CHAPTER 125

FORMERLY

SENATE BILL NO. 219

AN ACT TO AMEND CHAPTER 19, TITLE 2 OF THE DELAWARE CODE RELATING TO THE EMPLOYEE COMMUTE OPTIONS ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each house thereof concurring therein):

Section 1. Amend § 1903, Chapter 19, Title 2 of the Delaware Code by adding thereto a new subsection (a) to read as follows:

"(a) 'Regional Plan,' as used in this title, means a Regional Employee Commute Options Plan, administered by the State, which is a traffic reduction plan designed primarily to reduce employee commute trips and developed by the State in conjunction with employers in accordance with regulations adopted and approved by the Secretary consistent with 42 U.S.C. § 7511a (d)(1)(B). Participation in a Regional Plan shall constitute a means of compliance with the Employee Commute Options Act as set forth in this Title. As an alternative, an individualized work site(s) Employee Commute Options Plan may be submitted by individual employers and referred to as the Employee Commute Options Plan or ECO Plan. Every employer, as that term is defined in this title, shall participate in either a Regional Plan or as an alternative, develop and pursue an approved ECO Plan."

Section 2. Amend § 1903(6), Chapter 19, Title 2 of the Delaware Code by inserting the phrase ", alternative work schedules" after the phrase "compressed work weeks" and before the phrase "and subscription buses."

Section 3. Amend § 1903(c), Chapter 19, Title 2 of the Delaware Code by deleting the numeral "80" and substituting in lieu thereof the numeral "120".

Section 4. Amend § 1903(c), Chapter 19, Title 2 of the Delaware Code by deleting the phrase 'Employer Commute Option (ECO) Plan' as it appears therein and substituting in lieu thereof the phrase 'Employee Commute Options (ECO) Plan'.

Section 5. Amend § 1903(i), Chapter 19, title 2 of the Delaware code by deleting said subsection in its entirety and substituting in lieu thereof the following:

"(i) 'Regulations' means the rules and regulations enacted by the Secretary pursuant to § 1904 of this title."

Section 6. Amend § 1903, Chapter 19, Title 2 of the Delaware Code by deleting subsections "(k)" and "(l)" in their entirety and redesignating existing subsections "(m)" and "(n)" as "(l)" and "(m)" respectively.

Section 7. Amend § 1903, Chapter 19, Title 2 of the Delaware Code by adding thereto a new subsection (k) to read as follows:

"(k) 'Status report' means a periodic report submitted by each employer reflecting a reporting year beginning on October 1st and ending on September 30th of the following year. The report must be submitted in accordance with regulations adopted by the Department. Any Department-approved measures by which an employer proposes to eliminate any deficits or deficiencies in attaining the target Average Passenger Occupancy (APO) shall become an amendment to that ECO Plan."

Section 8. Amend § 1904, Chapter 19, Title 2 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 1904. Rules and regulations.

The Secretary shall prescribe such rules and regulations as may be deemed necessary to carry out the purposes of this Chapter including, but not limited to, the foregoing and the following:

(1) Procedures by which employers may participate in a Regional Plan.

(2) Procedures requiring employers which do not participate in a Regional Plan to provide the Department information regarding actions taken and the plans made to comply with an ECO Plan and the revised State Implementation Plan required by 42 § 7511a(d)(1)(B). These procedures may establish a process of plan submission, approval and/or periodic reporting on target achievement.

(3) Procedures, including conciliation, to assist in the enforcement of the regulations if there is a determination that the employer has not submitted the required information or reports when due, or, if as a result of the submitted reports or monitoring by the Department, there is a determination that the employer has not pursued the terms of the ECO Plan in good faith, or the employer failed to make a good faith effort to reasonably comply with the requirements of this Chapter.

(4) Procedures for the determination and assessment of fees to be paid by the employer to cover the costs of administration of this program, where deemed to be necessary by the Department.

(5) Procedures for the review of any determination of penalty imposed by the Department."

Section 9. Amend § 1905(a), Chapter 19, Title 2 of the Delaware Code by deleting the said subsection in its entirety and replacing it with the following:

"(a) The Department shall enforce this chapter. In the event that an employer chooses not to participate in the Regional Plan or in the event that said employer fails to comply with the procedures adopted by the Department relative to a Regional Plan, said employer shall be required to submit an individualized ECO Plan in compliance with this title. The balance of this section shall only apply to employers which are required to file an ECO Plan."

Section 10. Amend § 1905(b), Chapter 19, Title 2 of the Delaware Code by deleting subsections (5) and (7) in their entireties, renumbering existing subsection (6) as subsection (5) and adding a new subsection (6) to read as follows:

"(6) For a failure to pursue the terms and/or time frames of the employer's ECO Plan in good faith, the penalty will be six dollars ($6) per day, per vehicle in the employer's deficit vehicle count as defined by the Regulations, at the work sites covered by the ECO Plan; provided, however, that in making the determination of whether an employer has failed to pursue in good faith the terms and/or time games of the employer's ECO Plan, the Department shall only consider whether the employer has acted in good faith in attempting to satisfy the requirements of the ECO Plan and shall not consider whether the employer has actually attained the projected participation rates or APO Target."

Section 11. Amend § 1905(e), Chapter 19, Title 2 of the Delaware Code by deleting therefrom the words "have the discretion to".

Section 12. Amend § 1907(a), Chapter 19, Title 2 of the Delaware Code by deleting therefrom the word "perfected" and substituting in lieu thereof the word "filed".

Section 13. Amend § 1908, Chapter 19, Title 2 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 1908. Regional Plan.

Except as otherwise stated therein, § 1905 of this title and the Regulations shall not apply to employers who participate in the Regional Plan, as that term is defined herein, in accordance with rules and regulations adopted pursuant to this title. Participation in the Regional Plan shall serve as a valid alternative to the submission of an ECO Plan otherwise required under this title, and any ECO Plan previously submitted by an employer shall become null and void upon that employer's participating in the Regional Plan."

Section 14. Amend Chapter 19, Title 2 of the Delaware Code by adding thereto a new Section 1909, to read as follows:

"§ 1909. Administration fees.

The Department is empowered to determine, assess and collect an annual fee pursuant to this chapter and regulations adopted by the Secretary, which fees shaft not exceed two dollars ($2.00) per employee or thirty thousand dollars ($30,000), per employer, whichever is less, and shall be equitably assessed based upon the number of employees of each employer participating in the Regional Plan. The amount of fees to be charged under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Department as well as any proportional expenses incurred. At the beginning of each calendar year the Department, or any other State agency acting on its behalf, shall compute the appropriate fee for the coming year."

Section 15. Further amend Chapter 19, Title 2 of the Delaware Code by adding thereto a new § 1910, to read as follows:

"§ 1910. Confidentiality.

Written or recorded information constituting the contents of employer plans and provided by employers participating in the Employee Commute Options Program or a Regional Plan shall be treated as confidential and not be considered as a public record under the provisions of Chapter 100, Title 29 of the Delaware Code."

Section 16. Further amend Chapter 19, Title 2 of the Delaware Code by adding thereto a new § 1911, to read as follows:

"§ 1911. Amendments to federal law.

In the event that the Congress of the United States or any agency of the United States Government determines that the Employee Commute Options Program shall thereafter be voluntary in nature and/or M the event affected areas within the State are reclassified from 'severe' to 'serious' or less, the State of Delaware Employee Commute Options Act shall also become voluntary, effective immediately, and the Department shall draft new regulations in accordance therewith within 60 days thereof exclusive of public hearings. In the event that the State of Delaware Employee Commute Options Act becomes voluntary, § I905(b) shall immediately become null and void."

Section 17. Any reference to the term "Authority" in the ECO Regulations is hereby stricken and the word "Department" substituted in lieu thereof.

Approved July 6, 1995