Pages 1281 to 1342 include ARC 0484B to ARC 0509B and ARC 0511B to ARC 0514B

Administrative rules review committee 1270

Notice, Waiver or variance of rules, ch 8
ARC 0493B 1281

Notice, Waivers from rules, 1.3, ch 19
ARC 0509B 1283

Schedule for rule making 1268

Publication procedures 1269

Administrative rules on CD–ROM 1269

Agency identification numbers 1279

CITATION OF ADMINISTRATIVE RULES 1267

Notice, Waiver rules, ch 8 ARC 0490B 1285

Notice, Waivers and variances, ch 7
ARC 0494B 1287

Notice, Waiver rules, ch 9 ARC 0497B 1289

Notice, Waiver rules, ch 10 ARC 0500B 1291

Notice, Waivers, 2.8 ARC 0489B 1293

Notice, Waivers or variances from
administrative rules, ch 15 ARC 0492B 1295

Notice, Waivers and variances, ch 20
ARC 0514B 1297

Notice, State training school—notification
to sex offenders of duty to register and
complete risk assessment, 7.1, 7.5(4),
7.10(4), 103.31 to 103.34 ARC 0486B 1299

Notice, Child support recovery unit—
medical support notice to employers,
98.5(1), 98.7(2), 98.8 ARC 0487B 1302

Filed, Multiple employer welfare
arrangements, ch 77 ARC 0484B 1333

Notice, Waiver rules, ch 8 ARC 0499B 1303

Notice, Waiver and variance rules, ch 5
ARC 0485B 1305

Notice, Waivers or variances from
administrative rules, ch 10 ARC 0495B 1307

Notice, Waiver rules, ch 7 ARC 0491B 1309

Filed, Marital and family therapists
and mental health counselors, 30.1,
30.3(2), 30.4(2), 30.5(10), 30.8 to
30.10, 31.1 to 31.6, 31.8 to 31.10,
ch 32 ARC 0502B 1335

PROFESSIONAL LICENSURE DIVISION[645]
(Cont’d)

Filed, Licensure of cosmetologists, electrologists,
estheticians, manicurists, nail technologists, and
instructors of cosmetology arts and sciences;
fees, chs 60, 62 ARC 0504B 1336

Filed, Continuing education for cosmetology
arts and sciences, ch 64, 65.1, 65.12
ARC 0505B 1340

Filed, Podiatrists, 220.1, 220.7, 220.8,
220.100 to 220.104, 220.106 to
220.109, 220.200, 220.212, ch 222
ARC 0503B 1341

Notice, Waiver or variance of rules, 1.9
ARC 0496B 1311

Notice, Variances and waivers of public health
administrative rules, ch 178 ARC 0508B 1313

Summarized list 1274

Public Notices 1316

Filed, Fire safety in small group homes that
prevent free egress, 5.620(7)“b”
ARC 0488B 1341

Notice, Multilevel marketer agreements—
effective date of termination, 4.1(5)
ARC 0511B 1317

Notice, Practice and procedure before the
department of revenue and finance, 7.37,
7.39, 7.42 to 7.51 ARC 0513B 1318

Notice, Tax exemptions—dyed fuel; motor fuel,
cigarettes, and tobacco products, 68.3,
68.8(18), 82.4(5)“b,” 83.4, 83.10,
83.11(2), 84.2 ARC 0512B 1322

Notice, Waiver and variance rules, ch 10
ARC 0506B 1324

Filed Emergency, Waiver and variance rules,
ch 10 ARC 0507B 1330

Notice, Waiver rules, ch 7 ARC 0498B 1324

Notice, Waiver rules, ch 10 ARC 0501B 1326

Notice—Public funds interest rates 1328

CITATION of Administrative Rules

The Iowa Administrative Code shall be cited as (agency identification number) IAC
(chapter, rule, subrule, lettered paragraph, or numbered subparagraph).

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(1)“a” (Paragraph)

441 IAC 79.1(1)“a”(1) (Subparagraph)

The Iowa Administrative Bulletin shall be cited as IAB (volume), (number), (publication
date), (page number), (ARC number).

IAB Vol. XII, No. 23 (5/16/90) p. 2050, ARC 872A

PUBLISHED UNDER AUTHORITY OF IOWA CODE SECTIONS 2B.5 AND 17A.6

__________________________________

The Iowa Administrative Bulletin is published biweekly in pamphlet form pursuant to Iowa Code chapters 2B and 17A and contains Notices of Intended Action on rules, Filed and Filed Emergency rules by state agencies.

It also contains Proclamations and Executive Orders of the Governor which are general and permanent in nature; Economic Impact Statements to proposed rules and filed emergency rules; Objections filed by Administrative Rules Review Committee, Governor or the Attorney General; and Delay by the Committee of the effective date of filed rules; Regulatory Flexibility Analyses and Agenda for monthly Administrative Rules Review Committee meetings. Other “materials deemed fitting and proper by the Administrative Rules Review Committee” include summaries of Public Hearings, Attorney General Opinions and Supreme Court Decisions.

The Bulletin may also contain Public Funds Interest Rates [12C.6]; Workers’ Compensation Rate Filings [515A.6(7)]; Usury [535.2(3)“a”]; Agricultural Credit Corporation Maximum Loan Rates [535.12]; and Regional Banking—Notice of Application and Hearing [524.1905(2)].

PLEASE NOTE: Italics indicate new material added to existing rules; strike through letters indicate deleted material.

Subscriptions and Distribution Telephone: (515)242–5120
Fax: (515)242–5974

KATHLEEN K. BATES, Administrative Code Editor Telephone: (515)281–3355

STEPHANIE A. HOFF, Assistant Editor (515)281–8157

Fax: (515)281–4424

The Iowa Administrative Bulletin is sold as a separate publication and may be purchased by subscription or single copy. All subscriptions will expire on June 30 of each year. Subscriptions must be paid in advance and are prorated quarterly.

July 1, 2000, to June 30, 2001 $264.00 plus $15.84 sales tax

The Iowa Administrative Code and Supplements are sold in complete sets and subscription basis only. All subscriptions for the Supplement (replacement pages) must be for the complete year and will expire on June 30 of each year.

Prices for the Iowa Administrative Code and its Supplements are as follows:

Iowa Administrative Code - $1,210.31 plus $72.62 sales tax

(Price includes 22 volumes of rules and index, plus a one–year subscription to the Code Supplement and the Iowa Administrative Bulletin.)

Iowa Administrative Code Supplement - $425.61 plus $25.54 sales tax

(Subscription expires June 30, 2001)

All checks should be made payable to the Iowa State Printing Division. Send all inquiries and subscription orders to:

Department of General Services

Rules will not be accepted after 12 o’clock noon on the Friday filing deadline days unless prior approval has been received from the Administrative Rules Coordinator’s office.

If the filing deadline falls on a legal holiday, submissions made on the following Monday will be accepted.

TO: Administrative Rules Coordinators and Text Processors of State Agencies

FROM: Kathleen K. Bates, Iowa Administrative Code Editor

SUBJECT: Publication of Rules in Iowa Administrative Bulletin

The Administrative Code Division uses Interleaf 6 to publish the Iowa Administrative Bulletin and can import documents directly from most other word processing systems, including Microsoft Word, Word for Windows (Word 7 or earlier), and WordPerfect.

1. To facilitate the processing of rule–making documents, we request a 3.5” High Density (not Double Density) IBM PC–compatible diskette of the rule making. Please indicate on each diskette the following information: agency name, file name, format used for exporting, and chapter(s) amended. Diskettes may be delivered to the Administrative Code Division, First Floor South, Grimes State Office Building or included with the documents submitted to the Governor’s Administrative Rules Coordinator.

2. Alternatively, if you have Internet E–mail access, you may send your document as an attachment to an E–mail message, addressed to both of the following:

bcarr@legis.state.ia.us

kbates@legis.state.ia.us

Please note that changes made prior to publication of the rule–making documents are reflected on the hard copy returned to agencies by the Governor’s office, but not on the diskettes; diskettes are returned unchanged.

Your cooperation helps us print the Bulletin more quickly and cost–effectively than was previously possible and is greatly appreciated.

Containing: Iowa Administrative Code (updated through December 2000)
Iowa Administrative Bulletins (July 2000 through December 2000)
Iowa Court Rules (updated through December 2000)

For free brochures and order forms contact:

Legislative Service Bureau
Attn: Ms. Stephanie Cox
State Capitol
Des Moines, Iowa 50319
Telephone: (515)281–3566 Fax: (515)281–8027
lsbinfo@legis.state.ia.us

The Administrative Rules Review Committee will hold a special meeting on Friday, March 9, 2001, at 8 a.m. in Room 116,
State Capitol, Des Moines, Iowa. The following rules will be reviewed:

EDUCATIONAL EXAMINERS BOARD[282] (Cont’d)

To All Agencies:

The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(1)“b” by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.

Due to reorganization of state government by 1986 Iowa Acts, chapter 1245, it was necessary to revise the agency identification numbering system, i.e., the bracketed number following the agency name.

“Umbrella” agencies and elected officials are set out below at the left–hand margin in CAPITAL letters.

Divisions (boards, commissions, etc.) are indented and set out in lowercase type under their statutory “umbrellas.”

Other autonomous agencies which were not included in the original reorganization legislation as “umbrella” agencies are included alphabetically in small capitals at the left–hand margin, e.g., BEEF INDUSTRY COUNCIL, IOWA[101].

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

Status of African–Americans, Division on the[434]

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INFORMATION TECHNOLOGY DEPARTMENT[471]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

Workforce Development Board and
Workforce Development Center Administration Division[877]

Pursuant to the authority of Iowa Code sections 17A.9A and 159.5(11), the Department of Agriculture and Land Stewardship gives Notice of Intended Action to adopt new Chapter 8, “Waiver or Variance of Rules,” Iowa Administrative Code.

These proposed rules are intended to comply with Executive Order Number 11 and with Iowa Code section 17A.9A, which provides for waivers or variances of administrative rules. These rules are based on the Attorney General’s uniform waiver rules.

Any interested person may make written suggestions or comments on the proposed rules prior to 4:30 p.m. on March 13, 2001. Such written material should be directed to Ronald R. Rowland, Regulatory Division Director, Department of Agriculture and Land Stewardship, Wallace State Office Building, Des Moines, Iowa 50319. Comments may also be submitted by fax to (515)281–4282 or by E–mail to Ron. Rowland@idals.state.ia.us.

These rules are intended to implement Iowa Code section 17A.9A and chapter 159.

The following new chapter is proposed.

CHAPTER 8
WAIVER OR VARIANCE OF RULES

21—8.1(17A,159) Definition. For purposes of this chapter, “a waiver or variance” means action by the department which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

21—8.2(17A,159) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the department in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

21—8.3(17A,159) Applicability. The department may only grant a waiver from a rule if the department has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The department may not waive requirements created or duties imposed by statute.

21—8.4(17A,159) Criteria for waiver or variance. In response to a petition completed pursuant to rule 21— 8.6(17A,159), the department may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the department finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested.

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person.

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law.

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

21—8.5(17A,159) Filing of petition. A petition for a waiver must be submitted in writing to the department as follows:

8.5(1) License application. If the petition relates to a license application, the petition shall be made in accordance with the filing requirements for the license in question.

8.5(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

8.5(3) Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted to the bureau chief of the bureau administering the rule from which the waiver is sought.

21—8.6(17A,159) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is being requested and the case number of any related contested case.

2. A description and citation of the specific rule from which a waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 21—8.4(17A,159). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the department and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity or license within the last five years.

6. Any information known to the requester regarding the department’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.

21—8.7(17A,159) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the department may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the department.

21—8.8(17A,159) Notice. The department shall acknowledge a petition upon receipt. The department shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the department may give notice to other persons. To accomplish this notice provision, the department may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the department attesting that notice has been provided.

21—8.9(17A,159) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case and shall otherwise apply to agency proceedings for a waiver only when the department so provides by rule or order or is required to do so by statute.

21—8.10(17A,159) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

8.10(1) Department discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the department, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the department based on the unique, individual circumstances set out in the petition.

8.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the department should exercise its discretion to grant a waiver from a department rule.

8.10(3) Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

8.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the department shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

8.10(5) Conditions. The department may place any condition on a waiver that the department finds desirable to protect the public health, safety, and welfare.

8.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the department, a waiver may be renewed if the department finds that grounds for a waiver continue to exist.

8.10(7) Time for ruling. The department shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the department shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

8.10(8) When deemed denied. Failure of the department to grant or deny a petition within the required time period shall be deemed a denial of that petition by the department. However, the department shall remain responsible for issuing an order denying a waiver.

8.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

21—8.11(17A,159) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the department is authorized or required to keep confidential. The department may accordingly redact confidential information from petitions or orders prior to public inspection.

21—8.12(17A,159) Summary reports. Semiannually, the department shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the department’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

21—8.13(17A,159) Cancellation of a waiver. A waiver issued by the department pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the department issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver;

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

21—8.14(17A,159) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

21—8.15(17A,159) Defense. After the department issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

21—8.16(17A,159) Judicial review. Judicial review of a department’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 17A.9A and chapter 159.

Pursuant to the authority of Iowa Code section 123.21, the Alcoholic Beverages Division hereby gives Notice of Intended Action to amend Chapter 1, “Organization and Operation,” and to adopt new Chapter 19, “Waivers from Rules,” Iowa Administrative Code.

The purpose of proposed Chapter 19 is to satisfy the requirements of Executive Order Number 11 which requires state agencies to adopt a general waiver rule.

Proposed Chapter 19 provides for the general requirements for requesting a waiver and describes the procedure the Division will use to grant a waiver.

Consistent with Executive Order Number 9, the Division has considered the regulatory principles identified in this order and finds that this chapter will serve an important public need in making the rules of the Division more flexible in application to specific circumstances.

The Division will receive written comments on the proposed chapter until the close of business on March 14, 2001. Comments may be addressed to Judy K. Seib, Alcoholic Beverages Division, 1918 SE Hulsizer Road, Ankeny, Iowa 50021. Comments may be faxed to Judy K. Seib at (515)281–7375 or E–mailed to Seib@IowaABD.com.

These amendments are intended to implement Executive Order Number 11 and Iowa Code chapter 17A.

The following amendments are proposed.

ITEM 1. Rescind rule 185—1.3(123,17A).

ITEM 2. Adopt the following new chapter:

CHAPTER 19
WAIVERS FROM RULES

185—19.1(17A) Scope. This chapter outlines a uniform process for the granting of waivers or variances from rules adopted by the division. The intent of this chapter is to allow persons to seek exception to the application of rules adopted by the division.

19.1(1) Definition. For purposes of this chapter, a “waiver or variance” means an action by the division that suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

19.1(2) Authority.

a. A waiver from rules adopted by the division may be granted in accordance with this chapter if:

(1) The division has the authority to promulgate the rule from which the waiver is requested or has final decision–making authority over a contested case in which a waiver is requested; and

(2) No statute or rule otherwise controls the granting of a waiver from the rule from which the waiver is requested.

b. No waiver may be granted from a requirement that is imposed by statute. All waivers must be consistent with statute.

185—19.2(17A) Division discretion. The decision on whether the circumstances justify the granting of a waiver shall be made at the discretion of the division upon consideration of all relevant factors. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

19.2(1) Criteria. The division may, in response to a completed petition, grant a waiver from a rule, in whole or in part, as applied to the circumstances of a specific situation if the division finds each of the following:

a. Application of the rule would result in hardship or injustice to the person for whom the waiver is requested;

b. Waiver from the rule on the basis of the particular circumstances would not prejudice the substantial legal rights of any person;

c. Provisions of the rule subject to the request for a waiver are not specifically mandated by statute or another provision of law; and

d. Where applicable, substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

19.2(2) Determination. In determining whether a waiver should be granted, the division shall consider whether the underlying intent of the rule is substantially equivalent to full compliance with the rule. When the rule from which a waiver is sought establishes administrative deadlines, the division shall balance the special individual circumstances of the requester with the overall goal of uniform treatment of all licensees and other petitioners.

19.3(1) Application. All petitions for a waiver must be submitted in writing to the Alcoholic Beverages Division, 1918 SE Hulsizer Road, Ankeny, Iowa 50021. If the petition relates to a pending contested case, a copy of the petition shall also be filed in the contested case proceeding.

19.3(2) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

a. Name, address, and telephone number of the entity or person for whom a waiver is being requested, and the case number of any related contested case.

b. Description and citation of the specific rule from which a waiver is requested.

c. Specific waiver requested, including the precise scope and duration.

d. Relevant facts that the petitioner believes would justify a waiver.

e. History of any prior contacts between the division and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity or license within the last five years.

f. Information known to the requester regarding the division’s treatment of similar cases.

g. Name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question, or which might be affected by the granting of a waiver.

h. Name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

i. Name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

j. Signed releases of information authorizing persons with knowledge regarding the request to furnish the division with information relevant to the waiver.

19.3(3) Burden of persuasion. When a petition is filed for a waiver from a division rule, the burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion in the granting of the waiver.

185—19.4(17A) Notice. The division shall acknowledge a petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law, and provide a written statement to the division attesting that notice has been provided.

19.5(1) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the division.

19.5(2) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply in the following situations:

a. To any petition for a waiver filed within a contested case;

b. When the division so provides by rule or order; or

c. When a statute so requires.

19.5(3) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

19.5(4) Conditions. The division shall condition the granting of the waiver on such reasonable conditions as appropriate to achieve the objectives of the particular rule in question through alternative means.

19.5(5) Duration of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the division, a waiver may be renewed if the division finds that grounds for a waiver continue to exist.

19.5(6) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the division shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

19.5(7) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division.

19.5(8) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

185—19.6(17A) Public availability. Subject to the provisions of Iowa Code section 17A.3, the division shall maintain a record of all orders granting or denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and available to members of the public at the Alcoholic Beverages Division, 1918 SE Hulsizer Road, Ankeny, Iowa 50021. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Orders containing information that the division is authorized or required to keep confidential shall be edited prior to public inspection.

185—19.7(17A) Cancellation. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver request withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

185—19.8(17A) Violations. Violation of a condition in a waiver order is equivalent to a violation of the rule for which the waiver is granted. The recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

185—19.9(17A) Defense. After the division issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

185—19.10(17A) Appeals. Granting or denying a request for waiver is final agency action under Iowa Code chapter 17A. An appeal to district court shall be taken within 30 days of the issuance of the ruling in response to the request unless a contrary time is provided by statute or rule.

These rules are intended to implement Iowa Code sections 17A.9A and 17A.10 and Executive Order Number 11.

Pursuant to the authority of Iowa Code sections 17A.3 and 216A.92B, the Division of Community Action Agencies hereby gives Notice of Intended Action to adopt Chapter 8, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Number Seven, Volume XXII, dated October 6, 1999. Adoption of this new chapter will provide the agency with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Division of Community Action Agencies, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in the Director’s Office, Department of Human Rights, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Division of Community Action Agencies in advance of the hearing and advise of specific needs.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following rules are proposed.

Adopt the following new chapter:

CHAPTER 8
WAIVER RULES

427—8.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

427—8.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable proc–ess for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

427—8.3(17A) Applicability. This chapter applies only to waivers of those division rules that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

427—8.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

427—8.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 8.3(17A) and 8.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division administrator shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

427—8.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

427—8.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 8.5(17A) of this chapter.

427—8.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

427—8.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

427—8.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

427—8.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

427—8.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

427—8.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

427—8.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

427—8.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 8.12(17A).

427—8.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

427—8.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division’s office during regular business hours.

427—8.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

427—8.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

427—8.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

427—8.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code section 904.108, the Department of Corrections hereby gives Notice of Intended Action to adopt Chapter 7, “Waivers and Variances,” Iowa Administrative Code.

Proposed Chapter 7 adopts uniform rules regarding petitions for waiver or variance from provisions of Department of Corrections rules. Executive Order Number 11 directed state rule–making authorities to adopt uniform rules regarding waivers and variances from rules of the authority.

Any interested person may present written suggestions or comments on the proposed rules on or before March 13, 2001. Such written materials should be sent to the Director of Policy and Legal Services, Corrections Department, 420 Watson Powell Jr. Way, Des Moines, Iowa 50309.

There will be a public hearing on March 13, 2001, from11 a.m. to 1 p.m. in the Second Floor Conference Room, 420 Watson Powell Jr. Way, Des Moines, Iowa 50309, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules.

Persons who intend to attend the public hearing and have special requirements should contact the Department of Corrections and advise of special needs.

These rules are intended to implement Iowa Code sections 17A.9A and 904.108.

The following rules are proposed.

Adopt the following new chapter:

CHAPTER 7
WAIVERS AND VARIANCES

201—7.1(904) Definition. For purposes of this chapter, a “waiver or variance” means an action by the department which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

201—7.2(904) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the department in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

201—7.3(904) Applicability. The department may grant a waiver from a rule only if the department has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The department may not waive requirements created or duties imposed by statute.

201—7.4(904) Criteria for waiver or variance. In response to a petition completed pursuant to rule 7.6(904), the department may, in its sole discretion, issue an order waiving, in whole or in part, the requirements of a rule if the department finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

201—7.5(904) Filing of petition. A petition for a waiver must be submitted in writing to the department as follows:

7.5(1) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding using the caption of the contested case.

7.5(2) Other. If the petition does not relate to a pending contested case, the petition may be submitted to the department’s director.

7.5(3) File petition. A petition is deemed filed when it is received in the department’s office. A petition should be sent to the Iowa Department of Corrections, Policy & Legal Services, 420 Watson Powell Jr. Way, Des Moines, Iowa 50309. The petition must conform to the form specified in rule 7.17(904).

201—7.6(904) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested; the case number of or other reference to any related contested case; and the name, address, and telephone number of the petitioner’s legal representative, if any.

2. A description and citation of the specific rule from which a waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 7.4(904). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the department and the petitioner relating to the regulated activity affected by the proposed waiver.

6. Any information known to the requester regarding the department’s action in similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.

201—7.7(904) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the department may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the department’s director or designee.

201—7.8(904) Notice. The department shall acknowledge a petition upon receipt. The department shall ensure that all persons to whom notice is required by any provision of law, including the petitioner, receive notice within 30 days of the receipt of the petition, that the petition is pending and a concise summary of its contents. In addition, the department may give notice to other persons. To accomplish this notice provision, the department may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the department attesting that notice has been provided.

201—7.9(904) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case and shall otherwise apply to agency proceedings for a waiver only when the department so provides by rule or order or is required to do so by statute.

201—7.10(904) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

7.10(1) Department discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the department upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the department based on the unique, individual circumstances set out in the petition.

7.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the department should exercise its discretion to grant a waiver from a department rule.

7.10(3) Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

7.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the department shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

7.10(5) Conditions. The department may place on a waiver any condition that the department finds desirable to protect the public health, safety, and welfare.

7.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the department, a waiver may be renewed if the department finds that grounds for a waiver continue to exist.

7.10(7) Time for ruling. The department shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the department shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

7.10(8) When deemed denied. Failure of the department to grant or deny a petition within the required time period shall be deemed a denial of that petition by the department. However, the department shall remain responsible for issuing an order denying a waiver.

7.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

201—7.11(904) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the department is authorized or required to keep confidential. The department may accordingly redact confidential information from petitions or orders prior to public inspection.

201—7.12(904) Summary reports. Semiannually, the department shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the department’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

201—7.13(904) Cancellation of a waiver. A waiver issued by the department pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the department issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

201—7.14(904) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

201—7.15(904) Defense. After the department issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein only for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

201—7.16(904) Judicial review. Judicial review of the department’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

201—7.17(904) Sample petition for waiver. A petition for waiver filed in accordance with this chapter must meet the requirements specified herein and must substantially conform to the following form:

1. Provide the name, address, and telephone number of the petitioner (person asking for a waiver or variance). Also provide the name, address, and telephone number of the petitioner’s legal representative, if applicable, and a statement indicating the person to whom communications concerning the petition should be directed.

2. Describe and cite the specific rule from which a waiver is requested.

3. Describe the specific waiver requested, including the precise scope and time period for which the waiver will extend.

4. Explain the relevant facts and reasons that the petitioner believes justify a waiver. Include in your answer all of the following:

• Why applying the rule would result in undue hardship to the petitioner;

• Why waiving the rule would not prejudice the substantial legal rights of any person;

• Whether the provisions of the rule subject to the waiver are specifically mandated by statute or another provision of law; and

• How substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

5. Provide a history of any prior contacts between the department and petitioner relating to the regulated activity that would be affected by the waiver.

6. Provide information known to the petitioner regarding the department’s action in similar cases.

7. Provide the name, address, and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of the petition.

8. Provide the name, address, and telephone number of any person or entity that would be adversely affected by the granting of the waiver or variance.

9. Provide the name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.

I hereby attest to the accuracy and truthfulness of the above information.

Petitioner’s signature Date x

These rules are intended to implement Iowa Code sections 17A.9A and 904.108.

Pursuant to the authority of Iowa Code section 17A.3, the Division of Criminal and Juvenile Justice Planning hereby gives Notice of Intended Action to adopt new Chapter 9, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Number Seven, Volume XXII, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Division of Criminal and Juvenile Justice Planning, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in the Administrator’s Office, Division of Criminal and Juvenile Justice Planning, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Division of Criminal and Juvenile Justice Planning in advance of the hearing and advise of specific needs.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 9

WAIVER RULES

428—9.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

428—9.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable proc–ess for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

428—9.3(17A) Applicability. This chapter applies only to waivers of those rules of the division that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

428—9.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

428—9.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 9.3(17A) and 9.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division administrator shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

428—9.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

428—9.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 9.5(17A) of this chapter.

428—9.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

428—9.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

428—9.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

428—9.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

428—9.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

428—9.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

428—9.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

428—9.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 9.12(17A).

428—9.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

428—9.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division office during regular business hours.

428—9.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

428—9.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

428—9.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

428—9.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code sections 17A.3 and 216A.115, the Deaf Services Division hereby gives Notice of Intended Action to adopt new Chapter 10, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with the authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Number Seven, Volume XXII, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Deaf Services Division, Department of Human Rights, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in the Administrator’s Office, Deaf Services Division, Department of Human Rights, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and have special requests for reasonable accommodations should contact the Deaf Services Division in advance of the hearing and advise of specific needs.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 10

WAIVER RULES

429—10.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

429—10.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable process for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

429—10.3(17A) Applicability. This chapter applies only to waivers of those division rules that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

429—10.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

429—10.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 10.3(17A) and 10.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division administrator shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

429—10.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

429—10.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 10.5(17A) of this chapter.

429—10.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

429—10.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

429—10.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

429—10.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

429—10.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

429—10.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

429—10.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

429—10.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 7.12(17A).

429—10.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of the law.

429—10.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division office during regular business hours.

429—10.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

429—10.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

429—10.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

429—10.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code sections 17A.3 and 231.14, the Department of Elder Affairs hereby gives Notice of Intended Action to amend Chapter 2, “Department of Elder Affairs Established,” Iowa Administrative Code.

This amendment proposes a uniform process for the granting of waivers and variances of rules adopted by the Department of Elder Affairs. This amendment is proposed in response to Governor Vilsack’s Executive Order Number 11 and Iowa Code section 17A.9A [2000 Iowa Acts, chapter 1176].

Consideration will be given to all written suggestionsor comments on the proposed amendment received on or before March 13, 2001. Comments should be addressed to Dr. Judith Conlin, Director, Department of Elder Affairs, 200 Tenth Street, Third Floor, Des Moines, Iowa 50309; telephone (515)242–3333.

This amendment is intended to implement Iowa Code section 17A.9A.

The following amendment is proposed.

Amend 321—Chapter 2 by adopting the following new rule:

2.8(1) Definition. For purposes of this chapter, “waiver or variance” means action by the director, which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

2.8(2) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the director in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

2.8(3) Applicability. The director may grant a waiver from a rule only if the director has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The director may not waive requirements or duties imposed by statute.

2.8(4) Criteria for waiver or variance. In response to a petition completed pursuant to these rules, the director may in sole discretion issue an order waiving in whole or in part the requirements of a rule if the director finds, based on clear and convincing evidence, all of the following:

a. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

b. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

c. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

d. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

2.8(5) Filing of petition. A petition for a waiver must be submitted in writing to the director as follows:

a. Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case, and submitted to the director.

b. Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted to the director.

2.8(6) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

a. The name, address, and telephone number of the person or entity for which a waiver is requested, and the case number of any related contested case.

b. A description and citation of the specific rule from which a waiver is requested.

c. The specific waiver requested, including the precise scope and duration.

d. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in 2.8(4). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition, and a statement of reasons that the petitioner believes will justify a waiver.

e. A history of any prior contacts between the director and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any notices of violation, contested case hearing, or investigative reports relating to the regulated activity or license within the last five years.

f. Any information known to the requester regarding the director’s treatment of similar cases.

g. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question, or which might be affected by the granting of a waiver.

h. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

i. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

j. Signed releases of information authorizing persons with knowledge regarding the request to furnish the director with information relevant to the waiver.

2.8(7) Additional information. Prior to issuing an order granting or denying a waiver, the director may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the director may, on the director’s motion or at the petitioner’s request, schedule a telephonic or in–person meeting.

2.8(8) Notice. The director shall acknowledge a petition upon its receipt in the director’s office. The director shall ensure that, within 30 days of the receipt of the petition, notice of the pending petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the director may give notice to other persons. To accomplish this notice provision, the director may require the petitioner to serve the notice on all persons to whom notice is required by a provision of law, and provide a written statement to the director attesting that notice has been provided.

2.8(9) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply only to a petition for a waiver filed within a contested case.

2.8(10) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

a. Director discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the director, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the director based on the unique, individual circumstances set out in the petition.

b. Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the director should exercise discretion to grant a waiver from a department rule.

c. Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

d. Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the director shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

2.8(11) Conditions. The director may place any condition on a waiver that is desirable to protect the public health, safety, and welfare.

2.8(12) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the director, a waiver may be renewed if the director finds that grounds for a waiver continue to exist.

2.8(13) Time for ruling. The director shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the director shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

2.8(14) When deemed denied. Failure of the director to grant or deny a petition within the required time period shall be deemed a denial of that petition. However, the director shall remain responsible for issuing an order denying a waiver.

2.8(15) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

2.8(16) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the director is authorized or required to keep confidential. The director may accordingly redact confidential information from petitions or orders prior to public inspection.

2.8(17) Summary reports. Semiannually, the director shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the director’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

2.8(18) Cancellation of a waiver. A waiver issued by the director pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the director issues an order finding any of the following:

a. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

b. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

c. The subject of the waiver order has failed to comply with all conditions contained in the order.

2.8(19) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

2.8(20) Defense. After the director issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

2.8(21) Judicial review. Judicial review of the director’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A. Any appeal to district court shall be taken within 30 days from the date of issuance of the decision by the director pursuant to Iowa Code section 17A.19.

These rules are intended to implement Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code section 68B.32A, the Iowa Ethics and Campaign Disclosure Board gives Notice of Intended Action to adopt Chapter 15, “Waivers or Variances from Administrative Rules,” Iowa Administrative Code.

The purpose for the new rules is to create a uniform procedure for petitioning for a waiver or variance from a Board rule. The rules also set out the criteria for the Board to consider when issuing or denying a waiver or variance. The Board is required to implement these rules pursuant to 2000 Iowa Acts, chapter 1176.

Any interested person may make written suggestions or comments on the proposed rules on or before March 14, 2001. Such written materials should be directed to Charles Smithson, Iowa Ethics and Campaign Disclosure Board, 514 E. Locust, Suite 104, Des Moines, Iowa 50309; fax (515) 281–3701. Persons who wish to convey their views orally should contact Charles Smithson at (515)281–3489 or at the Board’s office at the address listed above.

These rules are intended to implement Iowa Code chapters 17A, 56, and 68B.

The following new chapter is proposed.

CHAPTER 15
WAIVERS OR VARIANCES
FROM ADMINISTRATIVE RULES

351—15.1(17A) Definition. For purposes of this chapter, a “waiver” or “variance” means action by the board that suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified individual, business, organization or person on the basis of the particular circumstances of that individual, business, organization or person. For simplicity, the term “waiver” shall include both a waiver and a variance and the term “person” shall include any individual or entity subject to the board’s jurisdiction.

351—15.2(17A,56,68B) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the board in situations when no other more specifically applicable law or rule provides for waivers. To the extent another more specific provision of law or rule governs the issuance of a waiver, the more specific provision shall supersede this chapter with respect to any waiver process.

351—15.3(17A,56,68B) Applicability. The board may grant a waiver from a rule only if the board has sole jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions or other provisions of law. The board may not waive requirements created or duties imposed by statute or court order.

351—15.4(17A) Criteria for waiver. In response to a petition completed pursuant to rule 15.6(17A), the board may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the board finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any other person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or court order; and

4. Substantially equal protection of the public interest will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

351—15.5(17A,56,68B) Filing of petition. A petition for a waiver shall be submitted in writing to the Iowa Ethics and Campaign Disclosure Board, 514 E. Locust, Suite 104, Des Moines, Iowa 50309. If the request relates to a pending contested case, a copy of the request shall also be filed in the contested case proceeding addressed to the board’s legal counsel at the above address.

351—15.6(17A) Content of petition. A petition for waiver shall include the following information where applicable and known to the petitioner:

1. The name, address and telephone number of the person for whom a waiver is being requested and the case number of any related contested case, if applicable.

2. A description and citation of the specific rule from which waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. The relevant facts the petitioner believes would justify a waiver under each of the four criteria described in rule 15.4(17A). This shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons the petitioner believes will justify a waiver.

5. A history of any contacts between the board and the petitioner within the past five years relating to the activity affected by the proposed waiver. This shall include any notices of violation whether resolved through administration resolution or a contested case proceeding within the past five years.

6. Any information known to the petitioner regarding the board’s treatment of similar cases.

7. The name, address and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of the waiver.

8. The name, address and telephone number of any person or entity that would be adversely affected by the granting of the waiver.

9. The name, address and telephone number of any person with knowledge of facts relevant to the proposed waiver.

10. Signed releases authorizing the persons with knowledge regarding the request to furnish the board with information relevant to the proposed waiver.

351—15.7(17A) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the board.

351—15.8(17A) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the board may give notice to other persons. To accomplish this notice provision, the board may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the board attesting that notice has been provided.

351—15.9(17A) Hearing procedures. The provisions of Iowa Code section 17A.10 to 17A.18A regarding contested case proceedings shall apply to any petition for a waiver filed in a contested case. Those provisions shall otherwise apply to board proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute.

351—15.10(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains. The order shall include a statement of the relevant facts and reasons upon which the action is based and a description of the precise scope and duration of the waiver if one is issued.

15.10(1) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the board upon consideration of all relevant factors. The board shall evaluate each petition for a waiver based on the unique, individual circumstances set out in the petition.

15.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant a waiver from a board rule.

15.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of the rule.

15.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

15.10(5) Conditions. The board may place any condition on a waiver that the board finds desirable to protect the public interest.

15.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the board, a waiver may be renewed if the board finds that grounds for the waiver continue to exist.

15.10(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

15.10(8) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver.

15.10(9) Service of order. Within seven days of its issuance, any order issued under these rules shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

351—15.11(17A,22) Public availability. All orders granting or denying a waiver petition shall be indexed, filed and made available for public inspection as provided in Iowa Code section 17A.3. Petitions for waiver and orders granting or denying waiver petitions are public records under Iowa Code chapter 22. Some petitions or orders may contain information the board is authorized or required to keep confidential. The board may accordingly redact confidential information from petitions or orders prior to public inspection.

351—15.12(17A) Summary reports. The board shall semiannually prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule and a citation to the statutory provisions implemented by the rules. The report shall include a general summary of the reasons justifying the board’s actions on waiver requests and, if practicable, shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

351—15.13(17A) Cancellation of a waiver. A waiver issued by the board pursuant to this chapter may be withdrawn, canceled or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

1. That the petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. That the alternative means of ensuring adequate protection of the public interest after issuance of the waiver order have been demonstrated to be insufficient; or

3. That the subject of the waiver order has failed to comply with all conditions contained in the order.

351—15.14(17A,56,68B) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or sanctions as a person who violates the rule at issue.

351—15.15(17A,56,68B) Defense. After the board issues an order granting a waiver, the order is a defense for the person to whom the order pertains, within the terms and the spec–ified facts indicated therein, in any proceeding in which the rule in question is sought to be invoked.

351—15.16(17A) Appeals. Judicial review of a board decision to grant or deny a waiver petition shall be in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code chapters 17A, 56, and 68B.

Pursuant to the authority of Iowa Code sections 17A.9A and 18.4, the Department of General Services hereby gives Notice of Intended Action to adopt Chapter 20, “Waivers and Variances,” Iowa Administrative Code.

The rules in Chapter 20 describe the procedures for applying for, issuing or denying waivers or variances from Department rules. The purpose of this new chapter is to comply with Iowa Code section 17A.9A, which provides for the waiver or variance of administrative rules by state agencies.

Public comments concerning the proposed rules will be accepted until 4:30 p.m. on March 16, 2001. Interested persons may submit written, oral or electronic comments by contacting Carol Stratemeyer, Director’s Office, Department of General Services, Hoover State Office Building, Level A, Des Moines, Iowa 50319–0104; telephone (515)281–6134; fax (515)242–5974; E–mail Carol.Stratemeyer@dgs.state.ia. us.

Also, there will be a public hearing on March 16, 2001, from 1 to 2 p.m. in the Design and Construction Conference Room, Department of General Services, Hoover State Office Building, Level A, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and confine their remarks to the subject of the rules. Persons with special needs may contact the Department of General Services prior to the hearing if accommodations need to be made.

These rules are intended to implement Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 20
WAIVERS AND VARIANCES

“Department” or “DGS” means the department of general services authorized by Iowa Code chapter 18.

“Director” means the director of the department of general services or the director’s designee.

“Person” means individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, vendor, or any legal entity.

“Waiver or variance” means any action by the department that suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

401—20.2(17A,18) Scope. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the department in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule the more specific provision shall supersede this chapter with respect to any waiver from that rule.

401—20.3(17A,18) Applicability. The department may only grant a waiver from a rule if the department has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The department may not waive requirements created or duties imposed by statute.

401—20.4(17A,18) Granting a waiver. In response to a petition completed pursuant to rule 20.6(17A,18) or on the director’s own motion, the director may, in the director’s sole discretion, issue an order waiving in whole or in part the requirements of a rule.

20.4(1) Criteria for waiver or variance. A waiver may be granted if the director finds based on clear and convincing evidence each of the following:

a. The application of the rule would pose an undue hardship on the person for whom the waiver is requested;

b. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

c. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

d. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

In determining whether a waiver should be granted, the director shall consider the public interest, policies and legislative intent of the statute on which the rule is based. When the rule from which a waiver or variance is sought establishes administrative deadlines, the director shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all affected persons.

20.4(2) Special waiver or variance of rules not precluded. These waiver and variance rules shall not preclude the director from granting waivers or variances in other contexts or on the basis of other standards if a statute or other department rule authorizes the director to do so and the director deems it appropriate to do so.

20.4(3) Procurement–related waiver or variance. The director may waive a rule or grant a variance due to noncompliance with a stated requirement in a procurement, sale, or auction if the request meets all of the following criteria:

a. The request is made prior to the issuance of a notice of intent to award a contract or the finalization of a sale.

b. The waiver or variance will tend to promote competition rather than inhibit or reduce competition.

c. The waiver or variance will not materially alter the substantive contents of the offer, invitation to bid or a response to a request for proposal.

d. The noncompliance with the stated requirement is correctable (if correction is necessary) without materially or substantially altering the substantive contents of the offer, invitation to bid or a response to a request for proposal.

e. No other person who submits an offer, invitation to bid or response to a request for proposal is materially or substantially harmed by the waiver or variance. A person shall not be deemed to have been harmed if the waiver or variance merely increases competition.

f. Fundamental notions of good faith and fair dealing favor the issuance of a waiver or variance.

g. The waiver or variance will not result in unreasonable delay in the procurement, sale or auction and will not interfere with certainty or finality in the procurement, sale or auction.

If the stated terms of the procurement, sale or auction permit or authorize waiver or variance from the stated terms, the director may waive or vary the stated terms without regard to subrule 20.4(1).

20.4(4) Special waiver or variance not permitted. The compensation rates for publication in a newspaper for any notice, order or citation or other publication required or allowed by law as adopted in rule 401—5.21(618) by the state printing administrator pursuant to Iowa Code section 618.11 shall not be waived or varied. The procedure established in this chapter does not apply to waiver or variance of contractual terms or conditions; contracts shall be waived or varied only upon their own terms. These rules do not apply to the Terrace Hill commission established in Iowa Code section 18.8A or rules adopted by the commission unless these rules are adopted by the Terrace Hill commission.

401—20.5(17A,18) Filing of petition for waiver. A petition for a waiver must be submitted in writing to the Iowa Department of General Services, Office of the Director, Hoover State Office Building, Level A, Des Moines, Iowa 50319–0104, Attention: Legal Counsel. Requests for waiver may be delivered, mailed, sent by facsimile transmission or by other electronic means reasonably calculated to reach the intended recipient.

20.5(1) Appeals. If the petition relates to a pending appeal, a copy of the petition shall also be filed in the appeal.

20.5(2) Other. If the petition does not relate to an appeal, the petition will be submitted to the department’s legal counsel.

401—20.6(17A,18) Content of petition. A petition for waiver or variance shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is being requested, and the case number of any related pending appeal.

2. A description and citation of the specific rule (and the stated requirement in a procurement, auction or sale) from which a waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in subrule 20.4(1) or the criteria in subrule 20.4(3) if the request relates to a procurement, sale or auction. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition, and a statement of reasons that the petitioner believes will justify the waiver.

5. A history of any prior contacts between the department and the petitioner relating to the activity that is the subject of the requested waiver.

6. Any information known to the requester regarding the department’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question, or which might be affected by the grant of a waiver.

8. The name, address, and telephone number of any entity or person who would be adversely affected by the grant of a petition, if reasonably known to the petitioner.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver or variance.

401—20.7(17A,18) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in conjunction with an appeal, the director may, on the director’s own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the director.

401—20.8(17A,18) Notice. The department shall acknowledge the receipt of a petition by written means reasonably calculated to reach the petitioner or designee. The department shall ensure that, within 30 days of the receipt of the petition, notice and a concise summary of the content of the petition have been provided to all persons to whom notice is required by any provision of law. In addition, the department may give notice to other persons.

To accomplish this notice provision, the department may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law, and provide a written statement to the department attesting that notice has been provided.

401—20.9(17A,18) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply in three situations: (1) to any petition for a waiver or variance of rule filed within a contested case; (2) when the director so provides by rule or order; or (3) when a statute so requires.

401—20.10(17A,18) Ruling. An order granting or denying a waiver or variance shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

20.10(1) Director discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the director, upon consideration of all relevant factors. Each petition for waiver shall be evaluated by the director based on the unique, individual circumstances set out in the petition.

20.10(2) Burden of persuasion. If the petition for waiver is based on a request pursuant to subrule 20.4(1), the burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the director should exercise discretion to grant a waiver from a department rule.

20.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

20.10(4) Administrative deadlines. When the rule from which a waiver or variance is sought establishes administrative deadlines, the director shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all affected persons.

20.10(5) Conditions. The director may place any condition on the waiver that the director finds desirable to protect the public health, safety, and welfare.

20.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the director, a waiver may be renewed if the director finds that grounds for a waiver continue to exist.

20.10(7) Time for ruling. The director shall grant or deny a petition for a waiver or variance as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in an appeal, the director shall grant or deny the petition no later than the time at which the final decision in that appeal is issued.

20.10(8) When deemed denied. Failure of the director to grant or deny a petition within the required time period shall be deemed a denial of that petition by the director. However, the director shall remain responsible for issuing an order denying a waiver.

20.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

401—20.11(17A,18) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the department is authorized or required to keep confi–

dential. The director may accordingly redact confidential information from petitions or orders prior to public inspection.

401—20.12(17A,18) Summary reports. Semiannually, the director shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the director’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

401—20.13(17A,18) Cancellation of a waiver. A waiver issued by the director pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the director issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver order withheld or misrepresented the material facts relevant to the propriety or desirability of the waiver;

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

401—20.14(17A,18) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

401—20.15(17A,18) Defense. After the director issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

401—20.16(17A,18) Judicial review. Judicial review of the department’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services proposes to amend Chapter

7, “Appeals and Hearings,” and Chapter 103, “Eldora Training School,” appearing in the Iowa Administrative Code.

These amendments establish procedures governing the Department’s responsibilities to notify sexual offenders of their duty to register with the Iowa Sex Offender Registry under Iowa Code chapter 692A and to complete risk assessments used to determine the risk that offenders required to register pose of reoffending. The level of risk assigned to the offender determines the degree of public notification, including affirmative public notification, which may be used by the Department of Public Safety and the Department of Corrections.

The Iowa Sex Offender Registry was established by the General Assembly in 1995. All persons, adults and juveniles, who have been convicted of a criminal offense against a minor, an aggravated offense, sexual exploitation, an other relevant offense, or a sexually violent offense in Iowa or in another state, or in a federal, military, tribal, or foreign court, and persons required to register in another state under that state’s sex offender registry are required to register.

The Iowa State Training School Risk Assessment Committee located in the State Training School is responsible for notifying juveniles under the control or supervision of the Department of their duty to register and conducting risk assessments for those juveniles required to register.

These amendments do not provide for waivers of the requirements specified herein because these requirements are mandated by Iowa Code chapter 692A.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319–0114, on or before March 14, 2001.

These amendments are intended to implement Iowa Code chapter 692A.

The following amendments are proposed.

ITEM 1. Amend rule 441—7.1(17A), definition of “aggrieved person,” by adopting the following new numbered paragraph “10” as follows:

10. Who is contesting a risk assessment decision as provided in rule 441—103.34(692A) by alleging that the risk assessment factors have not been properly applied, the information relied upon to support the assessment findings is inaccurate, or the procedures were not correctly followed.

ITEM 2. Amend subrule 7.5(4) by adopting the following new paragraph “f”:

f. An appeal of a sex offender risk assessment shall be made in writing within 14 calendar days of issuance of the notice.

ITEM 3. Amend subrule 7.10(4) by adopting the following new paragraph “d”:

d. In cases involving an appeal of a sex offender risk assessment, the hearing shall be held within 30 days of the date of the appeal request.

ITEM 4. Amend 441—Chapter 103 by adopting a new Division I, “General Policies and Procedures,” consisting of existing rules 441—103.1(218) to 441—103.21(218, 242).

ITEM 5. Reserve rules 441—103.22 to 441—103.30 in Division I.

ITEM 6. Amend 441—Chapter 103 by adopting the following new Division II:

PREAMBLE

These amendments establish procedures governing the department’s responsibilities to notify sex offenders of their duty to register with the Iowa sex offender registry under Iowa Code chapter 692A and to complete risk assessments used to determine the risk that offenders required to register pose of reoffending. The level of risk assigned to the offender determines the degree of public notification that may be used by the department of public safety and the department of corrections.

“Affirmative public notification” means any form of communication or release undertaken by the department of public safety, department of human services, or other Iowa criminal or juvenile justice agency regarding the identity or characteristics of an individual registrant or registrants. “Affirmative public notification” does not mean release of information to a criminal or juvenile justice agency or agencies nor does it mean release of information about an individual registrant in response to an inquiry about that individual based upon the name and address of the individual, as provided in Iowa Code subsection 692A.13(6).

“Aggravated offense” means a conviction for any of the following offenses:

1. Sexual abuse in the first degree in violation of Iowa Code section 709.2.

2. Sexual abuse in the second degree in violation of Iowa Code section 709.3.

3. Sexual abuse in the third degree in violation of Iowa Code subsection 709.4(1).

4. Lascivious acts with a child in violation of Iowa Code subsection 709.8(1).

5. Assault with intent to commit sexual abuse in violation of Iowa Code section 709.11.

6. Burglary in the first degree in violation of Iowa Code section 713.3(1)“d.”

7. Kidnapping, if sexual abuse as defined in Iowa Code section 709.1 is committed during the offense.

8. Murder, if sexual abuse as defined in Iowa Code section 709.1 is committed during the offense.

“Criminal offense against a minor” means any of the following criminal offenses or conduct:

1. Kidnapping of a minor, except for the kidnapping of a minor in the third degree committed by a parent.

2. False imprisonment of a minor, except if committed by a parent.

3. Any indictable offense involving sexual conduct directed toward a minor.

4. Solicitation of a minor to engage in an illegal sex act.

5. Use of a minor in a sexual performance.

6. Solicitation of a minor to practice prostitution.

7. Any indictable offense against a minor involving sexual contact with the minor.

8. An attempt to commit an offense enumerated in this rule.

9. Incest committed against a minor.

10. Dissemination and exhibition of obscene material to minors in violation of Iowa Code section 728.2.

11. Admitting minors to premises where obscene material is exhibited in violation of Iowa Code section 728.3.

12. Stalking in violation of Iowa Code subsection 708.11(3)“b”(3), if the fact finder determines by clear and convincing evidence that the offense was sexually motivated.

13. Sexual exploitation of a minor in violation of Iowa Code subsection 728.12(2) or (3).

14. An indictable offense committed in another jurisdiction which would constitute an indictable offense under numbered paragraphs “1” through “13” of this definition.

“Department” means the Iowa department of human services.

“Iowa sex offender registry” means a central registry of sex offenders established by law in 1995 that is maintained by the department of public safety.

“Offender” means a person, including a juvenile, who is required to register with the Iowa sex offender registry and the sheriff of the person’s county of residence.

“Other relevant offense” means any of the following offenses:

1. Telephone dissemination of obscene materials in violation of Iowa Code section 728.15.

2. Rental or sale of hard–core pornography in violation of Iowa Code section 728.4.

3. Indecent exposure in violation of Iowa Code section 709.9.

4. A criminal offense committed in another jurisdiction which would constitute an indictable offense under numbered paragraphs “1” through “3” of this definition if committed in this state.

“Registration” means the submission of registration forms by an offender to the Iowa sex offender registry and to the sheriff of the person’s county of residence.

“Risk assessment” means the method and procedures for the assessment of the risk that offenders, required to register, pose of reoffending.

“Sexual exploitation” means sexual exploitation by a counselor or therapist under Iowa Code section 709.15.

“Sexually violent offense” means any of the following indictable offenses:

1. Sexual abuse as defined under Iowa Code section 709.1.

2. Assault with intent to commit sexual abuse in violation of Iowa Code section 709.11.

3. Sexual misconduct with offenders in violation of Iowa Code section 709.16.

4. Any of the following offenses, if the offense involves sexual abuse or attempted sexual abuse: murder, attempted murder, kidnapping, burglary, or manslaughter.

5. A criminal offense committed in another jurisdiction which would constitute an indictable offense under numbered paragraphs “1” through “4” of this definition if committed in this state.

441—103.32(692A) Department responsibilities. The Iowa state training school risk assessment committee located at the state training school at Eldora, Iowa, in accordance with the requirements of Iowa Code section 692A.13A shall notify juveniles under the control or supervision of the department of their duty to register with the Iowa sex offender registry and the sheriff of the juvenile’s county of residence, provide the forms for initial registration, and conduct risk assessments for those juveniles required to register.

441—103.33(692A) Juveniles required to register. All juveniles who have been convicted of a criminal offense against a minor, an aggravated offense, sexual exploitation, an other relevant offense, or a sexually violent offense in Iowa or in another state, or in a federal, military, tribal, or foreign court, and juveniles required to register in another state under that state’s sex offender registry shall be required to register unless the juvenile court finds that the juvenile shall not be required to register. The Iowa state training school risk assessment committee shall facilitate registration as required by Iowa Code section 692A.5 as follows:

103.33(1) Notification. The Iowa state training school risk assessment committee shall provide Form DCI–144, Notification of Registration Requirement, which notifies offenders of their duty to register with the Iowa sex offender registry to persons identified as being required to register. Failure to provide offenders with Form DCI–144 does not relieve offenders of their duty to register with the Iowa sex offender registry.

103.33(2) Registration.

a. Form DCI–145, Sex Offender Registration, shall be completed by or on behalf of each offender and, upon the juvenile’s release from the state training school, shall be submitted by the department to the sheriff of the county in which the offender will be residing and to the division of criminal investigation, in order to satisfy the registration requirements of the Iowa sex offender registry.

b. Form DCI–145 shall also be used to report changes of residence, telephone number, or name of registrants. A completed copy of Form DCI–145 shall be submitted by the registrant to the sheriff of the county of residence each time the registrant’s place of residence, telephone number, or name changes within five days of the change of residence, telephone number, or name, whether within or outside the state of Iowa.

The Iowa state training school risk assessment committee shall forward the original of each completed Form DCI–145 to the division of criminal investigation within three days of receiving the completed form.

If a registrant moves from one county to another, the registrant shall submit copies of completed Form DCI–145 reporting the change of residence to the sheriff of the prior county of residence and the sheriff of the new county of residence. The sheriff of the new county of residence shall be responsible for transmitting a copy of completed Form DCI–145 to the Iowa sex offender registry. When the department receives notification that a registrant has changed residence to a location outside of Iowa, the department shall notify the registering state agency in the registrant’s new state of residence of the registrant’s name, new address, and telephone number.

c. Upon initial submission of Form DCI–145, the form shall be accompanied by current photographs and fingerprints of the offender. Current photographs of the registrant shall accompany submission of Form DCI–145 upon each subsequent submission of Form DCI–145 unless the registrant’s appearance has not changed significantly in the judgment of the submitting agency.

441—103.34(692A) Completion of risk assessment. All required risk assessments shall be conducted using the “Iowa Sex Offender Risk Assessment Instrument and Companion Guide” as approved by the department of corrections, division of criminal investigation of the department of public safety (DCI), and the department of human services. These instruments are available upon request from the department of corrections.

The risk assessment score shall be determined following a review of appropriate documents which may include: pre–sentence investigation report, court documents, clinicalassessments, treatment records, polygraph reports, plethysmograph reports, employee records, school records, military records, child protection services records, victim’s reports, hospital reports, and self–reports.

The risk assessment shall be completed 45 days before the juvenile’s release from custody or placement on probation, parole, or work release.

103.34(1) Use of risk assessment score. The division of criminal investigation shall use the risk assessment score to determine the level of risk that persons required to register under Iowa Code chapter 692A pose of reoffending. The level of risk assigned to the offender determines the degree of public notification that will be used by the department of public safety or the department of corrections.

a. For offenders classified as “low–risk,” registry information may be distributed to a criminal or juvenile justice agency or to members of the public upon requests made through a criminal or juvenile justice agency or by electronic access as provided in Iowa Code subsection 692A.13(3).

b. For offenders classified as “at–risk,” including“moderate–risk” or “high–risk,” registry information may be provided to any criminal or juvenile justice agency and to the public which includes public and private agencies, organizations, public places, public and private schools, child care facilities, religious and youth organizations, neighbors, and employers.

If an offender is classified as “high–risk,” information may also be provided to neighborhood associations or at community meetings.

103.34(2) Notification of right to appeal. When a risk assessment for juveniles has been completed, the Iowa state training school risk assessment committee shall notify the juvenile of the finding and of the juvenile’s right to appeal by providing the juvenile a copy of the risk assessment and Form 470–3690, Notice of Sex Offender Risk Assessment Findings/Public Notification.

103.34(3) Delivery of notice. When a risk assessment has been completed, the Iowa state training school risk assessment committee shall give notice of the results of the assessment to the registrant by personal service 30 days before the juvenile’s release from custody or placement on probation, parole, or work release, unless it is impracticable to give timely notice. No additional notice is required. Notice is deemed provided if the registrant refuses delivery of the notice. The notice shall contain the following information to be adequate:

a. The result of the risk assessment.

b. A description of the scope of affirmative public notification which may result from the risk assessment.

c. An explanation of the juvenile’s right to appeal in accordance with procedures set forth in 441—Chapter 7.

103.34(4) Reporting requirements.

a. The Iowa state training school risk assessment committee shall provide the original of the risk assessment and copies of related documents, including Form 470–3690 and documentation of the results of any appeal, to the division of criminal investigation.

b. Copies of the sex offender registration and risk assessment documents, including appeal forms, if applicable, shall be maintained in the offender’s file maintained by the department.

These rules are intended to implement Iowa Code chapter 692A.

Pursuant to the authority of Iowa Code section 252E.15, the Department of Human Services proposes to amend Chapter 98, “Support Enforcement Services,” appearing in the Iowa Administrative Code.

These amendments implement a recent Iowa statute which allows the Child Support Recovery Unit (the Unit) to send a medical support notice to the employer when enforcing medical support instead of sending the child support order. Currently, when the Unit must enforce medical support, the Unit sends the employer a copy of the support order. However, Iowa Code subsection 252E.1(10) as amended by 2000 Iowa Acts, chapter 1096, section 1, allows the Unit to send a notice of the order rather than a copy of the support order.

With the implementation of a medical support notice, noncustodial and custodial parents will experience increased privacy because a copy of the underlying support order will no longer be sent to the employer.

Employers will benefit from the use of a medical notice because they will no longer need to search through the underlying support order to find language concerning medical support. Use of a standardized notice makes the process more streamlined for employers. Also, employers will be able to receive the medical support notice and medical support enforcement forms electronically through the Unit’s Web site. This will reduce employer postage costs associated with mailing the forms back to the Unit.

The Unit will benefit from the proposed rule changes because medical support enforcement will be simplified. Field office staff will no longer need to make a copy of the underlying support order, which will save copying and mailing costs.

These amendments also increase the circumstances when the noncustodial parent can request an informal conference with CSRU to contest the enforcement of medical support. In the current rules, a noncustodial parent is entitled to only one informal conference with each new or amended order. Since health insurance is not always available through each employer, it is better to provide for a conference when the health insurance is actually enforced.

Currently the rules allow the noncustodial parent to contest enforcement of medical support through an informal conference with the Unit, but only if there is a new or amended support order. However, the noncustodial parent may change jobs several times and not modify the divorce decree. Therefore, these amendments increase the noncustodial parent’s right to an informal conference for each new employer to which the Unit is sending a notice to enforce medical support.

These amendments also remove the reference to enforcing health insurance through an income withholding notice because federal law requires two separate forms.

These amendments do not provide for waivers in specified situations because these changes benefit the noncustodial parent by increasing the noncustodial parent’s rights to an informal conference.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319–0114, on or before March 14, 2001.

These amendments are intended to implement Iowa Code subsection 252E.1(10).

The following amendments are proposed.

ITEM 1. Amend subrule 98.5(1), paragraph “b,” as follows:

b. The unit shall secure medical support information from a known employer on Form 470–2743, Employer Medical Support Information, when a copy of the court order or ex parte Form 470–3818, Medical Support Notice, or an order has been forwarded to the employer pursuant to Iowa Code section 252E.4 as amended by 1997 Iowa Acts, House File 612, section 74, or Form 470–3272, Order/Notice to Withhold Income for Child Support, which includes a provision for health benefit plan or insurance coverage, has been forwarded to an employer pursuant to Iowa Code section 252D.30.

ITEM 2. Amend subrule 98.7(2), paragraphs “a” and “b,” as follows:

a. If an obligor was ordered to provide a health benefit plan or insurance coverage under an order, but did not comply with the order, the child support recovery unit may implement the order by forwarding to the employer a copy of the order, an ex parte order as provided in Iowa Code section 252E.4 as amended by 1997 Iowa Acts, House File 612, section 74, or Form 470–3272, Order/Notice to Withhold Income for Child Support, which includes a provision for health benefit plan or insurance coverage, with written notification of the requirements of Iowa Code section 252E.4 Form 470–3818, Medical Support Notice.

b. If the child support recovery unit implements an order under this subrule, and the unit has not notified the obligor of the order to the employer as part of the notice sent under subrule 98.42(2), the unit shall send a notice to the obligor at the last–known address of the obligor by regular mail. The notice shall contain the following information:

(1) and (2) No change.

(3) The obligor’s right to file a motion to quash the order to the employer with the district court.

ITEM 3. Amend rule 441—98.8(252E) as follows:

441—98.8(252E) Contesting the order. The obligor may contest the enforcement of medical support, including medical support provisions of an income withholding order or a notice of an income withholding order, by means of an informal conference with the child support recovery unit, or by filing a motion to quash.

98.8(1) Motion to quash. Procedures for filing a motion to quash the order are specified at 1997 Iowa Acts, House File 612, sections 68 and 75 under Iowa Code sections 252D.31 and 252E.6A.

98.8(2) Informal conference.

a. The obligor may shall be entitled to only one informal conference for each new employer to which the unit has forwarded Form 470–3818, Medical Support Notice, or amended order under Iowa Code section 252E.4 as amended by 1997 Iowa Acts, House File 612, section 74, or income withholding order to enforce medical support.

b. Procedures for the informal conference are as follows:

(1) and (2) No change.

(3) The obligor shall request an informal conference in writing, within 15 calendar days from the date of the enforcement order under Iowa Code section 252E.4 as amended by 1997 Iowa Acts, House File 612, section 74, or the income withholding order notice of the right to an informal conference, or at any time if a mistake of fact regarding the identity of the obligor is believed to have been made.

(4) to (7) No change.

c. No change.

d. The results in an informal conference shall in no way affect the right of the obligor to file a motion to quash the order under Iowa Code section 252E.4 as amended by 1997 Iowa Acts, House File 612, section 74, an income withholding order, or Form 470–3272, Order/Notice to Withhold Income for Child Support, which includes a provision for health benefit plan or insurance coverage with the court.

ITEM 4. Amend 441—Chapter 98, Division I, implementation clause, as follows:

These rules are intended to implement Iowa Code sections 252A.4, 252B.5, 252C.1, 252C.3, 252C.4, 252C.9, 252D.1, 252D.30, 598.1, 598.21, 598.22 and 600B.25 and Iowa Code chapter 252E as amended by 1997 Iowa Acts, House File 612, division V, and 1997 Iowa Acts, House File 612, section 68.

Pursuant to the authority of Iowa Code sections 17A.3 and 21A.16, the Latino Affairs Division hereby gives Notice of Intended Action to adopt new Chapter 8, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Volume XXII, Number Seven, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Division of Latino Affairs, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in the Administrator’s Office, Division of Latino Affairs, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Division of Latino Affairs in advance of the hearing and advise of specific needs.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 8

WAIVER RULES

433—8.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

433—8.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable proc–ess for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

433—8.3(17A) Applicability. This chapter applies only to waivers of those division rules that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

433—8.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and(2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

433—8.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 8.3(17A) and 8.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division administrator shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

433—8.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

433—8.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 8.5(17A) of this chapter.

433—8.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

433—8.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

433—8.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

433—8.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

433—8.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

433—8.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

433—8.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

433—8.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 8.12(17A).

433—8.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of the law.

433—8.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division office during regular business hours.

433—8.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

433—8.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

433—8.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

433—8.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code sections 17A.3(1)“b” and 99E.9(3) and Executive Order Number 11, the Division proposes to adopt Chapter 5, “Waiver and Variance Rules,” Iowa Administrative Code.

The purpose of the adoption of these rules is to satisfy the requirements of Executive Order Number 11 requiring state agencies to adopt a general waiver rule for rules promulgated by the agency.

The Lottery does not intend to waive the requirements of these rules in order to ensure fairness in the application of the waiver rules.

Consistent with Executive Order Number 9, the Lottery has considered the regulatory principles identified in this order and finds that these rules will serve an important public need in making Lottery rules more flexible in application to specific circumstances. Additionally, the Lottery finds there are no other practical or reasonable methods to vary the terms of the rules used by the Lottery except to provide for a general waiver rule.

Chapter 5 will provide for the general requirements for requesting a waiver and describe the procedure the Lottery will use to grant a waiver. The rules provide that the granting of a waiver will be in the sole discretion of the Lottery’s Board.

The Lottery will hold a public hearing to receive public comments on the proposed rules on March 13, 2001, at10 a.m. at the offices of the Lottery, 2015 Grand Avenue, Des Moines, Iowa. The Lottery will accept written comments on the rules until the close of business on March 13, 2001. Comments may also be faxed to (515)281–7882, or E–mailed to Web.Master@ilot.state.ia.us.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 5
WAIVER AND VARIANCE RULES

705—5.1(99E) Waiver or variance of rules. These rules outline a uniform process for the granting of waivers or variances from rules adopted by the lottery division.

705—5.2(99E) Definition. For purposes of this chapter, “a waiver or variance” means action by the lottery board which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

705—5.3(99E) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the lottery board in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

705—5.4(99E) Applicability of chapter. The lottery board may grant a waiver from a rule only if the board has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The board may not waive requirements created or imposed by statute.

705—5.5(99E) Criteria for waiver or variance. In response to a petition completed pursuant to rule 5.6(99E), the board may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the board finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

4. Substantially equivalent protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

705—5.6(99E) Filing of petition. A petition for a waiver must be submitted in writing to the board, as follows:

5.6(1) License application. If the petition relates to a license application, the petition shall be made in accordance with the filing requirements for the license in question.

5.6(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

5.6(3) Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted to the board’s executive secretary.

705—5.7(99E) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the person or entity for which a waiver is being requested, and the case number of any related contested case;

2. A description and citation of the specific rule from which a waiver is requested;

3. The specific waiver requested, including the precise scope and duration;

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 5.5(99E). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition, and a statement of reasons that the petitioner believes will justify a waiver;

5. A history of any prior contacts between the board and the petitioner relating to the activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the activity or license within the past five years;

6. Any information known to the requester regarding the board’s treatment of similar cases;

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question, or which might be affected by the grant of a waiver;

8. The name, address, and telephone number of any person or entity that would be adversely affected by the grant of a petition;

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver;

10. Signed releases of information authorizing persons with knowledge regarding the petition to furnish the board with information relevant to the waiver.

705—5.8(99E) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a quorum of the board.

705—5.9(99E) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law within 30 days of the receipt of the petition. In addition, the board may give notice to other persons. To accomplish this notice provision, the board may require the petitioner to serve notice on all persons to whom notice is required by any provision of law, and provide a written statement to the board attesting that notice has been provided.

705—5.10(99E) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case, and shall otherwise apply to board proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute.

705—5.11(99E) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

5.11(1) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the board, upon consideration of all relevant factors. The board shall evaluate each fact based on the unique, individual circumstances set out in the petition for waiver.

5.11(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant a waiver from a board rule.

5.11(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

5.11(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

5.11(5) Conditions. The board may place any condition on a waiver that the board finds desirable to protect the public health, safety, and welfare.

5.11(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the board, a waiver may be renewed if the board finds that grounds for a waiver continue to exist.

5.11(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

5.11(8) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver.

5.11(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

705—5.12(99E) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying waiver petitions are public records under Iowa Code chapter 22. Some petitions or orders may contain information the board is authorized or required to keep confidential. The board may accordingly redact confidential information from petitions or orders prior to public inspection.

705—5.13(99E) Summary reports. Semiannually, the board shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by the rules, and a general summary of the reasons justifying the board’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

705—5.14(99E) Cancellation of a waiver. A waiver issued by the board pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. The substantially equivalent means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

705—5.15(99E) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

705—5.16(99E) Defense. After the board issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

705—5.17(99E) Judicial review. Judicial review of the board’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code chapters 17A and 99E and Executive Order Number 11.

Pursuant to the authority of Iowa Code sections 17A.3(1)“b” and 455A.4, the Director of the Department of Natural Resources hereby gives Notice of Intended Action to adopt new Chapter 10, “Waivers or Variances from Administrative Rules,” Iowa Administrative Code.

The proposed rules implement Iowa Code section 17A.9A and Executive Order Number 11, signed by Governor Vilsack on September 14, 1999. Iowa Code section 17A.9A and Executive Order Number 11 establish uniform procedures for granting waivers or variances from administrative rules. The other rule–making agencies within the Department are or will be adopting this chapter by reference, through concurrent or subsequent rule–making proceedings.

Any interested persons may make written suggestions or comments on the proposed amendment on or before March 13, 2001. Written comments should be directed to Anne Preziosi, Department of Natural Resources, Air Quality Bureau, 7900 Hickman, Urbandale, Iowa 50322; telephone (515)281–6243; fax (515)242–5094. Requests for a public hearing regarding this rule making must be submitted in writing to the above address by that date.

The Department has determined that the proposed rules will have a favorable impact on small businesses within the meaning of Iowa Code section 17A.4A(2)“b.”

This amendment is intended to implement Iowa Code chapter 17A.

The following new chapter is proposed.

CHAPTER 10
WAIVERS OR VARIANCES
FROM ADMINISTRATIVE RULES

561—10.1(17A,455A) Applicability. This chapter outlines a uniform process for the granting of waivers or variances from rules adopted by the department. As used in this chapter, the term “director” includes the director’s designee. As used in this chapter, “waiver or variance” means an action by the department which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person.

561—10.2(17A,455A) Authority. A waiver or variance from rules adopted by the department may be granted in accordance with this chapter if:

10.2(1) The department has exclusive rule–making authority to promulgate the rule from which waiver or variance is requested or has final decision–making authority over a contested case in which a waiver or variance is requested; and

10.2(2) The waiver or variance is consistent with any applicable statute, constitutional provision, or other provision of law. In addition, this subrule does not authorize the department to waive or vary any requirement created or duty imposed by statute.

561—10.3(17A,455A) Interpretive rules. These uniform waiver and variance rules shall not apply to rules that merely define the meaning of a statute or other provisions of law or precedent if the department does not possess delegated authority to bind the courts to any extent with its definition.

561—10.4(17A,455A) Criteria for waiver or variance. Upon petition of any person and at the sole discretion of the department, the department may issue a waiver or variance from the requirements of a rule if the director or the department in a contested case proceeding finds, based on clear and convincing evidence, all of the following:

10.4(1) The application of the rule would pose an undue hardship on the person for whom the waiver or variance is requested.

10.4(2) The waiver or variance from the requirements of a rule in the specific case would not prejudice the substantial legal rights of any person.

10.4(3) The provisions of a rule subject to a petition for a waiver or variance are not specifically mandated by statute or another provision of law.

10.4(4) Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver or variance is requested.

561—10.5(17A,455A) Burden of persuasion. The burden of persuasion rests with the person who petitions the department for the waiver or variance of a rule. Each petition for a waiver or variance shall be evaluated by the department based on the unique, individual circumstances set out in the petition. A waiver or variance, if granted, shall be drafted by the department so as to provide the narrowest exception possible to the provisions of the rule. The department may place any condition on a waiver or a variance that the department finds desirable to protect the public health, safety, and wel–fare. A waiver or variance shall not be permanent, unless the petitioner can show that a temporary waiver or variance would be impracticable. If a temporary waiver or variance is granted, there is no automatic right to renewal. At the sole discretion of the department, a waiver or variance may be renewed if the department finds all of the factors set out in rule 10.4(17A,455A) remain valid.

561—10.6(17A,455A) Special waiver or variance rules not precluded. This chapter shall not preclude the department from granting waivers in other contexts or on the basis of other standards if a statute or other department rule authorizes the director to do so, and the director deems it appropriate to do so.

561—10.7(17A,455A) Administrative deadlines. When the rule from which a waiver or variance is sought establishes administrative deadlines, the department shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all persons governed by the particular rule.

561—10.8(17A,455A) Filing of petition. A petition for a waiver or variance shall be submitted in writing to the department as follows:

10.8(1) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding. The department may elect not to rule on the waiver petition until the resolution of the contested case proceeding.

10.8(2) Other. If the petition does not relate to a pending contested case, the petition may be submitted to the director.

561—10.9(17A,455A) Contents of petition. A petition for waiver or variance shall include the following information when applicable and known to the petitioner:

10.9(1) The name, address, and telephone number of the entity or person for whom a waiver or variance is requested, and the case number of any related contested case.

10.9(2) A description and citation of the specific rule from which a waiver or variance is requested.

10.9(3) The specific waiver or variance requested, including the precise scope and operative period that the waiver or variance will extend.

10.9(4) The relevant facts that the petitioner believes would justify a waiver or variance. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver or variance.

10.9(5) A history of any prior contacts between the department and the petitioner for the past five years, including a description of each affected permit held by the petitioner, and any notices of violation, administrative orders, contested case proceedings, and lawsuits involving the department and the petitioner.

10.9(6) Any information known to the petitioner regarding the department’s treatment of similar cases.

10.9(7) The name, address, and telephone number of any public agency or political subdivision of the state or federal government which also regulates the activity in question, or which might be affected by the granting of a waiver or variance.

10.9(8) The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

10.9(9) The name, address, and telephone number of any person with knowledge of relevant facts relating to the proposed waiver or variance.

10.9(10) Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver or variance.

561—10.10(17A,455A) Additional information. Prior to issuing a decision granting or denying a waiver or variance, the department may request additional information from the petitioner relative to the petition and surrounding circum–stances. If the petition was not filed in a contested case, the director may, on the director’s own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the director.

561—10.11(17A,455A) Notice. The petitioner, within 30 days of submission of the petition, shall serve by certified mail notice of the pending petition and a concise summary of its contents upon all persons to whom notice is required by any provision of law. The petitioner shall provide a written statement to the department attesting that the required notice has been provided. The department shall acknowledge a petition upon receipt and, in addition, the department may give notice to other persons.

561—10.12(17A,455A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver or variance of a rule filed within a contested case and shall otherwise apply to department proceedings for a waiver or variance only when the department so provides by rule or order or is required to do so by statute.

561—10.13(17A,455A) Ruling. A decision granting or denying a waiver or variance shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the decision pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative period of the waiver if one is issued.

561—10.14(17A,455A) Conditions. The department may condition the granting of the waiver or variance on such reasonable conditions as appropriate to achieve the objectives of the particular rule in question through alternative means.

561—10.15(17A,455A) Time for ruling. The department shall grant or deny a petition for a waiver or variance as soon as practicable but, in any event, shall do so within 120 days of receipt of the petition, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the department shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

561—10.16(17A,455A) When deemed denied. Failure of the director or the department in a contested case proceeding to grant or deny a petition within the required time period shall be deemed a denial of that petition by the department.

561—10.17(17A,455A) Service of decision. Within seven days of its issuance, any decision issued under this chapter shall be transmitted to the petitioner or the person to whom the decision pertains and to any other person entitled to such notice by any provision of law.

561—10.18(17A,455A) Public availability. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the department shall maintain a record of all decisions granting and denying waivers and variances under this chapter. All final rulings in response to requests for waivers or variances shall be indexed and available to members of the public.

561—10.19(17A,455A) Voiding or cancellation. A waiver or variance is void if the material facts upon which the request is based are not true or if material facts have been withheld. The department may at any time cancel a waiver or variance if the department finds that the facts as stated in the request are not true, material facts have been withheld, the alternative means of compliance provided in the waiver or variance have failed to achieve the objectives of the statute, or the requester has failed to comply with the conditions of the waiver or variance.

561—10.20(17A,455A) Violations. Violation of conditions of the waiver or variance approval is the equivalent of violation of the particular rule for which the waiver or variance is granted and is subject to the same remedies or penalties.

561—10.21(17A,455A) Defense. After the department issues a decision granting a waiver or variance, the decision is a defense within its terms and the specific facts indicated therein for the person to whom the decision pertains in any proceeding in which the rule in question is sought to be invoked.

These rules are intended to implement Iowa Code chapters 17A, 21, 22, and 455A.

Pursuant to the authority of Iowa Code sections 17A.3 and 216A.76, the Persons with Disabilities Division hereby gives Notice of Intended Action to adopt new Chapter 7, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the uniform waiver rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Volume XXII, Number Seven, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Division of Persons with Disabilities, Department of Human Rights, Second Floor, Lucas State Office Building, Des Moines, Iowa 50319; fax 515–242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in Conference Room 208 located on the second floor of the Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and require an accommodation to participate in the public hearing should contact the Division of Persons with Disabilities at 515–242–6172(V/TTY) or 1–888–219–0471(V/TTY) at least five days in advance of the hearing and indicate their request for an accommodation.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 7
WAIVER RULES

431—7.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

431—7.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable process for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

431—7.3(17A) Applicability. This chapter applies only to waivers of those division rules that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

431—7.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

431—7.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 7.3(17A) and 7.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division administrator shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

431—7.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

431—7.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 7.5(17A) of this chapter.

431—7.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested, and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

431—7.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

431—7.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

431—7.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

431—7.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

431—7.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

431—7.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

431—7.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 7.12(17A).

431—7.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

431—7.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division office during regular business hours.

431—7.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

431—7.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

431—7.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

431—7.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Iowa Code section 17A.9A and Executive Order Number 11.

Pursuant to the authority of Iowa Code sections 17A.3 and 20.6, the Public Employment Relations Board hereby gives Notice of Intended Action to amend Chapter 1, “General Provisions,” Iowa Administrative Code.

The proposed rule establishes and describes procedures for requesting waivers of Board rules and the criteria to be considered by the Board in granting or denying such requests, in a manner consistent with the provisions of Iowa Code section 17A.9A. The purpose of the proposed rule is to comply with Executive Order Number 11, which directs agencies to adopt such rules.

Any interested person may make written suggestions or comments on or before March 13, 2001. Such written materials should be directed to the Chairperson, Public Employment Relations Board, 514 E. Locust Street, Suite 202, Des Moines, Iowa 50309. Persons who wish to convey their views orally should contact the Chairperson, Public Employment Relations Board, at (515)281–4414 or at the Board’s office at the address noted above.

There will also be a public hearing on Tuesday, March 13, 2001, at 1 p.m. in the Board’s hearing room located on the second floor at 514 E. Locust Street, Des Moines, Iowa. Persons may present their views at this public hearing either orally or in writing. Persons who wish to make an oral presentation at the public hearing should contact the Chairperson of the Public Employment Relations Board at least one day prior to the date of the public hearing.

The proposed rule does not contain a waiver provision because waiver of the rule allowing waivers would appear to be inconsistent with the purpose of Executive Order Number 11.

This rule is intended to implement Iowa Code chapters 17A and 20.

The following new rule is proposed.

1.9(1) Definitions.

a. “Waiver or variance” as used in this rule means action by the board which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified individual or entity on the basis of the particular circumstances of that individual or entity. The term “waiver” as used herein shall include both a waiver and a variance.

b. “Provision of law” as used in this rule means a provision of law as defined by Iowa Code section 17A.2(10).

1.9(2) Purpose and scope. This rule creates a generally applicable process and specifies applicable criteria for granting individual waivers from rules adopted by the board in sit–uations in which no other specifically applicable provision of law provides for waiver. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this rule with respect to any waiver of that rule.

1.9(3) When waiver unavailable. No waiver may be granted pursuant to this rule unless the board has jurisdiction over the rule to which the waiver request applies and the requested waiver is consistent with any applicable statute, constitutional provision or other provision of law. The board may not waive requirements created or duties imposed by statute.

1.9(4) Criteria for waiver. In response to a petition filed in accordance with this rule the board may, in its sole discretion, issue an order waiving the requirements of a rule or rules if the board finds, based on clear and convincing evidence, all of the following:

a. The application of the rule would pose an undue hardship on the entity or individual for whom the waiver is requested;

b. The waiver of the rule in the particular case would not prejudice the substantial legal rights of any individual or entity;

c. The provisions of the rule or rules to which the waiver request applies are not specifically mandated by statute or other provision of law; and

d. Substantially equal protection of public health, safety and welfare will be afforded by a means other than that prescribed in the particular rule or rules to which the waiver request applies.

1.9(5) Filing of petition. All petitions requesting a waiver must be filed personally or by mail with the board at its offices at 514 E. Locust Street, Suite 202, Des Moines, Iowa 50309. If the petition relates to a pending contested case proceeding or a proceeding pending before the agency which could culminate in a contested case proceeding, the petition shall be filed in and bear the caption of that proceeding. The board shall acknowledge the filing of a petition by providing the petitioner with a file–stamped copy.

1.9(6) Content of petition. A petition requesting a waiver shall be in writing and shall include the following information where applicable and known to the petitioner:

a. The name, address and telephone number of the individual or entity requesting the waiver and of the individual’s or entity’s authorized representative, if any.

b. A citation of the specific rules, rule or part thereof from which a waiver is requested.

c. A description of the precise scope and duration of the waiver requested.

d. A statement of the relevant facts the petitioner believes would justify a waiver under each of the criteria specified in subrule 1.9(4), together with an affirmation signed by the petitioner attesting to the accuracy of the facts asserted in the petition.

e. A history of any prior contacts within the last five years by or between the board or its representatives and the petitioner concerning the matter which would be affected by the requested waiver, including references to all past or pending agency proceedings relating to the matter.

f. Any information known to the petitioner regarding the board’s treatment of waiver requests by similarly situated individuals or entities under similar circumstances.

g. The name, address and telephone number of any other governmental agency or entity which also regulates the activity in question or which might be affected by the granting of the requested waiver.

h. The name, address and telephone number of each individual or entity, public or private, which might be adversely affected by the granting of the requested waiver.

i. The name, address and telephone number of each individual with knowledge of the relevant facts relating to the requested waiver.

j. Signed releases of information authorizing individuals with knowledge of relevant facts relating to the requested waiver to furnish the board with such information.

1.9(7) Timing and effect of petition. If the petition seeks waiver of a time requirement specified by a rule, it must be filed as soon as possible but, in every case, before the expiration of the time period sought to be waived. The filing of a petition does not itself stay the operation of any agency rule, including the rule which is the subject of the petition.

1.9(8) Service of petition. The petitioner shall, within ten days of the filing of the petition, serve a copy thereof, in accordance with the provisions of rule 621—2.15(20), upon all entities or individuals named in or potentially affected by the petition or to whom notice is required by any provision of law and shall file proof of such service with the board. The board may also give notice of the petition to other individuals or entities.

1.9(9) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner or other individuals or entities relating to the petition and the surrounding circumstances. Unless the petition is filed in a pending contested case proceeding, the board may, on its own motion or at the request of the petitioner or other interested individual or entity, schedule and conduct a telephonic or in–person meeting with the petitioner to discuss the request and surrounding circumstances and may include other interested individuals or entities.

1.9(10) Procedure in contested cases. The provisions of Iowa Code sections 17A.10 through 17A.18A regarding contested case hearings shall apply to petitions for a waiver which are filed in a pending contested case proceeding, but shall otherwise apply to proceedings on such petitions only when required by statute or when the board so provides by rule or order.

1.9(11) Board discretion. The final decision to grant or deny a waiver is vested in the board and shall be made wholly at its discretion following its consideration of all relevant factors, including the unique, individual circumstances set out in the petition. When the rule to which the petition relates establishes administrative deadlines, the board’s consideration shall include a balancing of the individual circumstances of the petitioner with the board’s policy favoring the uniform treatment of all similarly situated individuals or entities.

1.9(12) Burden of persuasion. The petitioner bears the burden of demonstrating, by clear and convincing evidence, that the board should exercise its discretion to grant a waiver pursuant to this rule.

1.9(13) Ruling on petition. The board shall issue a written ruling which includes an order granting or denying the requested waiver. The ruling shall contain a statement of the relevant facts and reasons upon which the order is based and a description of the precise scope and duration of any waiver granted.

1.9(14) Time for ruling. The board will issue its ruling as soon as practicable, but shall do so within 120 days of its receipt of the petition unless the petitioner agrees to a later date. However, if the petition was filed in a contested case proceeding or in a pending agency proceeding which has subsequently become a contested case proceeding, ruling on the petition may be withheld until the issuance of the final agency decision in that case.

1.9(15) Deemed denial of petition. Failure by the board to grant or deny a petition within the time required by subrule 1.9(14) shall be deemed a denial of the petition. However, notwithstanding such deemed denial, the board shall remain responsible for issuing a ruling pursuant to subrule 1.9(13).

1.9(16) Scope and conditions of waiver. Any waiver granted shall provide the narrowest exception possible to the provisions of the rule being waived. The board may include as a part of its granting of a waiver such conditions as it finds desirable to protect the public welfare or to achieve through alternative means the objectives of the particular rules, rule or part thereof being waived. A waiver shall not be permanent unless the petitioner has shown that a temporary waiver would be impracticable. Should a temporary waiver be granted, there is no automatic right to its renewal. A waiver may be renewed, in the sole discretion of the board, upon the filing and service of a petition for renewal which complies with the provisions of this rule and a finding by the board that grounds for a waiver continue to exist.

1.9(17) Service of ruling. Within seven days of its issuance, the board’s ruling on the petition shall be served by the board by ordinary mail upon the petitioner, any entity or individual to whom the ruling pertains and any other individuals or entities entitled to notice pursuant to any other provision of law.

1.9(18) Indexing and public availability. The board shall maintain a record of all rulings on petitions filed pursuant to this rule, which shall be indexed and available for public inspection at the board’s offices subject to the provisions of Iowa Code section 17A.3. Because petitions and rulings may contain information which the board is authorized or required to keep confidential, the board may redact such confidential information from such petitions and rulings prior to public inspection.

1.9(19) Effect of waiver. Any waiver granted by the board shall constitute a defense, within the terms and the specific facts set forth therein, for the entity or individual to whom the waiver pertains in any proceeding in which the rule in question is sought to be invoked. The waiver is effective only as to the entity or individual to whom it was granted, is not assignable and does not inure to the benefit of the individual’s or entity’s successor(s) in interest.

1.9(20) Cancellation of waiver. A waiver granted pursuant to this rule may be canceled, withdrawn or modified if, after appropriate notice and hearing, the board finds:

a. An entity or individual who requested or was the subject of the waiver withheld from or knowingly misrepresent–ed to the board material facts relevant to the propriety or desirability of the waiver; or

b. The alternative means for ensuring that the public welfare will be adequately protected and the purposes of the rule or set of rules waived will be adequately served after issuance of the waiver have been demonstrated to be insufficient; or

c. The subject of the waiver has failed to comply with all of the conditions specified in the order granting the waiver.

1.9(21) Violations. A violation of a condition specified in an order granting a waiver shall be treated as a violation of the particular rules, rule or portion thereof waived by the board. As a result, the recipient of a waiver under this rule who violates such a condition may be subject to the same remedies or penalties as an entity or individual who violates the rules, rule or portion thereof which was waived by the board.

1.9(22) Appeals. Any intra–agency or judicial review of rulings granting or denying waivers pursuant to this rule shall be in accordance with other applicable board rules and Iowa Code chapter 17A.

1.9(23) Summary reports. All orders granting or denying a waiver pursuant to this rule shall be summarized in semiannual reports which comply with and are distributed pursuant to the requirements of Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code section 135.11, the Department of Public Health hereby gives Notice of Intended Action to rescind Chapter 178, “Variances and Waivers of Public Health Administrative Rules,” Iowa Administrative Code, and adopt new Chapter 178 with the same title.

The proposed new chapter is intended to implement Executive Order Number 11 executed and signed by the Governor on September 14, 1999. The Executive Order directs state rule–making authorities to adopt uniform rules regarding waivers from administrative rules. This chapter is in response to that order. The chapter is also intended to implement Iowa Code section 17A.9A, which establishes additional terms and conditions concerning the issuance of waivers.

Any interested person may make written comments or suggestions on the proposed rules on or before March 13, 2001. Such written comments should be directed to Mariette Brodeur, Counsel to the Director, Department of Public Health, Lucas State Office Building, 321 E. 12th Street,Des Moines, Iowa 50319. E–mail may also be sent tombrodeur@health.state.ia.us.

There will be a public hearing on March 13, 2001, from11 a.m. to 12 noon in the ICN Conference Room, 321 E. 12th Street, Sixth Floor, Des Moines, Iowa. Additional ICN sites for the hearing are scheduled in the following locations:

Algona—Room 13 in the Attendance Center, Iowa Lakes Community College, 2111 Highway 169 North, Algona, Iowa 50511.

Sioux City—Room 925 in Building A, Western Iowa Tech Community College, 4647 Stone Avenue, Sioux City, Iowa 51106.

Cedar Falls—Schindler 130A, University of Northern Iowa, Corner of Hudson Road and 23rd, Cedar Falls, Iowa 50614.

Elk Horn—Room 4, Elk Horn Kimballton High School, 4114 Madison Street, Elk Horn, Iowa 51531.

Tipton—Room 126, Tipton High School, 400 E. 6th Street, Tipton, Iowa 52772.

Keota—Keota High School, N. Ellis Avenue, Keota, Iowa 52248.

At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules. Any person who plans to attend the public hearing and who may have special requirements, such as hearing or mobility impairments, should contact the Department and advise of specific needs.

These rules are intended to implement Iowa Code section 17A.9A and chapter 135.

The following amendment is proposed.

Rescind 641—Chapter 178 and adopt the following new chapter in lieu thereof:

CHAPTER 178
VARIANCES AND WAIVERS OF PUBLIC HEALTH ADMINISTRATIVE RULES

178.1(1) Definition. For purposes of this chapter, a “waiver or variance” means action by the department that suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

178.1(2) Scope. This rule outlines generally applicable standards and a uniform process for the granting of an individual waiver from a rule adopted by the department in situations where no other more specifically applicable law provides for a waiver. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this rule with respect to any waiver from that rule.

178.1(3) Applicability. The department may only grant a waiver from a rule if the department has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The department may not waive requirements created or duties imposed by statute.

178.1(4) Criteria for waiver. In response to a petition completed pursuant to subrule 178.1(6), the department may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the department finds, based on clear and convincing evidence, all of the following:

a. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

b. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

c. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

d. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

178.1(5) Filing of petition. A petition for a waiver must be submitted in writing to the department as follows:

a. Application for license, registration, certification, or permit. If the petition relates to an application for license, registration, certification, or permit, the petition shall be made in accordance with the filing requirements for the application in question.

b. Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

c. Other. If the petition does not relate to an application or a pending contested case, the petition may be submitted to the department director.

d. A petition is deemed filed when it is received at the department’s office. A petition should be sent to the Department of Public Health, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319. The petition must be typewritten or legibly handwritten in ink and substantially conform to the form specified in 641—178.2(17A,135).

178.1(6) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

a. The name, address, and telephone number of the person for whom a waiver is requested and a reference to any related contested case. The petition shall also include the name, address, and telephone number of the petitioner’s legal representative, if applicable, and a statement indicating the person to whom communications concerning the petition should be directed.

b. A description and citation of the specific rule from which a waiver is requested.

c. The specific waiver requested, including the precise scope and duration.

d. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in subrule 178.1(4). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

e. A history of any prior contacts between the department and the petitioner relating to the regulated activity, license, registration, certification, or permit affected by the proposed waiver, including a description of each affected license, registration, certification, or permit held by the requester, any formal charges filed, any notices of violation, contested case hearings, or investigations relating to the regulated activity, license, registration, certification or permit.

f. Any information known to the requester regarding the department’s action in similar circumstances.

g. The name, address, and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of a waiver.

h. The name, address, and telephone number of any person who would be adversely affected by the granting of the petition.

i. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

j. Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.

178.1(7) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the department may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the department director or the director’s designee.

178.1(8) Notice. The department shall acknowledge a petition upon receipt. Except where otherwise provided by law, every petition shall be served by the petitioner upon each of the parties of record of the proceeding and on all other persons identified in the petition for waiver as affected by the petition, simultaneously with the filing. The petitioner shall serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the department attesting that notice has been provid–ed. In addition, the department may give notice to other persons.

178.1(9) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case. A person who objects to a denial of a waiver in proceedings other than a contested case hearing may make an informal appearance before the department director, or the director’s designee, to request reconsideration.

178.1(10) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

a. Department discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the department upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the department based on the unique, individual circumstances set out in the petition.

b. Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the department should exercise its discretion to grant a waiver from a department rule.

c. Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

d. Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the department shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

e. Conditions. The department may place any condition on a waiver that the department finds desirable to protect the public health, safety, and welfare.

f. Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the department, a waiver may be renewed if the department finds that grounds for a waiver continue to exist.

g. Time for ruling. The department shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the department shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

h. When deemed denied. Failure of the department to grant or deny a petition within the required time period shall be deemed a denial of that petition by the department. However, the department shall remain responsible for issuing an order denying a waiver.

i. Service of order. Within seven days of its issuance, any order issued under this rule shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

178.1(11) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the department is authorized or required to keep confidential. The department may accordingly redact confidential information from petitions or orders prior to public inspection.

178.1(12) Summary reports. Semiannually, the department shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the department’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

178.1(13) Cancellation of a waiver. A waiver issued by the department pursuant to this rule may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the department issues an order finding any of the following:

a. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

b. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been insufficient; or

c. The subject of the waiver order has failed to comply with all conditions contained in the order.

178.1(14) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this rule who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

178.1(15) Defense. After the department issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein only for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

178.1(16) Judicial review. Judicial review of the department’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

641—178.2(17A,135) Sample petition for waiver. A petition for waiver filed in accordance with 641—178.1(17A, 135) must meet the requirements specified therein and must substantially conform to the following form:

1. Provide petitioner’s (person asking for a waiver or variance) name, address, and telephone number. Also include the name, address, and telephone number of the petitioner’s legal representative, if applicable, and a statement indicating the person to whom communications concerning the petition should be directed.

2. Describe and cite the specific rule from which a waiver is requested.

3. Describe the specific waiver requested, including the precise scope and time period for which the waiver will extend.

4. Explain the relevant facts and reasons that the petitioner believes justify a waiver. Include in your answer all of the following:

a. Why applying the rule would result in undue hardship to the petitioner;

b. Why waiving the rule would not prejudice the substantial legal rights of any person;

c. Whether the provisions of the rule subject to the waiver are specifically mandated by statute or another provision of law; and

d. How substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

5. Provide a history of any prior contacts between the department and petitioner relating to the regulated activity, license, registration, certification or permit that would be affected by the waiver. Include a description of each affected license, registration, certification, or permit held by the petitioner, any formal charges filed, any notices of violation, any contested case hearings held, or any investigations related to the regulated activity, license, registration, certification, or permit.

6. Provide information known to the petitioner regarding the department’s action in similar circumstances.

7. Provide the name, address, and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of the petition.

8. Provide the name, address, and telephone number of any person or entity that would be adversely affected by the granting of the waiver.

9. Provide the name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.

I hereby attest to the accuracy and truthfulness of the above information.

________________________________ ____________

Petitioner’s signature Date................

These rules are intended to implement Iowa Code section 17A.9A and chapter 135.

Pursuant to the authority of Executive Order Number 8, the Department of Public Safety hereby gives notice of public hearings scheduled to consider existing rules of the Department. The Department has adopted an Administrative Rules Improvement Plan, as provided in Executive Order Number 8, which specifies a schedule for consideration of all existing rules of the Department.

The following hearings are scheduled on March 2, 2001, in the Third Floor Conference Room (West Half) of theWallace State Office Building, East 9th and Grand, Des Moines, Iowa 50319:

Persons may present their views orally or in writing at each public hearing. Persons who wish to make oral presentations at a public hearing should contact the Agency Rules Administrator, Iowa Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, by mail,by telephone at (515)281-5524, or by electronic mail toadmrule@dps.state.ia.us, at least one day prior to the public hearing. Any written comments or information regarding these rules may be directed to the Agency Rules Administrator by mail or electronic mail at the addresses indicated at least one day prior to the public hearing, or submitted at the public hearing. Persons who wish to convey their views orally other than at the public hearing may contact the Agency Rules Administrator by telephone or in person at the Bureau office at least one day prior to the public hearing.

The Department’s Administrative Rules Improvement Plan as well as copies of any of the rules to be reviewed may be obtained from the Department’s World Wide Web site at http://www.state.ia.us/government/dps/admrule/.

Pursuant to the authority of Executive Order Number 8, the Department of Public Safety hereby gives notice of public hearings scheduled to consider existing rules of the Department. The Department has adopted an Administrative Rules Improvement Plan, as provided in Executive Order Number 8, which specifies a schedule for consideration of all existing rules of the Department.

The following hearings are scheduled on March 16, 2001, in the Third Floor Conference Room (West Half) of theWallace State Office Building, East 9th and Grand, Des Moines, Iowa 50319:

Persons may present their views orally or in writing at each public hearing. Persons who wish to make oral presentations at a public hearing should contact the Agency Rules Administrator, Iowa Department of Public Safety, Wallace State Office Building, Des Moines, Iowa 50319, by mail,by telephone at (515)281–5524, or by electronic mail toadmrule@dps.state.ia.us, at least one day prior to the public hearing. Any written comments or information regarding these rules may be directed to the Agency Rules Administrator by mail or electronic mail at the addresses indicated at least one day prior to the public hearing, or submitted at the public hearing. Persons who wish to convey their views orally other than at the public hearing may contact the Agency Rules Administrator by telephone or in person at the Bureau office at least one day prior to the public hearing.

The Department’s Administrative Rules Improvement Plan as well as copies of any of the rules to be reviewed may be obtained from the Department’s World Wide Web site at http://www.state.ia.us/government/dps/admrule/.

Pursuant to the authority of Iowa Code sections 422B.9 and 422.68, the Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 4, “Multilevel Marketer Agreements,” Iowa Administrative Code.

Subrule 4.1(5) is amended by adding a sentence clarifying that the effective date of the termination of the multilevel marketer agreement shall occur 60 days from the date of the notice of the written termination, unless otherwise mutually agreed to by the parties. The delay in the effective date of the termination is to accommodate any changes necessary by the parties. These changes may include notification by the multilevel marketer to its independent distributors and registration of the independent distributors by the Department.

The proposed amendment will not necessitate additional expenditures by political subdivisions or agencies and entities which contract with political subdivisions.

Any person who believes that the application of the discretionary provisions of this amendment would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

The Department has determined that this proposed amendment may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than March 26, 2001, to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who each qualify as a small business or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on this proposed amendment on or before March 23, 2001. Such written comments should be directed to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

Persons who want to orally convey their views should contact the Policy Section, Compliance Division, Department of Revenue and Finance, at (515)281–4250 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by March 16, 2001.

This amendment is intended to implement Iowa Code sections 422.5 and 422.68.

The following amendment is proposed.

Amend subrule 4.1(5), last paragraph, as follows:

Written notice of termination will be promptly given by the department in the event of termination under paragraph 4.1(5)“a.” To accommodate the time necessary to effectuate changes by the multilevel marketer and the department, the effective date of the termination of the multilevel marketer agreement shall be 60 days from the date of the notice of the written termination, unless a request for additional time is made by the multilevel marketer and the request is granted by the department.

Pursuant to the authority of Iowa Code sections 17A.3, 421.17(19) and 422.68, the Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 7, “Practice and Procedure Before the Department of Revenue and Finance,” Iowa Administrative Code.

Item 1 amends rule 701—7.37(17A) to update the implementation clause.

Item 2 adds to rule 701—7.39(17A) a new paragraph regarding the filing of documents.

Item 3 strikes interagency appeal information and adds information regarding the filing of documents, burden of proof and the deletion of identifying details in rule 701— 7.42(17A).

Item 4 adds the procedure for the transfer of cases to the Department of Inspections and Appeals to rule 701— 7.43(17A).

Item 5 amends subrule 7.44(1) and replaces the phrase “the section or division responsible” with the phrase “the review unit.”

Items 6, 7, and 9 amend rules 701—7.45(17A), 701— 7.46(17A), and 701—7.48(17A), respectively, to update the implementation clause of each rule.

Item 8 amends rule 701—7.47(17A) to include a new paragraph regarding hearing dates and to update the implementation clause.

Item 10 removes language in rule 701—7.49(17A), and Item 11 amends rule 701—7.50(17A) to add the language removed from 701—7.49(17A).

In addition, Item 11 adds to subrules 7.50(1) and 7.50(7) an alternative for the issuance of a decision if the assigned administrative law judge is backlogged in issuing decisions.

Item 12 amends rule 701—7.51(17A) to clarify transcript and record procedures.

The proposed amendments will not necessitate additional expenditures by political subdivisions or agencies and entities which contract with political subdivisions.

Any person who believes that the application of the discretionary provisions of these amendments would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

The Department has determined that these proposed amendments may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than March 26, 2001, to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who each qualify as a small business, or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on these proposed amendments on or before March 23, 2001. Such written comments should be directed to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

Persons who want to convey their views orally should contact the Policy Section, Compliance Division, Department of Revenue and Finance, at (515)281–4250 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by March 16, 2001.

These amendments are intended to implement Iowa Code sections 421.17(19) and 422.68.

The following amendments are proposed.

ITEM 1. Amend rule 701—7.37(17A), implementation clause, as follows:

This rule is intended to implement Iowa Code section 10A.202(1)“m,” Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code section 421.14.

ITEM 2. Amend rule 701—7.39(17A) by adopting the following new unnumbered paragraph at the end thereof:

All documents or papers filed with an administrative law judge appointed by the division of administrative hearings to be a presiding officer shall be filed with the Department of Inspections and Appeals, Division of Administrative Hearings, Third Floor, Lucas State Office Building, Des Moines, Iowa 50319.

ITEM 3. Amend rule 701—7.42(17A) as follows:

701—7.42(17A) Identifying details. Any person may at any time file a motion to delete identifying details concerning the person from any document relating to any proceedings as defined in rule 701—7.37(17A) prior to disclosure to members of the public. Such a motion must be filed with the clerk of the hearings section for the department if the motion is filed prior to the commencement of a contested case, which is before the Notice for Hearing is issued. If the motion is filed during a contested case, but prior to an interagency appeal, then the motion must be filed with the presiding officer. If such a motion is filed during or after an interagency appeal has been filed, then the motion must be filed with the office of the clerk of the hearings section for the department. proceeding pending before an administrative law judge and before the administrative law judge has entered a proposed decision on the case or has entered a closing order, the motion must be filed with and ruled upon by the administrative law judge. Otherwise, the motion must be filed with the clerk of the hearings section and ruled upon by the director.

If the motion concerns information which is not a part of a contested case, the motion shall be in the form of a request to delete identifying details; if part of a contested case, the motion shall be in the form of a motion to delete identifying details. All motions to delete shall conform to subrule 7.50(4). The motion or request shall contain the following:

1. The name of the person requesting deletion and the docket number of the proceeding, if applicable;

2. The legal basis for the request for deletion; such as, release of the material would be a clearly unwarranted invasion of personal privacy or the material is a trade secret or of advantage to competitors. A corporation may not claim an unwarranted invasion of privacy;

3. A precise description of the document, report, or other material in the possession of the department from which the deletion is sought, and a precise description of the information to be deleted. If deletion is sought from more than one document, each document and the materials sought to be deleted from it shall be listed in separate paragraphs. Also contained in each separate paragraph shall be a statement of the legal basis for the deletion requested in that paragraph, such as, the material sought to be deleted is a trade secret or its release would give advantage to competitors and serve no public purpose;

4. An affidavit in support of deletion must accompany each motion or request. The affidavit must be sworn to by a person familiar with the facts asserted within it and shall contain a clear and concise explanation of the facts justifying deletion, not merely the legal basis for deletion; and

5. All affidavits shall contain a general and truthful statement that the information sought to be deleted is not available to the public from any source or combination of sources, direct or indirect, and whether the grounds for deletion is that the release of information would give advantage to competitors, and a general statement that the release would serve no public purpose. ;

7. In the event that the matter sought to be deleted is part of the pleadings, motions, orders, including closing orders, evidence, and the record in a contested case proceeding otherwise open for public inspection, that the matter would otherwise constitute confidential tax information shall not be grounds for deletion (1992 Op. Att’y Gen. 1.); and

ITEM 4. Amend rule 701—7.43(17A) as follows:

701—7.43(17A) Docket. The clerk of the hearings section for the department shall maintain a docket of all proceedings, and each of the proceedings shall be assigned a number. Every matter coming within the purview of these rules shallbe assigned a docket number which shall be the official number for the purposes of identification. Upon receipt of a protest, petition for declaratory order or petition to initiate rule–making proceedings, the proceeding will be docketed and assigned a number, and the parties notified thereof. The number shall be placed by the parties on all papers thereafter filed in the proceeding. After the transfer of a case to the division of administrative hearings for contested case proceedings, that division may assign a docket number to the case and in that event, the docket number shall be placed by the parties on all papers thereafter filed in the proceeding.

ITEM 5. Amend subrule 7.44(1) as follows:

7.44(1) Informal procedures. Persons are encouraged to utilize the informal procedures provided herein so that a settlement may be reached between the parties without the necessity of initiating contested case proceedings. Therefore, unless the protester indicates a desire to waive the informal procedures in the protest or the department waives informal procedures upon notification to the protester, such informal procedures will be initiated as herein provided upon the filing of a proper protest.

a. Review unit. A review unit is created within the department and, subject to the control of the director, the unit will:

(1) Review and evaluate the validity of all protests made by taxpayers from the department action.

(2) Determine the correct amount of tax owing or refund due.

(3) Determine the best method of resolving the dispute between the protester and the department.

(5 4) Take further action regarding the protest, including any additions and deletions to the audit, as may be warranted by the circumstances to resolve the protest, including a request for an informal conference.

(6 5) Determine whether the protest complies with rule 701—7.41(17A) and request any amendments to the protest or additional information.

After assignment of the protest, the section or division responsible The review unit may concede any items contained in the protest which it determines should not be controverted by the department. If the protester has not waived informal procedures, the section or division responsible review unit may request the protester and the protester’s representative, if any, to attend an informal conference with the responsible section or division review unit to explore the possibility of reaching a settlement without the necessity of initiating contested case proceedings or of narrowing the issues presented in the protest if no settlement can be made. The review unit may request clarification of the issues from the protester or further information from the protester or third persons.

Findings dealing with the issues raised in the protest may be issued unless the issues may be more expeditiously determined in another manner or it is determined that findings are unnecessary. The protester will be notified of the decision on the issues in controversy.

Nothing herein will prevent the section or division responsible review unit and the protester from mutually agreeing on the manner in which the protest will be informally reviewed.

b. Settlements. If a settlement is reached during informal procedures, the clerk of the hearings section must be notified. An A closing order shall be issued by the director and served upon all parties, stating that a settlement was reached by the parties and that the case is terminated.

ITEM 6. Amend rule 701—7.45(17A), implementation clause, as follows:

This rule is intended to implement Iowa Code section 10A.202(1)“m,” Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code sections 421.14 and 421.60.

ITEM 7. Amend rule 701—7.46(17A), implementation clause, as follows:

This rule is intended to implement Iowa Code section 10A.202(1)“m,” Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code section 421.14.

ITEM 8. Amend rule 701—7.47(17A) as follows:

Adopt the following new first unnumbered paragraph:

At the request of a party or the presiding officer made prior to the issuance of the hearing notice, the presiding officer shall hold a telephone conference with the parties for the purpose of selecting a mutually agreeable hearing date, which date shall be the hearing date contained in the hearing notice. The notice shall be issued within one week after the mutually agreeable hearing date is selected.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code sections 10A.202(1)“m,” 17A.12 as amended by 1998 Iowa Acts, chapter 1202, and 421.8A.

ITEM 9. Amend rule 701—7.48(17A), implementation clause, as follows:

This rule is intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code sections section 421.14 and 10A.202(1)“m.”.

ITEM 10. Amend rule 701—7.49(17A) as follows:

701—7.49(17A) Prehearing conference. Upon the motion of the presiding officer, or upon the written request of a party, the presiding officer shall direct the parties to appear at aspecified time and place before the presiding officer for a prehearing conference to consider:

1. The possibility or desirability of waiving any provisions of the Act relating to contested case proceedings by written stipulation representing an informed mutual consent;

2. The necessity or desirability of setting a new date for hearing;

3. The simplification of issues;

4. The necessity or desirability of amending the pleadings either for the purpose of clarification, amplification or limitation;

5. The possibility of agreeing to the admission of facts, documents or records not really controverted, to avoid unnecessary introduction of proof;

6. The procedure at the hearing;

7. Limiting the number of witnesses;

8. The names and identification of witnesses and the facts each party will attempt to prove at the hearing;

9. Conduct or schedule of discovery; and

10. Such other matters as may aid, expedite or simplify in the disposition of the proceeding.

Any action taken at the prehearing conference shall be recorded in an appropriate order, unless the parties enter upon a written stipulation as to such matters or agree to a statement thereof made on the record by the presiding officer.

When an order is issued at the termination of the prehearing conference, a reasonable time shall be allowed to the parties to present objections on the grounds that it does not fully or correctly embody the agreements at such conference. Thereafter, the terms of the order or modification thereof shall determine the subsequent course of the proceedings relative to matters it includes, unless modified to prevent manifest injustice.

If either party to the contested case proceeding fails to appear at the prehearing conference, fails to request a continuance, or fails to submit evidence or arguments which the party wishes to be considered in lieu of appearance, the opposing party may move for dismissal. The motion shall be made in accordance with subrule 7.50(4).

ITEM 11. Amend rule 701—7.50(17A) as follows:

Amend subrules 7.50(1) and 7.50(7) as follows:

7.50(1) Determination of presiding officer. If the director retains a contested case for evidentiary hearing and the department is a party, the initial presiding officer will be the director. If the department is not a party to the contested case retained by the director, the presiding officer may be the director or the director’s designee. Upon determining that a case will be retained and not transferred to the division of administrative hearings, the director shall issue written notification to the parties of the determination which states the basis for retaining the case for evidentiary hearing.

A protester may file a written objection to the director’s determination to retain the case for evidentiary hearing and request that the contested case be heard by an administrative law judge or presiding officer and request a hearing on the objection. Such an objection must be filed with the clerk of the hearings section for the department within 20 days of the notice issued by the director of the director’s determination to retain the case. The director may deny the request retain the case only upon a finding that one or more of the following apply:

a. There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety and welfare;

b. A qualified administrative law judge is unavailable to hear the case within a reasonable time;

c. The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented;

d. The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues;

e. The case involves an issue or issues the resolution of which would create important precedent;

f. The case involves complex or extraordinary questions of law or fact;

g. The case involves issues or questions of law or fact that, based on the director’s discretion, should be retained by the director;

h. Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal;

i. The request was not timely filed; and

j. The request is not consistent with a specified statute. ;

The director shall issue a written ruling specifying the grounds for the decision within 20 days after a request for an administrative law judge is filed. If a party objects to the director’s determination to retain a case for evidentiary hearing, transfer of the protest file, if any, will be made after the director makes a final determination on the objection. If the ruling is contingent upon the availability of a qualified administrative law judge, the parties shall be notified at least ten days prior to the hearing if a qualified administrative law judge will be available.

The director has the right to require that any presiding officer, other than the director, be a licensed attorney in the state of Iowa, unless the contested case only involves licensing. In addition, any presiding officer must possess, upon determination by the director, sufficient technical expertise and experience in the areas of taxation and presiding over proceedings to effectively determine the issues involved in the proceeding.

Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the director.

7.50(7) Orders. At the conclusion of the hearing, the presiding officer in the presiding officer’s discretion may request the parties to submit proposed findings of fact and conclusions of law. Upon the request of any party, the presiding officer shall allow the parties an opportunity to submit proposed findings of fact and conclusions of law. In addition to or in lieu of the filing of briefs, upon the request of all of the parties waiving any contrary contested case provisions of law or of these rules, the presiding officer shall allow the parties to submit proposed findings of facts and conclusions of law and the presiding officer may sign and adopt as the decision or proposed decision one of such proposed findings of fact and conclusions of law without any changes.

The decision in a contested case is an order which shall be in writing or stated in the record. The order shall include findings of fact prepared by the person presiding at the hearing, unless the person is unavailable, and based solely on the evidence in the record and on matters officially noticed in the record, and shall include conclusions of law. The findings of fact and conclusions of law shall be separately stated. If a party has submitted proposed findings of fact, the order shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by cited authority or by a reasoned opinion. The decision must include an explanation of why the relevant evidence in the record supports each material finding of fact. If the issue of reasonable litigation costs was held in abeyance pending the outcome of the substantive issues in the contested case and the proposed order decides substantive issues in favor of protester, the proposed order shall include a notice of time and place for a hearing on the issue of whether reasonable litigation costs shall be awarded and on the issue of the amount of such award, unless the parties agree otherwise. All decisions and orders in a contested case proceeding shall be based solely on the legal bases and arguments presented by the parties. In the event that the presiding officer believes that a legal basis or argument for a decision or order exists but has not been presented by the parties, the presiding officer shall notify the parties and give them an opportunity to file a brief that addresses such legal basis or argument.

When a motion has been made to delete identifying details in an order on the basis of personal privacy or trade secrets, the justification for such deletion or refusal to delete shall be made by the moving party and shall appear in the order.

When the director initially presides at a hearing or considers decisions on appeal from or review of a proposed decision by the presiding officer other than the director, the order becomes the final order of the department for purposes of judicial review or rehearing unless there is an appeal to or review on motion of a second agency within the time provided by statute or rule. When a presiding officer other than the director presides at the hearing, the order becomes the final order of the department for purposes of judicial review or rehearing unless there is an appeal to or review on motion of the director within 30 days of the date of the order, or 10 days, excluding Saturdays, Sundays, and legal holidays, for a revocation order pursuant to rule 701—7.55(17A). However, if the contested case proceeding involves a question of an award of reasonable litigation costs, the proposed order on the substantive issues shall not be appealable to or reviewable by the director on the director’s motion until the issuance of a proposed order on the reasonable litigation costs. If there is no such appeal or review within 30 days or 10 days, whichever is applicable, from the date of the proposed order on reasonable litigation costs, both the proposed order on the substantive issues and the proposed order on the reasonable litigation costs become the final orders of the department for purposes of judicial review or rehearing. On an appeal from, review of, or application for rehearing concerning the presiding officer’s order, the director has all the power which the director would initially have had in making the decision; however, the director will only consider those issues or selected issues presented at the hearing before the presiding officer or any issues of fact or law raised independently by the presiding officer, including the propriety of and the authority for raising issues. The parties will be notified of those issues which will be considered by the director.

In the event of an appeal to or review of the proposed order by the director, the administrative hearings division shall be promptly notified of the appeal or review by the director. The administrative hearings division shall, upon such notice, promptly forward the record of the contested case proceeding and all other papers associated with the case to the director.

A decision by the director may reverse or modify any finding of fact if a preponderance of the evidence will support a determination to reverse or modify such a finding of fact or may reverse or modify any conclusion of law that the director finds to be in error.

Orders will be issued within a reasonable time after termination of the hearing. Parties shall be promptly notified of each order by delivery to them of a copy of the order by personal service or certified mail, return receipt requested, except in the case of an order revoking a sales or use tax permit or a motor fuel license which may be delivered by ordinary mail.

A cross–appeal may be taken within the 30–day period for taking an appeal to the director of revenue and finance or in any event within 5 days after the appeal to the director is taken. If a cross–appeal is taken from a revocation order pursuant to rule 701—7.55(17A), the cross–appeal may be taken within the 10–day period for taking an appeal to the director or in any event within 5 days after the appeal to the director is taken.

Adopt the following new unnumbered paragraphs at the end of the rule:

Since stipulations are encouraged, it is expected and anticipated that the parties proceeding to a hearing will stipulate to evidence to the fullest extent to which complete or qualified agreement can be reached including all material facts that are not, or should not be, fairly in dispute.

Without the necessity of proceeding to an evidentiary hearing in a contested case, the parties may agree in writing to informally dispose of the case by stipulation, agreed settlement, consent order, or by another method agreed upon. If such informal disposition is utilized, the parties shall so indicate to the presiding officer that the case has been settled. Upon request, the presiding officer shall issue a closing order to reflect such a disposition. The contested case is terminated upon issuance of a closing order.

Unless otherwise precluded by law, the parties in a contested case proceeding may mutually agree to waive any provision under these sets of rules governing the contested case proceedings.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code sections 10A.202(1)“m,” 17A.15(3) as amended by 1998 Iowa Acts, chapter 1202, 421.60, 422.57(1) and 452A.68.

ITEM 12. Amend rule 701—7.51(17A) as follows:

701—7.51(17A) Record and transcript. The record in a contested case shall include:

1. All pleadings, motions and rulings;

2. All evidence received or considered and all other submissions;

3. A statement of all matters officially noticed;

4. All questions and offers of proof, objections, and rulings thereon;

5. All proposed findings and exceptions;

6. All orders of the presiding officer; and

7. The order of the director on appeal or review.

Oral hearings regarding proceedings on appeal to or considered on motion of the director which are recorded by mechanical means shall not be transcribed for the record of such appeal or review unless a party, by written notice, or the director, orally or in writing, requests such transcription. Such a request must be filed with the clerk of the hearings section for the department who will be responsible for making the transcript. A transcription will be made only of that portion of the oral hearing relevant to the appeal or review, if so requested, and no objection is made by any other party to the proceeding or the director. Upon request, the department shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.

Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means shall bear the cost of that recordation, unless otherwise provided by law.

Pursuant to the authority of Iowa Code sections 421B.11, 452A.59, and 453A.25, the Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 68, “Motor Fuel and Undyed Special Fuel,” Chapter 82, “Cigarette Tax,” Chapter 83, “Tobacco Tax,” and Chapter 84, “Unfair Cigarette Sales,” Iowa Administrative Code.

Item 1 clarifies that, with certain exceptions, dyed fuel which meets federal regulations and is added at a terminal is exempt from tax if used for a nontaxable purpose.

Items 2, 3, and 6 provide an exemption from tax for motor fuel, cigarettes, and tobacco products sold by Indians to Indians of their own tribe on their own reservation. The motor fuel, cigarettes, and tobacco products must be purchased and sold tax–paid and the final Indian purchaser may obtain the exemption by filing a claim for refund of the tax paid.

Item 4 changes a Code section reference to reflect renumbering resulting from recent legislation.

Item 5 reflects more accurate terminology.

Item 7 amends the cigarette minimum price example to show current prices and tax rates.

The proposed amendments will not necessitate additional expenditures by political subdivisions or agencies and entities which contract with political subdivisions.

Any person who believes that the application of the discretionary provisions of these amendments would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

The Department has determined that these proposed amendments may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than March 26, 2001, to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who each qualify as a small business, or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on these proposed amendments on or before March 23, 2001. Such written comments should be directed to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

Persons who want to convey their views orally should contact the Policy Section, Compliance Division, Department of Revenue and Finance, at (515)281–4250 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by March 16, 2001.

These amendments are intended to implement Iowa Code chapters 421B, 452A, and 453A.

The following amendments are proposed.

ITEM 1. Amend rule 701—68.3(452A) by adding the following new unnumbered paragraph:

Indelible dye meeting United States Environmental Protection Agency and Internal Revenue Service regulations must be added to fuel before or upon withdrawal at a terminal or refinery rack for that fuel to be exempt from tax and the dyed fuel can only be used for a nontaxable purpose listed in Iowa Code section 452A.17, subsection 1, paragraph “a.” However, this exemption does not apply to fuel used for idle time, power takeoffs, reefer units, or pumping credits, or fuel used by contract carriers.

ITEM 2. Amend rule 701—68.8(452A) by adding the following new subrule:

68.8(18) Refund of tax—Indians. Sales by Indians to other Indians of their own tribe on federally recognized Indian reservations or settlements of which they are tribal members are exempt from the tax (Bryan v. Itasca County, 426 U.S. 373, 376–77 (1976); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475–81 (1976)). However, Indian sellers are subject to the licensing and record–keeping requirements of Iowa Code chapter 452A. (Washington v. Confederated Tribes, 447 U.S. 134, 159–160 (1980)). An Indian tribe licensed in Iowa as a supplier, restrictive supplier, importer, or blender is subject to the same tax collection and tax payment requirements of chapter 452A as all other such licensees. The fuel must be purchased by the Indian seller with the tax included in the purchase price and the tax must be passed on to the Indian purchaser unless the seller’s status as a particular licensee authorizes the seller to purchase fuel tax–free. The tax exemption is allowed to the Indian purchaser by the purchaser’s filing a claim for refund of the tax paid.

ITEM 3. Amend paragraph 82.4(5)“b” as follows:

b. Sales by or to Indians. Sales by Indians to other Indians of their own tribe on federally recognized Indian reservations or settlements of which they are tribe tribal members are exempt from the tax (Bryan v. Itasca County, 426 U.S. 373, 376–77 (1976); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475–81 (1976)). The Indians Indian sellers are subject to the permit and record–keeping requirements of Iowa Code chapter 453A. (Washington v. Confederated Tribes, 447 U.S. 134, 159–160 (1980)). An Indian tribe licensed in Iowa as a distributor, manufacturer, wholesaler, or vendor is subject to the same tax collection and tax payment requirements of chapter 453A as all other such licensees. The cigarettes must be purchased by the Indian seller with the tax included in the purchase price and the tax must be passed on to the Indian purchaser. The tax exemption is allowed to the Indian purchaser by the purchaser’s filing a claim for refund of the tax paid. Indians who have purchased or obtained cigarettes from an Indian reservation source and come within the taxing jurisdiction of the state are subject to the provisions of Iowa Code sections 453A.6(2), 453A.36(1) and 453A.37.

ITEM 4. Amend rule 701—83.4(453A) as follows:

701—83.4(453A) Tax on little cigars. “Little cigars” as defined in Iowa Code section 453A.42(5) means any roll for smoking made wholly or in part of tobacco not meeting the definition of cigarette as contained in Iowa Code section 453A.1(2)(3) which either weighs three pounds or less per thousand or weighs more than three pounds per thousand (excluding packaging weight) and has a retail price of two and one–half cents or less per little cigar. All of the provisions applicable to cigarettes concerning the rate, imposition, method of payment and affixing of stamps apply equally to little cigars. The tax on little cigars is to be paid on the purchase of stamps by cigarette distributors or cigarette manufacturers who hold valid permits. The reporting requirements contained in section 453A.15 and rule 701—82.9(453A) shall pertain equally to the distribution of little cigars, and whenever information as to cigarettes is required to be reported, the same is required as to little cigars.

This rule is intended to implement Iowa Code sections 453A.42(5) and 453A.43.

ITEM 5. Amend rule 701—83.10(453A) as follows:

701—83.10(453A) Return Credits and refunds of taxes. Credits for tobacco products destroyed, returned to manufacturers or exported are provided in subrule 83.6(1). If the credits exceed the average monthly tax liability of the distributor, based upon the prior 12 tax periods, a refund may be issued.

The only other return of tax paid on tobacco products is for a refund Credits and refunds to a consumer who paid the tax pursuant to as per Iowa Code section 453A.43(2). This refund shall be made for the same reasons and upon the same basis as credits and refunds to distributors.

This rule is intended to implement Iowa Code section 453A.47.

ITEM 6. Amend subrule 83.11(2) as follows:

83.11(2) Sales by or to Indians. Sales by Indians to other Indians of their own tribe on federally recognized Indian reservations or settlements of which they are tribe tribal members are exempt from the tax (Bryan v. Itasca County, 426 U.S. 373, 376–77 (1976); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475–81 (1976)). The Indians Indian sellers are subject to the license and record–keeping requirements of Iowa Code chapter 453A. (Washington v. Confederated Tribes, 447 U.S. 134, 159–160 (1980)). An Indian tribe licensed in Iowa as a distributor or subjobber is subject to the same tax collection and tax payment requirements of chapter 453A as all other such licensees. The tobacco products must be purchased by the Indian seller with the tax included in the purchase price and the tax must be passed on to the Indian purchaser. The tax exemption is allowed to the Indian purchaser by the purchaser’s filing a claim for refund of the tax paid. Indians who have purchased or obtained tobacco products from an Indian reservation source and come within the taxing jurisdiction of the state are subject to the provisions of Iowa Code sections 453A.43(2) and 453A.50.

ITEM 7. Amend rule 701—84.2(421B) by striking the existing example and inserting in lieu thereof the following new example:

Manufacturer’s list price per 1000 cigarettes $115.70

Invoice price to wholesaler $115.70

Less 2% discount 2.31

Plus ½ of the tax 9.00

Basic cost of cigarettes $122.39

Plus 3% of basic cost 3.67

Retailer’s basic cost $126.06

Plus ½ of the tax 9.00

Minimum cost to wholesaler per 1000 cigarettes $135.06

Per carton $27.01

Less ½ state tax 1.80

Retailer basic cost $25.21

Plus 6% of basic cost 1.51

Plus ½ of state tax 1.80

Minimum cost to retailer $28.52

Per pack $2.86/pack

Pursuant to the authority of Iowa Code sections 9.1 and 17A.3, the Secretary of State hereby gives Notice of Intended Action to adopt new Chapter 10, “Waiver and Vari–ance Rules,” Iowa Administrative Code.

The proposed chapter is intended to implement Iowa Code section 17A.9A by providing a method for persons to request waivers or variances of agency rules when that is deemed appropriate. The chapter is adapted from model waiver and variance rules provided by the Iowa Attorney General. Those rules have been modified to substitute reference to the Secretary of State where appropriate. The model rules have also been modified to include specific language requiring that a petition for waiver not related to a license application or pending contested case be submitted in writing to the Secretary of State’s office, rather than the more general permissive language of the model rules.

Any interested person may make written suggestions or comments on these proposed rules through March 13, 2001. Such written suggestions or comments should be directed to Bob Galbraith, Deputy Secretary of State, Second Floor, Hoover State Office Building, Des Moines, Iowa 50319.

Persons who want to convey their views orally should contact the Secretary of State’s office at (515)281–6598 or at the Secretary of State’s offices on the second floor of the Hoover State Office Building. Requests for a public hearing must be received by March 13, 2001.

This amendment was also Adopted and Filed Emergency and is published herein as ARC 0507B. The content of that submission is incorporated by reference.

This amendment is intended to implement Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code sections 17A.3 and 216A.143, the Division on the Status of African–Americans hereby gives Notice of Intended Action to adopt new Chapter 7, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Volume XXII, Number Seven, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Division on the Status of African–Americans, Department of Human Rights, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)281–3858.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in the Administrator’s Office, Division on the Status of African–Americans, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobilityimpairments should contact the Division on the Status of African–Americans in advance of the hearing and advise of specific needs.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 7

WAIVER RULES

434—7.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

434—7.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable process for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

434—7.3(17A) Applicability. This chapter applies only to waivers of those division rules that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

434—7.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

434—7.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 7.3(17A) and 7.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division head shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

434—7.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

434—7.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 7.5(17A) of this chapter.

434—7.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

434—7.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

434—7.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

434—7.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

434—7.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

434—7.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

434—7.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

434—7.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 7.12(17A).

434—7.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of the law.

434—7.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division office during regular business hours.

434—7.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

434—7.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

434—7.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

434—7.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

Pursuant to the authority of Iowa Code sections 17A.3 and 216A.54, the Division on the Status of Women hereby gives Notice of Intended Action to adopt new Chapter 10, “Waiver Rules,” Iowa Administrative Code.

Executive Order Number 11 issued on September 14, 1999, requires each agency with authority to adopt rules, as defined in Iowa Code sections 17A.2(1) and 17A.2(11), to initiate rule–making proceedings to adopt the Uniform Waiver Rule outlined in the Executive Order. Executive Order Number 11 was published in the Iowa Administrative Bulletin, Volume XXII, Number Seven, dated October 6, 1999. Adoption of this new chapter will provide the Division with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before March 13, 2001. Such written materials should be directed to the Administrator, Department of Human Rights, Division on the Status of Women, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on March 13, 2001, at 10 a.m. in the Director’s Office, Department of Human Rights, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Division on the Status of Women in advance of the hearing and advise of specific needs.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 10
WAIVER RULES

435—10.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this division applicable only to an identified person on the basis of the particular circumstances of that person.

435—10.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable process for granting individual waivers from rules adopted by the division in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

435—10.3(17A) Applicability. This chapter applies only to waivers of those division rules that are within the exclusive rule–making authority of the division. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the division does not possess statutory authority to bind a court, to any extent, with its definition.

435—10.4(17A) Compliance with law. The division may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

435—10.5(17A) Criteria for a waiver. The division may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the division, in whole or in part, as applied to the circumstances of a specified person, if the division finds that the waiver is consistent with rules 10.3(17A) and 10.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. All of the following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the division administrator shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

435—10.6(17A) Division discretion. The final decision to grant or deny a waiver shall be vested in the division administrator. This decision shall be made at the discretion of the division upon consideration of relevant facts.

435—10.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the division should exercise its discretion to grant a waiver based upon the criteria contained in rule 10.5(17A) of this chapter.

435—10.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is requested and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

4. The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts represented in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the petitioner and the division relating to the activity affected by the proposed waiver, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

6. Any information known to the requester relating to the division’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the division with information relevant to the waiver.

435—10.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the division may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the division may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the division to discuss the petition and surrounding circumstances.

435—10.10(17A) Notice. The division shall acknowledge the petition upon receipt. The division shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the division may give notice to other persons. To accomplish this notice provision, the division may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the division attesting to the fact that notice has been provided.

435—10.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver of a rule or set of rules filed within a contested case and shall otherwise apply to division proceedings for a waiver only when the division so provides by rule or order or is required to do so by statute or other binding law.

435—10.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

435—10.13(17A) Conditions. The division may condition the granting of the waiver on such conditions that the division deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

435—10.14(17A) Time for ruling. The division shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the division may grant or deny the petition at the time the final decision in that contested case is issued.

435—10.15(17A) When deemed denied. Failure of the division to grant or deny a petition within the required time period shall be deemed a denial of that petition by the division. However, the division shall remain responsible for issuing an order denying a waiver as required by rule 10.12(17A).

435—10.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of the law.

435—10.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the division shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the division office during regular business hours.

435—10.18(17A) Cancellation of a waiver. A waiver issued by the division pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the division issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the division or knowingly misrepresented to the division material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

435—10.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

435—10.20(17A) Defense. After the division issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

435—10.21(17A) Appeals. Appeals within the division from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and division rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

In compliance with Iowa Code chapter 74A and section 12C.6, the committee composed of Treasurer of StateMichael L. Fitzgerald, Superintendent of Credit Unions James E. Forney, Superintendent of Banking Holmes Foster, and Auditor of State Richard D. Johnson have established today the following rates of interest for public obligations and special assessments. The usury rate for February is 8.00%.

INTEREST RATES FOR PUBLIC

OBLIGATIONS AND ASSESSMENTS

74A.2 Unpaid Warrants Maximum 6.0%

74A.4 Special Assessments Maximum 9.0%

RECOMMENDED for 74A.3 and 74A.7: A rate equal to 75% of the Federal Reserve monthly published indices for U.S. Government securities of comparable maturities.

The rate of interest has been determined by a committee of the state of Iowa to be the minimum interest rate that shall be paid on public funds deposited in approved financial institutions. To be eligible to accept deposits of public funds of the state of Iowa, a financial institution shall demonstrate a commitment to serve the needs of the local community in which it is chartered to do business. These needs include credit services as well as deposit services. All such financial institutions are required to provide the committee with a written description of their commitment to provide credit services in the community. This statement is available for examination by citizens.

New official state interest rates, effective February 9, 2001, setting the minimums that may be paid by Iowa depositories on public funds are listed below.

TIME DEPOSITS

7–31 days Minimum 5.00%

32–89 days Minimum 4.80%

90–179 days Minimum 4.70%

180–364 days Minimum 4.70%

One year to 397 days Minimum 4.70%

More than 397 days Minimum 4.70%

These are minimum rates only. The one year and less are four–tenths of a percent below average rates. Public body treasurers and their depositories may negotiate a higher rate according to money market rates and conditions.

Inquiries may be sent to Michael L. Fitzgerald, Treasurer of State, State Capitol, Des Moines, Iowa 50319.

Pursuant to the authority of Iowa Code sections 9.1 and 17A.3, the Secretary of State hereby adopts new Chapter 10, “Waiver and Variance Rules,” Iowa Administrative Code.

The adoption of Chapter 10 is intended to implement Iowa Code section 17A.9A by providing a method for persons to request waivers or variances of agency rules when that is deemed appropriate. The new chapter is adapted from model waiver and variance rules provided by the Iowa Attorney General. Those rules have been modified to substitute reference to the Secretary of State where appropriate. The model rules have also been modified to include specific language requiring that a petition for waiver not related to a license application or pending contested case be submitted in writing to the Secretary of State’s office, rather than the more general permissive language of the model rules.

The Secretary of State’s office has received a request for a waiver of the requirement of subparagraph 21.800(3)“b”(2) which requires that a renewal election for a local option sales and services tax be held no more than 14 months before the expiration of the tax. The intent of the rule was to set a reasonable amount of time before the expiration of the tax for governing bodies to provide for an election to continue the tax. A verbal request for a waiver has been received from the City of Ottumwa in order to allow the city to apply for Vision Iowa funds for a project that would be partially funded by local option tax revenue. The renewal election date must be included in the Vision Iowa application. Ottumwa’s local option tax sunset date is June 30, 2003. The earliest date for a renewal election would be April 30, 2002, a date that the city believes is too late for the city to be eligible to receive Vision Iowa funds. In this situation, a waiver of the rule appears to be appropriate.

In compliance with Iowa Code section 17A.4(2), the Secretary of State finds that notice and public participation are impracticable due to the brief period of time available for the city to submit its grant application.

The Secretary of State also finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the amendment should be waived and this amendment should be made effective upon filing, as it confers a benefit upon the public by having the waiver rule available for this urgent situation, as well as to others.

The Secretary of State adopted this rule on February 1, 2001.

This amendment is also published herein under Notice of Intended Action as ARC 0506B to allow public comment.

This amendment is intended to implement Iowa Code section 17A.9A.

This amendment became effective February 2, 2001.

The following new chapter is adopted.

CHAPTER 10
WAIVER AND VARIANCE RULES

721—10.1(17A) Definition. For purposes of this chapter, a “waiver or variance” means action by the agency which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

721—10.2(17A) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the agency in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

721—10.3(17A) Applicability. The agency may only grant a waiver from a rule if the agency has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The agency may not waive requirements created or duties imposed by statute.

721—10.4(17A) Criteria for waiver or variance. In response to a petition completed pursuant to rule 10.6(17A), the agency may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the agency finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

721—10.5(17A) Filing of petition. A petition for a waiver must be submitted in writing to the agency as follows:

10.5(1) License or authorization application. If the petition relates to a license or authorization application, the petition shall be made in accordance with the filing requirements for the license or authorization in question.

10.5(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

10.5(3) Other. If the petition does not relate to a license application or a pending contested case, the petition shall be submitted in writing to the secretary of state’s office.

721—10.6(17A) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the entity or person for whom a waiver is being requested and the case number of any related contested case.

2. A description and citation of the specific rule from which a waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. All relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 10.4(17A). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the agency and the petitioner relating to the regulated activity, license, or authorization affected by the proposed waiver, including a description of each affected license or authorization held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity or license within the last five years.

6. All information known to the requester regarding the agency’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.

8. The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge regarding the request to furnish the agency with information relevant to the waiver.

721—10.7(17A) Additional information. Prior to issuing an order granting or denying a waiver, the agency may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the agency may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the secretary of state, or their designees, a committee of the agency, or a quorum of the agency.

721—10.8(17A) Notice. The agency shall acknowledge a petition upon receipt. The agency shall ensure that, within 30 days of the receipt of the petition, notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the agency may give notice to other persons. To accomplish this notice provision, the agency may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the agency attesting that notice has been provided.

721—10.9(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case and shall otherwise apply to agency proceedings for a waiver only when the agency so provides by rule or order or is required to do so by statute.

721—10.10(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

10.10(1) Agency discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the agency, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the agency based on the unique, individual circumstances set out in the petition.

10.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the agency should exercise its discretion to grant a waiver from an agency rule.

10.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

10.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the agency shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

10.10(5) Conditions. The agency may place any condition on a waiver that the agency finds desirable to protect the public health, safety, and welfare.

10.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the agency, a waiver may be renewed if the agency finds that grounds for a waiver continue to exist.

10.10(7) Time for ruling. The agency shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the agency shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

10.10(8) When deemed denied. Failure of the agency to grant or deny a petition within the required time period shall be deemed a denial of that petition by the agency. However, the agency shall remain responsible for issuing an order denying a waiver.

10.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

721—10.11(17A) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denyinga waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the agency is authorized or required to keep confidential. The agency may accordingly redact confidential information from petitions or orders prior to public inspection.

721—10.12(17A) Summary reports. Semiannually, the agency shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the agency’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

721—10.13(17A) Cancellation of a waiver. A waiver issued by the agency pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the agency issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

721—10.14(17A) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

721—10.15(17A) Defense. After the agency issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

721—10.16(17A) Judicial review. Judicial review of the agency’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 17A.9A.

[Filed Emergency 2/2/01, effective 2/2/01]

[Published 2/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 2/21/01.

Pursuant to the authority of Iowa Code section 505.8 and 507A.4, subsection 10, paragraph “b,” the Insurance Division hereby adopts Chapter 77, “Multiple Employer Welfare Arrangements,” Iowa Administrative Code.

The new chapter provides guidelines for certain multiple employer welfare arrangements allowed pursuant to Iowa Code section 507A.4, subsection 10, paragraph “b.” The rules provide the application process for a person to obtain and maintain a certificate of registration. The rules also outline the financial requirements for registration and policy or contract information. The rules contain guidelines on MEWA examinations, trade practices, insolvency and the suspension or revocation of a certificate.

Notice of Intended Action was published in IAB Volume XXIII, Number 6, page 515, on September 20, 2000, as ARC 0126B. A public hearing was held on October 11, 2000, at the office of the Insurance Division, Des Moines, Iowa. Written comments were also received by the Division. Based upon the comments received and additional information reviewed by the Division, the rules as originally noticed have been revised. Changes include the requirement that the Commissioner provide some form of finding prior to increasing the amount of a deposit for a MEWA. MEWAs will not be part of the guaranty fund. MEWA policies or contracts will be given one year to come into compliance from the effective date of these rules. The attachment point for projected losses will be 120 percent. MEWAs will not be required to institute legal action against members in the event the member fails to pay the member’s assessment. MEWAs will be allowed to offer prescription drug plans. The rules will not restate the requirement that MEWAs are subject to premium tax as stated in Iowa Code chapter 432. Other technical corrections have also been made.

These rules were approved by the Division on January 16, 2001.

These rules will become effective March 28, 2001.

These rules are intended to implement Iowa Code section 507A.4, subsection 10, paragraph “b.”

The following new chapter is adopted.

CHAPTER 77

MULTIPLE EMPLOYER WELFARE ARRANGEMENTS

191—77.1(507A) Certificate of registration. A person shall not establish or maintain a self–insured employee welfare benefit plan which is a multiple employer welfare arrangement (hereinafter MEWA) in this state unless the MEWA obtains and maintains a certificate of registration pursuant to this rule.

This rule is intended to implement Iowa Code section 507A.4.

77.2(1) A person wishing to obtain a certificate of registration pursuant to this chapter shall register and submit a plan of operation with the commissioner. This application and plan of operation shall include the following:

a. A business plan including a copy of all contracts or other instruments which the MEWA proposes to make with or sell to its members, a copy of its plan description and the printed matter to be used in the solicitation of members.

b. Copies of all articles, bylaws, agreements, or other documents or instruments describing the rights and obligations of employers, employees, and beneficiaries with respect to the MEWA.

c. A current list of all members of the employer group or association sponsoring the MEWA and a description of the relationship among the employers which serves as the basis for the formation of the association or employer group.

d. A description of the activities of the association or group of employers on behalf of its members other than the sponsorship of the MEWA.

e. Current financial statements of the MEWA which shall include at a minimum balance sheets, income statement, cash flow statement and detailed listing of assets.

f. An actuarial opinion prepared, signed, and dated by a person who is a member of the American Academy of Actuaries which states that appropriate loss and loss adjustment reserves have been established, that adequate premiums are being charged, and that the association is operating in accordance with sound actuarial principles and in conformance with this rule.

g. A statement from an authorized representative of the applicant which certifies all of the following:

(1) The MEWA is administered by an authorized insurer or an authorized third–party administrator.

(2) The MEWA has been in existence and has provided health benefits for at least five years prior to July 1, 1997.

(3) The MEWA was established by a trade, industry, or professional association of employers that has a constitution or bylaws, and has been organized and maintained in good faith for at least ten continuous years prior to July 1, 1997.

(4) The association or group of employers sponsoring the MEWA is engaged in substantial activity for its members other than sponsorship of an employer welfare benefit plan.

(5) The association is a nonprofit entity organized or authorized to do business under applicable Iowa law.

h. A certificate from the applicant that, to the best of its knowledge and belief, the MEWA is in compliance with all applicable provisions of the Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et seq.).

i. A copy of the indemnity agreement jointly and severally binding the MEWA and each member thereof to meet the covered obligations of each member in a form approved by the commissioner.

j. A copy of the most recent Form M–1 filed by the MEWA with the U.S. Department of Labor, Pension and Welfare Benefits Administration.

k. Any additional information requested by the commissioner.

77.2(2) The commissioner shall examine the application and supporting documents submitted by the applicant and shall have the power to conduct any investigation which the commissioner may deem necessary and to examine under oath any persons interested in or connected with the MEWA.

77.2(3) Within a reasonable time, the commissioner shall issue to the MEWA a certificate upon finding that the applicant MEWA has met all requirements, or the commissioner shall notify the applicant setting forth reasons for a denial upon finding that the applicant MEWA does not meet all the requirements. An unsuccessful applicant may file a new application for certificate of registration at any time.

77.2(4) Modifications to the plan of operation including but not limited to amendments to articles of incorporation and bylaws shall be submitted for prior approval to the commissioner.

This rule is intended to implement Iowa Code section 507A.4.

77.3(1) Surplus.

a. Unless otherwise provided below or pursuant to the discretion of the commissioner, each MEWA shall deposit with an organization or trustee meeting the requirements of 191—32.4(508) cash, securities or any combination of these that is acceptable in the amount set forth below. In addition to the requirements set forth below, the commissioner may increase the amount required to be deposited based on the commissioner’s written determination that such an increase is necessary to adequately secure any potential liability of the MEWA to its enrollees.

b. The surplus requirement for a MEWA shall be the greater of:

(1) $500,000; or

(2) An amount equal to 10 percent of the written premium as of the previous December 31.

77.3(2) Reserves and stop–loss coverage.

a. MEWAs shall have at all times aggregate excess stop–loss coverage providing the MEWA with coverage with an attachment point which is not greater than 120 percent of actuarially projected losses on a calendar–year basis.

b. MEWAs shall establish and maintain specific stop–loss coverage providing the MEWA with coverage with an attachment point which is not greater than 5 percent of annual expected claims for purposes of this subrule and shall provide for adjustments in the amount of that percentage as may be necessary to carry out the purposes of this subrule as determined by sound actuarial principles.

c. MEWAs shall establish and maintain appropriate loss and loss adjustment reserves determined by sound actuarial principles.

d. Premiums shall be set to fund at least 100 percent of the MEWA’s actuarially projected losses plus all other costs of the MEWA.

e. All coverage obtained pursuant to this subrule shall contain a provision allowing for at least 90 days’ notice to the commissioner upon cancellation or nonrenewal of the contract.

f. No contract or policy of per occurrence or aggregate excess insurance shall be recognized in considering the ability of an applicant to fulfill its financial obligations under this subrule, unless such contract or policy is issued by a company that is:

(1) Licensed to transact business in this state; or

(2) Authorized to do business in Iowa as an accredited reinsurer.

77.3(3) Filing requirements. The following reports shall be filed with the commissioner.

a. Annual report. A MEWA shall annually, on or before the first day of March, file with the commissioner of insurance a report which has been verified by at least two of its principal officers and which covers the preceding calendar year. The report shall be on the form designated by the commissioner. The report shall be completed using statutory accounting practices and shall include information required by the commissioner. The commissioner may request additional reports and information from a MEWA as deemed necessary.

b. Independent actuarial report. A MEWA shall annually, on or before the first day of March, file with the commissioner of insurance an independent actuarial opinion prepared in conformance with this rule. The commissioner may conduct an independent actuarial review of a MEWA in addition to the actuarial opinion required by this rule. The cost of any actuarial review shall be paid by the MEWA.

c. Certificate of compliance. A MEWA shall annually, on or before the first day of March, file a certificate of compliance, which shall be signed and dated by the appropriate official representing the MEWA and shall certify the following:

(1) That the plan meets the requirements of this rule and the applicable provisions of the Iowa statutes and regulations;

(2) That an independent actuarial opinion has been attached to the certificate which attests to the adequacy of reserves, rates, and the financial condition of the plan. The actuarial opinion must include, but is not limited to, a brief commentary about the adequacy of the reserves, rates, and other financial condition of the plan, a test of the prior year’s claim reserve, a brief description of how the reserves were calculated, and whether or not the plan is able to cover all reasonably anticipated expenses. The actuarial opinion shall be prepared, signed, and dated by a person who is a member of the American Academy of Actuaries;

(3) That a written complaint procedure has been implemented. The certificate shall also list the number of complaints filed by participants under the written complaint procedure, and the percentage of participants filing written complaints in the prior calendar year; and

(4) That the MEWA has contracted with an insurer authorized to do business in this state or with a third–party administrator who holds a current certificate of registration issued by the commissioner pursuant to Iowa Code section 510.21.

This rule is intended to implement Iowa Code section 507A.4.

191—77.4(507A) Policy or contract. All contracts issued by a MEWA shall comply with the following within 12 months of March 28, 2001:

77.4(1) Notice to purchasers. Every MEWA application for insurance and every policy and certificate issued by a MEWA shall contain in ten–point type on the front page the following notice prominently displayed:

77.4(2) MEWAs must offer on a guarantee–issue basis health benefits to all individuals who qualify as members or enrollees of the association.

77.4(3) MEWAs shall become members of the Iowa Individual Health Benefit Reinsurance Association established under Iowa Code section 513C.10.

77.4(4) MEWAs shall offer only medical, dental, optical, surgical, hospital, accident and sickness, prescription, life insurance, or disability benefits. A MEWA that offers life insurance benefits shall comply with all applicable provisions of the Iowa Code relating to life insurance and life insurance companies.

77.4(5) All contracts or policies issued by a MEWA shall conform to all the provisions of P.L. 104–191, the Health Insurance Portability and Accountability Act of 1996, including but not limited to guaranteed issue of all products, pre–existing condition limitations, renewability, and portability provisions as well as the issuance of prior coverage certificates to enrollees no longer eligible for plan coverage.

This rule is intended to implement Iowa Code section 507A.4.

77.5(1) The following disclosure shall be made to each employer member of the MEWA: The benefits and coverages described herein are provided through a self–insured trust fund established and funded in full or in part by a group of employers. It is not a licensed insurance company and it is not protected by a guaranty fund in the event of insolvency. Participating employers are jointly and severally liable for any losses incurred or as determined by the trust or as directed by the division.

77.5(2) If at any time the surplus of the trust is below that which is required by law, the fund shall file with the division a plan to assess all employers within 15 days of such determination to bring the MEWA into compliance with this rule. The assessment shall take place no later than 45 days after the filing of the plan.

77.5(3) In the event that any member fails to pay the member’s assessment, the other members shall be assessed within 60 days of the original assessment to bring the MEWA into compliance with this rule.

This rule is intended to implement Iowa Code section 507A.4.

191—77.6(507A) Filing fee. A filing fee of $100 shall accompany each application for registration as a multiple employer welfare MEWA.

This rule is intended to implement Iowa Code section 507A.4.

191—77.7(507A) Agreements and management contracts. Any agreement between the MEWA and any administrator, service company, or other entity shall be made available for review in the office of the commissioner upon request by the commissioner.

This rule is intended to implement Iowa Code section 507A.4.

77.8(1) Each MEWA shall be subject to examination by the commissioner in accordance with Iowa Code chapter 507. Chapter 507 shall govern all aspects of the examination.

77.8(2) The commissioner may make an examination of a MEWA as often as the commissioner considers it necessary, but not less frequently than once every five years. The expenses of the examination shall be assessed against the MEWA being examined in a manner in which expenses of examinations are assessed against an insurance company under Iowa Code chapter 507.

This rule is intended to implement Iowa Code section 507A.4.

191—77.9(507A) Trade practices. MEWAs are subject to applicable provisions of the unfair trade practices Act, Iowa Code chapter 507B.

This rule is intended to implement Iowa Code section 507A.4.

191—77.10(507A) Insolvency. The provisions of Iowa Code chapter 507C shall apply to MEWAs which shall be considered insurers for purposes of that chapter. However, a MEWA shall not be subject to Iowa Code chapter 508C.

This rule is intended to implement Iowa Code section 507A.4.

191—77.11(507A) Suspension or revocation of certificate. The commissioner may sanction a MEWA or suspend or revoke any certificate issued to a MEWA upon any of the following grounds:

1. Failure to comply with any provision of these rules or any applicable provision of the Iowa Code;

2. Failure to comply with any lawful order of the commissioner;

3. Failure to promptly pay lawful benefit claims;

4. Committing an unfair or deceptive act or practice;

5. Deterioration of financial condition adversely affecting the MEWA’s ability to pay claims;

6. A finding that the application or any necessary forms that have been filed with the division contain fraudulent information or omissions;

7. A finding that the MEWA or its administrator has misappropriated, converted, illegally withheld, or refused to pay over upon proper demand any moneys that belong to a member, a participant, or a person otherwise entitled thereto and that have been entrusted to the MEWA or its administrator in its fiduciary capacity;

8. Failure to remit the proper amount of premium tax in a timely manner, as required by Iowa Code section 432.1.

This rule is intended to implement Iowa Code section 507A.4.

[Filed 1/23/01, effective 3/28/01]

[Published 2/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 2/21/01.

Pursuant to the authority of Iowa Code section 147.76, the Board of Behavioral Science Examiners hereby amends Chapter 30, “Licensure of Marital and Family Therapists and Mental Health Counselors,” and Chapter 31, “Continuing Education and Disciplinary Process,” and adopts new Chapter 32, “Continuing Education for Marital and Family Therapists and Mental Health Counselors,” Iowa Administrative Code.

The amendments rescind the current continuing education rules; adopt a new chapter for continuing education; renumber the rule regarding grounds for discipline; and amend cross references to rules.

Notice of Intended Action was published in the Iowa Administrative Bulletin on October 18, 2000, as ARC 0220B. A public hearing was held on November 9, 2000, from 9 to 11 a.m. in the Professional Licensure Conference Room, Fifth Floor, Lucas State Office Building, Des Moines, Iowa. No public comments were received at the hearing. These amendments are identical to those published under Notice.

These amendments were adopted by the Board of Behavioral Science Examiners on January 19, 2001.

These amendments will become effective March 28, 2001.

These amendments are intended to implement Iowa Code section 147.76 and chapters 154D and 272C.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these amendments [30.1, 30.3(2), 30.4(2), 30.5(10), 30.8 to 30.10, 31.1 to 31.6, 31.8 to 31.10, Ch 32] is being omitted. These amendments are identical to those published under Notice as ARC 0220B, IAB 10/18/00.

[Filed 2/1/01, effective 3/28/01]
[Published 2/21/01]

[For replacement pages for IAC, see IAC Supplement 2/21/01.]