ARC 9059C

ARC 9059C

Proposing rulemaking related to waivers and providing an opportunity for public comment

A Regulatory Analysis for this rulemaking was published in the Iowa Administrative Bulletin on January 8, 2025. A public hearing was held on the following date(s):

●January 28, 2025

No one attended the public hearing. No public comments were received.

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 Committee and advise of specific needs.

ITEM 1.Rescind 289—Chapter 8 and adopt the following new chapter in lieu thereof:

CHAPTER 8

WAIVERS FROM ADMINISTRATIVE RULES

289—8.1(17A,ExecOrd11) Definitions. For purposes of this chapter:

“Committee” means the school budget review committee.

“Person” means an individual, school corporation, government or governmental subdivision or agency, nonpublic school, partnership or association, or any legal entity.

“Waiver” means action by the director that 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.

289—8.2(17A,ExecOrd11) Scope. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules in situations where 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 supersedes this chapter with respect to any waiver from that rule.

289—8.3(17A,ExecOrd11) Applicability. A waiver from a rule may be granted only if the committee has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. Statutory duties or requirements created by statute will not be waived.

289—8.4(17A,ExecOrd11) Criteria for waiver. In response to a petition completed pursuant to rule 289—4.6(17A,ExecOrd11), the committee may, in the committee’s sole discretion, issue an order waiving in whole or in part the requirements of a rule if the committee finds, based on clear and convincing evidence, all of the following:

8.4(1) The application of the rule to the person at issue would result in an undue hardship on the person for whom the waiver is requested;

8.4(2) The waiver from the requirement of the rule in the specific case would not prejudice the substantial legal rights of any person;

8.4(3) The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law;

8.4(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

8.4(5) The waiver from the requirements of the rule in the specific case would not have a negative impact on the student achievement of any person affected by the waiver.

289—8.5(17A,ExecOrd11) Filing of petition. All petitions for waiver must be submitted in writing to the School Budget Review Committee, Grimes State Office Building, 400 E. 14th Street, Des Moines, Iowa 50319-0146. 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.

289—8.6(17A,ExecOrd11) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

8.6(1) The name, address, and telephone number of the person for whom a waiver is being requested and the case number of any related contested case.

8.6(2) A description and citation of the specific rule from which a waiver is requested.

8.6(3) The specific waiver requested, including the precise scope and duration.

8.6(4) The relevant facts that the petitioner believes would justify a waiver under each of the five criteria described in rule 289—4.4(17A,ExecOrd11). 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.

8.6(5) A history of any prior contacts between the board, the committee, and the petitioner relating to the regulated activity, license, or grant affected by the proposed waiver, including a description of each affected item held by the requester, any notices of violation, any contested case hearings, or any investigative reports relating to the regulated activity, license, or grant within the last five years.

8.6(6) A detailed statement of the impact on student achievement for any person affected by the granting of a waiver.

8.6(7) Any information known to the requester regarding the board’s or committee’s treatment of similar cases.

8.6(8) The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.

8.6(9) The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

8.6(10) Signed releases of information authorizing persons with knowledge regarding the request to furnish the committee with information relevant to the waiver.

289—8.7(17A,ExecOrd11) Additional information. Prior to issuing an order granting or denying a waiver, the committee 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 committee may, on its own motion or at the petitioner’s request, schedule a telephonic or in-person meeting between the petitioner and the committee.

289—8.8(17A,ExecOrd11) Notice. The committee shall acknowledge a petition upon receipt. The committee 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 committee may give notice to other persons. To accomplish this notice provision, the committee 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 committee attesting that notice has been provided.

289—8.9(17A,ExecOrd11) Hearing procedures. The provisions of Iowa Code sections 17A.10 through 17A.18A regarding contested case hearings apply in three situations:

8.9(1) To any petition for a waiver filed within a contested case;

8.9(2) When provided by rule or order; or

8.9(3) When required to do so by statute.

289—8.10(17A,ExecOrd11) 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 the reasons upon which the action is based, and a description of the precise scope and operative period of the waiver if one is issued.

8.10(1) Discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the committee, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the committee based on the unique, individual circumstances set out in the petition.

8.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the committee should exercise the committee’s discretion to grant a waiver from a rule.

8.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

8.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the committee shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

8.10(5) Conditions. The committee may place any condition on a waiver that the committee finds desirable to protect the public health, safety, and welfare.

8.10(6) 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 committee, a waiver may be renewed if the committee finds that grounds for a waiver continue to exist.

8.10(7) Time for ruling. The committee 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 committee shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

8.10(8) When deemed denied. Failure of the committee to grant or deny a petition within the required time period shall be deemed a denial of that petition by the committee. However, the committee shall remain responsible for issuing an order denying a waiver.

8.10(9) 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.

289—8.11(17A,ExecOrd11) Public availability. All orders granting 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 waiver petitions are public records under Iowa Code chapter 22. The committee may accordingly redact confidential information from petitions or orders prior to public inspection.

289—8.12(17A,ExecOrd11) Cancellation. A waiver issued pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the committee issues an order finding any of the following:

8.12(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;

8.12(2) The alternative means for ensuring that public health, safety, and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

8.12(3) The subject of the waiver order has failed to comply with all conditions contained in the order.

289—8.13(17A,ExecOrd11) Violations. Violation of conditions in the waiver approval is the equivalent of violation of the particular rule for which the waiver is 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.

289—8.14(17A,ExecOrd11) Defense. After the committee 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.

289—8.15(17A,ExecOrd11) Judicial review. Judicial review of the committee’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 section 17A.9A.