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CHAPTER 213ENHANCE IOWA BOARD: UNIFORM WAIVER RULES261—213.1(17A, 15F) Applicability. This chapter outlines a uniform process for the granting of waivers from rules adopted by the board. The intent of this chapter is to allow persons to seek exceptions to the application of rules issued by the board. 213.1(1) Definitions.
"Board" "enhance Iowa board" means the enhance Iowa board established by Iowa Code section 15F.102.
"Person" means an individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any legal entity.
"Waiver" means an agency action 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.
213.1(2) Authority. a. A waiver from rules adopted by the board may be granted in accordance with this chapter if (1) the board has authority to promulgate the rule from which waiver is requested or has final decision-making authority over a contested case in which a waiver is requested; and (2) no statute or rule otherwise controls the grant of a waiver from the rule from which waiver is requested. b. No waiver may be granted from a requirement which is imposed by statute. Any waiver must be consistent with statute.Related ARC(s): 4513C, 5644C261—213.2(17A, 15F) Board discretion. The decision on whether the circumstances justify the granting of a waiver shall be made at the discretion of the board upon consideration of all relevant factors. 213.2(1) Criteria for waiver. The board may, in response to a completed petition, grant a waiver from a rule, in whole or in part, as applied to the circumstances of a specified situation if the board finds each of the following: a. Application of the rule to the person at issue would result in undue hardship to that person; and b. Waiver on the basis of the particular circumstances relative to that specified person would be consistent with the public interest; and c. Waiver in the specific case would not prejudice the substantial legal rights of any person; and d. Where applicable, 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.In determining whether waiver should be granted, the board shall consider whether the underlying public interest policies and legislative intent of the rules are substantially equivalent to full compliance with the rule. 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 licensees, grantees and constituents. 213.2(2) Special waiver rules not precluded. These uniform waiver rules shall not preclude the board from granting waivers in other contexts or on the basis of other standards if a statute or other board rule authorizes the board to do so, and the board deems it appropriate to do so.Related ARC(s): 5644C261—213.3(17A, 15F) Requester’s responsibilities in filing a waiver petition. 213.3(1) Petition. All petitions for waiver must be submitted in writing to the Enhance Iowa Board, 1963 Bell Avenue, Suite 200, Des Moines, Iowa 50315, Attention: Legal Counsel. Petitions for waiver may be delivered, mailed, or sent by email or other electronic means reasonably calculated to reach the intended recipient. If the petition relates to a pending contested case, a copy of the petition shall also be filed in the contested case proceeding. 213.3(2) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester (for an example of a petition for waiver, see Exhibit A at the end of this chapter): a. A description and citation of the specific rule from which a waiver is requested. b. The specific waiver requested, including the precise scope and operative period that the waiver will extend. c. The relevant facts that the petitioner believes would justify a waiver. d. 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 board and the petitioner relating to the regulated activity, license, grant, loan or other financial assistance affected by the proposed waiver, including a description of each affected license, grant, loan or other financial assistance held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity, license, grant or loan within the past five years. f. Any information known to the requester regarding the board’s treatment of 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 grant of a waiver. h. The name, address, and telephone number of any person or entity that would be adversely affected by the grant 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 board with information relevant to the waiver. 213.3(3) Burden of persuasion. When a petition is filed for a waiver from a board rule, the burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant the petitioner a waiver.Related ARC(s): 4513C, 5644C261—213.4(17A, 15F) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that notice of the pendency of the petition and a concise summary of its contents have 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. The board may require the petitioner to serve the notice and a concise summary of the contents of the petition on all persons to whom notice is required by any provision of law or who may be impacted by the requested waiver, and provide a written statement to the board attesting that notice has been provided and attach a copy of the notice and summary to the written statement.Related ARC(s): 5644C261—213.5(17A, 15F) Board responsibilities regarding petition for waiver. 213.5(1) 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 the board’s designee, a committee of the board, or a quorum of the board. 213.5(2) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply in three situations: (a) to any petition for a waiver of rule filed within a contested case; (b) when the board so provides by rule or order; or (c) when a statute so requires. 213.5(3) 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, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative period of the waiver if one is issued. 213.5(4) Conditions. The board may condition the grant of the waiver on such reasonable conditions as appropriate to achieve the objectives of the particular rule in question through alternative means. 213.5(5) Time for ruling. The board 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 board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued. 213.5(6) 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. 213.5(7) Service of order. Within seven days of its issuance, any order issued under this chapter 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.Related ARC(s): 5644C261—213.6(17A, 15F) 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 rule(s) 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 waived rules, and a general summary of the reasons justifying the authority’s actions on waiver requests. If practicable, the report shall detail the extent to which granting 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. Related ARC(s): 5644C261—213.7(17A, 15F) Voiding or cancellation. A waiver is void if the material facts upon which the request is based are not true or if material facts have been withheld. The board may at any time cancel a waiver upon appropriate notice if the board finds that the facts as stated in the request are not true, material facts have been withheld, the alternative means of compliance provided in the waiver have failed to achieve the objectives of the statute, or the requester has failed to comply with the conditions of the order.Related ARC(s): 5644C261—213.8(17A, 15F) Violations. Violation of conditions in the waiver approval is the equivalent of violation of the particular rule for which the waiver is granted and is subject to the same remedies or penalties.Related ARC(s): 5644C261—213.9(17A, 15F) Defense. After the board issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.Related ARC(s): 5644C261—213.10(17A, 15F) Appeals. Granting or denying a request for waiver is final agency action under Iowa Code chapter 17A. An appeal to district court shall be taken within 30 days of the issuance of the ruling in response to the request unless a contrary time is provided by rule or statute.Exhibit ASample Petition (Request) for WaiverBEFORE THE ENHANCE IOWA BOARDPetition by (insert name of petitioner)for the waiver of (insert rule citation)relating to (insert the subject matter).}PETITION FORWAIVERRequests for waiver from a board rule shall include the following information in the petition for waiver where applicable and known: a. Provide the petitioner’s (person asking for a waiver) name, address, and telephone number. b. Describe and cite the specific rule from which a waiver is requested. c. Describe the specific waiver requested; include the exact scope and time period that the waiver will extend. d. Explain the important facts that the petitioner believes justify a waiver. Include in your answer why (1) applying the rule will result in undue hardship to the petitioner; and (2) granting a waiver to the petitioner is consistent with the public interest; and (3) granting the waiver will not prejudice the substantial legal rights of any person; and (4) where applicable, 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. e. Provide history of prior contacts between the board and petitioner relating to the regulated activity, license, grant, loan or other financial assistance that would be affected by the waiver; include a description of each affected license, grant, loan or other financial assistance held by the petitioner, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity, license, grant or loan within the past five years. f. Provide information known to the petitioner regarding the board’s treatment of similar cases. g. Provide 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 grant of a waiver. h. Provide the name, address, and telephone number of any person or entity that would be adversely affected or disadvantaged by the grant of the waiver. i. Provide the name, address, and telephone number of any person with knowledge of the relevant or important facts relating to the requested waiver. j. Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.I hereby attest to the accuracy and truthfulness of the above information.Petitioner’s signatureDate Petitioner should note the following when requesting or petitioning for a waiver:- The petitioner has the burden of proving to the board, by clear and convincing evidence, the following: (a) application of the rule to the petitioner would result in undue hardship to the petitioner; and (b) waiver on the basis of the particular circumstances relative to the petitioner would be consistent with the public interest; and (c) waiver in the specific case would not prejudice the substantial legal rights of any person; and (d) where applicable, 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.
- The board may request additional information from or request an informal meeting with the petitioner prior to issuing a ruling granting or denying a request for waiver.
- All petitions for waiver must be submitted in writing to the Enhance Iowa Board, 1963 Bell Avenue, Suite 200, Des Moines, Iowa 50315, Attention: Legal Counsel. If the petition relates to a pending contested case, a copy of the petition shall also be filed in the contested case proceeding.