STATE AGENCY RULEMAKING IN MINNESOTA
Dave Orren, Minnesota Department of Health

Rules are law: rules have the force and effect of law.

Rules are enforceable executive branch policies used to administer Legislatively created programs and to fill any gaps left, explicitly or implicitly, by the Legislature; rules are extensions of the laws passed by the Legislature.

Rules fill in any necessary details in the laws.

In other words, the Legislature passes a law and, when necessary, the state agency uses rulemaking to set out clearly in writing how it will administer the law.

Agencies still had to implement the law. Agencies made decisions on how to apply or interpret the law. These decisions and interpretations had the force and effect of law.

The Legislature created rules and the rulemaking process in response to the public’s desire to know in advance how agencies would implement the law. Rules provide certainty, predictability, and consistency.

The rulemaking process makes agencies justify the rules. The rulemaking process also provides a forum for the public to comment on rules before they are adopted.

First note that many laws are self-implementing. No interpretation or details are needed.

C Because of its authority, the Legislature can identify and focus on important issues. However, the Legislature does not have the time or the staff or the experience or the scientific expertise to fill in all the details necessary to implement every law.

After passing laws that set major policy directions and goals, the Legislature will sometimes delegate the details to an agency because: (1) the agency has scientific expertise; (2) the agency has specialized knowledge or experience with a regulated industry; or, (3) the agency has the necessary resources to work with interested parties and adequately address all issues.

Political expediency. The Legislature sometimes passes a controversial political issue to an agency for resolution.

It takes from 3 to 18 months to develop rules and get them ready to propose for adoption.

After rules are formally proposed, it takes from 3 to 5 months to go through the formal rulemaking process - 3 months if there is no hearing, 5 months if there is a hearing.

The agency drafts the rules, with the assistance of the Revisor of Statutes.

The agency drafts a Statement of Need and Reasonableness (SONAR) that justifies the rules. Among other things, the SONAR contains a regulatory analysis, similar to a cost/benefit analysis. The SONAR must also describe how the agency considered performance-based standards in developing the rules.

Rulemaking in Minnesota is governed by Minnesota Statutes, chapter 14, known as the Minnesota Administrative Procedure Act (APA).

The process starts with a Request for Comments that notifies the public that the agency is planning to do rulemaking. The agency must wait at least 60 days after the Request before formally proposing rules.

When the rules and SONAR are completed, the agency publishes a Notice of Intent to Adopt Rules, which is followed by a 30-day public comment period, during which the public can request a hearing on the rules. Hearing requests from 25 people will trigger a hearing.

The rules and the rulemaking process are reviewed by an Administrative Law Judge before an agency can adopt the rules. About 20% of rules are adopted after a hearing. About 80% of rules are adopted without a hearing.

At the end of the rulemaking process, the Governor has authority to veto the rules.

Although most agencies were already doing this, the Legislature in 1995 added the requirement that agencies make reasonable efforts to notify persons who may be significantly affected by the proposed rules. This notice could be in newsletters, newspapers, or other publications, or through other means of communication.

Since 1998, agencies have been required to give notice of proposed rules to Legislators. Agencies must send a copy of the notice and a copy of the SONAR to all Legislative authors (main and supporting) of the rulemaking authority, if they are still in the Legislature, and to the chairs of policy and budget committees with jurisdiction over the subject matter of the proposed rules.

Agencies publish notice of proposed rules in the State Register.

Agencies mail notice of proposed rules to persons on the agencies’ rulemaking mailing lists.

For most rulemakings, agencies will form advisory committees with representatives of interested or affected persons.

 

+ There is a public process with a meaningful opportunity for public participation. The process helps ensure that the rules are good and, if there are major problems, that elected officials will find out and bring the problems back into the political arena.

+ There is more time to reflect and craft a well-reasoned policy.

+ The agency must demonstrate that the rules are needed and reasonable.

+ Rulemaking is one step removed from politics.

- Rulemaking is one step removed from elected officials.

- Rulemaking is time consuming and expensive.

There is broad public involvement in most rulemakings. It is more in the nature of representative involvement rather than participation by all affected individuals, but it is still very valuable in getting rules that incorporate concerns of all interested parties.

Regulatory reform can be put into at least two categories.

Some persons feel there are too many laws and rules, too much regulation. This is a big policy issue, appropriate for the Governor and Legislature to deal with.

In some cases, rules are unnecessarily burdensome in accomplishing their purposes. This is something agencies, the Governor, and the Legislature can work together on to achieve the intended benefits to society while minimizing the burdens on regulated parties.

There are some citizens and businesses that are subject to many requirements (state and federal laws and rules). It would reduce the burden of compliance if there were better coordination of these requirements and a central source of information.

The use of performance-based rules should be encouraged, where appropriate.

The state should encourage and act upon citizen suggestions for ways to improve rules and ways to reduce the burdens of complying with the rules.

Compliance with state policies does not always need to be by enforceable rules. Compliance can be achieved through education, financial incentives, technical assistance, and other means.

Obsolete rules are not a big problem. Slightly-out-of-date rules are a bigger problem. The Minnesota APA is complex and the rulemaking process is time consuming and expensive. Because of this, agencies are unlikely to update their rules until major revisions are needed. An expedited rulemaking process would make it easier and less costly for agencies to keep their rules up to date.

Enact a general variance law that would allow a state agency to give a variance to any rule in order to reduce the burden of the rule, while still accomplishing the purpose of the rule.

There is a cost to change things, which must be factored in when reforming rules.

 

Case-by-case adjudication. An agency can use case-by-case adjudication to implement the law administered by the agency.

Legislation. An agency can develop the details needed to implement legislation and then go back to the Legislature to have these details put into law.

Exemption from rulemaking. An agency can ask the Legislature for an alternative process to adopt rules that is quicker or easier than the regular rulemaking process.

A state agency must first have rulemaking authority in statute before it can adopt rules.

In recent years, the Legislature has made an effort to not give rulemaking authority when it is not necessary. When the Legislature knows exactly what it wants in the rules, for the most part, the Legislature puts the requirements in the legislation so there is no need for rules. When it is necessary or appropriate to give rulemaking authority, the Legislature has made an effort to put in as much guidance as possible about what it wants in the rules. The Senate and House Governmental Operations Committees have played a major role in this oversight.

Be on the lookout for bills that give authority to set standards, guidelines, or policies. If these are enforceable, they are rules by another name.

Annual Obsolete Rules Report. Section 14.05, subdivision 5.

Rulemaking Docket. Section 14.366.

Annual Advisory Committee Membership Publication. Section 14.101, subdivision 2.

 

Before the agency orders the publication of a rulemaking notice required by section 14.14, subdivision 1a, the agency must prepare, review, and make available for public review a statement of the need for and reasonableness of the rule. The statement of need and reasonableness must be prepared under rules adopted by the chief administrative law judge and must include the following to the extent the agency, through reasonable effort, can ascertain this information:

(1) a description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule;

(2) the probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;

(3) a determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule;

(4) a description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule;

(5) the probable costs of complying with the proposed rule; and

(6) an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.

The statement must describe how the agency, in developing the rules, considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.

The statement must also describe the agency’s efforts to provide additional notification to persons or classes of persons who may be affected by the proposed rule or must explain why these efforts were not made.

The agency must send a copy of the statement of need and reasonableness to the legislative reference library when it becomes available for public review.

History: 1984 c 640 s 7,32; 1Sp1985 c 10 s 38; 1990 c 422 s 4; 1995 c 233 art 2 s 13; 1997 c 98 s 6; 1998 c 303 s 4; 1999 c 250 art 3 s 1

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Updated: (j)