Chapter 10 - Exempt Rules Under 14.386
In General. This chapter deals with rules that are adopted under the exempt rulemaking
procedures found in Minnesota Statutes, section 14.386. Agencies may adopt rules using exempt
procedures if a law authorizing the rules specifically exempts them from Chapter 14 or from the
definition of a rule.
10.1 Determine which procedural requirements apply to your exempt rules. There are three
types of exempt rules:
10.1.1 Exempt under 14.386. The rulemaking authority for some rules exempts those
rules from having to go through the usual rulemaking procedures of chapter 14. Most rules
that are specifically exempt from the usual rulemaking procedures must still follow some
procedures before the rules can take effect. Those procedures are contained in Minnesota
Statutes, section 14.386. The first part of this chapter describes the process for adopting
exempt rules under 14.386.
10.1.2 Completely exempt under 14.386. Some rules are not only exempt from the usual
rulemaking procedures of chapter 14, but are also specifically exempt from the procedures
of section 14.386 (Completely Exempt). If this describes your rules, you may adopt your
rules with only the requirements set out in your rulemaking authority. The second part of
this chapter describes the process for adopting Completely Exempt rules.
10.1.3 Exempt for good cause under 14.388. Some rules are excepted from the normal
rulemaking procedures for one or more “good cause” reasons (Good Cause Exemptions)
stated in Minnesota Statutes, section 14.388. Chapter 11 of this Manual describes the
process for adopting Good Cause Exempt rules under 14.388.
10.2 Draft your rules and obtain approval from your chain of command. Draft your rules as
you would any rules. Remember to have your chain of command review and approve your rules
before you go on to the next step. This is important for obvious reasons but also because you are
required to submit any 14.386 rules to the Governor’s Office before OAH review, which requires
the signature of your Director or Commissioner. Note that as part of the review-and-approval
process, some agencies also choose to have their legal counsel review their rules.
Adopting 14.386 Rules
10.3 Preparing your 14.386 rules for adoption.
10.3.1 Notify Governor’s Office. You must notify the Governor’s Office of your exempt
rulemaking per the Governor’s policy memo, GOV-PLCY. By this time you should have
had your rules reviewed and approved by your chain of command. Your next step is to
submit the Preliminary Proposal Form GOV-PRLM when you are ready to move the
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exempt rules forward just as you would when the agency has developed a rule idea. If the
Director or Commissioner has reviewed and approved as shown by properly signing the
form, the agency does not need to wait for Governor’s Office approval. If you have
uncertainty about moving forward without the Governor’s approval, you should discuss it
with the Governor’s Legislative Coordinator, but the Governor’s Office’s current practice
is not to issue formal approval. At least one agency awaited the expected approval
unnecessarily. Thus, the Editor’s advice is to move forward unless told otherwise.
10.3.2 Get approved draft from the Revisor. You must submit your 14.386 rules to the
Revisor for approval as to form before you can adopt them. You should tell the Revisor that
these rules are exempt rules under section 14.386. This will ensure that the title to the rules
will include the exempt designation. You will need a Revisor’s signed copy for your OAH
submission.
10.3.3 Draft Proposed Order Adopting Rules. As soon as the Revisor approves your
rules, you will be able to draft your proposed Order Adopting Rules. See ORD-ADPT in
the appendix. The requirements for your Order Adopting Rules can be found in Minnesota
Rules, part 1400.2400. When drafting your proposed Order, OAH rules, part 1400.2400,
requires that you to include a citation to the rules’ statutory exemption, any argument (if
necessary) to support this exemption, plus any other information required by law.
You do not need to provide any argument for the need and reasonableness of these rules.
The Editor, however, recommends including some sort of argument for your rules to keep a
record of how and why these rules were developed. Such a record is particularly helpful if
your rules are later challenged. You should consider the nature of your rules when deciding
whether or not including an explanation is advantageous.
10.4 Submitting your 14.386 rules to OAH. Submit the following documents to OAH: the rules
as approved by the Revisor; and a proposed Order Adopting Rules. Note: OAH does not require
that the proposed order be signed. Obviously, the agency needs to document proper approval for
the Official Rulemaking Record. [Note: OAH does not accept electronic filings so you must
submit the file documents in paper.]
[New in 2015] Rulemaking Manual Editor’s Note: In 2015, the Legislature amended Minnesota
Statutes, section 14.05 by adding subdivision 7, which permits agencies to file rule-related
documents electronically. This change is effective on January 1, 2016. See Minnesota Laws 2015,
Chapter 63, sections 1 and 6. As of publication, no specific information is yet available about
e-filing. Watch for Interagency Rules Committee announcements and check both the OAH and the
Rulemaking Manual websites for additional information about e-filing.
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10.4.1 Letter to OAH submitting your exempt rules for approval. A form for the cover
letter to the OAH submitting your exempt rules for approval is in the appendix as
EXEMPT-LTR. This letter is designed to serve as a checklist for meeting the
requirements stated in OAH Rules, part 1400.2400.
10.4.2 OAH standards of review. As with any other rules, you must make certain that the
proposed rules comply with certain standards of legality before you submit them for OAH.
OAH Rules, part 1400.2400, subpart 3, requires that exempt rules meet these standards for
them to be approved. These standards require that the agency adopt their rules in
compliance with exempt rules procedural requirements; that the rules comply with and do
not exceed, conflict with, or grant the agency more discretion than allowed by law; that the
rules are not unconstitutional or illegal; that the rules do not improperly delegate the
agency’s powers to another; and that they fit the statutory definition of a “‘rule”.
10.5 ALJ Review. The ALJ has 14 days to review and approve or disapprove your rules. If the
ALJ approves the rules, the OAH will send you a copy of the judge’s decision and return your
filing to you. OAH will also file four copies of the rule with the Revisor’s certificate in the Office
of the Secretary of State. [If your agency prefers, however, you may instead pick up all four
stamped copies from the Secretary of State and deliver the rules to the Governor and the other
offices yourself.]
10.6 Adopting your approved exempt rules. If the ALJ approves your rules, you are now ready
to officially adopt the rules. To do so, there are still two final requirements:
10.6.1 Finalize the Order Adopting Rules and have it signed. You are now ready to
finalize the Order Adopting Rules. Unless the ALJ has recommended any specific changes
to your proposed Order Adopting Rules, use the proposed Order. The only difference
between the proposed order and your final Order Adopting Rules should be omitting the
word “Proposed” from the title. Have this document signed by your Commissioner or
Director.
10.6.2 Determine whether to notify the Governor’s Office further. If you have
made changes to the proposed rules or controversies have arisen, you might wish to
communicate with the Governor’s Office. Per the Governor’s Office 9/17/15 rules
review policy, GOV-PLCY:
“When the agency is adopting exempt rules or good cause exempt rules: the
agency may exercise its judgment about whether to submit a completed Final Rule
Form [GOV-FNL] to the Office of the Governor. The nature of exempt . . . rules is
that there are no policy considerations to make or controversies to address, so
waiting for approval is not necessary. If either were to develop, however, the
agency should notify the Office. Submitting a completed Final Rule Form is
usually a wise precaution against error. When in doubt, the agency may contact the
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Legislative Coordinator. Agencies should note that exempt rules adopted under
Minnesota Statutes, section 14.386 are subject to veto. [emphasis supplied]”
10.6.3 Publish in the State Register. Before your rules can take effect, you must publish
them in the State Register. Minnesota Statutes, section 14.386, paragraph (a), clause (4).
The rules will take effect on the date of publication. [Revised in 2014] The State Register
publishes on Mondays. The State Register must receive a publication order for your rules
by 12:00 noon on the Thursday, 11 days before the publication date (except when the
deadline is changed by a holiday). [The State Register will, however, publish short
rules (10 pages) in the coming Monday’s issue. Check with the editor to indicate that
this is your intention and that this is okay. Deadline for these short rules is Tuesday
at 12:00 noon.] When you deliver your documents to the State Register, you will also need
to inform the editor of the Revisor’s draft number from the rules as filed by OAH with the
Secretary of State, which will be “SR” plus four digits. He will request the Revisor’s Office
to transmit the adopted rules directly to the State Register electronically.
10.6.4 Governor Veto. After the Governor receives a copy of the adopted rules, the
Governor may veto the rules. To veto the rules, the Governor must submit a notice of the
veto to the State Register within 14 days of receiving the rules from the Secretary of State.
A veto is effective when the veto notice is submitted to the State Register. Minnesota
Statutes, section 14.05, subdivision 6.
10.7 Procedure for resubmitting disapproved rules. If the ALJ does not approve your rules, you
have the options of either resubmitting the rules with any necessary changes, challenging the
disapproval or neither. If you decide to do neither, please note that your rules cannot take effect
unless they have been approved.
10.7.1 Resubmitting with corrections. If the ALJ has disapproved your rules and the
defects noted are ones that can be corrected, and your agency agrees to the corrections, you
can resubmit the corrected rules to the OAH for a subsequent review. You will need a
Revisor’s certified copy for doing this. The ALJ has 5 working days to review and approve
or disapprove.
10.7.2 Procedure for appealing the ALJ decision. If the ALJ has disapproved your rules
and the defects noted cannot be corrected or your agency is unwilling to make the
corrections or changes, then you may ask the Chief ALJ to review the disapproved rules.
To take advantage of this appeal avenue, the agency must make the request within five
working days of receiving the ALJ’s disapproval. The Chief ALJ then has 14 days to make
a decision using the same standards of review as the ALJ.
10.7.3 Adopt the rules. As soon as the ALJ or Chief ALJ has approved your rules, go back
to section 10.6 of this chapter for the remaining procedures.
10.8 Notice to affected parties. Although there is no formal requirement to notify affected parties
when exempt rules are proposed or adopted, depending upon the type of rules in question, it might
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be a good idea to give direct notice to parties anyway to ensure compliance by these affected
parties. This is discretionary, as your publication of 14.386 rules in the State Register meets
normal due process concerns. As always, key is notice to the public. In some cases, substantially
affected parties already know about the change; added notice may stir up controversies already put
to rest.
10.9 Expiration of exempt rules. Rules adopted in section 14.386 will expire two years from the
date the rules are published in the State Register. Once expired, the law authorizing exemption will
also expire so you will not be able to use the exempt process again.
10.10 Official Rulemaking Record. After 14.386 rules are adopted, you must keep an Official
Rulemaking Record. The requirements for the Official Rulemaking Record are contained in
Minnesota Statutes, section 14.365, clauses (1) to (11). A form for the Official Rulemaking
Record is in the appendix as RECORD. Note that paragraphs (1) to (11) of this form are keyed to
clauses (1) to (11) of section 14.365, so that this form can serve as a checklist to meet the
requirements of section 14.365. In addition to the required documents, it is good practice to keep
documents that show any justification for your rules, the date the rules took effect, evidence of
official approval by your agency, and any information on how you considered giving affected
parties notice.
Adopting Completely Exempt Rules under 14.386
10.11 Preparing Completely Exempt rules (exempted from Chapter 14 and also specifically
exempted from section 14.386). Generally speaking, agencies may adopt these types of rules
without the procedural requirements for the other two types of exemptions, because these types of
rules have been exempted from both the regular rulemaking procedures and the exempt procedure
in section 14.386. In other words, this complete exemption means that you are not required to have
your drafted rules certified as to form, submitted to the OAH, or have the rules published. This
complete exemption also means that you do not have to submit your exempt rules to the Governor
for a possible veto since the rules are not subject to any provision of the APA, and therefore are not
subject to section 14.05, subdivision 6.
10.11.1 Practical considerations. Governor’s Office. Chapter 14 does not require that
you submit completely exempt rules to the Governor’s Office. But those of you in the
executive branch who serve the Governor should note, however, that the Governor’s policy
memo, GOV-PLCY, asks agencies to submit a preliminary proposal form for exempt rules.
This can be found in the appendix as GOV-PRLM. After you notify the Governor’s office,
you may go forward without waiting for Governor’s Office approval.
Specific statutory guidelines. Make certain you follow any specific guidelines presented
in statutory authority. For instance, the law authorizing complete exemption might also
state that the rules, once drafted, must be published in the State Register as public notice
that the rules exist.
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Notice Requirements. Although you have a complete exemption from rulemaking
requirements found in the Minnesota APA, you should still provide some form of notice to
affected parties to avoid a due process challenge. This notice should be appropriate to the
rules you seek to enforce and does not require comment.
Legal review. If the law authorizing this exemption does not give you further guidelines,
you might want to do a legal review of your rules to ensure that the rules will survive
potential legal challenges. Some agencies might choose to do the review in house, while
other agencies might choose to consult with their AG.
Order Adopting Rules. Creating a record for this rulemaking is a good idea. An Order
Adopting Rules, even though not required, serves as a record of both the effective date and
the statutory authorization for these rules. A Commissioner’s signature also gives proof
that these rules were authorized. See ORD-ADPT in the appendix. Note: because these are
completely exempt rules, you will not need to include in your Order any statement of need
and reasonableness.
Official Rulemaking Record. While not required for completely exempt rules, your
agency should maintain an official record to document: how the rules have changed, who
worked on the rules, dates for when the rules went into effect, evidence that the rules were
adopted by the agency official authorized to adopt rules, and information on how affected
parties were notified of the rules. Since you will not have to prepare a Statement of Need
and Reasonableness, you might want to include a justification in an Order Adopting Rules,
as discussed previously, or provide memos or correspondence to show your reasoning for
the rules.
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Checklist for Chapter 10 – Exempt Rules Under 14.386
[New in 2010]
Date Done
Item
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10 This entire chapter reviewed before proceeding.
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10.1 Determine which procedural requirements apply to your exempt rules.
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10.2 Draft your rules and obtain approval from your chain of command.
- Tell the Revisor that these rules are exempt under §14.386.
- Seeking advice from interested parties is discretionary.
- If agency is a multi-member board, BOARD-ADPT is used.
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10.3 Preparing your 14.386 rules for adoption.
- Notify Governor’s Office.
- Preliminary Proposal Form [GOV-PRLM] used and signed.
- Preliminary Proposal Form, copy of the draft rules, and any supporting
argument sent to Gov’s office (approval NOT needed to proceed).
- Get approved draft from the Revisor.
- Revisor advised as to whether changes are needed.
- Request preparation of rules approved as to form.
- Draft Proposed Order Adopting Rules.
- Must include citation to the statutory exemption.
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10.4 Submitting your 14.386 rules to OAH.
- Submission package is outlined in OAH Rules, part 1400.2400, subpart 2
- EXEMPT-LETTER, which serves as a checklist for meeting the OAH rules
requirements used
- ALJ has 14 days to review and approve or disapprove the rules ALJ issues
decision.
- If approved, OAH orders final rule from Revisor; files the rules with the
Secretary of State; and returns the document package to agency
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10.6 Adopting your approved exempt rules.
- Finalize the Order Adopting Rules and have it signed.
- ORD-ADPT used.
- Determine whether to notify the Governor’s Office further.
- Publish the adopted rules and Order Adopting Rules in the State Register.
- Consider giving direct notice to interested parties (discretionary).
* Rules are effective upon publication
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10.7 Procedure for resubmitting disapproved rules.
- Resubmit the rules with any necessary changes; or
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-
Challenge the disapproval; or
Neither. (If you decide to do neither, rules cannot take effect unless they have
been approved.)
Adopt the rules (after the ALJ or Chief ALJ has approved rules).
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10.8 Notice to affected parties.
- Notice (Not required for to this process) might be wise
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10.9 Expiration of exempt rules.
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10.10 Official Rulemaking Record.
- Prepare Official Rulemaking Record.
- Carry out internal agency communications for completing rulemaking.
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