Chapter 1 - Rulemaking in General
In general. This chapter briefly describes the basis for rulemaking and the history of the
Minnesota Administrative Procedure Act, lists ongoing rule management responsibilities, and
gives information about an informal group of state agency rules staff and a rules help desk.
ON THE WEB. The Manual is at http://www.health.state.mn.us/rules/manual/index.html
It is available in Adobe Acrobat format and MS WORD Format.
[New in 2014] Editor’s Note: ACCESSIBILITY Minnesota law requires all products produced
by the State of Minnesota to be accessible to all individuals. A document or application is
considered accessible if meets certain technical criteria and can be used by people with disabilities.
This includes access by people who are mobility impaired, blind, low vision, deaf, hard of hearing,
or who have cognitive impairments. We believe all documents that make up this Manual now meet
these state standards. See your agency’s accessibility coordinator for further information or if you
believe these documents require further modification for your use.
[New in 2014] Editor’s Note: PLAIN LANGUAGE. On March 4, 2014, Governor Dayton
signed Executive Order 14-07, which requires state agencies to use plain language “to
communicate with Minnesotans.” According to the Order, “Plain Language is a communication,
which an audience can understand the first time they read or hear it.” (This Order is addition to
various agencies’ statutes that already require that they use plain language and Minnesota Statutes,
in and section 14.07, subdivision 3(3), already requires that, in determining the drafting form of
rules, the Revisor’s Office, “to the extent practicable, use plain language in rules and avoid
technical language.”) Order 14-07 also states, “The Office of the Governor will provide guidance for
implementing Minnesota's Plain Language policy.” As of publication of this edition, the Editor’s
best determination of how this new plain-language directive jibes with agencies’ work is the
following principle: communications that agencies push out to the general public must adhere to
this plain-language order; legal documents, such as those that meet the APA, must be legally
accurate. Over time, agencies will be engaging in discussions with the Governor’s Office and
among ourselves about this. Look for more information in future editions of the Manual.
1.1 Selected statutory provisions.
Rule. “‘Rule’ means every agency statement of general applicability and future effect,
including amendments, suspensions, and repeals of rules, adopted to implement or make
specific the law enforced or administered by that agency or to govern its organization or
procedure.” Minnesota Statutes, section 14.02, subdivision 4.
Nonapplicability. “The definition of a rule in section 14.02, subdivision 4, does not
include:
(1)
rules concerning only the internal management of the agency or other agencies that
do not directly affect the rights of or procedures available to the public;
(2)
an application deadline on a form; and the remainder of a form and instructions for
use of the form to the extent that they do not impose substantive requirements other
than requirements contained in statute or rule;
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(3)
-
the curriculum adopted by an agency to implement a statute or rule permitting or
mandating minimum educational requirements for persons regulated by an agency,
provided the topic areas to be covered by the minimum educational requirements
are specified in statute or rule;
(4)
procedures for sharing data among government agencies, provided these
procedures are consistent with chapter 13 and other law governing data practices.”
Minnesota Statutes, section 14.03, subdivision 3, paragraph (a).
Required rules. “Each agency shall adopt rules . . . setting forth the nature and
requirements of all formal and informal procedures related to the administration of official
agency duties to the extent that those procedures directly affect the rights of or procedures
available to the public.” Minnesota Statutes, section 14.06, paragraph (a).
1.2 Delegation of Power. Legislative bodies delegate rulemaking power to administrative
agencies by statute, either by authorizing rules on specific topics or by a general provision that the
agency may make rules necessary to carry out the purpose of statutorily assigned duties.
Historically, a legislature could not delegate its lawmaking authority to administrative bodies.
Because society has become increasingly complex, the courts have recognized the difficulty for
legislatures to develop comprehensive regulations and, therefore, have allowed legislative bodies
considerable flexibility in delegating authority. However, legislative delegation of authority to an
administrative agency will be sustained only if the delegation was accompanied by “ascertainable”
or “adequate standards” or “intelligible principles” necessary to guide the agency.
A “rule” is the product of rulemaking. “Rulemaking” is the part of the administrative process that
resembles a legislature’s enactment of a statute. As such, it is an executive branch quasi-legislative
practice to formulate policy necessary to administer a legislatively created program and to fill any
gap left, implicitly or explicitly, by the legislature. Administrative agencies have knowledge and
experience to regulate and supervise programs of highly specialized or rapidly changing subject
matter.
1.3 The Minnesota Administrative Procedure Act. Rulemaking in Minnesota follows
procedures outlined in the Minnesota Administrative Procedure Act (APA), Minnesota Statutes,
chapter 14. (This is distinct from rulemaking by the federal government and by other states—this
Manual will address only the Minnesota APA.) A codified set of procedures for relating to
rulemaking was first enacted in Minnesota by the 1945 Legislature. The statutory history of
chapter 14 began in 1957. In the early days of rulemaking under chapter 14, all rules had to go
through a hearing before adoption. This was changed because at the great majority of rule hearings,
no one from the public showed up to testify. The current chapter 14 allows rules to be adopted with
or without a hearing, depending on whether 25 or more persons request a hearing.
1.4 Office of Administrative Hearings Rules. The Office of Administrative Hearings (OAH) is
charged with many responsibilities under the Minnesota APA. OAH has, therefore, adopted rules
“to implement or make specific the law enforced or administered by” OAH. More specifically,
OAH has adopted rules to implement or make specific the Minnesota APA. These rules are at
Minnesota Rules, chapter 1400. (Note that throughout this Manual, these rules are cited as
“OAH Rules.”) The most recent OAH amendments to chapter 1400 were in 2001. These
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amendments included a general update of existing rules and the addition of new rules for the
expedited rulemaking process in Minnesota Statutes, section 14.389. For general information
about OAH, refer to OAH-INF in the appendix.
1.5 Governor’s Office Rule Review Process. [Revised in 2015] In 1999, the Governor was given
authority to veto rules by Minnesota Statutes, section 14.05, subdivision 6. This veto authority is at
the end of the rulemaking process when 99.9% of the work on the rules is done. Governor
Pawlenty’s Office (and Governor Ventura’s Office before that) responded by putting a policy in
place where agencies submit rules to the Governor’s Office for review while the rules are in the
draft stage. This way, if the Governor is opposed to the rules, the agency can stop the rules project
early in the process and avoid wasting everyone’s time and effort. Or, if the Governor wants the
rules to take a different direction, the agency can redirect the rules at a point in the process where
the advisory committee and the public have a chance to respond to the Governor’s decision.
Governor Dayton’s Office issued its rules review policy on 9/21/11, which it subsequently revised
on 9/13/13 and 9/17/15. For a copy of the rules review policy, see GOV-PLCY in the appendix.
Elizabeth Dressel 651/201-3420, Legislative Coordinator, is managing the rules review process
for the Governor’s Office and will work with Governor’s Office staff to ensure a quick turn-around
when rules are submitted for review.
Editor’s note: [New in 2014] Governor’s office relocated for Capitol renovation and sending
documents via email. The Governor’s Office has moved temporarily to Suite 116, the Veterans
Service Building, 20 West 12th Street, St. Paul, MN 55155. There is a reception area in the west
wing. You may deliver your documents there. Also, the Governor’s Office is encouraging
agencies to deliver documents via email. This means you may submit electronic rulemaking forms
in PDF format to Elizabeth Dressel at Elizabeth.Dressel@state.mn.us .
[New in 2015] 1.6 Minnesota Administrative Procedure Act—2015 changes: The Legislature
made two procedural changes that affect various sections of Chapter 14 effective January 1, 2016.
First, it authorized agencies to file rule-related documents electronically with the Office of
Administrative Hearings. Second, it codified the practice that OAH and the agencies have already
been using for final steps of adopting and filing rules. Minnesota Laws 2015, Chapter 63.
1.7 Ongoing rule management and oversight responsibilities. An agency has a number of
ongoing responsibilities regarding the agency’s rules.
1.7.1 Public rulemaking docket. The agency must maintain a current, public rulemaking
docket. The rulemaking docket must contain a listing of each possible proposed rule
currently under active consideration and each pending rulemaking proceeding. There is an
extensive list of details that must be included for each rulemaking project. Minnesota
Statutes, section 14.366.
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1.7.2 Obsolete rules report. These are the main requirements of Minnesota Statutes,
section 14.05, subdivision 5:
By December 1 of each year, the agency must submit a report to the governor, the
Legislative Coordinating Commission [or LCC], the policy and funding
committees and divisions with jurisdiction over the agency, and the Revisor.*
The report must list any of the agency’s rules that are obsolete, unnecessary, or
duplicative of other state or federal statutes or rules.
The agency must either give a timetable for repeal of the rules or must develop a
bill to repeal the rules.
The report must be signed by the agency person responsible for identifying and
initiating repeal of the rules.
The report must also give the status of any rules identified in the agency’s prior
year’s report.
[New in 2014] Editor’s Note: The LCC specifically requests that we submit the annual
reports via electronic copy to lcc@lcc.leg.mn . Submission in electronic format has
become so prevalent and accepted for official business, however, that the Editor sees no
reason to send this report in paper to any of the other officials named in the statute either.]
1.7.3 Maintaining Official Rulemaking Records. Minnesota Statutes, section 14.365,
states, “The agency shall maintain the official rulemaking record for every rule adopted
under sections 14.05 to 14.389. The record must be available for public inspection. The
record required by this section constitutes the official and exclusive agency rulemaking
record with respect to agency action on or judicial review of the rule.”
[New in 2013] Editor’s note: In 2013, the Legislature added Minnesota Statutes, section
13.356, to the Data Practices Act, protecting certain telephone and email lists. Data
maintained in your historic rulemaking files might be affected. Data classifications are
based on the law at the time a request is made. In other words, data that was public at the
time it was created can be changed retroactively to private data by a change to the Data
Practices Act. Consult your data practices resource or legal counsel if you receive a data
request related to rulemaking files.
1.8 Interagency Rules Committee. The IRC is an informal group of agency staff that meets
approximately quarterly to discuss common issues related to rulemaking. It was begun in
February 1995 by a cadre of state agency rules staff. Meeting attendance is usually ranges between
15 to 30 persons. The committee communicates via a subscription service (see below). The IRC
has provided the organization and contributed expertise for developing this Minnesota Rulemaking
Manual. It also sponsors the annual rulemaking seminar. And it serves as an interagency forum to
discuss proposed legislation governing rulemaking procedures.
Communication System [Revised in 2013] The Interagency Rules Committee communicates
through GovDelivery Client Services, a web-based subscription service that delivers email
messages to those who have subscribed. Thus the messages you receive will be from Interagency
Rules Committee <MDH@GovDelivery.com>. If you wish to subscribe, send a message using
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your agency email address to Cretia Weaver at cretia.weaver@state.mn.us and she will register
you.
Here’s how our communication works.
o Posting: To post a communication for those on the list, send an email to either
patricia.winget@state.mn.us or MDHLegal@state.mn.us. Please identify the subject that
should appear and the text you wish to send. Your proposed posting will be reviewed and
if changes are needed you will be notified via email.
o Starting a discussion IMPORTANT: This system is for delivery only. If you wish to
engage in discussions with other committee members, post your message but be sure to
include an invitation using your own email address so the group can communicate by
direct response using “reply to all” buttons.
1.9 Rules help desk. The Interagency Rules Committee has established a “help desk” function.
The “help desk” consists of the following individuals:
[Revised in 2015] OAH no longer has staff attorneys available by telephone. For
questions about the status of filings that have been made or other OAH-related
questions, you may contact OAH Legal Assistant Denise Collins at 651/361-7875 or
denise.collins@state.mn.us. For legal advice, you should seek the counsel of your
agency’s Assistant Attorney General. The Administrative Law Judge reviewing a
particular set of rules makes any final determinations after all the facts are considered.
Laura Nehl-Trueman, Department of Transportation, at 651/366-3066, is available for
questions about APA or non-APA issues.
Patricia Winget, Department of Health, at 651/201-5748, is also available for questions
about APA or non-APA issues.
1.10 Training for Agency Rulemaking Staff. Minnesota Management and Budget (MMB) must
provide training to agency staff involved in rulemaking. MMB must do this in cooperation with
OAH, the AG, the Revisor, and experienced agency rulemaking staff. Minnesota Statutes,
section 43A.04, subdivision 11. This is the basis for this Manual and the annual rulemaking
seminars.
1.11 What this Manual covers and what it does not cover. This Manual covers in detail the
development and adoption of rules that go through the main process set out in Minnesota Statutes,
chapter 14. This Manual also covers in detail the adoption of exempt rules under Minnesota
Statutes, sections 14.386 and 14.388, and the expedited process for adopting rules in Minnesota
Statutes, section 14.389. This Manual does not cover the process for dealing with rulemaking
petitions or variances to rules.
[Revised in 2014] 1.12 Information on the cost of rulemaking. Refer to COST-INF in the
appendix for information on approximate costs for rulemaking. This document, most recently
updated in 2014, reflects the collective experience of many agencies’ developing and adopting
rules, starting with the, Department of Human Services. The information has been updated and
revised over time with notable contributions from the Pollution Control Agency, the Department
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of Health, and most recently the Office of Administrative Hearings. This cost information might
not be right on point for agencies whose rules are not as controversial as these contributing
agencies and do not have the history that they have. This is, however, the best cost information
available and will provide a valuable starting point in estimating rulemaking costs.
1.13 Comments and suggestions for the Manual. If you have any comments or suggestions for
improvement for the Manual, give them to Patricia Winget, editor of the Manual, at 651/201-5748
or patricia.winget@state.mn.us.
1.14 Acknowledgment of resource materials.
1 Davis, Administrative Law Treatise (1958).
Beck, G., L. Bakken, and T. Muck. Minnesota Administrative Procedure (1987).
Beck, G., M. Gossman, and L. Nehl-Trueman, Minnesota Administrative Procedure,
Second Edition (1998).
Beck, G., A. Becker, and M. Gossman, and M. Lindstrom [Pretzer], Minnesota
Administrative Procedure (2008 Supplement to Second Edition).
[New in 2015] Beck, G., and M. Konar-Steenberg, Minnesota Administrative
Procedure, Third Edition (2014).
The digitized, updated version is now available online and free to the public at:
http://web.wmitchell.edu/minnesota-administrative-procedure/
The Minnesota Department of Human Services Rulemaking Manual before 1995.
1.15 Acknowledgment of contributors to the Rulemaking Manual. Thank you to the following
persons who have contributed over the years to the writing, review, and updating of this Manual:
Catherine Anderson, Andrea Barker, Susan Barry, Cretia Weaver, ALJ George Beck, Sharon
Beighley, Andy Beisner, Joann Benesh, Kate Berger, Mary Bjornberg, Bert Black, Sally
Bushhouse, Beth Carlson, Jacquie Cavanagh, Norma Coleman, Lorraine Colford, Rick Cool,
Nathan Cooley, Jamie Cullen, Rita Desmond, Elizabeth Dressel, Jeanne Eggleston, Stacie
Engstrom, Kerstin Forsythe, Megan Gaudette, Linda Geier, Jonathan Hendricks, Pat Glasrud,
Kristine Hernandez Pierce, Kay Herzfeld, Gloria Johnson, Kate Kahlert, ALJ Allan Klein, Robert
Klukas, Stephanie Krieg, Nancy La Plante, Cristine Leavitt, Wendy Legge, Yolanda Letnes,
Kathy Lewis, Maria Lindstrom, Sandra MacKenzie, Peggy Mancuso, Audrey Kaiser Manka, Paul
Marinac, Bill Marczewski, Dan Medenblik, Nitika Moibi, Kevin Molloy, Pat Munkel-Olson,
Laura Nehl-Trueman, Jane Nelson, Catherine Neuschler, Laura Offerdahl, Deb Olson, Jocelyn
Olson, Marie O’Neill, Michele Owen, Robin PanLener, Laura Peterson, Julian Plamann, ALJ
Tammy Pust, Nancy Rice, Elizabeth Scheffer, Laura Schlatter, Ann Seha, Pamela Shubat, Mat
Spaan, Karen Hook Sullivan, Annette M. Trnka, Suzanne Todnem, Penny Troolin, Sage Van
Voorhis, Placida Venegas, Larisa Vishkovetsky, Alice Weck, Lori Wedeking, Marsha West, Dick
Wexler, and Eric Witte.
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