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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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