§ 50-13-9.1. Variances or Waivers to Rules

1. The General Assembly finds and declares that the strict application of rules can lead to unreasonable, uneconomical, and unintended results in particular instances. The General Assembly further declares that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation.
2. As used in this Code section, the term:
   1. “Substantial hardship” means a significant, unique, and demonstrable economic, technological, legal, or other type of hardship to the person requesting a variance or waiver which impairs the ability of the person to continue to function in the regulated practice or business.
   2. “Variance” means a decision by an agency to grant a modification to all or part of the literal requirements of a rule to a person who is subject to the rule.
   3. “Waiver” means a decision by an agency not to apply all or part of a rule to a person who is subject to the rule.
3. Except as provided in subsection (h) of this Code section, an agency is authorized to grant a variance or waiver to a rule when a person subject to that rule demonstrates that the purpose of the underlying statute upon which the rule is based can be or has been achieved by other specific means which are agreeable to the person seeking the variance or waiver and that strict application of the rule would create a substantial hardship to such person. A register of all pending requests for variances and waivers and all approved variances and waivers shall be maintained by the department granting the waiver or variance and shall be updated upon each grant of waiver or variance and be made available, upon request, to members of the public. The register and each entry on the register shall be posted on the GeorgiaNet. Any member of the public, including interested parties, shall have the opportunity to submit written comments concerning proposed variances or waivers prior to the approval of a variance or waiver pursuant to this Code section.
4. Except as provided in subsection (h) of this Code section, a person who is subject to regulation by an agency rule may file a petition with that agency requesting a variance or waiver from the agency’s rule. In addition to any other requirements which may be imposed by the agency, each petition shall specify:
   1. The rule from which a variance or waiver is requested;
   2. The type of action requested;
   3. The specific facts of substantial hardship which would justify a variance or waiver for the petitioner, including the alternative standards which the person seeking the variance or waiver agrees to meet and a showing that such alternative standards will afford adequate protection for the public health, safety, and welfare; and
   4. The reason why the variance or waiver requested would serve the purpose of the underlying statute.
5. The agency subject to the provisions of subsections (c) and (d) of this Code section shall grant or deny a petition for variance or waiver in writing no earlier than 15 days after the posting of the petition on the register and no more than 60 days after the receipt of the petition. The agency’s decision to grant or deny the petition shall be in writing and shall contain a statement of the relevant facts and the reasons supporting the agency’s action.
6. The agency’s decision to deny a petition for variance or waiver shall be subject to judicial review in accordance with Code Section 50-13-19. The validity of any variance or waiver which is granted by an agency may be determined in an action for declaratory judgment in accordance with Code Section 50-13-10.
7. Nothing in this Code section shall authorize an agency to grant variances or waivers to any statutes or to the agency itself or any other agency. This Code section does not supersede and is cumulative of any other variance or waiver provisions in other statutes or rules.
8. This Code section shall not apply, and no variance or waiver shall be sought or authorized, when:
   1. Any agency rule or regulation has been adopted or promulgated in order to implement or promote a federally delegated program;
   2. Any rule or regulation is promulgated or adopted by the Department of Corrections concerning any institutional operations or inmate activities;
   3. Any rule or regulation is promulgated or adopted by the Department of Community Health;
   4. Any rule or regulation is promulgated or adopted by the Department of Agriculture;
   5. Any rules, regulations, standards, or procedures are adopted or promulgated by the Department of Natural Resources for the protection of the natural resources, environment, or vital areas of this state; or
   6. The granting of a waiver or variance would be harmful to the public health, safety, or welfare.
9. All waivers granted pursuant to this Code section shall be reported to the General Assembly within the first ten days of the next session. Such information shall contain the name, address, and telephone number of the person or corporation obtaining such waiver; the name, address, and telephone number of any representative or attorney who represented such person or corporation requesting the waiver; and a description of the waiver granted including a detail of the variance from any rule or regulation.

History. Code 1981, § 50-13-9.1 , enacted by Ga. L. 1997, p. 1521, § 2; Ga. L. 1998, p. 128, § 50; Ga. L. 1999, p. 296, § 22; Ga. L. 2015, p. 207, § 8/HB 71.

Law reviews.

For article commenting on the enactment of this Code section, see 14 Ga. St. U.L. Rev. 301 (1997).

For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

Code Commission notes.

Pursuant to Code Section 28-9-5, in 1999, “agency” was substituted for “department” and “agency’s” was substituted for “department’s” in subsections (d), (e), (f), and (g), and “State” was deleted preceding “Department of Community Health” in paragraph (h)(4) (now paragraph (h)(3)).