CHAPTER 34
WAIVERS
657—34.1(17A) Definition. For purposes of this chapter, a “waiver” means action by the board which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person or business on the basis of the particular circumstances of that person or business. For simplicity, the term “person” shall include both a person and a business.
[ARC 5348C, IAB 12/30/20, effective 2/3/21]
657—34.2(17A,124,126,147,155A,205,272C) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of waivers from rules adopted by the board in situations when 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.
[ARC 3347C, IAB 9/27/17, effective 11/1/17]
657—34.3(17A,124,126,147,155A,205,272C) Applicability of chapter. 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.
657—34.4(17A) Criteria for waiver. In response to a petition for waiver, 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 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.
[ARC 3347C, IAB 9/27/17, effective 11/1/17; ARC 5348C, IAB 12/30/20, effective 2/3/21]
657—34.5(17A,124,126,147,155A,205,272C) Filing of petition. A petition for waiver shall be submitted in writing to the board as follows:
	34.5(1) License, registration, or permit application. If the petition relates to a license, registration, or permit application, the petition shall be made in conjunction with the application for the license, registration, or permit in question.
	34.5(2) Contested cases. If the petition relates to a procedural rule governing a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case. A petition cannot be submitted to waive a substantive rule the respondent has been charged with violating in a pending contested case.
	34.5(3) Other. If the petition does not relate to a license, registration, or permit application or to a pending contested case, the petition may be submitted to the board’s executive director.
[ARC 3347C, IAB 9/27/17, effective 11/1/17]
657—34.6(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 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 657—34.4(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 that the petitioner believes will justify a waiver.
	5.	 Any information known to the petitioner regarding the board’s treatment of similar cases.
	6.	 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 the waiver.
	7.	 The name, address, and telephone number of any person who would be adversely affected by the granting of a petition for waiver.
	8.	 The name, address, and telephone number of any person with knowledge of facts relevant to the proposed waiver.
[ARC 3347C, IAB 9/27/17, effective 11/1/17]
657—34.7(17A) Additional information and providing notice. 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. The board may provide notice of a petition for waiver to any person who might be affected by the waiver. The board shall provide public notice of any petitions for waiver by including any petitions for waiver on the agenda of the board meeting during which the petition for waiver will be discussed.
[ARC 3347C, IAB 9/27/17, effective 11/1/17]
657—34.8(17A) Notice. Rescinded ARC 3347C, IAB 9/27/17, effective 11/1/17.
657—34.9(17A) Hearing procedures. Rescinded ARC 3347C, IAB 9/27/17, effective 11/1/17.
657—34.10(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.
	34.10(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.
	34.10(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.
	34.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.
	34.10(4) Conditions. The board may place any condition on a waiver that the board finds desirable to protect the public health, safety, and welfare.
	34.10(5) 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.
[ARC 3347C, IAB 9/27/17, effective 11/1/17]
657—34.11(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.
657—34.12(17A) Submission of waiver information. Within 60 days of granting or denying a waiver, the board shall make a submission on the Internet site established pursuant to Iowa Code section 17A.9A for the submission of waiver information. The submission shall identify 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 these rules. The submission shall include a general summary of the reasons justifying the board’s actions on waiver requests. If practicable, the submission shall detail the extent to which the granting of a waiver has established a precedent for additional waivers and the extent to which the granting of a waiver has affected the general applicability of the rule itself.
[ARC 5348C, IAB 12/30/20, effective 2/3/21]
657—34.13(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 for ensuring adequate protection of the public health, safety and welfare 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.
657—34.14(17A,124,126,147,155A,205,272C) 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.
657—34.15(17A,124,126,147,155A,205,272C) 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 specific facts indicated therein, in any proceeding in which the rule in question is sought to be invoked.
657—34.16(17A) Judicial review. Judicial review of a 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 sections 17A.9A, 17A.22, 22.2, 124.301, 126.17, 147.76, 155A.2, 205.11, 205.13, 272C.3, and 272C.4.
[Filed 2/7/01, Notice 10/18/00—published 3/7/01, effective 4/11/01]
[Filed ARC 3347C (Notice ARC 3134C, IAB 6/21/17), IAB 9/27/17, effective 11/1/17]
[Filed ARC 5348C (Notice ARC 5113C, IAB 7/29/20), IAB 12/30/20, effective 2/3/21]