ARC 8320C

ARC 8320C

Proposing rulemaking related to waivers from administrative rules by the elevator safety board and providing an opportunity for public comment

A Regulatory Analysis for this rulemaking was published in the Iowa Administrative Bulletin on September 4, 2024. A public hearing was held on the following date(s):

●October 1, 2024

Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Division and advise of specific needs.

ITEM 1.Rescind 875—Chapter 66 and adopt the following new chapter in lieu thereof:

CHAPTER 66

WAIVERS FROM ADMINISTRATIVE RULES BY THE ELEVATOR SAFETY BOARD

875—66.1(17A,89A) Criteria for waiver. 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:

66.1(1) The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

66.1(2) The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

66.1(3) The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law;

66.1(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

66.1(5) There is a reasonable relationship between the age of the conveyance and the waiver requested.

875—66.2(17A,89A) Filing of petition. A petition for a waiver must be submitted in writing to the board as follows.

66.2(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.

66.2(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.

66.2(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 Inspections, Appeals, and Licensing, 6200 Park Avenue, Suite 100, Des Moines, Iowa 50321. 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.

875—66.3(17A,89A) Content of petition. The required form for a petition for waiver is available on the department’s website. A petition for waiver includes the following information where applicable and known to the petitioner:

66.3(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.

66.3(2) A description of and citation to the specific rule from which a waiver is requested.

66.3(3) The specific waiver requested, including the precise scope and duration.

66.3(4) The relevant facts that the petitioner believes would justify a waiver under each of the five criteria described in rule 875—66.1(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.

66.3(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.

66.3(6) The name, address, and telephone number of any public agency or political subdivision that might be affected by the granting of a waiver.

66.3(7) The name, address, and telephone number of any entity or person who would be adversely affected by the granting of a petition.

66.3(8) The state identification number of the conveyance.

66.3(9) The age of the conveyance.

875—66.4(17A,89A) Waiver form. Waiver applicants shall use the board’s petition for waiver form. The board may request additional information from the petitioner.

875—66.5(17A,89A) Notice. The board shall acknowledge a petition within ten days of its receipt. 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—66.6(17A,89A) Board review procedures.

66.6(1) Petitions for waiver will normally be heard at the next scheduled board meeting following timely submission of the petition.

66.6(2) The petitioner will be provided a reasonable opportunity to make a presentation to the board.

875—66.7(17A,89A) Hearing procedures. The provisions of Iowa Code sections 17A.10 through 17A.18A regarding contested case hearings apply to any petition for a waiver filed within a contested case and 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—66.8(17A,89A) Ruling. An order granting or denying a waiver 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.

66.8(1) 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.

66.8(2) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

66.8(3) 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.

66.8(4) Conditions. The board may place on a waiver any condition that the board finds desirable to protect the public health, safety, and welfare.

66.8(5) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. A waiver may be renewed if the board finds that grounds for a waiver continue to exist.

66.8(6) Time for ruling. The board will grant or deny a petition for a waiver as soon as practical but, in any event, 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.

66.8(7) 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.

66.8(8) 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.

66.8(9) 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—66.9(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.

875—66.10(17A,89A) Summary reports. Information about all orders granting or denying a waiver petition shall be submitted by the board staff to the legislative services agency within 60 days of granting or denying the petition.

875—66.11(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:

66.11(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

66.11(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

66.11(3) The subject of the waiver order has failed to comply with all conditions contained in the order.

875—66.12(17A,89A) Violations. Violation of a condition in a waiver order will 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—66.13(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.