
relation to one another shall be determined by lot
backdating, up to two starts, the horse having raced closest to
the draw having the least preference. If no preference is
determined, preference will be determined by lot.
7.1.6.1.4 When an overnight race has
been re-opened because it did not fill, all eligible horses
declared into the race prior to the re-opening shall receive
preference over other horses subsequently declared,
irrespective of the actual preference dates, excluding horses
already in to go.
7.1.6.2 This rule relative to preference is not
applicable at any meeting at which an agricultural fair is in
progress. All horses granted stalls and eligible must be
given an opportunity to compete at these meetings.
3 DE Reg 433 (9/1/99)
Rule 8.0
8.3 Medications and Foreign Substances
Foreign substances shall mean all substances,
except those which exist naturally in the untreated horse at
normal physiological concentration, and shall include all
narcotics, stimulants, depressants or other drugs or
medications of any type. Except as specifically permitted by
these rules, no foreign substance shall be carried in the body
of the horse at the time of the running of the race. Upon a
finding of a violation of these medication and prohibited
substances rules, the State Steward or other designee of the
Commission shall consider the classification level of the
violation as listed at the time of the violation by the Uniform
Classification Guidelines of Foreign Substances as
promulgated by the Association of Racing Commissioners
International and may impose penalties and disciplinary
measures consistent with the recommendations contained in
subsection 8.3.2 of this section.
3 DE Reg 1520 (5/1/00)
8.3.1 Uniform Classification Guidelines
The following outline describes the types of
substances placed in each category. This list shall be
publicly posted in the offices of the Commission
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
844 FINAL REGULATIONS
Veterinarian and the racing secretary.
3 DE Reg 1520 (5/1/00)
8.3.1.1 Class 1
Opiates, opium derivatives, synthetic
opiates, psychoactive drugs, amphetamines and U.S. Drug
Enforcement Agency (DEA) scheduled I and II drugs. Also
found in this class are drugs which are potent stimulants of
the nervous system. Drugs in this class have no generally
accepted medical use in the race horse and their
pharmacological potential for altering the performance of a
race is very high.
8.3.1.2 Class 2
Drugs in this category have a high
potential for affecting the outcome of a race. Most are not
generally accepted as therapeutic agents in the race horse.
Many are products intended to alter consciousness or the
psychic state of humans, and have no approved or indicated
use in the horse. Some, such as injectable local anesthetics,
have legitimate use in equine medicine, but should not be
found in a race horse. The following groups of drugs are in
this class:
8.3.1.2.1 Opiate partial agonist, or
agonist-antagonists;
8.3.1.2.2 Non-opiate psychotropic drugs,
which may have stimulant, depressant, analgesic or
neuroleptic effects;
8.3.1.2.3 Miscellaneous drugs which
might have a stimulant effect on the central nervous system
(CNS);
8.3.1.2.4 Drugs with prominent CNS
depressant action;
8.3.1.2.5 Antidepressant and antipsychotic
drugs, with or without prominent CNS stimulatory or
depressant effects;
8.3.1.2.6 Muscle blocking drugs which
have a direct neuromuscular blocking action;
8.3.1.2.7 Local anesthetics which have a
reasonable potential for use as nerve blocking agents (except
procaine); and
8.3.1.2.8 Snake venoms and other biologic
substances which may be used as nerve blocking agents.
8.3.1.3 Class 3
Drugs in this class may or may not
have an accepted therapeutic use in the horse. Many are
drugs that affect the cardiovascular, pulmonary and
autonomic nervous systems. They all have the potential of
affecting the performance of a race horse. The following
groups of drugs are in this class:
8.3.1.3.1 Drugs affecting the autonomic
nervous system which do not have prominent CNS effects,
but which do have prominent cardiovascular or respiratory
system effects (bronchodilators are included in this class);
8.3.1.3.2 A local anesthetic which has
nerve blocking potential but also has a high potential for
producing urine residue levels from a method of use not
related to the anesthetic effect of the drug (procaine);
8.3.1.3.3 Miscellaneous drugs with mild
sedative action, such as the sleep inducing antihistamines;
8.3.1.3.4 Primary vasodilating/
hypotensive agents; and
8.3.1.3.5 Potent diuretics affecting renal
function and body fluid composition.
8.3.1.4 Class 4
This category is comprised primarily
of therapeutic medications routinely used in race horses.
These may influence performance, but generally have a
more limited ability to do so. Groups of drugs assigned to
this category include the following:
8.3.1.4.1 Non-opiate drugs which have a
mild central analgesic effect;
8.3.1.4.2 Drugs affecting the autonomic
nervous system which do not have prominent CNS,
cardiovascular or respiratory effects
8.3.1.4.2.1 Drugs used solely as
topical vasoconstrictors or decongestants
8.3.1.4.2.2 Drugs used as
gastrointestinal antispasmodics
8.3.1.4.2.3 Drugs used to void the
urinary bladder
8.3.1.4.2.4 Drugs with a major
effect on CNS vasculature or smooth muscle of visceral
organs.
8.3.1.4.3Antihistamines which do not
have a significant CNS depressant effect (This does not
include H1 blocking agents, which are listed in Class 5);
8.3.1.4.4 Mineralocorticoid drugs;
8.3.1.4.5 Skeletal muscle relaxants;
8.3.1.4.6 Anti-inflammatory drugs--those
that may reduce pain as a consequence of their
anti-inflammatory actions, which include:
8.3.1.4.6.1 Non-Steroidal
Anti-Inflammatory Drugs (NSAIDs)--aspirin-like drugs;
8.3.1.4.6.2 Corticosteroids
(glucocorticoids); and
8.3.1.4.6.3 Miscellaneous
anti-inflammatory agents.
8.3.1.4.7 Anabolic and/or androgenic
steroids and other drugs;
8.3.1.4.8 Less potent diuretics;
8.3.1.4.9 Cardiac glycosides and
antiarrhythmics including:
8.3.1.4.9.1 Cardiac glycosides;
8.3.1.4.9.2 Antiarrhythmic agents
(exclusive of lidocaine, bretylium and propanolol); and
8.3.1.4.9.3 Miscellaneous
cardiotonic drugs.
8.3.1.4.10 Topical Anesthetics--agents not
available in injectable formulations;
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 845
8.3.1.4.11 Antidiarrheal agents; and
8.3.1.4.12 Miscellaneous drugs including:
8.3.1.4.12.1 Expectorants with little
or no other pharmacologic action;
8.3.1.4.12.2 Stomachics; and
8.3.1.4.12.3 Mucolytic agents.
8.3.1.5 Class 5
Drugs in this category are therapeutic
medications for which concentration limits have been
established as well as certain miscellaneous agents. Included
specifically are agents which have very localized action only,
such as anti-ulcer drugs and certain antiallergic drugs. The
anticoagulant drugs are also included.
8.3.2 Penalty Recommendations
In the absence of aggravating or mitigating
circumstances, the following penalties and disciplinary
measures may be imposed for violations of these medication
and prohibited substances rules:
8.3.2.1 Class 1--One to five years suspension
and at least $5,000 fine and loss of purse.
8.3.2.2 Class 2-- Six months to one year
suspension and $1,500 to $2,500 fine and loss of purse.
8.3.2.3 Class 3--Sixty days to six months
suspension and up to $1,500 fine and loss of purse.
8.3.2.4 Class 4
8.3.2.4.1 If the substance is detected
in a blood sample, or if the substance is detected in any
sample in which more than one prohibited substance is
detected, or if the substance is detected in a urine sample at a
level which, in the opinion of the official chemist, caused
interference with testing procedures: Fifteen to 50 days
suspension and up to $1,000 fine and loss of purse.
8.3.2.4.2 If the substance is detected
in a urine sample but not in a blood sample:
8.3.2.4.2.1 And if such
detection is the first violation of this chapter within a 12-
month period: Up to a $250 fine and loss of purse.
8.3.2.4.2.2 And if such
detection is the second violation of this chapter within a 12-
month period: Up to a $1,000 fine and loss of purse.
8.3.2.4.2.3 And if such
detection is the third violation of this chapter within a 12-
month period: Up to a $1,000 fine and up to a 50-day
suspension and loss of purse.
3 DE Reg. 1520 (5/1/00)
8.3.2.5 Class 5
8.3.2.5.1 If the substance is detected in a
blood sample, or if the substance is detected in any sample in
which more than one prohibited substance is detected, or if
the substance is detected in a urine sample at a level which,
in the opinion of the official chemist, caused interference
with testing procedures: Zero to 15 days suspension and up
to a $150 fine and loss of purse.
8.3.2.5.2 If the substance is detected in a
urine sample but not in a blood sample:
8.3.2.5.2.1 And if such
detection is the first violation of this Chapter within a 12-
month period: Up to a $250 fine and loss of purse.
8.3.2.5.2.2 And if such
detection is the second violation of this chapter within a 12-
month period: Up to a $1,000 fine and loss of purse.
8.3.2.5.2.3 And if such
detection is the third violation of this chapter within a 12-
month period: Up to a $1,000 fine and up to a 15-day
suspension and loss of purse.
3 DE Reg. 1520 (5/1/00)
8.3.2.6 In determining the appropriate penalty
with respect to a medication rule violation, the State Steward
or other designee of the Commission may use his discretion
in the application of the foregoing penalty recommendations,
and shall consult with the State Veterinarian, the
Commission veterinarian and/or the Commission chemist to
determine the seriousness of the laboratory finding or the
medication violation. Where aggravating or mitigating
circumstances exist, greater or lesser penalties and/or
disciplinary measures may be imposed than those set forth
above. Specifically, if the State Steward or other designee of
the Commission determine that mitigating circumstances
warrant imposition of a lesser penalty than the
recommendations suggest, he may impose a lesser penalty.
If the State Steward or other designee of the Commission
determines that aggravating circumstances require
imposition of a greater penalty, however, he may only
impose up to the maximum recommended penalty, and must
refer the case to the Commission for its review, with a
recommendation for specific action. Without limitation, the
presence of the following aggravating circumstances may
warrant imposition of greater penalties than those
recommended, up to and including a lifetime suspension:
8.3.2.6.1 Repeated violations of these
medication and prohibited substances rules by the same
trainer or with respect to the same horse;
8.3.2.6.2 Prior violations of similar rules
in other racing jurisdictions by the same trainer or with
respect to the same horse; or
8.3.2.6.3 Violations which endanger the
life or health of the horse.
8.3.2.7 With respect to Class 1, 2 and 3 drugs
detect in a urine sample but not in a blood sample, and in
addition to the foregoing factors, in determining the length
of a suspension and/or the amount of a fine, or both, the State
Steward or judges may take in consideration, without
limitation, whether the drug has any equine therapeutic use,
the time and method of administration, if determined,
whether more than one foreign substance was detected in the
sample, and any other appropriate aggravating or mitigating
factors.
8.3.2.8 Whenever a trainer is suspended more than
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
846 FINAL REGULATIONS
once within a two-year period for a violation of this chapter
regarding medication rules, any suspension imposed on the
trainer for any such subsequent violation also shall apply to
the horse involved in such violation. The State Steward or
judges may impose a shorter suspension on the horse than on
the trainer.
8.3.2.9 At the discretion of the State Steward or
other designee of the Commission, a horse as to which an
initial finding of a prohibited substance has bee made by the
Commission chemist may be prohibited from racing pending
a timely hearing; provided, however, that other horses
registered under the care of the trainer of such a horse may,
with the consent of the State Steward or other designee of the
Commission be released to the care of another trainer, and
may race.
3 DE Reg. 1520 (5/1/00)
8.3.3 Medication Restrictions
8.3.3.1 Drugs or medications in horses are
permissible, provided:
8.3.3.1.1 the drug or medication is listed
by the Association of Racing Commissioners International's
Drug Testing and Quality Assurance Program; and
8.3.3.1.2 the maximum permissible urine
or blood concentration of the drug or medication does not
exceed the limit established in theses Rules or otherwise
approved and published by the Commission.
3 DE Reg 1520 (5/1/00)
8.3.3.2 Except as otherwise provided by this
chapter, a person may not administer or cause to be
administered by any means to a horse a prohibited drug,
medication, chemical or other substance, including any
restricted medication pursuant to this chapter during the
24-hour period before post time for the race in which the
horse is entered. Such administration shall result in the horse
being scratched from the race and may result in disciplinary
actions being taken.
3 DE Reg 1520 (5/1/00)
8.3.3.3 A finding by the official chemist of a
prohibited drug, chemical or other substance in a test
specimen of a horse is prima facie evidence that the
prohibited drug, chemical or other substance was
administered to the horse and, in the case of a post-race test,
was present in the horse's body while it was participating in a
race. Prohibited substances include:
8.3.3.3.1 drugs or medications for which
no acceptable levels have been established in these Rules or
otherwise approved and published by the Commission.
3 DE Reg 1520 (5/1/00)
8.3.3.3.2 therapeutic medications in
excess of acceptable limits established in these rules or
otherwise approved and published by the Commission.
3 DE Reg 1520 (5/1/00)
8.3.3.3.3 substances present in the horse
in excess of levels at which such substances could occur
naturally and such prohibited substances shall include a total
carbon dioxide level of 37 mmol/L or serum in a submitted
blood sample from a horse or 39 mmol/L if serum from a
horse which has been administered furosemide in
compliance with these rules, provided that a licensee has the
right, pursuant to such procedures as may be established
from time to time by the Commission, to attempt to prove
that a horse has a naturally high carbon dioxide level in
excess of the above-mentioned levels; and provided, further,
that an excess total carbon dioxide level shall be penalized in
accordance with the penalty recommendation applicable to a
Class 2 substance.
1 DE Reg. 923 (1/1/98)
3 DE Reg 1520 (5/1/00)
8.3.3.3.4 substances foreign to a horse at
levels that cause interference with testing procedures. The
detection of any such substance is a violation, regardless of
the classification or definition of the substance or its
properties under the Uniform Classification Guidelines for
Foreign Substances.
8.3.3.4 The tubing, dosing or jugging of any
horse for any reason within 24 hours prior to its scheduled
race is prohibited unless administered for medical
emergency purposes by a licensed veterinarian, in which
case the horse shall be scratched. The practice of
administration of any substance via a naso-gastric tube or
dose syringe into a horse's stomach within 24 hours prior to
its scheduled race is considered a violation of these rules and
subject to disciplinary action, which may include fine,
suspension and revocation or license.
8.3.4 Medical Labeling
8.3.4.1 No person on association grounds
where horses are lodged or kept, excluding licensed
veterinarians, shall have in or upon association grounds
which that person occupies or has the right to occupy, or in
that person's personal property or effects or vehicle in that
person's care, custody or control, a drug, medication,
chemical, foreign substance or other substance that is
prohibited in a horse on a race day unless the product is
labelled in accordance with this subsection.
8.3.4.2 Any drug or medication which is used
or kept on association grounds and which, by federal or
Delaware law, requires a prescription must have been validly
prescribed by a duly licensed veterinarian, and in
compliance with the applicable federal and state statutes.
All such allowable medications must have a prescription
label which is securely attached and clearly ascribed to show
the following:
8.3.4.2.1 the name of the product;
8.3.4.2.2 the name, address and telephone
number of the veterinarian prescribing or dispensing the
product;
8.3.4.2.3 the name of each patient (horse)
for whom the product is intended/prescribed;
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 847
8.3.4.2.4 the dose, dosage, duration of
treatment and expiration date of the prescribed/dispensed
product; and
8.3.4.2.5 the name of the person (trainer)
to whom the product was dispensed.
8.3.5 Furosemide (Lasix)
8.3.5.1 General
Furosemide (Lasix) may be
administered intravenously to a horse on the grounds of the
association at which it is entered to compete in a race.
Except under the instructions of the Commission
Veterinarian for the purpose of removing a horse from the
Steward's List or to facilitate the collection of a post-race
urine sample, furosemide (Lasix) shall be permitted only
after the Commission Veterinarian has placed the horse on
the Bleeder List.
3 DE Reg 1520 (5/1/00)
8.3.5.2 Method of Administration
Lasix shall be administered
intravenously by a licensed practicing veterinarian, unless
the Commission Veterinarian determines that a horse cannot
receive an intravenous administration of Lasix and gives
permission for an intramuscular administration; provided,
however, that once Lasix is administered intramuscularly,
the horse shall remain in a detention area under the
supervision of a Commission representative until it races.
3 DE Reg 1520 (5/1/00)
8.3.5.3 Dosage
Lasix shall be administered to horses
on the Bleeder List only by a licensed practicing
veterinarian, who will administer not more than 500
milligrams nor less than 100 milligrams, subject to the
following conditions:
8.3.5.3.1 If less than 500 milligrams is
administered, and subsequent laboratory findings are
inconsistent with such dosage or with the time of
administration, then the trainer shall be subject to a fine or
other disciplinary action;
8.3.5.3.2 Not more than 750 milligrams
may be administered if (1) the State veterinarian grants
permission for a dosage greater than 500 milligrams, and (2)
after the administration of such greater dosage, the horse
remains in a detention area under the supervision of a
Commission representative until it races; and
8.3.5.3.3 The dosage administered may
not vary by more than 250 milligrams from race to race
without the permission of the Commission Veterinarian.
3 DE Reg 1520 (5/1/00)
8.3.5.4 Timing of Administration
Horses must be presented at the Lasix
stall in the paddock, and the Lasix administered, not more
than three hours and 30 minutes (3-1/2 hours) nor less than
three hours (three hours) prior to post time of their respective
races. Failure to meet this time frame will result in
scratching the horse, and the trainer may be fined.
4 DE Reg 336 (8/1/00)
8.3.5.5 Veterinary Charges
It is the responsibility of the owner or
trainer, prior to the administration of the medication, to pay
the licensed practicing veterinarian at the rate approved by
the Commission. No credit shall be given.
8.3.5.6 Restrictions
No one except a licensed practicing
veterinarian shall possess equipment or any substance for
injectable administration on the race track complex, and no
horse is to receive furosemide (Lasix) in oral form.
8.3.5.7 Post-Race Quantification
8.3.5.7.1 As indicated by post-race
quantification, a horse may not carry in its body at the time
of the running of the race more than 100 nanograms of Lasix
per milliliter of plasma in conjunction with a urine that has a
specific gravity of less than 1.01, unless the dosage of Lasix:
8.3.5.7.1.1 Was
administered intramuscularly as provided in 8.3.5.2; or
8.3.5.7.1.2 Exceeded 500
milligrams as provided in 8.3.5.3.2.
8.3.5.7.2 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race more than 100 nanograms of furosemide
per milliliter of plasma in conjunction with a urine that has a
specific gravity of 1.010 or lower, and provided that the
dosage of furosemide was not administered intramuscularly
as provided in 8.3.5.3.2 or exceeded 500 milligrams as
provided in 8.3.5.3.2, then a penalty shall be imposed as
follows:
8.3.5.7.2.1 If such overage is
the first violation of this rule within a 12-month period: Up
to a $250 fine and loss of purse.
8.3.5.7.2.2 If such overage is
the second violation of this rule within a 12-month period:
Up to a $1,000 fine and loss of purse.
8.3.5.7.2.3 If such overage is
the third violation of this rule within a 12-month period: Up
to a $1,000 fine and up to a 15-day suspension and loss of
purse.
8.3.5.7.2.4 If in the opinion
of the official chemist any such overage caused interference
with testing procedures, then for each such overage a penalty
of up to a $1,000 fine and a suspension of from 15 to 50 days
may be imposed.
3 DE Reg 1520 (5/1/00)
8.3.5.8 Reports
8.3.5.8.1 The licensed practicing
veterinarian who administers Lasix to a horse scheduled to
race shall prepare a written certification indicating the time,
dosage and method of administration.
8.3.5.8.2 The written certification shall be
delivered to a Commission representative designated by the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
848 FINAL REGULATIONS
State Steward at least one (1) hour before the horse is
scheduled to race.
8.3.5.8.3 The State Steward or judges
shall order a horse scratched if the written certification is not
received in a timely manner.
8.3.5.9 Bleeder List
8.3.5.9.1 The Commission Veterinarian
shall maintain a Bleeder List of all horses which have
demonstrated external evidence of exercise induced
pulmonary hemorrhage (EIPH) or the existence of
hemorrhage in the trachea post exercise upon:
3 DE Reg 1520 (5/1/00)
8.3.5.9.1.1 visual examination
wherein blood is noted in one or both nostrils either:
8.3.5.9.1.1.1 during a race;
8.3.5.9.1.1.2 immediately postrace
or post-exercise on track; or
8.3.5.9.1.1.3 within one hour
post-race or post-exercise in paddock and/or stable area,
confirmed by endoscopic examination; or
8.3.5.9.1.2 endoscopic examination,
which may be requested by the owner or trainer who feels
his or her horse is a bleeder. Such endoscopic examination
must be done by a practicing veterinarian, at the owner's or
trainer's expense, and in the presence of the Commission
Veterinarian or Lasix veterinarian. Such an examination
shall take place within one hour post-race or post-exercise;
or
3 DE Reg 1520 (5/1/00)
8.3.5.9.1.3 presentation to the
Commission Veterinarian, at least 48 hours prior to racing, of
a current Bleeder Certificate from an official veterinarian
from any other jurisdiction, which show the date, place and
method -- visual or endoscopy -- by which the horse was
determined to have bled, or which attests that the horse is a
known bleeder and receives bleeder medication in that
jurisdiction, provided that such jurisdiction's criteria for the
identification of bleeders are satisfactory to the Commission
Veterinarian.
3 DE Reg 1520 (5/1/00)
8.3.5.9.2 The confirmation of a
bleeder horse must be certified in writing by the Commission
Veterinarian or the Lasix veterinarian and entered on the
Bleeder List. Copies of the certification shall be issued to
the owner of the horse or the owner's designee upon request.
A copy of the bleeder certificate shall be attached to the
horse's eligibility certificate.
3 DE Reg 1520 (5/1/00)
8.3.5.9.3 Every confirmed bleeder,
regardless of age, shall be placed on the Bleeder List, and
Lasix must be administered to the horse in accordance with
these rules prior to every race, including qualifying races, in
which the horse starts.
8.3.5.9.4 A horse which bleeds based
on the criteria set forth in 8.3.5.9.1 above shall be restricted
from racing at any facility under the jurisdiction of the
Commission, as follows:
8.3.5.9.4.1 1st time - 10 days;
8.3.5.9.4.2 2nd time - 30 days,
provided that the horse must be added to or remain on the
Bleeder List, and must complete a satisfactory qualifying
race before resuming racing;
8.3.5.9.4.3 3rd time - 30 days, and the
horse shall be added to the Steward's List, to be removed at
the discretion of the Commission Veterinarian following a
satisfactory qualifying race after the mandatory 30-day rest
period; and
3 DE Reg 1520 (5/1/00)
8.3.5.9.4.4 4th time - barred for life.
8.3.5.9.5 An owner or trainer must
notify the Commission Veterinarian immediately of evidence
that a horse is bleeding following exercise or racing.
3 DE Reg 1520 (5/1/00)
8.3.5.9.6 A horse may be removed
from the Bleeder List at the request of the owner or trainer, if
the horse completes a 10-day rest period following such
request, and then re-qualifies.
8.3.5.9.7 Any horse on the Bleeder
List which races in a jurisdiction where it is not eligible for
bleeder medication, whether such ineligibility is due to the
fact that it does not qualify for bleeder medication in that
jurisdiction or because bleeder medication is prohibited in
that jurisdiction, shall automatically remain on the Bleeder
List at the discretion of the owner or trainer, provided that
such decision by the owner or trainer must be declared at the
time of the first subsequent entry in Delaware, and the Lasix
symbol in the program shall appropriately reflect that the
horse did not receive Lasix its last time out. Such an election
by the owner or trainer shall not preclude the Commission
Veterinarian, State Steward or Presiding Judge from
requiring re-qualification whenever a horse on the Bleeder
List races in another jurisdiction without bleeder medication,
and the integrity of the Bleeder List may be questioned.
3 DE Reg 1520 (5/1/00)
8.3.5.9.8 Any horse on the Bleeder
List which races without Lasix in any jurisdiction which
permits the use of Lasix shall automatically be removed
from the Bleeder List. In order to be restored to the Bleeder
List, the horse must demonstrate EIPH in accordance with
the criteria set forth in subdivision 1 above. If the horse does
demonstrate EIPH and is restored to the Bleeder List, the
horse shall be suspended from racing in accordance with the
provisions of 8.3.6.4 above.
8.3.5.9.9 The State Steward or Presiding
Judge, in consultation with the State veterinarian, will rule
on any questions relating to the Bleeder List.
8.3.5.10 Medication Program Entries
It is the responsibility of the trainer at the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 849
time of entry of a horse to provide the racing secretary with
the bleeder medication status of the horse on the entry blank,
and also to provide the Commission Veterinarian with a
bleeder certificate, if the horse previously raced out-of-state
on bleeder medication.
3 DE Reg 1520 (5/1/00)
8.3.6 Phenylbutazone (Bute)
8.3.6.1 General
8.3.6.1.1 Phenylbutazone or
oxyphenbutazone may be administered to horses three years
of age and older in such dosage amount that the official test
sample shall contain not more than 2.0 micrograms per
milliliter of blood plasma.
8.3.6.1.2 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race more than 2.0 but not more than 2.6
micrograms per milliliter of blood plasma of phenylbutazone
or oxyphenbutazone, then warnings shall be issued to the
trainer.
8.3.6.1.3 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race more than 2.6 micrograms per milliliter
of blood plasma of phenylbutazone or oxyphenbutazone,
then a penalty shall be imposed as follows:
8.3.6.1.3.1 For an average
between 2.6 and less than 5.0 micrograms per milliliter:
8.3.6.1.3.1.1 If such
overage is the first violation of this rule within a 12-month
period: Up to a $250 fine and loss of purse.
8.3.6.1.3.1.2 If
such overage is the second violation of this rule within a 12-
month period: Up to a $1,000 fine and loss of purse.
8.3.6.1.3.1.3 If such
overage is the third violation of this rule within a 12-month
period: Up to a $1,000 fine and up to a 15-day suspension
and loss of purse.
8.3.6.1.3.1.4 For an
overage of 5.0 micrograms or more per milliliter: Up to a
$1,000 fine and up to a 5-day suspension and loss of purse.
8.3.6.1.4 If post-race quantification
indicates that a horse carried in its body at the time of the
running of the race any quantity of phenylbutazone or
oxyphenbutazone, and also carried in its body at the time of
the running of the race any quantity of any other nonsteroidal
anti-inflammatory drug, including but not limited
to naproxen, flunixin and meclofenamic acid, then such
presence of phenylbutazone or oxyphenbutazone, shall
constitute a violation of this rule and shall be subject to a
penalty of up to a $1,000 fine and up to a 50-day suspension
and loss of purse.
3 DE Reg 1520 (5/1/00)
THOROUGHBRED RACING COMMISSION
Statutory Authority: 3 Delaware Code,
Section 10103 (3 Del.C. §10103)
Order
Pursuant to 29 Del.C. §10118 and 3 Del.C. §10103, the
Delaware Thoroughbred Racing Commission
("Commmission") hereby issues this Order promulgating a
proposed amendment to the Commission's Rule 13.01.
Following notice of the proposed Rule amendment, the
Commission makes the following findings and conclusions:
Summary of the Evidence and Information Submitted
1. The Commission posted public notice of the
proposed rule revision in the July 1, 2001 Register of
Regulations. The proposal contained a proposed amendment
to Rule 13.01. The Rule amendment would permit any
owner with a valid/current Delaware license to claim a
horse. The Commission accepted written comments from the
public on the proposed amendments from July 1, 2001 until
July 31, 2001. The Commission receieved no written
comments during this period.
Findings of Fact
2. The public was given notice and an opportunity to
provide the Commission with comments in writing regarding
the proposed rule amendments. The Commission received
no comments about the rule change. The Commission finds
that the proposed rule change is in the best interests of racing
and will simplify the claiming process for owners.
Conclusions
3. The proposed rule amendment to Rule 13.01 was
promulgated by the Commission in accord with its statutory
duties and authority as set forth in 3 Del.C. §10103. The
Commission deems this rule amendment to be necessary for
the effective enforcement of 3 Del.C. Chapter 101 and for
the full and efficient performance of the duties thereunder.
4. The Commission concludes that the adoption of the
proposed rule is necessary and desirable to ensure the
integrity and security of throroughbred racing in the State of
Delaware. The Commission therefore adopts the following
rule amendments to Rule 13.01. These rules replace in their
entirety the former version of the Rules of the Delaware
State Thoroughbred Racing Commission.
5. The effective date of this Order shall be ten (10) days
from the publication of this order in the Register of
Regulations on October 1, 2001. Attached hereto and
incorporated herein in the amended Rule 13.01 marked as
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
850 FINAL REGULATIONS
Exhibit A and executed simultaneously this 21st day of
August, 2001.
IT IS SO ORDERED this 21st day of August, 2001.
Bernard Daney, Chairman
Duncan Patterson, Commissioner
H. James Decker, Commissioner
Carolyn Wilson, Commissioner
PART 13 -- CLAIMING RACES
13.01 Owners Entitled:
In claiming races, any horse is subject to claim for its
entered price by any Owner in good standing whohas started
a horse at the meeting at which the claim is made possesses a
valid/current Delaware license. An Owner may claim out of
the race in which he first starts a horse.
A new Owner, i.e., an individual, partnership,
corporation or any other authorized racing interest who has
not held an Owner's licenses in any racing jurisdiction during
the prior year, is eligible to claim by obtaining an "Open
Claiming License" from the Delaware Thoroughbred Racing
Commission.
In order to obtain an open claiming license and file an
open claim, an individual must comply with the following
procedures:
(a) Depositing an amount no less than the minimum
claiming price of the intended claim at that meet with the
Horsemen's Bookkeeper. Such amount shall remain on
account until a claim is in fact made. In the event of
withdrawal of such fund, any license issued hereunder shall
be automatically revoked and terminated.
(b) Securing an Owner or authorized racing interest
license by the Delaware Thoroughbred Racing Commission.
Such license will be conditioned upon the making of a claim
and shall be revoked if no such claim is, in fact, made within
thirty (30) racing days after issuance or if the deposit above
required is withdrawn prior to completion of a claim.
(c) Naming a Trainer licensed by the Delaware
Thoroughbred Racing Commission who will represent him
once said claim is made.
13.02 Claim by Agent:
A claim may be made by an authorized agent, but an
agent may claim only for the account of those for whom he is
authorized and registered as agent and the name of the
authorized agent, as well as the name of the Owner for
whom the claim is being made, shall appear on the claim
slip.
13.03 Claiming Own Horse Prohibited:
No person shall claim his own horse or cause his own
horse to be claimed, directly or indirectly, for his own
account. No claimed horse shall remain in the same stable or
under the care or management of the Owner or Trainer from
whom claimed.
13.04 Limits on claims:
No person shall claim more than one horse from any one
race. No authorized agent, although representing several
Owners, shall submit more than one claim for any race.
When a stable consists of horses owned by more than one
person, trained by the same Trainer, not more than one claim
may be entered on behalf of such stable in any one race. An
Owner who races in a partnership may not claim except in
the interest of the partnership, unless he has also started a
horse in his own individual interest. An owner who races in
a partnership may claim in his or her individual interest if the
individual has started a horse in the partnership. The
individual must also have an account with the horsemen's
bookkeeper that is separate from the partnership account.
13.05 Thirty Day Prohibition -- Racing Claimed Horse:
Repealed 8/95.
13.06 Thirty Day Prohibition -- Sale of Claimed Horse:
No horse claimed in a claiming race shall be sold or
transferred, wholly or in part, to anyone within thirty (30)
days after the day it was claimed, except in another claiming
race. No claimed horse shall race elsewhere until sixty (60)
calendar days after the date on which it was claimed or until
after the close of the meeting at which it was claimed,
whichever comes first. The day claimed shall not count, but
the following calendar day shall be the first day and the
horse shall be entitled to enter elsewhere whenever
necessary so the horse may start on the 61st calendar day
following the claim. The Stewards shall have the authority
to waive this rule upon application, so as to allow a claimed
horse to race in a stakes race. The Stewards may also permit
a horse claimed in a steeplechase or hurdle race to race
elsewhere in a steeplechase or hurdle race after the close of
the steeplechase program, if such a program ends before the
close of the meeting at which it is claimed.
Revised: 7/16/86
13.07 Form of Claim:
Each claim shall be made in writing on a form and in an
envelope supplied by Licensee. Both form and envelope
must be filled out completely and must be accurate in every
detail.
13.08 Procedure for Claim:
Claims must be deposited in the claim box at least ten
(10) minutes before post time of the race from which the
claim is being made. No money or its equivalent shall be put
in the claim box. For a claim to be valid, the claimant must
have, at the time of filing the claim, a credit balance in his
account with the Horsemen's Bookkeeper of not less than the
amount of the claim.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 851
Revised: 8/15/95
13.09 Stewards' Duties:
The Stewards, or their designated representatives, shall
open the claim envelopes for each race as soon as the horses
leave the paddock en route to the post. They shall thereafter
check with the Horsemen's Bookkeeper to ascertain whether
the proper credit balance has been established with the
Licensee and with the Racing Secretary as to whether the
claimant has claiming privileges at Licensee's meeting.
13.10 Conflicting claims:
If more than one valid claim is filed for the same horse,
title to the horse shall be determined by lot under the
supervision of the Stewards or their designated
representative.
13.11 Delivery of Claimed Horse:
Any horse that has been claimed shall, after the race has
been run, be taken to the paddock for delivery to the
claimant, who must present written authorization for the
claim from the Racing Secretary. No person shall refuse to
deliver to the person legally entitled thereto a horse claimed
out of a claiming race and, until delivery is made, the horse
in question shall be disqualified from further racing.
13.12 Nature and Effect of a Claim:
Claims are irrevocable. Title to a claimed horse shall be
vested in the successful claimant from the time the said horse
is a starter and said claimant shall then become the Owner of
the horse, whether it be alive or dead, sound or unsound, or
injured, during the race or after it. A claimed horse shall run
in the interest of and for the account of the Owner from
whom claimed.
13.13 Prohibited Practices:
No person shall offer or enter into an agreement to claim
or not to claim or to attempt to prevent another person from
claiming any horse in a claiming race. No person shall
attempt, by intimidation, to prevent anyone from running a
horse in any claiming race. No Owner or Trainer shall make
an agreement with another Owner or Trainer for the
protection of each other's horses in a claiming race.
Rule 13.06 Rev. March 1976.
13.14 Invalidation of Claim:
Claims which are not made in keeping with the Rules
shall be void. The Stewards may, at any time in their
discretion, require any person filing a claim to furnish an
affidavit in writing that he is claiming in accordance with
these Rules. The Stewards shall be the judges of the validity
of the claim and, if they feel that a "starter" was nominated
for the purpose of making its Owner eligible to claim, they
may invalidate the claim.
13.15 Necessity to Record Lien:
Any person holding a lien of any kind against a horse
entered in a claiming race must record the same with the
Racing Secretary and/or Horsemen's Bookkeeper at least
thirty (30) minutes before post time for that race. If none is
so recorded, it shall be conclusively assumed, for claiming
purposes, that none exists.
13.16 Claiming Privileges -- Eliminated Stable:
If a person's stable shall be eliminated with thirty (30)
racing days or less remaining in the current racing season,
and such person is unable to replace the horse(s) lost via a
claim by the end of the racing season, such person may apply
to the Stewards for an additional thirty (30) racing days of
eligibility to claim in the new race meeting as long as the
person owns no other horses at the start of the next race
meeting.
13.17 Claim Embraces Horse's Prior Engagements:
The engagements of a claimed horse pass automatically
with the horse to the claimant.
13.18 Caveat Emptor:
Notwithstanding any designation of sex or age
appearing on the racing program or in any racing
publication, the claimant of a horse shall be solely
responsible for determining the age or sex of the horse
claimed.
13.19 Racing Claimed Horse:
No horse claimed in a claiming race shall be raced in
another claiming race for an amount less than the original
claiming price for a period of thirty (30) days after the date
of the original claim.
DEPARTMENT OF EDUCATION
Title 14, DE Admin. Code
Statutory Authority: 14 Delaware Code,
Section 122(d) (14 Del.C. §122(d))
Repeal of Certification Regulations 303, 315, 316, 317,
318, 359, 366, 367, 369
Order Repealing Rules and Regulations
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 repeal
regulations 303, 315, 316, 317, 318, 359, 366, 367, and 369
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
852 FINAL REGULATIONS
from the Regulations of the Department of Education. All
regulations listed concern the requirements for certification
of educational personnel. The Professional Standards Board
voted, on the recommendation of its Licensure and
Certification Criteria Standing Committee, to eliminate
certification requirements for non-instructional positions and
for individuals who are duly certified or licensed by other
Delaware agencies.
Notice of the proposed repeal of regulations was
published in the News Journal and the Delaware State News
on July 19, 2001, in the form hereto attached as Exhibit A.
The notice invited written comments. Correspondence was
received from the President of the Delaware Speech and
Hearing Association indicating no objection to the repeal of
regulations 359 and 369.
II. Findings of Facts
The Professional Standards Board and the State Board
of Education find that it is appropriate to repeal these
regulations because elimination of certification requirements
for non-instructional positions will provide local boards of
education more flexibility in hiring the individuals best
suited for the positions and will alleviate the need for the
Department of Education to review and process applications
for certification for non-instructional positions. This will
permit the Department to focus its energies on and allocate
its resources to the licensure and certification of instructional
personnel in schools. Elimination of certification
requirements for individuals who are duly certified or
licensed by other Delaware agencies will eliminate
redundancy and possible conflict between certification or
licensure requirements among agencies.
III. Decision to Repeal the Regulations
For the foregoing reasons, the Professional Standards
Board and the State Board of Education conclude the
identified regulations should be repealed. Therefore,
pursuant to 14 Del. C. Sections 1203 and 1205(b). the
regulations attached hereto as Exhibit "B" are hereby
repealed.
IV. Text and Citation
The text of the regulations 303, 315, 316, 317, 318, 359,
366, 367, and 369, attached hereto as Exhibit "B" are
repealed, and said regulations shall be deleted from the
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 13th
Day of September, 2001:
Charles Michels, Chair, Mary Ellen Kotz, Vice Chair
Patricia Clements Barbara Grogg
Michèle Hazeur-Porter Sherie Hudson
Tony Marchio Mary Mirabeau
John Pallace Joanne Reihm
Harold Roberts Karen Schilling Ross
Teresa Schooley Carol Vukelich
Jacquelyn Wilson
For Implementation by the Department of Education:
Valerie A Woodruff, Secretary of Education
It Is So Ordered this 20th Day of September, 2001.
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert Gilsdorf
Mary B. Graham, Esquire
Valerie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
303 Certification Administrative - Assistant Superintendent
For Business
Effective July 1, 1993
1.0 The following shall be required for the Standard License
for a person employed to have a major responsibility in the
area of finance/school business.
1.1 Degree required
1.1.1 Master's degree from a regionally accredited
college plus 30 graduate semester hours and,
1.2 Experience
1.2.1 A minimum of three years successful
full-time experience as a teacher or school administrator, or
other full-time experience in a non-educational setting
related to business/business management and,
1.3 Specialized Professional Preparation
1.3.1 Master's degree in Education, Educational
Administration, Business, Business Administration,
Accounting, Public Administration or other closely related
business field and,
1.3.2 Meets the Specialized Professional
Preparation for the Standard School Business Manager's
License.
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 853
school district, to a person employed in the above position to
allow for the completion of the requirements for the
Standard certificate in 1.0.
2.1.1 Meets the requirements specified within 1.1,
1.2, 1.3.1 and,
2.1.2 Meets the requirements for a Limited
Standard License as stated under the School
BusinessManager's License.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
315 Certification Manager Of School Bus Transportation
Effective July 1, 1993
1.0 The following shall be required for the Standard License
1.1 Degree required
1.1.1 None. High School Diploma or its
Equivalent and,
1.2 Experience
1.2.1 Training or experience deemed appropriate
such as bus traffic management, safety management,
business management and,
1.3 Specialized Professional Preparation, one course in
each of the following areas:
1.3.1 State Budget Procedures/DFMS or School
Business Management
1.3.2 Safety
1.3.3 Transportation
1.3.4 Supervision/Personnel Administration.
2.0 The following shall be required for the Limited Standard
License
2.1 This license may be issued for a period of three
years, at the request of a Delaware public school district, to a
person employed as a Manager of School Bus Transportation
to allow for the completion of the requirements for the
Standard License in 1.0.
2.1.1 May be issued to a public school district
employee who has met the requirements of 1.1 and1.2.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
316 Certification Supervisor Of School Bus Transportation
Effective July1, 1993
1.0 The following shall be required for the Standard
License
1.1 Degree required
1.1.1 Bachelor's degree from a regionally
accredited college and,
1.2 Experience
1.2.1 Three years experience as a teacher or school
administrator or,
1.2.2 Five years of full time, successful experience
in transportation management and,
1.3 Specialized Professional Preparation, one course in
each of the following areas:
1.3.1 State Budget Procedures or School Business
Management
1.3.2 Safety
1.3.3 Transportation
1.3.4 Supervision/Personnel Administration
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed as a Supervisor of
School Bus Transportation to allow for the completion of the
requirements for the Standard License in 1.0.
2.1.1 May be issued to a public school district
employee who has met the requirements of 1.1 and 1.2.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard
317 Certification School Business Manager
Effective July 1, 1993
1.0 The following shall be required for the Standard License
for any individual employed as a School
Business Manager or occupying any other
administrative position with major responsibility for school
finance/business.
1.1 Degree required
1.1.1 Bachelor's degree from a regionally
accredited college with a major in business administration,
accounting, public administration or any other closely
related curriculum such as finance or economics and,
1.2 Specialized Professional Preparation
1.2.1 A minimum of one course from each of the
following areas:
1.2.1.1 School Business Management
1.2.1.2 School or Business Law
1.2.2 Delaware Financial Management System
(DFMS) or State Accounting Procedures
1.2.3 A minimum of two courses chosen from any
of the following areas:
1.2.3.1 Intermediate Accounting
1.2.3.2 Finance
1.2.3.3 Facilities Management (including the
planning of construction and facilities maintenance)
1.2.3.4 Human Resource Management
1.2.4 Work experience or training outside of the
field of education may be accepted in lieu of any of the
courses listed in 1.2.3 if such experience is deemed
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
854 FINAL REGULATIONS
equivalent. Verification of the experience shall be required
and submitted to the Department of Education, Office of
Certification, which shall then determine if the documented
experience will serve in lieu of coursework.
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed as a School Business
Manager to allow for the completion of the requirements for
the Standard License in 1.0.
2.1.1 Meets the requirements specified in 1.1 and,
2.1.2 Meets the requirements in 1.1 with the
exception of the DFMS State Accounting Procedure and one
course from 1.2.3.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
318 Certification Manager Of School Food Service
Programs
Effective July 1, 1993
1.0 The following shall be required for the Standard License
1.1 Degree required
1.1.1 None; High School Diploma or equivalent
and,
1.2 Experience
1.2.1 A minimum of three years of successful,
full-time (minimum of 15 hours per week) work experience
in quantity food production and service or,
1.2.2 Experience validated by completing a Trade
Competency Examination as approved by the Department of
Education and,
1.3 Specialized Professional Preparation
1.3.1 Associate degree in Food Service
Management Technology from a regionally accredited
college or,
1.3.2 A high school graduate, and the completion
of the six-unit Food Service Training Program under the
approval of the Department of Education or,
1.3.3 A high school graduate and verification of
training that is equivalent to 1.3.1 or 1.3.2 as evaluated by
the Department of Education, Education Associate of School
Food Services.
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed as a School Food
Service Manager to allow for the completion of the
requirements for the Standard License as listed in 1.0.
2.1.1 May be issued to a public school district
employee who has met the requirements of 1.1 and 1.2. with
the obligation to complete 1.3.1, 1.3.2 or 1.3.3 within the
three year period of the License.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
319 Certification Supervisor Of School Food Service
Programs
Effective July 1, 1993
1.0 The following shall be required for the Standard License
for all full-time supervisors of a school food service
program.
1.1 Degree required
1.1.1 Bachelor's degree from a regionally
accredited college and,
1.2 Experience
1.2.1 Two years of professional experience or
teaching experience in the areas of food, nutrition, or
institutional management or,
1.2.2 Successful completion of a Dietetic
Internship as approved by the American Dietetic Association
or,
1.2.3 Two years of experience in the supervision of
quantity food production and service, or related business
experience in the area of food, nutrition or institutional
management or,
1.2.4 Two years of experience as a manager of a
school food service unit or as the assistant manager, if the
experience as the assistant occurs after the employee has
been working in the school food service unit for at least two
years prior to being assigned as Assistant Manager and,
1.3 Specialized Professional Preparation
1.3.1 Completion of the requirements for the
Bachelor's degree as stated above to include a major that is at
least 30 semester hours, and in one of the following area
1.3.1.1 Business
1.3.1.2 Nutrition
1.3.1.3 Education
1.3.1.4 Institutional Management
1.3.1.5 Child Development
1.3.1.6 Quantity Food Preparation or,
1.3.2 Completion of the requirements of any
Bachelor's degree and 30 semester hours in one of the areas
listed above, whether or not the coursework is part of the
degree program.
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed as a School Food
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 855
Service Supervisor to allow for the completion of the
requirements for the Standard License in 1.0.
2.2 May be issued to a public school district employee
who has met the requirements of 1.1 and 1.2 and,
2.3 Meets the requirements for Limited Standard as
stated in the General Regulations in regard to 1.3.1. or 1.3.2.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
359 Certification Audiology
Effective July 1, 1993
1.0 The following shall be required for the Standard
License.
1.1 Licensed Audiologist from the State of Delaware
and,
1.2 Professional Education
1.2.1 Completion of a master's degree program in
the area of Audiology.
2.0 Licenses that may be issued for this position include
Standard and Limited Standard.
2.1 A Limited Standard License may be issued to an
Audiologist holding a temporary license during completion
of the Clinical Fellowship Year (CFY).
366 Certification School Occupational Therapist
Effective July 1. 1993
1.0 The following shall be required for the Standard
License.
1.1 Bachelor's degree from an accredited college and,
1.2 Completion of a program in occupational therapy
approved by the Council of Medical Education of the
American Medical Association and the American
Occupational Therapy Association and,
1.3 Certification by the American Occupational
Therapy Certification Board and,
1.4 A license to practice occupational therapy issued by
the State of Delaware and,
1.5 One year experience in a school setting supervised
by the district director/ supervisor of special education, or a
Level II internship at the undergraduate/graduate level
working with children of the type to be served under this
License and,
1.6 A minimum of nine semester hours covering the
following areas: Introduction/Survey of Exceptional
Children, Assessment/Prescription/IEP Development,
Applied Behavior Analysis.
2.0 The following shall be required for the Limited Standard
License.
2.1 The Limited Standard License is issued for a period
of three years at the request of a Delaware public school
district to a person who meets the requirements listed below
and who is employed as a School Occupational Therapist to
allow for the completion of the requirements for the
Standard License in1.0.
2.1.1 Requirements in 1.1, 1.2 and 1.3.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
367 Certification School Physical Therapist
Effective July 1, 1993
1.0 The following shall be required for the Standard
License.
1.1 Bachelor's degree from an accredited college and,
1.2 Completion of a program in physical therapy
approved by the American Physical Therapy Association
and,
1.3 Licensed as a Physical Therapist in the State of
Delaware and,
1.4 One year experience in a school setting or a
practicum at the undergraduate/graduate level working with
children of the type to be served under this License and,
1.5 Minimum of nine semester hours covering the
following areas: Introduction/Survey of Exceptional
Children, Assessment/Prescription/IEP Development,
Applied Behavior Analysis.
2.0 The following shall be the requirements for the Limited
Standard License.
2.1 The limited Standard License may be issued for a
period of three years at the request of a Delaware public
school to a person who meets the requirements listed below
and who is employed as a School Physical Therapist to allow
for the completion of the requirements for the Standard
License as in 1.0.
2.1.1 Requirements 1.1, 1.2, and 1.3.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
369 Certification Speech Language Pathologist
Effective July 1, 2000
1.0 The following shall be required for the Standard
License.
1.1 Licensed Speech/Hearing Pathologist in the State of
Delaware and,
1.2 Completion of a Master's degree program in the
area of speech and hearing pathology.
2.0 The License that may be issued for this position is the
Standard License.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
856 FINAL REGULATIONS
Amendment To Certification Regulations 305, 306, 308,
And 384
Order Amending Certification Regulations
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
regulations 305, 306, 308, and 384 of the Regulations of the
Department of Education. The amended regulations will
also be renumbered to reflect their movement to the
Professional Standards Board section of the regulations. All
regulations listed concern the requirements for certification
of educational personnel. The concurrent elimination of
certification requirements for non-instructional positions
requires the amendment of the regulations to reflect those
changes, as follows:
1535 305 Certification Administrative - Administrative
Assistant
Delete from 1.2.1 or three years of other related noneducational
experience as appropriate to the position
Delete from 1.3.1 If assigned to the area of business, the
applicant shall meet the minimum requirements as specified
for the School Business Manager License.
1536 306 Certification Administrative - Director
Delete from 1.0 either instructional or non-instructional.
When any part of the employee's job assignment involves
the supervision of instructional programs, the "Director of
Instructional Areas" requirements shall be met. and insert
instructional in lieu thereof.
Delete 1.2.1 in its entirety
Renumber 1.2.1.1 as 1.2.1.
Renumber 1.2.1.2 as 1.2.2.
Delete 1.2.2 in its entirety, including 1.2.2.1 and 1.2.2.2
Delete from 2.1.2 1.2.1.1 and 1.2.1.2, or 1.2.2.1 or 1.2.2.2 as
is appropriate to "Director of Instructional Areas" or
Director of Non-Instructional Areas" and insert 1.2 in lieu
thereof.
1538 308 Certification Administrative - Supervisor
Delete from 1.0 instructional or non-instructional.
When any part of the employee's job assignment involves
the supervision of school instructional programs, the
Instructional Supervisor's requirements shall be met.
Delete 1.2.1 in its entirety.
Renumber 1.2.1.1 as 1.2.1.
Delete 1.2.2 in its entirety, including 1.2.2.1 and 1.2.2.2.
Delete from 2.1.2 1.2.1 or 1.2.2 as appropriate to
Supervisor of Instructional Areas or Supervisor of Non-
Instructional areas and, and insert 1.2 in lieu thereof.
1584 384 Permits - School, Classroom Aides And Autistic
Residential Child Care Specialists
Delete 1.2.1 and 1.2.2
Renumber 1.2.3 as 1.2.1
Renumber 1.2.4 as 1.2.2
Notice of the proposed amendments to the regulations
was published in the News Journal and the Delaware State
News on July 19, 2001, in the form hereto attached as
Exhibit A. The notice invited written comments and none
were received from the newspaper advertisements.
II. Findings Of Facts
The Professional Standards Board and the State Board
of Education find that it is appropriate to revise these
regulations because it voted to eliminate certification
requirements for certain non-instructional positions. All
regulations listed concern the requirements for certification
of educational personnel. The concurrent elimination of
certification requirements for non-instructional positions
requires the amendment of these regulations to reflect those
changes.
III. Decision To Amend The Regulations
For the foregoing reasons, the Professional Standards
Board and the State Board of Education conclude that the
identified regulations should be amended as reflected above.
Therefore, pursuant to 14 Del. C. Sections 1203 and 1205
(b), the regulations are hereby amended. Pursuant to the
provisions of 14 Del. C. Section. 122(e), the certification
regulations hereby amended shall be in effect for a period of
five years from the effective date of this order as set fourth in
Section V. below.
IV. Text And Citation
The text of the regulations 1535, 1536, 1538, and 1584
shall be in the form attached hereto as Exhibit "B," and said
regulations shall be cited in the 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. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 857
Approved by the Professional Standards Board the
13th Day of September, 2001:
Charles Michels, Chair, Mary Ellen Kotz, Vice Chair
Patricia Clements Barbara Grogg
Michèle Hazeur-Porter Sherie Hudson
Tony Marchio Mary Mirabeau
John Pallace Joanne Reihm
Harold Roberts Karen Schilling Ross
Teresa Schooley Carol Vukelich
Jacquelyn Wilson
For Implementation by the Department of
Education:
Valerie A Woodruff, Secretary of Education
It Is So Ordered this 20th Day of September, 2001.
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert Gilsdorf
Mary B. Graham, Esquire
Valerie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
1535 305 Certification Administrative - Administrative
Assistant
Effective July 1, 1993
1.0 The following shall be required for the Standard License
1.1 Degree required
1.1.1 Master's degree from a regionally accredited
college and,
1.2 Experience
1.2.1 A minimum of three years of successful, fulltime
classroom teaching experience, or three years of
administrative experience, or three years of other related
non-educational experience as appropriate to the position
and,
1.3 Specialized Professional Preparation
1.3.1 Specific training or satisfactory experience
including an internship and/or fieldwork in the area in which
employed. If assigned to the area of business, the applicant
shall meet the minimum requirements as specified for the
School Business Manager License.
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed in the above position to
allow for the completion of the requirements for the
Standard License in 1.0.
2.1.1 Master's degree from an accredited college
and,
2.1.1.1 Meets the requirements of 1.2 and,
2.1.1.2 Within six semester hours of meeting
the requirements as specified in 1.3.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
1536 306 Certification Administrative - Director
Effective July 1, 1993
1.0 The following shall be required for the Standard License
for persons employed to be responsible for the
administration of specialized instructional areas, either
instructional or non-instructional. When any part of the
employee's job assignment involves the supervision of
instructional programs, the "Director of Instructional Areas"
requirements shall be met.
1.1 Degree required
1.1.1 aster's degree plus thirty semester hours of
graduate level coursework from a regionally accredited
college(s) and,
1.2 Experience
1.2.1 Director of Instructional Areas (Schools,
Programs, and Staff Development) such as Elementary
Education, Secondary Education, Educational Leadership,
Curriculum and Instruction, Human Resource Management
and specific curricular areas.
1.2.1 1.2.1.1 A minimum of three years of
successful, full-time classroom teaching experience or,
1.2.2 1.2.1.2 A minimum of three years of
successful, full-time administrative experience in the
specific area to be directed, within a school system or,
1.2.2 Director of Non-Instructional Areas (School
Services) such as Personnel, Administrative Services,
Finance and Public Relations, Pupil Services.
1.2.2.1 A minimum of three years of
successful, full-time classroom teaching experience or,
1.2.2.2 A minimum of three years of
successful, full-time experience in a field specifically related
to the area to be directed and,
1.3 Specialized Professional Preparation
1.3.1 Master's degree plus thirty semester hours of
graduate level coursework from a regionally accredited
college(s) with a major in Educational Supervision and
Curriculum or Educational Administration or Educational
Leadership, or Human Resource Management; and Twentyone
semester hours of graduate level coursework specific to
the area to be directed or,
1.3.2 Master's degree in any field plus thirty
semester hours of graduate level coursework from a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
858 FINAL REGULATIONS
regionally accredited college(s) to include the following
graduate level coursework:
1.3.2.1 A minimum of twenty-one semester
hours of graduate level coursework specific to the area to be
directed and,
1.3.2.2 A minimum of twenty-one semester
hours of graduate level coursework in the area of
administration, to include at least one course in each of the
following areas:
1.3.2.2.1 Curriculum Development and
Instruction
1.3.2.2.2 Supervision/Evaluation of Staff
1.3.2.2.3 School Business Management
1.3.2.2.4 School Law/Legal Issues in
Education
1.3.2.2.5 Human Resource Management
1.3.2.2.6 Human Development (to include
child/adolescent development)
1.3.2.2.7 Organizational Management
(NOTE: Any of the requirements listed in 1.3.1. or 1.3.2
may be met by coursework taken either within or in addition
to the Master's degree plus thirty semester hours.)
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years, at the request of a Delaware public
school district, to a person employed in the above position to
allow for the completion of the requirements for the
Standard License in 1.0.
2.1.1 Master's degree plus thirty semester hours of
graduate level coursework from a regionally accredited
college; and
2.1.2 Meets all experience requirements in 1.2
1.2.1.1 and 1.2.1.2, or 1.2.2.1 or 1.2.2.2 as is appropriate to
"Director of Instructional Areas" or "Director of Non-
Instructional Areas"; and
2.1.3 Meets the Specialized Professional
Preparation requirement in the specialized area 1.3.2.1 and is
within six semester hours of meeting the administrative
coursework in 1.3.2.1.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
1538 308 Certification Administrative - Supervisor
Effective July 1, 1993
1.0 The following shall be required for the Standard License
for persons employed to be responsible for the
administration of specialized areas, instructional or noninstructional.
When any part of the employee's job
assignment involves the supervision of school instructional
programs, the Instructional Supervisor's requirements shall
be met.
1.1 Degree required
1.1.1 Master's degree from a regionally accredited
college and,
1.2 Experience
1.2.1 Supervisor of Instructional areas (Schools,
Programs and Staff Development) such as Elementary
Education, Secondary Education, Educational Leadership,
Curriculum and Instruction, Human Resource Management,
specific curricular areas.
1.2.1 1.2.1.1 A minimum of three years of
successful, full-time classroom teaching experience in the
instructional area to be supervised or and,
1.2.2 Supervisor of Non-Instructional Areas
(School Services) such as Personnel, Administrative
Services, Finance, Public Relations, Pupil Services.
1.2.2.1 A minimum of three years of
successful, full-time classroom teaching experience or,
1.2.2.2 A minimum of three years of
successful, full-time experience in a field specifically related
to the area to be supervised;
1.3 Specialized Professional Preparation
1.3.1 Master's degree from a regionally accredited
college with a major in Educational Supervision and
Curriculum and,
1.3.2 Fifteen semester hours of graduate level
coursework, specific to the area to be supervised or,
1.3.3 A Master's degree in any field from a
regionally accredited college with the following graduate
level coursework included within, or in addition to, the
degree:
1.3.3.1 A minimum of fifteen semester hours
of graduate level coursework in the area to be supervised
and,
1.3.3.2 A minimum of fifteen semester hours
of graduate level coursework in administration to include
one course in each of the following areas:
1.3.3.2.1 Curriculum Development
1.3.3.2.2 Supervision/Evaluation of Staff
1.3.3.2.3 Human Relations
1.3.3.2.4 School Law/Legal Issues
2.0 The following shall be required for the Limited Standard
License
2.1 The Limited Standard License may be issued for a
period of three years at the request of a Delaware public
school district, to a person employed in the above position to
allow for the completion of the requirements for the
Standard License in 1.1.
2.1.1 Master's degree from a regionally accredited
college; and
2.1.2 Meets all requirements in 1.2 1.2.1 or 1.2.2 as
appropriate to Supervisor of Instructional Areas or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 859
Supervisor of Non-Instructional Areas and,
2.1.3 Within six semester hours of meeting the
specific coursework requirements in 1.3.1 and 1.3.2, or
within six semester hours of meeting the specific coursework
requirements in 1.3.3.1 and 1.3.3.2.
3.0 Licenses that may be issued for this position include
Standard and Limited Standard.
1584 384 Permits - School, Classroom Aides And
Autistic Residential Child Care Specialists
Effective July 1, 1993
1.0 The following shall be required for a Permit.
1.1 A permit shall be required for all persons employed
either full time or part time as a school aide, classroom aide,
or autistic residential child care specialist, regardless of
funding source (state, federal, local or other funding).
1.1.1 Qualifications include evaluated experience
and training that shall emphasize skills relevant to the
position as well as giving consideration to unique personal
qualifications. Applicants shall be at least 18 years of age.
1.2 Categories of Functions shall include those persons
participating in non-teaching activities such as:
1.2.1 School Aides - assisting in supervision of
playgrounds, bus loading, cafeteria, etc.
1.2.2 Clerical Aides - maintaining records,
materials, and equipment in school offices, instructional
material centers and classrooms.
1.2.1 1.2.3 Classroom Aides - assisting classroom
teachers in activities that support the teaching process, but
are under the supervision of the teacher (such as typing
stories, putting on wraps, reading stories, locating reference
materials, etc.).
1.2.2 1.2.4 Autistic Residential Child Care Specialists -
Assisting in training functions such as domestic, community,
self-care, leisure and behavior management activities.
1.3 Credentials
1.3.1 All persons employed under the Permit
Program shall be expected to submit to the district, the same
credentials as required of other Licensed employees,
including the Health License.
1.4 Job Definition
1.4.1 A school district shall be required to submit a
job definition for any person employed as an aide or as an
autistic residential child care specialist.
Regulatory Implementing Order
398 Degree Granting Institutions of Higher Education
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the approval of the
State Board of Education to amend the regulation 398
Degree Granting Institutions of Higher Education. The
amendments are in response to concerns expressed by the
Higher Education Commission at the time the regulations
were reformatted and readopted. These amendments reflect
suggestions made by the Commission. Changes for clarity
and accuracy have been made in some sections. In 1.10,
Library, Sections 1.10.1-1.10.5 were removed and replaced
with a statement that higher education institutions must
follow Middle States standards. Section 2.1.2.4 adds the
requirement of an on-site visit to Delaware locations before
final program approval. Section 2.2 requires that the
institution seeking approval cover all expenses incurred by a
visiting team. Section 4.11 increases the licensing fee to
$250 due to inflation. Sections 6.0-8.0 are new sections that
further define the relationship between the Higher Education
Commission and the Department of Education in the
approval process
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on July 19,
2001, in the form hereto attached as Exhibit A. The notice
invited written comments and none were received from the
newspaper advertisements.
II. Findings of Facts
The Secretary finds that it is necessary to amend this
regulation as recommended by the Higher Education
Commission in order to improve the identified sections for
clarity and accuracy.
III. Decision to Amend the Regulation
For the foregoing reasons, the Secretary concludes that
it is necessary to amend the regulation. Therefore, pursuant
to 14 Del. C. §122, the regulation attached hereto as Exhibit
"B" is hereby amended. Pursuant to the provisions of 14 Del.
C. §122(e), the regulation hereby amend shall be in effect for
a period of five years from the effective date of this order as
set fourth in Section V. below.
IV. Text and Citation
The text of the regulation amend hereby shall be in the
form attached hereto as Exhibit "B," and said regulation shall
be cited in the Regulations of 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, in open session at the
said Board's regularly scheduled meeting on September 20,
2001. The effective date of this Order shall be ten (10) days
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
860 FINAL REGULATIONS
from the date this Order is published in the Delaware
Register of Regulations.
IT IS SO ORDERED this 20th day of September 2001.
Department of Education
Valerie A Woodruff, Secretary of Education
Approved this 20th day of September 2001.
State Board of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert J. Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
398 Degree Granting Institutions of Higher Education
1.0 Standards for Approval of Post Secondary Institutions
1.1 Purposes and Objectives
1.1.1 An institution shall present a well-defined
statement of the broad purposes or goals of the institution
and the specific objectives for the students both generally
and in each special program or area of study. This statement
shall include the reasons for the existence of the institution in
its particular community. In addition, the purposes shall be
reflected in the types of students and sequence of the
offerings of the college in general and in specific programs.
1.1.1.1 The specific objectives shall be
presented in behavioral terms and shall be the basis for
future student and program evaluation.
1.1.1.2 The Department's regulation 225
Prohibition of Discrimination that prohibits discrimination
on the basis of race, color, creed, national origin, disability
or gender in programs receiving approval from the
Department applies to Degree Granting Institutions of
Higher Education approved by the Department of Education.
1.2 Administrative Organization
1.2.1 The organizational pattern of the institution
such as a two-year associate or a four-year baccalaureate or
graduate or professional institution, or as a single or multipurpose
institution, shall be clearly defined and shall be
related to the purposes of the institution.
1.2.2 The institution shall present a definite
statement, including an organizational chart, or its
administrative structure and a description of the functions
and interrelationships of the governing board (board of
trustees), advisory board (if any), the president and the
administrative staff, and the faculty.
1.2.3 The functions and responsibilities of the
board shall be clearly defined in the Bylaws.
1.2.4 The board shall be moderate in size (between
9 and 25 members) and shall represent different points of
view and interests, be selected from persons interested in the
institution, willing to give the time necessary for board
matters and be appointed or elected for regular or
overlapping terms of office. The large majority of the
members should be other than the salaried administrators of
the institution.
1.2.5 There shall be evidence of established
channels of communication between the governing board
and the administration and faculty.
1.2.6 There shall be evidence that the
administrative staff has the necessary time and assistance to
enable members to discharge their duties efficiently.
1.2.7 There shall be evidence that the
administrative staff is aware of its three major functions;
selection, supervision and support of faculty; selection and
supervision of the students and operation of the facilities for
the benefit of faculty and students.
1.2.8 There shall be definite policies and
procedures concerning academic freedom, tenure,
retirement, pensions, leaves of absence, sick leave, the
determination of rank and promotions, and the professional
development of the faculty, administrative officers and
professional staff.
1.3 Financial Administration
1.3.1 The institution shall demonstrate financial
resources adequate for the effective accomplishment of its
announced purposes. The income shall be so expended as to
provide equitably for instruction, administration,
maintenance, equipment and supplies, library, and student
activities.
1.3.2 The business management shall be under the
direction of a responsible bonded financial officer charged
with the preparation and supervision of the budget in
accordance with sound financial and educational practices.
1.3.3 A continuing institution shall present an
operating statement and proposed balance sheet for the fiscal
year and a budget summary for each present fiscal year,
comparable in amount of detail to those customarily
prepared for trustees.
1.3.4 Information shall be available on the annual
surplus or deficit at the end of each of the past five fiscal
years.
1.3.5 The general aspects of business
administration and the principles of accounting and reporting
shall adhere to the widely accepted standards published by
the National Association of College and University Business
Officers (NACUBO). the American Council on Education in
the current edition of College and University Business
Administration.
1.4 Student Personnel Program
1.4.1 When appropriate, Aan institution shall
provide evidence of an adequate student personnel program,
including student activities and a counseling service and
shall be directed by a professionally trained person whose
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 861
responsibilities embrace the general welfare and discipline
of the students.
1.4.2 Provision shall be made in the counseling
service for testing of students' abilities and interests as aids
to student self-understanding, educational planning and
career decisions.
1.4.3 Depending on the scope of the institution and
whether it is residential or nonresidential in character, the
student personnel program shall be concerned with the living
arrangements and health needs of students and with the
development of a meaningful program of social, recreational
and athletic, education and cultural out of class activities.
1.5 Admission Policies and Procedures
1.5.1 The instruction shall have a carefully stated
selective admissions policy that is appropriate to the
institution's purposes and organization. Admission criteria
shall be established in consideration of the abilities needed
by all students to achieve satisfactorily in the various
programs of study offered. The institution shall operate in
compliance with announced admission policies and
procedures.
1.5.2 The admissions office shall be adequately
staffed to carry out the admissions policies and procedures.
1.5.3 For admission, the institution shall require
either graduation from an accredited secondary school or
other recognized standards such as the General Education
Development Test scores or the College Entrance
Examination Board scores. The applicant's file should
contain a complete transcript of the school record including
courses, grades, and other appropriate information properly
signed by the high school principal, guidance officer or other
duly authorized school official.
1.5.4 The institution shall supply evidence such as
correlation between admission credentials and freshman
grades, academic attrition studies, objective test results and
others, to demonstrate that it selects students qualified to
pursue successfully the program of study for which
admitted. The institution shall admit students in accordance
with its published criteria.
1.5.4.1 The institution may, at its discretion
employ more flexible and experimental admissions
standards but should document with supporting information
the criteria used to judge these students for admission and
evaluate these criteria based on experience.
1.6 Faculty
1.6.1 The number of faculty shall be adequate to
serve the projected number of students at an acceptable ratio.
Documentation of faculty qualifications in the form of
resumes must be available upon request. The institution
shall have clearly defined criteria for faculty appointments,
incentives for retention, and provisions for in-service growth
and development.
1.6.2 There shall be a well planned incentive
program designed for retention of faculty. When applicable,
Ssuch a program shall include policies on academic
freedom, tenure, retirement, pensions, leaves of absence
including sabbaticals, sick leave, insurance, and other
faculty benefits. There shall be a clear statement of criteria
for each rank and the requirements for promotion.
1.6.3 There shall be a thorough orientation for all
new faculty, periodic evaluation and critique of instructional
methods, and, where appropriate, evidence of research
accomplishment.
1.6.4 If faculty members serve as advisors, they
shall be fully informed about degree requirements, transfer
regulations and any other specific requirements such as state
teacher certification or professional licensing.
1.6.5 There shall be evidence that there is a faculty
organization to carry out the respective educational
responsibilities.
1.7 Program
1.7.1 The number and variety of curricula shall be
determined by the purposes of the institution, the size of the
student body, and the available personnel and resources of
the institution.
1.7.2 Curricula in all fields shall evidence
recognition of the relationships between broad education and
the acquisition of techniques and skills. Degree
requirements for each curriculum shall be clearly stated.
1.7.3 Transfer and career programs in a junior
college shall include a block of courses in liberal education.
1.8 Graduation Requirements
1.8.1 For authorization to grant an associate
degree, an institution shall require 60 semester hours of
academic and pre-professional work or equivalent, give
credit only for courses completed with a passing grade of the
(D) or its Institutional equivalent and require an average of
2.0 or specify clearly what index is required for graduation.
1.8.2 For authorization to grant a baccalaureate
degree, an institution shall require a minimum of 120
semester hours for graduation and no less than a 2.0 overall
average (on a 4.0 scale).
1.8.3 All graduation requirements shall be clearly
delineated for any institution.
1.9 Facilities
1.9.1 Administrative and faculty facilities,
classrooms, library, laboratories, and student activity centers
shall be suitable for their specific purposes, and convenience
for advisement and scheduling, and shall promote the
highest standards of learning, health and personal welfare.
The institution shall comply with applicable state and federal
standards, with respect to the accessibility of facilities by
persons with disabilities.
1.9.2 Beginning institutions and those planning
expansion programs shall have well designed plans for
appropriate building expansion.
1.10 Library
1.10.1 The institution shall provide library
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
862 FINAL REGULATIONS
facilities adequate to the effective realization of its stated
educational objectives.
1.10.2 The physical facilities shall be conducive to
frequent and effective use of the collections.
1.10.3 The accommodations shall allow for seating
from one-fourth to one-third of the student body and there
shall be space set aside for quiet study and leisure time
reading.
1.10.4 The program shall be administered by a
professionally trained library staff adequate in number for
the size of the student body.
1.10.5 The collection of volumes shall meet the
standards of the American Library Association.
1.10.1 The scope of resources shall follow the
Middle States recommendation that the resources must be in
reasonable proportion to the needs to be served, but numbers
alone are no assurance of excellence. Most important are
quality, accessibility, availability, and delivery of resources
on site and elsewhere.
1.10.6 1.10.2 In the case of the non-Delaware
institution offering courses, programs of courses, or degrees
in Delaware, library facilities shall be imported on a
temporary basis or provided through contractual
arrangements with other Delaware institutions so that the
material available will provide adequate support to the
courses offered.
1.11 Outcomes
1.11.1 The institution shall describe its means for
assessing the extent to which it achieves its stated purposes
and objectives insofar as this is measurable.
1.11.2 Plans for the measurement of outcomes shall
include evaluation of undergraduate achievement based on
standard tests; a study of the performance of graduates in
graduate or professional schools (or of transfer students in
the junior or senior years); and a long term study of the
achievements based on data gathered periodically and
systematically.
1.12 Catalog and Announcements
1.12.1 The catalogs and all other announcements
shall give an accurate description of the actual offerings of
the institution and show evidence that the institution is
managed by educationally competent and morally
responsible persons and shall include specifically:
1.12.1.1 Identification data, such as volume
number, and date of publication.
1.12.1.2 Names of the institution, the
governing board, and the administrative staff and faculty
showing earned degrees and the institutions granting them.
1.12.1.3 A complete calendar for the academic
year.
1.12.1.4 A statement of its accredited or
approval status.
1.12.1.5 A statement of the origin and
objectives of the institution.
1.12.1.6 Admission and graduation policies
and requirements.
1.12.1.7 Detailed schedule of all fees and other
charges as well as refund policies.
1.12.1.8 Information concerning scholarship
funds.
1.12.1.9 Description of location of the
institution; buildings, grounds and equipment.
1.12.1.10 List of degrees conferred and
requirements for each degree.
1.12.1.11 Outline of each curriculum and a
description of each course offered during period covered by
the catalog and an indication of courses offered at other
times. Descriptions shall indicate prerequisites, if any.
1.12.1.12 Number of weeks of instruction per
semester and of class meetings per week.
2.0 Procedures for Securing Approval
2.1 Institutions may be granted one of three levels of
recognition: Recognized Applicant, Provisional Approval or
Full Approval for five years.
2.1.1 Recognized Applicant: An institution shall
complete the questionnaire, Application to Confer Academic
and Honorary Degrees. This material, presented in
duplicate, is reviewed by an evaluation team mutually
acceptable to the institution and the Department of
Education. After the review and a hearing with the Board of
Trustees and the administrative staff of the institution, an onsite
visitation may be required if the institution is actually in
operation. If all the facts gained appear to meet, or show
promise of meeting, a significant portion of the standards as
stated in the Delaware Standards for Approving Institutions
of Higher Education, the institution shall be notified of
Recognized Applicant status valid for one or more years.
Recognized Applicant status may be extended yearly or may
be terminated. Recommendations shall be made for any
changes in or additions to the information previously
submitted which would be necessary for consideration for
Provisional Approval. A two year institution shall request
evaluation for Provisional Approval no later than the
beginning of the 4th semester; four year institutions, no later
than the 7th semester. Institutions offering programs of
varying duration shall request evaluation for Provisional
Approval in a timeframe appropriate to the length of the
program.
2.1.2 Provisional Approval: Following the on-site
visit, required for this second level of approval, the team
shall recommend to the Secretary of Education that either the
institution continue to be recognized only as an Applicant
without degree granting status, or it be granted Provisional
Approval with the right to confer the degrees requested.
Those institutions required to remain on Applicant Status
will be informed of the changes and improvements necessary
to be eligible for Provisional Status. There is no guarantee
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 863
that a Recognized Applicant institution will be given either
Provisional or Full Approval. A Recognized Applicant
institution may incorporate but its charter shall not include
the right to confer degrees.
2.1.2.1 An institution receiving Provisional
Approval may incorporate under 8 Del. C. Section 125 with
the right to confer a degree. If the institution has previously
incorporated without the right to confer a degree, the charter
shall be amended to include the degree-granting privilege.
The institution shall retain this status until after the first class
has been graduated.
2.1.2.2 An institution shall seek full approval
within a minimum of two years following the first
graduation but may petition for such approval within the first
year. The conferring of final approval may require a second
on-site visit.
2.1.2.3 If a Provisionally Approved institution
does not receive full approval within four years after the first
graduating class, the Department of Education may
withdraw all approval and inform the Corporation Division
of the State of Delaware that the section in the charter for the
institution which refers to the right to confer degrees is no
longer valid.
2.1.2.4 It shall be the responsibility of the
Department of Education to keep Recognized Applicants
and Provisionally Approved institutions apprised of the
requirements they must meet in order to achieve the next
level of recognition. The Department of Education shall
require that an on-site visit to the Delaware location take
place before moving to Final Approval.
2.1.2.5 For Final Approval an institution must
meet the minimum standards which that are found in 1.0. the
following sections of this document. However, for certain
types of organizations such as a junior college of business, or
a specialized area within a college such as the library, or a
specialized college or school offering degrees, the
Department of Education reserves the right to use as
additional criteria the regulations of the appropriate
accrediting or approving agency. For example, the criteria
established by the Accrediting Commission for Business
Schools might be used as supplementary requirements to be
applied to two-year proprietary business colleges; the
standards of the American Association of Collegiate Schools
of Business might be applied to nonprofit two or four year
institutions. The Guidelines of the American Bar
Association might be the basis of approving a law school or
college. The standards established by the American Library
Association will be applied to all college libraries except
where more specific standards are available for professional
libraries such as a law library.
2.1.3 Fully Approved institutions shall retain such
status for a period of no longer than five years by which time
a progress report must be filed with a follow-up visitation
required if deemed desirable by the Department of
Education. If such an institution is scheduled for a Regional
Accreditation evaluation at the time of either the Final
Approval or the five-year period review and the Department
of Education has a representative on the evaluation team, the
Department of Education may accept the Regional Approval
in lieu of a separate evaluation.
2.1.3.1 Provisionally Approved and Fully
Approved institutions shall keep the Department of
Education informed of any changes in the facts as presented
in their applications.
2.2 All expenses incurred by a visiting team, with the
exception of personnel from publicly supported educational
institutions, at any stage in the approval procedures shall be
borne by the institution requesting approval. If an institution
is located outside of the State of Delaware and is
incorporating in Delaware, it shall also pay the expenses of
Delaware representative appointed by the State Department
of Education if such a visit is deemed necessary.
2.3 Proposals or descriptions for graduate programs
shall be very carefully detailed with emphasis on admission
requirements, standards for maintaining graduate status,
qualifications of staff, opportunities for research, adaptation
of programs to individual needs, and any other facts
pertinent to a good graduate program.
3.0 Institutions of Higher Education Application for Degree
Granting Authority
3.1 The Applicant Institution shall complete detailed
application questionnaires and submit data as requested.
3.2 The Secretary shall appoint an evaluation
committee to advise the Secretary and the Applicant
Institution from the time of application through the final
approval.
3.2.1 The committee shall be composed of persons
from the Department of Education, the University of
Delaware and other persons with experience in the field of
higher education and shall recommend to the Secretary of
Education that the Institution receive status as a Recognized
Applicant or deny recognition. The status of Recognized
Applicant does not carry authorization to confer degrees.
3.3 Near the end of the first full school year of classes
but prior to the close of classes, the institution shall file a
progress report as described and requested by the committee.
The evaluation committee will make an on-site visit to the
institution in order to verify the contents of the report and
evaluate progress to date.
3.3.1 A written report of the committee's action
shall be sent to the Secretary of Education with a
recommendation to withdraw approval, to continue the
status of Recognized Applicant along with a listing of any
specific recommendations to be met by the institution or to
grant new status of Provisional Approval, with the right to
confer a degree.
3.4 At a time one or two years following the graduation
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
864 FINAL REGULATIONS
of the first class from the institution, on an occasion
mutually agreed upon by the officials of the institution and
the evaluation committee, the institution shall present a third
progress report and the committee shall make an on-site
visit. In the event that this planned visit is scheduled to
occur at approximately the same time as that of a visit from
the Commission on Higher Education of the Middle States
Association of Colleges and Schools, or another appropriate
specialized accrediting agency, it may be recommended to
the Secretary of Education that a favorable report by this
visiting agency be accepted in lieu of a separate report and
on-site visit from the evaluating committee. The
recommendation on this occasion may be for final approval
of the degree-granting authority of the institution.
3.5 If approval of the institution is denied at any of the
three major steps described in this procedure, the institution
shall have the right of appeal to the Department of Education
but in such appeal will be required to submit necessary
evidence to show cause why approval should be granted or
why temporary approval should be extended for a longer
period of time.
3.6 Any costs incidental to the evaluation and approval
of a an college institution, except the salary of personnel
from the publicly supported educational institutions in
Delaware, shall be the responsibility of that Aapplicant
Iinstitution.
4.0 Additional Procedures for Approval of Non-Delaware
Institutions of Higher Education that Offer Courses,
Programs of Courses or Degrees Within the State of
Delaware
4.1 Out-of-state institutions wishing to offer creditbearing
courses, programs of courses, or degree programs in
Delaware shall make application to the Secretary of
Education at least one academic year before the requested
date of implementation.
4.2 Final application forms with supporting documents
shall be presented to the Secretary of Education at least six
months prior to the requested date of implementation.
4.3 An accreditation agency designation of Recognized
Applicant or any other less than full accreditation
designation shall not be accepted.
4.4 Even though an institution is regionally accredited,
the Department of Education may at any time require the
institution to present a complete and documented application
for license if complaints directed against the Delaware
operation of the institution by Delaware enrollees seem to
warrant a more thorough review.
4.5 The Institution shall prove that the proposed site or
facility is in compliance with applicable Federal, Delaware
and local governmental laws and standards pertaining to
zoning, occupancy, accessibility, fire, health and safety.
4.6 The Institution shall prove that the degree programs
conform to the minimum standards established by the
Department of Education for similar institutions operating
within the State.
4.7 The Institution shall guarantee, by resolution of
their Board of Trustees, that their operations in the state of
Delaware will be financially solvent.
4.8 Programs shall be approved for periods of one to
five years but initially programs shall be approved for up to
three years. Credit-bearing courses, but not degree programs
shall be approved for only one year.
4.9 After the initial approval, renewal approval will be
contingent upon a favorable recommendation based upon
periodic review by the staff of the Department of Education
and usually with the assistance of a consultant(s) from an
institution of higher education with expertise in the program
or course offered.
4.10 The institution shall be obligated to keep the
Secretary of Education informed of the names and addresses
of those responsible for directing the programs from the
parent campus, the names of instructors, the locations of all
sites in Delaware where instruction is offered, and the names
and addresses of students enrolled in the program and/or
course.
4.11 A license fee of $100.00 $250.00 per out-of-state
institution shall be required for each school year of
operation. Program duration of a shorter period, such as one
semester or one quarter, shall pay a minimum fee of $50.00
$150.00.
4.12 Any and all costs incidental to the evaluation and
approval of a program or course, except the salary of
personnel from publicly supported education institutions in
Delaware, shall be the responsibility of the applicant
institution.
4.13 Each year the Department of Education shall
publish a list of all programs and courses approved to
operate in the State.
4.14 Every agent representing an institution as herein
defined, located outside the state of Delaware, shall make
written application for an agent's permit to the Department
on forms prepared and furnished by the Department. Each
application shall state the name of the school which the
applicant will represent, contain evidence of the honesty,
truthfulness and integrity of the applicant, shall be verified
under oath by him/her, and shall be accompanied by the
recommendation of two reputable persons, certifying that the
applicant is truthful, honest, and of good reputation, and
recommending that a permit, as an agent, be granted to the
applicant. The fee for an original permit, as an agent, shall
be determined by the Department and there shall be an
annual renewal fee determined by the Department. A
separate permit shall be obtained for each school represented
by an agent.
4.14.1 Each applicant for a permit to serve as an
agent shall submit with the application a fee in the amount of
$10.00 for the first application. This fee will be required for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 865
each institution represented by any one agent. The fee for
renewal of the permit to serve as an agent shall be $5.00 for
each institution represented by the agent. The agent shall
present a second application for a permit to serve as agent in
conjunction with the application for certification by the
second institution that he/she will represent.
4.14.2 Each agent shall apply for a permit each
year at the same time that the institution he/she is to
represent makes application for a Certificate of Approval.
No permit shall be issued for a period of more than twelve
calendar months. No agent shall perform the function of his/
her assignment and solicit Delaware enrollees in the
institution until he/she has been issued the appropriate
identification permit.
4.14.3 The revocation of the certification of an
institution for any cause shall make invalid all agent permits
for that institution.
4.14.4 The discharge or resignation of any agent
shall be reported immediately to the Department of
Education.
4.14.5 To the extent that any situation warrants the
Department of Education shall be responsible for publicizing
the discontinuance of any certificate or permit.
4.14.6 In any instance where the owner of an
institution indicates that he/she plans to serve as his own
agent, separate fee for the agent permit will be waived, but
the permit must be obtained. Any additional agents must
obtain permits as otherwise described.
4.15 Violations of the law and regulations relating to
Institutions of Higher Education as herein described shall be
referred to the Attorney General of the State of Delaware
who shall assume responsibility for enforcement of the law
and the regulations.
5.0 Institutions of Higher Education, Located In Other
States or Territories and Not Offering Programs In-State
5.1 Pursuant to 8 Del. C. Section 125, the Division of
Corporations of the Delaware Department of State forwards
requests for incorporation made by private colleges and
universities, located outside of Delaware, and not offering
programs in-state, to the Department of Education for
approval prior to incorporation.
5.1.1 With respect to these requests for
incorporation, the Department of Education recognizes the
following: 1) the interest of each state and territory of the
United States to grant the authority to award degrees to
institutions located within that state or territory; 2) the
legitimate request of private colleges and universities located
outside of Delaware to make a business decision to
incorporate in the State; and 3) the Department of
Education's own right, pursuant to Section 125, to set
reasonable limitations to ensure the quality of education
offered by such institutions of higher education incorporated
in Delaware.
5.1.2 As a matter of comity, the Department of
Education will not approve the incorporation of colleges,
universities or other institutions offering credit-bearing
courses, that have a primary site of operation in another state
and do not operate in Delaware, unless the institution already
is approved by the state degree granting authority of the state
in which it is located, or, in states without a degree granting
authority, is accredited by a nationally recognized
accrediting agency or association approved by the United
States Department of Education. A nationally recognized
accrediting agency or association is one that appears on the
list published as Nationally Recognized Accrediting
Associations, by the Secretary of Education.
6.0 The Department of Education shall inform the
Presidents of Delaware's public and private institutions of
higher education of institutions that have applied to offer
programs in the state. This notification shall take place after
the applicant institution has completed the initial application
and after the Department has reviewed the application, but
before an on-site visit to the institution has been made.
7.0 Institutions shall request approval for programs to be
added after the initial approval has been granted.
8.0 Institutions shall be required to file annual Integrated
Postsecondary Education Data System (IPEDS) reports with
the Higher Education Commission.
Regulatory Implementing Order
501 State Content Standards
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the approval of the
State Board of Education to amend the regulation 501 State
Content Standards from the Regulations of the Department
of Education and the regulations on Visual and Performing
Arts, Physical Education and Home Economics from the
Handbook for K-12 Education. (Visual and Performing Arts,
II.D.2. Page B-4, III.B.2.b. Page C-3 and IV.3.b., Page D-3)
(Physical Education, II.D.5., Page B-5, III.B.2.e., Page C-4,
and IV.3.f., Pages D-3 - D-4) (Home Economics, III.B.2.f.).
The amendments are necessary to clearly define the role
of the State Content Standards in the district curriculum
development process and to provide the requirements for
instructional programs in English language arts,
mathematics, science, social studies, functional life skills,
physical education, visual and performing arts and
vocational technical education programs. The amendment
creates two separate regulations, 501 State Content
Standards and 503 Instructional Program Requirements.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
866 FINAL REGULATIONS
In regulation 501 State Content Standards, all
instructional programs must be in alignment with the state
content standards. In addition, integration of the content
standards within and across the curricula is required as well
as keeping instructional materials and curricula content
current and consistent with the Guidelines for the Selection
of Instructional Materials.
In regulation 503 Instructional Program Requirements,
the amendments require English language arts, mathematics,
science and social studies programs for all public school
students in each grade K-8, in addition to the existing high
school graduation requirements. The amendments also
require the functional life skills curriculum for students who
need the program and for participation in other content areas
as designated by the student's IEP.
The amendments require that all public school students
in each grade 1-8 be enrolled in physical education programs
in addition to the credit required for high school graduation.
The amendments require that all public school students
in each grade 1-6 be enrolled in visual and performing arts
programs and requires the presence of visual and performing
arts programs in grades 7-12.
The amendments also require two or more vocational
technical programs for grades 7 and 8.
These two revised regulations take the place of
previously advertised amendments to the State Content
Standards regulation and to previously advertised amended
regulations for the visual and performing arts and physical
education and a previously advertised amendment to the
regulation 525 Requirements for Vocational Technical
Education Programs. These regulations are also intended to
include charter school students.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on July 19,
2001, in the form hereto attached as Exhibit A. The notice
invited written comments and none were received from the
newspaper advertisements.
II. Findings of Facts
The Secretary finds that it is necessary to amend this
regulation to clearly define the role of the State Content
Standards in the district curriculum development process and
to provide the requirements for instructional programs in
English language arts, mathematics, science, social studies,
functional life skills, physical education, visual and
performing arts and vocational technical education
programs. The amendment creates two separate regulations,
501 State Content Standards and 503 Instructional Program
Requirements.
III. Decision to Amend the Regulation
For the foregoing reasons, the Secretary concludes that
it is necessary to amend the regulation. Therefore, pursuant
to 14 Del. C. §122, the regulations attached as Exhibit "B"
are hereby amended. Pursuant to the provisions of 14 Del.
C. §122(e), the regulations hereby amended shall be in effect
for a period of five years from the effective date of this order
as set fourth in Section V. below.
IV. Text and Citation
The text of the regulations amended hereby shall be in
the forms attached hereto as Exhibit "B," and said
regulations shall be cited in the Regulations of 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, in open session at the
said Board's regularly scheduled meeting on September 20,
2001. 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 this 20th day of September 2001.
Department Of Education
Valerie A Woodruff, Secretary of Education
Approved this 20th day of September 2001.
State Board Of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert J. Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
501 State Content Standards
1.0 State Content Standards
1.1 Each local school district and each charter school
shall provide instructional programs in mathematics, English
language arts, science and social studies for all students in
grades K-12, except for those students for whom a functional
life skills curriculum is appropriate. The instructional
programs shall be in alignment with the documents
Mathematics Curriculum Framework, English Language
Arts Curriculum Framework, Science Curriculum
Framework and Social Studies Curriculum Framework as
the same may from time to time hereafter be amended with
the approval of the Secretary and the State Board of
Education.
See 4 DE Reg. 853 (11/1/00)
1.2 Each local school district shall provide instructional
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 867
programs in the visual and performing arts for all students in
grades K-8 except for those students for whom a functional
life skills curriculum is appropriate. The instructional
program shall be in alignment with the document Visual and
Performing Arts Content Standards as the same may from
time to time hereafter be amended with the approval of the
Secretary and the State Board of Education.
1.3 Each local school district shall provide instructional
programs in technology education for all students in grades
5-8 except for those students for whom a functional life
skills curriculum is appropriate. The instructional program
shall be in alignment with the document Technology
Education Curriculum Framework Content Standards as the
same may from time to time hereafter be amended with the
approval of the Secretary and the State Board of Education.
1.4 Each local school district shall provide instructional
programs in health and wellness education for all students in
grades K-12. The instructional programs shall be in
alignment with the document Delaware Health Education
Curriculum Framework and Assessment as the same may
from time to time be amended with the approval of the
Secretary and the State Board of Education.
See 4 DE Reg. 850 (10/1/00)
1.5 Each local school district shall provide instructional
programs for students for whom a functional life skills
curriculum is appropriate. The instructional program shall
be in alignment with the document Standards for Functional
Life Skills Curriculum as the same may from time to time
hereafter be amended with the approval of the Secretary and
the State Board of Education.
1.6 Each local school district that provides additional
instructional programs for students in any area of
agriscience, business finance and marketing education,
foreign language, visual and performing arts and technology
education shall align these areas with the applicable state
content standards. These program areas shall be in
alignment with the documents Agriscience Curriculum
Framework Content Standards, Business Finance and
Marketing Education Curriculum Framework Content
Standards, Foreign Language Curriculum Framework
Content Standards, Visual and Performing Arts Content
Standards, and the Technology Education Curriculum
Framework Content Standards as the same may from time to
time hereafter be amended with the approval of the Secretary
and the State Board of Education.
1.7 Each local school district shall provide for the
integration of content areas within and across the curricula.
1.8 Each local school district shall keep instructional
materials and curricula content current and consistent with
the Guidelines for the Selection of Instructional Materials.
See 1 DE Reg. 153 (8/1/97)
See 1 DE Reg. 729 (12/1/97)
See 4 DE Reg. 343 (8/1/00)
As Appears in the Handbook for K-12 Education
II. ELEMENTARY EDUCATION
5. PHYSICAL EDUCATION
a. The primary goal of the elementary physical
education program is to have students acquire the
fundamental skills necessary for their participation in team
or group activities, free play, and health-related physical
fitness.
b. Classes should be learning laboratories in
which students are involved in the important task of learning
about themselves and others through movement.
c. The program should be student centered,
with a special focus on problem-solving and exploratory
methods applied to a wide range of activities.
d. Students should have freedom of choice, but
be guided by the teacher toward predetermined goals.
e. This suggested time allotment will serve as
a basis in the formulation of the daily or weekly schedule
depending on the school organization.
Vigorous Physical Activity--
1st and 2nd grade30 minutes daily
3rd, 4th, 5th and 6th grade30 minutes daily
f. A major part of physical education should be
directed play involving team or group activities, while 30
minutes per week may be supervised free play. Directed
play involves selected activities to teach desirable skills
while free play is permitting the children a choice of
activities under the supervision of the teacher.
III. MIDDLE LEVEL EDUCATION
e. Physical Education
Physical education must be offered at least two class
periods per week for a year or five days a week for a
semester in both grades 7 and 8. (State Board Approved
February 1985)
IV. HIGH SCHOOL
f. Physical Education
(1) Physical education shall be a requirement for
any two years during grades nine through twelve with a
maximum of 1/2 unit of credit earned per year. Provision for
makeup and accumulation of required credit should be
provided at the ninth through twelfth grade levels.
(2) Physical education should be offered as an
elective for ninth through twelfth grade students.
(3) The high schools may establish their physical
education program of instruction within these guidelines:
(a) providing instruction on a five-day week
basis for a full semester;
(b) providing instruction for a minimum of
three days per week for the entire school year;
(c) providing instruction on a flexible basis
equivalent to three instructional periods per week or rotating
two periods one semester and three the next semester; and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
868 FINAL REGULATIONS
(d) providing instruction on a variable basis
equivalent to 3 instructional classes per week during the
school year.
(4) The physical education program should
emphasize the concept of lifetime sports and be adapted to
both individual and group physical education needs. All
schools should conscientiously develop a meaningful
elective program in physical education.
(5) In addition to the one unit of credit required for
graduation, a student may receive only one unit of elective
credit for a maximum total of two credits in physical
education.
(a) Objectors must submit to the
administrative head of the school an affidavit stating reasons
for being excused from this activity.
(b) Pupils may be excused from physical
education if they have a certified excuse from a qualified
physician or they have objections based on religious beliefs
to various rhythmical activity.
As Appears in the Handbook for K-12 Education
(From the Elementary Section II)
2. VISUAL AND PERFORMING ARTS (Music, Visual
Arts, Theatre and Dance)
a. All schools must provide a program of study in the
visual and performing arts as a part of the curriculum to meet
the educational and cultural needs of students in each of the
elementary grades, kindergarten through four.
b. Programs in the visual and performing arts must be
aligned with the state content standards when they are
adopted by the State Board of Education. It is anticipated
they will be adopted in June, 1997.
(From the Middle Level Section III)
b. Visual and Performing Arts (music, visual arts,
theatre, dance)
(1) All schools must provide a program of study in
the visual and performing arts as a part of the curriculum to
meet the educational and cultural needs of students in each
of the middle level grades, five through eight.
(2) Programs in the visual and performing arts
must be aligned with the state content standards when they
are approved by the State Board of Education. It is
anticipated that they will be adopted in June, 1997.
f. Home Economics
Program offerings in home economics and
technology education must be available to all students in
middle school to insure that they have the exploratory
experience and elective studies to develop their special
interest skills. It is essential that these programs be staffed
by certified home economics and technology education
teachers.
(From the Secondary Section IV)
b. Visual and Performing Arts (Music, Visual Arts,
Theatre, and Dance)
(1) All high schools should provide a program of
study in the visual and performing arts as a part of the
curriculum to meet the educational and cultural needs of all
students as well as those students wishing to pursue indepth
study or a career in the visual and performing arts.
(2) Programs in the visual and performing arts
must be aligned with the state content standards when they
are adopted by the State Board of Education. It is
anticipated that they will be adopted in June, 1997.
501 State Content Standards
1.0 Instructional Programs
1.1 Instructional programs offered in the public schools
of Delaware shall be in alignment with the appropriate
content standards documents. These documents are:
English Language Arts Curriculum Framework,
Mathematics Curriculum Framework, Science Curriculum
Framework, Social Studies Curriculum Framework, Health
Education Curriculum Framework and Assessment,
Physical Education Content Standards, Visual and
Performing Arts Content Standards, Agriscience Curriculum
Framework Content Standards, Business Finance and
Marketing Education Curriculum Framework Content
Standards, Foreign Language Curriculum Framework
Content Standards, Technology Education Curriculum
Framework Content Standards, Family and Consumer
Sciences Content Standards and the Standards for
Functional Life Skills Curriculum.
1.1.1 The content standards documents may from
time to time hereafter be amended with the approval of the
Secretary and the State Board of Education.
1.1.2 Integration of the content standards shall be
provided for within and across the curricula.
1.1.3 Instructional materials and curricula content
shall be kept current and consistent with the Guidelines for
the Selection of Instructional Materials.
503 Instructional Program Requirements
1.0 English Language Arts
1.1 Local school districts and each charter school shall
provide instructional programs in English Language Arts for
each grade K-12.
1.2 All public school students in each grade K-8 shall
be enrolled in an English language arts program.
1.3 All public school students in grades 9-12 shall
complete the credits in English language arts necessary to
graduate from high school.
2.0 Mathematics
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 869
2.1 Local school districts and each charter school shall
provide instructional programs in mathematics for each
grade K-12.
2.2 All public school students in each grade K-8 shall
be enrolled in a mathematics program.
2.3 All public school students in grades 9-12 shall
complete the credits in mathematics necessary to graduate
from high school.
3.0 Science
3.1 Local school districts and each charter school shall
provide instructional programs in science for each grade K-
12.
3.2 All public school students in each grade K-8 shall
be enrolled in a science program.
3.3 All public school students in grades 9-12 shall
complete the credits in science necessary to graduate from
high school.
4.0 Social Studies
4.1 Local school districts and each charter school shall
provide instructional programs in social studies for each
grade K-12.
4.2 All public school students in each grade K-8 shall
be enrolled in a social studies program.
4.3 All public school students in grades 9-12 shall
complete the credits in social studies necessary to graduate
from high school.
5.0 Functional Life Skills Curriculum
5.1 Local school districts and each charter school shall
provide instructional programs for students for whom a
functional life skills curriculum is appropriate.
5.2 Public school students in the Functional Life Skills
Curriculum shall participate in health, physical education,
visual and performing arts and vocational technical
programs as directed by their Individual Education Program
(IEP).
6.0 Physical Education
6.1 Local school districts and each charter school shall
provide instructional programs in physical education for
each grade K-12 with the exception of the James H. Groves
High School program.
6.2 All public school students in each grade 1-8 shall be
enrolled in a physical education program.
6.3 All public school students in grades 9-12 shall
complete the credit in physical education necessary to
graduate from high school.
6.4 In addition to the one credit required for high school
graduation, only one additional elective credit in physical
education may be used to fulfill the graduation requirements.
6.5 The physical education requirements may be
waived only for students who have an excuse from a
qualified physician or objections based on religious beliefs.
The local school district shall have the authority to grant
such waivers.
7.0 Visual and Performing Arts
7.1 Local school districts and each charter school shall
provide instructional programs in the visual and performing
arts for each grade K-12 with the exception of the James H.
Groves High School program.
7.2 All public school students in each grade 1-6 shall be
enrolled in a visual and performing arts program.
8.0 Vocational Technical Education
8.1 Local school districts and charter schools, when
consistent with the charter school's approved program, shall
provide instructional programs in two or more vocational
technical education areas in grades 7 and 8.
Regulatory Implementing Order
745 Criminal Background Check for Public School
Related Employment
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks to readopt the
regulation 745 Criminal Background Check for Public
School Related Employment found in the appendix of the
Manual for Certification of Professional Public School
Personnel. The regulation remains the same except that it
has been reformatted to fit the system used in the document,
Regulations of the Department of Education. The regulation
is required pursuant to 11 Del. C. Subchapter VI, §8570
through §8572. The title of the regulation has been changed
to Criminal Background Checks for Public School Related
Employment in order to reflect the title in the statute.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on July 19,
2001, in the form hereto attached as Exhibit A. The notice
invited written comments and none were received from the
newspaper advertisements.
II. Findings of Facts
The Secretary finds that it is necessary to readopt this
regulation because other than reformatting the regulation and
correcting the title the regulation remains the same. The
regulation is required by 11 Del. C. Subchapter VI §857(i).
III. Decision to Readopt the Regulation
For the foregoing reasons, the Secretary concludes that
it is necessary to readopt the regulation. Therefore, pursuant
to 11 Del. C. Subchapter VI §8571(i), the regulation attached
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
870 FINAL REGULATIONS
hereto as Exhibit "B" is hereby readopted. Pursuant to the
provisions of 14 Del. C. §122(e), the regulation hereby
readopted shall be in effect for a period of five years from
the effective date of this order as set fourth in Section V.
below.
IV. Text and Citation
The text of the regulation readopted hereby shall be in
the form attached hereto as Exhibit "B," and said regulation
shall be cited in the Regulations of the Department of
Education.
V. Effective Date of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 11 Del. C. Subchapter VI §8571(I), on
September 10, 2001. 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 this 10th day of September 2001.
Department Of Education
Valerie A Woodruff, Secretary of Education
Regulations For School Districts For Background Checks
745 Criminal Background Check for Public School
Related Employment
1.0 Applicability of Regulations
1.1 Effective July 1, 1994, the following "covered
Personnel" shall be required to initiate the criminal
background check process:
1.1.1 All final candidates for public school related
employment;
1.1.2 All those persons who supply contracted
services directly to students of a public school, or those who
supply contracted services to a public school which results in
regular direct access to children in or through a public
school; and
1.1.3 All those persons who have regular direct
access to children in or through an extra duty position (also
called Extra Pay for Extra Responsibility ["EPER"] position)
in public schools whether the person receives compensation
or not.
1.2 Notwithstanding the definition of "covered
Personnel" in 1.1, the following persons are not subject to
these regulations:
1.2.1 Instructors in adult corrections institutions;
1.2.2 Instructors in adult education programs
involving Apprenticeship, Trade Extension, or a vocational
general interest programs, or instructors in Adult Basic
Education and/or GED programs who do not service
students under age 18;
1.2.3 Directly supervised professional artists
sponsored by the Division of the Arts, Arts in Education
Program, Very Special Arts, and/or the Delaware Institute
for the Arts in Education; and
1.2.4 Substitute food service workers.
2.0 Procedures for Candidates for Employment or for
Persons Providing Services Under a Contract to Obtain a
Criminal Background Check
2.1 A final candidate for a covered personnel position
in a public school shall be subject to the following
procedures:
2.1.1 After notification by a school district that he/
she is a final candidate for a covered personnel position, the
individual shall present him/herself to State Bureau of
Identification personnel at one of the Delaware State Police
Troops processing such criminal background checks or at an
on-site appointment arranged by the school district. School
districts at their option may require an applicant to submit a
criminal background check prior to becoming a final
candidate.
2.1.2 The candidate shall cooperate in all respects
with this criminal background check process, or his/her
application cannot be accepted. On completion of the
procedure, the candidate will be given a Verification Form of
Processing by the State Bureau of Identification, which may
be shown to prospective placing districts as proof that the
candidate has completed the procedure. The candidate
should retain the Verification Form of Processing for his/her
records.
2.1.3 The candidate shall have the original of the
completed criminal background check sent to one school
district. A copy of all information sent to the school district
shall be sent by the State Bureau of Identification to the
candidate.
2.1.4 As a part of the application for public school
related employment or as a part of the contract for services,
the candidate shall sign a release form approved by the
Department of Education. The release will allow the school
district that was sent the original of the completed criminal
background check to do the following:
2.1.4.1 Confirm the receipt of that original and
disclose its contents to the superintendent or the chief
personnel officer of other Delaware school districts
considering the person as a candidate,
2.1.4.2 Send the original criminal background
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FINAL REGULATIONS 871
check to the placing school district if the candidate is hired
or placed under contract in another Delaware school district,
2.1.4.3 Send any subsequent criminal history
information to the person's employing or contracting school
district(s).
2.1.5 Each final candidate shall have a
determination of suitability made by the school district and
forwarded to him/her. If a determination is made to deny a
candidate employment based upon the criminal history, he/
she shall have an opportunity to appeal as in 5.0.
2.1.6 Final candidates for employment or entering
into a contract for services may have criminal background
checks from other states accepted, if all of the following
conditions are met.
2.1.6.1 The criminal background check shall
have been conducted within the previous twelve (12) months
and include a federal criminal background check;
2.1.6.2 The criminal background check shall
be sent directly from the criminal background check agency
in the other state to a Delaware school district;
2.1.6.3 A verification from the candidate's
most recent employer(s) covering the previous twelve (12)
months, stating that the employer knows of no offenses
committed by the candidate during that time, shall be sent
directly from the candidate's most recent employer(s) to the
Delaware school district which was sent the original
background check.
2.1.6.4 The out-of-state candidate shall sign a
release to allow the school district receiving the out-of-state
criminal background check and the reference to confirm
their receipt, disclose their contents and forward them,
subject to the same disclosure regulations that apply to
Delaware criminal background checks.
2.1.7 Except as described herein, all costs
associated with obtaining a criminal background check shall
be paid for by the person seeking a covered personnel
position. School districts may use funds other than state
funds to pay for criminal background check costs and may
enter into consortia to pay such costs for persons covered by
the law who work in more than one school district during the
course of the school year.
3.0 Procedures for School Districts for Criminal
Background Checks on Candidates for Employment or
for Persons Providing Services Under a Contract
3.1 School districts shall require all persons subject to
the law and these regulations to complete a release as a part
of the application or contract submissions process and, if
they become a final candidate for a covered personnel
position, to initiate the criminal background check process
prior to entering into the covered personnel position.
3.2 The school district sent the original of a completed
criminal background check shall keep the information
received in a confidential manner and shall:
3.2.1 If requested by another Delaware school
district's superintendent or chief personnel officer and
assured that a signed release is on file in the requesting
district, confirm the receipt of that original and disclose its
contents to the superintendent or the chief personnel officer
of the requesting Delaware school district considering the
person for hire;
3.2.2 If requested by another Delaware school
district's superintendent or chief personnel officer and sent a
copy of the signed release on file in the requesting district,
send the original criminal background check to the
requesting Delaware school district if the candidate is placed
in a covered personnel position; and
3.2.3 If sent any subsequent criminal history
information on the person hired, placed under contract or
assuming an extra duty position in another district or
districts, forward such information to that/those school
district(s).
3.2.4 School districts may also share and forward
the above information with the Department of Education
under the same conditions applicable to school districts. The
provision shall apply only when the Department of
Education is acting in its capacity as an employer, a party to
a contract for services or taking on a person in an extra duty
position.
3.3 The school district, in accordance with 11 Del. C. §
8571(b), (d) and (e), shall make a determination of suitability
for employment on each person it requested to initiate the
criminal background check process. That determination
shall be communicated to the person in writing. If a
determination is made to deny a candidate employment
based upon the criminal history, he/she shall have an
opportunity to appeal for reconsideration as in 5.0.
3.4 When a candidate is finally placed in a covered
personnel position the district shall do the following: if the
original of the completed criminal background check is not
yet in its possession:
3.4.1 Make a written request to the school district
that received the original of the completed criminal
background check to forward the original copy to the placing
district for placement in the employee's or contractor's file.
As a part of the request, the placing district shall forward a
copy of the release signed by the candidate.
3.4.2 Notify the State Bureau of Identification that
the candidate has become covered personnel in the district
and is no longer associated with the school district that
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872 FINAL REGULATIONS
received the original of the completed criminal background
check.
3.5 A school district may place the candidate in a
covered personnel position provisionally in accordance with
11 Del. C. §8571(f); however, the school district shall
require the candidate to comply with the provisions
described in these regulations, including the requirement to
initiate the criminal background check prior to being hired
provisionally.
4.0 Length of Validity of Criminal Background Check
and Exemption for "Continuous Employment"
4.1 A criminal background check obtained under these
regulations shall only be valid for twelve (12) months. If a
person is not "continuously employed" by a Delaware school
district within that period, the district receiving the original
criminal background check need not retain it beyond that
time. If the person becomes "continuously employed" by a
Delaware school district, the original criminal background
check shall be kept for five (5) years, or until sent to an
employing school district or the Department of Education.
4.2 Each person who has been "continuously
employed" in a public school district shall be exempt from
the screening provisions of 11 Del. C. §8571. For the
purpose of these regulations pertaining to Delaware school
districts, the term "continuously employed," in 11 Del. C.
§8570 (3), shall apply to any person who has worked in a
covered personnel position in the same public school district
for at least fifteen (15) days in the prior school year. At
district option, a full-time person may be exempt upon
transfer between public school districts if the person has:
4.2.1 Submitted a criminal background check
within the past five years,
4.2.2 No break in service since the date of the
check, and
4.2.3 Requests that the records of that check are
forwarded from the prior district to the new district prior to
entering into a covered personnel position.
4.3 Substitute teachers may be considered to be
"continuously employed" when they work fifteen (15) days
in any combination of school districts, or ten (10) days in
any one school district.
4.4 A person not exempted in 4.2 or 4.3 who is placed
in a covered personnel position by another Delaware school
district shall comply with 11 Del. C. § 8570, et seq., and
these regulations before being hired or providing contracted
services. A criminal background check performed within
the previous twelve (12) months and held by another school
district, and supplied under 2.0 and 3.0 of these regulations
is one means of complying with 11 Del. C. § 8570, et seq.,
and these regulations.
5.0 Determination of Suitability and Appeal Process
5.1 A person covered by 11 Del. C. § 8570, et seq., and/
or these regulations, shall have the opportunity to respond to
a school district regarding any criminal history information
obtained prior to a determination of suitability for
employment being made. See 11 Del. C. § 8571 (d). Such a
response shall be made within ten (10) working days of the
person's receipt of the criminal background check
information from the State Bureau of Identification. The
determination of suitability for employment shall be made
by the school district pursuant to the factors listed in 11 Del.
C. § 8571 (d).
5.2 The school district shall communicate the results of
the determination of suitability to the person, in writing,
within five (5) working days of the receipt of the person's
response to the criminal history information. If a
determination is made to deny a person placement in a
covered personnel position, based upon the criminal history,
the person shall have an opportunity to appeal for
reconsideration as in 5.2.1 through 5.2.3.
5.2.1 Appeal shall be initiated by a person notified
that he/she is being denied or being terminated from
placement in a covered personnel position, pursuant to 11
Del. C. § 8571, by submitting a letter of appeal to the district
superintendent within ten (10) working days of the receipt of
written notice.
5.2.2 The appeal shall be reviewed by the district
superintendent and the person shall be given the right to be
heard by the district superintendent within ten (10) working
days of the receipt of the letter of appeal.
5.2.3 A written decision shall be rendered by the
district superintendent within ten (10) working days of the
hearing. A decision made by the district superintendent
under this appeal procedure are final, unless the district has
made specific provisions for appeal to another entity within
the district. The decision may not be appealed to the State
Board of Education or to the Department of Education.
6.0 Confidentiality
6.1 All records pertaining to criminal background
checks, pursuant to 11 Del. C. § 8570, et seq., and/or these
regulations, shall be maintained in a confidential manner
including, but not limited to, the following:
6.1.1 Access to criminal background check
records, and letter of reference accompanying out-of-state
criminal background checks, and determination of suitability
shall be limited to the district superintendent and the district
chief personnel office and one person designated to assist in
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 873
the processing of criminal background checks, who will
receive training in confidentiality and be required to sign an
agreement to keep such information confidential;
6.1.2 All such records shall be kept in locked,
fireproof cabinets;
6.1.3 No information from such records shall be
released without the signed approval of and the appropriate
signed release of the candidate or person placed in a covered
personnel position.
7.0 Penalties: The district superintendent or the district
chief personnel officer shall report to the appropriate police
authorities evidence of any person who knowingly provides
false, incomplete or inaccurate criminal history information
or who otherwise knowingly violates the provisions of 11
Del. C. § 8571.
8.0 Subsequent Criminal History Information
8.1 Subsequent criminal history on a person in a
covered personnel position shall be sent by the State Bureau
of Identification to the district superintendent or district chief
personnel office and shall be used by districts in making a
determination about the person's continued suitability for
placement in a public school environment.
8.2 If subsequent criminal history information is
mistakenly directed to a district other than the current district
of covered personnel, the information shall be forwarded
immediately to the employing district by the receiving
district's superintendent or chief personnel officer.
8.3 If a person is known to be in a covered personnel
position in more than one district, the superintendent or chief
personnel officer of the district receiving the subsequent
criminal history information on that person shall share the
information received immediately with the district
superintendent or district chief personnel officer of the other
school district.
Regulatory Implementing Order
828 Assistance with Medications on Field Trips
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks to amend regulation
828 Assistance With Medications on Field Trips. The
amendment is necessary in order to reflect changes in 24
Del. C. § 1921. The statute now requires "any person who
assists students with medications that are self administered
during school field trips have completed a Board of Nursing
approved training course developed by the Department of
Education". The amended regulation also requires that the
parent or guardian sign a statement releasing the "assistant"
from liability and eliminates the need to include the
prescribing physician's telephone number when sending the
medication to the school.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on July19, 2001,
in the form hereto attached as Exhibit A. The notice invited
written comments and none were received from the
newspaper advertisements.
II. Findings of Facts
The Secretary finds that it is necessary to amend this
regulation because of changes made to the statute because of
the passage of S.B.68 requiring the completion of a training
course before assisting with medications on field trips.
III. Decision to Amend the Regulation
For the foregoing reasons, the Secretary concludes that
it is necessary to amend the regulation. Therefore, pursuant
to 14 Del. C. §122, the regulation attached hereto as Exhibit
"B" is hereby amended. Pursuant to the provisions 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 fourth in Section V. below.
IV. Text and Citation
The text of the regulation amended hereby shall be in
the form attached hereto as Exhibit "B," and said regulation
shall be cited in the Regulations of 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 September 10,
2001. 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 this 10th day of September 2001.
Department of Education
Valerie A Woodruff, Secretary of Education
828 Assistance With Medications on Field Trips
1.0 Definitions
"Assist a student with medication," means assisting a
student in the self-administration of a medication, provided
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
874 FINAL REGULATIONS
that the medication is in a properly labeled container as
hereinafter provided. Assistance may include holding the
medication container for the student, assisting with the
opening of the container, and assisting the student in selfadministering
the medication. Lay assistants shall not assist
with injections. The one exception is with emergency
medications where standard emergency procedures prevail
in lifesaving circumstances.
"Field trip" means any off-campus, school-sponsored
activity.
"Medication" means a drug taken orally, by inhalation,
or applied topically, and which is either prescribed for a
student by a physician or is an over-the-counter drug which a
parent or guardian has authorized a student to use.
"Paraprofessionals" mean teaching assistants or aides.
2.0 Teachers, administrators and paraprofessionals
employed by a student's local school district are authorized
to assist a student with medication on a field trip subject to
the following provisions:
2.1 Assistance with medication shall not be provided
without the prior written request or consent of a parent or
guardian. Said written request or consent shall contain clear
instructions including: the student's name; the name of the
medication; the dose; the time of administration; and the
method of administration; and a statement releasing the
assistant from liability. At least one copy of said written
request or consent shall be in the possession of the person
assisting a student with medication on a field trip.
2.2 The medication shall be in a container which is
clearly labeled with the student's name, the name of the
medication, the dose, the time of administration, and the
method of administration. If the medication has been
prescribed by a physician, it must shall be in a container
which meets United States Pharmacopoeia/National
Formulary standards and, in addition to the information
otherwise required by this section, shall bear the name and
telephone number of the prescribing physician, and the name
and telephone number of the dispensing pharmacy.
2.3 A registered nurse employed by the school district
in which the student is enrolled shall determine which
teachers, administrators and paraprofessionals are qualified
to safely assist a student with medication. and said nurse
shall provide each such person with information designed to
acquaint such person with safe practices and procedures in
assisting with medication. Each such person shall complete a
Board of Nursing approved training course developed by the
Delaware Department of Education, pursuant to 24 Del. C.
1921. Said nurse shall complete instructor training as
designated by the Department of Education and shall submit
a list of successful staff participants to the Department of
Education. No person shall assist a student with medication
without first acknowledging written acknowledgement that
he/she has received and read the information to be provided
pursuant to this section, completed the course and that he/she
understands the same, and will abide by the safe practices
and procedures set forth therein.
2.4 Each school district shall maintain a record of all
students receiving assistance with medication pursuant to
this regulation. Said record shall contain the student's name,
the name of the medication, the dose, the time of
administration, the method of administration, and the name
of the person assisting.
2.5 Except for a school nurse, no employee of a school
district shall be compelled to assist a student with
medication. Nothing contained herein shall be interpreted to
otherwise relieve a school district of its obligation to staff
schools with certified school nurses.
Regulatory Implementing Order
925 Children with Disabilities
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the approval of the
State Board of Education to amend regulation 925 Children
With Disabilities. The amendment changes Section 23 by
adding a more specific description of the appeal and hearing
procedures applicable when the DOE proposes to deny all or
part of a Local Education Agency's application for receipt of
federal funds. The proposed change implements the
comments received from the Federal Office of Special
Education Programs regarding this regulation.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on July 19,
2001, in the form hereto attached as Exhibit A. The notice
invited written comments and none were received from the
newspaper advertisements.
II. Findings of Facts
The Secretary finds that it is necessary to amend this
regulation because the Federal Office of Special Education
Programs recommended that these changes be made to the
regulation in order to be in compliance with the Federal
statute.
III. Decision to Amend the Regulation
For the foregoing reasons, the Secretary concludes that
it is necessary to amend the regulation. Therefore, pursuant
to 14 Del. C. §122, the regulation attached hereto as Exhibit
"B" is hereby amended. Pursuant to the provisions 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 fourth in Section V. below.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 875
IV. Text and Citation
The text of the regulation amended hereby shall be in
the form attached hereto as Exhibit "B," and said regulation
shall be cited in the Regulations of 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, in open session at the
said Board's regularly scheduled meeting on September 20,
2001. 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 this 20th day of September,
2001.
Department of Education
Valerie A Woodruff, Secretary of Education
Approved this 20th day of September, 2001.
State Board Of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert J. Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
925 Children With Disabilities
23.0 General Supervision of Education for Children with
Disabilities: The Department of Education (DOE) shall
ensure that each educational program for children with
disabilities administered within the State, including each
program administered by any other public agency, is under
the general supervision of the persons responsible for
educational programs for children with disabilities in the
State educational agency; and meets education standards of
the State educational agency.
23.1 Documentation of DOE activity in meeting its
responsibilities shall be maintained in a manner consistent
with effective management procedures. Such documentation
shall include, but not be limited to, issues pertaining to:
23.1.1 General Supervision, Cooperative
Agreements, Complaint/Due Process Procedures,
Compliance Monitoring, Project Coordination, Program
Evaluation, Comprehensive System of Personnel
Development, Dissemination; and Finance/Administration.
23.2 The DOE shall, through its Comprehensive
Compliance Monitoring System, ensure that each public
agency develops and implements an IEP for each of its
children with disabilities.
23.3 The DOE shall distribute regulations, sample
documents and letters of notification to all agencies (public
and non-public) providing services to children with
disabilities.
23.4 Nothing in the Individuals with Disabilities
Education Act, as amended, or in these regulations shall be
construed by any party as permitting any agency of the State
to reduce medical or other assistance under, or alter the
eligibility requirements of, programs funded in whole or in
part through Title V (Maternal and Child Health) or Title
XIX (Medicaid) of the Social Security Act, with respect to
the provision of a free appropriate public education for
children with disabilities within the State.
23.5 Compliance Monitoring: The DOE shall fulfill a
minimum of six administrative responsibilities regarding
monitoring of programs for children with disabilities. These
responsibilities are:
23.5.1 Adoption and use of policies and procedures
to exercise general supervision over all educational
programs for children with disabilities within the State.
23.5.2 Adoption and use of a method to
continuously collect and analyze information sufficient to
determine compliance of sub-grantees and other agencies
providing services to children with disabilities within the
State, and agencies providing services to Delaware children
with disabilities in other states, with applicable State and
federal program operation requirements.
23.5.3 Adoption and use of a method by which the
DOE formally directs that each deficiency identified in
program operations be corrected by the appropriate agency.
23.5.4 Adoption and use of a method by which the
DOE enforces State and federal legal obligations by
requiring written assurances of compliance with such
obligations as a condition of a grant or contract; and
imposition of appropriate sanctions when a public agency
fails or refuses to correct a deficiency. If, after giving
reasonable notice and an opportunity for a hearing, the DOE
determines that a local school district or other public agency
has failed to comply with any requirement in the
Administrative Manual for Special Education Services, the
DOE shall:
23.5.4.1 Make no further payments to the
district or agency until the DOE is satisfied that there is no
longer any failure to comply with the requirement; or
23.5.4.2 Consider its decision in its review of
any application made by the district or agency for IDEA-B
payments;
23.5.4.3 Or both.
23.5.5 Any school district or other public agency
receiving a notice from the Department of Education under
24.5.4 is subject to public notice provisions as required
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876 FINAL REGULATIONS
under 34 CFR 300.196.
23.5.6 If, through its regular monitoring
procedures, complaints, hearing results or other sources of
information, there is evidence that the district or agency is
making special education placements that are inconsistent
with 34 CFR 300.550 (Least Restrictive Environment) or
federal regulations, the Department of Education shall
review the district or agency's justification for its action and
shall assist the district or agency in planning and
implementing any necessary corrective action.
23.6 Scope of Department of Education Compliant
Monitoring Authority
23.6.1 The Department of Education, acting on
behalf of the State Board of Education, shall have the
authority to conduct monitoring, including collection and
use of both off-site and on-site information.
23.6.2 The State Secretary of Education shall have
the authority to compel the correction of deficiencies
identified in program operations.
23.6.3 The State Secretary of Education shall have
the authority to enforce legal obligations.
23.6.4 Department of Education standards relative
to special education and related services shall be applicable
to, and binding upon, all education programs for children
with disabilities administered within the State.
23.7 The Department of Education Methods of
Monitoring shall include:
23.7.1 Written monitoring procedures which cover
all aspects of State and federal requirements and which are
uniformly applied to all public agencies;
23.7.2 Identification of deficiencies in program
operations by collecting, analyzing, and verifying
information sufficient to make determinations of
compliance/non-compliance with State and federal
requirements;
23.7.3 Determination of whether or not each
educational program for children with disabilities
administered within the State, including private schools in
which these children are placed by public agencies, meets
educational standards of the Department of Education, the
requirements of IDEA, Part B, and where applicable, of
Educational General Administrative Requirements
(EDGAR).
23.7.4 Use of other information provided to the
Department of Education through complaints, hearings and
court decisions, evaluation and performance reports, and
other formally submitted documents to determine if agencies
and programs are in need of specific compliance
interventions;
23.7.5 Monitoring the implementation of any
compliance agreement and the investigation of the
implementation of any orders resulting from the resolution
of complaints filed with the Department of Education against
the agency being monitored;
23.7.6 Use of off-site review, on-site review, letters
of inquiry, and follow-up or verification of specific
activities;
23.7.7 Written documentation of each monitoring
activity through correspondence and reports;
23.7.8 Specification of a reasonable period of time
to complete the analysis of information collected for
monitoring or evaluation purposes to identify deficiencies of
a program or public agency in meeting State and federal
requirements and report such deficiencies to the public
agency; and, where applicable, of Educational General
Administrative requirements (EDGAR);
23.7.9 Specification of a reasonable period of time
for reaching a determination that a deficiency in program
operations exists, and for notifying the agency in writing if
required;
23.7.10 Requirement of a written notice (for
example, monitoring report, letter of findings) that:
23.7.10.1 Describes each corrective action
which must be taken, including a reasonable time frame for
submission of a corrective action plan;
23.7.10.2 Requires that the corrective action
plan provide for: the immediate discontinuance of the
violation; the prevention of the occurrence of any future
violation; documentation of the initiation and completion of
actions to achieve current and future compliance; the
timeframe for achieving full compliance; and the description
of actions the agency must take to remedy the identified
areas of non-compliance.
23.7.11 Specification of a reasonable period of
time after receiving a corrective action plan from an agency
in which the Department of Education shall determine
whether the corrective action plan meets each of the
requirements or if additional information is required from
the agency;
23.7.12 Specification of a reasonable period of
time from the date of the original written notice, in which the
Department of Education shall determine that:
23.7.12.1 The agency has submitted an
acceptable corrective action plan which complies fully with
all of the requirements; or
23.7.12.2 Reasonable efforts have not resulted
in voluntary compliance.
23.7.13 That a school district or other public
agency be given reasonable notice and an opportunity for a
hearing with respect to an identified deficiency.
23.7.13.1 If the school district or other public
agency declines a hearing, the Department of Education
shall reach a final decision of compliance or non-compliance
within ten (10) days.
23.7.13.2 If the Department of Education
conducts a hearing, the Department of Education shall reach
a final decision of compliance or non-compliance within
thirty (30) days after the conclusion of the hearing; or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 877
23.7.13.3 If the Department of Education
reaches a final decision of non-compliance (i.e., the school
district or other public agency has violated State or federal
requirements); the Department of Education shall:
23.7.13.3.1 Make no further payments
under Part B to the school district or other public agency
until the school district or other public agency submits an
acceptable corrective action plan;
23.7.13.3.2 Disapprove any pending
school district or other public agency Part B local
application, when appropriate;
23.7.13.3.3 Seek recovery of funds, and
impose any other sanctions authorized by law.
23.8 Comprehensive System of Personnel
Development: The Department of Education shall provide
opportunities for all public and private institutions of higher
education, and other agencies and organizations, including
representatives of individuals with disabilities, parent, and
other advocacy organizations in the State which have an
interest in the education of children with disabilities, to
participate fully in the development, review, and annual
updating of the Comprehensive System of Personnel
Development.
23.8.1 The Department of Education shall conduct
an annual needs assessment to determine if a sufficient
number of qualified personnel are available in the State, and
to determine the training needs of personnel relative to the
implementation of federal and State requirements for
programs for children with disabilities.
23.8.2 The results of the annual needs assessment
shall be used in planning and providing personnel
development programs.
23.8.3 The Department of Education shall
implement a Comprehensive System of Personnel
Development which includes:
23.8.3.1 The in-service and pre-service
training of general and special education instruction, related
services, and support personnel. Such training shall include
training and technical assistance for ensuring that teachers
and administrators in all public agencies are fully informed
of their responsibilities in implementing the least restrictive
environment requirements and other requirements for special
education and related services;
23.8.3.2 Procedures to ensure that all
personnel necessary to carry out the provision of special
education and related services are qualified and that
activities sufficient to carry out the personnel development
plan are scheduled;
23.8.3.3 Procedures for acquiring and
disseminating to teachers and administrators of programs for
children with disabilities significant information derived
from educational research, demonstration, and similar
projects, and for adopting, where appropriate, promising
educational practices and materials.
23.8.4 On-going in-service training programs shall
be available to all personnel who are engaged in the
education of children with disabilities.
23.8.4.1 These programs shall include: (1) use
of incentives which ensure participation by teachers, such as
released time, payment for participation, options for
academic credit, salary step credit, certification renewal,
new instructional materials, and/or updating professional
skills; (2) involvement of local staff; and (3) use of
innovative practices which have been found to be effective.
23.8.5 The Department of Education shall
coordinate and facilitate efforts among the Department of
Education, districts and agencies, including institutions of
higher education and professional associations, to recruit,
prepare, and retain qualified personnel, including personnel
from minority backgrounds, and personnel with disabilities.
23.8.6 The Department of Education shall
coordinate with each district, agency and/or institution of
higher education all responsibilities relative to the gathering
of data, training, recruitment and retention as delineated in
34 CFR 300.380.
23.8.7 The Department of Education shall
disseminate copies of statutes, regulations, and standards
applicable to programs for children with disabilities to each
local education agency, institution, the GACEC and
organization responsible for carrying out the programs.
23.8.7.1 Such dissemination includes each
private school and facility to which a public agency has
referred a child with a disability.
23.8.7.2 The Department of Education shall
disseminate information on significant knowledge derived
from educational research and other sources, promising
practices, materials, and technology, proven effective
through research and demonstration which may be of
assistance to LEAs and other agencies in the improvement of
education and related services for children with disabilities.
23.8.7.3 The Department of Education shall be
responsible for the following dissemination activities:
23.8.7.3.1 Notice of any changes in
statutes, regulations, or standards applicable to programs for
children with disabilities shall be issued in writing, with
copies to the head of each school district or other public
agency, to each supervisor of programs for children with
disabilities and to institutions of higher education;
23.8.7.3.2 Regular meetings, at least
quarterly, of LEA and other agency supervisors of special
education programs;
23.8.7.3.3 Learning Resource System
publications relative to current issues and promising
practices.
23.9 Finance/Administration
23.9.1 Child Count Procedures: The Department
of Education shall specify in writing the procedures and
forms used to conduct the annual count of children served.
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878 FINAL REGULATIONS
Such procedures and forms shall conform to 34 CFR
300.750 through 300.755 and written instructions received
from the Office of Special Education and Rehabilitative
Services (OSERS).
23.9.2 Administration of Funds: Funds for the
education of children with disabilities shall be administered
pursuant to Title 14 of the Delaware Code.
23.9.3 Review of LEA Application: The
Department of Education shall develop and use a review
sheet to document that all required IDEA-B, EDGAR, and
State statutes and regulations have been applied to the
review and approval of each LEA Application.
23.9.3.1 Each LEA shall be notified in writing,
using a standard format of the status of its Application, i.e.,
approved, not approved, and any conditions which must be
met in order for the Application to be approved.
23.9.3.2 All amendments to an LEA
Application shall be reviewed and approved using the same
requirements and procedures used for an initial Application.
23.9.3.3 In the event that the Department of
Education and the LEA cannot negotiate and effect an
approved LEA Application, the Department of Education
shall notify the LEA in writing of its right to a hearing and
the procedures for obtaining a hearing. of its intent to
disapprove all or part of the Application. This notice shall
also inform the LEA that it is entitled to a hearing before the
Department's final decision to disapprove all or part of the
Application, and shall advise the LEA of the procedure for
requesting a hearing.
23.9.3.3.1 The LEA shall have thirty (30)
days to request a hearing, beginning on the date of the
Department's notice to the LEA of its right to a hearing. The
request for a hearing must be filed in writing with the
Delaware Secretary of Education and shall explain why the
LEA believes its Application should be approved. 23.9.3.3.2
The LEA shall have access, at a reasonable time and
location, to all of the Department's records pertaining to the
Application and to the applications of other LEAs.
23.9.3.3.3 The Department shall schedule
and conduct a hearing on the record within thirty (30) days
of the Secretary's receipt of a hearing request from the LEA.
23.9.3.3.4 No later than ten (10) days after
the hearing, the Department shall issue its written ruling,
which shall include findings of fact and the reasons for its
decision.
23.9.3.3.5 If the Department determines
that its intention to disapprove all or part of the Application
was contrary to applicable state or federal law, the
Department shall rescind its intent to disapprove the
Application and shall issue an approval consistent with the
requirements of such law.
23.9.3.3.6 If the Department issues a final
disapproval of all or part of the Application, the LEA may
appeal that decision to the Secretary of the United States
Department of Education. The LEA must file a notice of
appeal with the Secretary of the United States Department of
Education within twenty (20) days of the final disapproval of
the Delaware Department of Education. A copy of the LEA's
federal notice of appeal must be filed with the Delaware
Department of Education when it is filed with the United
States Secretary of Education.
23.9.3.4 If, after a hearing, the district or
agency application is found to be unapprovable, the district
or agency may appeal this finding to the Secretary, U. S.
Department of Education. The applicant shall file a notice of
the appeal with the Secretary within 20 days after the
applicant has been notified by the Department of Education
of the results of the hearing.
23.9.3.5 The State shall make available at
reasonable times and places to each applicant all records of
the agency pertaining to any review or appeal the applicant is
conducting under this section, including records of other
applicants.
23.9.3.6 4 An applicant from a district or
agency shall include the following information:
23.9.3.6 4.1 A description of how the
applicant will meet the federal requirements for participation
of children enrolled in private schools.
23.9.3.6.4.2 The numbers of children
enrolled in private schools which have been identified as
eligible for benefits under the program.
23.9.3.6.4.3 The basis the applicant used
to select the children.
23.9.3.6.4.4 The manner and extent to
which the applicant complied with Education Department
General Administrative Regulations (EDGAR, January 1,
1996, USDE)
23.9.3.6.4.5 The places and times the
children will receive benefits under the program.
23.9.3.6.4.6 The difference, if any,
between the program benefits the applicant will provide to
public and private school children, and the reasons for the
differences.
23.9.4 Recovery of Funds for Misclassified
Children: A State audit shall be conducted during the month
of October to ascertain that units awarded on September 30
are in full operation on or prior to that date with evidence of
services being provided. If, during the audit of State units
for the education of children with disabilities, it is
discovered that a child has been erroneously classified, this
discrepancy will be made known to the local education
agency and will also be reported to the proper persons at the
Department of Education.
23.9.4.1 The specific procedures used in order
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FINAL REGULATIONS 879
to authenticate the count of children will be found in the
Monitor's Handbook for the September Audit and Site
Monitoring.
23.9.4.2 The local education agency will be
notified that its Part B grant award has been reduced by an
amount equal to that fiscal year's per child allocation for
each child determined to have been misclassified.
23.9.4.3 Should discovery of misclassification
occur at a time other than during the audit of State units,
such as in the fourth quarter of the Grant, the following
year's Grant Award shall be reduced accordingly. The task of
identifying children who have been misclassified shall not
only during the September 30 audit of State units, but during
all other IDEA monitoring and evaluation on-site visits as
well.
23.10 Other SEA Responsibilities
23.10.1 Ensure Adequate Evaluation: As a means
of ensuring adequate evaluation of the effectiveness of the
policies and procedures relative to child identification shall:
23.10.1.1 Incorporate within its
Comprehensive Compliance Monitoring System process a
series of questions about the Childfind activities which will
be asked of special and regular education teachers,
administrators, related services personnel, Part H personnel
and other public agencies;
23.10.1.2 Systematically review each LEA's
application for federal funds to ensure that it contains a
complete description of the LEA's child identification
process;
23.10.1.3 Annually review the child count data
to determine trends and anomalies in the types and numbers
of children identified.
Regulatory Implementing Order
1102 Standards for School Bus Chassis and Bodies
Placed in Production on or after March 1, 2002
(Terminology and School Bus Types Are Those Described
in the National School Transportation Specifications and
Proceedures (NSTSP), May 2000)
I. Summary of the Evidence and Information Submitted
The Secretary of Education seeks the approval of the
State Board of Education to adopt a new regulation on
school bus standards, 1102 Standards for School Bus Chassis
and Bodies Placed in Production On or After March 1, 2002
(terminology and school bus type are those described in the
National School Transportation Specifications and
Procedures (NSTSP), May 2000). This regulation is in
addition to regulation 1101 Standards for School Buses and
provides a second set of standards that apply to buses
manufactured after March 2002. The existing regulation
will remain in effect until the buses that this regulation
addresses are out of service.
The existing regulation will have a new name to clarify
the differences between the two regulations. The name of
regulation 1101 will be changed from Standards for School
Buses to Standards for School Bus Chassis and Bodies
Placed in Production After March 1, 1998 (terminology and
school bus types are described in the National Standards for
School Transportation 1995), but all of the content will
remain the same.
It is anticipated that additional regulations will be
needed at least every five years as new bus chassis and
bodies are put into production and then regulations for outof-
use bus chassis and bodies will be repealed.
Notice of the proposed regulation was published in the
News Journal and the Delaware State News on July 19,
2001, in the form hereto attached as Exhibit A. The notice
invited written comments and none were received from the
newspaper advertisements.
II. Findings of Facts
The Secretary finds that it is necessary to adopt this
regulation because as new buses are manufactured, the
standards change for the new models and separate
regulations are needed to guide the design of the newer
buses.
III. Decision to Adopt the Regulation
For the foregoing reasons, the Secretary concludes that
it is necessary to adopt the regulation. Therefore, pursuant to
14 Del. C. §2901, the regulation attached hereto as Exhibit
"B" is hereby adopted. Pursuant to the provisions of 14 Del.
C. §122(e), the regulation hereby adopted shall be in effect
for a period of five years from the effective date of this order
as set fourth in Section V. below.
IV. Text and Citation
The text of the regulation adopted hereby shall be in the
form attached hereto as Exhibit "B," and said regulation shall
be cited in the Regulations of the Department of Education.
V. Effective Date Of Order
The actions hereinabove referred to were taken by the
Secretary pursuant to 14 Del. C. §2901, in open session at
the said Board's regularly scheduled meeting on September
20, 2001. 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 this 20th day of September 2001.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
880 FINAL REGULATIONS
Department of Education
Valerie A Woodruff, Secretary of Education
Approved this 20th day of September 2001.
State Board Of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert J. Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
*Please note that no changes were made to the regulation
as originally proposed and published in the August 2001
issue of the Register at page 290 (5 DE Reg. 290).
Therefore, the final regulation is not being republished.
Please refer to the August 2001 issue of the Register or
contact the Department of Education.
STATE BOARD OF EDUCATION OF
THE STATE OF DELAWARE
Order Adopting Regulations
AND NOW, this 20th day of September, 2001, the State
Board of Education having adopted its current Procedures
Manual in September 1998 and revising it in 2000;
AND the Procedures Manual containing the rules of
practice and procedure used by the State Board, and a
description of the State Board=s organization, operations and
procedures for obtaining information;
AND the State Board now having considered additional
minor revisions to the Manual;
AND the adoption of the Procedures Manual and
revisions to it being exempt from the procedural
requirements of the Administrative Procedures Act pursuant
to 29 Del.C. §10113,
THE STATE BOARD OF EDUCATION HEREBY
ADOPTS THE PROCEDURES MANUAL ATTACHED
HERETO AS EXHIBIT "A" EFFECTIVE THE
AFORESAID DATE.
State Board Of Education
Dr. Joseph A. Pika, President
Jean W. Allen, Vice President
Robert J. Gilsdorf
Mary B. Graham, Esquire
Valarie Pepper
Dennis J. Savage
Dr. Claibourne D. Smith
State Board of Education Procedures Manual
September 1998
(Revised: October 11, 2001)
Legal Basis and Related Issues
Statutory Basis
The State Board exists pursuant to 14 Delaware Code,
§104(a), which states the following:
(a) The State Board of Education shall be composed of
7 members who shall be citizens of the State and
shall be appointed by the Governor and confirmed
by the Senate. The Governor shall name the
President of the Board who shall serve at the
Governor's pleasure. Each of the remaining
members of the Board shall be appointed to serve
for 6 years and until his or her successor qualifies.
Board Structure
Membership
In accordance with 14 Delaware Code, §104(a), the
State Board is composed of 7 members.
Appointment
In accordance with 14 Delaware Code, §104(a), the
State Board members are appointed by the Governor and
confirmed by the Senate.
Qualifications
The qualifications for membership on the State Board of
Education are specified in 14 Delaware Code, §104(d),
which states the following:
(d) The members of the Board shall be appointed solely
because of their character and fitness subject to the
following qualifications: At least 2 members of the
Board shall have had prior experience on a local
board of education; no more than 4 members of the
Board shall belong to the same political party; no
person shall be eligible to appointment who has not
been for at least 5 years immediately preceding
appointment a resident of this state; and no person
shall be appointed to the Board who is in any way
subject to its authority.
Any member of the Board shall be eligible for
reappointment unless otherwise disqualified by this
title. In constituting the Board, the President shall
be appointed from the State at large, but the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 881
appointments of the remaining 6 members shall be
made so that there shall be on the Board at least 1
resident of the City of Wilmington, 3 residents from
New Castle County outside the City of Wilmington,
1 from Kent County and 1 from Sussex County.
Terms
The President of the Board serves at the pleasure of the
Governor (14 Del. C., §104(a)). The terms for the remaining
6 members are "6 years and until his or her successor
qualifies." (14 Del. C., §104(a)). However, §104(f) provides
that the "Governor may appoint members for confirmation
by the Senate for terms shorter than 6 years where that is
necessary to ensure that Board members' terms expire on a
rotating annual basis."
Compensation
The compensation of State Board members is specified
in 14 Delaware Code, §104(h), which states the following:
(h) The members of the Board shall receive $100 for
each day's attendance at the meetings of the Board
not to exceed 24 days' attendance in any 1 calendar
year; and they shall be reimbursed for the actual
travel and other necessary expenses incurred in
attending meetings and transacting the business of
the Board.
Vacancies
"Vacancies on the Board for any cause shall be filled by
the Governor for the unexpired term and until a successor
shall qualify" (14 Del. C., §104(e)).
Powers, Duties and Responsibilities
The powers, duties, and responsibilities of the State
Board of Education are delineated primarily in Delaware
Code, Title 14. The general powers are specified in 14
Delaware Code, §104(b), which follows. However, the
specific powers, duties, and responsibilities, as cited in the
Code, are detailed more fully in Appendix A, where the
specific citations and a brief paraphrase of the statutes are
given.
(b) The State Board of Education shall have powers,
duties, and responsibilities as specified in this title.
Included among the powers, duties and
responsibilities are those specified in this
subsection. The State Board of Education shall:
(1) Provide the Secretary of Education with advice and
guidance with respect to the development of policy
in those areas of education policy where rule- and
regulation-making authority is entrusted jointly to
the Secretary and the State Board. The State Board
shall also provide guidance on new initiatives,
which may from time to time be proposed by the
Secretary. The Secretary shall consult with the
State Board regularly on such issues to ensure that
policy development benefits from the breadth of
viewpoint and the stability which a citizens' board
can offer and to ensure that rules and regulations
presented to the State Board for its approval are
developed with input from the State Board.
Consistent with its role in shaping critical
educational policies, the State Board of Education
may also recommend that the Secretary undertake
certain initiatives which the State Board believes
would improve public education in Delaware;
(2) Provide the Secretary of Education with advice and
guidance on the Department's annual operating
budget and capital budget requests;
(3) Provide the Secretary of Education with guidance in
the preparation of the annual report specified in
§124 of this title, including recommendations for
additional legislation and for changes to existing
legislation;
(4) Provide the Secretary of Education with guidance
concerning the implementation of the student
achievement and statewide assessment program
specified in §122(b)(4) of this title;
(5) Decide, without expense to the parties concerned,
certain types of controversies and disputes
involving the administration of the public school
system. The specific types of controversies and
disputes appropriate for State Board resolution and
the procedures for conducting hearings shall be
established by rules and regulations pursuant to
§121 (12) of this title;
(6) Fix and establish the boundaries of school districts,
which may be doubtful or in dispute, or change
district boundaries as provided in §§1025, 1026,
and 1027 of this title;
(7) Decide on all controversies involving rules and
regulations of local boards of education pursuant to
§1058 of this title;
(8) Subpoena witnesses and documents, administer and
examine persons under oath, and appoint hearing
officers as the State Board finds appropriate to
conduct investigations and hearings pursuant to
paragraphs (5), (6), and (7) of this subsection;
(9) Review decisions of the Secretary of Education,
upon application for review, where specific
provisions of this title provide for such review. The
State Board may reverse the decision of the
Secretary only if it decides, after consulting with
legal counsel to the Department, that the Secretary's
decision was contrary to a specific state or federal
law or regulation, was not supported by substantial
evidence, or was arbitrary and capricious. In such
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
882 FINAL REGULATIONS
cases, the State Board shall set forth in writing the
legal basis for its conclusion;
(10) Approve such Department rules and regulations as
require State Board approval, pursuant to specific
provisions of this title, before such regulations are
implemented;
(11) Approve rules and regulations governing
institutions of postsecondary education that offer
courses, programs of courses, or degrees within the
State or by correspondence to residents of the State
pursuant to §§121(16) and/or 122(b)(7).
Conduct of Members
Delaware Code, Title 29, Chapter 58 provides the laws
regulating the conduct of officers and employees of the State
of Delaware. Members of the State Board of Education are
subject to certain of the provisions of that statute in that they
are included in the definition of "state agency" (29 Del. C.,
§5804(10)) and the definition of "honorary state official" (29
Del. C., §5804(13)). For that reason, members of the Board
are encouraged to become familiar with the provisions of
that chapter. The following issues are of particular concern.
Conflicts of Interest
Section 5805 details the State's conflict of interest
provisions, which apply to members of the State Board of
Education. As applied to State Board that means that a
member may not participate on behalf of the State in the
review or dispositions of any matter pending before the
State in which he or she has a personal or private interest
(29 Del. C., §5805(a)). There are also restrictions on
representing another's interest (§5805(b)); against
contracting with the State for goods or services (§5805(c));
or for representing or assisting private enterprise within two
years after appointed service (§5805(d)). The code of
conduct is further detailed in 29 Delaware Code, §5806.
Financial Disclosure
Subchapter II, Chapter 58, 29 Delaware Code contains
the requirements for financial disclosure of public officers.
Because State Board of Education members are not included
in the definition of "public officer" contained in §5812, it
would appear that members are not required to file the
annual disclosure reports mandated by this statute.
However, nothing would prohibit a member who chose to do
so from voluntarily completing such a report.
Dual Compensation
"There are numerous elected state officials and other
paid appointed officials who are also employed by state
agencies, educational and other institutions, and other
jurisdictions of government within the State" (29 Del. C.,
§5821(a)). The statute prohibits such individuals from
receiving dual compensation for their time. Thus, State
Board members, who are employed by the agencies and
organizations specified, are encouraged to acquaint
themselves with the specific provisions of this statute.
Organization
Officers
President
The Governor shall name the President of the Board
who shall serve at his/her pleasure (Delaware Code,
§104(a)). The President is responsible for the integrity of the
Board process. Integrity includes the efficient, orderly
deliberation of Board issues and conduct of Board affairs.
The President has no authority over Department of
Education activities. However, the President does have
authority, subject to any applicable Board policy, to (1) call
special meetings of the Board; (2) represent, in person or
through a designee, Board positions and symbolize the
Board image in public and at ceremonial events; and (3)
decide mechanics of Board procedures. Subject to Board
approval, the President (1) determines Board agendas and
committee charges, and (2) makes Board appointments to
committees. The President shall be an ex officio member of
all committees, and shall have all privileges of membership
but shall not be counted in the committee quorum.
The President shall have the same right to make or
second motions and to vote on pending questions as any
other member of the Board.
The President shall determine the appropriate action to
take in reference to any uncertainty regarding any expense
statement submitted by a member of the State Board.
The President shall be responsible for initiating the
annual evaluation of the Board's progress toward achieving
the goals delineated in the five-year plan (See Vision,
Mission, and Goals).
Vice President
The Vice President shall be elected at the annual
meeting and shall serve until the next annual meeting or until
a successor has been named (14 Delaware Code, §105(a)).
The Vice President shall assist the President in the duties of
the President's office, as the President may direct, and shall
preside at meetings and appoint members of committees
during the President's absence. In the event of the
President's death, resignation, incapacity, or disqualification,
the Vice President shall act in place of the President in all
respects until the vacancy shall be filled or the incapacity
removed.
Executive Secretary
Pursuant to 14 Delaware Code, §104(c):
The Secretary of Education, in addition to his or her
other duties of office, shall serve as Executive Secretary
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 883
of the State Board.
The Executive Secretary is responsible for keeping of
the minutes and other official records of the State Board,
either in person or by an assistant.
Legal Counsel
Legal counsel to the State Board of Education is
provided by the State Department of Justice and the Attorney
General's Office in accordance with 29 Delaware Code,
§2504. (In accordance with 29 Delaware Code, §2507, no
agency board, or commission shall employ legal counsel
except with approval of the Attorney General and Governor.)
Staff Assistance
Section 104(c), 14 Delaware Code, provides in part,
that: "The Department, through the Secretary, shall provide
reasonable staff support to assist the State Board in
performing its duties pursuant to this title ..." In addition,
the annual appropriations act provides funding for a single
independent staff person to provide support and policy
advice to the State Board of Education.
Committees
Subcommittees of the Board
The Board may, from time to time, establish temporary
committees to help carry out its responsibilities. To preserve
Board holism, committees will be used sparingly, only when
other methods have been deemed inadequate or to improve
efficiency of operations. Board committees, whether
external or internal, may not speak for the Board. No more
than three Board members may serve on a Board committee.
Board members may express their interest and willingness to
serve on any committee. Subject to Board approval, the
President will identify the charge of the committee and
appoint a committee chair and members of the committee. It
is expected that committees will report back to the full Board
on a regular basis.
Special Board Committees
The Board may, from time to time, create special
committees to advise the Board on specific issues, and shall
vote to do so at a formal meeting of the Board. Such
committees may include membership outside the Board or
Department of Education.
Other Committees
Under Delaware Code, a member of the State Board must
serve on each of the following committees:
• Equalization Committee (14 Del. C., §1707(i))
• Higher Education Commission (Executive Order
#97, 1991)
• President of the State Board serves ex-officio on the
Board of Trustees of the University of Delaware (14
Del. C., §5105)
Traditionally, Board members also serve on numerous
external boards and committees at both the State and
national level. Examples include the following:
• Delaware School Boards Association Board of
Directors
• Delaware School Boards Association Legislative
Committee
• Education Consortium
• Committees and study groups of the National Association
of State Boards of Education
• Education Task Forces and Committees established
by Executive Orders and Legislation.
Committees Appointed by the Secretary of Education
In accordance with 14 Delaware Code, §103(a)(11), the
Secretary must consult with the State Board of Education in
the appointment of committees formed to assist in
developing policies or regulations which would require State
Board approval. The Board's view shall be expressed in the
form of a vote on the proposed committee membership.
Examples of such committees include the Statewide
Student Assessment Committee and the DOE Strategic
Planning Committee
New State Board Member Orientation
The State Board of Education is responsible for the
orientation of new members to the State Board. A
subcommittee of the Board shall be responsible for planning
the orientation of new members. The Secretary of Education
shall be an ex-officio member of this committee.
Board Member Development
The State Board of Education shall be responsible for its
own development as a Board. This development shall take
place through membership and participation in organizations
such as the National Association of State Boards of
Education, Delaware School Boards Association, the
National School Boards Association, and other activities
such as Board retreats, conferences, conventions,
workshops, or committees.
Self Evaluation
The Board will monitor its own process and
performance to ensure continuity of Board improvements,
integrity of Board actions and progress toward Board goals.
The Board will be accountable to the public for competent,
conscientious, and effective accomplishment of its
obligations as a Board.
As part of the self-evaluation, the Board shall conduct
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
884 FINAL REGULATIONS
an annual evaluation in at least the following areas:
• roles and responsibilities of Board members;
• Board operations; and
• progress toward achieving Board goals as delineated
in the Board's five-year plan.
The Board may seek the input from others regarding the
effectiveness or impact of Board initiatives as part of the
evaluation process, and may utilize the services of an
independent consultant in doing so.
Consultants
The Board may, within available financial resources,
hire consultants as needed. The Board shall formally
approve the consultant and fee.
State Board Appropriations
Reimbursement to Board members for the normal
mileage and incidental expenses are paid by the Department
of Education from funds appropriated to the Board and
budgeted for that purpose. Reimbursement requests for
expenses for conferences or meetings outside the state must
be initialed by the Board president. For other expenditures in
excess of $1,000 Board approval is required.
Meetings
Annual Meeting
Pursuant to 14 Delaware Code, §105(a), the annual
meeting of the State Board of Education shall be held in
Dover during the month of July. Election of the Vice
President of the Board shall occur at this meeting.
Regular Meetings
Regular meetings of the State Board of Education are
held once a month in the Cabinet Room of the John G.
Townsend Building, Dover. The meetings are normally
scheduled on the third Thursday of each month beginning at
2:00 p.m. but may vary as need dictates.
Special Meetings
Special meetings of the State Board of Education may
be held to address emergency issues, conduct hearings,
develop goals, evaluate board operations, or for in depth
study and review of an issue. Special meetings are held at a
time and place agreed upon by the Board.
Executive Sessions
The State Board of Education may meet in executive
session for the reasons specified in 29 Delaware Code,
§10004. The Board must vote in a public meeting to go into
executive session stating the purpose for the executive
session.
Board Meeting Procedures
Public Notice of Meetings
As specified in 29 Delaware Code, §10004(e)(1) the
State Board is required to give public notice of all meetings,
including executive sessions closed to the public, at least 7
days prior to the meeting. The notice must include the
agenda and the date, time, and place of the meeting. The
notice is posted on the bulletin board outside the Cabinet
Room of the Townsend Building, Dover.
In addition, notices of all regular meetings are mailed to
the district superintendents, state officials, the media, heads
of state education organizations and other interested parties.
Persons and organizations may request that they be placed
on the mailing list by contacting Dani Moore at the
Department of Education. Telephone 302/739-4603. Fax
302/739-7768. Email: damoore@state.de.us
Agenda Format - Order of Business
The order of business for regular meetings is as follows:
I. Opening
A. Call to Order
B. Approval of Agenda
C. Approval of Minutes
II. Formal Public Comment
III. State Board Business
A. Reports/Discussions
B. Budget Items
C. Other
IV. Presentations
A. Department of Education
B. Secretary's Report, Review and Discussion
C. Other Presentations
V. Action Items
A. Policy, Rules and Regulations
B. Higher Education
C. Charter Schools
D. Other Action Items
E. Appeals and Reviews
VI. Information Items
VII. Formal Public Comment (if needed)
Agenda Preparation and Dissemination
Items included on the Board's agenda for regular
meetings are recommended jointly by the Policy Analyst to
the State Board and the Cabinet of the Department of
Education. The final agenda is subject to the approval of the
Board President. Any member of the Board may request that
an item be placed on the agenda.
Agendas with all background materials are distributed
to Board members at least 5 days prior to the meeting.
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Board agendas are also distributed to district and state
officials and to others on a request basis.
The State Board Agenda is also posted on the Department of
Education Web Site prior to the meeting at
www.state.doe.de.us.
Rules of Order
The Board uses the rules of parliamentary procedure to
conduct its meetings, but it is not strictly bound by Robert's
Rules of Order. The general conduct of the meeting is
determined by the Board President with input from other
board members and advice from the Board's legal counsel.
Quorum
Four (4) members of the State Board must be present to
conduct the business of the Board (14 Delaware Code,
§105(a)).
Voting Method
Votes by the State Board are taken by voice. When the
vote is not a unanimous one, a roll call vote is taken in
alphabetical order with the President voting last. All
questions before the Board must be approved by a majority
(4) of the members of the whole Board.
Minutes
As prescribed in 29 Delaware Code, §10004(f) the State
Board maintains minutes of all its meetings including
executive sessions. The minutes must include the names of
board members present and a record, by individual member,
of all votes taken and action agreed upon. The minutes,
along with the printed agenda and its backup materials, shall
constitute the official record of the Board.
Highlights of the State Board meetings are available on the
Department of Education Website within 10 days of the State
Board meeting at www.state.doe.de.us. Official Board
Minutes are posted on the web site within five days of their
approval at the subsequent monthly meeting of the Board.
Public Participation at Board Meetings
There are three ways that individuals and groups may
address the Board at its regular meetings:
1. An individual or group may request time on the
Board's agenda to make a formal presentation to the Board.
Such a request should be in writing, and be submitted to the
President of the State Board of Education, John G.
Townsend Building, 401 Federal Street, Suite 2, P.O. Box
1402, Dover, DE 19903-1402, at least 20 days prior to the
meeting. The decision to include the presentation will be
made by the Board President. (Such presentations are
included in Section IV.C. of the agenda.)
2. Time will be allocated at the beginning of the
meeting (Section II) for individuals or groups to address the
State Board. Persons wishing to make comments should
sign up on the appropriate form at least 15 minutes prior to
the call to order. Each group should choose one
representative to speak and comments should be limited to
five minutes. Speakers will be recognized by the Board
President in the order their names appear. If a large number
of people sign up to speak, the Board President may at his/
her discretion, limit the number of persons allowed to speak.
Normally the Board will not respond to questions or
comments at the meeting but will respond in writing to each
person or group. Written responses will not be made to
persons/groups addressing action items on the agenda.
Appeals and Reviews
The State Board of Education has several
responsibilities under the Code to hear appeals and to review
decisions of the Secretary of Education. Those
responsibilities are outlined in 14 Delaware Code,
§104(b)(5), (b)(6), (b)(7), and (b)(9). The types of
controversies and disputes appropriate for Board resolution
and the procedures for conducting such hearings are
contained in Appendix B.
Policy Development
One of the primary functions of the State Board of
Education is to assist the Secretary of Education in the
development of policy. Subsection 104(b)(1), 14 Delaware
Code states:
(1) Provide the Secretary of Education with advice and
guidance with respect to the development of policy
in those areas of education policy where rule- and
regulation-making authority is entrusted jointly to
the Secretary and the State Board. The State Board
shall also provide guidance on new initiatives,
which may from time to time be proposed by the
Secretary. The Secretary shall consult with the
State Board regularly on such issues to ensure that
policy development benefits from the breadth of
viewpoint and the stability which a citizens' board
can offer and to ensure that rules and regulations
presented to the State Board for its approval are
developed with input from the State Board.
Consistent with its role in shaping critical
educational policies, the State Board of Education
may also recommend that the Secretary undertake
certain initiatives which the State Board believes
would improve public education in Delaware;
In order to meet that responsibility, the State Board has
set aside time at each regular meeting for discussions of
State Board initiatives (Section III.A.), presentations from
the Department of Education and the Secretary of
Education's Report (Sections IV A. and B., respectively) and
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886 FINAL REGULATIONS
for Board action on policy, rules, and regulations (Section
V.).
It is the expectation of the Board that the Secretary and
the Department of Education will use those opportunities to
obtain advice and counsel from the board as a whole in
keeping with the spirit of the statute quoted above.
Appendix A
The following is a list of the powers, duties, and
responsibilities of the State Board of Education. Each
pertinent section of the Code is paraphrased and annotated.
A general description of the powers, duties, and
responsibilities can also be found in 14 Delaware Code,
§104(b), which is quoted in its entirety in the body of this
document.
Advisory Board to the Secretary
The State Board shall participate in meetings of the
Advisory Board to the Secretary of Education (14 Del. C.,
§106).
Alternative Assessments
The State Board of Education must approve any
alternative assessment administered pursuant to §151(g) and
(h) of Title 14 Del. C .
Approval of Charter Schools
The State Board of Education must approve charter
schools authorized by the Department (14 Del. C., §503 and
§511(c)). The State Board is also involved in any charter
revocation under 14 Del. C., §515 and/or §516.
Approval of Rules and Regulations of the Professional
Standards Board
The State Board of Education must approve rules and
regulations promulgated by the Professional Standards
Board before they become effective (14 Del. C.,§1203).
Such rules and regulations cover a number of areas including
the following:
1. Qualifications and certification of educators in the
public schools (14 Del. C, §1092,§1201, §1230,§1260,
§1261, §1264(b), and §3310(4)).
2. Establishment of a special institute for teacher
certification (14 Del. C., §1250).
3. Regarding alternative routes for teacher certification
(14 Del. C., §1230).
4. Regarding the Delaware Performance Appraisal
System II(14 Del. C., §1270).
5. Regarding professional development activities that
qualify for Skills and Knowledge Salary Supplements (14
Del. C., §1305(l)).
6. Regarding activities that qualify for Additional
Responsibility Salary Supplements (14 Del. C., §1305(m)).
Approval of Regulations of the Higher Education
Commission
The State Board of Education must approve rules and
regulations promulgated by the Higher Education
Commission before they become effective (14 Del. C.,§104
(b)(12)).
Approval of Rules and Regulations
The State Board of Education must approve rules and
regulations promulgated by the Department of Education
before they become effective. Such rules and regulations
cover a number of areas including the following:
1. Issuance of certificates and diplomas for the public
schools (14 Del. C., §122(b)(3)).
2. Statewide assessment of student achievement and the
assessment of the educational attainments of the public
school system (14 Del. C., §122(b)(4)).
3. Minimum courses of study for all public elementary
schools and public high schools (14 Del. C., §122(b)(5)).
4. Licensing of any institution of higher education,
public or private, which is not incorporated in the State or is
not established according to Delaware law (14 Del. C.,
§122(b)(7)).
5. Instruction in driver education in the nonpublic high
schools (14 Del. C., §122(b)(13)).
6. Statewide student testing program (14 Del. C., §151).
7. Excusal of educational hour requirements specified
in 14 Del. C., §1049(1).
8. Enforcement of school attendance laws (14 Del. C.,
§122(b)(9) and 10 Del. C. §901(14)).
9. Instruction in driver education during summer
months (14 Del. C., §122(b)(13)).
10. Conduct of interscholastic athletics (14 Del. C.,
§122(b)(14)).
11. Mandatory drug and alcohol educational programs
(14 Del. C., §122(b)(16)).
12. Operation of adult education and family literacy
programs (14 Del. C., §122(b)(17)).
13. Conduct of the teacher scholarship loan program in
critical curriculum areas (14 Del. C., §1106) and the student
loan program in critical curriculum areas (14 Del. C.,
§1108).
14. Concerning the employment of school principals
(14 Del. C., §1307(2)).
15. Regarding the employment of school nurses (14
Del. C., §1310(b)).
16. Concerning parent advisory committees, a peer
review committee, a human rights committee, and an autistic
program monitoring board (14 Del. C., §1332(f)).
17. Relating to related services for handicapped
students (14 Del. C., §1716A(c) and §1716A(d)).
18. Regarding truancy and excused absences from
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FINAL REGULATIONS 887
school (14 Del. C., §2706(b)).
19. Governing the design and operation of school buses
(14 Del. C., §2901), and the transportation of students of
nonpublic nonprofit schools (14 Del. C., §2905).
20. Qualifications and certification of vocational
educators in the public schools (14 Del. C, §3310(4)).
21. Regarding the creation and operation of programs
designed to serve exceptional students, primarily the
disabled (numerous citations throughout 14 Del. C., Chapter
31).
22. Regarding the extent and content of the instruction
in the public schools in the Constitution of the United States,
the Constitution and government of Delaware and the free
enterprise system (14 Del. C., §4103).
23. Regarding interstate agreements on the
qualifications of education personnel (14 Del. C., §8212).
Approval of Shared School Decision Making Grants
The State Board of Education must approve guidelines
for district transition grants for shared decision making (14
Del. C., §803(b)); must approve guidelines for school
transition grants (14 Del. C., §805(b); and must approve
guidelines for school improvement grants (14 Del. C.,
§806(a)).
Approval of Vocational Centers
The State Board of Education must approve the creation
of vocational-technical centers or schools (14 Del. C., §205).
Committee Appointments
The Secretary of Education must consult with the State
Board of Education in the appointment of committees
formed to assist in developing policies or regulations which
would require State Board approval (14 Del. C.,
§103(a)(11)).
Critical Curriculum Areas
The State Board of Education must approve areas,
which are to be designated as critical curriculum areas (14
Del. C., §1101); approve academic year programs (14 Del.
C., §1104); and approve summer inservice programs (14
Del. C., §1105).
Deciding Certain Controversies
The State Board of Education shall decide without
expense to the parties concerned certain controversies and
disputes involving the administration of the public school
system (14 Del. C., §121(12) and 14 Del. C., §104(b)(5)).
Rules and regulations regarding such hearings by the Board
are contained in Appendix B.
Deciding Controversies Concerning Local Rules and
Regulations
The State Board of Education shall decide controversies
involving rules and regulations of local school boards (14
Del. C., §1058).
Drug/Alcohol Education Programs
The State Board of Education must approve of statewide
alcohol/substance abuse programs established and
implemented by the Department of Education (14 Del. C.,
§4116(a)).
Employment of Aides in Autistic Program
The State Board of Education may review decisions of
the Department and Secretary of Education regarding
requests to employ aides in lieu of teachers in the autistic
program (14 Del. C., §1332(e)).
Establishment of Programs for the Disabled
The State Board of Education must approve the
establishment of schools, classes or programs for the
disabled (14 Del. C., §203, §1703(d), §1703(k), §1703(l),
§1703(m), §1703(n) and §1721).
Number and Length of School Days
The State Board of Education must approve a reduction
in the number of school days and the length of full workdays
for employees of the school system (14 Del. C., 1305(i)(j)).
Reorganization of School Districts
The State Board of Education determines and
establishes appropriate reorganized school districts through
consolidation, division, or a combination of the two as well
as establishing tax rates and tax districts for the same. (14
Del. C., §1025, §1026, §1027, §1028, §1065, §1924, and
§1925)
Review of Decisions Regarding Exceptional Students
The State Board of Education may review a variety of
decisions made by the Department regarding services to
disabled students (numerous citations in 14 Del. C., Chapter
31).
Qualifications of Food Service Managers
The State Board of Education must approve the
qualifications of food service managers (14 Del. C.,
§1332(a)).
School Profiles
The State Board of Education appoints members of the
School Profiles Advisory Committee, receives
recommendations from the Committee.
Standards for Interpreter/Tutors
The State Board of Education must approve standards
prescribed for interpreter/tutors (14 Del. C., §1332(a)).
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888 FINAL REGULATIONS
Statewide Programs for the Disabled
The State Board of Education must approve the
designation of a district to serve as administrative agency for
the deaf-blind program (14 Del. C., §1321(e)(15)a.; to
administer a program for the physically impaired (14 Del.
C., §1321(e)(16)); the establishment of intensive learning
centers (14 Del. C., §1321(e)(17)); and the designation of an
administering district for the autistic program (14 Del. C.,
§1332(a)).
Use of Cash Options in Lieu of Salary Funds
The State Board of Education may review decisions of
the Department and Secretary of Education regarding district
requests to elect cash options in lieu of receiving salary
funds from the State (14 Del. C., §1321(e)(11),
§1321(e)(12), §1321(e)(15)b., §1321(e)(16), §1332(d), and
§1332(e)).
Use of Special Education Funds
The State Board of Education may review decisions on
the use of special education funds that a district seeks to use
in another way if an objection is made to the Department's
decision (14 Del. C., §1703(o) and §1716A(h)).
Vacancies on Local School Boards
The State Board of Education appoints interim members
to a local board of education in the event a majority or the
entire membership vacates the seats at the same time. The
Board may also set the date for a special election to fill the
vacancies (14 Del. C., §1054)
Waiver of a Regulation
The State Board may, within 30 days or at its next
meeting, deny any waiver of a regulation granted by the
Department of Education (14 Del. C., §122(g)(2)).
Waiver of Rules Under School Discipline Programs
The Department of Education is authorized to waive
certain rules and regulations in the implementation of school
discipline programs. The State Board of Education may
deny the waiver within a fixed period of time (14 Del. C.,
§1606).
Appendix B
Hearing Procedures And Rules
RULE MAKING HISTORY: Initial adoption date (see
Register of Regulations at www.legis.state.de.us/
onlinepublications :
1.0 Scope and Purpose of Rules
The State Board of Education ("the State Board") is
authorized by several sections of the Education Code (Title
14 of the Delaware Code) to adopt or approve rules and
regulations, resolve disputes, hear appeals, and review
decisions of the Secretary of Education. The State Board is
also governed by the Administrative Procedures Act
(Chapter 101 of Title 29 of the Delaware Code), except
where specifically exempted by other law.
These Hearing Procedures and Rules ("Rules") shall
govern the practice and procedure before the State Board in
hearings, appeals, and regulatory proceedings.
2.0 General Provisions
2.1 These Rules shall be liberally construed to secure a
just, economical, and reasonably expeditious determination
of the issues presented in accordance with the State Board's
statutory responsibilities and with the Administrative
Procedures Act.
2.2 The State Board may for good cause, and to the
extent consistent with law, waive any of these Rules, either
upon application or upon its own motion.
2.3 Whether a proceeding constitutes an evidentiary
hearing, an appeal or regulatory action shall be decided by
the State Board on the basis of the applicable laws. A party's
designation of the proceeding shall not be controlling on the
State Board or binding on the party.
2.4 The State Board may appoint a representative to act
as a hearing officer for any proceeding before the State
Board. Except as otherwise specifically provided, the duties
imposed, and the authority provided, to the State Board by
these Rules shall also extend to its hearing officers.
2.5 Notwithstanding any part of these Rules to the
contrary, the State Board, or its counsel, designee or hearing
officer, may conduct prehearing conferences and
teleconferences to clarify issues, confer interim relief,
specify procedures, limit the time available to present
evidence and argument, and otherwise expedite the
proceedings.
2.6 The State Board may administer oaths, issue
subpoenas, take testimony, hear proofs and receive exhibits
into evidence at any hearing. Testimony at any hearing shall
be under oath or affirmation.
2.7 The State Board may elect to conduct joint hearings
with the Department of Education and other state and local
agencies. These Rules may be modified as necessary for
joint hearings.
2.8 Any party to a proceeding before the State Board
may be represented by counsel. An attorney representing a
party in a proceeding before the State Board shall notify the
Executive Secretary of the State Board ("Executive
Secretary") of the representation in writing as soon as
practical. Attorneys who are not members of the Delaware
Bar may be permitted to appear pro hac vice before the State
Board in accordance with Rule 72 of the Rules of the
Delaware Supreme Court.
2.9 The State Board may continue, adjourn or postpone
proceedings for good cause at the request of a party or on its
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FINAL REGULATIONS 889
own initiative. Absent a showing of exceptional
circumstances, requests for postponements of any matter
scheduled to be heard by the State Board shall be submitted
to the Executive Secretary in writing at least three (3)
business days before the date scheduled for the proceeding.
The President of the State Board shall then decide whether to
grant or deny the request for postponement. If a hearing
officer has been appointed, the request for postponement
shall be submitted to the hearing officer, who shall then
decide whether to grant or deny the request.
2.10 A copy of any document filed with or submitted to
the State Board or its hearing officer shall be provided to all
other parties to the proceeding, or to their legal counsel.
Where a local or other school board participates in a
proceeding, copies of filed documents shall be directed to
the executive secretary of the board, unless that board
appoints a different representative for such purpose.
2.11 For purposes of these Rules, unless otherwise
specified "day" shall mean a calendar day. "Business day"
shall mean weekdays Monday through Friday, except when
those days fall on a legal holiday.
3.0 De Novo and Other Evidentiary Hearings
3.1 Section 3.0 governs proceedings where a statute or
regulation provides the right to an original or to a de novo
hearing before the State Board to decide a specific
controversy or dispute.
3.2 Petitions for Hearing
3.2.1 A party may initiate a hearing on matters
within the State Board's jurisdiction by delivering a petition
for hearing to the Executive Secretary. The petition shall be
in writing and shall be signed by the party making the
request (or by the party's authorized representative). It shall
set forth the grounds for the action in reasonable detail and
shall identify the source of the State Board's authority to
decide the matter.
3.2.2 The petition for hearing shall be filed within a
reasonable time after the controversy arises, but in no event
shall a petition be filed more than thirty (30) days after the
petitioning party's receipt of notice that official action has
been taken by an authorized person, organization, board or
agency.
3.2.3 A copy of the petition for hearing shall be
delivered to all other parties to the proceeding at the time it is
sent to the Executive Secretary. A copy of any other paper
or document filed with the State Board or its hearing officer
shall, at the time of filing, also be provided to all other
parties to the proceeding. If a party is represented by legal
counsel, delivery to legal counsel is sufficient.
3.2.4 Upon receipt of an adequately detailed
petition for hearing, the Executive Secretary shall place the
matter on the agenda of the next State Board meeting. At the
next meeting, the State Board will either assign the matter to
a hearing officer or determine a hearing date for the matter.
The parties shall be given at least twenty (20) days notice of
the hearing date.
3.2.5 A party shall be deemed to have consented
to an informal hearing (as that term is used in Section 10123
of the Administrative Procedures Act) unless the party
notifies the Executive Secretary in writing that a formal
public hearing is required. Such notice must be delivered to
the Executive Secretary within three (3) days of the receipt
of the notice scheduling the hearing.
3.3 Record of Prior Proceedings
3.3.1 If proceedings were previously held on the
matters complained of in the petition, the agency which
conducted those proceedings shall file a certified copy of the
record of the proceedings with the Executive Secretary.
3.3.2 The record shall contain any written decision,
a certified copy of any rule or regulation involved, any
minutes of the meeting(s) at which a disputed action was
taken, a certified, verbatim transcript of the proceedings
conducted by the agency below and all exhibits presented to
the agency. The certified transcript shall be prepared at the
direction and expense of the agency below.
3.3.3 The record shall be filed with the Executive
Secretary within ten (10) days of the date the Executive
Secretary notifies the agency that the petition has been filed,
unless directed otherwise. A copy of the record shall be sent
to the petitioner when it is submitted to the Executive
Secretary.
3.4 Record Review
3.4.1 If a hearing was previously held on the
matters complained of in the petition, the parties to the
proceeding before the State Board may agree to submit the
matter to the State Board or its hearing officer on the existing
record without the presentation of additional evidence.
3.4.2 If the parties agree to submit the matter for
decision on the existing record, they shall support their
positions in written statements limited to matters in the
existing record. The parties' written statements shall be
submitted according to a schedule determined by the State
Board.
3.4.3 If the parties agree to submit the matter for
decision on the existing record, they may nonetheless
request oral argument by notifying the Executive Secretary
in writing at least ten (10) days before the date written
statements are due. Oral argument shall be limited to the
matters raised in the written statements and shall be limited
to fifteen (15) minutes per side with an additional five (5)
minutes for rebuttal.
3.4.4 If the parties agree to submit the matter for
decision on the existing record, the State Board's decision
shall be based on the existing record, the written statements
and oral argument, if any.
3.5 Evidentiary hearings
3.5.1 Evidentiary hearings will be held when there
has not been a prior hearing, when the parties do not agree to
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890 FINAL REGULATIONS
rest on the existing record, or when the State Board or its
hearing officer otherwise decide to receive additional
evidence.
3.5.2 The hearing will proceed with the petitioner
first presenting its evidence and case. The responding party
may then present its case. The petitioner will then have an
opportunity to present rebuttal evidence.
3.5.3 Opening and closing arguments and post
hearing submissions of briefs or legal memoranda will be
permitted in the discretion of the State Board or hearing
officer.
3.5.4 Any person who testifies as a witness shall
also be subject to cross examination by the other parties to
the proceeding. Any witness is also subject to examination
by the State Board or its hearing officer.
3.6 Evidence
3.6.1 Strict rules of evidence shall not apply.
Evidence having probative value commonly accepted by
reasonably prudent people in the conduct of their affairs may
be admitted into evidence.
3.6.2 The State Board or its hearing officer may
exclude evidence and limit testimony as provided in Section
10125(b) of the Administrative Procedures Act.
3.6.3 Objections to the admission of evidence shall
be brief and shall state the grounds for the objection.
Objections to the form of the question will not be
considered.
3.6.4 Any document introduced into evidence at
the hearing shall be marked by the State Board or the hearing
officer and shall be made a part of the record of the hearing.
The party offering the document into evidence shall provide
a copy of the document to each of the other parties and to
each of the State Board members present for the hearing
unless otherwise directed.
3.6.5 Requests for subpoenas for witnesses or other
sources of evidence shall be delivered to the Executive
Secretary in writing at least fifteen (15) days before the date
of the hearing, unless additional time is allowed for good
cause. The party requesting the subpoena is responsible for
delivering it to the person to whom it is directed.
3.7 Creation of Record before State Board
3.7.1 Any party may request the presence of a
stenographic reporter on notice to the Executive Secretary at
least ten (10) days prior to the date of the hearing or oral
argument. The requesting party shall be liable for the
expense of the reporter and of any transcript the party
requests.
3.7.2 If a stenographic reporter is not present at
the hearing or argument, the State Board shall cause an
electronic recording of the hearing to be made by tape
recorder or other suitable device. Electronic recordings shall
be destroyed unless a written request to preserve it is made to
the Executive Secretary within three months of the final
order issued in the hearing.
3.8 State Board Decision
3.8.1 When the State Board has appointed a
hearing officer, the hearing officer shall submit a proposed
written decision for the consideration of the State Board.
3.8.2 The proposed decision shall comply with
Section 10126(a) of the Administrative Procedures Act. The
proposed decision shall be submitted to the State Board and
the parties within a reasonable time of the conclusion of the
proceedings before the hearing officer.
3.8.3 The parties shall have twenty (20) days from
the date the proposed order is delivered to them to submit in
writing to the State Board and the other party any
exceptions, comments and arguments respecting the
proposed order.
3.8.4 To the extent possible, the State Board shall
consider a matter conducted by a hearing officer at its next
regular meeting following the parties' submissions, if any, or
the end of the comment period, whichever comes first.
3.8.5 The State Board shall consider the entire
record of the case and the hearing officer's proposed
decision and written comments thereto, if any, in reaching its
final decision. The State Board's decision shall be
incorporated in a final order which shall be signed and
mailed to the parties.
4.0 Appeals
4.1 Section 4.0 governs proceedings where a statute or
regulation provides the right to appeal to the State Board a
decision which resolved a specific controversy or dispute.
These proceedings include, but are not limited to, appeals of
school district decisions involving rules and regulations of
the school board (14 Del. C. '1058)1, and appeals of
decisions of the Delaware Secondary School Athletic
Association (DSSAA).
4.2 For purposes of Section 4.0:
4.2.1 "Party" shall mean any person or
organization who participated in the proceedings before the
agency which rendered the decision being appealed.
4.2.2 "Decision" shall mean the official action
taken to resolve the dispute presented below and shall
include the factual findings, the rule involved and the
agency's conclusion. "Decision" shall not include policy
making or the adoption of rules and regulations of future
1. The State Board of Education has held that local
boards of education are not subject to the Administrative
Procedures Act while conducting disciplinary proceedings.
See R.T. v. Sussex County Vocational-Technical School District
Board of Education, SBE No. 99-12 (February 17,
2000) and M.B. v. Sussex Technical School District Board of
Education, SBE No. 00-03 (April 3, 2000).
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 891
applicability.
4.3 For purposes of determining the State Board's
jurisdiction under Section 1058 of the Education Code,
"controversies involving the rules and regulations of the
school board" shall mean the presentation before the local
school board of a dispute involving the application of rules
and regulations of the local board in a particular factual
context. Certain decisions involving the application of rules
and regulations of the local board may not be appealed to the
State Board, including:
4.3.1 Decisions involving student disciplinary
actions where a student is suspended from school for ten (10)
or fewer days, except where a request to expunge the
disciplinary action from the student's record has been denied
by the local board.
4.3.2 Personnel actions which are covered under a
collective bargaining agreement or are otherwise subject to
adjudication by the Public Employment Relations Board.
4.3.3 Termination of employees conducted in
accordance with Chapter 14 of the Education Code.
4.3.4 Termination or nonrenewal of public school
administrators and confidential employees, as those terms
are defined in Section 4002 of the Education Code, at the
conclusion of an employment contract.
4.4 Notice of appeal
4.4.1 A party may initiate an appeal by filing a
notice of appeal with the Executive Secretary. The notice
shall be in writing, shall be signed by the party making the
request (or by the party's authorized representative), and
shall be delivered to the Executive Secretary by registered or
certified mail.
4.4.2 The notice of appeal shall briefly state the
decision from which the appeal is taken, the law, rule or
regulation involved in the decision, the names of the parties,
and the grounds for the appeal.
4.4.3 The notice of appeal must be postmarked
within thirty (30) days of the receipt of the written notice of
the decision from which the appeal is taken.
4.4.4 A copy of the notice of appeal shall be sent to
the agency which made the decision at the same time the
original notice of appeal is sent to the Executive Secretary.
A copy of any other paper or document filed with the State
Board shall be provided to all parties to the proceeding at the
time of filing.
4.4.5 Upon receipt of an adequately detailed notice
of appeal involving a student disciplinary decision or a
decision of the Delaware Secondary School Athletic
Association (DSSAA), the Executive Secretary shall assign
the matter to a hearing officer from a roster of hearing
officers approved by the State Board. The Executive
Secretary shall provide the notice of appeal and the hearing
officer assignment to the State Board at its next meeting.
4.4.6 Upon receipt of an adequately detailed notice
of appeal involving any matter other than a student
disciplinary decision or a decision of DSSAA, the Executive
Secretary shall consult with the President of the State Board
to determine whether the matter should be assigned to a
hearing officer or placed on the State Board's next meeting
agenda. The President shall have the authority to authorize
the Executive Secretary to assign a hearing officer to the
matter from a roster of hearing officers approved by the State
Board. In such case, the Executive Secretary shall provide
the notice of appeal and the hearing officer assignment to the
State Board at its next meeting. Nothing in this subsection
shall prevent the State Board from later assigning the matter
to a hearing officer.
4.5 The record on appeal
4.5.1 Unless instructed otherwise, within ten (10)
days of the receipt of the notice of appeal, the agency which
made the decision under appeal shall forward the record of
the proceedings below to the Executive Secretary. A copy of
the record shall be sent to the party filing the appeal at the
same time.
4.5.2 The record shall include the agency's written
decision, a certified copy of any rule or regulation involved,
the minutes of the meeting(s) at which the decision was
made, a certified, verbatim transcript of the hearing
conducted by the agency or party below, and all exhibits
presented to the agency. The certified transcript shall be
prepared at the direction and expense of the agency below.
4.5.3 If a certified transcript of the proceedings
below is not or cannot be provided to the State Board, the
Executive Secretary shall remand the case to the agency with
an instruction that the agency hold a new hearing within ten
(10) days.
4.6 Proceedings on appeal
4.6.1 The State Board of Education or its hearing
officer shall establish and notify the parties of the date when
the State Board or its hearing officer will consider the
appeal, hereafter referred to as the consideration date. The
parties shall be given at least twenty (20) days notice of the
consideration date. The parties may agree to shorten or
waive the notice of the consideration date.
4.6.2 Written statements of position and legal
briefs or memoranda, if any, shall be filed no later than (10)
days prior to the consideration date. Failure to file a written
statement by the time specified may result in a postponement
of the consideration date until the statement is filed, or a
consideration of the appeal without the written statement, at
the discretion of the State Board or its hearing officer.
4.6.3 The written statement must clearly identify
the issues raised in the appeal. Briefs or legal memoranda
shall be submitted with the written statement if the appeal
concerns a legal issue or interpretation.
4.6.4 Oral argument
4.6.4.1 A party may request that oral argument
be heard on the consideration date. A request for oral
argument shall be submitted with the written statement of
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
892 FINAL REGULATIONS
appeal. There will be no oral argument unless it is requested
when the written statement of appeal is submitted.
4.6.4.2 Oral argument, if requested, shall be
limited to fifteen (15) minutes per side with five additional
minutes for rebuttal.
4.6.4.3 Any party may request the presence of
a stenographic reporter at oral argument by notifying the
Executive Secretary at least ten (10) days prior to the date of
the argument. The requesting party shall be liable for the
expense of the reporter. If a stenographic reporter is not
present at the argument, the State Board or hearing officer
shall cause an electronic transcript of the hearing to be made
by tape recorder or other suitable device. Electronic
transcripts shall be destroyed unless a written request to
preserve it is made to the Executive Secretary within three
months of the final order issued in the appeal.
4.6.4.4 If the State Board or hearing officer
permits a party to present oral argument on an issue which
was not identified by the party in their written statement,
briefs or legal memoranda, or if in the course of the
argument, the State Board or hearing officer raises an issue
which was not previously raised by either party, the parties
shall have a reasonable opportunity to comment in writing
within five (5) business days of the oral argument.
4.6.4.5 The State Board or its hearing officer
may limit or restrict argument that is irrelevant, insubstantial
or unduly repetitive.
4.7 Standard and Scope of Review
4.7.1 The appellate review of the State Board shall
be limited to the record of the proceedings below. Neither
the State Board nor the hearing officer will consider
testimony or evidence which is not in the record. If the State
Board determines that the record is insufficient for its
review, it shall remand the case to the agency below with
instructions to supplement the record.
4.7.2 The standard of review shall be determined
by the law creating the right of appeal. In the absence of a
specific statutory standard, the substantial evidence rule will
be applied, that is, neither the State Board nor the hearing
officer will substitute its judgment for that of the agency
below if there is substantial evidence in the record for its
decision and the decision is not arbitrary or capricious. The
State Board will make an independent judgment with respect
to questions of law.
4.8 State Board Decision
4.8.1 After considering the record from the
proceedings below, the written submissions and the
arguments made by the parties, if any, the hearing officer
shall submit a proposed written decision for the
consideration of the State Board.
4.8.2 The proposed decision shall comply with
Section 10126(a) of the Administrative Procedures Act. The
proposed decision shall be submitted to the State Board and
the parties within fifteen (15) days of the consideration date
or the filing of any post argument submissions.
4.8.3 The parties shall have twenty (20) days from
the date the proposed order is delivered to them to submit in
writing to the State Board and the other party any
exceptions, comments and arguments respecting the
proposed order. The parties may agree to shorten or waive
the comment period, or to consent to the hearing officer's
recommendation without additional comment. When the
parties consent to the hearing officer's recommendation,
they shall so advise the Executive Secretary.
4.8.4 The State Board shall consider the appeal at
its next regular meeting following receipt of the parties'
exceptions, comments, and arguments, if any, or the end of
the comment period, whichever occurs first.
4.8.5 The State Board shall consider the entire
record of the case and the hearing officer's proposed
decision and any written comments thereto, in reaching its
final decision. The State Board's decision shall be
incorporated in a final order which shall be signed and
mailed to the parties.
4.9 Student Discipline Appeals
4.9.1 To the extent possible, appeals of decisions
involving student discipline will be scheduled for
consideration by the hearing officer within thirty (30) days
of the receipt of the notice of appeal.
4.9.2 If an appeal involves disciplinary action
against a student receiving special education and related
services, the record must include evidence that a
Manifestation Determination Review was conducted
pursuant to the Department of Education's Administrative
Manual for Special Education Services. Failure to provide
such evidence may result in reversal or remand to agency for
additional proceedings.
4.9.3 An appeal of or dispute about the
Manifestation Determination Review must be made to the
Department of Education as provided in the Administrative
Manual for Special Education Services. The State Board of
Education will not review such determinations.
5.0 Public Regulatory Hearings
5.1 Section 5.0 governs public hearings before the State
Board or its hearing officers where the State Board is
required to hold, or decides to hold, such hearings before
adopting or approving rules and regulations or taking other
regulatory action. See Note 1.
5.2 Notice that the State Board has scheduled a public
regulatory hearing shall be provided as required in Section
10115 of the Administrative Procedures Act. Notice of the
public hearing shall also be circulated to individuals and
agencies on the State Board's mailing list for meeting
agendas. The notice of the hearing shall indicate whether the
State Board will conduct the hearing, or designate a hearing
officer for that purpose.
5.3 Creation of record of public hearing
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 893
5.3.1 Any party may request the presence of a
stenographic reporter on notice to the Executive Secretary at
least ten (10) days prior to the date of the hearing. The
requesting party shall be liable for the expense of the
reporter and of any transcript the party requests.
5.3.2 If a stenographic reporter is not present at the
hearing, the State Board shall cause an electronic recording
of the hearing to be made by tape recorder or other suitable
device. Electronic recordings shall be destroyed unless a
written request to preserve it is made to the Executive
Secretary within three months of the final order issued in the
hearing. Any party requesting that a written transcript be
made from the recording shall bear the cost of producing the
transcript.
5.4 Subpoenas
5.4.1 The State Board or its hearing officer may
issue subpoenas for witnesses or other evidence for the
public hearing. Where possible, such subpoenas shall be
delivered to the party to whom they are directed at least ten
(10) days prior to the public hearing.
5.4.2 The State Board or its hearing officer may
also, in its discretion, issue subpoenas at the request of a
person interested in the proceedings. Requests for such
subpoenas shall be delivered to the Executive Secretary at
least fifteen (15) days prior to the date of the hearing, unless
additional time is allowed for good cause.
5.4.3 The party requesting the subpoena is
responsible for delivering it to the person to whom it is
directed.
5.5 Documents
5.5.1 The State Board or its hearing officer shall, at
the beginning of the hearing, mark as exhibits any
documents it has received from the public as comment and
any other documents which it will consider in reaching its
decision. Documents received during the hearing shall also
be marked as exhibits.
5.5.2 Any person or party submitting a document
before or during the public hearing shall provide at least
eight (8) copies of the document to the State Board, unless
directed otherwise.
5.6 Witnesses
5.6.1 The order of witnesses appearing at the
hearing shall be determined by the State Board or its hearing
officer. The State Board or its hearing officer may direct an
agency or organization to designate a single person to
present the agency or organization's position at the public
hearing.
5.6.2 The State Board or its hearing officer may
limit a witness's testimony and the admission of other
evidence to exclude irrelevant, insubstantial or unduly
repetitious comment and information.
5.6.3 Any person who testifies at a public hearing
shall be subject to examination by the State Board or its
hearing officer. The State Board or its hearing officer may in
their discretion allow cross examination of any witness by
other participants in the proceedings.
5.7 At the conclusion of the public hearing, the State
Board shall issue its findings and conclusions in a written
order in the form provided in Section 10118(b) of the
Administrative Procedures Act. The Board's order shall be
rendered within a reasonable time after the public hearing.
Note 1: The State Board is not subject to the
Administrative Procedures Act when approving (or refusing
to approve) regulations or regulatory action of the
Department of Education, provided that the Department has
complied with applicable portions of the Act. See 14 Del. C.
'105(b)
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. 505)
ORDER
Nature of the Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services
initiated proceedings to add new policy to the Division of
Social Services Manual, Sections 2002.1.1: regarding case
closures for the Cash Assistance Program, Food Stamps
Program, and Medical Assistance Programs and in Section
2002.1.2: re-numbered change of address case processing
instructions to appear after the policy on case closures; this is
a housekeeping change. 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 August, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2001 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
No written or verbal comments were received relating to
this proposed rule.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
894 FINAL REGULATIONS
Findings of Fact
The Department finds that the proposed changes as set
forth in the August, 2001 Register of Regulations should be
adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulations regarding case closures and change of address
case processing instructions are adopted and shall be final
effective October 10, 2001.
September 14, 2001
Vincent P. Meconi, Secretary, DHSS
DSSM 2002.1.1 Case Closures:
For Cash Assistance and Food Stamps:
The Division can terminate benefits if, based on reliable
information, the following is true:
• All members of an assistance group/household have
died; or
• All members of an assistance group/household have
moved from Delaware; or
• DSS mail has been returned by the post office
indicating no known forwarding address.
For Medical Assistance:
The Division can terminate benefits for an individual if,
based on reliable information, the following is true:
• The member of the assistance group has died; or
• The member of the assistance group has moved
from Delaware; or
• DSS mail has been returned by the post office
indicating no known forwarding address
DSSM 2002.1.2 Change of Address Case Processing
Instructions
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. 505)
ORDER
Nature Of The Proceedings
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services / Food
Stamp Program initiated proceedings to amend policies to
implement policy changes to the above-referenced sections
of the Division of Social Services Manual. Changes are
being made in the Food Stamp Program Policies as a result
of the following rule: Food Stamp Program: Noncitizen
Eligibility, and Certification Provisions of PL 104-193, as
amended by PL 104-208, 105-33 and 105-185, Final Rule.
This rule implements several provisions of the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA) and amended by the Omnibus
Consolidated Appropriations Act of 1997 (OCAA), the
Balanced Budget Act of 1997 (BBA), and the Agricultural
Research, Extension and Education Reform Act of 1998
(AREERA).
Summary Of Changes
• Medicaid only cases closed in Medicaid (due to
agreement with HMOs) are not eligible for Emergency
Assistance Services.
• Reorganizes policy language regarding citizenship
and alien status for ease of reading, clarifies policy on
military connection and 40 quarters of coverage eligibility
criteria, add non-citizen nationals to list of eligible
aliens.
• Adds individuals convicted of drug felonies and
time-limited adults to list of non-household members.
• Reorganizes section on authorized representatives
for ease of reading, allows authorized representatives to
report household changes, requires drug/alcohol center
authorized representatives to be prosecuted if drug/alcohol
center's authorized representative intentionally misrepresent
household circumstances.
• Defines definition of work and good cause for timelimited
able-bodied adults, expands the allowable
exemptions, and requires the reporting of hours for
time-limited adults and counting their income and
resources.
• Agency cannot impose additional application
requirements as condition of food stamp eligibility.
• Allows filing of applications and signatures by fax
or other electronic transmissions, and must encourage
households to file application for food stamps when
they express concerns about food insecurity.
• Requires agency to provide assistance if there is a
question as to the household's refusal of or failure to
cooperate.
• Requires workers to explore and resolve incomplete
and unclear information with households and to schedule
interview for applicants not interviewed the same
day they file application in the office.
• Requires agency to give households at least ten
days to provide verifications
• Revises verification procedures for alien eligibility
• Requires time-limited able-bodied adults to verify
work hours and countable months from other states.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 895
• Allows a statement from a third party that an individual
is a US citizen or non-citizen national if normal
verifications are not available.
• Requires agency to only disclose information absolutely
necessary to get information from collateral contacts,
to not disclose that households are applying for
food stamps.
• Households who are error prone do not necessarily
constitute a lack of verification in order to require a
home visit.
• Allows households to supply documents by fax.
• Requires time-limited able-bodied adults' work
hours to be verified at recertification.
• Allows agency to deny on the 30th day after application
if household misses an interview and does not
contact agency to pursue application.
• States if household misses 1st interview, fails to
schedule 2nd one or postpones until after 30th day,
delay is household's fault.
• Adds individuals disqualified for drug related felony
to list of those who cannot be categorically eligible.
• Removes sponsor deeming language and refers to
9081.2.
• Excludes certain diversion payments as income and
revises language for energy assistance for ease of reading.
• Allows cost-sharing or spend down expenses
incurred by Medicaid as allowable medical expenses,
allows well and septic tank maintenance as utility
expenses.
• Clarifies the term "initial" month for migrant and
seasonal farmworkers.
• Revises guidelines for assigning certification periods,
restricts shortening certification periods by using
the notice of expiration, allows lengthening certification
periods not to exceed 12 months in total.
• Reorganizes section on self-employment income
for ease of reading, allows payments on principal of the
purchase price of income-producing real estate and capital
assets, equipment, machinery, and other durable
goods.
• Requires the counting of all the income and
resources for individuals disqualified for drug felonies
and requires prorating the income and counting the full
resources of time-limited able-bodied adults.
• Allows group living arrangement staff to determine
whether or not a resident can handle his/her own affairs
as far as applying for food stamps, must use foods tamps
for food prepared and served to those residents who participate
in FS.
• Revises definition of sponsored alien.
• Reorganizes section on sponsor deeming for ease of
reading and sponsor deeming is not used for ineligible
sponsored aliens.
• Revises the rule about the reduction of public assistance
benefits to allow for the ban on increasing the
food stamps to end when the public assistance case
closes.
• Requires time-limited able-bodied adults to report
changes in work hours when decreased below 20 hours
per week.
• Sets procedures for handling delays in processing
recertifications, no proration of benefits if verification
period extends past end of certification period.
Summary Of Text Added At The Time The Final Order
Is Issued
9082 Reduction of Public Assistance Benefits
[273.1.1(j)]
• Supplemental Security Income (SSI) should not
have been included. It is not considered a means-tested
program for the purposes of this provision.
• Sanctions will not apply to closed cases. The
phrase "third permanent sanction" was used instead of
"closed cases" because some sanctions are not third
strikes.
and
9042.2 Categorically Eligible Households
• Food and Nutrition Services has clarified that
households are not considered categorically eligible if
any individuals are disqualified for IPVs (Intentional
Program Violators).
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 August, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2001 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
No written or verbal comments were received relating to
this proposed rule.
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the August, 2001 Register of Regulations should be
adopted, as herein revised.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
896 FINAL REGULATIONS
THEREFORE, IT IS ORDERED, that the proposed
regulations of the Food Stamp Program are adopted, as
herein revised, and shall be final effective October 10, 2001.
September 14, 2001
Vincent P. Meconi, Secretary, DHSS
6002 Eligibility
Delaware residents may participate in the Emergency
Assistance Program if:
1) Individual/Family is in receipt of or eligible for the
following:
a. Public Assistance receiving households
(DABC, GA, SSI);
b. 1931; Grant/Payment related Medicaid
(DABC/GA/SSI) including Transitional, and Prospective
Medicaid*; and
c. Proverty-related Pregnant Women, Infants and
Children Medicaid*.
c. Poverty-related children's Medicaid; and
cd. General Assistance Recipients who do not get
Medicaid*.
* Due to a special arrangement with the Managed Care
Organizations (MCO), individuals may receive a Medicaid
card from their MCO for up to six months after they are
closed in Medicaid. These individuals are not eligible for
the Emergency Assistance Program.
OR
2) A. Family has children at risk of removal or
removed from their home due to, or suspected at risk of,
abuse or neglect; or
3) B. Family has children removed from, or at risk of
removal from, the community.
9007.1 Citizenship and alien status Citizens and Qualified
Aliens
(273.4)
Household members meeting citizenship or alien status
requirements Citizens and qualified aliens
The following residents of the United States are eligible
to participate in the Food Stamp Program without limitations
based on their citizenship/alienage status:
1. Persons born in the 50 states and the District of
Columbia, Puerto Rico, Guam, Virgin Islands, and the
Northern Mariana Islands. Children born outside the United
States are citizens if at least one of the both parents is a are
citizens;
2. Naturalized citizens or a United States non-citizen
national (person born in an outlaying possession of the
United States, like American Samoa or Sawin's Island, or
whose parents are U. S. non-citizen nationals.
3. Individuals who are:
(A) An American Indian born in Canada who
possesses at least 50 per centum of blood of the American
Indian race to whom the provisions of section 289 of the
Immigration and Nationality Act (INA) apply;
(B) A member of an Indian tribe as defined in
section 4(e) of the Indian Self-Determination and Education
Assistance Act which is recognized as eligible for the special
programs and services provided by the U. S. to Indians
because of their status as Indians;
(C) Lawfully residing in the U. S. and was a
member of a Hmong or Highland Laotian tribe at the time
that the tribe rendered assistance to U. S. personnel by taking
part in a military or rescue operation during the Vietnam era
beginning August 5, 1964, and ending May 7, 1975;
(i) The spouse or surviving spouse of such
Hmong or Highland Laotian who is deceased, or
(ii) An unmarried dependent child of such
Hmong or Highland Laotian who is under the age of 22; an
unmarried child under the age of 18 or if a fulltime student
under the age of 22 of such a deceased Hmong or Highland
Laotian provided that the child was dependent upon him or
her at the time of his or her death; or an unmarried disabled
child age 18 or older if the child was disabled and dependent
prior to the child's 18th birthday.
3.4. Individuals who are The following aliens are
eligible indefinitely due to being:
(A) lawfully admitted for permanent residence
(LPR) who can be credited with 40 quarters of work as
determined under Title II of the Social Security Act,
including qualifying quarters of work not covered by Title II
of the Social Security Act, based on the sum of: quarters the
alien worked; quarters credited from the work of a parent of
the alien before the alien became 18 (including quarters
worked before the alien was born or adopted); and quarters
credited from the work of a spouse of an alien during their
marriage if they are still married or the spouse is deceased.
A spouse cannot get credit for quarters of coverage of a
spouse when the couple divorces before a determination of
eligibility is made. If a determination of eligibility has been
made based on the quarters of coverage of a spouse, and the
couple later divorces, the alien's eligibility continues until
the next recertification. At that time, eligibility is
determined without crediting the alien with the former
spouse's quarters of coverage. (Beginning January 1, 1997,
any quarter in which the alien received any Federal meanstested
benefits does not count as a qualifying quarter. A
parent's or spouse's quarter is not creditable if the parent or
spouse received any Federal means-tested benefits or
actually received food stamps in that quarter. If an alien
earns the 40th quarter of coverage before applying for food
stamps or any other Federal means-tested benefit in that
same quarter, all that quarter toward the 40 qualifying
quarters total.);
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 897
(B) lawfully in US on 8/22/96 and is now under 18
years of age;
(C) lawfully in US on 8/22/96 and is now receiving
disability disabled or blind (Must be receiving payments
listed under DSSM 9013.1);
(D) lawfully in US and 65 or older on 8/22/96
(born on or before 8/22/31).
(E) An alien with one of the following military
connections:
(i) A veteran who was honorably discharged
for reasons other than alien status, who fulfills the minimum
active-duty service requirements of 38 U.S.C. 5303A(d),
including an individual who died in active military, naval or
air service;
(ii) A veteran includes an individual who
served before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines
while such forces were in the service of the Armed forces of
the U. S. or in the Philippine Scouts, as described in 38
U.S.C. 107;
(iii) An individual on active duty in the Armed
Forces of the U.S. other than for training; or
(iv) The spouse and unmarried dependent children
(legally adopted or biological) of a person described above
in (i) through (iii), including the spouse of a deceased
veteran, provided the marriage fulfilled the requirements of
38 U.S.C. 1304, and the spouse has not remarried. An
unmarried child for the purposes of this section is: a child
who is under the age of 18 or, if a full-time student, under the
age of 22; such unmarried dependent child of a deceased
veteran was dependent upon the veteran at the time of the
veteran's death; or an unmarried disabled child age 18 or
older if the child was disabled and dependent on the veteran
prior to the child's 18th birthday.
military connection (veteran, active duty, spouse, and
children) as defined below;
Aliens who are lawfully residing in any state and are:
a.) Veterans honorably discharged for reasons
other than alienage, and who fulfills the minimum activeduty
service requirements of 24 months or the period for
which the person was called to active duty, including
military personnel who die during active duty service;
b.) Individuals on active duty, other than active
duty for training; or
c.) Spouses and/or any unmarried dependent
children of #a or #b, and or the unremarried surviving spouse
of an individual who is deceased if the marriage lasted for at
least one year, or was married before the end of a 15-year
time span following the end of the period of military service
in which the injury or disease was incurred, or married for
any period of time if a child was born of the marriage or was
born before the marriage;
4.5. The following aliens are eligible to participate in
the Food Stamp program with a seven-year (7) time limit:
(A) refugees admitted under section 207 of the INA
Act;
(B) asylees admitted and granted asylum under
section 208 of the INA Act;
(C) aliens whose deportation or removal has been
withheld under section 241(b)(3) and 243 (h) of the INA
Act.
(D) Cuban and Haitians admitted under section
501(e) of the Refugee Education Act of 1980; and
(E) Amerasians admitted under Section 584 of the
Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 1998.
The seven-year (7) time limit begins from the date
they obtained their alien status, (was granted asylum, was
admitted as a refugee, from the date the deportation or
removal was withheld).
5.6. An alien who has been battered or subjected to
extreme cruelty in the U. S. by a spouse or a parent or by a
member of the spouse or parent's family residing in the same
household as the alien at the time of the abuse, an alien
whose child has been battered or subjected to battery or
cruelty, or an alien child whose parent has been battered. A
battered spouse or battered child, or parent or child of a
battered person with a petition pending under 203(a)(1)(A)
or (B) or 244(a)(3) of INA.
Only eligible if a veteran or on active duty in U.S.
armed forces (or spouse or unmarried dependent child of
veteran or person on active duty) or lawfully in US on 8/22/
96 and under 18 years of age; lawfully in US on 8/22/96 and
disabled or blind; or lawfully in US and 65 or older on 8/22/
96.
6. The following aliens may be eligible even if they
are not qualified aliens and may be eligible for an indefinite
period of time:
· Certain Hmong or Highland Laotians, and
spouse and children. Many are admitted as refugees.
· American Indians born in Canada to which
section 289 of INA applies, and members of Indian tribe as
defined in section 4(e) of Indian Self-Determination and
Education Assistance Act. (Cross-border Indians)
9013.2 Non-Household Members
[273.1(b)]
For the purposes of defining a household under the
provisions of this section, the following individuals will not
be included as a member of the household unless specifically
included as a household member under the special definition
at DSSM 9013.1. If not included as a member of the
household under the special definition, such individuals will
not be included as a member of the household for the
purpose of determining household size, eligibility or benefit
level. The income and resources of such individuals will be
handled in accordance with DSSM 9077. The following
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898 FINAL REGULATIONS
individuals (if otherwise eligible) may participate as separate
households:
1) Roomers to whom a household furnishes lodging,
but not meals, for compensation.
2) Live-in attendants who reside with a household to
provide medical, housekeeping, child care or similar
personal services.
3) Other individuals who share living quarters with the
household, but who do not customarily purchase food and
prepare meals with the household. For example, if the
applicant household shares living quarters with another
family to save on rent, but does not purchase and prepare
food together with that family, the members of the other
family are not members of the applicant household.
Some household members are ineligible to receive
Program benefits under the provisions of the Food Stamp
Act (such as certain aliens and certain students). Others may
become ineligible for such reasons as being disqualified for
committing an intentional Program violation or refusing to
comply with a regulatory requirement. These individuals
must be included as a member of the household for the
purpose of defining a household under the definition in
DSSM 9013.1. However, such individuals must not be
included as eligible members of the household when
determining the household's size for the purpose of
comparing the household's monthly income with the income
eligibility standard or assigning a benefit level by household
size. The income and resources of such individuals will be
handled in accordance with DSSM 9076. These individuals
are not eligible to participate as separate households.
Ineligible individuals include the following:
1) Ineligible students who do not meet the eligible
student requirement of DSSM 9010.
2) Ineligible aliens who do not meet the citizenship or
eligible alien status requirements of DSSM 9032 or the
eligible sponsored alien requirements of DSSM 9081.
3) Individuals disqualified for intentional Program
violation per DSSM 2023.
4) Individuals disqualified for failure to provide a SSN
per DSSM 9032.l.
5) Individuals who do not attest to their citizenship or
alien status as required on the Form 100 application form.
6) Individuals found guilty of having made a
fraudulent statement or misrepresentation to the identity and/
or place of residence in order to receive the multiple benefits
at the same time per DSSM 2024.
7) Individuals who are fleeing prosecution or custody
for a felony or probation/parole violators per DSSM 2025.
8) Individuals convicted of trafficking food stamps of
$500 or more per DSSM 2026.
9) Individuals ineligible due to work requirements per
DSSM 9018.
10) Individuals who are ineligible because of a drugrelated
felony conviction per DSSM 2027.
11) Individuals ineligible due to the time limit for Ablebodied
Adults without Dependents per DSSM 9018.
9016 Authorized Representatives
[273.1(f)] [273.2(n)]
[274.5]
The head of household, spouse, or any other responsible
member of the household may designate an authorized
representative to act on behalf of the household in:
· Making application for the Program,
· Obtaining benefits, and/or
· Using benefits at authorized firms.
An authorized representative may be designated to
obtain coupons. The designation should be made at the time
the application is completed so that the name of the
authorized representative appears on the ID card. The
authorized representative for coupon issuance may be the
same individual designated to make application for the
household or may be another individual. Even if a
household member is able to make application and obtain
benefits, encourage the household to name an authorized
representative for obtaining coupons in case of illness or
other circumstances which might result in an inability to
obtain benefits.
Ensure that authorized representatives are properly
designated. The name of the authorized representative
should appear in the casefile.
Representatives may be authorized to act on behalf of a
household in the application process, in obtaining food
stamp benefits, and in using food stamp benefits.
9016.1 Do Not Limit the Number of Households an
Authorized Representative May Represent Application
processing and reporting.
In the event employers, such as those employing
migrant/seasonal farmworkers, are designated as authorized
representatives or that a single authorized representative has
access to a large number of authorization documents or
coupons, exercise caution to assure that:
· Each household has freely requested the assistance
of the authorized representative,
· The household's circumstances are correctly
represented,
· The household is receiving the correct amount of
benefits, and
· The authorized representative is properly using the
benefits.
Unless DSS determines that no other representative is
available, the following persons should not serve as
authorized representatives:
· DSS employees involved in the eligibility
determination,
· Employees of authorized food firms and meal
services that are authorized to accept food coupons.
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FINAL REGULATIONS 899
An individual disqualified for fraud cannot serve as an
authorized representative during the period of
disqualification unless the individual is the only adult in the
household and DSS is unable to arrange for another
authorized representative. Make a case-by-case
determination as to whether these individuals are needed to:
· Apply on behalf of the household,
· Obtain coupons for the household, and
· Use the household's coupons to purchase food.
In the event that the only adult living with a household
is classified as a non-household member per DSSM 9013.2,
that individual may serve as an authorized representative for
the minor household members.
Drug or alcohol treatment centers must receive and
spend the food stamp benefits for food prepared by and/or
served to the participating center residents.
The head of a group living arrangement acting as the
authorized representative for the residents can either receive
and spend the resident's benefits for food prepared by and/or
served to each eligible resident, or allow each resident to
spend all or any portion of the benefits on his/her own
behalf. Do not authorize meal providers for the homeless as
authorized representatives.
Inform applicants that a nonhousehold member may be
designated as the authorized representative for application
processing purposes. The authorized representative may
carry out household responsibilities during the certification
period such as reporting changes in the household's income
or other circumstances. Inform the household that the
household will be held liable for any overissuances that
results from erroneous information given by the authorized
representative.
A nonhousehold member may be designated as an
authorized representative for the application process
provided that the person is an adult who is sufficiently aware
of relevant household circumstances. The authorized
representative designation must be made in writing by the
head of the household, the spouse, or another responsible
member of the household. DSSM 9016.4 contains more
restrictions on who can be designated an authorized
representative.
Residents of drug or alcohol treatment centers must
apply and be certified through the use of authorized
representatives in accordance with DSSM 9078.1.
Residents of group living arrangements have the option
to apply and be certified through the use of authorized
representatives in accordance with DSSM 9078.2.
9016.2 Emergency Authorized Representatives Obtaining
food stamps benefits.
A household may designate an emergency authorized
representative to obtain the household's allotment when none
of the persons specified on the ID card are available.
A document with the signature of the emergency
authorized representative and the signature of the household
member named on the ID card is required. The household
member's signature designates the emergency authorized
representative and attests to the signature of the emergency
authorized representative. The designation may be on the
ATP document or on a separate form. Do not require the
household to travel to a DSS office to execute an emergency
designation.
The emergency authorized representative must present a
separately written and signed statement from the head of the
household or his/her spouse authorizing the issuance of the
certified household's food stamps to the authorized
representative. The emergency representative must sign the
written statement from the household and present the
statement and the household's ID card to obtain the
allotment. A separate written designation is required each
time an emergency representative is authorized.
The cashier at the issuing bank will compare the
signatures on the ATP and on the ID card. If they do not
match, benefits will not be issued. The cashier will record
the serial number of the ID card on theATP.
If the ID card appears to be mutilated or altered,
coupons will not be issued until the household obtains a
replacement ID card from the Division.
Periodically, the State Office will conduct reviews to
determine that these authorized representatives are handling
coupons or ATP's in conformance with these regulations.
An authorized representative may be designated to
obtain benefits. Encourage households to name an
authorized representative for obtaining benefits in case of
illness or other circumstances which might prevent the
household from obtaining their benefits. The name of the
authorized representative must be recorded in the
household's case record and on the food stamp identification
(ID) card.
The authorized representative for obtaining benefits
may or may not be the same individual designated as an
authorized representative for the application process or for
meeting reporting requirements during the certification
period.
When a household needs someone to obtain their food
stamp benefits for a particular month, the household may
designate an emergency authorized representative. The
emergency authorized representative is designated to obtain
the household's allotment when none of the persons specified
on the ID card are available.
Form 105, Emergency Authorized Representative
Designation Form, is used by the household to designate an
emergency authorized representative. DSS will fill out and
send the Emergency Authorized Representative Designation
Form to the client when requested. Do not require
households to come into the office to get the Emergency
Authorized Representative Designation Form.
The designated emergency authorized representative
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
900 FINAL REGULATIONS
must present the form that contains the signature of the
household member on the ID card and the signature of the
emergency authorized representative and the food stamp ID
card to the food stamp issuance site. The form must be
signed by both the household member and the designated
emergency authorized representative before going to the
issuance site. A separate written designation is required
each time an emergency representative is authorized.
The issuance site teller will compare the signatures on
the Emergency Authorized Representative Designation
Form and on the ID card. If they do not match, benefits will
not be issued. If the ID card appears to be mutilated or
altered, coupons will not be issued until the household
obtains a replacement ID card from the Division.
9016.3 Drug Addict, Alcoholic Treatment Centers and
Group Homes as Authorized Representatives Using benefits.
[273.1(f)(2)]
Narcotic addicts or alcoholics who regularly participate
in a drug or alcoholic treatment program on a resident basis
and disabled or blind residents of group living arrangements
who receive benefits under Title II and Title XVI of the
Social Security Act may elect to participate in the Food
Stamp Program.
The residents of drug or alcoholic treatment centers
must apply and be certified for Program participation
through the use of an authorized representative who is an
employee of and designated by the publicly operated
community mental health center or the private non-profit
organization or institution that is administering the treatment
and rehabilitation program.
All of the residents of the group living arrangements do
not have to be certified either through an authorized
representative or individually in order for one or the other
method to be used.
The center will receive and spend the coupon allotment
for food prepared by and/or served to the addict or alcoholic
and will be responsible for complying with the requirements
set forth in DSSM 9078.
Residents of group living arrangements must either
apply and be certified through use of an authorized
representative employed and designated by the group living
arrangement or apply and be certified on their own behalf or
through an authorized representative of their own choice.
The group living arrangement will determine if any resident
may apply for food stamps on his/her own behalf. The
determination should be based on the resident's physical and
mental ability to handle his/her own affairs.
If the residents are certified on their own behalf, the
coupon allotment may either be returned to the facility to be
used to purchase food for meals served either communally or
individually to eligible residents; used by eligible residents
to purchase and prepare food for their own consumption;
and/or to purchase meals prepared and served by the group
living arrangement. The group living arrangement is
responsible for complying with the requirements set forth in
DSSM 9078.
If the group living arrangement has its status as an
authorized representative suspended by FNS (see DSSM
9078) residents applying on their own behalf will still be
able to participate if otherwise eligible.
A household may allow any household member or
nonmember to use its ID card and benefits to purchase food
or meals, if authorized, for the household. Drug or alcohol
treatment centers and group living arrangements which act
as authorized representatives for residents of the facilities
must use food stamp benefits for food prepared and served to
those residents participating in the Food Stamp Program,
except when residents leave the facilities as provided in
DSSM 9078.1.
9016.4 Restrictions on designations of authorized
representatives. Applying to Authorized Representatives
[273.1(f)]
[274.5(a)]
DSS must restrict the use of authorized representatives
for purposes of application processing and obtaining food
stamp benefits as follows:
1. DSS employees who are involved in the
certification and/or issuance processes and retailers that are
authorized to accept food coupons may not act as authorized
representatives without the specific written approval of the
Operations Administrator and only if the Operations
Administrator determines that no one else is available to
serve as an authorized representative.
2. Individuals disqualified for an intentional Program
violation cannot act as authorized representatives during the
period of disqualification unless the individual disqualified
is the only adult member of the household able to act on its
behalf and the agency has determined that no one else is
available to serve as authorized representative. In this case it
will be determined whether the authorized representative is
needed to apply on behalf of the household, or to obtain
benefits on behalf of the household. coupons, and to use
coupons. Each of these duties will be examined separately
and only those duties which cannot be performed by the
household or a qualified authorized representative will be
assigned to the disqualified member of the household.
3. Homeless meal providers may not act as authorized
representatives for homeless food stamp recipients. A
"homeless meal provider" is a public or private nonprofit
establishment (e.g., soup kitchen, temporary shelter)
approved by DHSS, that feeds homeless persons.
4. If DSS determines that an authorized representative
has knowingly provided false information about household
circumstances or has made improper use of coupons, it may
disqualify that person from being an authorized
representative for up to one year. DSS will send written
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 901
notification to the affected household(s) and the authorized
representative 30 days prior to the date of disqualification.
The notification must specify the reason for the proposed
action and the household's right to request a fair hearing.
This provision is not applicable in the case of drug and
alcoholic treatment centers and those group homes that act as
authorized representatives for their residents. However, drug
and alcohol treatment centers and the heads of group living
arrangements that act as authorized representatives for their
residents, and which intentionally misrepresent households
circumstances, may be prosecuted under applicable Federal
and State statutes for their acts.
There is no limit on the number of households an
authorized representative may represent.
In the event that employers, such as those that employ
migrant or seasonal farmworkers, are designated as
authorized representatives or if any one authorized
representative has access to a large number of coupons
ATP's, caution should be exercised to assure that the
household has freely requested the assistance of the
authorized representative, the household's circumstances are
correctly represented, and the household is receiving the
correct amount of benefits. DSS should make sure ; and that
the authorized representative is properly using the coupons.
Any suspected improper use should be reported to the
Chief Social Service Administrator, Policy and Program
Development Implementation Unit, who will in turn report
the circumstances to FNS for investigation.
9018.2 Time limit for Able-bodied Adults Work
Requirement for Able-Bodied Adults Without Dependents
Effective November 22, 1996
Individuals are ineligible to continue to receive food
stamps if, during the preceding 36-month period they
received food stamps at least three (3) months (consecutive
or otherwise) while they did not either:
• work at least 20 hours per week (averaged monthly
which means 80 hours a month); or
• participate in a work program at least 20 hours per
week (averaged monthly); or
• participates in and complies in a work
supplementation program; or work and participate
in a work program for any combination of hours
that totaled 20 hours per week; or
• participate and comply in a workfare program.
Definitions
Work is defined as:
• Work in exchange for money;
• Work in exchange for goods or services (in-kind
work);
• Unpaid work, which is verified; or
• Any combination of the above definitions.
paid or non-paid employment, including volunteer work.
Qualifying work programs include programs under:
• Workforce Investment Act Job Training and
Partnership Act (JTPA);
• Trade Adjustment Assistance Act; or
• Employment and Training (except for job search or
job search training programs).
Good Cause
If the individual would have worked an average of 20
hours per week but missed some work for good cause, the
individual shall be considered to have met the work
requirements if:
• the absence from work is temporary; and
• the individual retains his or her job.
Good cause shall include circumstances beyond the
individual's control, such as:
• illness;
• illness of another household member requiring the
presence of the member;
• a household emergency; or
• the unavailability of transportation.
Exemptions
Individuals are exempt from this work requirement if he
or she the individual is:
• Under 18 or over 50 years of age; (The month after
an individual turns 18 will be the first month the
individual must start meeting the work
requirements. The month an individual turns 50
years of age will start the exemption.)
• Medically certified as physically or mentally unfit
for employment., which requires a medical form; A
person is medically certified as physically or
mentally unfit for employment if he or she:
• Is receiving temporary or permanent disability
benefits issued by governmental or private sources,
• Is obviously mentally or physically unfit for
employment; or
• Provides a statement from a physician,
physician's assistant, nurse, nurse practitioner,
designated representative of the physician's office,
a licenses or certified psychologist, a social worker,
or any other medical personnel, that he or she is
physically or mentally unfit for employment;
• A parent (natural, adoptive, or step) or other
household member with responsibility for a
dependent child under the age of 18. (The
exemption for non-parents will require a statement
about the responsibility). of a household member
under age 18, even if the household member who is
under 18 is not eligible for food stamps;
• Is residing in a household where a household
member is under age 18, even if the household
member who is under 18 is not eligible for food
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
902 FINAL REGULATIONS
stamps;
• Is pregnant (any trimester); or
• Is otherwise exempt from work requirement under
DSSM 9018.3.
Regaining Eligibility
Individuals denied eligibility under this work
requirement, or who would have been denied under this
work requirement if they had reapplied, can regain eligibility
if during a 30-day consecutive period the individual:
• works (paid or non-paid) for 80 hours or more;
• participates in and complies with a work program,
as described above, for 80 hours or more; or
• participates in and complies in a work
supplementation program; any combination of
work and participation in work program for a total
of 80 hours; or
• participates in a workfare program, or
• becomes exempt..
Individuals who regain eligibility based on the
requirements above will remain eligible as long as they meet
the above requirements.
Individuals who lose their employment or cease
participation in work or work supplementation programs
may continue to receive food stamps for up to three (3)
consecutive months beginning from the date DSS is notified
that work has ended.
The only remaining cure during the 36-month period is
for the individual to:
• comply with the work requirements of this section;
or
• to become exempt under other provisions of the
requirement.
Treatment of Income and Resources
The income and resources of an individual made
ineligible due to the time limit shall be handled according to
DSSM 9076.2.
Benefits Received Erroneously
If an individual subject to the time limit receives food
stamp benefits erroneously, consider the benefits to have
been received unless or until the individual pays it back in
full.
Verification
Verification is handled according to DSSM 9032.16 and
DSSM 9038.
Reporting Requirements
Individuals subject to the time limit must report changes
in work hours below 20 hours per week, averaged monthly.
Any work performed in a job that was not reported will
be counted as work when determining countable months.
Countable Months
Countable months are months during which an
individual receives food stamps for the full benefit month
while not:
• exempt;
• meeting the work requirements;
• receiving prorated benefits.
9027 Application Processing
[273.2(a)]
DSS will provide timely, accurate, and fair service to
applicants and recipients of the Food Stamp Program. DSS
will not impose additional application or application
processing requirements as a condition of eligibility.
The application process includes filing and completing
an application form, being interviewed, and having certain
information verified. Prompt action will be taken on all
applications and food stamp benefits retroactive to the period
of application will be provided to those households that have
completed the application process and have been determined
eligible. Expedited service will be available to households
in immediate need.
9028 Filing an Application
[273.2(c)]
Households must file a food stamp application by
submitting the form to a certification office either in person,
through an authorized representative, by fax or other
electronic transmission, or by mail, or by completing an online
electronic application. Applications signed through the
use of electronic signature techniques or applications
containing a handwritten signature and then transmitted by
fax or other electronic transmission are acceptable. DSS
must document the date the application was filed by
recording the date of receipt at the local office.
The length of time DSS has to deliver benefits is
calculated from the date the application is filed in the food
stamp claim office designated to accept the household's
application, except when a resident of a public institution is
jointly applying for SSI and food stamps prior to his/her
release from an institution in accordance with DSSM 9015.
Certify residents of public institutions who apply for food
stamps prior to their release from the institution in
accordance with DSSM 9039 or DSSM 9041, as appropriate.
The date received will be documented on the application.
Each household has the right to file, and should be
encouraged to file an application form on the same day it
contacts any food stamp office during office hours and
expresses interest in obtaining food stamps or expresses
concerns which indicate food insecurity. in the project area
in which it resides. Mail an application form the same day
households request food stamp assistance either by
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 903
telephone or written notice. Advise the household that it
does not have to be interviewed before filing the application
and may file an incomplete application form as long as the
form contains the applicant's name and address, and the
signature of a responsible household member or the
household's authorized representative. Where there is more
than one certification office in a project area, any office must
accept applications when filed, but must subsequently refer
the household to the proper office for the eligibility
determination. Mail applications received in the wrong
office to the correct office the same day.
Applications filed at incorrect office locations are
considered filed and the receiving office will forward the
application to the correct office. If the household is eligible
for expedited services, the receiving office will fax the
application and proof of identity to the correct office and
alert the office by phone about the fax. The correct office
will issue the expedited benefits and, if necessary, schedule
an appointment for an interview.
When a resident of an institution is jointly applying for
SSI and food stamps prior to leaving the institution, the
filing date of the application to be recorded by DSS on the
application is the date of release of the applicant from the
institution.
Have application forms readily accessible to potentially
eligible households in each regional office and provide them
to those groups and organizations involved in outreach
efforts. DSS will provide a means for applicants to
immediately begin the application process with name,
address, and signature by having applicants complete and
sign a copy of the on-line Referral for Assistance or the first
page of the hard-copy application. Households that
complete an on-line electronic application in person have the
opportunity to review the information that has been recorded
electronically and to receive a copy for their records.
When a household contacts the wrong certification
office in person or by telephone, the household will be given
the address and phone number of the correct office. The
office contacted in person will provide the household an
opportunity to file an application that same day. The office
will forward the application to the correct office the same
day. If the household has mailed its application to the wrong
certification office, forward it to the proper office on the
same day.
Provide each household at the time of application for
(re)-certification with a notice (Form 105) that informs the
household of the verification requirements the household
must meet as part of the application process. The notice
must also inform the household of the Division's
responsibility to assist the household in obtaining required
verification provided the household is cooperating as
specified in DSSM 9029.
9029 Household Cooperation
[273.2(d)]
To determine eligibility, the application form must be
completed, the household or its authorized representative
must be interviewed, and certain information on the
application must be verified. If the household refuses to
cooperate in completing this process, the application will be
denied at the time of refusal.
To be denied, the household must refuse to cooperate,
not merely fail to cooperate or be unable to do so. For a
determination of refusal to be made, the household must be
able to cooperate, but clearly demonstrate that it will not take
actions that it can take and that are required to complete the
application process.
The household shall be determined ineligible if it
refuses to cooperate in any subsequent review of its
eligibility. A subsequent review of eligibility includes, but is
not limited to, reviews generated by reported changes,
applications for recertifications, reviews of cases certified
under disaster food stamp procedures and current eligibility
reviews conducted by Audit and Recovery Management
Services (ARMS). Benefits will not be terminated for
refusal to cooperate with ARMS investigations of past
eligibility.
Once denied or terminated for refusal to cooperate, the
household may reapply but will not be determined eligible
until it cooperates. If there is any question as to whether the
household has merely failed to cooperate, as opposed to
refused to cooperate, the household should not be denied,
and DSS shall provide assistance.
The household may voluntarily withdraw its application
at any time prior to the determination of eligibility. Such
action will be documented in the case record to include the
reason for withdrawal and that contact was made with the
household to confirm the withdrawal. Advise the household
of its right to reapply at any time.
Do not determine the household to be ineligible when a
person outside of the household fails to cooperate with a
request for verification. Do not consider individuals
identified as non-household members in DSSM 9013 as
individuals outside the household.
9030 Interviews
[273.2(e)]
Households must have a face-to-face interview with an
eligibility worker at initial certification and at least once
every 12 months thereafter, unless the face-to-face interview
has been waived. DSS must inform applicants that the faceto-
face interviews will be waived for hardship situations.
Hardship conditions include, but are not limited to: being
elderly or disabled, illness, care of a household member,
hardships due to residency in a rural area, prolonged severe
weather, or work or training hours which prevent the
household from participating in an office interview.
DSS may not require a household to report for an inoffice
interview during their certification period although
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904 FINAL REGULATIONS
they may requests a household to do so.
Interview may be conducted at the food stamp office or
other mutually acceptable location, including a household
residence. Interviews conducted at the household's
residence must be scheduled in advance.
All applicant households, including those submitting
applications by mail, must have a face-to-face interview in a
certification site with a qualified eligibility worker, prior to
initial certification and all recertifications.
The head of household, spouse, any other responsible
member of the household, or an authorized representative
may be interviewed. Advise the households of their rights
and responsibilities during the interview, including the
appropriate processing standard and the responsibility to
report changes. The interview will be conducted as an
official and confidential discussion of household
circumstances and will be limited strictly to facts that relate
directly to food stamp eligibility criteria. The applicant's
right to privacy will be protected during the interview.
The eligibility worker must explore and resolve with the
household any unclear and incomplete information.
Waive the office interview if requested by any
household which is unable to appoint an authorized
representative and which has no household member able to
come to the food stamp office because they are elderly or
disabled, have transportation difficulties, are working, or
similar hardships. Determine if the transportation
difficulties or other similar hardship warrants a waiver of the
office interview and document in the case record why a
request for a waiver was granted or denied.
Waiver of the face-to-face interview does not exempt
the household from the verification requirements nor should
it affect the length of the households' certification period.
However, special verification procedures may be used
such as substituting a collateral contact in cases where
documentary evidence would normally be required.
Households for whom the office interview is waived
will be offered either a telephone interview or a home visit.
Home visits will be scheduled in advance with the
household.
DSS will schedule an interview for all applicant
households who are not interviewed on the day they submit
their applications. All interviews will be scheduled as
promptly as possible to ensure eligible households receive an
opportunity to participate within 30 days after the
application is filed. If the household does not appear for the
first interview, reschedule an interview only one time unless
the household requests a further appointment.
Applicant and participant households which are unable
to obtain certification services without missing time from
work must be given appointments for such services.
The applicant may bring any person he or she chooses to
the interview.
9031 Definition ofVerification
[273.2(f)]
Verification is the use of third party information or
documentation to establish the accuracy of statements on the
application.
DSS must give households at least 10 days to provide
required verifications.
9032.2 Alien Status
[273.2(f)(1)(ii)]
1. Based on the application, determine if members
identified as aliens are eligible aliens, as defined in DSSM
9007, by requiring that the household present verification for
each alien member.
2. Aliens admitted for legal permanent residence
specified in DSSM 9007 must present an Immigration and
Naturalization Service (INS) form I-151 or I-551 - or such
other documents which identify the alien's immigration
status and which the Division determines are reasonable
evidence of the alien's immigration status; or
3. Aliens granted refugee asylee status, or parolee
specified in DSSM 9007 must present an INS form I-94,
"Arrival-Departure Record," or other documents which
identify the alien's immigration status and which the
Division determines are reasonable evidence of the alien's
immigration status, or
4. Aliens not able to furnish Form I-151, I-551, or I-94
specified in DSSM 9007 must present other documentation
such as, but not limited to, a letter, notice of eligibility, or
identification and which clearly identifies that the alien has
been granted legal status in one of those categories.
5. If an alien is unable to provide any INS document at
all (not even an INS form I-94), then the Division has no
responsibility to offer to contact INS on the alien's behalf.
DSS' responsibility exists only when the alien has an INS
document that does not clearly indicate eligible or ineligible
alien status.
Do not contact INS to obtain information about the
alien's correct status without the alien's written consent.
6. Offer to contact INS when an alien has an INS
document that does not clearly indicate eligible or ineligible
alien status. When an alien does not present an INS
document, the Division has no obligation to offer to contact
INS. However, when accepting non-INS documentation
determined to be reasonable evidence of the alien's
immigration status [See DSSM 9032.2 (2), (3), and (4)],
photocopy the document and transmit the photocopy to the
SAVE Point-of-Contact person at State Office for forwarding
to INS for verification. Pending such verification, do not
delay, deny, reduce, or terminate the individual's eligibility
for benefits on the basis of the individual's immigration
status. The alien applicant's written consent is not needed to
transmit the photocopy to INS.
7. Provide alien applicants with a reasonable
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FINAL REGULATIONS 905
opportunity to submit acceptable documentation of their
eligible alien status as of the 30th day following the date of
application. A reasonable opportunity allows at least ten
(10) days from the date of DSS' request for an acceptable
document. When DSS accepts non-INS documentation as
specified in DSSM 9032.2 (2), (3), and (4) and fails to
provide any alien applicant with a reasonable opportunity as
of the 30th day following the date of application, provide the
household with benefits no later than 30 days following the
date of application if the household is otherwise eligible.
8. Except as specified in (7) above and DSSM 9033,
the alien applicant whose status is questionable is ineligible
until the alien provides acceptable documentation. The
income and resources of the ineligible alien shall be treated
as specified in DSSM 9076.2.
9032.2 Alien Eligibility
A. DSS must verify the eligible status of applicant
aliens. If an alien does not wish DSS to contact INS to
verify his or her immigration status, DSS will give the
household the option of withdrawing its application or
participating without that member.
The following information may be relevant to the
eligibility of some aliens: date of admission or date status
was granted; military connection; battered status; if the alien
was lawfully residing in the United States on August 22,
1996; membership in certain Indian tribes; if the person was
age 65 or older on August 22, 1996; if a lawful permanent
resident can be credited with 40 qualifying quarters of
covered work and if any Federal means-tested public
benefits were received in any quarter after December 31,
1996; or if the alien was a member of certain Hmong or
Highland Laotian tribes during a certain period of time or is
the spouse or unmarried dependent of such a person. DSS
must verify these factors if applicable to the alien's
eligibility.
The SSA Quarters of Coverage History System
(QCHS) is used to verify whether a lawful permanent
resident has earned or can receive credit for a total of 40
qualifying quarters. The QCHS may not show all qualifying
quarters because SSA records do not show current year's
earnings and in some cases the last year's earnings,
depending on the time of the request. Sometimes an
applicant may have work from uncovered employment that
is not documented by SSA, but is countable toward the 40
quarters test. In both cases the individual, rather than SSA,
will need to provide the evidence needed to verify the
quarters.
B. An alien is ineligible until acceptable
documentation is provided unless:
1. DSS has submitted a copy of a document
provided by the household to INS for verification. Pending
such verification, DSS cannot delay, deny, reduce, or
terminated the individual's eligibility for benefits on the
basis of the individual's immigration status; or
2. The applicant of DSS has submitted a request
to SSA for information regarding the number of quarters of
work that can be credited to the individual, SSA has
responded that the individual has fewer than 40 quarters, and
the individual provides documentation from SSA that SSA is
conducting an investigation to determine if more quarters
can be credited. DSS will certify the individual pending the
results of the investigation for up to 6 months from the date
of the original determination of insufficient quarters; or
3. The applicant or DSS has submitted a request
to a Federal agency for verification of information which
bears on the individual's eligible status. DSS will certify the
individual pending the results of the investigation for up to 6
months from the date of the original request for verification.
C. DSS must provide alien applicants with a
reasonable opportunity to submit acceptable documentation
of their eligible alien status as of the 30th day following the
date of application. A reasonable opportunity is at least 10
days from the date of DSS's request for an acceptable
document. When DSS fails to provide an alien applicant
with a reasonable opportunity as of the 30th day following
the date of application, DSS must provide the household
with benefits no later than 30 days following the date of
application, provided the household is otherwise eligible.
D. DSS must verify a household member's citizenship
or status as a non-citizen national. DSS will accept
participation in another program as acceptable verification if
verification of citizenship or non-citizen national was
obtained for that program. If the household cannot obtain
acceptable verification, DSS must accept a signed thirdparty
statement, under penalty of perjury, which indicates a
reasonable basis for personal knowledge that the member in
question is a U. S. citizen or a non-citizen national.
9032.16 Additional verification for able-bodied adults
without dependents (ABAWD)
A. Hours worked - individuals who are satisfying the
ABAWD work requirements by working, by combining
work and participation in a work program, or by
participating in a work or workfare program that is not
operated or supervised by the State, the individuals' work
hours shall be verified.
B. Countable months in another State - for individuals
subject to the ABAWD provisions, DSS must verify the
number of countable months an individual has used in
another State if there is an indication that the individual
participated in that State.
9033 Verification of Questionable Information
[273.2(f)(2)]
Eligibility factors other than those listed in DSSM 9032
will be verified only if questionable and if they affect a
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906 FINAL REGULATIONS
household's eligibility or benefit level.
Questionable information is information inconsistent
with statements made by the applicant, with other
information on the application or previous applications, or
with information received by the agency. Procedures
described below will apply when one of the following
eligibility factors is questionable:
When expenses claimed by the household for purposes
of determining allowable program deductions (per DSSM
9060) or those otherwise reported during the certification
interview (e.g., car payments, credit card bills) exceed
declared income, ask the household to verify how such
expenses were paid. New applicants must satisfactorily
explain past management. Possible methods to verify
payments are as follows:
Income Source Type of Verification
Loans and gifts Statement from lender
Sale of personal property Receipt from sale
Exchange of services/ Statement from
in-kind benefits landlord, etc.
Gambling proceeds Lottery tickets
Odd jobs Note from employer
Benefits may be authorized if the following conditions
are met:
a) A new household provides a satisfactory
explanation of past management including any verification
that is reasonably available to the household.
b) A participating household satisfactorily verifies
factors of past management. Verification must be from the
month(s) immediately preceding certification/recertification.
Additionally, households where management has been
questionable will be notified that they will be responsible for
verifications of all cash outflow at times of recertification if
management continues to appear questionable.
A. Household Composition. Verify factors affecting
the composition of a household, if questionable. Individuals
who wish to be a separate household from those with whom
they reside will be responsible for proving a claim that they
are a separate household to the satisfaction of the Division.
Individuals who claim to be a separate household
from those with whom they reside based on the various age
and disability factors for determining separateness will be
responsible for proving a claim of separateness in
accordance with DSSM 9032.11.
B. Citizenship. The household must provide
acceptable verification for any member whose U.S.
citizenship is questionable.
A claim to citizenship may be considered
questionable if:
1) The claim of citizenship is inconsistent with
statements made by the applicant or with other information
on the application or on previous applications.
2) The claim of citizenship is inconsistent with
information received from another source.
3) The individual does not have a Social Security
Number.
When a household's statement that one or more of its
members are U.S. citizens or has the status as a non-citizen
national is questionable, ask the household to provide
acceptable verification. Acceptable forms of verification
include birth certificates, religious records, voter registration
cards, certificates of citizenship or naturalization provided
by INS, such as identification cards for use of resident
citizens in the United States (INS form I-179 or INS form I-
197), or U.S. passports. Participation in the DABC Program
will also be considered acceptable verification if verification
of citizenship or non-citizen national status was obtained for
that program. If the above forms of verification cannot be
obtained and the household can provide a reasonable
explanation as to why verification is not available, accept a
signed statement from a third party indicating a reasonable
basis for personal knowledge someone who is a U.S. citizen
which declares, under penalty of perjury, that the member in
question is a U.S. citizen or non-citizen national. The signed
statement must contain a warning of the penalties for helping
someone commit fraud, such as: "If you intentionally give
false information to help this person get food stamps, you
may be fined, imprisoned, or both."
The member whose citizenship or non-citizen
national status is in question will be ineligible to participate
until proof of U.S. citizenship or non-citizen national status
is obtained. Until proof of U.S. citizenship or non-citizen
national status is obtained, the member whose citizenship or
non-citizen national status is in question will have his or her
income, less a prorata share, and all of his or her resources
considered available to any remaining household members
as set forth in DSSM 9076.2.
C. Deductible expenses. If obtaining verification for a
deductible expense may delay certification, advise the
household that its eligibility and benefit level may be
determined without providing a deduction for the claimed
but unverified expense. This provision also applies to the
allowance of medical expenses per DSSM 9032. Shelter
costs would be computed without including the unverified
components. The standard utility allowance will be used if
the household is entitled to claim it and has not verified
higher actual costs.
If the expense cannot be verified within 30 days of
the date of application, determine the household's eligibility
and benefit level without providing a deduction of the
unverified expense. If the household subsequently provides
the missing verification, redetermine the household's
benefits, and provide increased benefits, if any, in
accordance with the timeliness standards in DSSM 9085. If
the expense could not be verified within the 30-day
processing standard because the Division failed to allow the
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FINAL REGULATIONS 907
household sufficient time per DSSM 9040 to verify the
expense, the household will be entitled to the restoration of
benefits retroactive to the month of application, provided
that the missing verification is supplied in accordance with
DSSM 9040. If the household would be ineligible unless the
expense is allowed, the household's application will be
handled as provided in DSSM 9040.
9034.2 Collateral Contacts
A collateral contact is a verbal confirmation of a
household's circumstances by a person outside of the
household. The collateral contact may be made either in
person or over the telephone. Select a collateral contact if
the household fails to designate one or designates one that is
unacceptable to the Division.
Examples of acceptable collateral contacts are
employers, landlords, social service agencies, migrant
service agencies, and neighbors of the household who can be
expected to provide accurate third party verification.
When talking with collateral contacts, DSS will disclose
only the information that is absolutely necessary to get the
information being sought. DSS will avoid disclosing that the
household has applied for food stamps, nor should they
disclose any information supplied by the household,
especially information that is protected by DSSM 1003, or
suggest that the household is suspected of doing any wrong
doing.
If the Division designates a collateral contact, no contact
will be made without providing prior written or oral notice to
the household. At the time of this notice, inform the
household that it has the following options:
1. Consent to the contact;
2. Provide acceptable verification in another
form; or
3. Withdraw the application.
If the household refuses to choose one of these options,
its application will be denied in accordance with the normal
procedures for failure to verify information.
Systems of records to which DSS has routine access are
not considered collateral contacts and, therefore need not be
designated by the household.
Examples are the Beneficiary Data Exchange
(BENDEX) and the State Data Exchange (SDX) and records
of another agency where a routine access agreement exists
(such as records from DOL Unemployment Compensation
section).
9034.3 Home Visits
Home visits may be used as verification only when
documentary evidence is insufficient to make a firm
determination of eligibility or benefit level, or cannot be
obtained, and the home visit is scheduled in advance with the
household.
Home visits are to be used on a case-by-case basis
where the supplied documentation is insufficient. Even
though a household fits a profile of an error-prone
household, it does not constitute lack of verification,
therefore a homes visit in this case would not be appropriate.
DSS will assist household in obtaining sufficient verification
in accordance with DSSM 9305.1 prior to a referral for a
home visit by ARMS.
9035.1 Responsibility of for Obtaining Verification
The household has the primary responsibility for
providing documentary evidence to support its income
statements on the application and to resolve any questionable
information. DSS will assist the household in obtaining this
verification provided the household is cooperating as defined
in DSSM 9029. Households may supply documentary
evidence in person, through the mail, by fax or other
electronic device, or through an authorized representative.
Do not require the household to present verification in
person at the food stamp office. Accept any reasonable
documentary evidence provided by the household. Be
primarily concerned with how adequately the verification
proves the statements on the application.
Whenever documentary evidence is insufficient to make
a firm determination of eligibility or benefit level or cannot
be obtained, require a collateral contact or a home visit in
accordance with DSSM 9034.3. Rely on the household to
provide the name of any collateral contact. The household
may request assistance in designating a collateral contact.
DSS is not required to use a collateral contact designated by
the household if the collateral contact cannot be expected to
provide an accurate third-party verification. When the
collateral contact designated by the household is
unacceptable, either designate another collateral contact, ask
the household to designate another collateral contact, or
provide an alternative form of verification or substitute a
home visit. DSS is responsible for obtaining verification
from acceptable collateral contacts.
9038 Verification Subsequent to Initial Certification
[273.2(f)(8)]
A. Recertification - Verify a change in income or
actual utility expenses if the source has changed or the
amount has changed by more than $25. Previously
unreported medical expenses and total recurring medical
expenses which have changed by more than $25 shall also be
verified at recertification. Do not verify income if the source
has not changed and if the amount is unchanged or has
changed by $25 or less unless the information is incomplete,
inaccurate or inconsistent. Do not verify total medical
expenses or actual utility expenses claimed by households
which are unchanged or have changed by $25 or less, unless
the information is incomplete, inaccurate or inconsistent.
Verify any changes in the legal obligation to pay
child support, the obligated amount, and the amount of
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908 FINAL REGULATIONS
actual payments made to nonhousehold members for
households eligible for the child support deduction. Verify
unchanged child support payments only if questionable.
Verify newly obtained Social Security Numbers at
recertification according to procedures outlined in DSSM
9032.5.
Other information, which has changed, may be
verified at recertification. Do not verify unchanged
information unless the information is incomplete, inaccurate
or inconsistent.
For individuals who are satisfying the ABAWD
work requirements by working, by combining work and
participation in a work program, or by participating in a
work or workfare program that is not operated or supervised
by the State, the individuals' work hours shall be verified.
9039.3 Denying the Application
Households that are found to be ineligible must be sent a
notice of denial as soon as possible but not later than 30 days
following the date the application was filed. If the
household has failed to appear for a two scheduled
interviews and has made no subsequent contact with DSS to
express interest in pursuing the application, send the
household a notice of denial on the 30th day following the
date of application. The household must file a new
application if it wishes to participate in the program.
In cases where DSS was able to conduct an interview
and request all of the necessary verification on the same day
the application was filed, and no subsequent requests for
verification have been made, DSS may also deny the
application on the 30th day if the Division provided
assistance to the household in obtaining verification when
required per DSSM 9035.1, but the household failed to
provide the requested verification.
9040 Delays in Processing
[273.2(h)]
If the agency does not determine a household's
eligibility and provide an opportunity to participate within
30 days following the date the application was filed, the
agency will take the following action:
A. Determining Cause - The agency must have taken
the following actions before a delay is considered the fault of
the household:
1. For households that failed to complete the
application form: offered or attempted to offer assistance in
its completion.
2. For households with members who failed to
register for work: informed the household of the need to
register for work, determined if the household members are
exempt from work registration, and given at least ten (10)
days to do so.
3. In cases where verification is incomplete, DSS
must have provided the household with a statement of
required verification (Form 105) and offered to assist the
household in obtaining required verification and allowed the
household sufficient time to provide the missing verification.
A delay is considered the fault of the household if the
household has failed to complete the application process
even though DSS has taken all action required to assist the
household. DSS must have taken the following actions
before a delay can be considered the fault of the household:
· For households that have failed to complete the
application form, offer, or attempt to offer, assistance in its
completion.
· Where verification is incomplete, provide
assistance as required in DSSM 9035. Allow the household
sufficient time to provide the missing verification. Sufficient
time is at least ten (10) days from the date of the initial
request for the particular verification that was missing.
4. For households that have failed to appear for an
interview, DSS must have attempted to reschedule the initial
interview within 30 days following the date the application
was filed. If the household fails to schedule a second
interview, or the However, if the household has failed to
appear for the first interview and a subsequent interview is
postponed at the household's request or cannot otherwise be
rescheduled until after the 20 days but before the 30th day
following the date the application was filed, the household
must appear for the interview, bring verification, and register
members for work by the 30th day; otherwise, the delay will
be the fault of the household. If the household has failed to
appear for the first interview, fails to schedule a second
interview, and/or the and a subsequent interview is
postponed at the household's request until after the 30th day
following the date the application was filed, the delay will be
the fault of the household. If the household has missed both
scheduled interviews and requests another interview, any
delay will be the fault of the household.
B. Determine Fault of the Household
1. If by the 30th day the agency cannot take any
further action on the application due to the fault of the
household, send a notice of denial. If the household takes
the required action within 60 days of the date the application
was filed, reopen the case without requiring a new
application.
2. The household is not entitled to benefits for the
month of application when the delay was the fault of the
household.
C. Determine Fault of DSS
1. Whenever a delay during the initial 30-day
period is agency fault, take immediate corrective action.
Notify the household of any action it must take to complete
the application. If verification is lacking, hold the
application pending for only 30 days following the date of
the initial request.
2. Do not deny the application if DSS caused the
delay. Instead, notify the household by the 30th day
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FINAL REGULATIONS 909
following the date the application was filed that its
application is being held pending.
3. If the household is found to be eligible during
the second 30-day period, the household will be entitled to
benefits retroactive to the month of application. If, however,
the household is found to be ineligible, deny the application.
D. Delays Beyond 60 Days
1. If DSS is at fault for not completing the
application process by the end of the second 30-day period,
and the case file is otherwise complete, continue to process
the original application until an eligibility determination is
reached. If the household is determined eligible, and DSS
was at fault for the delay in the initial 30 days, give the
household benefits retroactive to the month of application.
However, if the initial delay was the household's fault, give
the household benefits retroactive only to the month
following the month of application. Use the original
application to determine the household's eligibility in the
months following the 60-day period.
2. If DSS is at fault for not completing the
application process by the end of the second 30-day period,
but the case file is not complete enough to reach an
eligibility determination, deny the case and notify the
household to file a new application. If the case is denied,
advise the household of its possible entitlement to benefits
lost as a result of DSS caused delays in accordance with
DSSM 9011. If DSS were also at fault for the delay in the
initial 30 days, the amount of benefits lost would be
calculated from the month of application. If, however, the
household was at fault for the initial delay, the amount of
benefits lost would be calculated from the month following
the month of application.
3. If the household is at fault for not completing
the application process by the end of the second 30-day
period, deny the application and require the household to file
a new application. As DSS has chosen to hold an application
pending only until 30 days following the date of the initial
request for the particular verification that was missing, if the
verification is not received by that 30th day, immediately
deny the application. A notice of denial need not be sent if
the notice of pending status informed the household that it
would have to file a new application if verification was not
received within 30 days of the initial request. The household
will not be entitled to any lost benefits, even if the delay in
the initial 30 days was the fault of DSS.
9042.2 Categorically Eligible Households
Any household in which all members receive or are
authorized to receive DABC/GA and/or SSI benefits are
considered eligible for food stamps because of their status as
DABC/GA and/or SSI recipients unless the entire household
is institutionalized as defined in DSSM 9015 or disqualified
for any reason from receiving food stamps. Residents of
public institutions who apply jointly for SSI and food stamp
benefits prior to their release from the institution in
accordance with DSSM 9015 are not categorically eligible
upon a finding by SSA of potential SSI eligibility prior to
such release. Consider the individuals categorically eligible.
At such time as a final SSI eligibility determination has been
made and the individual has been released from the
institution. The eligibility factors which are deemed for food
stamp eligibility without the verification required in DSSM
9032 because of PA/SSI status are the resource, gross and net
income limits, Social Security Number information,
sponsored alien information and residency. If any of the
following factors are questionable, verify that the household
which is considered categorically eligible:
· Contains only members that are DABC/GA or SSI
recipients (as defined in DSSM 9042);
· Meets the household definition in DSSM 9013.1;
· Includes all persons who purchase and prepare food
together in one food stamp household regardless of whether
or not they are separate units for DABC/GA or SSI purposes;
and
· Includes no persons who have been disqualified.
Households that receive zero benefits will continue to
be considered as authorized to receive benefits from the
appropriate agency. Assume categorical eligibility at
recertification in the absence of a timely redetermination. If
a recertified household is subsequently terminated from
DABC/GA benefits, follow the procedures in DSSM 9089 as
appropriate.
Under no circumstances will any household be
considered categorically eligible if any member of that
household is disqualified for:
· An intentional Program violation in accordance
with DSSM 2023;
· [Misrepresenting identity or residence in order
to receive multiple food stamp benefits per DSSM 2024;
· Being a fleeing felon, a parole violator, or a
probation violator per DSSM 2025;
· Being convicted of trafficking food stamp
benefits of $500 or more per DSSM 2026;
· Failure to comply with the work requirements in
DSSM 9018; or
· The head of the household is disqualified for
failure to comply with the work requirements in DSSM
9018. or
· Any member of that household is ineligible due
to a conviction for a drug-related felony per DSSM 2027.]
These households are subject to all food stamp
eligibility and benefit provisions and cannot be reinstated in
the Program on the basis of categorical eligibility provisions.
Do not include any person as a member in any
household which is otherwise categorically eligible if that
person is:
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910 FINAL REGULATIONS
· An ineligible alien as defined in DSSM 9007;
· Ineligible under the student provisions in DSSM
9010; or
· Institutionalized in a non-exempt facility as defined
is DSSM 9015.
For the purposes of work registration, apply the
exemptions in DSSM 9018 to individuals in categorically
eligible households. Any such individual who is not exempt
from work registration is subject to the other work
requirements in DSSM 9018.
9057 Unearned Income
[273.9(b)(2)]
Unearned income includes, but is not limited to:
7. For households containing sponsored aliens (as
defined in DSSM 9081), unearned income also includes that
amount of the monthly income of an alien's sponsor and the
sponsor's spouse (if living with the sponsor) that has been
deemed to be that of the alien unless the sponsored alien is
otherwise exempt from this provision in accordance with
DSSM 9081. Actual money paid to the alien by the sponsor
or the sponsor's spouse would not be considered income to
the alien unless the amount paid exceeds the amount
attributed. The amount paid that actually exceeds the
amount attributed would be considered income to the alien in
addition to the amount attributed to the alien.
For a household containing a sponsored alien, the
income of the sponsor and the sponsor's spouse must be
deemed in accordance with DSSM 9081.2.
9059 Income Exclusions
[273.9(c)]
Only the following items will be excluded from
household income and no other income will be excluded:
H. Money received in the form of a non-recurring
lump sum payment.
These include, but are not limited to: income tax
refunds, rebates or credits; retroactive lump sum Social
Security, SSI, public assistance, railroad retirement benefits,
or other payments; lump sum insurance settlement; or
refunds of security deposits on rental property or utilities.
TANF payments made to divert a family from becoming
dependent on welfare may be excluded as a nonrecurring
lump-sum payment if the payment is not defined as
assistance. (All DABC diversion payments are excluded.)
These payments will be counted as resources in the month
received unless specifically excluded from consideration as a
resource by other federal laws.
Payments of large retroactive SSI benefit amounts are
required to be made in installments for SSI recipients. These
SSI retroactive lump sum installments are excluded from
income.
Earned Income Tax Credit (EITC) payments, whether
paid in advance or made as tax refunds, are considered to be
non-recurring lump sum payments.
K. Payments or allowances made for the purpose of
providing energy assistance under any Federal Law,
(LIHEAP), including HUD and FMHA (Farmers Home
Administration) reimbursements, are excluded as income.
Federal or State one-time assistance for
weatherization or emergency repair or replacement of
heating or cooling devices are also excluded as income.
K. Energy assistance as follows:
(a) Any payments or allowances made for the
purpose of providing energy assistance under any Federal
law other than part A of Title IV of the Social Security Act,
including utility reimbursements made by the Department of
Housing and Urban Development and the rural Housing
Service, or
(b) A one-time payment or allowance applied on an asneeded
basis and made under a Federal or State law for the
costs of weatherization or emergency repair or replacement
of an unsafe or inoperative furnace or other heating or
cooling device. A down payment followed by a final
payment upon completion of the work will be considered a
one-time payment for the purposes of this provision.
9060 Income Deductions
C. Excess Medical Deductions - That portion of
unreimbursed medical expenses in excess of $35 per month,
excluding special diets, incurred by any household member
who is 60 years of age or over or disabled as defined in
DSSM 9013.1. Spouses or other persons receiving benefits
as a dependent of the SSI or disability and blindness
recipient are not eligible to receive this deduction, but
persons receiving emergency SSI benefits based on
presumptive eligibility are eligible for this deduction.
Allowable medical costs include: Medical and
dental care including psychotherapy and rehabilitation
services provided by a licensed practitioner or other
qualified health professional, hospitalization, outpatient
treatment, nursing home care (including payments by the
household for an individual who was a household member
immediately prior to entering a hospital or nursing home
provided by a facility recognized by the State).
Prescription drugs and over-the-counter medication
when approved by a licensed practitioner or other qualified
health professional. Also the cost of medical supplies and
sick room equipment (including rental costs) are deductible
(when approved by a licensed practitioner or other health
professional). Health and hospitalization insurance are
deductible, but health and accident insurance policies such
as income maintenance or death or dismemberment policies
are not deductible.
Any Medicare premiums, cost-sharing or spend
down expenses incurred by Medicaid recipients, dentures,
hearing aids and prosthetics are deductible as well as the
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FINAL REGULATIONS 911
costs of securing and maintaining a seeing eye or hearing
dog including dog food and veterinary bills. Eyeglasses
prescribed by a physician skilled in eye disease or by an
optometrist and the reasonable costs of transportation and
lodging to obtain medical treatment or services are
deductible.
Reasonable transportation and lodging costs to
obtain medical treatment or services are limited to costs
incurred in order to obtain such treatment. These costs are to
be verified. Reasonable costs of transportation include, but
are not limited to, trips to the doctor, dentist, to fill
prescriptions for medicine, dentures, hearing aids or eye
glasses. Allowance for mileage in privately owned vehicles
should be standard in a State. As for lodging costs,
eligibility workers should use good judgement in
determining the reasonableness of such costs based on the
area and average costs.
Maintaining an attendant, homemaker, home health
aide, housekeeper, or childcare services necessary due to
age, infirmity, or illness are deductible costs. In addition, an
amount equal to the one-person coupon allotment shall be
deducted if the household furnishes the majority of the
attendant's meals. The allotment allowed shall be the
amount in effect at the time of initial certification, and will
not be updated until the time of the next scheduled
recertification. If a household incurs attendant care costs
that could qualify under both the medical deduction and
dependent care deduction, the costs shall be treated as a
medical expense.
F. Shelter Costs - Monthly shelter costs in excess of
50% of the household's income after all other deductions in
A, B, and C above have been allowed. The shelter deduction
must not exceed the maximum excess shelter deduction
limit. (Refer to the current October Cost-of-Living
Adjustment Administrative Notice for the maximum excess
shelter deduction.) This is applicable unless the household
contains a member who is age sixty (60) or over, or disabled
per DSSM 9013.1. Such households will receive an excess
shelter deduction for the monthly costs that exceeds 50% of
the household's monthly income after all other applicable
deductions.
Shelter costs will include only the following:
1) Continuing charges for the shelter occupied by
the household, including rent, mortgages, condo and
association fees, or other continuing charges leading to the
ownership of the shelter such as loan repayments for the
purchase of a mobile home, including interest on such
payments. A mortgage is defined as any loan that uses the
house as collateral.
Households required to pay the "last month's
rent" along with the first month's rent before they can move
into the dwelling can claim both amounts in the month that
the household is billed.
For example, a client rents an apartment in
January and must pay January's and the next December's rent
in January. Both rental amounts can be used for January's
food stamp budget. A rent deduction would not be allowed
in December since it was paid in January.
Households required to pay a security deposit
before they move into a dwelling cannot claim the deposit as
a shelter cost.
For example, a client rents a home and must
pay a $450 security deposit and the first month's rent before
she moves in. The security deposit will be refunded when
she moves out if the home is in good condition. She cannot
claim the deposit as a shelter cost for food stamp purposes.
2) Property taxes, State and local assessments and
insurance on the structure itself, but not separate costs for
insuring furniture or personal belongings. If separate
insurance costs for furniture or personal belongings are not
identified, use the total.
3) The costs of:
fuel for heating;
electricity or fuel used for purposes other than
heating or cooling;
water;
sewerage;
well installation and maintenance;
septic tank system installation and
maintenance;
garbage and trash collection;
all service fees for one telephone, including,
but not limited to basic service fees, subscriber line charges,
relay center surcharges, 911 fees, and taxes; and
fees charged by the utility provider for initial
installation of the utility.
One time deposits cannot be included.
actual charges for heating and cooking fuel; cooling
and electricity; water and sewer; garbage and trash collection
fees; the basic fee for one telephone, including tax on the
basic fee; and fees charged by the utility provider for
installation of the utility. One time deposits are not included
as shelter costs.
4) The standard heat allowance will be available
only to households which incur heating costs separately and
apart from their rent or mortgage including residents of
rental housing who are billed on a monthly basis by their
landlords for actual usage as determined through individual
metering. The standard heat allowance is available to
households receiving indirect energy assistance payments.
A household living in a public housing unit or
other rental housing unit which has central utility meters and
charges the household only for excess utility costs is not
permitted to use either standard allowance. Such households
may claim the actual verified utility expenses which it does
pay separately. Households should be advised of this option
at each (re)certification.
Two annualized utility allowances are offered:
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912 FINAL REGULATIONS
· The basic allowance is available to
households that do not pay for heat, but incur costs that
include electricity and fuel for purposes other than heating,
water, sewerage, well and septic tank installation and
maintenance, telephone, and garbage or trash collection. yet
incur costs for a major utility such as electricity or cooking
fuel.
· The heat allowance is available to
households with heating costs. (Refer to the current October
Cost-of-Living Adjustment Administrative Notice for the
standard utility allowances.)
Permit households to switch between their
actual utility costs and the appropriate utility standard at the
time of recertification. Qualifying households not opting to
itemize actual utility costs will be assigned the appropriate
standard utility allowance.
If the household is billed separately for only
telephone, water, sewer, or garbage collection fees (any one
or more of these), the household is not entitled to claim
either standard utility allowance.
If one of these households is billed for a
telephone, the standard telephone allowance will be used
(for these households only and regardless of their actual
cost). In addition, these households may claim the actual
utility expenses (water, sewer, or garbage) for which they are
billed separately from rent or mortgage payments. (Refer to
the current October Cost-of-Living Adjustment
Administrative Notice for the telephone allowance.)
Prorating the SUA
When households live with and share utility
expenses with other individuals or households, whether they
are participating in the Food Stamp Program or not, the
agency will prorate the standard utility allowances based on
the number of households sharing the utility costs.
The following are examples of prorating the
SUA:
Two (2) households share a residence. They
both contribute towards the utility costs. The food stamp
household pays $50 towards the costs each month. The food
stamp household is entitled to one-half of the SUA.
A food stamp household shares an apartment
and utilities with another individual. The food stamp
household pays two-thirds of the utility costs. The
household is entitled to one-half of the SUA.
Three (3) households share a residence and
utility expenses. The food stamp household pays a different
amount each month based on the amount of the costs. The
food stamp household is entitled to a one-third proration of
the SUA.
5)4) The shelter costs of the home if not occupied
by the household because of employment away from home,
illness or abandonment caused by a natural disaster or
casualty loss. For costs of a home vacated by the household
to be included in the household's shelter costs, the household
must intend to return to the home; the current occupants of
the home, if any must not be claiming the shelter costs for
food stamp purposes; and the home must not be leased or
rented during the absence of the household.
6)5) Charges for the repair of the home which was
substantially damaged or destroyed due to a natural disaster
such as a fire or flood. Shelter costs will not include charges
for repair of the home that have been or will be reimbursed
by private or public relief agencies, insurance companies, or
from any other source. Repairs, other than those due to
natural disasters, do not count as a deduction, even when
tenants must pay for them or be evicted.
9061.1 Determination of Eligibility and Benefit Levels
A household's eligibility will be determined for the
month of application by considering the household's
circumstances for the entire month of application.
Base a household's benefit level for the initial month of
certification on the day of the month it applies for benefits.
Applicant households consisting of residents of a public
institution who apply jointly for SSI and food stamps prior to
release from the public institution in accordance with DSSM
9015 will have their eligibility determined for the month in
which the applicant household was released from the
institution.
Base a household's benefit level for the initial months of
certification on the day of the month it applies for benefits.
Provide benefits from the date of application to the end of
the month unless the applicant household consists of
residents of a public institution. For households which apply
for SSI prior to their release from a public institution, base
the benefit level for the initial month of certification on the
date of the month the household is released from the
institution and provide the household benefits from the date
of the household's release from the institution to the end of
the month. Using a 30-day calendar month, households will
receive benefits prorated from the day of application to the
end of the month. A household applying on the 31st of a
month will be treated as though it applied on the 30th of the
month. Migrant and seasonal farmworkers will receive a full
allotment for the month of application when the household
has participated in the Food Stamp Program within 30 days
prior to the date of application. When certifying such a
household, use the first day of the month as the start date.
To determine the amount of the prorated allotment, use
the Food Stamp Allotment Proration Table provided by FNS.
Allotments of less than $10 will not be issued for the initial
month.
The term "initial month" means the first month for
which the household is certified for participation in the Food
Stamp Program following any period during which the
household was not certified for participation, except for
migrant and seasonal farmworker households. In the case of
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FINAL REGULATIONS 913
migrant and seasonal farmworker households, the term
"initial month" means the first month for which the
household is certified for participation in the Food Stamp
Program following any period of more than 1 month during
which the household was not certified for participation.
Those households which are certified using the
expedited service procedures in DSSM 9041 , and which
apply for benefits after the 15th of the month, will be
certified for benefits prorated from the day of application to
the end of the application month and also for the following
month. Benefits for the second full month following the
month of application shall not be issued until all postponed
verification is provided to DSS.
Do not prorate benefits for migrant/seasonal farmworker
households that have participated in the Food Stamp
Program within 30 days prior to the date of application.
If an application is held pending beyond 30 days and if
the delay is the fault of the household, the first month for
which an allotment will be issued to the household will be
the month following the month of application. This
allotment will be prorated from the date eligibility is
established by the household.
9061.2 Application for Recertification
Determine eligibility for recertification based on
circumstances anticipated for the certification period starting
the month following the expiration of the current
certification period.
Base the level of benefits on the same anticipated
circumstances. If an application for recertification is
submitted after the household's certification period has
expired, consider that application an initial application and
prorate benefits for that month in accordance with DSSM
9061.1. If a household, other than a migrant or seasonal
farmworker household, submits an application after the
household's certification period has expired, that application
shall be considered an initial application and benefits shall
be prorated. If a household's failure to timely apply for
recertification was due to an agency error causing a break in
participation, follow the procedures in DSSM 9091.8. In
addition, if the household submits an application for
recertification prior to the end of its certification period but
is found ineligible for one first month following the end of
the certification period, then the first month of a subsequent
participation will be considered an initial month.
Conversely, if the household submits an application for
recertification prior to the end of its certification period and
is found eligible for the first month following the end of the
certification period, then that month will not be an initial
month.
9068 Certification Periods
[273.10(f)]
Certification periods means the period of time within
which a household shall be eligible to receive benefits. At
the expiration of each certification period, entitlement to
food stamp benefits ends. Further eligibility will be
established only upon a recertification based upon a newly
completed application, an interview and verification. Under
no circumstances will benefits be continued beyond the end
of a certification period without a new determination of
eligibility. The first month of the certification period will be
the first month for which the household is eligible to
participate.
The certification periods for all households shall not
exceed 12 months.
GUIDELINES FOR ASSIGNING CERTIFICATION
PERIODS
12-month certification periods are assigned to
households when:
· Households consist entirely of elderly or
unemployable persons with stable income like Social
Security, SSI, pension and/or disability benefits; and
· Households receive their primary source of income
from self-employment or regular farm employment with the
same employer.
7-month certification periods are assigned to households
when:
· Households receiving DABC/GA and FS so that the
food stamp recertification period expires the month after the
cash assistance redetermination date.
6-month certification periods are assigned to households
when:
· Households have stable income such as, but not
limited to, pensions, social security, SSI, in-state
unemployment compensation, workman's compensation,
child support paid through DCSE, and on-going DABC/GA
households, and there is little likelihood of major changes in
income, deductions and household composition;
· Households consist of ABAWD individuals,
because the system will close the case after three months if
not meeting the work rules;
· Households claiming a child support deduction
have a record of regular child support payments or child
support arrearage payments to nonhousehold members.
3-month certification periods are assigned to households
when:
· Households have unstable circumstances, such as
households receiving child support payments directly from
the absent parent, households receiving out-of-state
unemployment compensation, households with an
unemployed adult who was employed within 12 months
prior to the date of application, households with zero (0)
income, households with expenses that exceed income, and
all households with earned income;
· Households claiming a child support deduction
have a record of irregular child support payments or child
support arrearage payments to nonhousehold members;
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
914 FINAL REGULATIONS
· Homeless households receive their benefits at a P.
O. Box;
· Households receive their benefits at the local office;
and
Households have been closed due to the New Hire
Match and they come in verifying they are no longer
working.
Households eligible for the child support deduction
shall have the following certification periods:
· Households with no record of regular child support
payments or payments of arrearages shall be certified for no
more than 3 months.
· Households with a record of regular child support
payments or payments of arrearages shall be certified for no
more than six months.
9068.1 Certification Period Length
DSS will assign the longest certification period possible
according to each household's circumstances.
Households should be assigned certification periods of
at least 6 months, unless the household's circumstances are
unstable or the household contains an ABAWD.
Households with unstable circumstances, such as
households with zero net income, and households with an
ABAWD member should be assigned shorter certification
periods but not less than 3 months.
Only assign 1-2 month certification periods when it
appears likely that the household will become ineligible for
food stamps in the near future.
9068.2 Shortening Certification Periods
Do not end a household's certification period earlier
than its assigned recertification period unless DSS receives
information that the household has become ineligible. Loss
of cash assistance or change in employment status is not
sufficient in and of itself to shorten a certification period.
Close or adjust the household's benefits according to DSSM
9085 in response to reported changes. Do not use the Notice
of Expiration to shorten a certification period.
9068.3 Lengthening Certification Periods
A household's certification period may be lengthened
after it has been assigned as long as the total months of
certification do not exceed 12 months.
Households whose certification is lengthened must be
informed of the new certification ending date with a notice
containing the same information as the notice of eligibility.
9074 Self-Employment Income
[273.11(a)]
If the annual support for a household is derived from
self-employment, the income must be annualized over a 12-
month period. The income will be annualized even if it is
received in a shorter period of time during the year.
However, if the averaged annualized amount does not
accurately reflect the household's actual circumstances
because the household has experienced a substantial increase
or decrease in business, calculate the self-employment
income or anticipated earnings. Do not calculate selfemployment
income on the basis of prior income (e.g.,
income tax returns) when the household has experienced a
substantial increase or decrease in business.
The monthly net self-employment income will be added
to any other earned income received by the household. The
total monthly earned income less the 20 percent earned
income deduction, will then be added to all monthly
unearned income received by the household.
Wages paid to the self-employed owner of the business
is counted in addition to any profit from the business
whether incorporated or not.
If the cost of producing self-employment income
exceeds the income derived from self-employment as a
farmer, offset such losses against any other countable
income in the household. Losses from farm selfemployment
are offset in two phases:
· Offsetting against non-farm self employment.
· Offsetting against the total of earned and unearned
income.
For the purposes of this provision, to be considered a
self-employed farmer, the farmer must receive or anticipate
receiving annual gross proceeds of $1,000 or more from the
farming enterprise.
Compute the standard deduction, dependent care, and
shelter costs in accordance with DSSM 9060 and subtract to
determine the monthly net income of the household.
Prorate net losses from the self-employment income of a
farmer over a year as described above.
Income received from operation of a commercial
boarding house will be also annualized if it provides the
annual support of a household. If the household does not
operate a commercial boarding house, but does have income
from boarders, this income will not be annualized since it
does not provide the annual support for a household. Refer
to DSSM 9074 .
For example, farmers receive their annual income in a
short period of time. The income is from self-employment
and should be averaged over a 12-month period even if there
is other income in addition to the self-employment income.
After annualizing and determining the household's
monthly net income, if eligible, the household may elect the
option of having its benefit level determined by using either
the same net monthly income that was used to establish
eligibility or by unevenly prorating the household's total net
income to more closely approximate the time when the
income is actually received. Naturally, the net income used
in any one month cannot exceed the maximum monthly
income eligibility standards for the household's size.
Households who derive their self-employment income
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 915
from a farming operation and who incur irregular expenses
to produce such income should annualize the allowable costs
of producing self-employment income from farming when
the self-employment farm income is annualized.
9074.1 Changes in Self-Employment Income
Self-employment income which is received on a
monthly basis but which represents a household's annual
support will normally be averaged over a 12-month period.
If, however, the average amount does not accurately reflect
the household's actual monthly circumstances because the
household has experienced a substantial increase or decrease
in business, calculate the self-employment income based on
anticipated earnings.
9074.2 Self-Employment Income Which Cannot Be
Annualized
Self-employment income which is to meet the needs of
the household for part of a year will be averaged over the
time the income is intended to cover.
For example, vendors who work only in the summer and
use other sources of income during the rest of the year will
have their self-employment income averaged over the
summer months only. Self-employment income which has
been in existence for less than a year will be calculated by
using the income for the period in which the business has
been in operation, and the monthly amount projected for the
coming year.
However, if the business has been in operation for such
a short time that there is insufficient information to make a
reasonable projection, the household may be certified for
less than a year until the business has been in operation long
enough to base a longer projection.
9074.3 Capital Gains
Capital gains will be included in the household's
income. Capital gains are the proceeds from the sale of
permanent assets such as machinery, property used in the
self-employment enterprise, or other durable goods. The
gain will be calculated in the same manner as a gain
calculated for Federal income tax purposes except that the
gain should not be reduced by 50% as it would be for Federal
income tax purposes.
9074.4 Allowable Costs of Producing Self-Employment
Income
Allowable costs include, but are not limited to, the
identifiable costs of labor, stock, raw material, seed and
fertilizers, interest paid to purchase income producing
property, insurance premiums, and taxes paid on income
producing property.
1. Do not allow the following items as cost of
producing self-employment income:
a) Payments on principal of the purchase price of
real estate, capital assets, equipment, machinery, and other
durable goods;
b) Net losses from previous periods;
c) Federal, State, and local income taxes, money
set aside for retirement purposes and other work-related
personal expenses, as these expenses are accounted for by
the earned income deduction specified in DSSM 9060 ; and
d) Depreciation.
9074.5 Certification Periods for Self-Employed
Households
Households that receive their annual support from selfemployment
and have no other source of income may be
certified for up to 12 months. Assign the initial certification
period to allow the household to move into an appropriate
annual cycle such as the filing of the income tax, or the time
when the household receives all or the majority of its annual
income.
For households with other sources of income or whose
self-employment is intended to cover less than a year, the
certification period should be appropriate for the
circumstances.
9074.6 Households With Boarders
[273.11(b)]
Persons paying a reasonable amount for room and board
will be excluded from the household when determining the
household's eligibility and benefit level. The income of
households owning and operating a commercial boarding
house will be handled as described in DSSM 9074 -9074.4.
For all other households, the payments from boarders, except
foster care boarders as defined in DSSM 9013.3, will be
treated as self-employment income. This income will
include all direct payments for room and meals, including
contributions for part of the household's shelter expenses.
Shelter expenses paid directly to someone outside the
household will not be counted as income to the household.
9074.7 Costs of Doing Business
The cost of doing business will not exceed the payment
the household receives from the boarder for lodging and
meals. The cost of doing business will be deducted from the
income received from boarders in the following amount:
1) The cost of the maximum food stamp allotment for
a household size equal to the number of boarders;
2) The actual documented cost of providing room and
meals if the cost exceeds the appropriate maximum food
stamp allotment. Only separate and identifiable costs for
room and meals may be used.
9074.8 Deductible Expenses
The net income from self-employment will be added to
the other earned income and the earned income deduction
will be applied to the total. Shelter costs the household
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
916 FINAL REGULATIONS
actually incurs, even if the boarder contributes to the
household for part of the household's shelter expenses, will
be computed to determine if the household will receive a
shelter deduction. However, the shelter costs will not
include any shelter expenses paid directly by the boarder to a
third party, such as to the landlord or utility company.
9074.9 Income From Daycare
Households who have income from day care can select
one of the following methods of determining the cost of
meals provided to individuals:
1) Actual verified costs of meals; or
2) Current reimbursement amounts used in the Child
and Adult Care Food Program.
9075 Procedure for Calculating Income Which Can Be
Annualized to Reflect Monthly Calculations
1) Add all gross self-employment (including capital
gains) for the period of time over which the self-employment
income is determined.
2) Subtract the total cost of producing the income.
3) Divide the income by the number of months over
which the income will be averaged.
4) For those households whose self-employment
income is not averaged but is instead calculated on an
anticipated basis, add any capital gains the household
anticipates it will receive in the next 12 months, starting with
the date the application is filed, and divide this amount by
12. This amount shall be used in successive certification
periods during the next 12 months, except that a new average
monthly amount shall be calculated over this 12-month
period if the anticipated amount of capital gains changes.
Add the anticipated monthly amount of capital gains to the
anticipated monthly self-employment income, and subtract
the cost of producing the self-employment income. The cost
of producing the self-employment income will be calculated
by anticipating the monthly allowable costs of producing the
self-employment income.
9074.1 Calculate a household's self-employment income as
follows:
(1) Averaging self-employment income.
(i) Average the income over the period the income
is intended to cover, even if the household receives income
from other sources. If the averaged amount does not
accurately reflect the household's current circumstances,
calculate the self-employment income on the basis of
anticipated earnings, not prior earnings.
(ii) For self-employment that has been in existence
for less than a year, average the income over the period of
time the business has been in operation. Project that
monthly amount for the coming year.
(2) Determining monthly income from selfemployment.
(i) For the period of time over which the selfemployment
income is determined, add all gross selfemployment
income (actual or anticipated) and capital gains,
exclude the costs of producing the self-employment income,
and divide the remaining amount of self-employment
income by the number of months over which the income will
be averaged. This amount is the monthly net selfemployment
income. Add the monthly self-employment
income to any other earned income received by the
household to determine the total monthly earned income.
(ii) If the cost of producing self-employment
income exceeds the income derived from self-employment
as a farmer, such losses must be prorated according to (a)(1)
of this section, and then offset against countable income to
the household as follows:
(A) Offset farm self-employment losses first
against other self-employment income.
(B) Offset any remaining farm selfemployment
losses against the total amount of earned and
unearned income after the earned income deduction has been
applied.
(3) Capital Gains
Calculate the proceeds from the sale of capital
goods or equipment in the same manner as a capital gain for
Federal income tax purposes.
Count the full amount of the capital gain as income
for food stamps even if only 50 percent of the proceeds from
the sale of capital goods or equipment is taxed for Federal
income tax purposes.
If the self-employment income is calculated on an
anticipated basis, count the amount of capital gains the
household anticipates receiving during the months over
which the income is being averaged.
9074.2 Allowable costs of producing self-employment
income.
(1) Allowable costs of producing self-employment
income include, but are not limited to:
The identifiable costs of labor;
stock;
raw material;
seed and fertilizer;
payments on the principal of the purchase price of
income-producing real estate and capital assets, equipment,
machinery, and other durable goods;
interest paid to purchase income-producing
property;
insurance premiums; and
taxes paid on income-producing property.
(2) The following items are not allowable costs of
doing business:
net losses from previous periods;
Federal, State and local income taxes, money set
aside for retirement purposes, and other work-related
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 917
personal expenses like transportation to and from work.
(Work-related personal expenses are covered under the 20
percent earned income deduction.)
depreciation; and
any amount that exceeds the payment a household
receives from a boarder for lodging and meals.
(3) Calculate the costs of producing self-employment
income using the actual costs according to (b)(1) or
determine self-employment expenses as follows:
For income from day care, use the current
reimbursement amounts used in the Child and Adult Care
Food Program.
For income from boarders, other than those in
commercial boarding houses or from foster care boarders,
use the maximum food stamp allotment for a household size
that is equal to the number of boarders.
For income from foster care boarders, refer to
DSSM 9013.1.
Calculation I - Gross Income
(a) Anticipated capital gains for 12-month period
beginning with date of application.
(b) + Anticipated gross self-employment income.
(c) = Gross self-employment income.
Calculation II - Costs of Operations
(a) Gross allowable costs of operation.
(b) + Gross depreciation.
(c) = Total cost of operation.
Calculation III - Net Self-employment Income
(a) Gross self-employment income.
(b) - Total cost of operation.
(c) Divided by 12
= Net monthly self-employment income.
9076 Treatment of Income and Resources of Certain
Non-Household Members
[273.11(c)]
During the period of time that a household member
cannot participate because (s)he:
· Is an ineligible alien;
· Is ineligible because of disqualification for an
intentional Program violation;
· Is ineligible because of disqualification for or
refusal to obtain or provide an SSN;
or
· Is ineligible for failing to sign the application
attesting to his/her citizenship or alien status;
· Is ineligible because of having made a fraudulent
statement or misrepresentation to the identity and/or place of
residence in order to receive multiple benefits at the same
time per DSSM 2024 ;
· Is ineligible for being a fleeing felon or probation/
parole violator per DSSM 2025;
· Is ineligible for being convicted of trafficking food
stamps of $500 or more per DSSM 2026;
· Is ineligible due to work requirements per DSSM
9018;
· Individuals who are ineligible because of a drugrelated
felony conviction per DSSM 2027; or
· Individuals ineligible due to the time limit for Ablebodied
Adults without Dependents per DSSM 9018.
Exception:
The income and resources of ineligible individuals
because of the able-bodied adults without dependents work
requirement (ABAWDS) are not counted towards any
remaining household members.
Determine the eligibility and benefit level of any
remaining household members in accordance with the
procedures outlined in this section.
9076.1 Intentional Program Violation, Felony Drug
Conviction, or Fleeing Felon Disqualifications, or Work
Requirement Sanctions
Determine as follows the eligibility and benefit level of
any remaining household members of a household
containing individuals determined ineligible because of the
disqualifications or sanctions listed below:
· Is ineligible because of disqualifications for an
intentional Program violation;
· Is ineligible because of having made a fraudulent
statement or misrepresentation to the identity and/or place of
residence in order to receive multiple benefits at the same
time;
· Is ineligible for being a fleeing felon or probation/
parole violator;
· Individuals who are ineligible because of a drugrelated
felony conviction per DSSM 2027; or
· Is ineligible for being convicted of trafficking food
stamps of $500 or more.
1) Income, resources and deductible expenses - the
income and resources of the ineligible household member(s)
continue to count in their entirety, and the entire household's
allowable earned income, standard, medical, dependent care,
child support payment, and excess shelter deductions
continue to apply to the remaining household members.
2) Eligibility and benefit level - the ineligible member
is not included when determining the household's size for the
purpose of:
a) Assigning a benefit level to the household;
b) Comparing the household's monthly income
with the income eligibility standards; or
c) Comparing the household's resources with the
resource eligibility limits. Ensure that no household's
coupon allotment is increased as a result of the exclusion of
one or more household members.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
918 FINAL REGULATIONS
9076.2 SSN disqualification and ineligible ABAWDs ,
Ineligible Alien or Failure to Attest to Citizenship or
Alien Status
Determine as follows the eligibility and benefit level of
remaining household members of a household containing
individuals determined ineligible:
· For being an ineligible alien;
· Because of disqualification for refusal to obtain or
provide an SSN; or
· Because of meeting the time limit for able-bodied
adults without dependents.
· For failing to attest to citizenship or alien status.
1) Resources - The resources of such ineligible
members continue to count in their entirety to the remaining
household members.
2) Income - Count a prorata share of the income of
such ineligible members as income to the remaining
members. This prorata share is calculated by first
subtracting the allowable exclusions from the ineligible
member's income and dividing the income evenly among the
household members, including the ineligible members. All
but the ineligible member's share is counted as income for
the remaining household members.
3) Deductible expenses - The earned income
deduction applies to the prorated income earned by such
ineligible members, which is attributed to their households.
That portion of the household's allowable child support
payment, shelter, and dependent care expenses which are
either paid by or billed to the excluded members, will be
divided evenly among the household's members including
the ineligible members. All but the ineligible member's
share is counted as a deductible child support payment,
shelter, or dependent care expense for the remaining
household members.
4) Eligibility and benefit level - Such ineligible
members will not be included when determining their
household's size for the purposes of:
a) Assigning a benefit level to the household;
b) Comparing the household's monthly income
with the income eligibility standards; or
c) Comparing the household's resources with the
resource eligibility limits.
9076.3 Ineligible alien.
Determine as follows the eligibility and benefit level of
remaining household members of a household containing
individuals determined ineligible:
· For being an ineligible alien.
1) Resources - The resources of such ineligible
members continue to count in their entirety to the remaining
household members.
2) Income - Count a prorata share of the income of
such ineligible members as income to the remaining
members. This prorata share is calculated by first
subtracting the allowable exclusions from the ineligible
member's income and dividing the income evenly among the
household members, including the ineligible members. All
but the ineligible member's share is counted as income for
the remaining household members.
3) Deductible expenses - The earned income
deduction applies to the prorated income earned by such
ineligible members, which is attributed to their households.
That portion of the household's allowable child support
payment, shelter, and dependent care expenses which are
either paid by or billed to the excluded members, will be
divided evenly among the household's members including
the ineligible members. All but the ineligible member's
share is counted as a deductible child support payment,
shelter, or dependent care expense for the remaining
household members.
4) Eligibility and benefit level - Such ineligible
members will not be included when determining their
household's size for the purposes of:
a) Assigning a benefit level to the household;
b) Comparing the household's monthly income
with the income eligibility standards; or
d) Comparing the household's resources with the
resource eligibility limits.
9076.3 9076.4 Reduction or Termination of Benefits
Within the Certification Period
Whenever an individual is determined ineligible within
the household's certification period, determine the eligibility
or ineligibility of the remaining household members based,
as much as possible, on information in the case file:
a) Excluded for Intentional Program Violation
Disqualification - If a household's benefits are reduced or
terminated within the certification period because one of its
members was excluded because of disqualification for
intentional Program violation, notify the remaining members
of their eligibility and benefit level at the same time the
excluded member is notified of his or her disqualification.
The household is not entitled to a notice of adverse action,
but may request a fair hearing to contest the reduction or
termination of benefits, unless the household has already had
a fair hearing on the amount of the claim as a result of a
consolidation of the administrative disqualification hearing
with the fair hearing.
b) Disqualified or determined ineligible for
reasons other than intentional Program violation. SSN
disqualification, ineligible alien or work requirement
sanction - If a household's benefits are reduced or terminated
within one certification period for reasons other than an
intentional Program violation disqualification, because one
or more of its members is an ineligible alien, or is ineligible
because (s)he was disqualified for refusal to obtain or
provide an SSN, issue a notice of adverse action in
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 919
accordance with DSSM 9006, informing the household of
the ineligibility, the reason for the ineligibility, the eligibility
and benefit level of the remaining members and the action
the household must take to end the ineligibility.
9078.2 Residents of Group Living Arrangements (GLA)
Who Receive Benefits Under Title II or Title XVI of the
Social Security Act
Disabled or blind residents of a group living
arrangement who are covered under the Food Stamp Act's
definition of a disabled person in DSSM 9013.1, (b through
k) may voluntarily apply for the Food Stamp Program. If
these The GLA must determine if a resident may apply on
his or her own behalf based on the resident's physical and
mental ability to handle his or her own affairs. Residents
may apply through the use of the facility's authorized
representative per DSSM 9016.1. Their eligibility will be
determined as one-person households. If the Residents can
apply on their own behalf or through an authorized
representative of their choice. Certify these residents using
the same provisions that apply to all other households.
Prior to certifying any residents for food stamps, verify
that the group living arrangement is authorized by FNS or is
certified by DHSS and that the center is a nonprofit
organization.
Shelter and Medical Expenses for Group Home
Residents
Room and medical costs, which can be separately
identified, are allowable shelter and medical expenses.
Normally the group home will identify the part of the
payment that is being charged for separate costs.
If the amount the resident pays for room and meals is
combined into one amount, the amount which exceeds the
food stamp maximum allotment for a one-person household
can be allowed as an identified shelter expense.
For example, a resident is charged $350 a month for
room and meals. If the maximum food stamp allotment is
$120 for a one-person household, then $120 is subtracted
from the $350 monthly charge. The remainder $230 is
allowed as the shelter cost.
If more than one resident applies as part of the same
food stamp household, the food stamp maximum allotment
amount for a one-person household would be deducted from
the room and board payment for each person.
For example, two residents apply as one food stamp
household. They each pay $350 a month for room and
meals. If the maximum food stamp allotment for one-person
household is $120, each resident has the $120 amount
subtracted from the $350 payment. The remainder $230 for
each person is used for the shelter costs, a $460 monthly
room charge.
Some group homes charge a basic rate for room and
board and they have higher rates depending on the amount of
medical care that may be needed. In such instances, if a
person is charged a higher rate, the basic rate minus the food
stamp maximum allotment amount for a one-person
household may be used to determine the shelter costs for that
person, and the difference between the basic rate and the
higher rate may be determined to be medical costs.
For example, a resident is charged a higher rate of $500
a month for room, meals and medical care. If the maximum
food stamp allotment for one-person households is $120, the
$120 is subtracted from the basic rate of $350 which leaves
$230 for the shelter cost. The $350 basic rate is subtracted
from the $500 higher rate to determine the medical costs of
$150.
If the amount paid for medical and shelter costs cannot
be separately identified, no deduction is allowed for the
costs.
These procedures apply to residents making their own
payments and to those instances where a protective payee is
handling the payments but is using the resident's own funds.
Each group living arrangement shall provide DSS with a
list of currently participating residents on a periodic basis.
This list will include a statement signed by a responsible
center official attesting to the validity of the list. DSS will
conduct periodic random on-site visits to assure the accuracy
of the list and that the Division's records are consistent and
current.
Processing standards, processing of changes and
recertifications and household rights are the same as in
DSSM 9078.1 when the facility acts as the resident's
authorized representative.
If the resident has made application on his/her own
behalf, the household is responsible for reporting changes
per DSSM 9085 . If the group living arrangement is acting
as authorized representative, the group living arrangement
must notify DSS of all changes and must return any
household's benefit which is received after the household has
left the group living arrangement.
When the household leaves the facility, the group living
arrangement either acting as an authorized representative or
retaining use of the coupons on behalf of the residents will
provide residents with their ID card. The departing
household will receive its full allotment if issued and if no
coupons have been spent on behalf of that individual
household. These procedures are applicable at any time
during the month. If the coupons have already been issued
and any portion spent on behalf of the individual, and the
household leaves the facility prior to the 16th day of the
month, the facility will provide the household with its ID
card and one-half of its monthly allotment. If the household
leaves on or after the 16th of the month and the coupons
have already been issued and used, the household does not
receive any coupons. If a group of residents have been
certified as one household and have returned the coupons to
the facility to use, the departing residents will be given a
prorata share of one-half of the household's allotment if
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
920 FINAL REGULATIONS
leaving prior to the 16th of the month, and will be instructed
to obtain ID cards. Once the resident leaves, the group living
arrangement no longer acts as his/her authorized
representative.
The group living arrangement will, if possible, provide
the household with a change report form and will advise the
household to return the form to the appropriate DSS office
within ten (10) days.
If a resident or a group of residents apply on their own
behalf and if they retain use of their own coupons, they are
entitled to keep the coupons when they leave. If a group of
residents have applied as one household, a prorata share of
the remaining coupons will be provided to any departing
household members. The group living arrangement will, if
possible, provide the household with a change report form
and will advise the household to return the form to the
appropriate DSS office within ten (10) days. The group
living arrangement will return to DSS any coupons not
provided to departing residents at the end of each month.
These returned coupons will include those not provided to
departing residents because they left on or after the 16th of
the month or they left prior to the 16th and the facility was
unable to provide them with coupons.
The same provisions applicable to drug and alcoholic
treatment centers in DSSM 9078.1 regarding
misrepresentation or fraud and overissuances and
institutional disqualification also apply to group living
arrangements when acting as an authorized representative.
A resident applying on his/her own behalf will be
responsible for overissuances as would any other household.
The group living arrangement may purchase and
prepare food to be consumed by eligible residents on a group
basis if residents normally obtain their meals at or from a
central location. If residents purchase and/or prepare food
for home consumption, the group living arrangement will
ensure that each resident's food stamps are used for meals
intended for that resident. If the resident retains use of his/
her own coupon allotment, coupons may be used either to
purchase meals prepared by the facility or to purchase food
to prepare meals for their own consumption.
9081.1 Definition
"Sponsored alien" means an alien for whom a person
has executed an affidavit of support [INS Form I-864 or I-
864A] on behalf of the alien according to section 213A of
the INA. those aliens lawfully admitted for permanent
residence into the United States as described in DSSM
9032.2 .
"Sponsor" means a person who executed an affidavit(s)
of support or similar agreement on behalf of an alien as a
condition of the alien's entry or admission into the United
States as a permanent resident.
"Date of entry" or "Date of admission" means the date
established by the Immigration and Naturalization Service as
the date the sponsored alien was admitted for permanent
residence.
9081.2 Deeming of Sponsor's Income and Resources as
That of the Sponsored Alien
DSS will consider the income and resources of the
sponsor and the sponsor's spouse towards the sponsored
alien only if the sponsored alien is an eligible alien according
to DSSM 9007.1. DSS will deem the income and resources
of sponsor and the sponsor's spouse, if he or she has
executed INS Form I-864 or I-864A, as the unearned income
and resources of the sponsored alien.
The gross income and the resources of a sponsor and the
sponsor's spouse (if living with the sponsor) will be deemed
to be the unearned income and resources of a sponsored
alien. The spouse's income and resources will be counted
even if the sponsor and spouse were married after signing the
agreement.
The deeming of the sponsor's income and resources
shall continue to apply to an alien until the alien has:
• The alien has become a United States citizen
through naturalization; or
• The alien is credited with Worked 40 qualifying
quarters of coverage during which time the alien
did not receive any Federal means-tested public
welfare benefit, or
• The sponsor dies.
Whenever an alien is required to reapply for benefits,
DSS shall review the income and resources deemed to the
alien as follows:
The income and resources of sponsors and sponsor's
spouses are deemed as follows:
1. The monthly income of the sponsor and sponsor's
spouse deemed to be that of the alien will be the total
monthly earned and unearned income (including income
exclusions provided for in DSSM 9059 ) of the sponsor and
the sponsor's spouse (if living with the sponsor) at the time
the household containing the sponsored alien member
applies or is recertified, reduced by:
(A) A 20 percent earned income amount for that
portion of the income determined as earned income of the
sponsor and the sponsor's spouse.
(B) An amount equal to the monthly gross income
eligibility limit for a household equal in size to the sponsor,
the sponsor's spouse, and any other person who is claimed or
could be claimed by the sponsor or the sponsor's spouse as a
dependent for Federal income tax purposes.
the appropriate earned income amount for that
portion of income determined as earned income of the
sponsor and the sponsor's spouse.
2. If the alien has already reported gross income
information on his/her sponsor due to DABC's sponsored
alien rules, that income amount may be used for FSP
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 921
deeming purposes. However, allowable reductions to be
applied to the total gross income of the sponsor and the
sponsor's spouse prior to attributing an income amount to the
alien, will be limited to the earned income amount in DSSM
9060. However, limit the allowable reductions to the total
gross income of the sponsor and the sponsor's spouse prior
to attributing an income amount to the alien to amounts
listed above in # 1 in this section.
3. Actual money paid to the alien by the sponsor or the
sponsor's spouse will not be considered as income to the
alien unless the amount paid exceeds the amount attributed
to the alien under paragraph A1 above. Only the amount
paid that actually exceeds the amount deemed would be
considered income to the alien.
4. Resources of the sponsor and the sponsor's spouse
to be deemed to be that of the alien will be the total amount
of their resources as determined in accordance with DSSM
9045 reduced by $1,500.
D) The amount of income and resources deemed to be
that of the sponsored alien in accordance with paragraphs A
and C of this Section will be considered in determining the
eligibility and benefit level of the household of which the
alien is a member.
5. If a sponsored alien can demonstrate to the
Division's satisfaction that his/her sponsor sponsors other
aliens, then the income and resources deemed under the
provisions of paragraph A and C 1 and 4 of this Section will
be divided by the number of such aliens that apply for or are
participating in the program.
Exempt aliens:
The deeming of sponsor income in steps 1-5 above do
not apply to:
1. An alien who is a member of his or her sponsor's
food stamp household;
2. An alien who is sponsored by an organization or
group as apposed to an individual;
3. An alien who is not required to have a sponsor
under the Immigration and Nationality Act, such as a
refugee, a parolee, an asylee, or a Cuban or Haitian entrant;
4. A battered alien spouse, alien parent of a battered
child, or child of a battered alien, for 12 months after a
determination is made that the battering is substantially
connected to the need for benefits, and the battered
individual does not live with the batterer. After 12 months,
do not deem the batterer's income and resources if the
battery is recognaized by a court or the INS and had a
substantial connection to the need for benefits, and the alien
does not live with the batterer.
The eligible sponsored alien's responsibilities are as
follows:
1. The eligible sponsored alien is responsible for
obtaining the cooperation of the sponsor and for providing
the information and documentation necessary to calculate
demed income and resources at application and
reapplication.
2. The eligible sponsored alien is responsible for
providing the names and other identifying factors of other
aliens for whom the alien's sponsor has signed an affidavit of
support.
3. The eligible sponsored alien is responsible for
reporting the required information about the sponsor and the
sponsor's spouse should the alien obtain a different sponsor
during the certification period. The alien must also report
any change in income should the sponsor and the sponsor's
spouse change, lose employment, or die during the
certification period.
F) If the alien reports that (s)he has changed sponsors
during the certification period, then recalculate deemed
income and resources based on the required information
about the new sponsor and sponsor's spouse. Handle the
reported change in accordance with DSSM 9085 and DSSM
2002 , as appropriate. If an alien loses his/her sponsor and
does not obtain another, the deemed income and resources of
the previous sponsor will continue to be attributed to the
alien until such time as the alien obtains another sponsor: or
the alient becomes U. S. citizen; or the alien works 40
qualifying quarters of coverage. In the event of the death of
a sponsor, deemed income and resources of the sponsor are
no longer attributed to the alien.
Awaiting verification.
Until the alien provides information or verification
needed to calculate deemed income and resources, the
sponsored alien is ineligible for benefits. DSS will
determine the eligibility of any remaining household
members.
The income and resources (excluding the deemed
income and resources of the alien's sponsor and the
sponsor's spouse) of the ineligible alien will be counted
according to DSSM 9076.2.
If the sponsored alien refuses to cooperate in providing
information or verification, other adult members are
responsible for providing the information or verification
required.
Once the information or verification is received, DSS
will act on the information as a reported change in household
size according to DSSM 9085.
If the same sponsor is responsible for the entire
household, the entire household is ineligible until the
household provides the needed sponsor information or
verification.
DSS will assist aliens in obtaining verification.
9082 Reduction of Public Assistance Benefits Failure to
Comply With Another Assistance Program's
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
922 FINAL REGULATIONS
Requirements
[273.11(kj)]
Do not increase food stamp benefits when a household's
benefits received under another means-tested Federal, State
or local welfare or public assistance program (such as but not
limited to DABC[,][or] GA or [SSI]) have been decreased
(reduced, suspended or terminated) due to failure to perform
an action required under the assistance program or for fraud.
comply with a requirement of the program that imposed the
benefit decrease. This does not apply to food stamp work
sanctions under DSSM 9021. Under no circumstances can
the food stamp benefits be allowed to increase.
Actions not considered a failure to perform for this rule
include:
• Reaching a time limit for time-limited benefits;
• Having a child that is not eligible because of
family cap;
• Failing to reapply or complete the application
process for continued assistance under another program;
• Failing to perform an action that the individual
is unable to perform; or
• Failing to comply with a purely procedural
requirement.
A procedural requirement which would not cause a
sanction is a step that an individual must take to continue to
receive benefits in the assistance program such as providing
verification of circumstances.
A substantive requirement, which would cause a
sanction, is a behavioral requirement in the assistance
program designed to improve the well-being of the recipient
family, such as participating in job search activities.
The following conditions apply:
1. The rule applies to individuals who fail to perform a
required action while receiving assistance.
2. The rule does not apply to individuals who fail to
perform a required action at the time the individual initially
applies for assistance.
3. The rule applies to individuals who fail to perform a
required action during an application for continued benefits
as long as there is no break in participation.
4. The individual must be certified for food stamps at
the time of the failure to perform a required action for this
rule to apply.
5. Assistance benefits shall be considered reduced if
they are decreased, suspended, or terminated.
6. If the means-tested assistance program[, like SSI,]
fails to verify an individual's failure to perform a required
action, this rule will not apply and DSS will not be held
responsible as long as DSS made a good faith effort to get
the information.
7. DSS, not the individual, is responsible for obtaining
information about sanctions from other programs and
changes in those sanctions.
8. The rule applies for the duration of the reduction in
the assistance program and cannot continue beyond the
sanction of the assistance program.
9. When a [n] DABC case [closes] [reaches the third
permanent sanction], the food stamp sanction will be
removed because the family is no longer eligible for
assistance.
10. DSS must restore lost benefits if it is later
discovered that the reduction in the public assistance was not
appropriate.
11. DSS must act on changes which are not related to
the assistance violation and that would affect the household's
benefits.
1. This provision must be applied to all applicable
cases. If DSS is not able to get necessary information from
another means-tested welfare program, such as SSI, DSS
shall not be held responsible for noncompliance as long as
DSS made a good faith effort to obtain the information.
2. Do not reduce, suspend, or terminate a household's
current food stamp allotment amount when the household's
benefits under another applicable assistance program have
been decreased due to an intentional failure to comply with a
requirement of that program.
3. Adjust food stamp benefits when eligible members
are added to the food stamp household regardless of whether
or not the household is prohibited from receiving benefits for
the additional member under another Federal, State or local
welfare or public assistance means-tested program.
4. Changes in household circumstances which are not
related to a penalty imposed by another Federal, State, or
local welfare or public assistance means-tested program
shall not be affected by this provision.
Child Support disregard checks being withheld, or
portions being recouped, because of a client caused
overpayment owed to DCSE do count as income for food
stamp purposes. Amounts being withheld or recouped
because of agency caused overpayments do not count as
income for food stamp purposes.
9085 Reporting Changes
[273.12]
Certified households are required to report the following
changes in circumstances:
• Changes in the sources of or in the amount of gross
unearned income of more than $25, except changes
in the public assistance grants. Since DSS has prior
knowledge of all changes in the public assistance
grants, action shall be taken on the DSS
information. Changes reported in person or by
telephone are to be acted upon in the same manner
as those reported on the change report form;
• Changes in the amount of gross earned income will
be reported as follows:
a) New source of employment, or
b) Changes in the hourly rate or salary of current
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 923
employment, or
c) Changes in employment status from part-time
to full-time or full-time to part-time.
• All changes in household composition, such as the
addition or loss of a household member;
• Changes in residence and the resulting changes in
shelter costs;
• The acquisition of a licensed vehicle not fully
excludable under DSSM 9051 ;
• When cash on hand, stocks, bonds, and money in a
bank account or savings institution reach or exceed
a total of $2,000; and
• Changes in the legal obligation to pay child
support; and
• Changes in work hours that bring an ABAWD
individual below 20 hours per week, averaged
monthly.
Certified households must report changes within ten
(10) days of the date the change becomes known to the
household.
An applying household must report all changes related
to its food stamp eligibility and benefits at the certification
interview. Changes, as provided in this Section, which occur
after the interview but before the date of the notice of
eligibility, must be reported by the household within ten (10)
days of the date of the notice.
Only the reporting requirements in this Section and no
other reporting requirements can be imposed by the
Division.
9091 Recertification
[273.14]
No household may participate beyond the expiration of
the assigned certification period without a determination of
eligibility for a new period. Households must apply for
recertification and comply with the interview and
verification requirements per DSSM 9030 and DSSM 9038.
The joint processing requirements in DSSM 9042 for
DABC and/or General Assistance households continue to
apply to applications for recertifications.
9091.1 Notice of Expiration
All households must be provided with a notice of
expiration at the end of its certification prior to the start of
the last month of its certification period.
When a household is certified for one month or when
the certification action is not completed until the second
month of a two-month certification, provide a notice of
expiration at the time of certification. All other households
must be provided a notice of expiration at least one day
before the last month, but no earlier than the next to the last
month of the certification period.
The form for notifying a household of the expiration of
its certification must contain the following information:
A) The date the current certification period ends.
B) The date by which the household must file an
application for certification to receive uninterrupted benefits.
Households certified for one month or certified in the
second month if a two-month certification period shall be
provided a notice of expiration at the time of certification.
All other households must be provided a notice of expiration
before the first day of the last month of the certification
period.
The notice of expiration (Form 310) contains the
following information:
A. The date the current certification period ends.
B. The date by which the household must file an
application for recertification to receive uninterrupted
benefits.
C. The consequences of failure to comply with the
notice of expiration,
D. The household's right to request an application
and have DSS accept an application as long as it is signed
and contains a legible name and address.
E. The household's right to file the application by
mail or through an authorized representative.
F. The address of the office where the application
must be filed.
G. The household's right to request a fair hearing.
H. The fact that any household consisting only of
SSI applicants or recipients is entitled to apply for food
stamp recertification at an office of the Social Security
Administration.
I. Notice that the household must appear for any
interview scheduled on or after the date the application is
timely filed in order to receive uninterrupted benefits.
J. Notice that the household is responsible for
rescheduling any missed interview and for providing
required verification information.
9091.2 Application Form
All households must complete an application form in
order for DSS to obtain all information needed to determine
eligibility and benefits for a new certification period. A
household's signature and date is required at all
recertifications regardless of the type of application used.
The type of application used can be updating the online
version, completing a long version hardcopy, completing the
short review form, or updating an initial long version
hardcopy application. The recertification process can only
be used for households which apply before the end of their
current certification period except for the provisions under
DSSM 9091.8.
9091.3 Interview
A face-to-face recertification interview will be held with
a member of each applying household or its authorized
representative at least once every 12 months for households
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
924 FINAL REGULATIONS
certified for 12 months or less. Face-to-face interviews can
be waived per DSSM 9030. and for households that have no
earned income if all the members are elderly or disabled.
DSS will conduct a telephone interview or a home visit for
households for whom the office interview is waived.
The interview may be scheduled prior to the application
being filed, provided that the household's application is not
denied at that time for failure to appear for the interview.
Schedule the interview on or after the date the application
was filed if the interview has not been previously scheduled,
or the household has failed to appear for any interviews
scheduled prior to this time and has requested another
interview.
Schedule the interview so that the household has at least
ten (10) days after the interview in which to provide
verification before the certification period expires. If a
household misses a scheduled interview, send the household
a notice of missed interview. If the household misses its
scheduled interview and requests another interview, schedule
a second interview.
If the household does not appear for any interview
scheduled, do not initiate any further action.
9091.4 Verification
Information provided by the household shall be verified
according to DSSM 9038. Inform households of what
required verification must be provided and of the date by
which the verifications must be returned. The household has
ten (10) calendar days to provide required verification.
Households whose eligibility is not determined by the end of
the current certification period due to the time period
allowed for returning verifications shall receive their
benefits, if eligible, within five (5) working days after the
household submits the missing verification and benefits
cannot be prorated.
9091.5 Timely Application for Recertification
A household submitting a timely application for
recertification and meeting all other processing steps in a
timely manner has a right to receive uninterrupted benefits.
Households reporting required changes in circumstances
that are certified for one month or certified in the second
month of a two-month certification period shall have 15 days
from the date the notice of expiration is received to file a
timely application for recertification.
Other households reporting required changes in
circumstances that submit applications by the 15th day of the
last month of the certification period shall be considered to
have made a timely application for recertification.
For households consisting only of SSI applicants or
recipients who apply for food stamp recertification at SSA
offices according to DSSM 9043 , an application shall be
considered filed for normal processing purposes when the
signed application is received by the SSA office.
Households which timely reapply do not lose their right
to uninterrupted benefits for failure to submit any requested
verification prior to the date the household submits a timely
application for recertification.
9091.6 Timely Processing
Provide uninterrupted benefits to any household
determined eligible after the household has:
1. Timely filed an application,
2. Attended an interview, unless waived per
DSSM 9030 , and
3. Submitted all necessary verification within the
ten (10) day timeframe.
Notify households that were certified for one month or
certified for two months in the second month of the
certification period and have met all required application
procedures of their eligibility or ineligibility. Provide
eligible households an opportunity to receive benefits no
later than 30 calendar days after the date the household
received its last allotment.
Other households that have met all application
requirements shall be notified of their eligibility or
ineligibility by the end of their current certification period.
Provide households determined eligible an opportunity to
participate by the household's normal issuance cycle in the
month following the end of its current certification period.
Any household not determined eligible in sufficient time
to provide for issuance in that timeframe due to the time
period allowed for submitting any missing verification must
receive an opportunity to participate, if eligible, within five
(5) working days after the household supplies the missing
verification.
9091.7 Delayed Processing Caused by DSS
Households which have submitted an application for
recertification in a timely manner but, due to a DSS error, are
not determined eligible in sufficient time to provide for
issuance of benefits by the household's next normal issuance
date shall receive an immediate opportunity to participate
after being determined eligible. Restore lost benefits to any
household unable to participate for the month following the
expiration of the certification period because of such error.
If an eligible household files an application before the
end of the certification period but DSS does not complete the
recertification process within the 30 days after the date of
application, continue to process that case and provide a full
month's allotment for the first month of the new certification
period.
9091.8 Delayed Processing Caused by the Household
If a household does not submit a new application by the
end of the certification period, the case is closed for failure
to recertify and a notice is sent to the household.
If an application is submitted after the certification
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 925
period expires, it shall be treated the same as an application
for initial certification according to DSSM 9061.1 and
subject to proration of benefits.
Do not prorate benefits for households which receive a
notice of expiration at the time of certification and which are
otherwise eligible if they file their applications for
recertification by the filing deadline in the notice of
expiration.
A household which submits an application by the filing
deadline but does not appear for an interview scheduled after
the application has been filed, or does not submit verification
within the required timeframe, loses its right to uninterrupted
benefits.
If the household loses its right to uninterrupted benefits
due to such failures but is otherwise eligible after correcting
such failures, provide benefits within 30 days after the date
the application was filed.
Denials, including those for failure to appear for an
interview after the application has been filed or who fail to
provide missing verifications timely, will be sent by the end
of the current certification period or within 30 days after the
application was filed as long as the household has had
adequate time for providing the missing verification.
If the household files an application by the end of the
certification period, but fails to take a required action, deny
the application at the end of 30 days. The household has 30
days after the end of the certification period to complete the
process and have its application treated as an application for
recertification.
• If the household takes the required action before the
end of the certification period, reopen the case and
provide a full month's benefits for the initial month
of the new certification period.
• If the household takes the required action after the
end of the certification period but within 30 days
after the end of the certification period, reopen the
case and provide benefits retroactive to the date the
household takes the required action.
If the household files an application within 30 days after
the end of the certification period, the application shall be
considered an application for recertification. Prorate
benefits from the date of the application. If a household's
application for recertification is delayed beyond the first of
the month of the new certification period due to agency
error, prorate the benefits from the date of the new
application and then restore benefits back to the date the
household's certification period should have started if not for
the agency error.
9091.9 Expedited Service for Recertification
Do not apply expedited service provisions of DSSM
9041 to households that apply for recertification before the
end of its current certification period.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. 505)
ORDER
Nature Of The Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services /
Medicaid/Medical Assistance Programs initiated
proceedings to implement new policy and amend policies to
implement changes to the Division of Social Services
Manual, Sections 14100.6, 14105, 14120, 14900, 15500
through 15511 and 30405. New policy at DSSM 14120
addresses eligibility of inmates and new policy at DSSM
15500 provides Medicaid eligibility to a new group, titled,
The Breast and Cervical Cancer Group. DSSM 14900 is
being amended to add this new eligibility group. Remaining
policy changes relate to what constitutes a redetermination
of eligibility (DSSM 14100.6); unverified social security
number (DSSM 14105); and, redetermination requirements
for the Delaware Prescription Assistance Program (DSSM
30405). 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 August, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2001 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
No written or verbal comments were received relating to
this proposed rule.
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the August, 2001 Register of Regulations should be
adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulations of the Medicaid/Medical Assistance Programs
are adopted and shall be final effective October 10, 2001.
September 14, 2001
Vincent P. Meconi, Secretary, DHSS
14120 Inmate of a Public Institution
An individual who is an inmate of a public institution is
not eligible.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
926 FINAL REGULATIONS
An inmate of a public institution is a person who is
living in a public institution. A public institution is a facility
that is under the responsibility of a governmental unit or over
which a governmental unit exercises administrative control.
This control can exist when a facility is actually an
organizational part of a governmental unit or when a
governmental unit exercises final administrative control,
including ownership and control of the physical facilities and
grounds used to house inmates. Administrative control can
also exist when a governmental unit is responsible for the
ongoing daily activities of a facility; for example, when
facility staff members are government employees or when a
governmental unit, board, or officer has final authority to
hire and fire employees. Privately supported institutions that
are not under the control of a governmental unit do not meet
the definition of a public institution.
An individual is an inmate and is not eligible when he or
she is serving time for a criminal offense or is confined
involuntarily awaiting trial, criminal proceedings, penal
dispositions, or other involuntary detainment determinations
and is living in:
(a) a State or Federal prison
(b) jail
(c) a detention facility
(d) a wilderness camp under governmental control
(e) a halfway house under governmental control
(f) any penal facility.
The following individuals are not inmates of a public
institution and may be eligible:
1. An individual who is voluntarily living in a public
institution after his or her case has been adjudicated and
other living arrangements are being made (such as a transfer
to a community residence).
2. An individual who is sent to a privately supported
institution as an alternative to a detention or prison sentence.
3. Infants living with the inmate in the public
institution
4. Parolees
5. Probationers
6. Individuals living in a halfway house that is not
under governmental control
15500 Breast and Cervical Cancer Group
The Breast and Cervical Cancer Prevention and
Treatment Act of 2000 adds a new optional categorically
needy eligibility group at Section 1902(a)(10)(A)(ii)(XVIII)
for uninsured women under age 65 who are identified
through the Centers for Disease Control and Prevention's
(CDC) National Breast and Cervical Cancer Early Detection
Program (NBCCEDP) and are in need of treatment for breast
or cervical cancer, including pre-cancerous conditions and
early stage cancer.
The Breast and Cervical Cancer Group (BCC) is
implemented with the earliest effective date of October 1,
2001.
15501 General Eligibility Requirements
The Medicaid rules at DSSM 14000 apply to this group.
15502 Age Requirement
The woman must be under age 65. If a woman turns age
65 during her period of coverage, her eligibility terminates.
Exception: If the woman is an inpatient in a hospital when
she turns age 65, her eligibility will continue until she is
discharged from the hospital.
15503 Screening Requirement
The woman must have been screened for breast or
cervical cancer under the CDC Breast and Cervical Cancer
Early Detection Program established under Title XV of the
Public Health Service Act and found to need treatment for
either breast or cervical cancer (including a pre-cancerous
condition).
A woman is considered to have met the screening
requirement if she comes under any of the following three
categories:
1. CDC Title XV funds paid for all or part of the
costs of her screening services.
2. The woman is screened under a state Breast
and Cervical Cancer Early Detection Program in which her
particular clinical service has not been paid for by CDC Title
XV funds, but the service was rendered by a provider and/or
an entity funded at least in part by CDC Title XV funds; the
service was within the scope of a grant, sub-grant or contract
under that State program; and the State CDC Title XV
grantee has elected to include such screening activities by
that provider as screening activities pursuant to CDC Title
XV.
3. The woman is screened by any other provider
and/or entity and the state CDC Title XV grantee has elected
to include screening activities by that provider as screening
activities pursuant to CDC Title XV.
15504 Needs Treatment Requirement
The woman must need treatment for breast or cervical
cancer. The woman meets this requirement when it is the
opinion of the woman's treating health professional that the
diagnostic test following a breast or cervical cancer screen
indicates that the woman is in need of cancer treatment
services. These services include diagnostic services that
may be necessary to determine the extent and proper course
of treatment, as well as treatment itself.
Based on the physician's plan-of-care, a woman who is
determined to require only routine monitoring services for a
pre-cancerous breast or cervical condition (such as breast
examination and mammograms) is not considered to need
treatment.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 927
15505 Uninsured Requirement
The woman must be uninsured. The woman is not
eligible if she has:
a) Medicaid or is eligible under any of the
Mandatory Categorically Needy coverage groups. The
mandatory groups include Section 1931, Transitional or
Prospective, IV-E Foster Care, IV-E Adoption Assistance,
Low Income Pregnant Woman or Child, SSI, or Deemed
SSI.
b) Medicare
c) comprehensive health insurance
d) CHAMPUS
15505.1 Definition of Comprehensive Health Insurance
Comprehensive health insurance is a benefit package
comparable in scope to the "basic" benefit package required
by the State of Delaware's Small Employer Health Insurance
Act at Title 18, Chapter 72 of the Delaware Code. To be
considered comprehensive health insurance, the benefits
package must cover hospital and physician services,
laboratory and radiology and must include coverage for the
treatment of breast and cervical cancer.
A woman is not considered to have comprehensive
health insurance when she is not actually covered for
treatment of breast or cervical cancer. For example, a
woman who has comprehensive health insurance but is in a
period of exclusion (such as a preexisting condition
exclusion) for treatment of breast and cervical cancer. Also,
if a woman exhausts her lifetime limit on benefits under the
insurance (including treatment for breast and cervical
cancer), she is not considered to have coverage.
A woman who has comprehensive health insurance that
has limits on benefits (such as limits on the number of
outpatient visits per year) or high deductibles, is not eligible
under this group.
15506 Financial Eligibility
There are no income or resource limits for this group.
15507 Application Process
Women must complete an application that will be used
to determine both presumptive eligibility and final eligibility
for Medicaid. Presumptive eligibility is a temporary
eligibility determination that will provide expedited
Medicaid coverage to women in this group during the
application processing period. This special application
processing procedure will facilitate the prompt enrollment
and immediate access to services for women who are in need
of treatment for breast or cervical cancer. An applicant can
be determined presumptively eligible when DSS receives
verification that she has been screened for breast or cervical
cancer under CDC and needs treatment.
If the information on the application indicates that she
may be eligible under one of the mandatory categorically
needy groups, DSS will first make a determination of
presumptive eligibility under the BCC group. Verification of
factors of eligibility for the mandatory group (such as
income) are postponed. Postponed verifications must be
provided within 30 days from the date of receipt of the
application. The verifications that were postponed are
required to determine final eligibility for Medicaid.
Presumptive eligibility continues until a final eligibility
determination is completed. If the required verifications are
not provided, eligibility is terminated.
If the information on the application indicates that the
woman is not eligible under one of the mandatory
categorically needy groups, DSS will make a final
determination of eligibility under the BCC group provided
all verification requirements are met.
15508 Eligibility Period
Eligibility may begin up to three months prior to the
month of application (but no earlier than October 1, 2001),
provided the woman meets all eligibility requirements
during those prior three months including having been
screened and found to need treatment for breast or cervical
cancer.
Eligibility continues as long as the woman is receiving
treatment for breast or cervical cancer, is under age 65, and
is uninsured.
A woman is not limited to one period of eligibility. A
new period of eligibility and coverage can begin each time a
woman is screened under the CDC program, has been found
to need treatment for breast or cervical cancer, and meets the
other eligibility requirements.
15509 Coverage
A woman eligible under this group is entitled to full
Medicaid coverage. Coverage is not limited to treatment of
breast and cervical cancer. There is no managed care
enrollment under this group. Medicaid benefits will be
provided on a fee-for-service basis.
15510 Termination of Eligibility
Eligibility under this group terminates when the woman:
a) attains age 65
b) acquires comprehensive health insurance
c) is no longer receiving treatment for breast or
cervical cancer
d) no longer meets the general eligibility
requirements at DSSM 14000.
15511 Redetermination of Eligibility
An annual redetermination of eligibility must be
completed as required at DSSM 14100.6.
14100.6 Redetermination Of Eligibility
Eligibility for continued Medicaid coverage must be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
928 FINAL REGULATIONS
redetermined at least annually. A redetermination is a reevaluation
of a recipient's continued eligibility for medical
assistance. In a redetermination, all eligibility factors are reexamined
to ensure that the recipient continues to meet
eligibility requirements. When a redetermination is due, the
recipient is required to complete and return a new DSS
application form. Failure to complete and return a DSS
application form will result in termination of eligibility. A
redetermination is complete when all eligibility factors are
examined and a decision regarding continued eligibility is
reached.
Eligibility must be promptly redetermined when
information is received about changes in a recipient's
circumstances that may affect his eligibility. Some changes
in circumstances can be anticipated. A redetermination of
eligibility must be made at the appropriate time based on
those changes. Examples are: Social Security changes,
receipt of Child Support, return to work, etc.
Medicaid coverage should not terminate without a
specific determination of ineligibility. The individual may be
eligible under another category of Medicaid. For example,
when an individual loses eligibility because of termination
from cash assistance, such as SSI, we must make a separate
determination of Medicaid eligibility. Medicaid must
continue until the individual is found to be ineligible.
Medical assistance will be terminated when DSS is
notified by the recipient that he or she no longer wants
coverage.
14105 Social Security Number
Each individual applying for Medicaid must furnish his
or her Social Security number (SSN). If the individual
cannot furnish a SSN, he or she must provide proof of
application for one before Medicaid can be approved. This
verification of application is usually in the form of a signed
receipt or computer printout from the Social Security
Administration.
Acceptable documentation of SSN includes a Social
Security card, a Social Security award letter, a NUMIDENT,
a pay stub, a W-2 form, a driver's license, or an
unemployment claim card. If the individual is unable to
provide proof of his or her number but can furnish one, the
application will be processed using the number the
individual has given. The SSNs of individuals who are
opened on DCIS are submitted to the Social Security
Administration for verification through the Income and
Eligibility Verification Systems (IEVS). When a SSN is
returned from SSA as unverified, DSS is required to pursue
the unverified information with the applicant/recipient. If
the individual refuses to cooperate in resolving the
unverified SSN, medical assistance will be terminated. If the
individual claims he or she cannot cooperate for reasons
beyond his or her control, obtain documentation of the
individual's inability to cooperate or medical assistance will
be terminated.
Any individual whose income will be considered when
determining eligibility for the applicant will be asked to
furnish his or her SSN on the application. When the SSN of
a financially responsible individual is voluntarily furnished
and is included in the case record, IEVS matching will be
performed on this individual.
Verification of the SSN, either through IEVS or
acceptable documentation, must be obtained by the first
redetermination of eligibility.
14900 Enrollment In Managed Care
On May 17, 1995, Delaware received approval from the
Health Care Financing Administration for a Section 1115
Demonstration Waiver that is known as the Diamond State
Health Plan. The basic idea behind this initiative is to use
managed care principles and a strong quality assurance
program to revamp the way health care is delivered to
Delaware's most vulnerable populations. The Diamond
State Health Plan is designed to provide a basic set of health
care benefits to current Medicaid beneficiaries as well as
uninsured individuals in Delaware who have income at or
below 100% of the Federal Poverty Level (FPL). The
demonstration waiver will mainstream certain Medicaid
recipients into managed care to increase and improve access
to medical service while improving cost effectiveness and
slowing the rate of growth in health care costs.
The majority of the Medicaid population receiving non
institutional services will be enrolled into the Diamond State
Health Plan. Recipients in the cash assistance programs
(TANF/AFDC, SSI, and GA) as well as the TANF/AFDCrelated
groups, SSI-related groups, and poverty level groups
will be included in the managed care program. The
following individuals cannot enroll in Diamond State Health
Plan:
a. Individuals entitled to or eligible to enroll in
Medicare
b. Individuals residing in a nursing facility or
intermediate care facility for the mentally retarded (ICF/MR)
c. individuals covered under the home and
community based waivers
d. non lawful and non qualified non citizens
(aliens)
e. individuals who have CHAMPUS
f. individuals eligible under the Breast and
Cervical Cancer Group
30405 Redetermination of Eligibility
A redetermination of eligibility must be completed by
July June 30 of each year. If an individual's initial coverage
begins in April, May, or June, a redetermination will not be
required until July June of the following year. A
redetermination is a re-evaluation of a recipient's continued
eligibility for DPAP coverage. In a redetermination, all
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 929
eligibility factors are re-examined to ensure that the recipient
continues to meet eligibility requirements. When a
redetermination is due, the recipient is required to complete
and return a new DSS application form. Failure to complete
and return a DSS application form will result in termination
of eligibility. A redetermination is complete when all
eligibility factors are examined and a decision regarding
continued eligibility is reached.
DPAP coverage will be terminated when the Contractor
or DSS is notified by the recipient that he or she no longer
wants coverage.
DIVISION OF SOCIAL SERVICES
Statutory Authority: 31 Delaware Code,
Section 505 (31 Del.C. §505)
ORDER
Nature Of The Proceedings:
The Delaware Department of Health and Social
Services ("Department") / Division of Social Services / Food
Stamp Program initiated proceedings to amend policies to
implement policy changes to the following section of the
Division of Social Services Manual: Section 7004.3. This
change sets criteria for determining when a claim of $125 or
less is not established. 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 August, 2001 Delaware Register of
Regulations, requiring written materials and suggestions
from the public concerning the proposed regulations to be
produced by August 31, 2001 at which time the Department
would receive information, factual evidence and public
comment to the said proposed changes to the regulations.
No written or verbal comments were received relating to
this proposed rule
Findings Of Fact:
The Department finds that the proposed changes as set
forth in the August, 2001 Register of Regulations should be
adopted as written.
THEREFORE, IT IS ORDERED, that the proposed
regulations related to the Food Stamp Program Collection
and Management of Food Stamp Claims are adopted and
shall be final effective October 10, 2001.
September 14, 2001
Vincent P. Meconi, Secretary, DHSS
7004.3 DABC and/or GA Food Stamp Households
[273.12(f)]
DABC and/or GA households have the same reporting
requirements as any other food stamp households.
Whenever an DABC and/or GA household reports a change,
adjustments must be made in the household's eligibility
status or allotment for the months determined appropriate
given the household's budgeting cycle.
Notify households whenever their benefits are altered as
a result of changes in the DABC and/or GA benefits, or
whenever the food stamp certification period is shortened to
reflect changes in the household's circumstances. If the
certification period is shortened, the household's certification
period must not end any earlier than the month following the
month in which DSS determines that the certification period
should be shortened, allowing adequate time to send a notice
of expiration and for the household to timely reapply. If the
DABC and/or GA benefits are terminated but the household
is still eligible for food stamp benefits, advise household
members of food stamp work registration requirements, if
applicable, as their First Step registration exemption no
longer applies.
Whenever a change results in the reduction or
termination of a household's DABC and/or GA benefits
within its food stamp certification period, and DSS has
sufficient information to determine how the change affects
the household's food stamp eligibility and benefit level, take
the following actions:
• If a change in household circumstances
requires both reduction or termination in the
DABC and/or GA payment and a reduction or
termination in food stamp benefits, issue a
single notice of adverse action for both the
DABC and/or GA and food stamp actions. If
the household requests a fair hearing within the
period provided by the notice of adverse
action, continue the household's food stamp
benefit on the basis authorized immediately
prior to sending the notice. If the fair hearing
is requested for both programs' benefits,
conduct the hearing according to DABC and/or
GA procedures and timeliness standards. The
household must reapply for food stamp
benefits if the food stamp certification period
expires before the fair hearing process is
completed. If the household does not appeal,
make the change effective in accordance with
the procedures in DSSM 9085.2.
• If the household's food stamp benefits will be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
930 FINAL REGULATIONS
increased as a result of a reduction or
termination of DABC and/or GA benefits, the
household's food stamp benefits must continue
at the previous basis. If the household does not
appeal, make the change effective in
accordance with the procedures specified in
DSSM 9085.2, except calculate the time limits
for action from the date the DABC and/or GA
notice of adverse action period expires.
Whenever a change results in the termination of a
household's DABC and/or GA benefits within its food stamp
certification period, and DSS does not have sufficient
information to determine how the change affects the
household's food stamp eligibility and benefit level (such as
when an absent parent returns to a household, rendering the
household categorically ineligible for DABC and/or GA, and
DSS has no information on the income of the new household
member), take the following action:
1) Where a DABC and/or GA notice of adverse
action has been sent, wait until the household's notice of
adverse action period expires or until the household requests
a fair hearing, whichever occurs first. If the household
requests a fair hearing and its DABC and/or GA benefits are
continued pending the appeal, the household's food stamp
benefits will be continued at the same basis.
2) If an DABC and/or GA notice of adverse
action is not required, or the household decides not to
request a fair hearing and continuation of its DABC and/or
GA benefits, send the household a Form 105 requesting the
verification needed to determine the household's continued
food stamp eligibility notice of expiration and that it must
reapply if it wishes to continue to participate. Explain to the
household that its certification period will expire at the end
of the month following the month the notice of expiration is
sent and that it must reapply if it wishes to continue to
participate. Explain to the household that its certification
period is expiring because of changes in its circumstances
that may affect its food stamp eligibility and benefit level.
Give the household at least ten (10) days to provide the
necessary verifications. Take the necessary action to adjust
or terminate the food stamps based on the rules regarding
processing reported changes per DSSM 9085.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
Statutory Authority: 7 Delaware Code,
Chapter 70 (7 Del.C. Chp. 70)
Regulations Governing Delaware's Coastal Zone
Prepared by
The Delaware Department of Natural Resources and
Environmental Control
for
The Coastal Zone Industrial Control Board
May 11, 1999
In accordance with the orders of the Superior Court
of the State of Delaware in and for Sussex County, C.A.
No. 99C-05-037 dated August 1, 2001, and the Superior
Court of the State of Delaware in and for New Castle
County, C.A. No. 99C-05-270-CHT, dated August 13,
2001, the Regulations Governing Delaware's Coastal
Zone are amended as follows:
Preamble
These regulations have been developed to accomplish
two key goals. They have been designed to promote
improvement of the environment within the Coastal Zone
while also providing existing and new industries in
Delaware's Coastal Zone with the flexibility necessary to
stay competitive and to prosper - all while adhering to the
edicts and nuances of one of the most original and innovative
environmental and land use statutes in the world.
Delaware's Coastal Zone Act was passed in 1971 and
provides to the Secretary of the Department of Natural
Resources and Environmental Control and the Coastal Zone
Industrial Control Board the authority to promulgate
regulations to carry out the requirements contained within
the Act. For numerous reasons, regulations were never
adopted and implementation of Coastal Zone Act was left to
an undefined and informal process that frustrated industry
and environmentalist alike. That frustration further
polarized the debate over the original intention of the Act
and what the focus of any regulations should be.
Finally, 25 years after passage of the Act, the negative
implications of not having regulations came to outweigh the
contentiousness of the debate. An advisory committee of
dedicated Delawareans was then convened and, after
eighteen months of oftentimes difficult debate, came to
consensus agreement on how to embody the linked goals of
industry flexibility and environmental improvement. The
committee's agreements were memorialized in a
Memorandum of Understanding between all participants.
That MOU was founded on consensus, respect and necessity
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 931
and it was used as a basis for these regulations.
A. Authority
1. These regulations are promulgated pursuant to
authority granted to the Secretary and the State Coastal Zone
Industrial Control Board by Section 7005(b) and (c) of the
Coastal Zone Act, 7 Del. C., Chapter 70.
B. Applicability
1. The Coastal Zone Act program and these
regulations are administered by the Delaware Department of
Natural Resources and Environmental Control pursuant to 7
Del. C. Section 7005(a).
2. These regulations apply to areas within the
Coastal Zone as defined by 7 Del. C. Chapter 70. A map of
the coastal zone appears in Appendix A of these regulations.
3. These regulations specify the permitting
requirements for existing non-confoming uses already in the
coastal zone and for new manufacturing uses proposing to
locate within Delaware's coastal zone.
C. Definitions
Many terms which appear in these regulations are
defined in the Coastal Zone Act as shown in Appendix E.
Terms not defined in the Act shall have the following
meanings:
1. "Administratively Complete" means a coastal
zone permit application or status decision request that is
signed, dated, and contains, in the opinion of the Secretary,
substantive responses to each question, a sufficient offset
proposal, if applicable, and includes the appropriate
application fee and all enclosures the applicant has
referenced in the application.
2. "Board" means the State Coastal Zone
Industrial Control Board.
3. "Bulk Product" means loose masses of cargo
such as oil, grain, gas and minerals, which are typically
stored in the hold of a vessel. Cargoes such as automobiles,
machinery, bags of salt and palletized items that are
individually packaged or contained are not considered bulk
products in the application of this definition.
4. "Certify" means the applicant is attesting, by
affirmation, that all the data and other information in the
application is true and accurate.
5. "Department" means the Delaware Department
of Natural Resources and Environmental Control.
6. "Docking Facility" means any structures and/
or equipment used to temporarily secure a vessel to a
shoreline or another vessel so that materials, cargo, and/or
people may be transferred between the vessel and the shore,
or between two vessels together with associated land,
equipment, and structures so as to allow the receiving,
accumulating, safekeeping, storage, and preparation of
cargoes for further shipment, and administrative
maintenance purposes directly related to such receiving,
accumulating, safekeeping, storage, and preparation of
cargoes for further shipment.
7. "Environmental indicator" means a numerical
parameter which provides scientifically-based information
on important environmental issues, conditions, trends,
influencing factors and their significance regarding
ecosystem health. Indicators inherently are measurable,
quantifiable, meaningful and understandable. They are
sensitive to meaningful differences and trends, collectible
with reasonable cost and effort over long time periods, and
provide early warning of environmental change. They are
selected and used to monitor progress towards
environmental goals.
8. "Footprint" means the geographical extent of
non-conforming uses as they existed on June 28, 1971 as
depicted in Appendix B.
9. "Port of Wilmington" means those lands
contained with the footprint shown in Appendix B of these
regulations.
10. "Potential To Pollute" means the proposed use
has the potential to cause short and long term adverse
impacts on human populations, air and water quality,
wetlands, flora and fauna, or to produce dangerous or
onerous levels of glare, heat, noise, vibration, radiation,
electromagnetic interference and obnoxious odors as
determined in the applicant's Environmental Impact
Statement accompanying the permit application. The
Department will consider mitigating controls and risk
management analysis reports from the applicant in
evaluating a proposed use's potential to pollute. The
Department shall consider probability of equipment failure
or human error, and the existence of backup controls if such
failure or error does occur, in evaluating an applicant's
potential to pollute.
11. "Public Recycling Plant" means any recycling
plant or industrial facility whose primary product is recycled
materials and which is owned and operated by any city,
town, county, district or other political subdivision.
12. "Public Sewage Treatment Plant" means any
device and/or system used in conveyance, storage, treatment,
disposal, recycling and reclamation of municipal sewage or
industrial wastes of a liquid nature, which systems are under
the jurisdiction of a city, town, county, district or other
political subdivision.
13. "Recycle" means the series of activities,
including collection, separation, and processing, by which
products or other materials are recovered from or otherwise
diverted from the solid waste stream for use in the form of
raw materials other than fuel for producing heat or power
combustion.
14. "Research And Development Activity" means
those activities in which research and development
substances are used in quantities that are not greater than
reasonably necessary for the purposes of scientific
experimentation or product or process development. The
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
932 FINAL REGULATIONS
research and development substances must either be the
focus of research and development itself, or be used in the
research and development activity focusing on another
chemical or product. research and development includes
synthesis, analysis, experimentation or research on new or
existing chemicals or products. Research and development
encompasses a wide range of activities which may occur in a
laboratory, pilot plants or commercial plant, for testing the
physical, chemical, production, or performance
characteristics of a substance, conducted under the
supervision of a technically qualified individual. Research
and development is distinct from ongoing commercial
activities which focus on building a market for a product
rather than just testing its market potential. General
distribution of chemical substances or products to consumers
does not constitute research and development.
15. "Secretary" means the Secretary of the
Department of Natural Resources and Environmental
Control.
16. "Vessel" means any ship, boat or other means
of conveyance that can transport goods or materials on, over,
or through water.
17. "Voluntary Improvements" means
improvements, for example, in emissions reductions, habitat
creation and spill prevention -- provided that each is definite
and measurable and which were made by a facility without
any federal or state requirement to do so.
D. Prohibited Uses
The following uses or activities are prohibited in
the Coastal Zone:
1. Heavy industry use of any kind not in operation
on June 28, 1971.
2. Expansion of any non-conforming uses beyond
their footprint(s) as depicted in Appendix B of these
regulations.
3. Offshore gas, liquid, or solid bulk product
transfer facilities which were not in operation on June 28,
1971.
4. The conversion of an existing unregulated,
exempted, or permitted facility to a heavy industry use.
5. Bulk product transfer facilities and pipelines
which serve as bulk transfer facilities that were not in
operation on June 28, 1971.
6. The conversion or use of existing unregulated,
exempt, or permitted docking facilities for the transfer of
bulk products.
7. The construction, establishment, or operation
of offshore gas, liquid, or solid bulk product transfer
facilities which were not in operation on June 28, 1971.
8. Individual pipelines or sets of pipelines which
are not associated with a use that obtains a permit but which
meet the definition of bulk product transfer facilities.
9. Any new tank farm greater than 5 acres in size
not associated with a manufacturing use is prohibited as a
new heavy industry use.
E. Uses Not Regulated
The construction and/or operation of the following
types of facilities and/or activities shall be deemed not to
constitute initiation, expansion or extension of heavy
industry or manufacturing uses under these regulations:
1. The raising of agricultural commodities or
livestock.
2. Warehouses or other storage facilities, not
including tank farms.
3. Tank farms of less than five acres.
4. Parking lots or structures, health care and day
care facilities, maintenance facilities, commercial
establishments not involved in manufacturing, office
buildings, recreational facilities and facilities related to the
management of wildlife.
5. Facilities used in transmitting, distributing,
transforming, switching, and otherwise transporting and
converting electrical energy.
6. Facilities used to generate electric power
directly from solar energy.
7. The repair and maintenance of existing
electrical generating facilities providing such repair or
maintenance does not result in any negative environmental
impacts.
8. Back-up emergency and stand-by source of
power generation to adequately accommodate emergency
industry needs when outside supply fails.
9. The continued repair, maintenance and use of
any non-conforming bulk product transfer facility where that
facility transfers the same products and materials, regardless
of the amount of such products or materials, as those
transferred on June 28, 1971.
10. Bulk product transfer operations at dock
facilities owned by the Diamond State Port Corp. (DSPC), or
acquired by the DSPC at any time in the future, and which
are located within the Port of Wilmington as shown in
Appendix B.
11. Docking facilities used as bulk product transfer
facilities located on privately owned lands within the Port of
Wilmington which have been granted a status decision
extending the bulk product transfer exemption prior to the
effective date of these regulations.
12. Docking facilities which are not used as bulk
product transfer facilities.
13. Any pipeline that originates outside the Coastal
Zone, traverses the Coastal Zone without connecting to a
manufacturing or heavy industry use and terminates outside
the Coastal Zone.
14. Maintenance and repair of existing equipment
and structures.
15. Replacement in-kind of existing equipment or
installation of in-line spares for existing equipment.
16. Installation and modification of pollution
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 933
control and safety equipment for nonconforming uses within
their designated footprint providing such installation and
modification does not result in any negative environmental
impact over and above impacts associated with the present
use.
17. Any facilities which have received, prior to the
promulgation of these regulations, a status decision which
provided an exemption for the activity in question.
18. Research and development activities within
existing research and development facilities.
19. Any other activity which the Secretary
determines, through the status decision process outlined in
Section G of these regulations, is not an expansion or
extension of a non-conforming use or heavy industry use.
[20. Public Sewage Treatment Plants subject to
regulation by the Federal Water Pollution Control Act,
33 U.S.C. § 1251, et.seq. and/or the Delaware
Environmental Protection Act, 7 Del. C., Chapter 60.]
F. Uses Requiring a Permit
The following uses or activities are permissible in
the Coastal Zone by permit. Permits must be obtained prior
to any land disturbing or construction activity.
1. The construction of pipelines or docking
facilities serving as offshore bulk product transfer facilities if
such facilities serve only one on-shore manufacturing or
other facility. To be permissible under these regulations, the
materials transferred through the pipeline or docking
facilities must be used as a raw material in the manufacture
of other products, or must be finished products being
transported for delivery.
[2. Any public sewage treatment plant or public
recycling plant.]
[2. Any recycling plant or sewage treatment
plant not excluded by Section E(20) of the Regulations.]
3. Any new activity, with the exception of those
listed in Section E of these regulations proposed to be
initiated after promulgation of these regulations by an
existing heavy industry or a new or existing manufacturing
facility that may result in any negative impact on the
following factors as found in 7 Del. C., Section 7004 (b):
a) Environmental impact, including but not
limited to, items H.2.a through H.2.j of these regulations.
b) Economic effect, including the number of
jobs created and the income which will be generated by the
wages and salaries of these jobs in relation to the amount of
land required, and the amount of tax revenues potentially
accruing to state and local government.
c) Aesthetic effect, such as impact on scenic
beauty of the surrounding area.
d) Number and type of supporting facilities
required and the impact of such facilities on all factors listed
in this subsection.
e) Effect on neighboring land uses including,
but not limited to, effect on public access to tidal waters,
effect on recreational areas and effect on adjacent residential
and agricultural areas.
f) County and municipal comprehensive plans
for the development and/or conservation of their areas of
jurisdiction.
G. Requests For Status Decisions
1. Any person wishing to initiate a new activity or
facility may request a status decision to determine whether
or not the activity or facility is a heavy industry.
2. A person whose proposed activity is not
exempted as specified in Section E above may request of the
Secretary a status decision to determine whether or not the
proposed activity requires a Coastal Zone permit under the
Act or these regulations.
3. Status decision requests must be in writing on a
form supplied by the Secretary and shall include, at a
minimum, the following:
a) Name, address and contact person for the
activity or facility under consideration.
b) Site of proposed activity marked on a map
or site plan.
c) A detailed description of the proposed
activity under consideration.
d) An impact analysis of the proposed project
on the six (6) criteria contained in Section F.3 (a-f) above.
4. Any new manufacturing facility or research
and development facility proposed to be sited in the Coastal
Zone shall apply for a status decision.
5. The Secretary may, if he has cause to suspect
an activity within the confines of the Coastal Zone is
prohibited or should receive a permit under these
regulations, request of the person undertaking that activity to
apply for a status decision as described in this section.
Failure of the person to respond to the Secretary's request
shall subject said person to enforcement procedures as
contained in the Act and/or Section R of these regulations.
6. Upon receipt of an administratively complete
request for a status decision, the Secretary shall publish a
legal notice as prescribed in Section N of these regulations
advising the public of the receipt of the request and allowing
10 business days for interested persons to review the request
and provide the Secretary with input on whether a permit
should be required of the applicant.
7. The Secretary shall then, within an additional
15 business days, determine whether or not a permit will be
required and notify the applicant in writing of his
determination. The Secretary shall publish that
determination as a legal notice as prescribed in Section N of
these regulations.
H. Permitting Procedures
Application Contents
The applicant shall complete and submit to the
Secretary three (3) identical copies of the Coastal Zone
permit application. The application will be on a form
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
934 FINAL REGULATIONS
supplied by the Secretary and will contain, at a minimum:
a) A certification by the applicant that the
information contained with the application is complete,
accurate and truthful.
b) Evidence of local zoning approval as required
by section 7004 (a) of the Act.
c) An Environmental Permit Application
Background Statement as required under 7 Del. C. Chapter
79, if applicable.
d) An Environmental Impact Statement as
described in Section H.2 of these regulations.
e) A description of the economic effects of the
proposed project, including the number of jobs created and
the income which will be generated by the wages and
salaries of these jobs and the amount of tax revenues
potentially accruing to State and local government.
f) A description of the aesthetic effects of the
proposed project, such as impact on scenic beauty of the
surrounding area.
g) A description of the number and type of
supporting facilities required and the impact of such
facilities on all factors listed in this section.
h) A description of the effect on neighboring land
uses including, but not limited to, effect on public access to
tidal waters, effect on recreational areas and effect on
adjacent residential and agricultural areas.
i) A statement concerning the project or activity's
consistency with county and municipal comprehensive
plans.
j) An offset proposal if required under Section
I.1.a of these regulations.
H.2 Environmental Impact Statement
An environmental impact statement must be
submitted with the Coastal Zone permit application and must
contain, at a minimum, an analysis of the following:
a) Probable air, land and water pollution likely to
be generated by the proposed use under normal operating
conditions as well as during mechanical malfunction and
human error. In addition, the applicant shall provide a
statement concerning whether, in the applicant's opinion, the
project or activity will in any way result in any negative
environmental impact on the Coastal Zone.
b) An assessment of the project's likely impact on
the Coastal Zone environmental goals and indicators, when
available. Coastal Zone environmental goals and indicators
shall be developed by the Department after promulgation of
these regulations and used for assessing applications and
determining the long-term environmental quality of the
Coastal Zone. In the absence of goals and indicators,
applicants must meet all other requirements of this section.
c) Likely destruction of wetlands and flora and
fauna.
d) Impact of site preparation on drainage of the
area in question, especially as it relates to flood control;
e) Impact of site preparation and facility
operations on land erosion;
f) Effect of site preparation and facility operation
on the quality and quantity of surface and ground water
resources,
g) A description of the need for the use of water
for processing, cooling, effluent removal, and other
purposes;
h) The likelihood of generation of glare, heat,
noise, vibration, radiation, electromagnetic interference and/
or obnoxious odors,.
i) The effect of the proposed project on
threatened or endangered species as defined by the
regulations promulgated by the State or pursuant to the
Federal Endangered Species Act, and,
j) The raw materials, intermediate products,
byproducts and final products and their characteristics from
material safety data sheets (MSDS's) if available, including
carcinogenicity, mutagenicity and/or the potential to
contribute to the formation of smog.
H.3 Application Review Process
a) The Department reserves the right to request
further relevant information after receipt of an application
and prior to the application being deemed administratively
complete. The Secretary shall notify the applicant by
certified mail when the application is deemed
administratively complete.
b) In assessing an application, the Secretary shall
consider how the proposed project will affect the six criteria
cited in the Act, including direct and cumulative
environmental impacts, economic effects, aesthetic effects,
number and type of supporting facilities and their anticipated
impacts on these criteria, effect on neighboring land uses,
and compatibility with county and municipal comprehensive
plans.
c) The Secretary shall also consider any impacts
the proposed activity may have on the Department's
environmental goals for the Coastal Zone and the
environmental indicators used to assess long-term
environmental quality within the zone.
d) Prior to public hearing, the Secretary shall
provide a written assessment of the project's likely impact on
the six criteria listed in Section H.1 above and make
available the preliminary determination of the sufficiency of
the offset project as required in Section I of these
regulations. The Secretary's report will be provided to the
applicant and interested citizens prior to the public hearing
and made a part of the record.
e) Upon receipt of an administratively complete
application and completion of the Secretary's assessment as
required in Section H.3.d above, the Secretary shall issue a
public notice as prescribed in Section N of these regulations
and hold a public hearing in accordance with hearing
procedures described in Section O of these regulations.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 935
f) Within 90 days of receipt of an
administratively complete application, not counting the day
the application became administratively complete, the
Secretary shall reply to the request for a Coastal Zone act
permit either granting the permit, denying the permit or
granting the permit but with special conditions. The
Secretary shall state the reasons for his decision.
g) The permit decision shall be sent to the
applicant by certified mail and shall be noticed as prescribed
in Section N of these regulations. If no appeal is received
within the 14-day appeal period following the date of
publication of the legal notice, the decision becomes final
and no appeal will be accepted.
I. Offset proposals
Offset Proposal Requirements
a) Any application for a Coastal Zone permit for
an activity or facility that will result in any negative
environmental impact shall contain an offset proposal.
Offset proposals must more than offset the negative
environmental impacts associated with the proposed project
or activity requiring a permit. It is the responsibility of the
applicant to choose an offset project that is clearly and
demonstrably more beneficial to the environment in the
Coastal Zone than the harm done by the negative
environmental impacts associated with the permitting
activities themselves.
b) All applicants, are required to more than offset
the negative impacts of the project or activity that is the
subject of the application for a Coastal Zone permit.
Applicants who have undertaken past voluntary
improvements may be required to provide less of an offset
than applicants without a similar record of past
achievements.
c) The Secretary shall give preference to offset
projects that are within the Coastal Zone, that occur in the
same environmental medium as the source of degradation of
the environment, that occur at the same site as the proposed
activity requiring a permit and that occur simultaneously
with the implementation of the proposed activity needing an
offset.
d) Offset proposals should be well-defined and
contain measurable goals or accomplishments which can be
audited by the Department.
e) Within 30 days of receipt of an application, the
Secretary shall make a preliminary determination as to
whether the proposed offset commitment is sufficient. If the
offset commitment is deemed not to be sufficient, the
applicant will be informed that his application is not
administratively complete and the Secretary shall request
another offset proposal.
f) Where an offset project in itself requires one
or more permits from a program or programs within
DNREC, the Secretary shall issue the Coastal Zone Permit
only after all applicable permit applications for offsetting
projects have been received and deemed administratively
complete by DNREC.
I.2 Offset Proposal Contents
The applicant may provide whatever materials or
evidence deemed appropriate in order to furnish the
Secretary with the information necessary for him to
determine the adequacy of the offset proposal. The applicant
must provide, at a minimum, the following information:
a) A qualitative and quantitative description of
how the offset project will more than offset the negative
impacts from the proposed project as provided by the
applicant pursuant to Section H.2.a of these regulations.
b) How the offset project will be carried out and
in what period of time.
c) What the environmental benefits will be and
when they will be achieved.
d) How the offset will impact the attainment of
the Department's environmental goals for the Coastal Zone
and the environmental indicators used to assess long-term
environmental quality within the zone.
e) What, if any, negative impacts are associated
with the offset project.
f) What scientific evidence there is concerning
the efficacy of the offset project in producing its intended
results.
g) How the success or failure of the offset project
will be measured in the short and long term.
I.3 Enforcement Of Offset Proposals
a) Coastal Zone permits shall be approved
contingent upon the applicant carrying out the proposed
offset in accordance with an agreed upon schedule for
completion of the offset project. Said schedule will be
included in the Coastal Zone permit as an enforceable
condition of the permit.
b) Should a Coastal Zone permit applicant fail to
receive, within 180 days of issuance of the Coastal Zone
permit, any and all permits required to undertake an offset
project, the applicant, except for good cause shown by the
applicant for additional time, will be required to submit an
entirely new application for the activity, including all
submissions listed in Section H above, additional permit fees
and a new proposed offset project.
J. Withdrawal Of and Revisions To Applications
1. An applicant may withdraw his request for a
status decision or Coastal Zone permit at any time by
submitting a written request, signed by the original
applicant, to the Secretary. The Secretary shall provide
public notice of the applicant's withdrawal request and the
Secretary's action on the request for withdrawal. In the case
of such withdrawal there shall be no refund of the
application fee paid. Once publicly noticed, the decision is
final and cannot be reversed by the applicant or the
Secretary.
2. Once public notice announcing a public
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
936 FINAL REGULATIONS
hearing is advertised according to Section N of these
regulations, no revisions to any application will be permitted
beyond those allowed in Section J.3 below. In the event an
applicant finds cause to make substantive revisions to an
application after publication of the notice, the applicant will
be required to submit a new application, including an
additional application fee, an offset project and any other
required application submissions as specified under Section
H of these regulations.
3. A new application is not required for changes
which can be incorporated into the original application
where such changes will not significantly affect the nature of
the project first proposed and which will not significantly
increase the Department's review and evaluation of the
application originally submitted. Such changes must be
submitted in writing prior to publication of the legal notice
announcing the public hearing.
4. If the Secretary receives information which he
believes may significantly alter the scope of the project, he
may require the applicant to submit a new application to
reflect the altered nature of the project.
K. Permit Transfers
1. Coastal Zone permits may be transferred in
cases of real estate transfer, corporate mergers and
acquisitions or other actions whereby ownership of the
activity or facility changes. Permit transfers shall require a
written request of the Secretary and shall be processed
within 60 days of receipt of a request for transfer.
L. Abandoned Uses
1. Any existing facility which is determined to be
abandoned shall not be reinstated except as otherwise
provided in the Act.
2. Involuntary shutdown of a facility shall not be
deemed abandonment or a loss of the facility's nonconforming
use status if the Secretary can determine that the
owner had no intention to abandon the use.
3. In determining whether or not the cessation of
the use is temporary or an abandonment, factors such as, but
not limited to, status of environmental permits and/or
business licenses, maintenance of machinery and structures,
owner presence and involvement to some degree in
reinstating the use, and the duration of cessation shall be
considered.
4. When, after investigation, the Secretary makes
a preliminary determination that an existing use may be
abandoned, he shall notify the owner/operator in writing, by
registered mail, that he intends to declare the use
abandoned. The owner/operator shall have sixty days from
the receipt of said notice to demonstrate that there is or was
no intention to abandon the use and when operation of the
use will resume.
5. Within 120 days from the date of receipt by the
owner/operator of the notice of abandonment, the Secretary
shall render a decision of abandonment of the facility taking
into consideration the response, if any, received from the
owner/operator and shall give reasons therefore.
6. The Secretary shall issue a public notice of the
decision, which decision may be appealed in accordance
with the provisions of Section P of these regulations and 7
Del C. Section 7007.
M. Public Information
1. All correspondence, permit applications, offset
proposals and any other supporting materials submitted by
applicants or materials prepared by DNREC are subject to
Delaware's Freedom of Information Act (29 Del C., Chapter
100) and the Department's FOIA policy.
N. Public Notification
1. At a minimum, the Secretary shall notify the
public by legal notice when the following events occur:
a) The receipt of a request for status decision.
b) The decision by the Secretary of a status
decision request.
c) The decision by the Secretary to consider a
facility/use as abandoned.
d) The receipt of an application for a Coastal
Zone Permit.
e) The scheduling of all public hearings.
f) The decision on all permit applications.
g) The withdrawal of an application by the
applicant.
h) The receipt of a request for a permit
transfer as specified in Section K.1.
2. All legal notices shall appear in one newspaper
of statewide circulation and a second newspaper of local
circulation in the county in which the proposed project is
located. The Secretary will make every effort to publish
legal notices on either Wednesdays or Sundays but may
publish on other days when schedules require more
expeditious handling of legal notices.
3. The Secretary shall also maintain a direct mail
program whereby interested citizens may subscribe, free of
charge, to a service where copies of all legal notices will be
mailed directly to citizens. The Secretary shall advertise this
service on an annual basis and renew subscriptions from
interested citizens as requested. Failure of the Secretary to
mail notices in a timely and accurate fashion shall not be
cause for appeal of any action or decision of the Secretary.
O. Public Hearings
1. All public hearings shall be held in the county
in which the proposed project is to be located and within a
reasonable proximity to the proposed project site.
2. The date, location, time and a brief description
of the project shall be published at least twenty (20) days
prior to the date of the hearing. A copy of the hearing notice
shall be mailed to the applicant.
3. A written transcript of the hearing shall be
made for the Department.
4. All hearings shall be conducted in accordance
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 937
with the Delaware Administrative Procedures Act (29 Del.
C. Chapter 101).
P. Appeals
P.1 Appeals of Decisions of the Secretary
a) Any person aggrieved by any permit or other
decision of the Secretary under the Act may appeal same
under Section 7007 of the Act and this section of the
regulations.
b) Receipt of an appeal does not serve to stay the
activity or approval in question.
c) Applicants must file notice of appeal with the
Board within 14 days following announcement by the
Secretary of his decision. The day after the date of the
announcement shall be considered the beginning date of the
14-day appeal period.
d) The date at which a notice of appeal is
considered to have been filed shall be the date the Board
receives the notice of appeal at the Dover Office of the
Secretary of DNREC, 89 Kings Highway, Dover, Delaware,
19901. Should the end date of the 14-day filing period fall
on a Saturday, Sunday, or legal holiday, the ending date of
the appeal period shall be 4:30 p.m. of the next working day.
e) It is the responsibility of the applicant to insure
that the appeal is received at the Secretary's office within the
appeal period.
f) If no appeal is received within 14 days
following the date of the publication of the legal notice, the
decision becomes final and no appeal will be accepted.
P.2 Procedures for Appeals Before the Coastal Zone
Industrial Control Board
a) A majority of the total membership of the
Board less those disqualifying themselves shall constitute a
quorum. A majority of the total membership of the Board
shall be necessary to make a final decision on an appeal of a
status decision or permit request.
b) The Board shall publish a notice of the hearing
as prescribed in 29 Del C. Chapter 101, Section 10122 at
least 20 days prior to the hearing.
c) The Board must process and rule on the appeal
in accordance with 29 Del C., Chapter 101, Subchapter III.
P.3 Appeals of Decisions of the Coastal Zone
Industrial Control Board
a) Any person aggrieved by a final order of the
Board as provided for in 29 Del C., Subsection 10128, may
appeal the Board's decision to Superior Court in accordance
with 29 Del C Subsection 10142. The Secretary may also
appeal any decision of the Board as any other appellant.
b) The appeal shall be filed within 30 days of the
day the notice of decision is mailed.
c) Appeals to Superior Court shall be carried out
as specified in 29 Del. C., Chapter 101.
Q. Fees
1. The Secretary shall charge an application fee
for Coastal Zone status decisions and permits as found in the
Department's fee schedule as approved by the General
Assembly.
2. Interested parties shall be entitled, at no charge,
to copies of Coastal Zone Act status decisions and permit
applications, provided such applications are not
unreasonably bulky.
3. The applicant shall bear the costs of all public
hearing notices, and the preparation of public hearing
transcripts for the Department in addition to the application
fee charged by the Department. Anyone desiring a typed
transcript of the hearing must acquire their copy directly
from the court reporter.
R. Enforcement
1. In cases of non-compliance with these
regulations or the provisions of 7 Del. C. Chapter 70, the
Secretary may revoke any permit issued pursuant to these
regulations or exercise other enforcement authorities
provided for in the Act.
2. If an applicant fails to carry out any offset
project in accordance with the schedule outlined in their
permit, the Secretary may take any enforcement action he
deems appropriate, including revocation of the Coastal Zone
permit.
S. Severability
1. If, at any time, provisions within these
regulations relating to Sections E and I are invalidated by a
court of law, the entire regulation shall become null and
void with the exception of the footprints for non-conforming
uses shown in Appendix B and the public notice provisions
of Section N of these regulations.
2. If, at any time, provisions other than those
relating to requirements in Sections E and I are invalidated
by a court of law, then only those particular provisions will
become null and void and all other provisions will remain
operational.
Appendix A
Map of the Coastal Zone
*PLEASE CONTACT THE DEPARTMENT OF NATURAL
RESOURCES AND ENVIRONMENTAL CONTROL FOR A COPY
OF THIS DOCUMENT.
Appendix B
Footprints of Nonconforming Uses
*PLEASE CONTACT THE DEPARTMENT OF NATURAL
RESOURCES AND ENVIRONMENTAL CONTROL FOR A COPY
OF THIS DOCUMENT.
APPENDIX C
DNREC Guidance For Implementation and
Interpretation of the Regulations Governing Delaware's
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
938 FINAL REGULATIONS
Coastal Zone
A. Introduction
1. These regulations are built around two linked
goals as developed by Governor Carper's Coastal Zone
Regulatory Advisory Committee. This committee met in
late 1996, through 1997 and culminated their work in early
1998 with signing of the Memorandum of Understanding
that formed the basis for these regulations . These
regulations are designed to ensure environmental
improvement in the Coastal Zone while at the same time
providing industry with the needed flexibility to remain
competitive in a global marketplace.
2. In order to meet these two goals, a regulatory
process comprised of regulatory exemptions, permitting
requirements and offset provisions has been developed. This
regulatory process has been designed so that each
nonconforming use and new manufacturing uses can add
new products, change existing products, increase production
capacity, add new processes and modify existing processes
or do any other activity so long as these activities are: 1)
undertaken in a way that assures environmental
improvement in the Coastal Zone; and 2) undertaken in such
a way that they meet the six criteria outlined in the Coastal
Zone Act.
3. For a more thorough explanation of the
deliberations of the Advisory Committee and the foundation
upon which these regulations are built, the reader is referred
to the final Memorandum of Understanding dated March 19,
1998, and which is available in the offices of the Department
at 89 Kings Highway, Dover, Delaware.
4. The following guidance is made available to
interested citizens and applicants to better understand how
these regulations will be interpreted and implemented by the
Department. This guidance is, however, not a regulation and
does not have the force of law. In the event of a conflict
between this guidance and the regulations, the regulations
will prevail.
B. Guidance in determining whether a permit is required
1. When a business wants to conduct an activity
that may be one of the activities exempted from the
permitting process as outlined in Section E, but the business
is unsure of its determination, then the company may choose
to seek a status decision from the Secretary rather than
proceeding with filing a Coastal Zone permit application.
2. The Advisory Committee recommended that
DNREC establish a tiered system of Coastal Zone Act
permitting and emphasized that such a system would
promote efficiency to the permitting process by tailoring the
extent of regulatory review to the expected impacts of the
proposed project. Under the tiered approach outlined in the
MOU, an industry would have been required to obtain a
Coastal Zone Act permit only in those instances when a
proposed new manufacturing facility, or a change in the
operations of a heavy industrial or manufacturing facility,
may have a negative impact on one or more of the six
criteria cited in the Act .
3. These regulations have maintained that
provision, however, they have removed the concept of a
tiered system and in its place created essentially two levels
of review. The first are activities that are clearly exempted
from regulation because they have no environmental
consequence, they are exempted in the Act or they were seen
by the advisory committee to be activities that simply
shouldn't require a permit. The second level is the full
Coastal Zone act permit where any negative impact on the
six criteria will trigger the permit requirement. In cases
where the applicant is unsure of the impact or how their
activity will be viewed by the Department, they may apply
for what has historically been - and will continue to be --
called the "status decision".
C. Environmental Goals and Indicators
1. DNREC will develop within 12 months of the
ratification of the Coastal Zone Act MOU, a set of Coastal
Zone environmental goals and appropriate environmental
indicators which will highlight the most significant
environmental challenges to the Coastal Zone. The
indicators will serve several important purposes. First, they
will assist DNREC in developing a more accurate picture of
the environmental quality of the Coastal Zone, and
measuring trends in this quality over time. Second, they will
assist DNREC and project applicants by providing a means
for evaluating the potential impacts of proposed changes in
facility operations and proposed offsets on the Coastal Zone
environment.
2. DNREC is responsible for defining,
prioritizing, and making a matter of public record the set of
goals and indicators for assessing the environmental quality
in the Coastal Zone. Once goals for Coastal Zone have been
established, DNREC will select a detailed set of indicators
for use in assessing the quality of the environment as
measured against those goals, and to monitor progress over
time.
3. DNREC will periodically review and reissue
the Coastal Zone environmental indicators (perhaps biannually).
As conditions in the Coastal Zone change, and
scientific methods for tracking and analyzing these changes
evolve, it may be necessary to add or change some
indicators, or drop others. It may also be necessary to
reprioritize them as some parameters of environmental
health improve and others decline. DNREC's periodic
review of the indicators will allow for these kinds of
adjustments to be made.
4. DNREC's process for developing and
prioritizing the indicators will include opportunities for
formal public review and comment. To ensure that the
public has opportunities to provide input into the
development and any subsequent revision of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 939
environmental indicators, the Advisory Committee
recommended that DNREC establish an Environmental
Indicator Technical Advisory Committee (EITAC).
5. A substantial proportion of the members of the
EITAC should be technical experts. The Committee should
also include representatives of various stakeholder groups,
for example, heavy industry and manufacturing in the
Coastal Zone, industry outside the Coastal Zone, agricultural
interests, environmental advocacy groups and labor. EITAC
meetings should be public and any reports generated by the
Committee should be made available to the public.
D. Principles for Assessing an Application
1. Any negative environmental impact associated
with a proposed project will have to be more than offset, thus
assuring continuing improvement in the Coastal Zone
environment. The Secretary will only grant Coastal Zone
permits in those cases where the overall environmental
impacts of the total application, both positive and negative,
assure improvement in the quality of the environment in the
Coastal Zone.
2. Therefore, activities proposed for a Coastal
Zone permit which would measurably increase air
emissions, water discharges, or would cause negative
impacts on the Coastal Zone environment, shall include
provisions for net environmental improvement of the Coastal
Zone environment. These environmental improvements
may be part of the permitted activity itself or realized
through an enforceable offset proposal that will be
implemented by a date agreed to by the company and
DNREC.
3. DNREC will develop within 12 months of the
ratification of the Coastal Zone Act MOU, a set of Coastal
Zone environmental goals and appropriate environmental
indicators which will highlight the most significant
environmental challenges to the Coastal Zone. These
indicators will be " prioritized" in accordance with their
significance to achieving the Coastal Zone environmental
goals. These prioritized indicators will provide Coastal
Zone permit applicants a good idea of which types of future
offset investments will yield the greatest environmental
benefit and will allow a determination of which investments
are most cost-effective. These indicators should also provide
the rational basis for permit decisions that involve offset
proposals.
E. Evaluation of Offset Proposals
1. Although offsets within the Coastal Zone, in
the same environmental medium and at the same site are
preferred, there will be circumstances when offsets outside
the Coastal Zone, in other media, or at another site within the
zone provide greater environmental benefit or otherwise
make sense, and will be considered by the Secretary.
2. While it is the applicant's responsibility to fully
describe an offset proposal in the Environmental Impact
Statement, it is the Secretary's responsibility to carefully
assess whether the applicant's offset proposal will more than
offset negative impacts of the project, and thus ensure
environmental improvement in the Coastal Zone.
3. The Secretary shall make decisions on
applicants' status decision requests and environmental
impact assessments, in writing, based on all of the expected
environmental impacts of the total project on the health of
the Coastal Zone, including both positive and negative
impacts. Impacts may be related to air and water emissions,
or they may be related to other factors such as the viability of
wildlife habitat, the protection of wetlands, or the creation or
preservation of open space. The Secretary will develop and
use a set of prioritized environmental indicators as a tool for
assisting these determinations as discussed elsewhere in this
guidance.
4. The Secretary shall consider likely cumulative
impacts of proposed activities on the environment and the
relevant environmental indicators. The Secretary shall also
give consideration to the potential for negative cumulative
impacts in situations where cross-media offsets are
proposed.
5. In addition, the Secretary will give more
weight to offset proposals that: 1) have established track
records and are likely to succeed from a technical standpoint;
and 2) will produce beneficial effects that are verifiable.
6. If an applicant includes in its permit
application evidence of past voluntary environmental
improvements and/or investments made prior to the time of
application, DNREC will consider this history of
environmental performance in determining the magnitude of
the required offsets for the proposed project (with the
understanding that the total project must assure
improvement in the quality of the environment in the Coastal
Zone).
7. The Secretary will also consider the applicant's
ability to carry out such improvements as evidenced by its
compliance history. Compliance with environmental
standards and enforcement histories of facilities is not in
itself a factor in determining the required magnitude of the
potential offset project, but will be used by DNREC in
gauging the applicant's ability to carry out the offset project
with a minimum of supervision.
8. All offset projects must be incorporated into
the Coastal Zone permit as an enforceable condition of the
permit. Since some of the benefits of "flexibility" are
achieved immediately upon issuance of a permit (i.e.
permission to proceed), and most benefits of "environmental
improvement" are achieved over time, the permit itself must
include well-defined and measurable commitments or
accomplishments which are independently auditable by the
Department, and available to the public via the Freedom of
Information Act (FOIA). DNREC will also include
inspection, reporting and/or notification obligations in the
permit depending on the company's compliance record and
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
940 FINAL REGULATIONS
the nature of the offset project.
9. In cases where an applicant fails to receive all
required offset permits within 180 days and must therefore
show good cause why a new permit application should not
be required, good cause shall mean, but not be limited to,
delays on the part of DNREC or other permitting authorities
that could otherwise not have been expected and are
considered by the Secretary to be extraordinary.
F. Guidance regarding activities within the Port Of
Wilmington
1. All proposed manufacturing uses within the
footprint of the Port of Wilmington are not in any way
exempted from permitting requirements and must apply for
and be issued a Coastal Zone Act permit if otherwise
applicable.
2. Proposed uses within the Port of Wilmington
which constitute heavy industry uses are prohibited.
3. The regulations do not prohibit or restrict
activities involving containerized, palletized, or otherwise
confined materials at any location within the Diamond State
Port Corp. Bulk products, once off-loaded within the
designated area, may be stored, transported, or otherwise
used throughout the Port, subject to all other appropriate
local, state and federal statutory and regulatory provisions.
4. The MOU negotiated by the Advisory
Committee goes to some length to define the area that is the
Port of Wilmington, some of which area is actually owned
by the Diamond State Port Corporation. Regardless of the
definition of the Port, it is nonetheless the equivalent of a
"footprint" as that term is used to define other areas of
industrial activity within the Zone. Therefore the definition
of the Port as negotiated in the MOU is not repeated within
the definitions section of these regulations but is rather
transformed into a map or footprint similar to the other nonconforming
industrial uses found in Appendix B of the
regulation.
5. The current boundary of the Port of
Wilmington is the area beginning at the intersection of the
right of way of US Route I-495 and the southern shore of the
Christina River; thence southward along said I-495 right of
way until the said I-495 right-of-way intersects the Reading
Railroad Delaware River Extension; thence southeast along
the said Reading Railroad Delaware River Extension to its
point of intersection with the Conrail Railroad New Castle
cutoff; thence southward along the Conrail Railroad New
Castle cutoff until it intersects the right of way of U.S. Route
I-295; thence eastward along said I-295 right of way until the
said I-295 right of way intersects the western shore of the
Delaware River; thence northward along the western shore
of the Delaware River as it exists now to the confluence of
the Christina and Delaware Rivers; thence westward along
the southern shore of the Christina River to the beginning
point of the intersection of the said I-495 right of way and
the Southern shore of the Christina River.
G. Coastal Zone Report
1. To ensure that the public is kept fully informed
about the regulatory process under the Coastal Zone Act and
about the quality of the Coastal Zone generally, the Secretary
will issue a report twelve months after the regulations are
promulgated, and every twenty-four months thereafter. The
report will include:
a) A description of progress towards
environmental goals developed by DNREC for the Coastal
Zone;
b) Information on the general trends in the
environmental indicators, in the form of narrative text as
well as charts and graphs that will be easily understandable
to a lay reader;
c) A list of permits issued, a brief description
of the status of activities under those permits, and a review
of selected existing permits and actual versus projected
environmental benefits; and
d) A description of the cumulative impacts of
permitted activities on the environmental indicators.
Appendix D
Permitting Flow chart
*PLEASE CONTACT THE DEPARTMENT OF NATURAL
RESOURCES AND ENVIRONMENTAL CONTROL FOR A COPY
OF THIS DOCUMENT.
Appendix E
Delaware's Coastal Zone Act
*PLEASE CONTACT THE DEPARTMENT OF NATURAL
RESOURCES AND ENVIRONMENTAL CONTROL FOR A COPY
OF THIS DOCUMENT.
DIVISION OF AIR & WASTE MANAGEMENT
AIR QUALITY MANAGEMENT SECTION
Statutory Authority: 7 Delaware Code,
Chapter 60 (7 Del.C. Ch. 60)
Secretary's Order No.: 2001-A-0030
Amendments to Low Enhanced Inspection and
Maintenance
Program (Regulation No. 31)
State Implementation Plan Revision
Date of Issuance: September 4, 2001
Effective Date of the Amendment: October 11. 2001
I.Background
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 941
On Wednesday, July 25, 2001, a public hearing was held
in the DNREC Auditorium in Dover to receive comment on
proposed amendments to Regulation 31 of the Regulations
Governing the Control of Air Pollution. These provisions
involve minor revisions to Delaware's Vehicle Inspection
and Maintenance Program, in an attempt to add some
technical clarifications to previous amendments, to reflect
inspector disciplinary rules that will be covered under State
Merit Rules, and to add onboard diagnostics checks as a
replacement for tail pipe test, pressure test, and emission
control system check for light duty 1996 model year and
newer vehicles. Written comments were received from
Judith Katz, Director of the Air Protection Division, Region
3 of the Environmental Protection Agency (EPA), from
Stephen B. McDonald, Director, Government Affairs of the
Specialty Equipment Market Association (SEMA), and from
Mr. Wallace L. Kremer (a concerned member of the public),
all of which will be addressed below. AQM responded to
these comments in three separate memoranda to the Hearing
Officer, dated August 2, 2001. Proper notice of the hearing
was provided as required by law.
After the hearing, the Department performed an
evaluation of the evidence entered into the record in this
matter. Thereafter, the Hearing Officer prepared his report
and recommendation in the form of a Hearing Officer's
Report to the Secretary dated August 28, 2001, and that
memorandum is expressly incorporated herein by reference.
II. Findings and Conclusions
On the basis of the record developed in this matter, it
appears that AQM has provided a sound basis for the
proposed amendments to Regulation No. 31, including
reasoned responses to the various comments and has, where
necessary, proposed minor changes to satisfy EPA concerns.
In addition, the record will show that the following findings
have been made:
1. Proper notice of the hearing was provided as
required by law.
2. AQM will make minor changes to the Regulation to
provide a description of what information the vehicle
inspection report will provide, which will reflect EPA's
comments in this matter.
3. AQM will insert a note into Appendix 6(a)(9)
confirming that the list of readiness code exceptions
included will be updated periodically. Furthermore, the
aforementioned model and model year vehicle readiness
exceptions that EPA indicated were not in the existing
Appendix will be added. These actions are sufficient to
address EPA questions on those issues.
4. AQM's rationale with respect to rejecting SEMA's
suggestion to revise the proposed language to only fail
vehicles if after-market device(s) cannot be removed to
allow the test plug to be inserted is well founded, and does
not operate unfairly for reasons set forth in AQM's response
on this issue.
III. Order
It is hereby ordered that the proposed amendments to
Regulation No. 31, including those revisions suggested by
AQM, be promulgated in final form in accordance with the
customary statutory procedure.
IV. Reasons
These amendments will update and provide technical
clarification of the Department's existing I & M program
with minor changes, and will reflect inspector disciplinary
rules that will be covered under State Merit Rules, in
furtherance of the policy and purposes of 7 Del. C., Ch. 60.
Nicholas A. DiPasquale
Secretary
Low enhanced Inspection and Maintenance Program
Regulation No. 31
Section 1 - Applicability.
(a) This program shall be known as the "Low enhanced
Inspection and Maintenance Program" or "LEIM Program",
and shall be identified as such in the balance of this
regulation.
(b) This regulation shall apply to New Castle and Kent
Counties.
(c) This regulation shall apply to all vehicles registered
in the following postal ZIP codes:
19701 19702 19703 19706 19707 19708 19709
19710 19711 19712 19713 19714 19715 19716
19717 19718 19720 19730 19731 19732 19733
19734 19735 19936 19703 19938 19800 19801
19802 19803 19804 19805 19806 19807 19808
19809 19810 19850 19890 19894 19896 19897
19898 19899 19901 19902 19903 19904 19934
19936 19938 19942 19943 19946 19952 19953
19954 19955 19961 19962 19963* 19964 19977
19979 19980
* Note: If vehicles registered in Sussex County and with this
ZIP code, this regulation is not applicable.
(d) The legal authority for implementation of the LEIM
Program is contained in 7 Del.C. Chapter 60, '6010(a).
Appendix 1 (d) contains the letter from the State of
Delaware, Secretary of the Department to EPA Regional
Administrator, W. Michael McCabe committing to continue
the I/M program through the enforcement of this regulation
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
942 FINAL REGULATIONS
out to the attainment year and remain in effect until the
applicable area is re-designated to attainment status and a
Maintenance Plan is approved by the EPA. 7 Del. C.
Chapter 60, '6010(a) does not have a sunset date.
(e) Requirements after attainment.
This LEIM program shall remain in effect if the
area is re-designated to attainment status, until approval of a
Maintenance Plan, under Section 175A of the Clean Air Act,
which demonstrates that the area can maintain the relevant
standard for the maintenance period (10 years) without
benefit of the emission reductions attributable to the
continuation of the LEIM program.
(f) Definitions
Alternative Fuel Vehicle: Any vehicle capable of
operating on one or more fuels, none of which are gasoline,
and which is subject to emission testing to the same
stringency as a similar gasoline fueled vehicle.
Certified Repair Technician: Automotive repair
technician certified jointly by the College (or other training
agencies or training companies approved by the Department)
and the Department of Natural Resources and Environmental
Control and the Division of MotorVehicles as having passed
a recognized course in emission repair. (See Appendix 7 (a))
Certified Manufacturer Repair Technician:
Automotive repair technician certified by the Department of
Natural Resources and Environmental Control and the
Division of Motor Vehicles, as trained in doing emission
repairs on vehicles of a specific manufacturer. (See
Appendix 7 (a))
College: The Delaware Technical and Community
College
Compliance Rate: The percentage of vehicles out of
the total number required to be inspected in any given year
that have completed the inspection process to the point of
receiving a final certificate of compliance or a waiver.
Director: The Director of the Division of Motor
Vehicles in the Department of Public Safety.
Division: The Division of Motor Vehicles in the
Department of Public Safety of the State of Delaware.
Department: The Department of Natural Resources
and Environmental Control of the State of Delaware.
Emissions: Products of combustion and fuel
evaporation discharged into the atmosphere from the
tailpipe, fuel system or any emission control component of a
motor vehicle.
Emissions Inspection Area: The emissions inspection
area shall constitute the entire counties of New Castle and
Kent.
Emissions Standard(s): The maximum concentration
of hydrocarbons (HC), carbon monoxide (CO) or oxides of
nitrogen (NOX), or any combination thereof, allowed in the
emissions from a motor vehicle as established by the
Secretary, as described in this regulation.
Failed Motor Vehicle: Any motor vehicle which does
not comply with applicable exhaust emission standards,
evaporative system function check requirements and
emission control device inspection requirements during the
initial test or any retest.
Flexible Fuel Vehicle: Any vehicle capable of
operating on more than one fuel type, one of which includes
gasoline, which must be tested to program standards for
gasoline. This is in contrast to alternative fuel vehicles.
Going Concern: An individual or business with a
primary, full time interest in the repair of motor vehicles.
GPM: Grams per mile (grams of emissions per mile of
travel).
Manufacturer's Gross Vehicle Weight: The vehicle
gross weight as designated by the manufacturer as the total
weight of the vehicle and its maximum allowable load.
Model Year: The year of manufacture of a vehicle as
designated by the manufacturer, or the model year
designation assigned by the Division to a vehicle constructed
by other than the original manufacturer.
Motor Vehicle: Includes every vehicle, as defined in 21
Del. Code, Section 101, which is self-propelled, except farm
tractors, off-highway vehicles, motorcycles and mopeds.
Motor Vehicle Technician: A person who has
completed an approved emissions inspection equipment
training program and is employed or under contract with the
State of Delaware.
New Model Year Clean Screen Exemption: An
exemption from the exhaust emissions test and the
evaporative system integrity (pressure) test except for the
gas cap test on the eight newest model years. This
exemption will only apply during periods of long wait times
at the inspection facilities.
New Model Year Exemption: An exemption of a
designated new model year of an applicable vehicle from
any or all of the requirements in this regulation. The
exemption shall begin on the first day of October of the
calendar year, which will be the anniversary date for
calculating the applicability of a vehicle for a new model
year exemption. For example, a 1997 model year vehicle
titled in Delaware in August of 1996 will have an
anniversary date of October 1, 1996 and thus does not lose
its five model year exemption status until October 1, 2001.
New Motor Vehicle: A motor vehicle of the current or
preceding model year that has never been previously titled or
registered in this or any other jurisdiction and whose
ownership document remains as a manufacturer's certificate
of origin, unregistered vehicle title.
Onboard Diagnostics (OBD): A system of vehicle
component and condition monitors controlled by a central,
onboard computer designed to signal the motorist when
conditions exist which could lead to a vehicle's exceeding its
certification standards by 1.5 times the standard.
Official Inspection Station: All official MotorVehicle
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 943
Inspection Stations located in New Castle and Kent counties,
operated by, or under the auspices of, the Division.
Operator: An employee or contractor of the State of
Delaware performing any function related to motor vehicle
inspections in the State.
Performance Standard: The complete matrix of
emission factors derived from the analysis of the model
program as defined in 40 CFR Part 51 Subpart S, by using
EPA's computerized Mobile5a emission factor model. This
matrix of emission factors is dependent upon various speeds,
pollutants and evaluation years.
PFI: The Plan for Implementation of Regulation No.
31, which can be also considered to be the technical support
document for that regulation.
Reasonable Cost: The actual cost of parts and labor
which is necessary to cause the failed motor vehicle to
comply with applicable emissions standards or which
contributes towards compliance. It shall not include the cost
of those repairs determined by the Division to be necessary
due to the alteration or removal of any part of the emission
control system of the motor vehicle, or due to any damage
resulting from the use of improper fuel in the failed motor
vehicle.
Registration Fraud: Any attempt by a vehicle owner or
operator to circumvent the requirements to properly and
legally register any motor vehicle in the State of Delaware.
Secretary: The Secretary of the Department of Natural
Resources and Environmental Control.
Stringency Rate: The tailpipe emission test failure rate
expected in an I/M program among pre-1981 model year
passenger cars or pre-1984 light-duty trucks.
Vehicle Type: EPA classification of motor vehicles by
weight class which includes the terms light duty and heavy
duty vehicle.
Waiver: An exemption issued to a motor vehicle that
cannot comply with the applicable exhaust emissions
standard and cannot be repaired for a reasonable cost.
Waiver Rate: The number of vehicles receiving
waivers expressed as a percentage of vehicles failing the
initial exhaust emission test.
Section 2 -Low Enhanced I/M Performance Standard.
(a) On-road testing:
The performance standard shall include on-road
testing of at least 0.5% of the subject vehicle population, or
20,000 vehicles whichever is less, as a supplement to the
periodic inspection required in paragraph (a) of Section 3.
The requirements are contained in Section 12 of this
regulation.
(b) (Reserved) On-Board Diagnostics (OBD).
The performance standard shall include inspection
of all 1996 and newer light-duty vehicles and light- duty
trucks equipped with certified on-board diagnostic systems
with the exception of the five most recent model years, and
repair of malfunctions or system deterioration identified by
or affecting OBD systems. (see Section 6)
Section 3 - Network Type And Program Evaluation.
(a) The LEIM Program shall be a test-only, centralized
system operated in New Castle and
Kent Counties by the State of Delaware's Division of Motor
Vehicles.
(1) Network type: Centralized testing.
(2) Start date: January 1, 1995
(3) Test frequency: Biennial testing.
(4) Model year coverage: Idle and two-speed idle
test of all covered vehicles: Model years 1968 and newer for
light duty vehicles and model years 1970 and newer for light
duty trucks with the exception of the five most recent model
years.
(5) Vehicle type coverage: Light duty vehicles,
and light duty trucks, rated up to 8,500 pounds GrossVehicle
Weight Rating (GVWR).
(6) Exhaust emission test type: Idle test of all
covered vehicles: Model years 1968 through 1980 for light
duty vehicles and model years 1970 through 1980 for light
duty trucks according to the requirements found in Appendix
6 (a).
Two-speed idle test (vehicle engine at idle and
2500 revolutions per minute (rpm) of all covered vehicles
model years 1981 and newer through 1995 according to the
requirements found in Appendix 6 (a).
(7) Emission standards: (Emissions limits
according to model year may be found in Appendix 3(a)(7) )
Maximum exhaust dilution measured at no less
than 6% CO plus carbon dioxide (CO2) on all tested vehicles
(as described in Appendix B of the EPA Rule).
(8) Emission control device inspections: Visual
inspection of the catalyst on all 1975 and later model year
vehicles with the exception of new motor vehicles registered
in Delaware.
(9) Evaporative system function checks:
Evaporative system integrity (pressure) test on 1975 and
later model year vehicles with the exception of the five most
recent model years.
(10) Stringency: A 20% emission test failure
rate among pre1981 model year vehicles.
(11) Waiver rate: A 3% rate, as a percentage
of failed vehicles.
(12) Compliance rate: A 96% compliance rate.
(13) Evaluation date: Low enhanced I/M
program areas subject to the provisions of this paragraph
shall be shown to obtain the same or lower emission levels as
the model program described in this paragraph by 2000 for
ozone non-attainment areas and 2001 for CO non-attainment
areas, and for severe and extreme ozone non-attainment
areas, on each applicable milestone and attainment deadline,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
944 FINAL REGULATIONS
thereafter. Milestones for NOX shall be the same as for
ozone..
(b) [Reserved] Onboard diagnostics (OBD):
(i) All 1996 and newer light-duty vehicles and
light- duty trucks equipped with certified on-board
diagnostic systems with the exception of the five most recent
model years according to the requirements found in Section
6.
(ii) 1996 and newer light-duty vehicles and lightduty
trucks not equipped by the manufacturer with certified
on-board diagnostics systems with the exception of tampered
or removed systems will be required to undergo the twospeed
idle test, the evaporative system integrity (pressure)
test and the emission control device test.
(c) Program Evaluation
(1) Program evaluation shall be used in
determining actual emission reductions achieved from the
LEIM program for the purposes of satisfying the
requirements of sections 182(g)(1) and 182(g)(2) of the
Clean Air Act, relating to reductions in emissions and
compliance demonstration.
(2) Transient mass emission test procedure: A
randomly selected number of subject vehicles that are due to
be tested according to the requirements of this regulation
will be required to undergo, in addition to the required tests,
an alternative test procedure to provide information for the
purpose of evaluating the overall effectiveness of the Low
Enhanced Inspection and Maintenance Program. The test is
referred to as the VMASTM method. See Appendix 3 (c)
(2).
Section 4 - Test Frequency And Convenience.
(a) The LEIM Program shall be operated on a biennial
frequency, which requires an inspection of each subject
vehicle at least once every two years, regardless of any
change in vehicle status, at an official inspection station.
New vehicles must be presented for LEIM program testing
not more than 60 months after initial titling.
(b) This system of inspections and registration
renewals allows the additional benefit of coupling both
enforcement systems together. Local, County and State
police shall continue to enforce registration requirements,
which shall require inspection in order to come into
compliance. Requirements of inspection of motor vehicles
before receiving a vehicle registration is found in the
Delaware Criminal and Traffic manual Title 21 Chapter 21.
Violations of registration provisions and the resulting
penalties are found in the Delaware Criminal and Traffic
Law Manual, Title 21, Chapter 21. One 60 day extension
shall be available to allow testing and repair.(See Appendix
4 (a) for the citations)
(c) Stations shall be open to the public at hours
designed for maximum public convenience. These hours
shall equal a minimum of 42 hours per week. Stations shall
remain open continuously through the designated hours, and
every vehicle presented for inspection during these hours
shall receive a test prior to the daily closing of the station.
Testing hours shall be Monday and Tuesday: 8:00 am to 4:30
PM, Wednesday: 12 noon to 8 PM, Thursday and Friday
8:00 am to 4:30 PM. These hours may be subject to change
by the State. Official inspection stations shall adhere to
regular, extended testing hours and shall test any subject
vehicle presented for a test during its test period.
Section 5 - Vehicle Coverage.
(a) Subject Vehicles
The LEIM program is based on coverage of all
1968 model year, gasoline powered, light duty vehicles and
1970 and later model year light duty trucks up to 8,500
pounds GVWR (with the exception of the five most recent
model years and vehicles exempted under Section 5 (b)).
The following is the complete description of the LEIM
program:
Vehicles registered or required to be registered
within the emission inspection area, and fleets primarily
operated within the emissions inspection area boundaries
and belonging to the covered model years and vehicle
classes comprise the subject vehicles, which are as follows:
(See Appendix 5 (a) for DMV Out of State Renewals)
(1) All vehicles titled/registered in Delaware from
model year 1968 light duty vehicles and 1970 and later
model year light duty trucks and whose vehicle type are
subject to the applicable test schedule.
(2) All subject fleet vehicles shall be inspected at
an official inspection station.
(3) Subject vehicles which are registered in the
program area but are primarily operated in another LEIM
area shall be tested, either in the area of primary operation,
or in the area of registration. Alternate schedules may be
established to permit convenient testing of these vehicles
(e.g., vehicles belonging to students away at college should
be rescheduled for testing during a visit home).
(4) Vehicles which are operated on Federal
installations located within an emission inspection shall be
tested, regardless of whether the vehicles are registered in
the emission inspection jurisdiction. This requirement
applies to all employee owned or leased vehicles (including
vehicles owned, leased, or operated by civilian and military
personnel on Federal installations) as well as agency owned
or operated vehicles, except tactical military vehicles,
operated on the installation. This requirement shall not
apply to visiting agency, employee, or military personnel
vehicles as long as such visits do not exceed 60 calendar
days per year. In areas without test fees collected in the lane,
arrangements shall be made by the installation with the
LEIM program for reimbursement of the costs of tests
provided for agency vehicles, at the discretion of the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 945
Director. The installation manager shall provide
documentation of proof of compliance to the Director. The
documentation shall include a list of subject vehicles and
shall be updated periodically, as determined by the Director,
but no less frequently than each inspection cycle. The
installation shall use one of the following methods to
establish proof of compliance:
(i) Presentation of a valid certificate of
compliance from the LEIM program, from any other LEIM
program at least as stringent as the LEIM program described
herein, or from any program deemed acceptable by the
Director.
(ii) Presentation of proof of vehicle
registration within the geographic area covered by the LEIM
program, except for any Inspection and Maintenance
program whose enforcement is not through registration
denial.
(iii) Another method approved by the Director.
(5) Vehicles powered solely by a "clean fuel" such
as compressed natural gas, propane, alcohol and similar nongasoline
fuels shall be required to report for inspection to the
same emission levels as gasoline powered cars until
standards for clean fuel vehicles become available and are
adopted by the State.
(6) Vehicles able to be powered by more than one
fuel, such as compressed natural gas and/or gasoline, must
be tested and pass emissions standards for all fuels when
such standards have become adopted by the Department.
(b) Exemptions
The following motor vehicles are exempt from the
provisions of this regulation:
(1) Vehicles manufactured and registered as kit
cars
(2) Tactical military vehicles used exclusively for
military field operations.
(3) All motor vehicles with a manufacturer's gross
vehicle weight over 8,500 pounds.
(4) All motorcycles and mopeds
(5) All vehicles powered solely by electricity
generated from solar cells and/or stored in batteries.
(6) Non-road sources, or vehicles not operated on
public roads
(7) Model year vehicles 1996 and older powered
solely by diesel fuel.
(c) Any exemption from inspection requirements
issued to a vehicle under this section shall not have an
expiration date and shall expire only upon a change in the
vehicle status for which the exemption was initially granted.
(d) Fleet owners are required to have all non-exempted
vehicles under their control inspected at an official
inspection station during regular station hours.
(e) Vehicles shall be pre-inspected prior to the emission
inspection, and shall be prohibited from testing should any
unsafe conditions be found. These unsafe conditions
include, but are not limited to significant exhaust leaks, and
significant fluid leaks. The Division and the Department
shall not be responsible for major vehicle component failures
during the test, of parts which were deficient or excessively
worn prior to the start of the test.
(f) New Model Year Clean Screen: Clean screening
exemptions will be determined for model years of vehicles
six to eight years old that may be exempt from the two speed
idle exhaust emissions test and the evaporative emissions
test (except for a fuel cap pressure test) if warranted by
queue conditions at the inspection lanes. Each Delaware
inspection lane shall independently control clean screen
activation. Clean screen mode shall occur when the
inspection lane queue exceeds 60 minutes. The Lane
Manager (or designee) must advise inspection personnel to
activate the process. Once a queue reduction to less than 60
minutes takes place, reversion to the normal testing protocol
shall occur. Wait times will be determined by queue lengths
that surpass lane markers that indicate expected wait time of
60 minutes or more. The Lane Manager (or designee) is
responsible for advising inspection personnel to activate the
clean screening exemption process. Once a reduction in
queue length to that representing a motorist wait time of less
than 60 minutes takes place, reversion to the normal testing
protocol shall occur. Each Delaware inspection lane shall
independently control clean screen activation. The Division
of Motor Vehicles will cap, on an annual basis, the number
of vehicles which may be exempted through clean screening
by model year in order to prevent failure to meet expected
emission reductions. The first year of implementation will
have an annual cap of 14,000 vehicles. If the specified
number of vehicles clean screened for an individual model
year equals the annual cap of emissions for that individual
model year, no more vehicles for that model year will be
exempt. The maximum allowable number of vehicles to be
clean screened will be re-evaluated annually.
Section 6 -Test Procedures And Standards.
(a) Test procedure requirements. (The test procedure
use to perform this test shall conform to the requirements
shown in Appendix 6 (a) ).
(1) Initial tests (i.e., those occurring for the first
time in a test cycle) shall be performed without repair or
adjustment at the inspection facility, prior to the test.
(2) An official test, once initiated, shall be
performed in its entirety regardless of intermediate outcomes
except in the case of invalid test condition or unsafe
conditions.
(3) Tests involving measurements shall be
performed with equipment that has been calibrated
according to the quality control procedures established by
the Department.
(4) Vehicles shall be rejected from testing, as
covered in this section, if the exhaust system is missing or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
946 FINAL REGULATIONS
leaking, or if the vehicle is in an unsafe condition for testing.
(5) After an initial failure of any portion of any
emission test (idle or two speed idle test) in the LEIM
program, all vehicles shall be retested without repairs being
performed. This retest shall be indicated on the records as
the second chance test. After failure of the second chance
test, prior to any subsequent retests, proof of appropriate
repairs must be submitted indicating the type of repairs and
parts installed (if any). This shall be done by completing the
Vehicle Emissions Repair Report Form (Appendix 6 (a) (5)
which will be distributed to anyone failing the emissions
test.)
(6) Idle testing using BAR 90 emission analyzers
(analyzers that have been certified by the California Bureau
of Automotive Repair) shall be performed on all 1968
through current (minus five years) 1995 model year vehicles
in New Castle and Kent Counties.
(7) Emission control device inspection.
Visual emission control device checks shall be
performed through direct observation or through indirect
observation using a mirror. These inspections shall include a
determination as to whether each subject device is present.
(8) Evaporative System Integrity Test. Vehicles
shall fail the evaporative system integrity test(s) if the
system(s) cannot maintain the equivalent pressure of eight
inches of water using USEPA approved fast pass
methodology for up to two minutes after being pressurized to
14 plus or minus 0.5 inches of water. Additionally, vehicles
shall fail evaporative system integrity testing if the canister
is missing or obviously disconnected, the hoses are crimped
off, or the fuel cap is missing. Evaporative system integrity
test procedure is found in See Appendix 6 (a) (8) .
(9) [Reserved] Onboard diagnostic checks.
Vehicles shall be tested following the
procedures found in Appendix 6 (a) (9).
(b) Test standards
(1) Emissions standards.
HC, CO, CO+CO2 (or CO2 alone), emission
standards shall be applicable to all vehicles subject to the
LEIM program and repairs shall be required for failure of
any standard regardless of the attainment status of the area.
(i) Steady-state short tests.
Appropriate model program standards
shall be used in idle testing of vehicles from model years
1968 light duty vehicles and model years 1970 light duty
trucks and newer.
(2) Visual equipment inspection standards
performed by the Motor Vehicle Technician.
(i) Vehicles shall fail visual inspections of
subject emission control devices if such devices are part of
the original certified configuration and are found to be
missing, modified, disconnected, or improperly connected.
(3) (reserved) Onboard diagnostics test standards.
(i) Vehicles shall fail the OBD test if:
(A) Malfunction Indicator Light (MIL) is
not lit during key on, engine off check of bulb; and/or
(B) MIL lit (or commanded on) for any
Diagnostic Trouble Codes (DTC);
(C) Data Link Connector (DLC) is
damaged, missing, tampered or obstructed by an aftermarket
device
(D) More than two unset readiness codes
for model years 1996-2000 unless an exception from this
provision is given under the requirements in Appendix 6 (a)
(9) for vehicles that have failed the initial test and have been
repaired where the monitors are not yet ready to test. In
addition, an exception to this provision will be allowed for
vehicles listed in Appendix 6 (a) (9) by model and year.
(E) More than one unset readiness code
for model years 2001 and newer unless an exception from
this provision is given under the requirements in Appendix 6
(a) (9) for vehicles that have failed the initial test and have
been repaired where the monitors are not yet ready to test. In
addition, an exception to this provision will be allowed for
vehicles listed in Appendix 6 (a) (9) by model and year.
(c) Applicability.
In general, section 203(a)(3)(A) of the Clean Air
Act prohibits altering a vehicle's configuration such that it
changes from a certified to a non-certified configuration. In
the inspection process, vehicles that have been altered from
their original certified configuration are to be tested by the
Motor Vehicle Technician in the same manner as other
subject vehicles.
(1) Vehicles with engines of a model year older
than the chassis model year shall be required to pass the
standards commensurate with the chassis model year.
(2) Vehicles that have been switched from an
engine of one fuel type to another fuel type that is subject to
the LEIM program (e.g., from a diesel engine to a gasoline
engine) shall be subject to the test procedures and standards
for the current fuel type, and to the requirements of
paragraph (c)(1) of this section.
(3) Vehicles that are switched to a fuel type for
which there is no certified configuration shall be tested
according to the most stringent emission standards
established for that vehicle type and model year. Emission
control device requirements may be waived if the Division
determines that the alternatively fueled vehicle configuration
would meet the new vehicle standards for that model year
without such devices.
(4) Vehicles converted to run on alternate fuels,
frequently called a dual-fuel vehicle, shall be tested and
required to pass the most stringent standard for each fuel
type.
(5) Mixing vehicle classes (e.g., light duty with
heavy duty) and certification types (e.g., California with
Federal) within a single vehicle configuration shall be
considered tampering.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 947
Section 7 - Waivers And Compliance Via Diagnostic
Inspection.
(a) Waiver issuance criteria.
(1) Motorists shall expend a reasonable cost, as
defined in Section 1 of this Regulation in order to qualify for
a waiver.
(i) For vehicles failing the exhaust emissions
test under Section 3 (a) (6), Effective January 1, 1997 for
vehicles registered in New Castle County and July 1, 1997
for vehicles registered in Kent County in order to qualify for
waiver repairs on any 1981 or later model year vehicle shall
be performed by a certified repair technician or a certified
manufacturer repair technician, as defined in Section 1 of
this regulation, and must have been appropriate to correct the
emission failure. Repairs of primary emission control
components may be performed by non-technicians (e.g.,
owners) to apply toward the waiver limit. The waiver would
apply to the cost of parts for the repair or replacement of the
following list of emission control component systems: Air
induction system (air filter, oxygen sensor), catalytic
converter system (converter, preheat catalyst), thermal
reactor, EGR system (valve, passage/hose, sensor) PCV
System, air injection system (air pump, check valve),
ignition system (distributor, ignition wires, coil, spark
plugs). The cost of any hoses, gaskets, belts, clamps,
brackets or other emission accessories directly associated
with these components may also be applied to the waiver
limit.
(ii) For vehicles failing the on-board
diagnostics test under Section 3 (b) in order to qualify for
waiver, repairs on any 1996 or later model year vehicle shall
be performed by a certified repair technician or a certified
manufacturer repair technician, as defined in Section 1 of
this regulation, and must have been appropriate to correct the
emission failure.
(2) Any available warranty coverage shall be used
to obtain needed repairs before expenditures can be counted
towards the cost limits in paragraph (a)(4) of this section.
The operator of a vehicle within the statutory age and
mileage coverage under section 207(b) of the Clean Air Act
shall present a written denial of warranty coverage from the
manufacturer or authorized dealer for this provision to be
waived for approved tests applicable to the vehicle.
(3) Receipts shall be submitted for review to
further verify that qualifying repairs were performed.
(4) A minimum expenditure for repairs of $75 for
pre-81 model year vehicles or a minimum expenditure of
$200 for 1981 model year and newer vehicles shall be spent
in order to qualify for a waiver. The minimum repair cost for
1981 and newer vehicles shall increase to $450 starting
January 1, 2000. For each subsequent year, the $450
minimum expenditure shall be adjusted in January of that
year by the percentage, if any, by which the Consumer Price
Index for the preceding calendar year differs from the
Consumer Price Index for 1989.
(5) The issuance of a waiver applies only to those
vehicles failing an exhaust emission or on-board diagnostics
tests. No waivers are granted to vehicles failing the
evaporative emission integrity test.
(6) Waivers shall be issued by the Division
Director only after:
(i) a vehicle has failed a retest for only the
exhaust emissions or on-board diagnostics portions of the
program, performed after all qualifying repairs have been
completed;
(7) Qualifying repairs include repairs of primary
emission control components performed within 90 days of
the test date.
(8) Waivers issued pursuant to this regulation are
valid until the date of current registration expiration.
(9) Waivers will not be issued to vehicles for
tampering related repairs. The cost of tampering related
repairs shall not be applicable to the minimum expenditure
in paragraph (a)(4) of this section. The Director will issue
exemptions for tampering related repairs if it can be verified
that the part in question or one similar to it is no longer
available for sale.
(b) Compliance via diagnostic inspection.
Vehicles subject to an emission test at the cut-points
shown in Appendix 3 (a)(7) of Regulation 31 may be issued
a certificate of compliance without meeting the prescribed
emission cut-points, if, after failing a retest on emissions, a
complete, documented physical and functional diagnosis and
inspection performed by a Delaware Certified Emission
Repair Technician shows that no additional emission related
repairs are needed.
(c) (1) In order to meet the requirements of the EPA
Rule, the State commits to maintaining a waiver rate equal to
or less than 3% of the failed vehicles.
(2) The Secretary shall take corrective action to
lower the waiver rate should the actual rate reported to EPA
be above 3%.
(3) Actions to achieve the 3% waiver rate, if
required, shall include measures such as not issuing waivers
on vehicles less than 6 years old, raising minimum
expenditure rates, and limiting waivers to once every four
years. If the waiver rate cannot be lowered to levels
committed to in the SIP, or if the State chooses not to
implement measures to do so, then the Secretary shall revise
the I/M emission reduction projections in the SIP and shall
implement other LEIM program changes needed to ensure
the performance standard is met.
Section 8 - Motorist Compliance Enforcement.
(a) Registration denial.
Registration denial enforcement (See Appendix 8
(a), the Systems Requirement Definition for the Registration
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
948 FINAL REGULATIONS
Denial process) is defined as rejecting an application for
initial registration or re-registration of a used vehicle (i.e., a
vehicle being registered after the initial retail sale and
associated registration) unless the vehicle has complied with
the LEIM program requirement prior to granting the
application. This enforcement is the express responsibility of
the Division with the assistance of police agencies for on
road inspection and verification. The law governing the
registration of motor vehicles is found in the Delaware
Criminal and Traffic Law Manual, Title 21, Chapter 21.
Pursuant to section 207(g)(3) of the Act, nothing in this
section shall be construed to require that new vehicles shall
receive emission testing prior to initial retail sale. In
designing its enforcement program, the Director shall:
(1) Provide an external, readily visible means of
determining vehicle compliance with the registration
requirement to facilitate enforcement of the LEIM program.
This shall be in the form of a window sticker and tag sticker
which clearly indicate the vehicles compliance status and
next inspection date;
(2) Adopt a schedule of biennial testing that
clearly determines when a vehicle shall have to be inspected
to comply prior to (re)registration;
(3) Design a registration denial system which
features the electronic transfer of information from the
inspection lanes to the Division's Data Base, and monitors
the following information:
(i) Expiration date of the registration;
(ii) Unambiguous vehicle identification
information; and
(iii) Whether the vehicle received either a
waiver or a certificate of compliance, and;
(iv) The Division's unique windshield
certificate identification number to verify authenticity; and
(v) The Division shall finally check the
inspection data base to ensure all program requirements have
been met before issuing a vehicle registration.
(4) Ensure that evidence of testing is available and
checked for validity at the time of a new registration of a
used vehicle or registration renewal.
(5) Prevent owners or lessors from avoiding
testing through manipulation of the title or registration
system; title transfers do not restart the clock on the
inspection cycle.
(6) Limit and track the use of time extensions of
the registration requirement to only one 60 day extension per
vehicle to prevent repeated extensions.
(b)(1)(i) Owners of subject vehicles must provide valid
proof of having received a passing test or a waiver to the
Director's representative in order to receive registration from
the Division.
(ii) State and local enforcement branches,
such as police agencies, as part of this program, shall cite
motorist who do not visibly display evidence of compliance
with the registration and inspection requirements.
(iii) Fleet and all other registered applicable
vehicle compliance shall be assured through the regular
enforcement mechanisms concurrent with registration
renewal, on-road testing and parking lot observation. Fleets
shall be inspected at official inspection stations.
(iv) Federal fleet compliance shall be assured
through the cooperation of the federal fleet managers as well
as also being subject to regular enforcement operations of
the Division.
Section 9 - Enforcement Against Operators And Motor
Vehicle Technicians.
(a) Imposition of penalties
The State of Delaware shall continue to operate the
LEIM program using State of Delaware Employees for all
functions. Should enforcement actions be required for
violations of program requirements, the Agreement between
State of Delaware Department of Public Safety Motor
Vehicle Division and Council 81 of the American Federation
of State, County and Municipal Employees, Section 8,
Disciplinary Action, and, the State of Delaware Merit Rules,
shall be adhered to in all matters. Applicable provisions of
these documents are found in Appendix 9 (a).
(b) Legal authority.
(1) The Director shall have the authority to
temporarily suspend station Motor Vehicle Technicians'
certificates immediately upon finding a violation or upon
finding the Motor Vehicle Technician administered emission
tests with equipment which had a known failure and that
directly affects emission reduction benefits. in accordance
with the Agreement between State of Delaware Department
of Public Safety Motor Vehicle Division and Council 81 of
the American Federation of State, County and Municipal
Employees, Section 8 Disciplinary Action.
(2) The Director shall have the authority to impose
disciplinary action against the station manager or the Motor
Vehicle Technician, even if the manager had no direct
knowledge of the violation but was found to be careless in
oversight of motor vehicle technicians or has a history of
violations, in accordance with the Agreement between State
of Delaware Department of Public Safety Motor Vehicle
Division and Council 81 of the American Federation of
State, County and Municipal Employees, and the State of
Delaware Merit Rules. The lane manager shall be held fully
responsible for performance of the motor vehicle technician
in the course of duty.
Section 10 - Improving Repair Effectiveness.
A prerequisite for a retest shall be a completed repair
form that indicates which repairs were performed. (See
Section 6 (a) (5) of this Regulation).
Section 11 - Compliance With Recall Notices.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 949
[Reserved]
Section 12 - On-Road Testing.
(a) Periodic random Delaware registered vehicle
pullovers on Delaware highways will occur without prior
notice to the public for on-road vehicle exhaust emission
testing.
(b) Vehicles identified by the on-road testing portion of
the LEIM program shall be notified of the requirement for an
out-of-cycle emission retest , and shall have 30 days from
the date of the notice to appear for inspection. Vehicles not
appearing for a retest shall be out of compliance, and be
liable for penalties under Title 21 of Delaware Criminal and
Traffic Law Manual and the Division will take action to
suspend the vehicle registration.
Section 13 - Implementation Deadlines.
All requirements related to the LEIM program shall be
effective ten days after the Secretary's order has been signed
and published in the State Register except for the following
provisions that have been amended to this regulation:
Date of Implementation
(a) Two-speed idle test (vehicle
at idle and 2500 rpm) November 1, 1999
of all covered vehicles model
years 1981 and newer
(b) Program Evaluation using
VMASTM test procedure. January 1, 2000
January 1, 2002
(c) On-Board Diagnostics Test January 1, 2002
APPENDICIES
APPENDIX 1 (d)
Commitment to Extend the I/M Program to the
Attainment Date Letter from Secretary Tulou to EPA
Regional Administrator, W. Michael McCabe
June 1, 1998
Mr. W. Michael McCabe
Regional Administrator
EPA, Region III
841 Chestnut Building
Philadelphia, PA 19107
Dear Mr. McCabe:
This correspondence is to address one of the cited
deficiencies published in the May 19, 1997 EPA rulemaking,
concerning Delaware's Inspection and Maintenance
regulation. I understand that this letter will address the
following deficiency:
Provide a statement from an authorized official that the
authority to implement Delaware's I/M program as stated
above will continue through the attainment date . . .
The Delaware I/M regulation has no sunset provision
and there is nothing in the Delaware statute that requires our
regulations to have a sunset date nor to be re-authorized in
order to continue beyond a sunset date.
We fully expect, barring the repeal of 7 Del. Chapter
67, the Delaware I/M regulation will be implemented to the
full extent of the law through the attainment date and most
likely through the maintenance period when that occurs.
Please feel free to contact Darryl Tyler, Program
Administrator of the Air Quality Management Section at
(302) 739-4791, if you should have any questions.
Sincerely,
Christophe A. G. Tulou
Secretary
cc:Jeffrey W. Bullock, Governor's Chief of Staff
J. Jonathan Jones, Governor's Policy Assistant for Federal
Affairs
Secretary Karen L. Johnson, Delaware Department of Public
Safety
Secretary Anne P. Canby, Delaware Department of
Transportation
APPENDIX 3(a)(7)
EXHAUST EMISSION LIMITS ACCORDING TO
MODEL YEAR
Group Auto/Station Wagons Pickup/Van HC CO
(passenger vehicles) under 8501# Limit Limit
(ppm) %
1 1968-70 1970-72 900 9.00
2 1971-74 1973-78 600 6.00
3 1975-79 1979-8 400 4.00
4 1980 (none) 220 2.00
5 1981 + 1984 + 220 1.20
APPENDIX 3(c)(2)
VMASTM TEST PROCEDURES
General Requirements
(1) Test Parameters. The following information shall be
determined for the vehicle being tested and used to
automatically select the dynamometer inertia, power
absorption settings, and evaporative emission test
parameters.
(i) Model Year
(ii) Manufacturer
(iii) Model name
(iv) Body style
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
950 FINAL REGULATIONS
(v) Number of cylinders
(vi) Engine displacement
Alternative computerized methods of selecting
dynamometer test conditions, such as VIN de-coding, may
be used.
(2) Ambient Conditions. The ambient temperature,
absolute humidity, and barometric pressure shall be recorded
continuously during the transient test, or as a single set of
readings if taken less than 4 minutes prior to the transient
driving cycle.
(3) Restart. If shut off, the vehicle shall be restarted as
soon as possible before the test and shall be running at least
30 seconds prior to the transient driving cycle.
(4) During the entire VMASTM testing procedure the
vehicle shall be operated by a certified Motor Vehicle
Technician (herein called inspector) and the vehicle owner or
operator shall be asked to wait in a specified area during the
test.
Pre-inspection and Preparation
(1) Accessories. All accessories (air conditioning, heat,
defogger, radio, automatic traction control if switchable,
etc.) shall be turned off by the inspector, if necessary.
(2) Traction Control and Four-Wheel Drive (4WD).
Vehicles with traction control systems that cannot be turned
off shall not be tested on two wheel drive dynamometers.
Vehicles with 4WD that cannot be turned off shall only be
tested on 4WD dynamometers. If the 4WD function can be
disabled, then 4WD vehicles may be tested on two wheel
drive dynamometers.
(3) Leaks. The vehicle shall be inspected for exhaust
leaks. Audio assessment while blocking exhaust flow, or
measurement of carbon dioxide or other gases, shall be
acceptable. Vehicles with leaking exhaust systems shall be
rejected from testing.
(4) Operating Temperature. The vehicle temperature
gauge, if equipped and operating, shall be checked to assess
temperature. If the temperature gauge indicates that the
engine is well below (less than 180(F) normal operating
temperature, the vehicle shall not be fast-failed and shall get
a second-chance emission test if it fails the initial test for any
criteria exhaust component. Vehicles in overheated condition
shall be rejected from testing.
(5) Tire Condition. Vehicles shall be rejected from
testing if tire cords, bubbles, cuts, or other damage are
visible. Vehicles shall be rejected that have space-saver spare
tires on the drive axle. Vehicles may be rejected if they do
not have reasonably sized tires. Vehicle tires shall be visually
checked for adequate pressure level. Drive wheel tires that
appear low shall be inflated to approximately 30 psi, or to
tire side wall pressure, or manufacturer's recommendation.
The tires of vehicles being tested for the purposes of
program evaluation under the Code of Federal Regulations
Title 40 §51.353(c) shall have their tires inflated to tire side
wall pressure.
(6) Ambient Background. [RESERVED]
(7) Sample System Purge. [RESERVED]
Equipment Positioning and Settings
(1) Purge Equipment. If an evaporative system flow
meter purge test is to be performed:
(i) The purge flow meter shall be connected in
series between the evaporative canister and the engine.
(ii) All hoses disconnected for the test shall be
reconnected after a purge flow test is performed.
(2) Roll Rotation. The vehicle shall be maneuvered
onto the dynamometer with the drive wheels positioned on
the dynamometer rolls. Prior to test initiation, the rolls shall
be rotated until the vehicle laterally stabilizes on the
dynamometer. Drive wheel tires shall be dried if necessary to
prevent slippage during the initial acceleration.
(3) Cooling System. The use of a cooling system is
optional when testing at temperatures below 50(F).
Furthermore, the hood may be opened at the state's
discretion. If a cooling system is in use, testing shall not
begin until the cooling system is positioned and activated.
The cooling system shall be positioned to direct air to the
vehicle cooling system, but shall not be directed at the
catalytic converter.
(4) Vehicle Restraint. Testing shall not begin until the
vehicle is restrained. Any restraint system shall meet the
requirements of the Code of Federal Regulations Title 40,
§85.2226(a)(5)(vii). The parking brake shall be set for front
wheel drive vehicles prior to the start of the test. The parking
brake need not be set for vehicles that release the parking
brake automatically when the transmission is put in gear.
(5) Dynamometer Settings. Dynamometer power
absorption and inertia weight settings shall be automatically
chosen from an EPA-supplied electronic look-up table which
will be referenced based upon the vehicle identification
information obtained in Code of Federal Regulations Title
40, §85.2221(a)(1). Vehicles not listed shall be tested using
default power absorption and inertia settings in the latest
version of the EPA I/M Look-up Table, as posted on EPA's
web site: www.epa.gov/orcdizux/im.htm
(6) Exhaust Collection System. The exhaust collection
system shall be positioned to insure complete capture of the
entire exhaust stream from the tailpipe during the transient
driving cycle. The system shall meet the requirements of
§85.2226(b)(2) in the Code of Federal Regulations Title 40,.
Vehicle Conditioning
(1) Queuing Time. Not applicable
(2) Program Evaluation. Vehicles being tested for the
purpose of program evaluation under Section 3 (c) (2) shall
receive two full VMAS emission tests (i.e., a full 240
seconds each). Results from both tests and the test order
shall be separately recorded in the test record. Emission
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 951
scores and results provided to the motorist may be from
either test.
(3) Discretionary Preconditioning.
(i) Any vehicle may be preconditioned by
maneuvering the vehicle on to the dynamometer and driving
the 94 to 239 second segment of the transient cycle in §
85.2221(e)(1) Code of Federal Regulations Title 40,. This
method has been demonstrated to adequately precondition
the vast majority of vehicles (SAE 962091). Other
preconditioning cycles may be developed and used if
approved by the Administrator of the USEPA.
(4) Second-Chance Purge Testing. Not applicable
Vehicle Emission Test Sequence
(1) Transient Driving Cycle. The vehicle shall be
driven over the following cycle:
Time Speed Time Speed Time Speed Time Speed Time Speed Time Speed
(sec) (mph) (sec) (mph) (sec) (mph) (sec) (mph) (sec) (mph) (sec) (mph)
0 0.0 40 17.7 80 32.2 120 18.1 160 33.5 200 56.7
1 0.0 41 19.8 81 32.4 121 18.6 161 36.2 201 56.7
2 0.0 42 21.6 82 32.2 122 20.0 162 37.3 202 56.3
3 0.0 43 23.2 83 31.7 123 20.7 163 39.3 203 56.0
4 0.0 44 24.2 84 28.6 124 21.7 164 40.5 204 55.0
5 3.0 45 24.6 85 25.1 125 22.4 165 42.1 205 53.4
6 5.9 46 24.9 86 21.6 126 22.5 166 43.5 206 51.6
7 8.6 47 25.0 87 18.1 127 22.1 167 45.1 207 51.8
8 11.5 48 25.7 88 14.6 128 21.5 168 46.0 208 52.1
9 14.3 49 26.1 89 11.1 129 20.9 169 46.8 209 52.5
10 16.9 50 26.7 90 7.6 130 20.4 170 47.5 210 53.0
11 17.3 51 27.5 91 4.1 131 19.8 171 47.5 211 53.5
12 18.1 52 28.6 92 0.6 132 17.0 172 47.3 212 54.0
13 20.7 53 29.3 93 0.0 133 17.1 173 47.2 213 54.9
14 21.7 54 29.8 94 0.0 134 15.8 174 47.2 214 55.4
15 22.4 55 30.1 95 0.0 135 15.8 175 47.4 215 55.6
16 22.5 56 30.4 96 0.0 136 17.7 176 47.9 216 56.0
17 22.1 57 30.7 97 0.0 137 19.8 177 48.5 217 56.0
18 21.5 58 30.7 98 3.3 138 21.6 178 49.1 218 55.8
19 20.9 59 30.5 99 6.6 139 22.2 179 49.5 219 55.2
20 20.4 60 30.4 100 9.9 140 24.5 180 50.0 220 54.5
21 19.8 61 30.3 101 13.2 141 24.7 181 50.6 221 53.6
22 17.0 62 30.4 102 16.5 142 24.8 182 51.0 222 52.5
23 14.9 63 30.8 103 19.8 143 24.7 183 51.5 223 51.5
24 14.9 64 30.4 104 22.2 144 24.6 184 52.2 224 50.5
25 15.2 65 29.9 105 24.3 145 24.6 185 53.2 225 48.0
26 15.5 66 29.5 106 25.8 146 25.1 186 54.1 226 44.5
27 16.0 67 29.8 107 26.4 147 25.6 187 54.6 227 41.0
28 17.1 68 30.3 108 25.7 148 25.7 188 54.9 228 37.5
29 19.1 69 30.7 109 25.1 149 25.4 189 55.0 229 34.0
30 21.1 70 30.9 110 24.7 150 24.9 190 54.9 230 30.5
31 22.7 71 31.0 111 25.2 151 25.0 191 54.6 231 27.0
32 22.9 72 30.9 112 25.4 152 25.4 192 54.6 232 23.5
33 22.7 73 30.4 113 27.2 153 26.0 193 54.8 233 20.0
34 22.6 74 29.8 114 26.5 154 26.0 194 55.1 234 16.5
35 21.3 75 29.9 115 24.0 155 25.7 195 55.5 235 13.0
36 19.0 76 30.2 116 22.7 156 26.1 196 55.7 236 9.5
37 17.1 77 30.7 117 19.4 157 26.7 197 56.1 237 6.0
38 15.8 78 31.2 118 17.7 158 27.3 198 56.3 238 2.5
39 15.8 79 31.8 119 17.2 159 30.5 199 56.6 239 0.0
(2) Driving Trace. The inspector shall follow an
electronic, visual depiction of the time/speed relationship of
the transient driving cycle (hereinafter, the trace). The visual
depiction of the trace shall be of sufficient magnification and
adequate detail to allow accurate tracking by the inspector/
driver and shall permit anticipation of upcoming speed
changes. The trace shall also clearly indicate gear shifts as
specified in paragraph (3) and Table B below.
(3) Shift Schedule. To identify gear changes for manual
shift vehicles, the driving display presented to the inspector/
driver shall be designed according to the following shift
schedule and prominently display visual cues where the
inspector/driver is required to change gears:
Shift Sequence Speed Approximate Cycle
(gear) (miles per hour) Time
(seconds)
1 - 2 15 9.3
2 - 3 25 47.0
De-clutch 15 87.9
1 - 2 15 101.6
2 - 3 25 105.5
3 - 2 17.2 119.0
2 - 3 25 145.8
3 - 4 40 163.6
4 - 5 45 167.0
5 - 6 50 180.0
De-clutch 15 234.5
Gear shifts shall occur at the points in the driving cycle
where the specified speeds are obtained. For vehicles with
fewer than six forward gears the same schedule shall be
followed with shifts above the highest gear disregarded.
Automatic shift vehicles with overdrive or fuel
economy drive modes shall be driven in those modes.
(4) Speed Excursion Limits. Speed excursion limits
shall apply as follows:
(i) The upper limit is 2 mph higher than the highest
point on the trace within 1 second of the given time.
(ii) The lower limit is 2 mph lower than the lowest
point on the trace within 1 second of the given time.
(iii) Vehicle speed excursions beyond tolerance
limits given in items a. and b. above are acceptable provided
that each such excursion is not more than 2 seconds in
duration.
(iv) Speeds lower than those prescribed during
accelerations are acceptable provided the vehicle is operated
at maximum available power during such accelerations until
the vehicle speed is within the excursion limits.
(v) [Reserved : Criteria that shall allow limited
excursions of speed higher than the prescribed upper limit in
paragraphs (i) through (iii) ]
(vi) A transient emissions test shall be void and the
vehicle retested if the speed excursion limits prescribed by
paragraphs (i) through (iii) are exceeded, except in the event
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
952 FINAL REGULATIONS
that computer algorithms, developed by the Department,
determine that the conditions of paragraphs (v) and (vi) are
applicable. Tests may be aborted if the speed excursion
limits are exceeded.
APPENDIX 4(a)
SECTIONS FROM DELAWARE CRIMINAL AND
TRAFFIC LAW MANUAL
Penalties For Non-compliance Of Vehicle Registration
21 Del.C. 21, §§ 2115, 2116
§ 2115
"No person shall:
(l) Operate or, being the owner of any motor vehicle,
trailer or semitrailer, knowingly permit the operation upon a
highway of any motor vehicle, trailer or semitrailer which is
not registered or which does not have attached thereto and
displayed thereon the number plate or plates assigned thereto
by the Department and unexpired registration plate or plates,
subject to the exemptions allowed in this title, or under
temporary or limited permits as otherwise provided by this
title;
(2) Display or cause or permit to be displayed or have
in possession any registration card, number plate or
registration plate, knowing the same to be fictitious or to
have been canceled, revoked, suspended or altered;
(3) Lend to, or knowingly permit the use by, one not
entitled thereto any registration card, number plate or
registration plate issued to the person so lending or
permitting the use thereof;
(4) Fail or refuse to surrender to the Department upon
demand any registration card, number plate or registration
plate which has been suspended, canceled or revoked as
provided in this title;
(5) Use a false or fictitious name or address in any
application for the registration or inspection of any vehicle,
or for any renewal or duplicate thereof, or for any certificate
or transfer of title, or knowingly make a false statement,
knowingly conceal a material fact or otherwise commit a
fraud in any such application;
(6) Drive or move or, being the owner, cause or
knowingly permit to be driven or moved, on any highway
any vehicle or combination of vehicles which is in such
unsafe condition as to endanger any person or which is
equipped in any manner in violation of this title, but the
provisions of this title with respect to equipment on vehicles
shall not apply to implements of husbandry, road machinery,
road rollers or farm tractors except as herein made
applicable;
(7) Own or operate any qualified motor vehicle as
defined under the International Registration Plan, as
authorized in Chapter 4 of this title, not properly displaying
an apportioned plate with required registration credentials,
or operate a qualified motor vehicle without having in that
person's possession a trip permit registration as authorized in
§2103(6) of this title. Any person who violates this
subsection shall, for the first offense, be fined not less than
$115 nor more than $345, and for each subsequent offense
not less than $345 nor more than $575. In addition, such
person shall also be fined in an amount which is equal to the
cost of registering the vehicle at its gross weight at the time
of the offense or at the maximum legal limit, whichever is
less, which fine shall be suspended if, within 5 days of the
offense, the court is presented with a valid registration card
for the gross weight at the time of the offense or the
maximum legal limit for such vehicle.
(8) Do any act forbidden or fail to perform any act
required under this chapter. (36 Del. Laws, c. 10, § 25; 40
Del. Laws, c. 38, § 10; Code 1935, § 5563; 43 Del. Laws, c.
244, § 14; 21 Del. C. 1953, § 2115; 49 Del. Laws, c. 220, §
21; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 202, § 2.)
Revisor's note.-Section 3 of 70 Del. Laws, c. 202, effective
July 10, 1995, provides: "If any provision of this act or the
application thereof to any person or circumstances is held
invalid, such invalidity shall not affect other provisions or
applications of the act which can be given effect without the
invalid provision or application, and to that end the
provisions of this act are declared to be severable."
Effect of amendments.-70 Del. Laws, c. 202, effective July
10, 1995, inserted present (7) and redesignated former (7) as
(8)."
§ 2116
"(a) Whoever violates this chapter shall, for the first
offense, be fined not less than $10 nor more than $100 or be
imprisoned not less than 30 days nor more than 90 days o;
both. For each subsequent like offense, the person shall be
fined not less than $50 nor more than $200 or imprisoned not
less than 90 days nor more than 6 months or both, in addition
to which any person, being the operator or owner of any
vehicle which requires a registration fee which is calculated
upon the gross weight of the vehicle and any load thereon
shall be fined at a rate double that which is set forth in this
subsection and be imprisoned as provided herein or both. In
addition, such person shall also be fined in an amount which
is equal to the cost of registering the vehicle at its gross
weight at the time of the offense or at the maximum legal
limit, whichever is less; which fine shall be suspended, if
within 5 days of the offense the court is presented with a
valid registration card for the gross weight at the time of the
offense for the maximum legal limit for such vehicle.
(b)(1) Notwithstanding the provisions of subsection (a)
of this section, whoever violates §2115(1)(5) of this title
shall, for the first offense, be fined not less than $50 nor
more than $200, be imprisoned not less than 30 days nor
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 953
more than 90 days, or be penalized by both fine and
imprisonment. For each subsequent like offense, such person
shall be fined not less than $100 nor more than $300, be
imprisoned not less than 90 days nor more than 6 months, or
be penalized by both fine and imprisonment.
(2) Any owner or operator of a vehicle which
requires a registration fee which is calculated upon the gross
weight of the vehicle, and any load thereon, and who violates
§ 2115(1)(5) of this title, shall be fined at a rate double that
which is set forth in this subsection, or be imprisoned as
provided herein, or be both fined and imprisoned. In
addition, such person shall also be fined an amount which is
equal to the costs of registering the vehicle either at its gross
weight at the time of the offense, or at the maximum legal
limit, whichever is less. Such fine shall be suspended if,
within 5 days of the offense, the court is presented with a
valid registration card for the actual gross weight of the
vehicle at the time of the offense.
(c) This section shall not apply to violations for which a
specific punishment is set forth elsewhere in this chapter.
(d) For any violation of the registration provisions of §
2102 or § 2115 of this subchapter and in absence of any
traffic offenses relating to driver impairment' the violator's
copy of the traffic summons shall act as that violator's
authority to drive the vehicle involved by the most direct
route from the place of arrest to either the violator's
residence or the violator's current place of abode. (36 Del.
Laws, c. 10, § 32; 37 Del. Laws, c. 10, §§ 10, 11; Code 1935,
§ 5570; 21 Del. C. 1953, § 2116; 59 Del. Laws, c. 332, §§ 1,
2; 64 Del. Laws, c. 207, § 2; 69 Del. Laws, c. 307, §§ 1, 3,
4.)."
Appendix 5 (a)
DIVISION OF MOTOR VEHICLES POLICY
ON OUT-OF-STATE RENEWALS
The following is the Division's policy for
accomplishing a registration renewal on a vehicle located
outside the State of Delaware when the vehicle owner is
unable to return the vehicle for inspection prior to the
renewal date. Vehicles located within a 200 mile radius of a
Division of Motor Vehicles facility will be inspected at a
division inspection station prior to renewal. All other
vehicles may be renewed by accomplishing the following
procedures:
(1) (Refer all inquiries on out-of-state renewal to the
Dover Correspondence Office (739-3147). Normally,
customers will be provided the out-of-state renewal package
by the Dover Administrative Office Correspondence
Section. Lane locations may provide the renewal package to
walk-in customers, but the completed paperwork must be
mailed to Dover for processing.
(2) When all documents are completed and the vehicle
has passed inspection, copies of the Application for Out-of-
State Registration and the inspection report (MV Form
210(a) will be provided to Dover Lane (Tom Kersey) and
DNREC Air Quality Section (Phil Wheeler).
(3) Tom Kersey or his designated representative will
load the inspection information on the MV210(a) form into
the computer system. The MV210(a) form will be saved for
two years by the Dover lane.
(4) When the inspection information has been loaded,
Tom Kersey will send a Vehicle Inspection Report to Dover
Correspondence, the renewal can be completed and the
registration card and plate sticker can be mailed to the
customer.
(5) All documents will be saved by the Registration
Correspondence Section for two years.
(6) Random audit procedures: Correspondents prior to
renewing selected vehicles will call the inspection station
and inspector shown on the MV210(a) form. One out of
every ten vehicles will be selected to verify the vehicle was
inspected. The verification will be conducted prior to
sending copies to DNREC and Dover lane. Indicate on the
bottom of Page 2 of the form the date and time of
verification and the name of the person performing the
verification. Sandy Tracy will be in charge of the
verification and selection process.
Appendix 5 (f)
New Model Year Clean Screen
BACKGROUND
Delaware's revised I/M State Implementation Plan (SIP)
commits the State to implementing a clean screen program to
help reduce lines during peak inspection periods. Delaware
previously enacted a provision to use the low emitter profile
model (LEP) to clean screen vehicles at the lanes during
peak inspection periods. During off-peak periods, all
vehicles that show up for inspection would be tested.
Currently, however, the LEP clean screen program has not
been implemented, and long lines are a problem during
certain times. The main reason for not implementing the
LEP clean screen program is the complexity of integrating
the LEP program into the existing information system. The
low emitter profile has been replaced in this regulation with
a new model year clean screen exemption that will in effect
exempt during one calendar year, approximately another
9,200 vehicles from the major portion of the emissions
testing program. This provision will reduce inspection
volume by about 18% when it is activated.
It is important to note that the vehicle ages under this
provision will be six, seven and eight model years old
according to the definition in model year exemption in
Section 1(f). Under the low emitter profile a clear
distribution of exemptions of each model year was defined
by the regulation. The provisions of Section 5 (f) does not
require a definite distribution of any one of the six, seven or
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
954 FINAL REGULATIONS
eight years old model years to be exempt. It is expected
that, because it will be a random arrival of vehicles into the
lanes, the number of each model year exempted will be
proportional in number to the actual fleet size of each
applicable model year . That is, the distribution should be no
more than 24% of the number of vehicles in each model year
when considering the cap of 14,000 vehicle years being
eligible to be clean screened.
EMISSION IMPACTS OF NEW MODEL YEAR
CLEAN SCREEN
Restricting clean screen to only the above vehicles
cannot result in greater emissions than including all the clean
screen candidates identified by the LEP. To further confirm
that this approach would not cause problems with
compliance with Delaware's revised I/M SIP, the exemptions
were modeled with MOBILE5b. Unlike the use of Radian's
LEP model, this approach does not need to be modeled with
the Clean Screen Credit Utility. This alternative option B
expanding model year exemptions during peak periods B
would have less impact on the emission reduction credits for
Delaware's I/M program than the LEP Clean Screen
program presented in Delaware's I/M SIP that has already
been approved by EPA. Table 1 presents the impact of the
alternative clean screen program, assuming it's in operation
for 24% of the inspections. As shown, on-demand model
year exemptions would provide more emission reductions
than the program Delaware has committed to in its SIP.
Table 1.
Estimated Impact of New Model Year Clean Screen Program
Scenario MOBILE5b
Emission Factor (grams/mile)
1999 Evaluation Year
Exhaust Evap Total
No IM 0.928 0.781 1.709
Existing 5 model year
exemption, TSI + pressure
0.759 0.679 1.438
8 model year exemption TSI
+ pressure
0.796 0.704 1.532
New Model Year Clean
Screen - 8 model years TSI +
pressure -24% of the time
when needed to reduce the
volume at the inspection
lanes.
0.768 0.685 1.453
TSI - Two speed idle test.
APPENDIX 6(a)
IDLE EMISSIONS TEST PROCEDURES
The on-site test inspection of motor vehicles uses the
ESP FICS 4000 - Bar 90 computerized Emission Analyzer
which will require minimal time to complete the inspection
procedure.
GENERAL TEST PROCEDURES
1. If the inspection technician observes a vehicle
having coolant, oil, excess smoke or fuel leaks or any other
such defect that is unsafe to allow the emission test to be
conducted the vehicle shall be rejected from the testing area.
The inspection technician is prohibited from conducting the
emissions test until the defects are corrected.
2. The vehicle transmission is to be placed in neutral
gear if equipped with a manual transmission, or in park
position if equipped with an automatic transmission. The
hand or parking brake is to be engaged. If the parking brake
is found to be defective, then wheel chocks are to be placed
in front and/or behind the vehicle's tires.
3. The inspection technician advises the owner to turn
off all vehicle accessories.
4. The inspection technician enters the vehicle
registration number (tag) or the vehicle identification
number into the BAR 90 system. This information is
electronically transmitted to the Division of MotorVehicle's
database. The system will also identify for each vehicle
entered into the BAR 90 system whether the vehicle is
eligible for a clean screen exemption. Only under certain
conditions determined by the vehicle services chief or his
designee will those vehicles eligible for the clean screen
exemption be excuse from any exhaust emissions test for the
current two year test cycle. In no case shall the number of
vehicles exempt in any one calendar year, under the clean
screen procedures, exceed 40% of the total number of
vehicles subject to the requirements of Regulation 31. The
clean screen procedures or methodology is described in
Appendix Y.
5. If the vehicle registration number is in the database,
the following information will be transmitted to and verified
by the inspection technician:
a. Vehicle make
b. Vehicle Year
c. Vehicle Model
d. Vehicle Body Style
e. Vehicle fuel type and
f. other related information
6. The inspection technician will verify this
information and verify the last five characters of the Vehicle
Identification Number (VIN) prior to beginning the emission
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 955
test.
7. If the vehicle's identification number is not on the
database, the R.L. Polk VIN Package shall be automatically
accessed. This VIN package will return the following
information to the inspection technician who, in turn will
verify the returned information:
a. Vehicle make
b. Vehicle Year
c. Vehicle Model
d. Vehicle Body Style
e. Vehicle fuel type
8. The DMV System will identify and require an
emission inspection on all eligible vehicles meeting the
State's criteria for an emission inspection. Once the vehicle
information has been verified and accepted, the system will
prompt the inspection technician to place the analyzer test
probe into the tailpipe. The technician connects the
tachometer lead to the vehicle's spark plug and verifies that
the idle RPM is within the specified range. If the RPM
exceeds the allowed range the vehicle is rejected and not
tested. The technician will insert the probe at least 8 inches
into the exhaust pipe. Genuine dual exhaust vehicles will be
tested with a dual exhaust probe. Once the probe has been
placed into the exhaust pipe the test will begin. The test
process is completely automatic, including the pass/fail
decision.
9. If the vehicle has been identified as requiring a
completed Vehicle Inspection Repair (VIRR) Report Form
prior to reinspection, the inspection technician will review
the form for completeness and, if applicable, record into the
system the Certified Emission Repair Technician's (CERT)
number or Certified Manufacturer's Repair Technician
(CMRT) number before the retest.
TWO SPEED IDLE TEST PROCEDURES
1. Exhaust gas sampling algorithm. The analysis of
exhaust gas concentrations will begin 10 seconds after the
applicable test mode begins. Exhaust gas concentrations will
be analyzed at a rate of two times per second. The measured
value for pass/fail determinations will be a simple running
average of the measurements taken over five seconds.
2. Pass/fail determinations. A pass or fail
determination will be made for each applicable test mode
based on a comparison of the applicable standards listed in
Appendix 3 (a)(7) and the measured value for HC and CO.
A vehicle will pass the test mode if any pair of simultaneous
values for HC and CO are below or equal to the applicable
standards. A vehicle will fail the test mode if the values for
either HC or CO, or both, in all simultaneous pairs of values
are above the applicable standards.
3. Void test conditions. The test will immediately end
and any exhaust gas measurements will be voided if the
measured concentration of CO plus CO2 (CO+ CO2) falls
below six percent of the total concentration of CO plus CO2
or the vehicle's engine stalls at any time during the test
sequence.
4. Multiple exhaust pipes. Exhaust gas concentrations
from vehicle engines equipped with dual exhaust systems
will be sampled accordingly.
5. The test will be immediately terminated upon
reaching the overall maximum test time.
6. Test sequence.
(a) The test sequence will consist of a first-chance
test and a second chance test as follows:
(i) The first-chance test will consist of an idle
mode followed by a high-speed mode.
(ii) The second-chance high-speed mode, as
described will immediately follow the first-chance highspeed
mode. It will be performed only if the vehicle fails the
first-chance test. The second-chance idle will follow the
second chance high speed mode and be performed only if the
vehicle fails the idle mode of the first-chance test.
(b) The test sequence will begin only after the
following requirements are met:
(i) The vehicle will be tested in as-received
condition with the transmission in neutral or park, the
parking brake actuated (or chocked) and all accessories
turned off. The engine shall appear to and is assumed to be at
normal operating temperature.
(ii) The tachometer will be attached to the
vehicle in accordance with the analyzer manufacturer's
instructions.
(iii) The sample probe(s) will be inserted into
the vehicle's tailpipe to a minimum depth of 10 inches. If the
vehicle's exhaust system prevents insertion to this depth, a
tailpipe extension will be used.
(iv) The measured concentration of CO plus
CO2 (CO + CO2) will be greater than or equal to 6% of the
total concentration.
(c) First-chance test and second-chance highspeed
mode. The test timer will start (tt=0) when the
conditions specified above are met. The first-chance test and
second-chance high-speed mode will have an overall
maximum test time of 390 seconds (tt=390). The firstchance
test will consist of an idle mode following
immediately by a high-speed mode. This is followed
immediately by an additional second-chance high-speed
mode, if necessary.
(d) First-chance idle mode. The mode timer will
start (mt=0) when the vehicle engine speed is between 550
and 1300 rpm. If engine speed exceeds 1300 rpm or falls
below 550 rpm, the mode timer will reset to zero and resume
timing. The maximum idle mode length will be 30 seconds
(mt=30) elapsed time. The pass/ fail analysis will begin after
an elapsed time of 10 seconds (mt=10). A pass or fail
determination will be made for the vehicle and the mode
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
956 FINAL REGULATIONS
terminated as follows:
(i) The vehicle will pass the idle mode and
the mode will be immediately terminated if, prior to an
elapsed time of 30 seconds (mt=30), measured values are
less or equal to the applicable standards listed in Appendix 3
(a)(7)
(ii) The vehicle will fail the idle mode and the
mode will be terminated if the provisions of d (i) are not
satisfied within an elapsed time of 30 seconds (mt=30).
(iii) The vehicle may fail the first-chance and
second-chance test will be omitted if no exhaust gas
concentration less than 1800 ppm HC is found by an elapsed
time of 30 seconds (mt=30).
(e) First-chance and second-chance high-speed
modes. This mode includes both the first-chance and secondchance
high-speed modes, and follows immediately upon
termination of the first-chance idle mode. The mode timer
will reset (mt=0) when the vehicle engine speed is between
2200 and 2800 rpm. If engine speed falls below 2200 rpm or
exceeds 2800 rpm for more than two seconds in one
excursion, or more than six seconds over all excursions
within 30 seconds of the final measured value used in the
pass/fail determination, the measured value will be
invalidated and the mode continued. If any excursion lasts
for more than ten seconds, the mode timer will reset to zero
(mt=0) and timing resumed. The minimum high-speed mode
length will be determined as described under paragraphs (e)
(i) and (ii) below. The maximum high-speed mode length
will be 180 seconds (mt=180) elapsed time.
(i) Ford Motor Company and Honda vehicles.
For 1981-1987 model year Ford Motor Company vehicles
and 1984-1985 model year Honda Preludes, the pass/fail
analysis will begin after an elapsed time of 10 seconds
(mt=10) using the following procedure.
(A) A pass or fail determination, as
described below, will be used, for vehicles that passed the
idle mode, to determine whether the high-speed test should
be terminated prior to or at the end of an elapsed time of 180
seconds (mt=180).
(I) The vehicle will pass the highspeed
mode and the test will be immediately terminated if,
prior to an elapsed time of 30 seconds (mt=30), the measured
values are less than or equal to the applicable standards listed
in Appendix 3 (a)(7).
(II) If at an elapsed time of 30
seconds (mt=30) the measured values are greater than the
applicable standards listed in Appendix 3 (a)(7), the
vehicle's engine will be shut off for not more than 10 seconds
after returning to idle and then will be restarted. The probe
may be removed from the tailpipe or the sample pump turned
off if necessary to reduce analyzer fouling during the restart
procedure. The mode timer will stop upon engine shut off
(mt=30) and resume upon engine restart. The pass/fail
determination will resume as follows after 40 seconds have
elapsed (mt=40).
(III) The vehicle will pass the highspeed
mode and the test will be immediately terminated if, at
any point between an elapsed time of 40 seconds (mt=40)
and 60 seconds (mt=60), the measured values are less than or
equal to the applicable standards listed in Appendix 3 (a)(7).
(IV) The vehicle will pass the highspeed
mode and the test will be immediately terminated if, at
a point between an elapsed time of 60 seconds (mt=60) and
180 seconds (mt=180) both HC and CO emissions continue
to decrease and measured values are less than or equal to the
applicable standards listed in Appendix 3 (a)(7).
(V) The vehicle will fail the highspeed
mode and the test will be terminated if neither
paragraphs (e) (i) (A) (III) or (e) (i) (A) (IV), above, are not
satisfied by an elapsed time of 180 seconds (mt=180).
(B) A pass or fail determination will be
made for vehicles that failed the idle mode and the highspeed
mode terminated at the end of an elapsed time of 180
seconds (mt=180) as follows:
(I) The vehicle will pass the highspeed
mode and the mode will be terminated at an elapsed
time of 30 seconds (mt=30) if any measured values of HC
and CO exhaust gas concentrations during the high-speed
mode are less than or equal to the applicable standards listed
in Appendix 3 (a)(7).
(II) Restart. If at an elapsed time of
30 seconds (mt=30) the measured values of HC and CO
exhaust gas concentrations during the high-speed mode are
greater than the applicable short test standards as described
in Appendix 3 (a)(7), the vehicle's engine will be shut off for
not more than 10 seconds after returning to idle and then will
be restarted. The probe may be removed from the tailpipe or
the sample pump turned off it necessary to reduce analyzer
fouling during the restart procedure. The mode timer will
stop upon engine shut off (mt=30) and resume upon engine
restart. The pass/fail determination will resume as follows
after 40 seconds (mt=40) have elapsed.
(III) The vehicle will pass the highspeed
mode and the mode will be terminated at an elapsed
time of 60 seconds (mt=60) if any measured values of HC
and CO exhaust gas concentrations during the high-speed
mode are less than or equal to the applicable standards listed
in Appendix 3 (a)(7).
(IV)The vehicle will pass the highspeed
mode and the test will be immediately terminated if, at
a point between an elapsed time of 60 seconds (mt=60) and
180 seconds (mt=180) both HC and CO emissions continue
to decrease and measured values are less than or equal to the
applicable standards listed in Appendix 3 (a)(7).
(V) The vehicle will fail the
high-speed mode and the test will be terminated if neither
paragraphs (e) (i) (B) (I), (e) (i) (B) (III) or e (i) (B) (IV),
above, is satisfied by an elapsed time of 180 seconds
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 957
(mt=180).
(ii) All other light-duty vehicles. The pass/fail
analysis for vehicles not specified in paragraph (e) (i), above,
will begin after an elapsed time of 10 seconds (mt=10) using
the following procedure.
(A) A pass or fail determination will be
used for 1981 and newer model year vehicles that passed the
idle mode, to determine whether the high-speed mode should
be terminated prior to or at the end of an elapsed time of 180
seconds (mt=180). For pre-1981 model year vehicles, no
high speed idle mode test will be performed.
(I) The vehicle will pass the highspeed
mode and the test will be immediately terminated if,
prior to an elapsed time of 30 seconds (mt=30), the measured
values are less than or equal to the applicable standards listed
in Appendix 3 (a)(7).
(II) The vehicle will pass the highspeed
mode and the test will be immediately terminated if
emissions continue to decrease after an elapsed time of 30
seconds (mt=30) and if, at any point between an elapsed time
of 30 seconds (mt=30) and 180 seconds (mt=180), the
measured values are less than or equal to the applicable
standards listed in Appendix 3 (a)(7).
(III) The vehicle will fail the highspeed
mode and the test will be terminated if neither the
provisions of paragraphs (e) (ii)(A)(I) or (e) (ii)(A)(II),
above, is satisfied.
(B) A pass or fail determination will be
made for 1981 and newer model year vehicles that failed the
idle mode and the high-speed mode terminated prior to or at
the end of an elapsed time of 180 seconds (mt=180). For pre-
1981 model year vehicles, the duration of the high speed idle
mode will be 30 seconds and no pass or fail determination
will be used at the high speed idle mode.
(I) The vehicle will pass the highspeed
mode and the mode will be terminated at an elapsed
time of 30 seconds (mt=30) if any measured values are less
than or equal to the applicable standards listed Appendix 3
(a)(7).
(II) The vehicle will pass the highspeed
mode and the test will be immediately terminated if
emissions continue to decrease after an elapsed time of 30
seconds (mt=30) and if, at any point between an elapsed time
of 30 seconds (mt=30) and 180 seconds (mt=180), the
measured values are less than or equal to the applicable
standards listed in Appendix 3 (a)(7).
(III) The vehicle will fail the high
speed mode and test will be terminated if neither the
provisions of paragraphs (e) (ii)(B)(I) or (e) (ii)(B)(II) is
satisfied.
(f) Second-chance idle mode. If the vehicle fails
the first-chance idle mode and passes the high-speed mode,
the mode timer will reset to zero (mt=0) and a second chance
idle mode will commence. The second-chance idle mode
will have an overall maximum mode time of 30 seconds
(mt=30). The test will consist on an idle mode only.
(i) The engines of 1981-1987 Ford Motor
Company vehicles and 1984-1985 Honda Preludes will be
shut off for not more than 10 seconds and restarted. The
probe may be removed from the tailpipe or the sample pump
turned off if necessary to reduce analyzer fouling during the
restart procedure.
(ii) The mode timer will start (mt=0) when the
vehicle engine speed is between 550 and 1300 rpm. If the
engine speed exceeds 1300 rpm or falls below 550 rpm the
mode timer will reset to zero and resume timing. The
minimum second-chance idle mode length will be
determined as described in paragraph (f) (iii) below. The
maximum second-chance idle mode length will be 30
seconds (mt=30) elapsed time.
(iii) The pass/fail analysis will begin after an
elapsed time of 10 seconds (mt=10). A pass or fail
determination will be made for the vehicle and the secondchance
mode will be terminated as follows:
(A) The vehicle will pass the secondchance
idle mode and the test will be immediately
terminated if, prior to an elapsed time of 30 seconds
(mt=30), any measured values are less than or equal to 100
ppm HC and 0.5 percent CO.
(B) The vehicle will pass the secondchance
idle mode and the test will be terminated at the end of
an elapsed time of 30 seconds (mt=30) if, prior to that time,
the criteria of paragraph (f)(iii)(A), above, are not satisfied
and the measured values during the time period between 25
and 30 seconds (mt=25-30) are less than or equal to the
applicable short test standards listed Appendix 3 (a)(7).
(C) The vehicle will fail the secondchance
idle mode and the test will be terminated if neither of
the provisions of paragraphs (f) (iii)(A) or (f)(iii)(B), above
are satisfied by an elapsed time of 30 seconds (mt=30).
SINGLE SPEED IDLE TEST
From 40 CFR 51 Appendix B to Subpart S
Test Procedures
(I) Idle Test
(a) General requirements
(1) Exhaust gas sampling algorithm. The analysis
of exhaust gas concentrations shall begin 10 seconds after
the applicable test mode begins. Exhaust gas concentrations
shall be analyzed at a minimum rate of two times per second.
The measured value for pass/fail determinations shall be a
simple running average of the measurements taken over five
seconds.
(2) Pass/fail determination. A pass or fail
determination shall be made for each applicable test mode
based on a comparison of the short test standards contained
in Appendix C to this subpart, and the measured value for
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
958 FINAL REGULATIONS
HC and CO as described in paragraph (I)(a)(1) of this
appendix. A vehicle shall pass the test mode if any pair of
simultaneous measured values for HC and CO are below or
equal to the applicable short test standards. A vehicle shall
fail the test mode if the values for either HC or CO, or both,
in all simultaneous pairs of values are above the applicable
standards.
(3) Void test conditions. The test shall
immediately end and any exhaust gas measurements shall be
voided if the measured concentration of CO plus CO2 falls
below six percent or the vehicle's engine stalls at any time
during the test sequence.
(4) Multiple exhaust pipes. Exhaust gas
concentrations from vehicle engines equipped with multiple
exhaust pipes shall be sampled simultaneously.
(5) The test shall be immediately terminated upon
reaching the overall maximum test time.
(b) Test sequence.
(1) The test sequence shall consist of a first-chance
test and a second-chance test as follows:
(i) The first-chance test, as described under
paragraph (c) of this section, shall consist of an idle mode.
(ii) The second-chance test as described under
paragraph (I)(d) of this appendix shall be performed only if
the vehicle fails the first-chance test.
(2) The test sequence shall begin only after the
following requirements are met:
(i) The vehicle shall be tested in as-received
condition with the transmission in neutral or park and all
accessories turned off. The engine shall be at normal
operating temperature (as indicated by a temperature gauge,
temperature lamp, touch test on the radiator hose, or other
visual observation for overheating).
(ii) The tachometer shall be attached to the
vehicle in accordance with the analyzer manufacturer's
instructions.
(iii) The sample probe shall be inserted into the
vehicle's tailpipe to a minimum depth of 10 inches. If the
vehicle's exhaust system prevents insertion to this depth, a
tailpipe extension shall be used.
(iv) The measured concentration of CO plus
CO2 shall be greater than or equal to six percent.
(c) First-chance test. The test timer shall start (tt=0)
when the conditions specified in paragraph (I)(b)(2) of this
appendix are met. The first-chance test shall have an overall
maximum test time of 145 seconds (tt=145). The
first-chance test shall consist of an idle mode only.
(1) The mode timer shall start (mt=0) when the
vehicle engine speed is between 350 and 1100 rpm. If
engine speed exceeds 1100 rpm or falls below 350 rpm, the
mode timer shall reset to zero and resume timing. The
minimum mode length shall be determined as described
under paragraph (I)(c)(2) of this appendix. The maximum
mode length shall be 90 seconds elapsed time (mt=90).
(2) The pass/fail analysis shall begin after an
elapsed time of 10 seconds (mt=10). A pass or fail
determination shall be made for the vehicle and the mode
shall be terminated as follows:
(i) The vehicle shall pass the idle mode and
the test shall be immediately terminated if, prior to an
elapsed time of 30 seconds (mt=30), measured values are
less than or equal to 100 ppm HC and 0.5 percent CO.
(ii) The vehicle shall pass the idle mode and
the test shall be terminated at the end of an elapsed time of
30 seconds (mt=30), if prior to that time the criteria of
paragraph (I)(c)(2)(i) of this appendix are not satisfied and
the measured values are less than or equal to the applicable
short test standards as described in paragraph (I)(a)(2) of this
appendix.
(iii) The vehicle shall pass the idle mode and
the test shall be immediately terminated if, at any point
between an elapsed time of 30 seconds (mt=30) and 90
seconds (mt=90), the measured values are less than or equal
to the applicable short test standards as described in
paragraph (I)(a)(2) of this appendix.
(iv) The vehicle shall fail the idle mode and the
test shall be terminated if none of the provisions of
paragraphs (I)(c)(2)(i), (ii) and (iii) of this appendix is
satisfied by an elapsed time of 90 seconds (mt=90).
Alternatively, the vehicle may be failed if the provisions of
paragraphs (I)(c)(2)(i) and (ii) of this appendix are not met
within an elapsed time of 30 seconds.
(v) Optional. The vehicle may fail the
first-chance test and the second-chance test shall be omitted
if no exhaust gas concentration lower than 1800 ppm HC is
found by an elapsed time of 30 seconds (mt=30).
(d) Second-chance test. If the vehicle fails the
first-chance test, the test timer shall reset to zero (tt=0) and a
second-chance test shall be performed. The second-chance
test shall have an overall maximum test time of 425 seconds
(tt=425). The test shall consist of a preconditioning mode
followed immediately by an idle mode.
(1) Preconditioning mode. The mode timer shall
start (mt=0) when the engine speed is between 2200 and
2800 rpm. The mode shall continue for an elapsed time of
180 seconds (mt=180). If engine speed falls below 2200
rpm or exceeds 2800 rpm for more than five seconds in any
one excursion, or 15 seconds over all excursions, the mode
timer shall reset to zero and resume timing.
(2) Idle mode.
(i) Ford Motor Company and Honda vehicles.
The engines of 1981-1987 Ford Motor Company vehicles
and 1984-1985 Honda Preludes shall be shut off for not more
than 10 seconds and restarted. This procedure may also be
used for 1988-1989 Ford Motor Company vehicles but
should not be used for other vehicles. The probe may be
removed from the tailpipe or the sample pump turned off if
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 959
necessary to reduce analyzer fouling during the restart
procedure.
(ii) The mode timer shall start (mt=0) when
the vehicle engine speed is between 350 and 1100 rpm. If
engine speed exceeds 1100 rpm or falls below 350 rpm, the
mode timer shall reset to zero and resume timing. The
minimum idle mode length shall be determined as described
in paragraph (I)(d)(2)(iii) of this appendix. The maximum
idle mode length shall be 90 seconds elapsed time (mt=90).
(iii) The pass/fail analysis shall begin after an
elapsed time of 10 seconds (mt=10). A pass or fail
determination shall be made for the vehicle and the idle
mode shall be terminated as follows:
(A) The vehicle shall pass the idle mode
and the test shall be immediately terminated if, prior to an
elapsed time of 30 seconds (mt=30), measured values are
less than or equal to 100 ppm HC and 0.5 percent CO.
(B) The vehicle shall pass the idle mode
and the test shall be terminated at the end of an elapsed time
of 30 seconds (mt=30), if prior to that time the criteria of
paragraph (I)(d)(2)(iii)(A) of this appendix are not satisfied
and the measured values are less than or equal to the
applicable short test standards as described in paragraph
(I)(a)(2) of this appendix.
(C) The vehicle shall pass the idle mode
and the test shall be immediately terminated if, at any point
between an elapsed time of 30 seconds (mt=30) and 90
seconds (mt=90), measured values are less than or equal to
the applicable short test standards described in paragraph
(I)(a)(2) of this appendix.
(D) The vehicle shall fail the idle mode
and the test shall be terminated if none of the provisions of
paragraphs (I)(d)(2)(iii)(A), (d)(2)(iii)(B), and (d)(2)(iii)(C)
of this appendix
(E) Are satisfied by an elapsed time of 90
seconds (mt=90)
APPENDIX 6(a)(5)
Vehicle Emission Repair Report Form
This document may be reviewed during normal business
hours (8:30 am B 4 PM) Monday through Friday at the Air
Quality Management Section Office, 156 South State Street,
Dover. For more information call Philip Wheeler at 302/739-
4791
APPENDIX 6 (a)(8)
EVAPORATIVE SYSTEM INTEGRITY
(PRESSURE) TEST
ESP Alternative Pressure Test
The EPA has defined an evaporative pressure test that
involves removing hoses from the charcoal canister. An
alternative, less intrusive test technique has been developed
by ESP. The EPA pressure test is performed by removing the
gas tank fuel vapor vent line from the charcoal canister and
pressurizing the gas tank through this line with nitrogen gas.
The pressure in the gas tank is then monitored for two
minutes and if the pressure drops below a specified level, the
vehicle is failed. The canister is often difficult to access and
the vent hoses difficult to remove and replace. The
alternative test consists of pressurizing the gas tank from the
gas tank filler neck instead of the canister. The gas cap is
removed and replaced by a gas cap adapter through which
the fuel tank is filled with nitrogen gas. The vent hose is
clamped at the canister, the gas tank is pressurized and the
pressure in the tank monitored for two minutes. Clamping
the hose rather than removing it is less likely to lead to
breakage or hoses left disconnected, reducing the liability
arising from the test procedure. The gas cap is tested on a
test rig where the gas cap can be pressurized on its own.
Removing the gas cap and pressurizing the tank from the
filler neck has the following advantages:
Half of the leaks in the gas tank occur in the gas cap. On
those vehicles where the canister and vent lines are
inaccessible, 50% of the emissions reduction available from
the evaporative system integrity check can be achieved by
just testing the gas cap. Testing the gas cap separately allows
leaking gas caps to be identified. The customer can be
recommended to replace the gas cap rather than pay to have
the leak.
The test is less intrusive as the vapor line to the charcoal
canister is clamped off rather than e a repair station isolate
the cause of removed. On some vehicles the vapor line can
be reached even when the canister:, itself is inaccessible.
The gas tank can be more rapidly pressurized through the
large filler neck opening than from the canister as the vapor
line to the tank typically has a narrow orifice in the line. This
is particularly important when pressurizing the large vapor
space in nearly empty gas tanks. The more rapid pressure
test potentially increases the throughput of the lane. The ESP
method will result in a 50% time saving in the fill time or
approximately 30 seconds. The 30 second time saving in the
multi-position lane will result in a lane throughput increase
of one to two vehicles per hour.
The ESP Alternative Pressure Test is a more accurate
test because it compensates for the volume of vapor space.
During the development of this technique, ESP discovered
that differences in fuel level in the gas tank can result in an
order of magnitude change in test results. ESP's alternative
approach is designed to compensate for the pressure drop
change of the vapor space condition. Without the ESP
method of testing, it is expected that errors of omission and
commission will result. The variability of the test results
derived from the EPA prescribed method will result in
problems such as, customer complaints for "Ping-Pong"
effects and general public dissatisfaction with the program.
To further reduce the problem of ping-ponging, ESP has
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
960 FINAL REGULATIONS
developed a pressure drop table for repair stations, that will
enable the repair technicians to perform the pressure test
with a much higher degree of correlation to the centralized
test.
Procedures for Evaporative System Integrity (Pressure)
Test
(a) General Requirements
(1) Pressure Test. The on-vehicle pressure tests
shall be performed after any tailpipe emission test. Vehicles
receiving a pressure test will also be given a gas cap leak
test.
(2) Controlling Test Variability. The pressure test
shall be conducted in a manner that minimizes changes in
temperature, since pressure measurements are affected by
changes in the vapor space temperature. Volume
compensation for the pressure test is not required, but the
vapor space volume will affect the pressure decay
measurement. Excessive fuel vapor pressure, although not
controllable at the time of test, may affect the accuracy and
repeatability of the result.
(b) Pre-inspection and Preparation
(1) Visual Inspection - Canister. The evaporative
canister(s) shall be visually checked to the degree practical.
A missing or obviously damaged canister(s) shall fail the
visual evaporative system check.
(2) Visual Inspection - System. The evaporative
system hoses shall be visually inspected for the appearance
of proper routing, connection, and condition, to the degree
practical. If any evaporative system hose is misrouted,
disconnected, or damaged, the vehicle shall fail the visual
evaporative system check.
(3) Visual Inspection - Gas Cap. If the gas cap is
missing, obviously defective, or the wrong style cap for the
vehicle, the vehicle shall fail the visual inspection.
(c) Fuel Inlet Pressure Test
(1) Equipment Set-up. The vapor vent line(s) from
the gas tank to the canister(s) shall be clamped off as close to
the canister(s) as practical without damaging evaporative
system hardware. Dual fuel tanks shall be checked
individually if the complete vapor control system can not be
accessed by pressurizing from the fill pipe interface of only
one fuel tank. The proper adapter shall be selected.
(2) Starting Pressure. The gas tank shall be
pressurized to 14" 05 inches of water.
(3) Stability. Pressure stability shall be monitored
for a period of 10 seconds prior to the start of the pressure
decay measurement. One definition of stability is a loss of
no more than 5 inches of water over a 10 second period when
the initial pressure is 14"1 inches of water. If the loss of
pressure in 10 seconds exceeds this value, two more attempts
shall be made to reach stability. Failure to achieve stability
likely indicates the presence of a large leak and therefore
failure of the pressure test.
(4) Volume Compensation. Pressure decay
measurements are affected by the vapor volume in the fuel
tank. Volume-compensated pressure decay measurements
are presently not required. By design, flow comparator or
flow measurement methods do not require volume
corrections.
(5) Pressure Monitoring. Close the pressure
source and measure the loss in pressure over a 120 second
interval. Fast-pass determinations may be made using the
equations in 40 CFR '85.2205(d)(2)(ii).
(6) Clamp Removal. Remove the clamp on the
vapor line and carefully relieve pressure and remove the
adapter used to supply pressure to the vapor space.
(d) Gas Cap Test
(1) Cap Installation. The fuel cap, or caps, shall be
removed from the fuel inlet(s) and installed on a portable or
bench test rig using the adapter appropriate for the gas cap
as specified in 40 CFR '85.2227(d)(1)(ii).
(2) Leak Measurement. The gas cap leak rate shall
be measured and compared against a 60 cc/min at 30 in.
water flow standard. Pressure decay measurement using
instruments with a 1 liter head space shall be made from an
initial pressure of 28 inches of water and be compared
against a loss of 6 inches of water in 10 seconds.
(3) Cap Replacement. The fuel cap(s) shall be
replaced on the fuel inlet and tightened appropriately.
APPENDIX 6(a)(9) ON-BOARD DIAGNOSTIC
TEST PROCEDURE
OBD II TEST PROCEDURE
Introduction
The Delaware Analyzer System (DAS) shall include the
hardware and software necessary to access the onboard
computer systems on 1996 and newer vehicles, determine
OBDII readiness, and recover stored fault codes using the
SAE standardized link. The analyzer shall be designed to
guide the inspector-mechanic through the OBDII inspection
sequence for a particular vehicle, and record the results.
(a) OBD Inspection Sequences: The following
subparagraphs describe the OBDII inspection. The display
monitor will guide the inspector through the required steps.
(1) The vehicle's front occupants will be asked to
step out of the vehicle or moved to one of the other
passenger seats. The analyzer will prompt the inspector to
perform the OBDII check on all passenger vehicles and
light-duty trucks model years covered in Section 2 -"Low
Enhanced I/M Performance Standard"
(2) The inspector will initiate an official test by
scanning or manually inputting the required vehicle and
owner information into the station manager.
(3) The inspector will visually examine the
instrument panel to determine if the MIL illuminates when
the ignition key is turned to the "key on, engine off"
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 961
(KOEO) position. This portion of the test procedure is also
known as the "bulb check." Enter this information into the
station manager.
(4) The inspector will locate the vehicle's data link
connector (DLC) and, with the key in the off position, plug a
scan tool into the connector.
(5) The inspector will start the vehicle's engine
and visually check MIL illumination under the "key on,
engine running" (KOER) condition. The inspector will
perform the scan of the vehicle's on-board diagnostics
system.
(6) Scan will determine:
(i) Vehicles readiness status
(ii) MIL status (whether commanded on or
off) , and
(iii) Diagnostic Trouble Codes (DTCs) for
those vehicles with MILs commanded on.
(b) Inspection results will be automatically recorded.
(1) Failed vehicles: vehicle owners will get a
detailed inspection report from the inspector that will
indicate the diagnostic trouble codes that have been set
[leading to the inspection failure] in the vehicle's on-board
computer. (Criteria for a failure of the OBD II test is given
in Section 6 (b) (3).)
(2) Vehicles with unset readiness: owners with
vehicles with more than two unset readiness codes for model
years 1996-2000 or one unset readiness code for model years
2001 and newer will be given a failure with a Anot ready for
testing@ result on their printed vehicle inspection report.
Owners will be required to return to the inspection facility
for a retest as soon as the readiness codes requirements of
Section 6 (b) (3) are met. The vehicle owners will be given
information concerning the readiness codes in their vehicle's
on-board computer and advised accordingly before the
vehicle is retested.
(3) An exception from the readiness codes
requirements of Section 6 (b) (3) may be given for vehicles
who have been given an initial test and are being retested
after repairs have been performed. A repair receipt
including evidence of a diagnostic scan and dated either on
the same date as the initial test or some date thereafter will
be considered adequate for establishing proof of repair for
retests purposes only. The retest procedure for OBD will be
performed according to the provisions in this appendix.
(4) An exception from the readiness codes
requirements of Section 6 (b) (3) may be given for the
following vehicles by model and year. [This list may be
updated as warranted by new information provided by
the USEPA]. The vehicles are, but not limited, to the
following:
(i) 1996 Chrysler vehicles - Vehicles may
clear readiness at key-off. Vehicles should be tested
normally. If vehicles are found to be "Not Ready," they
should be referred to a qualified service provider so the OBD
software can be updated.
(ii) 1996 - 1998 Mitsubishi vehicles - These
vehicles may have a high degree of "Not Ready" for catalyst
monitor due to a "trip based" design. Mitsubishi has
provided driving cycles in its service information to allow
monitors to operate. These vehicles should be scanned for
MIL illumination without regard to readiness status.
(iii) 1996 Nissan vehicles and 1997 Nissan 2.0
liter 200SX - These vehicles may have a high degree of "Not
Ready"for catalyst and evaporative monitors due to a "trip
based" design. Nissan has provided driving cycles in its
service information to allow monitors to operate. These
vehicles should be treated as other non-problematic vehicles.
Nissan Technical Service Bulletin #NTB98-018, February
18, 1998.
(iv) 1996-98 Saab vehicles - These vehicles
may have a high degree of "Not Ready"for catalyst and
evaporative monitors due to a "trip based" design. Saab has
provided driving cycles in its service information to allow
monitors to operate. These vehicles should be treated as
other non-problematic vehicles.
(v) 1996 Subaru vehicles - Vehicles will clear
readiness at key-off. There is no reprogramming available
for this line of vehicles. These vehicles should be scanned
for MIL illumination without regard to readiness status.
Subaru Technical Service Bulletin #11-49-97R.
[(vi) 1997 Toyota Tercel and Paseo - Vehicles will
never clear the evaporative monitor to "Ready." At this
time no fix is available. Vehicles should be scanned using
remaining readiness monitors as described for nonproblematic
vehicles.
(vii) 1996 Volvo 850 Turbo - Vehicles will clear
readiness at key-off. There is no reprogramming
available for this line of vehicles. These vehicles should
be scanned for MIL illumination without regard to
readiness status. Volvo Technical Service Bulletin #SB 2-
23-0056.
(viii) 1996-98 Volvo vehicles (excluding 850 Turbo) -
These vehicles may have a high degree of "Not Ready"
for catalyst and evaporative monitors due to a "trip
based" design. Volvo has provided driving cycles in its
service information to allow monitors to operate. These
vehicles should be treated as other non-problematic
vehicles. Volvo Technical Service Bulletin #SB 2-23-
0056.]
APPENDIX 7(a)
EMISSION REPAIR TECHNICIAN CERTIFICATION
PROCESS
Effective January 1, 1997 for vehicles registered in New
Castle County and July 1, 1997 for vehicles registered in
Kent County, in order to qualify for waiver repairs on any
1981 or later model year vehicle shall be performed by a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
962 FINAL REGULATIONS
certified repair technician or a certified manufacturer repair
technician, as defined in Section 1 of this regulation. The
cost of such repairs must total no less than $200. Under the
policy developed by the Department, a Certified Emission
Repair Technician may be certified as trained to do repairs
on all makes of vehicles or vehicles of a specific
manufacturer. Auto repair technicians seeking to become
certified under Regulation 31 have the following options in
attaining the certification:
1. All those applying for certification can "test out" and
gain certification without further emission repair training as
provided by the College or Auto Manufacturer or other
training organization. The "test out" process is administered
by the College as follows:
• Applicants without L1 ASE (Automobile Service
Excellence) certification must first take the
Fundamental Inspection Repair System Training final
exam. Those achieving a score of 75% or better are
eligible to take the Delaware Emission Education
Program certification exam.
• Applicants achieving a score of 75% or better on the
certification exam will become certified on all makes of
vehicles. Applicants with L1 ASE certification can test
out by taking the Delaware Emission Education
Program certification exam ONLY.
2. The testing procedure discussed above will determined
what, if any, training is needed for applicants seeking
certification.
• Technicians scoring below 75% on the Fundamental
Inspection Repair System Training final exam must take
a 60 hour fundamental emission repair training course
provided by the College.
• Those completing the 60 hour program and scoring
75% or better on the final exam can advance into a 40
hour class which is the next level of training, or attempt
to test out and take the certification exam, scoring 75%
or better to become certified.
• Technicians scoring below 75% on the Delaware
Emission Education Program certification exam must
take a 40 hour emission repair training course provided
by the College and then score 75% or better on the final
exam to become certified.
3. Technicians who are L1 ASE certified and who have
approved manufacturer's emission repair training will be
certified for each make of vehicle of each manufacturer that
the technician was trained to do emission repairs. The
procedure for certification is as follows:
• The Department will evaluate each of the
manufacturers OEM Emissions Path to determine if it
meets a reasonable minimum standard. This evaluation
must contain proof that the manufacturers course work
clearly covers the Delaware I/M regulation (e.g. waiver
process, etc.)
• Candidate manufacturer technician submits: His/her
transcript from the manufacturer on courses taken and
passed and; Proof of ASE L1 certification to the
Department.
• Candidate manufacturer technician takes and passes a
Delaware-specific short test which is intended to test the
candidate on the Delaware regulation, any specifics on
waivers that should be known, and general questions on
vehicle repair.
• The Department and the Division issues
manufacturing-specific certification with clearly marked
authority on the certificate.
APPENDIX 8 (a)
Registration Denial System Requirements Definition
April 30, 1997
Prepared by: BarryW. Pugh and
Edited by: Cheryl Roe - DMV
Version 1.1
Section I , Management Summary
Goals and Objectives
Improved Customer Service, Convenience and Control:
1. Implement Bar Coding interface to the Title and
Registration function.
2. Design an interface between Registration Renewal
and Titles to the Registration Denial system that will enable
the State of Delaware to obtain an improved rating though
Cleaner Air.
3. Design a Temporary tag tracking system.
4. Design an automated Waiver/Override system.
5. Design a Repair Facility and Repair Technician
tracking system.
6. Design improved data inquiry capabilities and
distribute to necessary customers.
Improved Personnel Training and System On-Line Help:
1. On-Line Help Training within each of the
applications.
2. On-Line Training through specialized system
testing.
3. Improved Operating Procedures.
Improved System Security and Flexibility:
1. System Security
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 963
· Override system parameter changes based on
functionality.
· Override system parameter changes based on
specific fields.
· Improved tracking of transactions, personnel
and dates.
· Improved reporting to DMV management.
1. Provide additional facilities for trouble shooting
and problem investigation capabilities.
Flexibility and Responsiveness to External
Requirements:
1. Ability to create and maintain the registration
denial tables.
2. Maintain tracking history information for the
following functions:
• Temporary and Window Sticker inventory
• Temporary Tag history
• Window Sticker history
• Vehicle Inspection history
• Lane Inspector history
• Waiver history
• Override history
• Repair Facility and Repair Technical history
• Registration Notices
• External Agency history
• Audit request history
Improved Business Control Over the System:
1. Operators:
• Tighter control over the issuance of registration
notices, vehicle inspections, registration renewal,
title and registration denial, temporary tags and
waivers.
• Improved controls over the issuance of window
stickers.
• Better customer service through the offering of
inspection overrides and the tracking of external
agency vehicle inspections.
• Provide for the tracking of Certification of all Lane
Inspectors and the Re-Certification.
1. Transactions:
• Add on-line Waiver, Override, Vehicle Inspections,
Temporary tags and Window Stickers.
1. Auditing:
• Reduction of the number of vehicles being renewed
without an inspection.
• Reduction of the number of multiple temporary tags
being issued to the same vehicle owners.
• Identification of missing temporary tags and
window stickers from DMV inventory.
• Decrease the number of false inspection readings.
• Decrease the number of external agency vehicles
traveling the Delaware highways without receiving
vehicle inspections.
• Increase inspection accountability through more
accurate vehicle inspection testing.
• Increase reporting accuracy to the Environmental
Protection Agency.
Improved System Functionality:
1. Title and Registration Denial:
• Improved editing on title and registration
application.
• Design interface between vehicle inspections,
temporary tags and waivers.
1. Linkage to mainframe MVALS database:
• Information transfer from vehicle inspection
database.
• Information transfer from temporary tags, window
stickers and the title and registration database.
• Information transfer of registration denial data to
DNREC and EPA.
• Control the issuance of temporary tags though lot
range controls.
• Control the temporary tag inventory through the
delivery and distribution of temporary tags.
1. Bar Code interface on title and registration cards.
2. Automation and change to reports:
• Provide on-line tracking of inspectors by location,
date and time.
• Provide an inventory control system enabling the
Division to review temporary tags and window
stickers.
• Provide Title and Registration clerks the ability to
review active and historical inspection results online.
• Provide an interface to the Title and Registration
application to effectively associate a vehicle
inspection with a specific registration and deny
access until the vehicle has been successfully
approved.
• Provide inspector information of a specific
registration in association with a vehicle inspection.
• Provide on-line reporting activity by specific
testing, location, time and inspector on a weekly,
monthly and fiscal basis.
• Provide the ability to track vehicle repairs and
associate them with the proper vehicle registration.
• Track overrides that are associated with a vehicle
inspection.
• Provide on-line access to inspection results data to
the Department of Natural Resources and
Environmental Control.
• Provide the ability to select specific inspection
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964 FINAL REGULATIONS
information and print specific analysis reports.
• Provide the ability to create on-line reports to EPA
on a weekly, monthly and fiscal basis.
• Provide customers with notification of inspection
90 days prior to the expiration date.
1. External Agency Vehicle Identification
• Provide the ability to identify/track external agency
vehicles being operated in Delaware.
• Provide the ability to ensure the external agency
vehicles have complied with the Federal standards.
• Provide the ability to automatically send and
receive vehicle inspection information.
• Provide the ability to report inspection result to the
Environmental Protection Agency.
Project Scope
This document does not include portions of the project
already in progress or being addressed by other selected
DMV vendors such as Environmental Systems Products, Inc.
(ESP). It centers on the mainframe application development
and maintenance that must be completed to support the
requirements of the project. It assumes the vehicle inspection
information to be correct and residing in the databases
already established for the Registration Denial project and
that ESP has provided OIS with complete and detailed
technical documentation of the database content, data
manipulation, calculations and report specifications. The
State Implementation Plan (SIP) for the Enhanced Inspection
and Maintenance Program prepared by the Delaware
Department of Natural Resources and Environmental
Control (DNREC) is the basis of this scope. The SIP is
scheduled to be submitted to the Federal Environmental
Protection Agency (EPA) in January 1997 for review and
approval. This scope most certainly will be subject to change
based upon the EPA review and their findings.
Background:
Motor vehicle inspection and maintenance programs are
an integral part of the effort to reduce mobile source air
pollution. Of all highway vehicles it appears that, passenger
cars and light trucks emit most of the vehicle-related
pollutants. Although progress has been made in the
reduction of these pollutants, the continuous increase in
vehicle miles traveled on the highways has offset much of
the technological progress thus far. Under the Clear Air Act,
the Federal Environmental Protection Agency is attempting
to achieve major emission reductions from these
transportation sources. Until the development and
commercialization of cleaner burning engines and fuels are
successful, the main source of air pollution reduction will
come from the proper maintenance of the vehicles during
customer use.
To put the inspection program in perspective, it is
important to understand that today's motor vehicles are
totally dependent upon properly functioning emission
controls to keep pollution levels low. Minor malfunctions in
the emission control system can increase emissions
significantly. Since these emissions may not be noticeable
and the subsequent malfunctions do not necessarily affect
vehicle drive ability, it is difficult to detect which vehicles
fall into this category. The new inspection equipment and
programming provided by Environmental System Products
(ESP) will capture that important data and record it on the
mainframe for access by the registration renewal and vehicle
titling programs. Those systems will verify the results and
permit vehicles passing the inspection tests to proceed
through the DMV system without change. Failing vehicles
will require repair and re-testing until they pass or receive a
vehicle waiver from DMV management.
Project Scope:
DMV has suggested that the project be designed and
implemented in phases. Phasing the project installation
makes a great deal of sense since many of the components of
the entire project are still not totally defined. DMV's
recommendation is:
Phase I:
• Create database images to store the ESP
information.
• Test ESP system and database content.
• Analyze database content and verify accuracy.
• Install Phase I into production and begin
accumulating EPA information.
Phase II:
• Design, code and test Registration Renewal Denial.
• Design, code and test a new (summary) Vehicle
Waiver system.
• Design, code and test a new Inspection Results
Override system.
• Design, code and test new rules for Registration
and Title Denial.
• Design, code and test a new temporary tag
extension tracking system.
• Design, code and test preliminary DMV
management reports.
• Test on-line access to MVALS by DNREC
personnel at their site locations.
• Add bar coding to the registration card print.
• Implement Phase II into production.
Phase III:
• Design, code and test Title Denial.
• Design, code and test inspection results database
"time remaining" routines for:
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 965
• Registration Renewal Denial.
• Registration Renewal Notices.
• Title Denial.
• Add bar coding to the Title form.
• Implement Phase III into production.
Phase IV:
• Design, code and test reporting for DNREC and
EPA auditing.
• Test on-line access to MVALS reports by DNREC
personnel at their site locations.
• Design, code and test a new inventory control
system for window stickers.
• Implement Phase IV into production.
Phase V:
• Design, code and test DAFB vehicle tracking
system.
• Design, code and test Federal vehicle tracking
system. (PV, PO, etc.)
• Implement Phase V into production.
Phase VI:
• Design, code and test a new Certified Repair
Technicians system.
• Design, code and test a new Certified Lane
Technicians system.
• Design, code and test a new (detail) Waiver system.
• Create special files and/or downloads and reports to
assist the DAFB in their conversion efforts.
• Design, code and test the identification and
reporting of covert vehicles.
Phase I:
The Registration Denial project centers around an
automated vehicle inspection system (installed by ESP) and
subsequent customer permission to title or renew a
registration in the State of Delaware. The new ESP system
will replace the need to issue inspection cards and the
associated manual inspection card tracking systems currently
in place. Instead, the new system will record the information
results and data of a physical vehicle inspection in databases
locally on the lane PC server and remotely at OIS on the
IBM mainframe. The mainframe databases will be the final
residence of the data and those databases will be used for all
system decisions and reporting. That database information
will be used by the MVALS programs to determine if the
vehicle is in compliance with Federal and Delaware codes
and laws governing legal vehicle registration. If the vehicle
passes all of the inspection tests, it becomes eligible to
legally travel Delaware roadways. Inspection results are
related to the vehicle and applicable for 2 years.
The inspection results database and supporting
databases must be mapped back to the reporting
requirements of DMV management, DNREC and EPA in
this phase to be absolutely positive all of the informational
contents are present. Inconsistencies in the mapping may
require modifications to the ESP data capture.
Phase II:
The vehicle will be rejected by MVALS if it does not
pass all the inspection criteria. In this case, a temporary (60
day) tag may be issued to give the customer time to correct
the detected problems with the vehicle. The design will
incorporate tracking and reporting on the temporary tags
after the time of issuance. When a vehicle is rejected, the
customer may elect to repair the deficiency and attempt to
pass the inspection again. Vehicle repairs may be made by a
Certified Technician or by the customer. If the vehicle
continues to fail the inspection but does not decrease
measured emissions by set percentage guidelines, DMV may
elect to issue an inspection waiver based upon established
rules, limitations and customer expenditure amounts. A
vehicle summary of waiver expenditure information for this
inspection period must be recorded and tracked in a new
database by vehicle. This new database must be read during
the registration renewal process, for all failing vehicles, to be
sure a current record exists prior to allowing the vehicle to be
legally registered. A vehicle waiver overrides the most
recent inspection result. It is related to a vehicle and effective
for 2 years. The waiver and inspection results databases must
be accessible to DNREC personnel for inquires using
MVALS.
At times DMV management may elect to override the
results of an inspection and permit the vehicle legal
registration without further inspections by the lane
technicians. The system must permit management to
override the vehicle inspection result record with a passing
grade. When an override is granted, the system must record
the new (overridden) information and track who, when and
why the override was given. The new record will be stored in
the inspection results database along with information about
the operator, date and time. An override reason must be
supplied before the record is written to the database.
Override capability and permissible override categories must
be controlled by an external means to permit DMV
management to modify who can override inspection results
and what can be modified.
Upon a successful inspection or if the results were
overridden or a waiver is issued, a registration renewal card
containing a PDF417 bar code and a new window sticker
will be issued (when implemented) upon payment of fees by
the customer.
Phase III:
When a vehicle is titled in the State of Delaware, it must
also comply with safety and emission tests prior to becoming
registered. The titling system must be modified to access the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
966 FINAL REGULATIONS
new inspection results database to make the appropriate
decisions. Vehicle titling must be modified to parallel the
upgrades installed into the registration renewal system. It
must apply all of the same rules, waiver conditions and
override capabilities. A title containing a PDF417 bar code
and a new window sticker will be issued (when
implemented) upon payment of fees by the customer.
After a vehicle has been renewed or titled and
successfully passed inspection, or granted a waiver, the
customer has the option to choose a renewal period of 6
months, 1 year or 2 years. Since inspection results and
waivers are valid for 2 years, the system must determine the
amount of time remaining on the inspection based upon the
renewal period chosen by the customer. This algorithm must
be incorporated in the registration renewal, registration
renewal notification and title systems.
Phase IV:
DMV management, DNREC and the Federal EPA
require reports to be generated from the data captured on the
inspection results database. DMV management requires
specific counts of vehicles, the types of tests that are
performed and the results and percentages of the testing.
They will also require management reports and online
inquires to monitor the inspection system performance,
database contents and results. DNREC and the Federal EPA
reporting requirements are normally completed on an annual
arrangement and require reports concerning; the numbers
and types of tests, vehicle breakdowns by make and year,
first test and re-test results, information about the testing
facilities and the results of both covert and overt audits.
DNREC must be permitted access to the inspection
results and waiver databases through an on-line function that
will be created within the MVALS application. This function
will allow DNREC to review the inspection results and
(summary) waiver information on all vehicles. To insure
DMV is in compliance with the Federal regulations, DNREC
will be given the capability to order printed reports on-line
from MVALS concerning the inspection results and waiver
information.
Tracking and re-calling certified lane technicians is
definitely going to be another new responsibility of the
Division. DMV must track all State inspectors requiring
testing and re-certification in order to comply with the new
Federal EPA regulations. Reports on this activity must be
submitted to the Federal EPA on an annual basis.
Phase V:
In addition to the normal vehicle registration activity
occurring for Delaware citizens, with the new EPA
requirements, DMV must inspect approximately 10,000
additional vehicles owned by; the (non-military) Federal
Government, the military and military personnel from the
Dover Air Force base (DAFB). The majority of these vehicle
inspections will be on personally owned vehicles (POV)
from the DAFB. The DAFB presents a unique opportunity to
DMV because POV's are normally not registered in
Delaware. Delaware does not require out of state vehicles to
be inspected. However, with the new federal regulations,
DMV is required to ensure that vehicles residing within the
jurisdiction are in compliance with the state-regulated
inspection program. This now includes all non-military
Federally owned vehicles and vehicles stationed at federal
military sites throughout the state even if they are not
registered in Delaware. Notifying, tracking and re-calling
(test failures) POV's will require cooperation and
coordination with DAFB motor pool and security personnel.
Additional software and databases may be required to assist
in a successful implementation.
Phase VI:
As stated previously, the State Implementation Plan (SIP) for
the Enhanced Inspection and Maintenance Program prepared
by the Delaware Department of Natural Resources and
Environmental Control (DNREC) is the basis of this scope.
The SIP is scheduled to be submitted to the Federal EPA in
January 1997 for review and approval. This phase is subject
to change based upon the EPA review and their findings. The
following tasks are not definite requirements but may
become so after the EPA has made their final decision.
Certified repair technician information is currently
being gathered and retained by the Delaware Technical
Community College. DMV would like access to the
information to enable them to incorporate the data into the
motor vehicle inspection reports that will be produced on
failed inspections. Tracking reports will include the number
of vehicles passing and failing by Certified Technician and
the repairs performed by the technician on each vehicle.
DMV may require the information to be downloaded from
DTCC or if that is not possible, they may have need to
maintain the information in duplicity.
When a vehicle is titled or renewed in the State of
Delaware, the Division must comply with the security
requirements established by the EPA. It requires the Division
to track and report all stickers issued to vehicles that have
passed the inspection program. It will be necessary to track
a history of these documents when being issued, re-issued
and/or replaced.
In Phase II, summary waiver information is going to be
stored in a new database to assist in tracking vehicle waivers
that are issued. It is planned that DNREC will retain the
detail backup paperwork and copies necessary to comply
with the Federal regulations. If DNREC requires DMV to
record the details of a waiver, the system must be modified
to comply. Waiver details would include recording the place
of purchase, the line items purchased for repair and the
individual amounts of each.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 967
If additional programming or design support is required
to assist the DAFB or other Federal agencies in meeting their
schedules and requirements, DMV may supply resources to
assist in the effort. The agencies requiring assistance may
require reports, file downloads and programming expertise
to expeditiously complete their commitment.
DNREC is currently handling all assignments and
identification of covert vehicles. If they require assistance in
this effort or require DMV to specially track them in the
MVALS system, additional design and programming will be
required. Reports on the activity of the covert vehicles would
also be required.
Exclusions:
Not included in the scope of this project are:
• Data capture, recording, tracking and reporting of
repair facilities.
• Special demarcation of Kent and Sussex county
boundaries.
• Design or software programming to handle
identification of covert and overt vehicles.
• Purchase of software for bar code printing.
• Covert vehicle identification and reporting issues.
• Vehicle manufacture notification requirements.
I accept this Project Scope as written and agree on the
contents within.
Approved by:
Michael Shahan, Director of Motor Vehicles
Approved by:
Jack Eanes, DMV Chief of Vehicle Service
Approved by:
Cheryal Roe, DMV Systems Administrator
Approved by:
John J. Nold, Executive Director, OIS
Prepared by:
Barry W. Pugh, OIS Consultant, MicroTek Software
Management Overview
Background
Motor vehicle inspection and maintenance programs are
an integral part of the effort to reduce mobile-source air
pollution. Of all highway vehicles, it appears that passenger
cars and light trucks emit most of the vehicle-related
pollutants. Although progress has been made in the
reduction of these pollutants, the continuous increase in
vehicle miles traveled on the highways has offset much of
the technological progress thus far. Under the Clear Air Act,
the Federal Environmental Protection Agency (EPA) is
attempting to achieve major emission reductions from these
transportation sources. Until the automotive manufacturers
develop and commercialize cleaner-burning engines and
fuels, the main source of air pollution reduction will derive
from the proper maintenance of the vehicles during customer
use. The contents of this System Requirement Definition are
subject to change based upon EPA review of the Delaware
State Implementation Plan (SIP) and their findings.
To put the inspection program in perspective, it is
important to understand that today's motor vehicles are
totally dependent upon properly functioning emission
controls to keep pollution levels low. Minor malfunctions in
the emission control system can increase emissions
significantly. Since these emissions may not be noticeable
and the subsequent malfunctions do not necessarily affect
vehicle performance, it is difficult to detect which vehicles
fall into this category. The new inspection equipment and
programming provided by Environmental System Products
(ESP) will capture that important inspection data and record
it on the mainframe for access by the registration renewal
and vehicle titling programs. Those systems will verify the
results and permit vehicles passing the inspection tests to
proceed through the DMV titling and registration systems
without change. Failing vehicles will require repair and retesting
until they pass inspection or receive a vehicle waiver
from DMV management. All subsequent action, beginning
with the initial inspection test - such as re-test inspection
results, waivers, and overrides - will be recorded by the
system.
The Project Scope document refers to six
implementation phases within the development process of
this project. Those six phases translate into six high-level
requirement specifications categories. It is important to
understand that the six requirement categories do not all
directly relate to the six installation phases. Part or all of
each requirement category will be implemented to establish
the six-phase approach for implementation. The categories
defined in the System Requirements Definition document
are:
1. System Control - This section of the requirements
document encompasses system rule file maintenance, new
temporary tag and window sticker inventory file
maintenance, and certified lane technician maintenance. All
of the functions within this design category must be
implemented before the system can become operational.
2. Vehicle Inspection - This corresponds to Phase I of
the Project Scope and must be implemented in its entirety
before other components may be installed that depend on the
Inspection Result data produced. The requirements
document refers to, but does not detail, the client/server
system developed by ESP. Since this document was
developed after the ESP design, it only addresses utilization
of the data produced. Additional information regarding the
design of the system can be located in the ESP design
document.
3. Vehicle Registration - The requirements described
under this section cover registration renewal, vehicle titling,
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
968 FINAL REGULATIONS
temporary tag distribution, window sticker distribution,
inspection result verification/handling, and vehicle repair
tracking. All of the components in this section must be
implemented before the system can go online. Registration
renewal will be the first section to be implemented, with the
title section to follow. To support either section, temporary
tag distribution, window sticker distribution, and inspection
result overrides and waivers must be installed. The certified
repair facility and technician tracking components may be
installed after the system becomes operational.
4. External Agency - External agencies are vehicles
that are not registered with the State of Delaware. Examples
of these are: Dover Air Force Base motor pools and civilian
vehicles; Postal Service vehicles; Reserved Armed Forces
vehicles; etc. Identification of these vehicles will not be as
straightforward as the vehicles registered in Delaware
because DMV does not keep records for them today. The
Clean Air Act requires those vehicles to comply with the
EPA emission standards as long as they continue to operate
in Delaware. This section addresses the requirements and
how to accomplish them. As each agency is introduced to the
system, new program components may be required. Each
agency may be processed differently than the previous,
based upon their technical capabilities. DMV will strive to
develop a standardized approach and demand adherence
from all external agencies. The components described in this
section are required before introducing the first external
agency to the system.
5. Audit Reporting - Requirements for three auditing
techniques have been identified: standard auditing reports
and functions; special auditing functions; and auditing as
required by DNREC. Auditing the system on a periodic basis
- daily, weekly, etc. - is considered a standard procedure.
Reports and screens will be programmed to run
automatically for all of the standard auditing procedures.
Special audits and DNREC (overt and covert) audits will be
discussed and will permit flexibility in selection and
formatting of the information. Registration Denial data
transfer to local PCs will also be an option.
6. Information Inquiry - The components in this
section represent additional inquiry functions required to
view the new information. Three separate areas have been
defined as requiring access to the information: DMV, the
State Police, and DNREC. Each will share many of the same
inquiry components with "information blocks" applied when
information is required by one agency and not the other.
System rules will be developed to control the information
selection and screen displays. Portions of this section will be
required as the initial system is installed. Advanced inquiry
facilities will be identified and included as the detail system
specifications are developed.
The following paragraphs supply additional detail in
reference to the above system requirement categories. If
more detail is required, please refer to Section II - Data
Requirements and Section III - Process Requirements
located later in this document.
System Control
The requirements described in this section are designed
to keep the inventory files and system rules updated and in
control of the system. Currently there are five separate
processes defined:
1. The Registration Denial Rule Maintenance process
will permit DMV management to maintain all of the
associated rules concerning the Registration Denial system.
Rules pertain to system variables that actually "drive" the
system decision-making process. Externalizing the rules
permits more flexibility and better overall control of the
system by DMV.
2. A Temporary Tag Inventory maintenance system
will be developed to control the acquisition and distribution
of all temporary tags. The maintenance system will allow
control of and accounting for each temporary tag distributed
by DMV. Control begins when new inventory is received. It
will be tracked until the vehicle to which the tag was
assigned is purged from the DMV files. The inventory and
temporary tag history files will be closely related.
3. A Window Sticker inventory control system will
permit similar control (as in the case of temporary tags) over
the window stickers issued by DMV. The maintenance
system will allow control of and accounting for each window
sticker distributed by DMV. A vehicle window sticker
history file will be incorporated with the present DMV title
file.
4. The Certified Lane Technician maintenance system
will allow DMV to track and record information about their
lane technician employees. Information such as certification
test results, re-certification results, and demographic data
will be retained and reported.
5. The last new maintenance system planned will
track Certified Repair Facilities and associated Certified
Repair Technicians. The system will permit maintenance and
reporting of repair facilities employing certified repair
technicians and their certification test results.
Vehicle Inspection
This section describes the physical vehicle inspection
that normally occurs for every registered vehicle in
Delaware. The process is completed prior to a vehicle being
titled, and then (normally) every 2 years after for registration
renewals. The entire process occurs at the inspection lane(s)
and is conducted at various checkpoints within. The ESP
system controls the events that occur during the inspection
process and helps ensure that each station checkpoint records
the appropriate results. The results of each checkpoint test
will be recorded and stored in the ESP station manager
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 969
computer and then transmitted to the OIS mainframe in
Dover, Delaware, for permanent storage and retention. ESP
handles all pass and fail parameters, anti-tampering
verification and recording, permissible limits of the test, and
calculating the 10% reduction in emission gases from the
initial inspection for waiver processing. ESP also issues the
final pass or fail grade for the vehicle.
Vehicle Registration
The normal DMV administrative "life cycle" of a
vehicle is described in this section. It begins when the
vehicle is purchased and titled in the State of Delaware.
Under normal circumstances, a vehicle will undergo an
inspection to initiate this process. However, most new
vehicles purchased in the state are exempt from an initial
inspection. During the vehicle "life cycle," it may be issued a
temporary tag, window sticker, or a waiver for emissions; or
the inspection test results may be overridden by DMV
management. As the next vehicle-registration renewal period
nears, a registration renewal notice is printed and sent to the
customer. That notice prompts the owner to bring the vehicle
to DMV for an inspection and registration renewal. The
process (Notice, Inspection, Renewal) continues as long as
the vehicle ownership does not change and the vehicle
remains in Delaware. The major new portions of the Vehicle
Registration component for Registration Denial are:
Temporary Tags -
Once a vehicle is issued a temporary tag, the paperwork
flows into DMV for recordkeeping. A clerk will enter the
temporary tag information into the computer using a new
temporary tag data-entry program. The program will
complete a stolen vehicle check as is currently done while
adding a title. A record will be added to the Temporary Tag
History file for that (X) tag number. That record will then be
available for inquiry by DMV and law enforcement. It can
be found by entering the VIN or the (X) temporary tag
number. The record will remain linked to the vehicle by VIN
until the vehicle is purged from the DMV files. As the record
is being recorded in the Temporary Tag History file, the
temporary tag number will be consumed from theTemporary
Tag Inventory file. Temporary tags are not tracked by today's
system and will be valuable new information for DMV and
law enforcement agencies. The introduction of this system
will be completely new to DMV.
Window Stickers -
After a vehicle is titled or renewed, it will be assigned a
new window sticker. The current processes will be modified
to assign the next available window sticker to the vehicle
from the clerk's inventory. As a safety precaution the clerk
must enter the window sticker number, and the program will
verify the number against the available window stickers in
the clerk's inventory. If the number is not found, a window
sticker override will be permitted. A reason for the override
must be supplied by the clerk. The program will consume the
window sticker from the clerk's inventory and add the
information to the Window Sticker History file. The Window
Sticker History will remain on the DMV files for a minimum
of one inspection cycle. Replacement window sticker
issuance and fee collection will be made available on the
Cash Collection miscellaneous menu. Window sticker
inventories, distribution, and tracking are new processes to
DMV.
Title Vehicle -
Vehicle titling is required by law, and all vehicles owned
by Delaware residents traveling the highways must be titled.
The title function encompasses several functions today, such
as adding, correcting, and transferring titles. All of the
functions used by the title section will be affected by the
changes being made for the Registration Denial project.
Titling can only occur after the vehicle has passed all of the
inspection tests required of the particular vehicle class.
There are a few exceptions, such as the fact that a vehicle
may be permitted an override (and pass) of a failed test by
DMV management. Or, a vehicle may receive a waiver if it
meets the vehicle repair expense limits and obtains a ten
percent emission reduction measured from the initial test. A
window sticker must also be issued to the vehicle.
The Correct Title function permits the title clerk to
correct information on the Title file that may have been
entered incorrectly during the title add function. New
features must be included in the program to calculate the
remaining time left on an inspection and restrict expiration
date modification to the last day of that inspection.
Additionally, extensions beyond that inspection date will not
be permitted by the program without another inspection. The
program will require the capability to assign a new window
sticker without regard to inspection dates, although the
Correct Title function for a tag change will not issue a new
window sticker. The window sticker stays with the vehicle in
all cases.
The Transfer Title function permits the title clerk to
transfer vehicle title and associated information from one
owner to another. Transfers occur anytime vehicle ownership
changes for any reason. Expiration dates cannot be
transferred to another vehicle. In all cases, a vehicle
expiration date remains with the vehicle, not the tag.
The introduction of inspection result verification and
handling, window sticker inventories and distribution,
waivers, and overrides are new concepts that will be
introduced to DMV with the installation of this system.
Waiver Process -
This process allows a clerk, or DMV management, to
store vehicle waiver repair information into the system for a
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
970 FINAL REGULATIONS
specific vehicle. The system will record the waiver
information and retain links to the Inspection Results, Title,
and Certified Technician files. Those linked files will be
used for tracking and reporting the effectiveness of repair
technicians and the waiver information permitted by DMV.
The waiver information will be validated by the Title and
Registration Renewal systems. When present and within the
confines of the rules set by DMV, the vehicle will be
permitted to proceed through the system without a passing
inspection record. Waivers may be entered directly from the
Titles and Registration Renewal screens or through an
administrative function. The repair facility and repair
technician information completing the vehicle repairs must
be present in their respective files before a waiver can be
entered. The repair facility and technician information may
only be modified by DMV supervisors and above. Recording
and verifying this information via computer is a completely
new function to DMV.
Override Function -
This function will be used by DMV management (and
selected supervisors) and permit them to perform four major
functions against the Inspection Result file. It will allow:
1. Adding an Inspection Result record to the file. This
will only be permitted when the ESP system is down and
vehicle inspections revert back to the Bar 84 technique. This
function will be extremely secure and verified each time a
new entry is attempted.
2. Modification of the Inspection Result content. This
is the function normally known as an override. The function
will be restricted to particular DMV personnel, and even
those permitted will have data-level restrictions. Overrides
will be permitted on a case-by-case level and normally
restricted to only safety item failures.
3. Transferring Inspection Results from one
registration to another. This option will be used when the
lane technician makes a mistake while entering the vehicle
identification information. When a mistake has been made,
the inspection results will be logged under the wrong
registration. The customer will not be permitted to continue
through the process unless the mistake is rectified. The
system will track the transfer (from and to) information and
create another record for the proper vehicle. The original
inspection record will not be included in any statistical
reporting.
4. Deleting individual Inspection Result records from
the file. This is a very rarely used, but required, function to
delete an inspection result record from the file. This option
will be used when an inspection result record was created
(Option #1 above) under the wrong registration. The record
will be marked for deletion, but it will not be physically
deleted from the file until the proper authorization is given
by DMV management. This function will be highly secured
and available only to those that absolutely require the
function.
Daily auditing reports will be produced by the system
and distributed to DMV management for all of the above
functions. All of the functions listed above are completely
new to DMV.
Renewal Notice -
This process will be modified to produce additional
customer notices for one-year renewal and State Police
inspection requests. It will examine the Titles and Inspection
Results files to identify the vehicles whose registrations are
about to expire. It will determine if the vehicle requires an
inspection or just a registration renewal. It will also find
vehicles that have been requested to report to DMV for a
special inspection by the State Police. While processing the
selected records, it will determine if a vehicle must receive
an inspection or if the current inspection is valid for the
vehicle registration renewal. Vehicles that have been
inspected within the last year may renew their registration
for one additional year without another inspection. All the
requirements of the owner to obtain a registration renewal
will be printed on the renewal notice. The two-year
inspection rule applies in all cases and will be printed on the
notice. The reporting changes are modifications to the
current process. Adding a maintenance program to update
vehicles stopped by the State Police is a new requirement of
DMV.
Registration Renewal -
The registration renewal process will be modified to
verify the inspection results file before permitting a renewal.
As in the title process, a renewal will only occur after the
vehicle has passed all of the inspection tests required for a
particular vehicle class, or it was permitted an override (and
pass) of a failed inspection, or a waiver was issued. A waiver
requires proof of repair expenses and a ten percent emission
reduction from the initial inspection before a renewal may be
issued. The renewal process updates the current title record
in the Title file. Once the title record is updated, the system
prints a 2-D bar code on the updated registration card and
issues the next available window sticker from the clerk's
inventory. If the vehicle does not pass the inspection, a
temporary tag will be issued, without a window sticker, by
the registration clerk. Temporary tag issuance will be
accessible through the renewal screen. As with the title
functions, inspection result verification and handling,
window sticker and temporary tag inventories, waivers, and
overrides are new concepts to the registration clerks.
External Agency (Unregistered Vehicles)
This process is designed to permit DMV to identify and
test vehicles stationed in Delaware that are owned by
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 971
external agencies and not registered in Delaware (such as
those owned by the DAFB, the postal service, and other
federal motor pools). Those vehicles must be identified and
tested to be sure they are in compliance with the federal
emission standards. It is the responsibility of the individual
agency to perform the follow-up to ensure that all vehicles
are, and remain, in compliance. The system design for this
function will incorporate:
• automatically receiving and loading the vehicle and
owner information into a database that will be used
by ESP;
• using the information to inspect and test the vehicle
(ESP);
• recording the test results and subsequent re-test
results;
• providing the Inspection Results data to the external
agency in either a report or an online inquiry so that
notices may be forwarded by the agency;
• and reporting vehicles inspected and statistical
information.
The introduction of this system will be completely new
to DMV.
Audit Reporting
This process will match the Title, Inspection Result, and
at times the Vehicle Audit Information files and create
reports about the information. Specific calculations and
formats will be determined as the design process continues.
External rules will be used to control the processing. All of
the following components are new to DMV:
Standard Audit Reports - The reports will be standard
reports that will run unattended periodically and produce the
necessary reporting and audit information. The reports will
be designed in conjunction with DMV management to
support the information required by DNREC and the EPA.
Some of the reports will be written as part of the Phase II
installation since EPA will require reports before the system
will be fully installed.
Specialized Audit Reports - The reports will be
specialized (by data selection, not report format or content)
processes that will run to produce the necessary reporting
and audit information. Special reports may be produced from
the Inspection Result, Repair Facility, Technician, Waiver,
and inventory files. All reports will be designed with DMV
management to support any special requirements of DNREC
and the EPA.
Covert Audit Reports - These reports, like the
specialized reports, will be specific processes (by data
selection, not report format or content) that will run to
produce the necessary reporting and audit information. An
automated process will be created to allow DNREC the
ability to access and report the contents of the Title and
Inspection Result files. The audit function is a direct
responsibility of DNREC. Additional functionality will be
created as DNREC defines the requirements. All reports will
be designed with DNREC management in support of the
information they require.
Information Inquiry
There will be a great deal of new information created by
the Registration Denial system. That new information will
be accessible by DMV, the State Police, and DNREC, and
they will require new systems to permit online inquiries into
the data. Modifications will also be required to current
systems to provide access to the data without writing new
inquiry systems. Access to allow specific personnel
permission to view the information will be granted based on
security levels and new rules set up in the system. Changes
include modification to the current Delaware State Police
(CICS) processes to permit inquiry and viewing of the new
data captured by DMV. The current DMV inquiry systems
will be modified to access the new data and display the
information for the requester.
APPENDIX 9 (a)
ENFORCEMENT AGAINST OPERATORS AND
INSPECTORS
Agreement between State of Delaware Department of Public
Safety Motor Vehicle Division and Council 81 of the
American Federation of State, County and Municipal
Employees, Section 8, Disciplinary Action. (Subject to
change as the result of future union negotiations)
ARTICLE 8 DISCIPLINARY ACTION
8.1 The Employer agrees that any disciplinary action up
to and including dismissal shall be taken only for just cause.
8.2 Employee suspensions shall not exceed 30 calendar
days except under the following circumstances: a court
action is pending in the matter which led to the suspension;
as a result of an arbitration award; or as a result of a
grievance settlement involving a dismissal action where
arbitration is pending.
8.3 Monetary fines shall not be imposed as a
disciplinary measure.
8.4 Prior to the implementation of a dismissal action,
employees shall be notified in writing that such action is
being considered and provided the reasons for the proposed
action.
8.41 Employees shall be entitled to a pretermination
hearing, provided they submit a written request
for such hearing to the Division Director and State Deputy
Director for Labor Relations within 5 work days of receiving
the above referenced notification. The employee may be
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
972 FINAL REGULATIONS
suspended without pay during this period.
8.42 The pretermination hearing shall be held
within a reasonable time after the employee has requested
such hearing in compliance with 8.41.
8.43 Pretermination hearings shall be informal
meetings for the purpose of providing employees an
opportunity to respond to the proposed action, and offer any
reasons why dismissal may not be justified or too severe a
penalty.
8.44 Prior to implementing a suspension without
pay, the Employer shall follow the notification requirements
set forth in 8.4.
8.5 Employees shall be entitled to a presuspension
meeting with the Employer prior to the implementation of
the suspension, provided they make a written request for
such meeting to the Division Director within 5 working days
after receiving the notice.
8.51 The presuspension meeting shall be held
within a reasonable time after the employee has requested
such meeting in compliance with 8.5.
8.52 The pre-suspension meeting shall be an
informal meeting for the purpose of providing employees an
opportunity to respond to the proposed action, and offer any
reasons why the proposed suspension may not be justified or
too severe a penalty.
8.6 Employees may be accompanied by a Union
representative at any meeting/hearing held under this
Article.
8.7 Any employee failure to comply with the
requirements set forth in 9.41 and 9.5 shall be treated as a
waiver of any rights set forth in this Article.
8.8 Disciplinary documentation shall not be cited by the
Employer in any action involving a similar subsequent
offense after 2 years, except if employees raise their past
work record as a defense or mitigating factor.
State of Delaware Merit Rules
CHAPTER 15 EMPLOYEE ACCOUNTABILITY
15.1 Employees shall be held accountable for their
conduct. Measures up to and including dismissal shall be
taken only for just cause. "Just cause.' means that
management has sufficient reasons for imposing
accountability. Just cause requires:
• showing that the employee has committed the
charged offense;
• offering specified due process rights specified in
this chapter; and
• imposing a penalty appropriate to the
circumstances.
15.2 Employees shall receive a written reprimand
where appropriate based on specified misconduct, or where a
verbal reprimand has not produced the desired improvement.
15.3 Prior to finalizing a dismissal, suspension, fine or
demotion action, the employee shal1 be notified in writing
that such action is being proposed and provided the reasons
for the proposed action.
15.4 Employees shall receive written notice of their
entitlement to a predecision meeting in dismissal, demotion
for just cause, fines and suspension cases. If employees
desire such a meeting, they shall submit a written request for
a meeting to their Agency's designated personnel
representative within 15 calendar days from the date of
notice. employees may be suspended without pay during this
period provided that a management representative has first
reviewed with the employee the basis for the action and
provides an opportunity for response. Where employees'
continued presence in the workplace would jeopardize
others' safety, security, or the public confidence, they may be
removed immediately from the workplace without loss of
pay.
15.5 The predecision meeting shall be held within a
reasonable time not to exceed 15 calendar days after the
employee has requested the meeting in compliance with
15.4.
15.6 Predecision meetings shall be informal meetings to
provide employees an opportunity to respond to the
proposed action, and offer any reasons why the proposed
penalty may not be justified or is too severe.
15.7 Fines of not more than 10 days pay may be
imposed, provided they do not cause employees to be paid
less than the federal minimum wage as set forth in the Fair
Labor Standards Act.
DIVISION OF FISH & WILDLIFE
Statutory Authority: 7 Delaware Code,
Section 6010, (7 Del.C. 6010)
Order No. 2001-FW-0031
Order
Summary of Evidence and Information
Pursuant to due notice 5 DE Reg, 402-404, (08/01/01)
the Department of Natural Resources and Environmental
Control proposed new shellfish regulations to govern the
seasons, locations for landing oysters, the type and amount
of harvesting gear, the minimum size of oysters and an
annual quota of oysters allowed to be harvested. The
Department also proposed to strike shellfish regulations no
longer applicable to public tonging grounds and licensing
oyster vessels to transfer oysters form the State's natural
oyster beds to leased shellfish grounds.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 973
Senate Bill 185 (Chapter 21, 7 Del. C.) was enacted on
July 9, 2001. This act authorized the harvest of oysters from
the State's natural oyster beds for direct sale. It also
withdrew the transfer of oysters from the State's natural
oyster beds to leased shellfish grounds. It also authorized
the Department of Natural Resources and Environmental
Control to adopt shellfish regulations pertaining to the
harvest of oysters.
A public hearing was conducted on August 23, 2001 to
hear testimony and evidence on proposed shellfish
regulations to control the harvest of oysters from the State's
natural oyster beds.
Finding Of Facts
• Senate Bill 185 was enacted on July 9, 2001 to
authorize the harvest of oysters from the State's natural
oyster beds for direct sale.
• §2106, 7 Del. C. authorizes the Department to
adopt shellfish regulations pertaining to the harvest of
oysters from the State's natural oyster beds.
• There is, at times, harvestable amount of oysters on
the State's natural oyster beds.
• There is, at times, a high incidence of oyster mortality
on the State's natural oyster beds due to oyster disease;
i.e. MSX and Dermo.
• The transfer of oysters from the State's natural oyster
beds to leased shell fish grounds in no longer permitted.
• Public tonging areas for oysters are no longer
authorized.
• Waterman support the harvest of oysters from the
State's natural beds for direct sale.
• The Department supports the harvest of oysters
from the State's natural oyster beds for direct sale.
• There is no consensus among watermen interested
in harvesting oysters from the State's natural oyster beds
as to the opening and closing dates for seasons subsequent
to 2001.
• The landing areas of oysters taken from the State's
natural oyster beds must be controlled for enforcement
of tagging requirements.
• Large oyster dredges will damage oysters if not
used efficiently while harvesting oysters.
• §2105 (a), 7 Del. C. requires oyster harvesting fees
be prepaid on or before dates established by the Department.
• §2105 (f), 7 Del. C. stipulates that oyster harvest
tags are not transferable.
Conclusions
• The Department should open the 2001 harvest of
oysters from the State's natural oyster beds on November
1, 2001 and close on December 31, 2001.
• Subsequent year oyster harvesting seasons should
be established after the conclusion of the 2001 harvest
in order for people involved in this fishery to gain some
experience with the better times for marketing oysters.
• The Department should allow the landing of oysters
taken from the State's natural oyster grounds at public or
private docks in the general areas of Leipsic, Port
Mahon, Bowers Beach and Cedar Creek.
• Oyster harvesting gear should be limited in dimension
to minimize the damage to oysters.
• The minimum size of oysters harvested from the
State's natural oyster beds should allow for adequate
harvest prior to disease mortalities.
• Eligible participants in the harvest of oysters from
the State's natural oyster beds must commit to their participation
by prepaying oyster harvesting fees on or
before precise dates.
• For enforcement purposes, oyster harvest tags
should not be on a vessel in the absence of the person to
whom said tags were issued by the Department.
• The 2001 annual oyster harvest quota should be
based on the best scientific data from the October surveys
by the Department.
Order
It is hereby ordered, this 5th day of September, in the
year 2001, that Shellfish Regulations S-7(b), S-9, S-11, S-13
and S-37, a copy of which is attached here to, are amended to
be stricken and new shellfish regulations S-63, S-65, S-67,
S-69, S-71, S-73 and S-75, copies of which area attached
hereto, are adopted pursuant to §2106, 7 Del. C. and are
supported by the Departments findings of fact from evidence
and testimony received. This Order shall be effective on
October 10, 2001.
Nicholas A. DiPasquale, Secretary of the Department
of Natural Resources and Environmental Control
S-7 NATURAL OYSTER BEDS - LOCATION
(a) "Natural oyster beds" shall mean those shellfish
grounds located to the North of the "East Line" in Delaware
Bay and River and shellfish grounds located upstream of the
entrances of all tributaries entering the Delaware River and
Delaware Bay under the jurisdiction of the State.
(b) The Department shall designate specific natural
oyster beds that will be open for taking seed oysters on
specific dates prior to April 1, in any given year.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
974 FINAL REGULATIONS
S-9 OYSTERS - PUBLIC TONGING AREAS -
LOCATION
(a)"Public tonging areas for oysters" shall mean those
shellfish grounds located in th Delaware Bay approximately
two (2) miles Northeast of the Murderkill River entrance to
the Delaware Bay and more specifically described as plotted
on the Delaware Bay Chart No. 12304 22nd edition,
published by the National Oceanic and Atmospheric
Administration, U.S. Department of Commerce, Washington
D.C., November, 1975 with Loran-C overprinted as follows.
CORNER LOCATIONLORAN READING
1. Northwest Corner 9930-Y-52260.91
9930-Z-70042.54
2. Northeast Corner 9930-Y-52259.36
9930-Z-70043.20
3. Southwest Corner 9930-Y-52262.10
9930-Z-70043.80
4. Southeast Corner 9930-Y-52260.65
9930-Z-70043.95
S-11 OYSTERS - PUBLIC TONGING AREAS -
SEASON
(a) It shall be unlawful for any person to harvest oysters
from the public tonging area located in the Delaware Bay
two (2) miles Northeast of the Murderkill River entrance to
the Delaware Bay at any time other than September 1
through April 30 next ensuing for each year.
Note: It is unlawful for any person to harvest oysters
from any public tonging areas unless said person has a valid
public oyster tongers license.
S-13 OYSTERS - DAILY TAKE LIMITS - PUBLIC
TONGING AREA
It shall be unlawful for any person to take more than
fifteen (15) bushels of oysters in any one (1) day from the
oyster public tonging grounds.
S-37 OYSTER VESSEL LICENSING FOR
TRANSPLANTING OYSTERS FROM NATURAL
OYSTER BEDS
(a) The owner of a vessel which was previously licensed
in Delaware to harvest and/or transplant oysters from natural
oysters beds or from leased shellfish ground in Delaware
Bay may directly apply to the Department for a license for
said vessel to harvest and/or transplant oysters from the
natural oyster beds or from leased shellfish grounds within
the jurisdiction of the State.
(b) The owner of a vessel which was not previously
licensed to harvest oysters in Delaware and is to be used for
transplanting oysters from natural oyster beds in
Delaware Bay to leased shellfish grounds in Delaware Bay,
must submit an application for said vessel license to the
Department that will first be reviewed by the Council on
Shellfisheries for their determination as to whether or not:
(1) The legal and equitable owner is a Delaware
resident or a corporation whose principal place of business is
located within Delaware prior to January 1, 1990 or a
Delaware corporation incorporated after January 1, 1990
with its principle place of business in Delaware and whose
legal and equitable owners are Delaware residents; and,
(2) the profits for the operation of said vessel will
help to preserve and improve the Delaware shellfish
industry; and,
(3) the vessel to be licensed will remain exclusively
in Delaware's shellfish industries for a period of at least sixty
(60) months.
Based upon these criteria, the Council on
Shellfisheries shall then recommend approval or disapproval
for issuing an oyster harvesting license for said vessel within
ten (10) calendar days of receipt of the application provided
that there is no regularly scheduled council meeting between
the date of the application and the beginning of the oyster
transfer season. The Department, upon receiving a
recommendation from the Council on Shellfisheries, shall
decide whether or not to issue an oyster harvesting license
for the vessel for the forthcoming oyster transfer season.
(c) The owner of a vessel which was not previously
licensed to harvest and/or transplant oysters in Delaware and
said vessel is only to be used to harvest oysters from leased
shellfish grounds may directly apply to the Department and
receive a vessel license to harvest oysters from leased
shellfish grounds within the jurisdiction of this State.
S-63, OYSTER HARVESTNG SEASONS
(a) It shall be unlawful for any person to harvest or to
attempt to harvest oysters from the State's natural oyster
beds in the year 2001 except during the period beginning at
sunrise on November 1, 2001 and ending at sunset on
December 31, 2001.
[(b) It shall be unlawful for any person to harvest or
to attempt to harvest oysters from the State's natural
oyster beds, in any calendar year other than the year
2001, except during the period beginning at sunrise on
April 1 or the Monday thereafter if April 1 is a Sunday,
and ending at sunset on December 31 or the preceding
Saturday if December 31 is a Sunday.]
S-65, OYSTER LANDING AREAS
(a) It shall be unlawful for any person to land oysters
taken for direct sale from the State's natural oyster beds at
any site other than in the town of Leipsic, Port Mahon,
Bowers Beach or the Cedar Creek [State Boat Access
facility.][area]
(b) 'To Land' shall mean to bring to shore.
S-67, OYSTER HARVESTING GEAR
(a) It shall be unlawful for any person to harvest
oysters or attempt to harvest oysters from the State's natural
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
FINAL REGULATIONS 975
oyster beds with any gear other than an oyster dredge that
measures no more that 52 inches in length along the tooth
bar.
(b) It shall be unlawful for any person to harvest
oysters or attempt to harvest oysters from the State's natural
oyster beds with an oyster dredge with teeth measuring more
than four (4) inches in length.
(c) It shall be unlawful for any person to harvest
oysters or attempt to harvest oysters from the State's natural
oyster beds with more than two oyster dredges overboard at
the same time.
(d) It shall be unlawful for any person to harvest
oysters or attempt to harvest oysters from the State's natural
oyster beds with any dredge that is attached to another
dredge.
S-69, OYSTER MINIMUM SIZE LIMIT
It shall be unlawful for any person to possess any oyster
harvested for direct sale from the State's natural oyster beds
that measures less that 2.75 inches between the two most
distant points on the edges of said oyster's shell.
S-71, OYSTER HARVESTING CONTROL DATES
(a) The Department shall consider a person eligible to
participate in the [next annual] [2001] harvest of oysters for
direct sale from the State's natural oyster beds provided said
person complies with the following criteria:
1. He/she has obtained a valid oyster harvesting
license.
2. He/she has indicated in writing to the
Department no later than [10 days prior to the opening
date of the annual oyster harvesting season] [4:30 PM on
October 22, 2001] that he/she will participate in [said
annual][the 2001] harvest of oysters.
3. He/she pays the annual oyster harvest fee of
$1.25 per bushel for his/her individual allotment of oysters
on or before [the opening date of said annual harvest of
oysters.] [4:30 PM on November 1, 2001]
(b) In the event a person who indicates in writing to the
Department that he/she will participate in the [next
annual][2001] harvest of oysters from the State's natural
oyster beds and then fails to pay their oyster harvest fee on or
before [the opening date of said annual harvest of
oysters,][4:30 PM on November 1, 2001] said person share
of oysters shall be pooled and made available for subsequent
allocations to individuals who have paid their oyster harvest
fees on time. The quantity [of the] subsequent allocation of
oysters shall be determined by dividing the pooled
allotments by the number of paid participants. Interested
participants may obtain no more than one subsequent
allocation by paying the oyster harvest fee of $1.25 per
bushel prior to harvesting same.
S-73, OYSTER HARVESTING LICENSEE
REQUIREMENTS
(a) It shall be unlawful for any person licensed to
harvest oysters from the State's natural oyster beds to
possess another person's oyster harvesting tags on board the
vessel listed on said person's oyster harvesting license unless
the other person is on board said vessel.
S-75, OYSTER HARVEST QUOTA
The oyster harvest quota for 2001 is 24, 795 bushels.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
976 GOVERNOR'S EXECUTIVE ORDERS
STATE OF DELAWARE
EXECUTIVE DEPARTMENT
DOVER
EXECUTIVE ORDER
NUMBER NINETEEN
RE: DELAWARE STATE POLICE
WHEREAS, questions have been raised as to the
fairness of employment, discipline and promotion policies at
the Delaware State Police; and
WHEREAS, a mechanism is needed to thoroughly
investigate the climate at the Delaware State Police and to
ensure full cooperation by the Delaware State Police with
any future Delaware State Senate investigations;
I, RUTH ANN MINNER, GOVERNOR OF THE
STATE OF DELAWARE, HEREBY ORDER ON
AUGUST 17, 2001:
1. The Director of State Personnel is directed to
undertake an investigation of the working conditions at the
Delaware State Police. This investigation shall include:
a. Findings as to the compliance of the Delaware
State Police with Executive Order No. 10, signed January
30, 2001.
b. Findings as to the working conditions and
organizational culture for women and minorities at the
Delaware State Police, and conditions that might impede
women and minorities from remaining with the State Police
and advancing through the ranks of the State Police.
c. Recommendations for changes at the State
Police that could result in improvements in the state's ability
to retain qualified State Troopers.
2. All state employees, including but not limited to
members, employees, and officers of the Delaware State
Police, are directed to fully and promptly comply with any
requests made by the Director of State Personnel for access
to persons, records, or other information in connection with
the investigation I have ordered in paragraph 1 of this order.
3. The Director of State Personnel is directed to report
her findings and recommendations to me and the Secretary
of Public Safety by December 1, 2001.
4. All employees, officers and members of the
Delaware State Police are directed to fully and promptly
comply with any requests for information by the legislature
of the State of Delaware or any formally constituted
committee of that legislature. To the extent that any
employee, officer or member seeks to withhold information
on the basis that it is confidential or privileged, he or she
shall do so only after receiving express permission to
withhold that information from my office, and he or she shall
explain to the legislature what information is being withheld
and the specific reason that it is being withheld.
5. No employee, officer or member of the Delaware
State Police shall be disciplined, punished, reprimanded, or
sanctioned in any fashion as a consequence of providing
information to the legislature of the State of Delaware or any
formally constituted committee of that legislature.
6. No employee, officer or member of the Delaware
State Police who has provided information in a public forum
to the legislature of the State of Delaware or any formally
constituted committee of that legislature shall be transferred,
demoted, or otherwise have his or her employment status
changed unless my office and the Secretary of Public Safety
has been provided with prior notice of such impending
change.
7. Any failure by any employee, member or official of
the Delaware State Police to comply with the terms of this
Order shall be considered an act of direct insubordination
and shall be subject to the discipline associated with such
acts.
8. None of the directives in this order waive any of the
existing obligations of the Delaware State Police to comply
with existing state and federal laws and regulations. If any
member of the Delaware State Police perceives any direct
conflict between this Order and any existing state or federal
law or regulation, said conflict shall be brought to my
attention in writing immediately and will be resolved by my
office.
Ruth Ann Minner, Governor
Attest:
Harriet Smith Windsor, Secretary of State
STATE OF DELAWARE
EXECUTIVE DEPARTMENT
DOVER
EXECUTIVE ORDER
NUMBER TWENTY
RE: STATE EMPLOYEES' CHARITABLE
CAMPAIGN
WHEREAS, the employees of the State of Delaware
have demonstrated their generosity and commitment to the
support of charitable health and welfare causes; and
WHEREAS, it is in the best interest of the State to
provide a single annual campaign with minimal disruption to
the work and services that our state employees provide to the
residents of our State; and
WHEREAS, it is impossible to allow every nonprofit
organization to conduct a campaign, but it is reasonable to
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
GOVERNOR'S EXECUTIVE ORDERS 977
establish guidelines and procedures to establish a single,
combined annual campaign; and
WHEREAS, it is a worthy endeavor to encourage state
employees to contribute to charitable organizations within
Delaware.
NOW, THEREFORE, I, RUTH ANN MINNER, by
virtue of the authority vested in me as Governor of the State
of Delaware do hereby declare and order the following:
I. Continuation of the State Employees' Charitable
Campaign.
The State of Delaware shall henceforth continue to
conduct an annual combined charitable solicitation
campaign (hereinafter referred to as the "Campaign") to
provide its employees with the opportunity to make
charitable contributions either through direct payment or
payroll deduction.
II. Criteria for Selection.
An organization must meet the following criteria in
order to participate in the Campaign:
A. Foundation, Umbrella Organization, or Individual
Organization.
An organization may be a foundation, an umbrella
organization, or an individual organization.
1. A foundation means a not-for-profit organization
that makes grants to other organizations. Such a foundation
must meet the other criteria for selection as set forth herein.
2. An umbrella organization means an organization
that meets the other criteria for selection as set forth herein
and that serves as the administrative agency for at least four
nonprofit organizations, each of which meets the other
criteria for selection as set forth herein. An approved
umbrella organization shall certify that each of its
participating organizations meets the criteria for selection
asset forth herein. The certification shall apply only for
purposes of the Campaign. The documentation supporting
the certification of an individual organization under an
umbrella organization shall be provided to the State
Employees' Charitable Campaign Steering Committee
(hereinafter referred to as the "Steering Committee") upon
request. An organization may not affiliate with more than
one umbrella organization for purposes of the Campaign.
3. An individual organization means an
organization that meets the other criteria for selection as set
forth herein and that is not affiliated with a foundation or an
umbrella organization.
B. Health and Welfare Purpose.
An organization must be organized and operated for
the purpose of rendering, or materially or financially
supporting the rendering of, services to benefit the health
and welfare of residents of the State of Delaware, including,
but not limited to:
1. Delivery of health care to ill or infirm
individuals;
2. Education and training of personnel for the
delivery of health care to ill or infirm individuals;
3. Health research for the benefit of ill or infirm
individuals;
4. Delivery of education, training, and care to
physically and mentally handicapped individuals;
5. Education of individuals who, without
assistance, would not be able to afford it;
6. Treatment, care, rehabilitation, and counseling
of juvenile delinquents, persons convicted of crimes, persons
who abuse drugs or alcohol, persons who are victims of
family violence or abuse, persons who are otherwise in need
of social adjustment and rehabilitation, and the families of
such persons;
7. Relief for victims (including non-residents of
Delaware) of crime, war, casualty, famine, natural disasters,
and other catastrophes or emergencies;
8. Neighborhood and community-wide services
that directly assist needy, poor, and indigent individuals,
including provision of emergency relief and shelter,
recreation, transportation, and preparation and delivery of
meals, educational opportunities, and job training;
9. Legal aid services that are provided without
unlawful discrimination to needy, poor, and indigent
individuals solely because such individuals cannot afford
legal counsel;
10. Protection of families that, on account of
poverty, indigence, emergency, or other adversity, are in
need of family, child care, or maternity services, child or
marriage counseling, foster care, and guidance or assistance
in the management and maintenance of the home and
household;
11. Relief for needy, poor, and indigent infants and
children (including orphans), including the provision of
adoption services;
12. Relief for needy, poor, and indigent adults and
the elderly;
13. Assistance, consistent with the mission of the
state agency or facility involved, to members of its staff or
service, who, by reason of geographic isolation, emergency
conditions, injury in the line of duty, or other extraordinary
circumstances, have exceptional health or welfare needs; or
14. Lessening of the burdens of government with
respect to the provision of any of the foregoing services.
C. Established Physical Presence in State.
An organization must have an established physical
presence in the State of Delaware, either in the form of an
office or service facility which is staffed at least fifteen hours
a week, or by making available its staff through scheduled
appointments with Delaware residents or businesses at least
fifteen hours a week.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
978 GOVERNOR'S EXECUTIVE ORDERS
D. Charitable Status.
An organization shall hold and maintain a currently
valid designation from the Internal Revenue Service as a
section 501(c)(3) organization, and be eligible to receive
tax-deductible contributions under Section 170 of the
Internal Revenue Code. A copy of the Internal Revenue
Service designation letter shall be submitted with the
application.
E. Nondiscrimination.
An organization shall have a policy and
demonstrate a practice of nondiscrimination on the basis of
race, color, religion, sex, age, national origin, or physical or
mental handicap, applicable to staff employment, and to
memberships on its governing board.
F. Annual Report.
An organization shall prepare an annual report or
report to the general public on an annual basis, which shall
include a full description of the mission, target population,
activities, objectives, and achievements of the organization
and the names of its chief administrative personnel.
Organizations with an annual budget of less than $100,000
shall not be required to prepare an annual report, but must
submit a copy of the Form 990, which they file with the
Internal Revenue Service, with the Steering Committee.
G. Limit on Administrative and Campaign Costs.
Each foundation, umbrella organization, and
individual organization shall submit a statement certifying
that its management, general, and fundraising expenses are
not in excess of twenty-five percent (25%) of total revenue.
If such costs are in excess of the percentage of total revenue
established above, an organization shall provide an
explanation and documentation that its actual expenses for
those purposes are reasonable and appropriate under the
circumstances. The Steering Committee, established in
Section III of this Order, shall decide that such excess is
acceptable or shall require the organization to come within
the percentage cap within a certain time period.
H. Fundraising Practices.
The publicity and promotional activities of a
foundation, an umbrella organization and its constituent
organizations, or an individual organization must be based
upon the actual program and operations of the entity and
must be truthful, nondeceptive, and consumer-oriented.
Fundraising practices must assure: protection against
unauthorized use of the organization's contributors' list; no
payment of commissions, kickbacks, finder fees,
percentages, or bonuses for fundraising; that no mailing of
unsolicited tickets or commercial merchandise with a request
for money in return will occur; and that no general telephone
solicitations will be conducted. This requirement shall apply
only to those activities connected with the Campaign.
I. Voluntary Board of Directors.
An organization shall be directed by an active,
voluntary board of directors, which serves without
compensation, holds regularly scheduled meetings, and
exercises effective administrative control. If the board of
directors is not located in Delaware, there must be a local
board comprised of Delaware citizens, which advises the
board of directors with respect to Delaware activities.
J. Accounting Standards.
An organization shall adopt and employ the
Standards of Accounting and Financial Reporting for
voluntary Health and Welfare Organizations from the
American Institute of Certified Public Accountants
("AICPA") and provide for an annual external audit by an
independent, certified public accountant. Organizations with
an annual budget of less than $100,000 shall not be required
to submit to an independent audit, but must submit a copy of
the Form 990, which they file with the Internal Revenue
Service with the Steering Committee.
K. Establishment of Organization.
An organization must have been in operation in
Delaware for at least three years before application in order
to demonstrate a reasonable degree of continuity and
economical, effective, and efficient operation.
L. Organizations Deemed Not Eligible.
The following organizations are not eligible to
participate in the State Campaign:
1. Those with partisan political and propaganda
programs;
2. Those with programs which exist solely to
advocate particular religious or ethical beliefs; and
3. Those which do not promote health and welfare.
III. Establishment and Appointment of the State
Employees' Charitable Campaign Steering Committee.
A. The Steering Committee is hereby established and
shall consist of eight members who shall be state employees
and who shall be appointed to serve at the pleasure of the
Governor. Of the members appointed, there shall be at least
one employee from each of the three counties. In addition,
one of the appointees shall be an employee who is
represented by one of the unions under which the employees
of the State are organized; one shall be an employee of the
Department of Finance recommended by the Secretary of
Finance; one shall be a representative from the Governor's
staff; and one shall be a representative of the Lieutenant
Governor's staff.
B. The Governor shall appoint the chairperson of the
Steering Committee.
C. Four members of the Steering Committee shall
constitute a quorum. A simple majority vote of a quorum of
voting members shall be required for the Steering
Committee to take formal action. A representative of the
organization, which serves as administrator for the program,
shall attend the meetings of the Steering Committee, but
shall not be a voting member.
D. Meetings of the Steering Committee shall be open
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
GOVERNOR'S EXECUTIVE ORDERS 979
to the public in accordance with state law, including to
representatives of the approved and participating
foundations, umbrella, and individual organizations.
E. The Steering Committee shall elect annually one of
its members to serve as Secretary for the Committee and to
record the proceedings of the Committee's meetings. In the
absence of the Secretary, the Chairperson shall designate an
Acting Secretary.
IV. Responsibilities of the Steering Committee.
A. The Steering Committee shall have the following
duties, responsibilities, and authority:
1. Develop all necessary schedules, policies, and
procedures to implement this Executive Order;
2. Develop, receive, and review applications for
participation in the Campaign by foundations, umbrella
organizations, and individual organizations;
3. Approve eligible foundations, umbrella
organizations, and individual organizations for participation
in the Campaign;
4. Select the administrator for the Campaign in
accordance with the procedures set forth at Section VI;
5. Oversee the management of the Campaign;
6. Recruit employee chairpersons;
7. Promote and publicize the Campaign; and
8. Review pamphlets, donor cards, and other
promotional materials for the Campaign.
V. Selection of Eligible Organizations by Steering
Committee.
A. Organizations interested in participating in the
Campaign shall submit an application in accordance with the
procedures set forth by the Steering Committee.
B. The Steering Committee, in accordance with its
procedures, shall review each application and determine
whether an organization should be approved for participation
in the Campaign. The Steering Committee is expressly
authorized to adopt and utilize an abbreviated application
form and process for any organization that has participated
in the Campaign for the prior three (3) consecutive years,
provided that a duly authorized representative of the
organization certifies that such organization continues to
meet all of the criteria for participation listed in Section II
above.
C. In the event the Steering Committee determines to
reject an organization for participation in the Campaign, the
Steering Committee shall send the subject organization a
certified letter, return-receipt requested, advising the
organization that the Steering Committee has rejected its
application, and stating the reason(s) for that rejection. The
decision of the Steering Committee with respect to approval
of eligible foundations, umbrella organizations, and
individual organizations shall be final.
VI. Administration of State Employees' Charitable
Campaign.
A. The Campaign shall be administered by one of the
organizations that has previously been approved for
participation in the Campaign.
B. The Steering Committee shall issue to all
organizations previously accepted for participation in the
Campaign an invitation to submit a bid as administrator of
the Campaign.
C. The bid specifications shall describe the services to
be provided, including, but not limited to the:
1. Organization and administration of any
informational presentation to employees;
2. Assistance to any department or division which
wishes to have a rally or other event by providing
professional or training assistance and promotional
materials;
3. Manufacture and distribution of informational
pamphlets, posters, donor cards or other promotional
materials;
4. Collection of donations and donor cards and
tabulation of fund designation information;
5. Proper distribution of donations to approved
organizations, both with respect to funds collected at the
time of the Campaign and to those which will be forwarded
to the administrator from the Department of Finance
representing payroll deductions authorized during the
Campaign by employees;
6. Completion of an audit of the Campaign; and
7. Provision of a written report to the Committee
detailing the distribution of funds to participating agencies at
each time of distribution.
D. Bid proposals shall include a statement from the
organization which substantiates a claim that the
organization:
1. Demonstrates the administrative and financial
capability to manage and operate an extensive fundraising
campaign among State employees in an efficient manner;
and
2. Ensures public accountability by certifying that
it: annually submits to a financial audit by a certi fled public
accountant; makes its audited financial statement, or a
summary thereof, available to the public upon request; will
provide evidence that it engages in sound management
practices that indicate that contributions donated by the
public have been utilized with the utmost integrity.
E. Bid proposals shall further include a percentage
figure representing that portion of each donated dollar the
organization would charge if chosen to serve as the
administrator of the Campaign.
F. The Steering Committee shall choose as the
administrator of the program that organization which
submits a responsible bid with the lowest percentage figure
as outlined above, unless the Steering Committee determines
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
980 GOVERNOR'S EXECUTIVE ORDERS
that the State's interest is best served by selecting other than
the lowest responsible bidder, in which case the Steering
Committee shall state, in writing, its reasons for such
determination. The Steering Committee may choose to reject
all bids and rebid the matter.
G. The organization, which is chosen to administer the
program, shall not assign, subcontract, or otherwise transfer
its duties and responsibilities to manage and administer the
Campaign unless expressly permitted to do so in writing by
the Steering Committee.
VII. State Employees' Charitable Campaign Fund Drive
Programs.
A. All facets of the Campaign shall have safeguards to
ensure fair and equitable treatment and representation of the
approved organizations.
B. If practical, all pamphlets, donor cards, and other
promotional materials representing the Campaign shall be
formatted in such a way as to provide equal representation of
each of the approved organizations.
VIII. Distribution of Contributions.
Contributions shall be distributed to organizations as
designated by contributors. Undesignated funds shall be
distributed to each approved organization in an amount
proportionate to the percentage of the total designated funds
contributed to that approved organization. Likewise,
shrinkage due to unfulfilled pledges shall be absorbed by
each approved organization in an amount proportionate to
that percentage for the total designated funds, which were
contributed to that approved organization.
IX. Executive Order Number Fifty-Five, issued by former
Governor Thomas R. Carper on November 4, 1998, is
rescinded.
Approved this 13th day of September, 2001.
Ruth Ann Minner, Governor
Attest:
Harriet Smith Windsor, Secretary of State
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 981
DEPARTMENT OF
ADMINISTRATIVE SERVICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF ACCOUNTANCY
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Sections 105(1) and 105(5), the
Delaware Board of Accountancy proposes to revise its Rules
and Regulations. The proposed amendments implement and
clarify the requirements for firm permits to practice by
revising Section 9.0 in its entirety, including proposed rules
to implement 24 Del.C. 112 regarding professional
responsibility standards. Other proposed changes include
clarifying the definition of "firm," and deleting language
from the rules and regulations relating to the conduct of
hearings.
A public hearing on the proposed Rules and Regulations
originally scheduled for August 22, 2001 has been
rescheduled and will be held on Wednesday, November 14,
2001 at 9:00 a.m., in the Second Floor Conference Room A
of the Cannon Building, 861 Silver Lake Boulevard, Dover,
Delaware, 19904. The Board will receive and consider input
in writing from any person on the proposed Rules and
Regulations. Any written comments should be submitted to
the Board in care of Dana Spruill at the above address. The
final date to submit written comments shall be at the above
scheduled public hearing. Anyone wishing to obtain a copy
of the proposed Rules and Regulations or to make comments
at the public hearing should notify Dana Spruill at the above
address by calling (302) 744-4505.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 2905(a)(1), the Delaware
Real Estate Commission proposes to revise its Rules and
Regulations. The proposed amendments revise several
sections of the rules and regulations. Substantive changes
are proposed to the rules and regulations regarding
advertising and the maintenance of offices that reflect further
revisions resulting from a public hearing regarding proposed
revisions held on August 9, 2001 and originally published in
the June 1, 2001 Register of Regulations. Other proposed
revisions include deleting the class size limit in real estate
courses, deleting Rule 4.1.3 relating to qualifications for
licensure of non-residents, and increasing the period of
required retention of documents demonstrating compliance
with the continuing education requirement for license
renewal.
A public hearing will be held on the proposed Rules and
Regulations on Thursday, November 8, 2001 at 9:00 a.m., in
the Second Floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Commission will receive and consider input in
writing from any person on the proposed Rules and
Regulations. Any written comments should be submitted to
the Commission in care of Joan O'Neill at the above address.
The final date to submit written comments shall be at the
above scheduled public hearing. Anyone wishing to obtain a
copy of the proposed Rules and Regulations or to make
comments at the public hearing should notify Joan O'Neill at
the above address by calling (302) 744-4519.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
DIVISION OF PROFESSIONAL REGULATION
REAL ESTATE COMMISSION
Real Estate Commission Education Committee
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Sections 2905(a)(1) and 2911(b),
the Delaware Real Estate Commission proposes to revise its
Guidelines for Fulfilling the Delaware Education
Requirements. The proposed amendments insert a new
guideline relating to student requests for approval of an
educational activity.
A public hearing will be held on the proposed Education
Guidelines on Thursday, November 8, 2001 at 9:30 a.m., in
the Second Floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Commission will receive and consider input in
writing from any person on the proposed Education
Guidelines. Any written comments should be submitted to
the Commission in care of Joan O'Neill at the above address.
The final date to submit written comments shall be at the
above scheduled public hearing. Anyone wishing to obtain a
copy of the proposed Education Guidelines or to make
comments at the public hearing should notify Joan O'Neill at
the above address by calling (302) 744-4519.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
982 CALENDAR OF EVENTS/HEARING NOTICES
DIVISION OF PROFESSIONAL REGULATION
BOARD OF VETERINARY MEDICINE
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Section 3306 (a) (1), the
Delaware State Board of Veterinary Medicine proposes to
revise its rules and regulations. The proposed changes
would be comprehensive revision of the current rules and
regulations. The proposed revisions seek to redefine the role
of support personnel, unprofessional conduct by a
veterinarian, standards for veterinary premises and
equipment, privileged communications between a
veterinarian and a client, and requirements for continuing
education. The proposed changes also affect other aspects of
licensure including renewal and reinstatement of licenses.
The proposed regulations serve to implement or clarify
specific sections of 24 Del.C. Chapter 33.
A public hearing will be held on the proposed Rules and
Regulations on Tuesday, November 13, 2001 at 6:00 p.m. in
the second floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Board will receive and consider input in writing
from any person on the proposed Rules and Regulations.
Any written comments should be submitted to the Board in
care of Susan Miccio at the above address. The final date to
submit written comments shall be at the above scheduled
public hearing. Anyone wishing to obtain a copy of the
proposed Rules and Regulations or to make comments at the
public hearing should notify Susan Miccio at the above
address or by calling (302) 744-4506.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
DIVISION OF PROFESSIONAL REGULATION
BOARD OF MASSAGE & BODYWORK
PLEASE TAKE NOTICE, pursuant to 29 Del.C.
Chapter 101 and 24 Del.C. Sections 5306(1) and 5306(7),
the Delaware Board of Massage and Bodywork proposes to
revise its Rules and Regulations. The proposed revisions
seek to clarify Rule 6.3.2, popularly known as "the 25%
Rule." The proposed revisions will assist licensees in
understanding that the application of this continuing
education rule results in a limitation of the total number of
continuing education hours that are permissible in specified
areas and methods during a licensure period.
A public hearing will be held on the proposed Rules and
Regulations on Thursday, November 1, 2001 at 1:30 p.m., in
the Second Floor Conference Room A of the Cannon
Building, 861 Silver Lake Boulevard, Dover, Delaware,
19904. The Board will receive and consider input in writing
from any person on the proposed Rules and Regulations.
Any written comments should be submitted to the Board in
care of Susan Miccio at the above address. The final date to
submit written comments shall be at the above scheduled
public hearing. Anyone wishing to obtain a copy of the
proposed Rules and Regulations or to make comments at the
public hearing should notify Susan Miccio at the above
address by calling (302) 744-4506.
This notice will be published in two newspapers of
general circulation not less than twenty (20) days prior to the
date of the hearing.
PUBLIC SERVICE COMMISSION
NOTICE OF PUBLIC COMMENT PERIOD AND
PROPOSED AMENDMENT TO THE DELAWARE
PUBLIC SERVICE COMMISSION'S MINIMUM
STANDARDS GOVERNING SERVICE PROVIDED
BY PUBLIC WATER COMPANIES
On August 21, 2001, the Delaware Public Service
Commission ("the Commission") entered an Order
proposing a revision to Standard 4.2.4 of the Commission's
Minimum Standards Governing Service Provided by Public
Water Companies ("Minimum Standards").
Currently, Standard 4.2.4 requires public water utilities
to undertake periodic testing of their meters based on a
schedule linked to the size of the meter. The proposed
amendment will allow a public water utility the alternative to
propose to the Commission a statistical sampling
methodology for testing the accuracy of its meters. If such a
plan is approved by the Commission, the public water utility
could, thereafter, in lieu of testing all meters on a periodic
basis, test a random sampling of particular groups of meters
in order to ascertain the accuracy of its meters. The
Commission has proposed allowing public water utilities this
alternative in light of changes and improvements in the
design and manufacturing of water meters.
The full text of the proposed amendment to Standard
4.2.4 has been filed with the Delaware Registrar of
Regulations for publication in the Register of Regulations.
The full text of the proposed amendment is also available at
the Commission's website located at www.state.de.us/delpsc.
The Commission has authority to promulgate the
regulations pursuant to 26 Del.C. §211 and 29 Del.C.
§10111 et seq.
The Commission hereby solicits written comments,
suggestions, compilations of data, briefs, or other written
materials concerning the proposed amendment to Standard
4.2.4. Twelve (12) copies of such materials shall be filed
with the Commission at its office located at 861 Silver Lake
Boulevard, Cannon Building, Suite 100, Dover, Delaware
19904. All such materials shall be filed with the
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 983
Commission on or before October 31, 2001. Persons who
wish to participate in the proceedings, but who do not wish
to file written materials, are asked to send a letter informing
the Commission of their intention to participate. Such letter
must be received on or before October 31, 2001.
In addition, the Commission will conduct a public
hearing on the proposed amendment to Standard 4.2.4 on
Wednesday, November 7, 2001, at the Commission's Dover
office at the address set forth above. Such hearing shall
begin at 10:00 AM. At such hearing, persons may present
comments, evidence, and other materials concerning the
proposed amendment.
ONLY PERSONS WHO SUBMIT COMMENTS,
PARTICIPATE IN THE HEARING, OR FILE A NOTICE
OF INTENT TO PARTICIPATE WILL RECEIVE
NOTICE OF FURTHER PROCEEDINGS IN THIS
MATTER.
The proposed and existing Standard and the materials
submitted in connection therewith are available for public
inspection and copying at the Commission's Dover office
during normal business hours. The fee for copying is $0.25
per page. The proposed amendment is also available for
review on the Commission's website: www.state.de.us/
delpsc.
Any individual with disabilities who wishes to
participate in these proceedings should contact the
Commission to discuss any auxiliary aids or services needed
to facilitate such review or participation. Such contact may
be in person, by writing, telephone (including text telephone
and TRS), or otherwise. The Commission's toll-free
telephone number in Delaware is (800) 282-8574. The
Commission may also be contacted at (302) 739-4333
(including text telephone). Inquiries can also be sent by
Internet e-mail to connie.mcdowell@state.de.us.
PUBLIC SERVICE COMMISSION
NOTICE OF PUBLIC HEARING
On July 24, 2001, the Delaware Public Service
Commission ("the Commission") entered an Order
proposing certain revisions to the Commission's Rules for
the Provision of Telecommunications Services. The
proposed amendments to the Rules are intended: 1) to
address concerns raised by Staff which impact the
certification of competitive local exchange carriers and
intrastate carriers, including application and bonding
requirements; 2) to reflect other changes that have occurred
in federal and state telecommunications laws which impact
the existing Rules; 3) to ensure that carriers comply with
federal and state law; and 4) to conform, where practicable,
the requirements of the Rules with other regulatory
provisions.
The Commission has authority to promulgate the
regulations pursuant to 26 Del. C. § 209(a) and 29 Del. C. §
10111 et seq.
By notice published in the Register of Regulations and
The News Journal on August 1, 2001, and in the Delaware
State News on August 2, 2001, the Commission solicited
written comments concerning the proposed regulations as
well as requests to participate in the proceeding. Such
comments or requests to participate were due on August 31,
2001. In addition to Commission Staff, two companies and
two associations are participating in the case. The Hearing
Examiner assigned to the case has established a procedural
schedule that includes rebuttal comments, which are due on
October 5, 2001, and a public hearing, which will be
conducted at 1:00 p.m. on Tuesday, November 6, 2001, at
the Commission's office located at 861 Silver Lake
Boulevard, Cannon Building, Suite 100, Dover, Delaware
19904. At the hearing, the public will be permitted to
comment on the proposed amendments to the regulations.
The proposed amendments and the current regulations
were published in the Register of Regulations, at 5 DE Reg.
435 - 445 (8/1/01). The proposed regulations and the
materials submitted in connection therewith are available for
public inspection and copying at the Commission's Dover
office during normal business hours. The fee for copying is
$0.25 per page. The regulations are also available for review
on the Commission's website: www.state.de.us/delpsc.
Any individual with disabilities who wishes to
participate in these proceedings should contact the
Commission to discuss any auxiliary aids or services needed
to facilitate such review or participation. Such contact may
be in person, by writing, telephonically, by use of the
Telecommunications Relay Service, or otherwise. The
Commission's toll-free telephone number is (800) 282-8574.
Persons with questions concerning this application may
contact the Commission's secretary, Karen J. Nickerson, by
either Text Telephone ("TT") or by regular telephone at
(302) 739-4333 or by Internet e-mail at
karen.nickerson@state.de.us.
STATE BOARD OF EDUCATION
The State Board of Education will hold its
monthly meeting on Thursday, October 18, 2001
at 9:00 a.m. in the Townsend Building, Dover,
Delaware.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
984 CALENDAR OF EVENTS/HEARING NOTICES
DEPARTMENT OF FINANCE
DIVISION OF REVENUE
DELAWARE STATE LOTTERY OFFICE
The Delaware Lottery Office proposes to amend Video
Lottery Regulations 5.2.1(2), 7.2, 7.3, and 14.7. The Lottery
proposes to amend the Regulations as follows:
5.2.1 All contracts with technology providers who
are video lottery machine manufacturers shall
include without limitations, provisions to the
following effect:
...
(2)The technology provider shall submit video
lottery machine illustrations, schematics, block
diagrams, circuit analysis, technical and operation
manuals, program source code and object code and
any other information requested by the Director for
purposes of analyzing and testing the video lottery
machines. A maximum of twenty-five ($25) onehundred
($100) shall be permitted for wagering on
a single play of any video game.
7.2 Video games shall be based on bills, coins,
tokens, or credits, worth between $.05 and $25.00
$100.00 each, in conformity with approved
business plans as amended.
7.3 The Director, in his or her discretion, may
authorize extended play features from time to time
to which the maximum wager limit of $25.00
$100.00 shall not apply
14.7 The Lottery shall communicate the results of
the determination of suitability in writing, to the
license applicant or licensee within thirty (30) days
of receipt of the criminal history information,
unless extenuating circumstances require a longer
period. If a determination is made to deny a person
licensure, the person shall have an opportunity to
appeal for reconsideration as set out below:
(1)Appeal shall be initiated by a person notified that
he/she is being denied a license pursuant to 29 Del.
C. §4807A and Video Lottery Regulation 13.3 by
submitting a request for a hearing to the Director
within ten (10) working days of the receipt of the
written notice.
(2)The appeal shall be reviewed by the Lottery
Director and the person shall be given the right to
be heard by the Director or the Director's designee
within thirty (30) working days of the receipt of the
letter of appeal, unless extenuating circumstances
require a longer period. Any hearing will be
pursuant to the procedures in the Video Lottery
Regulations 13.5-13.11, whichever is applicable.
(3)A written decision shall be rendered by the
Director or the Director's designee within thirty
(30) working days of the hearing unless extenuating
circumstances require a longer period. All
decisions made by the Lottery under this appeal
procedure are final.
(4)A person determined to be unsuitable for
licensure pursuant to these Regulations shall be
prohibited from reapplying for licensure for a
period of twelve (12) months.
The Lottery proposes these Regulation amendments
pursuant to 29 Del.C. §4805(a). The Lottery will accept
written comments from October 1, 2001 through October 31,
2001. The Lottery will hold a public hearing on the
proposed amendments on October 22, 2001 at 10:00 a.m. at
the Lottery Office, Second Floor Conference Room, 1575
McKee Road, Suite 102, Dover, DE 19904-1903. Written
comments should be submitted to the Lottery at the above
address and noted to the attention of Lottery Director Wayne
Lemons.
DEPARTMENT OF HEALTH AND
SOCIAL SERVICES
DIVISION OF LONG TERM CARE
PUBLIC NOTICE
Delaware Health and Social Services (DHSS), in
compliance with Senate Bill 20 passed in the 140th General
Assembly, has prepared revised draft regulations governing
training and qualifications for nursing assistants and certified
nursing assistants as required in Title 16 Del. C., Chapter
30A.
These regulations address certified nursing assistant
training, the composition of the certified nursing assistant
training course and curriculum, the mandatory orientation
period and senior certified nursing assistant certification.
INVITATION FOR PUBLIC COMMENT
Public hearings will be held as follows:
Tuesday, November 6, 2001, 10:00 AM
Department of Natural Resources &
Environmental Control Auditorium
89 Kings Highway
Dover
Thursday, November 8, 2001, 9:00 AM
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 985
Room 301, Main Building
Herman Holloway Campus
1901 N. DuPont Highway
New Castle
For clarification or directions, please call Gina
Loughery at 302-577-6661.
Written comments are also invited on these proposed
revised regulations and should be sent to the following
address:
Elise MacEwan
Division of Long Term Care Residents Protection
3 Mill Road
Wilmington, DE 19806
The last time to submit written comments will be at the
public hearing November 8, 2001.
The Regulations currently in place are being replaced in
their entirety by the new ones being submitted for
publication on October 1, 2001.
DIVISION OF PUBLIC HEALTH
Health Systems Protection Section
Notice of proposed amendments to the Uniform
Controlled Substance Act
Under the authority set forth in 16 Del.C., Section 4711
(1), the Secretary of the Department of Health and Social
Services proposes amendments to 16 Del.C. §4716(g) and
§4718(l). The amendments to these two Statutes will
reschedule the drug Dronabinol in the Delaware Controlled
Substances Act following the rescheduling of Dronabinol
within the federal schedules of controlled substances by the
Attorney General of the United States pursuant to 21 USC
§811.
NOTICE OF PUBLIC HEARING
The Health Systems Protection Section, Division of
Public Health, Department of Health & Social Services, will
hold a public hearing to discuss the proposed adoption of the
controlled substance rescheduling of Dronabinol from
schedule II to schedule III. This amendment mimics the
federal rescheduling of this drug. The amendment will
remove Dronabinol from 16 Del.C. 4716(g) and place
Dronabinol in 16 Del.C. 4718 (l)
The public hearing will be held on Wednesday, October
31, 2001, at 1:00 PM, in the 3rd floor conference room (Rm
309), Jesse Cooper Building, Federal and Water Streets,
Dover, Delaware. Information concerning the proposed
rescheduling of Dronabinol is available at the following
locations:
Office of Narcotics & Dangerous Drugs
Jesse Cooper Building
Federal & Water Streets
P.O. Box 637
Dover, DE 19903
(302) 739-4798
Anyone wishing to present his or her oral comments at
this public hearing should contact Dave Walton at (302) 739-
4700 by October 30, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of, oral
testimony should submit such comments by November 1,
2001, to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
DIVISION OF PUBLIC HEALTH
Health Systems Protection Section
The proposed amendment to the Uniform Controlled
Substance Regulation #4 is to be adopted in accordance with
Title 16, Delaware Code, Section 4731.
The amendment to Regulation #4, paragraph (h) as
attached will provide greater quantities of controlled
substances to be dispensed while still protecting the public's
safety and welfare. This amendment would provide for at
least a 31-day supply and a mechanism for the pharmacist to
validate an outdated and otherwise voided schedule II or III
controlled substance prescription via practitioner
authorization.
NOTICE OF PUBLIC HEARING
The Health Systems Protection Section, Division of
Public Health, Department of Health & Social Services, will
hold a public hearing to discuss the proposed adoption of the
regulatory amendment to Regulation 4, paragraph (h) of the
Uniform Controlled Substance Regulations. This
amendment will provide greater quantities of controlled
substances to be dispensed while still protecting the public's
safety and welfare. This amendment would provide for at
least a 31-day supply and a mechanism for the pharmacist to
validate an outdated and otherwise voided schedule II or III
controlled substance prescription via practitioner
authorization.
The public hearing will be held on Wednesday, October
31, 2001, at 10:00 AM, in the 3rd floor conference room
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
986 CALENDAR OF EVENTS/HEARING NOTICES
(Rm 309), Jesse Cooper Building, Federal and Water Streets,
Dover, Delaware. Information concerning the proposed
regulatory amendment is available at the following
locations:
Office of Narcotics & Dangerous Drugs
Jesse Cooper Building
Federal & Water Streets
P.O. Box 637
Dover, DE 19903
(302) 739-4798
Anyone wishing to present his or her oral comments at
this public hearing should contact Dave Walton at (302) 739-
4700 by October 30, 2001. Anyone wishing to submit
written comments as a supplement to, or in lieu of, oral
testimony should submit such comments by November 1,
2001, to:
Dave Walton, Hearing Officer
Division of Public Health
P.O. Box 637
Dover, Delaware 19903-0637
DIVISION OF SOCIAL SERVICES
CHILD CARE FEE
In compliance with the State's Administrative
Procedures Act (APA - Title 29, Chapter 101 of the
Delaware Code) and with 42CFR §447.205, and under the
authority of Title 31 of the Delaware Code, Chapter 5,
Section 505, the Delaware Department of Health and Social
Services (DHSS) / Division of Social Services is proposing
to implement a policy change to the Division of Social
Services Manual, Section 11004.7, clarifying when the child
care fee will be waived.
Any person who wishes to make written suggestions,
compilations of data, testimony, briefs or other written
materials concerning the proposed revised regulation must
submit same to Mary Ann Daniels, Policy and Program
Implementation Unit, Division of Social Services, P.O. Box
906, New Castle, Delaware by October 31, 2001.
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.
DEPARTMENT OF NATURAL
RESOURCES AND
ENVIRONMENTAL CONTROL
DIVISION OF AIR & WASTE MANAGEMENT
Air Quality Management Section
REGISTER NOTICE
TITLE OF THE PROPOSAL:
State Implementation Plan Development: A new
regulation #43 that will incorporate by reference the "Not to
Exceed" California rules covering new heavy duty diesel
engines registered for model years 2005 and 2006
BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE
AND ISSUES:
The proposed regulation requires manufacturers to
perform supplemental test procedures, in addition to the
existing Federal Test Procedure (FTP). The regulation will
cover a gap in the legal requirements on manufacturers for
these two model years that will ensure diesel powered heavy
duty vehicles will continue to reduce NOx (nitrogen oxides)
emissions in the years between those covered by a court
consent decree and the adopted federal standards which
begin in model year 2007.
Under this regulation, manufacturers and dealers must
provide documentation to purchasers of the applicable heavy
duty diesel vehicles they sell in the State that verifies the
vehicles are equipped with engines that comply with the
"Not to Exceed" California rules. Anyone registering these
vehicles must submit a copy of this documentation to the
Division of MotorVehicles.
NOTICE OF PUBLIC COMMENT:
Public Hearing is on October 31, 2001, 6 P.M. 156
South State Street, Second Floor, Dover
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
CALENDAR OF EVENTS/HEARING NOTICES 987
DIVISION OF WATER RESOURCES
Statutory Authority: 7 Delaware Code,
Section 6010, (7 Del.C. 6010)
REGISTER NOTICE
Brief Synopsis of the Subject, Substance and Issues:
The State of Delaware revised on-site wastewater
treatment and disposal system criteria and standards to keep
pace with the industry and maintain its prominence as a
nationally recognized leader in this field. To ensure the
Regulations Governing the Design, Installation and
Operation of On-Site Wastewater Treatment and
Disposal Systems are current with industry standards,
engineering practices, soil science principles and compliance
issues, the State of Delaware, in accordance with 7 Del.C.
§6010, will amend Sections 2 through 10 and the Exhibits.
Notice Of Public Comment:
The Department of Natural Resources and
Environmental Control, Division of Water Resources, will
conduct a public hearing on October 23, 2001, beginning at
6:00 p.m., in the auditorium of the Richardson and Robbins
Building, 89 Kings Highway, Dover, Delaware, to hear
testimony and receive comments on the proposed
amendments to the Regulations Governing the Design,
Installation and Operation of On-Site Wastewater
Treatment and Disposal Systems.
The State of Delaware revised on-site wastewater
treatment and disposal system criteria and standards to keep
pace with the industry and maintain its prominence as a
nationally recognized leader in this field. To ensure the
Regulations Governing the Design, Installation and
Operation of On-Site Wastewater Treatment and
Disposal Systems are current with industry standards,
engineering practices, soil science principles and compliance
issues, the State of Delaware, in accordance with 7 Del. C.
§6010, will amend Sections 2 through 10 and the Exhibits.
For additional information or to request a copy of the
proposed revisions to the regulations please contact the
Ground Water Discharges Section at (302) 739-4761.
The procedures for public hearings are established in 7
Del.C. § 6006 and 29 Del.C. §10117. Inquiries regarding
the public hearing should be directed to Lisa A.Vest at (302)
739-4403. Statements and testimony may be presented
orally or in written form at the hearing. It is requested that
those interested in presenting statements register in advance
by mail. The deadline for inclusion of written comments in
the hearing record will be announced at the time of the
hearing. Written statements may be presented prior to the
hearing and should be addressed to: Lisa A. Vest, Paralegal,
DNREC, 89 Kings Highway, Dover, DE 19901.
EXECUTIVE DEPARTMENT
DELAWARE ECONOMIC DEVELOPMENT OFFICE
DELAWARE TOURISM OFFICE
Direct Grants Program
NOTICE OF PUBLIC HEARING
In accordance with the procedures set forth in 29 Del. C.
Ch. 11, Subch. III, 29 Del. C. Ch 101 and 73 Delaware Laws
Ch. 74, Section 67 (June 28, 2001), the Director of the
Delaware Economic Development Office ("DEDO") (of
which the Delaware Tourism Office ("DTO") is a
subdivision), in cooperation with the Tourism Advisory
Board (the "Board"), is proposing to adopt a regulation for
the administration of the direct grants program set forth in 73
Delaware Laws Ch. 74, Section 67 (the "Direct Grants
Program") and for the application and award procedure of
the Direct Grants Program. The regulation originally
proposed in 5 DE Reg. 512-13 (September 1, 2001) is hereby
withdrawn and is re-proposed in the form set forth below.
The regulation describes the Direct Grants Program, the
eligibility criteria and application procedure for awards
under the Direct Grants Program, the procedure for making
of awards and the uses to which Direct Grants Program
awards may not be put.
The Director of the Delaware Economic Development
Office, or an employee of the Delaware Economic
Development Office designated by the Director, and the
Board will hold a public hearing at which members of the
public may present comments on the proposed regulation on
November 9, 2001 in the conference room of the offices of
the Delaware Economic Development Office at 99 Kings
Highway, Dover, DE, 19901 at 9:00 a.m. Additionally,
members of the public may present written comments on the
proposed regulation by submitting such written comments to
Ms. Julie Miro Wenger at the address of the Delaware
Economic Development Office set forth above. Written
comments must be received on or before November 9, 2001
at 9:00 a.m. Members of the public may receive a copy of
the proposed amendments to the regulation at no charge by
United States Mail by writing or calling Ms. Julie Miro
Wenger, Delaware Tourism Office of the Delaware
Economic Development Office, 99 Kings Highway, Dover,
DE, 19901-7305, phone (302) 739-4271.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
988 CALENDAR OF EVENTS/HEARING NOTICES
DELAWARE ECONOMIC DEVELOPMENT OFFICE
DELAWARE TOURISM OFFICE
Matching Funds Program
NOTICE OF PUBLIC HEARING
In accordance with the procedures set forth in 29 Del. C.
Ch. 11, Subch. III, 29 Del. C. Ch 101 and 73 Delaware Laws
Ch. 74, Section 67 (June 28, 2001), the Director of the
Delaware Economic Development Office ("DEDO") (of
which the Delaware Tourism Office ("DTO") is a
subdivision), in cooperation with the Tourism Advisory
Board (the "Board"), is proposing to adopt a regulation for
the administration of the matching grants program set forth
in 73 Delaware Laws Ch. 74, Section 67 (the "Matching
Grants Program") and for the application and award
procedure of the Matching Grants Program. The regulation
describes the Matching Grants Program, the matching funds
requirement of the Matching Grants Program, the eligibility
criteria and application procedure for awards under the
Matching Grants Program, the procedure for making of
awards and the uses to which Matching Grants Program
awards may not be put.
The Director of the Delaware Economic Development
Office, or an employee of the Delaware Economic
Development Office designated by the Director, and the
Board will hold a public hearing at which members of the
public may present comments on the proposed regulation on
November 9, 2001in the conference room of the offices of
the Delaware Economic Development Office at 99 Kings
Highway, Dover, DE, 19901 at 9:00 a.m. Additionally,
members of the public may present written comments on the
proposed regulation by submitting such written comments to
Ms. Julie Miro Wenger at the address of the Delaware
Economic Development Office set forth above. Written
comments must be received on or before November 9, 2001
at 9:00 a.m. Members of the public may receive a copy of
the proposed amendments to the regulation at no charge by
United States Mail by writing or calling Ms. Julie Miro
Wenger, Delaware Tourism Office of the Delaware
Economic Development Office, 99 Kings Highway, Dover,
DE, 19901-7305, phone (302) 739-4271.
DELAWARE RIVER BASIN
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25 STATE POLICE DRIVE
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The Delaware River Basin Commission will meet on
Wednesday, October 31, 2001 in West Trenton, New Jersey.
For more information contact Pamela M. Bush, Commission
Secretary, at (609) 883-9500 ext. 203.
DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001
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DELAWARE REGISTER OF REGULATIONS, VOL. 5, ISSUE 4, MONDAY, OCTOBER 1, 2001