661—5.15 (17A,100) Waivers, variances, and exceptions. This rule outlines generally applicable standards and a uniform process for the granting of individual waivers from rules of the state fire marshal in situations where no other more specific procedure 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 rule with respect to any waiver from that rule.
“Rules of the state fire marshal” means any rules adopted pursuant to rule-making authority assigned to the fire marshal, including but not limited to rules adopted pursuant to Iowa Code section 100.1, 100.35, 100B.10, 100C.7, 101.1, 101.23, or 101A.5, or to implement any provision of Iowa Code chapter 100, 100A, 100B, 100C, 101, or 101A, or any other reference in an Iowa statute to rule making by the fire marshal or establishment of fire safety standards or requirements by the fire marshal.
Note:  As of February 1, 2006, the following chapters are “rules of the state fire marshal”: 661—Chapters 5, 51, 53, 205, 231, 251, 259, and 291.
“Waiver” or “variance” means an action by the fire marshal which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”
	 5.15(1) Applicability of rule. The fire marshal may grant a waiver from a rule only if the fire marshal has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The fire marshal may not waive requirements created or duties imposed by statute.
	 5.15(2) Criteria for waiver or variance. In response to a petition completed pursuant to this rule, the fire marshal may, in the fire marshal’s sole discretion, issue an order waiving, in whole or in part, the requirements of a rule if the fire marshal finds, based on clear and convincing evidence, all of the following:
	  a.   	 The application of the rule would impose an undue hardship on the person for whom the waiver is requested;
	  b.   	 The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;
	  c.   	 The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and
	  d.   	 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.
	 5.15(3) Filing of petition. A petition for a waiver must be submitted in writing to the fire marshal as follows:
	  a.   	 License application. If the petition relates to a license application, the petition shall be made in accordance with the filing requirements for the license in question.
	  b.   	 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.
	  c.   	 Other. If the petition does not relate to a license application or a pending contested case, the petition shall be submitted using a caption indicating the name of the entity or person for whom the waiver is requested and the location of property to which the proposed waiver would apply, if any.
	  d.   	 File petition. A petition is deemed filed when it is received in the office of the state fire marshal. A petition should be sent or delivered to the Iowa State Fire Marshal, 401 S.W. 7th Street, Suite N, Des Moines, Iowa 50309.
	 5.15(4) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:
	  a.   	 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.
	  b.   	 A description of and citation to the specific rule from which a waiver is requested.
	  c.   	 The specific waiver requested, including the precise scope and duration.
	  d.   	 The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in subrule 5.15(2). 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.
	  e.   	 A history of any prior contacts between the department of public safety or any other agency of the state of Iowa or political subdivision and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license or certificate held by the requester, any formal charges filed, notices of violation, contested case hearings, or investigations relating to the regulated activity or license within the last five years.
	  f.   	 Any information known to the requester regarding actions of the fire marshal in similar cases.
	  g.   	 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 a waiver.
	  h.   	 The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.
	  i.   	 The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.
	  j.   	 Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.
	 5.15(5) Additional information. Prior to issuing an order granting or denying a waiver, the fire marshal 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 fire marshal may, on the fire marshal’s 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 fire marshal related to the waiver request.
	 5.15(6) Notice. The fire marshal shall acknowledge a petition upon receipt. The fire marshal shall ensure that, within 30 days of receipt of the petition, notice of the pending petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law, including the petitioner. In addition, the fire marshal may give notice to other persons. To accomplish this notice provision, the fire marshal may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law, and provide a written statement to the department attesting that notice has been provided.
	 5.15(7) 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 department proceedings for a waiver only when the department so provides by rule or order or is required to do so by statute.
	 5.15(8) 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.
	  a.   	 Fire marshal discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the fire marshal, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the fire marshal based on the unique, individual circumstances set out in the petition.
	  b.   	 Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the fire marshal should exercise discretion to grant a waiver of a rule.
	  c.   	 Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.
	  d.   	 Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the fire marshal shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.
	  e.   	 Conditions. The fire marshal may place on a waiver any condition that the fire marshal finds desirable to protect the public health, safety, and welfare.
	  f.   	 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 fire marshal, a waiver may be renewed if the fire marshal finds that grounds for a waiver continue to exist.
	  g.   	 Time for ruling. The fire marshal shall grant or deny a petition for a waiver as soon as practicable 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 fire marshal shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.
	  h.   	 When deemed denied. Failure of the fire marshal to grant or deny a petition within the required time period shall be deemed a denial of that petition by the fire marshal. However, the fire marshal shall remain responsible for issuing an order denying a waiver.
	  i.   	 Service of order. Within seven days of its issuance, any order issued under this rule shall be transmitted 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.
	 5.15(9) 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. Some petitions or orders may contain information the fire marshal is authorized or required to keep confidential. The department may accordingly redact confidential information from petitions or orders prior to public inspection.
	 5.15(10) Summary reports. The fire marshal shall provide information regarding requests for waivers received pursuant to this rule to the agency rules administrator for inclusion in summary reports of requests for waivers as provided for in 661—subrule 10.222(10).
	 5.15(11) Cancellation of a waiver. A waiver issued by the fire marshal pursuant to this rule may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the fire marshal issues an order finding any of the following:
	  a.   	 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
	  b.   	 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
	  c.   	 The subject of the waiver order has failed to comply with all conditions contained in the order.
	 5.15(12) 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.
	 5.15(13) Defense. After the fire marshal issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein only for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.
	 5.15(14) Appeals. Decisions of the fire marshal pursuant to this rule may be appealed to the commissioner of public safety. Provision for appeals of proposed decisions in contested case proceedings shall apply, as provided in rule 661—10.327(17A).
	 5.15(15) Judicial review. Judicial review of the department’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.
	 5.15(16) Sample petition for waiver. A petition for waiver filed in accordance with this chapter must meet the requirements specified herein and must either be submitted on a completed waiver request form provided by the fire marshal or substantially conform to the following form:

BEFORE THE IOWA DEPARTMENT OF PUBLIC SAFETY,
STATE FIRE MARSHAL DIVISION	
Petition by (name of petitioner) for the waiver/variance of (insert rule citation)
relating to (insert the subject matter).	}	PETITION FOR
WAIVER/VARIANCE	
	  1. 	 Provide the name, address, and telephone number of the petitioner (person asking for a waiver or variance). Also provide the name, address, and telephone number of the petitioner’s legal representative, if applicable, and a statement indicating the person to whom communications concerning the petition should be directed.
	  2. 	 Describe and cite the specific rule from which a waiver is requested.
	  3. 	 Describe the specific waiver requested, including the precise scope and time period for which the waiver will extend.
	  4. 	 Explain the relevant facts and reasons that the petitioner believes justify a waiver. Include in the answer all of the following:
	  ● 	 Why applying the rule would result in undue hardship to the petitioner;
	  ● 	 Why waiving the rule would not prejudice the substantial legal rights of any person;
	  ● 	 Whether the provisions of the rule subject to the waiver are specifically mandated by statute or another provision of law; and
	  ● 	 How 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.
5. Provide a history of any prior contacts between the department, other departments or agencies of the state of Iowa, or political subdivisions and petitioner relating to the regulated activity or license that would be affected by the waiver. Include a description of each affected license held by the petitioner, any formal charges filed, any notices of violation, any contested case hearings held, or any investigations related to the regulated activity, license, registration, certification, or permit.
	  6. 	 Provide information known to the petitioner regarding the fire marshal’s action in similar cases.
	  7. 	 Provide the name, address, and telephone number of any public agency or political subdivision that also regulates the activity in question or that might be affected by the granting of the petition.
	  8. 	 Provide the name, address, and telephone number of any person or entity that would be adversely affected by the granting of the waiver.
	  9. 	 Provide the name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.
	  10. 	 Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the fire marshal with information relevant to the waiver.
I hereby attest to the accuracy and truthfulness of the above information.

Petitioner’s signature	 	Date	
This rule is intended to implement Iowa Code section 17A.22.