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