CHAPTER 66
WAIVERS OR VARIANCES FROM ADMINISTRATIVE RULES
BY THE ELEVATOR SAFETY BOARD
875—66.1(17A,89A) Waivers of rules. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the board. 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.
875—66.2(17A,89A) Applicability of rule. The 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 duties imposed by statute.
875—66.3(17A,89A) Criteria for waiver or variance. In response to a petition completed pursuant to this chapter, the board may, in its sole discretion, issue an order waiving, in whole or in part, the requirements of a rule as applied to an identified person on the basis of the particular circumstances of that person if the board finds, based on clear and convincing evidence, all of the following:
	66.3(1) The application of the rule would impose an undue hardship on the person for whom the waiver is requested;
	66.3(2) The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;
	66.3(3) The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law;
	66.3(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; and
	66.3(5) There is a reasonable relationship between the age of the conveyance and the variance requested.
[ARC 8621B, IAB 3/24/10, effective 4/28/10]
875—66.4(17A,89A) Filing of petition. A petition for a waiver must be submitted in writing to the board as follows:
	66.4(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.
	66.4(2) Other. If the petition does not relate to a pending contested case, the petition may be submitted with a caption containing the name of the person for whom the waiver is requested.
	66.4(3) Filing petition. A petition is deemed filed when it is received in the board’s office. A petition should be sent to the Elevator Safety Board, Department of Workforce Development, Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319. The petitioner shall submit the petition and all related materials for consideration at least three weeks prior to a scheduled board meeting for board review of the petition at the meeting.
[ARC 8621B, IAB 3/24/10, effective 4/28/10]
875—66.5(17A,89A) Content of petition. The required form for a petition for waiver or variance is available on the board’s Web site at http://www.iowaworkforce.org/labor/elevatorboard.htm. A petition for waiver shall include the following information where applicable and known to the petitioner:
	66.5(1) The name, address, and telephone number of the entity or person for whom a waiver is being 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.
	66.5(2) A description of and citation to the specific rule from which a waiver is requested.
	66.5(3) The specific waiver requested, including the precise scope and duration.
	66.5(4) The relevant facts that the petitioner believes would justify a waiver under each of the five criteria described in rule 875—66.3(17A,89A). 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.
	66.5(5) A history of any prior contacts between the board, other departments or agencies of the state of Iowa, or political subdivisions and the petitioner relating to the conveyance affected by the proposed waiver.
	66.5(6) Information regarding the board’s action in similar cases.
	66.5(7) The name, address, and telephone number of any public agency or political subdivision which might be affected by the granting of a waiver.
	66.5(8) The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.
	66.5(9) The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.
	66.5(10) Signed releases of information authorizing persons with knowledge regarding the petition to furnish the board with information relevant to the petition for waiver.
	66.5(11) The state identification number of the conveyance.
	66.5(12) The age of the conveyance.
[ARC 8621B, IAB 3/24/10, effective 4/28/10]
875—66.6(17A,89A) 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 representative or representatives of the board related to the waiver request.
[ARC 8621B, IAB 3/24/10, effective 4/28/10]
875—66.7(17A,89A) Notice. The board shall acknowledge a petition within ten days of its receipt in the board office. The board shall ensure that notice of the pending petition has 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 the notice on all persons to whom notice is required by any provision of law and to provide a written statement to the board attesting that notice has been provided.
875—66.8(17A,89A) Board review procedures.
	66.8(1) Unless the board makes other arrangements, petitions for waiver will be reviewed and may be granted or denied at the next scheduled board meeting following receipt of the petition. However, if the petition is received less than three weeks prior to the scheduled board meeting, the petition will be reviewed at the subsequent meeting.
	66.8(2) The petitioner shall be provided a reasonable opportunity to make a presentation to the board. The length of time allotted for presentation shall be reasonable in light of the complexity and number of issues involved.
875—66.9(17A,89A) 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 order or is required to do so by statute.
875—66.10(17A,89A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person or legal entity 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.
	66.10(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. Each petition for a waiver shall be evaluated by the board based on the unique, individual circumstances set out in the petition.
	66.10(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 rule.
	66.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.
	66.10(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.
	66.10(5) Conditions. The board may place on a waiver any condition that the board finds desirable to protect the public health, safety, and welfare.
	66.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impractical. 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.
	66.10(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practical 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.
	66.10(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.
	66.10(9) Service of order. Within 14 days of the ruling, any order issued under this rule shall be transmitted or delivered 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.
	66.10(10) Posting of orders granting waivers. The order or a copy of the order granting a waiver shall be conspicuously and permanently posted in the machine room corresponding to the conveyance. The order or a copy of the order granting a waiver that relates to a conveyance that does not have a machine room shall be posted in a protective sleeve attached to the inside of the controller cabinet door corresponding to the conveyance.
875—66.11(17A,89A) 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. If petitions or orders contain information the board is authorized or required to keep confidential, the board may instruct the board office to accordingly redact confidential information from petitions or orders prior to public inspection.
875—66.12(17A,89A) Summary reports. Summary information 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 shall be included in semiannual reports prepared by the board. Copies of this report shall be provided to the administrative rules coordinator and the administrative rules review committee.
875—66.13(17A,89A) 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 review, the board issues an order finding any of the following:
	66.13(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
	66.13(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
	66.13(3) The subject of the waiver order has failed to comply with all conditions contained in the order.
875—66.14(17A,89A) 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 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.
875—66.15(17A,89A) Defense. After the board issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein only for the specific conveyance to which the order pertains in any proceeding in which the rule in question is sought to be invoked.
875—66.16(17A,89A) 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, 22, and 89A.
[Filed 6/16/06, Notice 5/10/06—published 7/5/06, effective 8/9/06]
[Filed 7/3/07, Notice 4/25/07—published 8/1/07, effective 9/5/07]
[Filed 1/25/08, Notice 11/7/07—published 2/13/08, effective 3/19/08]
[Filed ARC 8621B (Notice ARC 8322B, IAB 12/2/09), IAB 3/24/10, effective 4/28/10]