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Senate File 2116

Partial Bill History

Bill Text

PAG LIN
  1  1    Section 1.  NEW SECTION.  17A.9A  WAIVERS AND VARIANCES.
  1  2    1.  Any person may petition an agency for a waiver or
  1  3 variance from the requirements of a rule, pursuant to the
  1  4 requirements of this section, if the agency has established by
  1  5 rule, an application, evaluation, and issuance procedure
  1  6 permitting waivers and variances.  An agency shall not grant a
  1  7 petition for waiver or a variance of a rule unless a statute
  1  8 or other provision of law has delegated authority to the
  1  9 agency sufficient to justify that action and the waiver or
  1 10 variance is consistent with the statute or other provision of
  1 11 law.  In addition, this section does not authorize an agency
  1 12 to waive or vary any requirement created or duty imposed by
  1 13 statute.
  1 14    2.  Upon petition of a person, an agency may in its sole
  1 15 discretion issue a waiver or variance from the requirements of
  1 16 a rule if the agency finds, based on clear and convincing
  1 17 evidence, all of the following:
  1 18    a.  The application of the rule to the petitioner would
  1 19 pose an undue hardship on the person for whom the waiver or
  1 20 variance is requested.
  1 21    b.  The waiver or variance from the requirements of a rule
  1 22 in the specific case would not prejudice the substantial legal
  1 23 rights of any person.
  1 24    c.  The provisions of a rule subject to a petition for a
  1 25 waiver or variance are not specifically mandated by statute or
  1 26 another provision of law.
  1 27    d.  Substantially equal protection of public health,
  1 28 safety, and welfare will be afforded by a means other than
  1 29 that prescribed in the particular rule for which the waiver or
  1 30 variance is requested.
  1 31    3.  The burden of persuasion rests with the person who
  1 32 petitions an agency for the waiver or variance of a rule.
  1 33 Each petition for a waiver or variance shall be evaluated by
  1 34 the agency based on the unique, individual circumstances set
  1 35 out in the petition.  A waiver or variance, if granted, shall
  2  1 be drafted by the agency so as to provide the narrowest
  2  2 exception possible to the provisions of the rule.  The agency
  2  3 may place any condition on a waiver or a variance that the
  2  4 agency finds desirable to protect the public health, safety,
  2  5 and welfare.  A waiver or variance shall not be permanent,
  2  6 unless the petitioner can show that a temporary waiver or
  2  7 variance would be impracticable.  If a temporary waiver or
  2  8 variance is granted, there is no automatic right to renewal.
  2  9 At the sole discretion of the agency, a waiver or variance may
  2 10 be renewed if the agency finds all of the factors set out in
  2 11 subsection 2 remain valid.
  2 12    4.  A grant or denial of a waiver or variance petition
  2 13 shall be indexed, filed, and available for public inspection
  2 14 as provided in section 17A.3.  The administrative code editor
  2 15 and the administrative rules coordinator shall devise a
  2 16 mechanism to identify rules for which a petition for a waiver
  2 17 or variance has been granted or denied and make this
  2 18 information available to the public.
  2 19    5.  Semiannually, each agency which permits the granting of
  2 20 petitions for waivers or variances shall prepare a report of
  2 21 these actions identifying the rules for which a waiver or
  2 22 variance has been granted or denied, the number of times a
  2 23 waiver or variance was granted or denied for each rule, a
  2 24 citation to the statutory provisions implemented by these
  2 25 rules, and a general summary of the reasons justifying the
  2 26 agencies' actions on the waiver or variance request.  To the
  2 27 extent practicable, this report shall detail the extent to
  2 28 which the granting of a waiver or variance has established a
  2 29 precedent for additional waivers or variances and the extent
  2 30 to which the granting of a waiver or variance has affected the
  2 31 general applicability of the rule itself.  Copies of this
  2 32 report shall be provided semiannually to the administrative
  2 33 rules coordinator and the administrative rules review
  2 34 committee.
  2 35    6.  For purposes of this section, "a waiver or variance"
  3  1 means an agency action which suspends in whole or in part the
  3  2 requirements or provisions of a rule as applied to an
  3  3 identified person on the basis of the particular circumstances
  3  4 of that person.  
  3  5                           EXPLANATION
  3  6    This bill permits an agency, upon petition of a person, to
  3  7 grant a waiver or variance from a rule of that agency at the
  3  8 discretion of the agency.  The bill provides that a petition
  3  9 for a waiver or variance shall be granted only if the agency
  3 10 establishes a procedure permitting the issuance of waivers or
  3 11 variances and the law otherwise permits the granting of a
  3 12 petition for waiver or variance.  The bill provides that the
  3 13 burden of persuasion is on the person seeking a waiver or
  3 14 variance and provides that a petition for waiver or variance
  3 15 can be granted only if the agency finds, by clear and
  3 16 convincing evidence, that the rule would constitute an undue
  3 17 hardship, that the waiver would not prejudice others, that the
  3 18 specific rule provision is not mandated by statute, and that
  3 19 substantially equal protection of health and safety can be
  3 20 afforded by means other than the rule.  The bill provides that
  3 21 waivers or variances should be narrowly drawn and should, if
  3 22 possible, be temporary in nature.  The bill also requires that
  3 23 the administrative code editor and administrative rules
  3 24 coordinator establish a means to identify rules for which a
  3 25 petition for a waiver or variance has been granted or denied.
  3 26 In addition, each agency shall, on a semiannual basis, prepare
  3 27 a report concerning its actions on waivers and variances.  
  3 28 LSB 6619SV 78
  3 29 ec/cf/24
     

Text: SF02115                           Text: SF02117
Text: SF02100 - SF02199                 Text: SF Index
Bills and Amendments: General Index     Bill History: General Index

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