17A.9A - WAIVERS AND VARIANCES.
17A.9A WAIVERS AND VARIANCES.
1. Any person may petition an agency for a waiver or variance
from the requirements of a rule, pursuant to the requirements of this
section, if the agency has established by rule an application,
evaluation, and issuance procedure permitting waivers and variances.
An agency shall not grant a petition for waiver or a variance of a
rule unless the agency has jurisdiction over the rule and the waiver
or variance is consistent with any applicable statute, constitutional
provision, or other provision of law. In addition, this section does
not authorize an agency to waive or vary any requirement created or
duty imposed by statute.
2. Upon petition of a person, an agency may in its sole
discretion issue a waiver or variance from the requirements of a rule
if the agency finds, based on clear and convincing evidence, all of
the following:
a. The application of the rule would pose an undue hardship
on the person for whom the waiver or variance is requested.
b. The waiver or variance from the requirements of a rule in
the specific case would not prejudice the substantial legal rights of
any person.
c. The provisions of a rule subject to a petition for a
waiver or variance are not specifically mandated by statute or
another provision of law.
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 or variance is requested.
3. The burden of persuasion rests with the person who petitions
an agency for the waiver or variance of a rule. Each petition for a
waiver or variance shall be evaluated by the agency based on the
unique, individual circumstances set out in the petition. A waiver
or variance, if granted, shall be drafted by the agency so as to
provide the narrowest exception possible to the provisions of the
rule. The agency may place any condition on a waiver or a variance
that the agency finds desirable to protect the public health, safety,
and welfare. A waiver or variance shall not be permanent, unless the
petitioner can show that a temporary waiver or variance would be
impracticable. If a temporary waiver or variance is granted, there
is no automatic right to renewal. At the sole discretion of the
agency, a waiver or variance may be renewed if the agency finds all
of the factors set out in subsection 2 remain valid.
4. A grant or denial of a waiver or variance petition shall be
indexed, filed, and available for public inspection as provided in
section 17A.3. The administrative code editor and the administrative
rules coordinator shall devise a mechanism to identify rules for
which a petition for a waiver or variance has been granted or denied
and make this information available to the public.
5. Semiannually, each agency which permits the granting of
petitions for waivers or variances shall prepare a report of these
actions identifying the rules for which a waiver or variance has been
granted or denied, the number of times a waiver or variance was
granted or denied for each rule, a citation to the statutory
provisions implemented by these rules, and a general summary of the
reasons justifying the agencies' actions on the waiver or variance
request. To the extent practicable, this report shall detail the
extent to which the granting of a waiver or variance has established
a precedent for additional waivers or variances and the extent to
which the granting of a waiver or variance has affected the general
applicability of the rule itself. Copies of this report shall be
provided semiannually to the administrative rules coordinator and the
administrative rules review committee.
6. For purposes of this section, "a waiver or variance" 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. Section History: Recent Form
2000 Acts, ch 1176, §1
Referred to in § 105.18, 153.39, 261.5