4th Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to state government; modifying certain 1.3 procedures relating to administrative rules; 1.4 appropriating money; amending Minnesota Statutes 2000, 1.5 sections 14.05, subdivision 6; 14.116; 14.18, 1.6 subdivision 1; 14.19; proposing coding for new law in 1.7 Minnesota Statutes, chapter 14; repealing Minnesota 1.8 Statutes 2000, section 14.05, subdivision 4; Laws 1.9 1999, chapter 129, section 6. 1.10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.11 Section 1. Minnesota Statutes 2000, section 14.05, 1.12 subdivision 6, is amended to read: 1.13 Subd. 6. [VETO OF ADOPTED RULES.] The governor may veto 1.14 all or a severable portion of a rule of an agency as defined in 1.15 section 14.02, subdivisions 2 and 4, by
publishingsubmitting 1.16 notice of the veto into the State Register within 14 days of 1.17 receiving a copy of the rule from the secretary of state under 1.18 section 14.16, subdivision 3, 14.26, subdivision 3, or 14.386 or 1.19 the agency under section 14.389, subdivision 3, or section 1.20 14.3895. The veto is effective when the veto notice is 1.21 submitted to the State Register. This authority applies only to 1.22 the extent that the agency itself would have authority, through 1.23 rulemaking, to take such action. If the governor vetoes a rule 1.24 or portion of a rule under this section, the governor shall 1.25 notify the chairs of the legislative committees having 1.26 jurisdiction over the agency whose rule was vetoed. The 1.27 governor may not veto a rule or portion of a rule promulgated by 2.1 a constitutional officer. 2.2 Sec. 2. [14.055] [RULE VARIANCES; STANDARDS.] 2.3 Subdivision 1. [AUTHORITY.] A person or entity may 2.4 petition an agency for a variance from a rule adopted by the 2.5 agency, as it applies to the circumstances of the petitioner. 2.6 Subd. 2. [GENERAL TERMS.] The following general terms 2.7 apply to variances granted pursuant to this section: 2.8 (1) the agency may attach any conditions to the granting of 2.9 a variance that the agency determines are needed to protect 2.10 public health, safety, or the environment; 2.11 (2) a variance has prospective effect only; 2.12 (3) conditions attached to the granting of a variance are 2.13 an enforceable part of the rule to which the variance applies; 2.14 and 2.15 (4) the agency may not grant a variance from a statute or 2.16 court order. 2.17 Subd. 3. [MANDATORY VARIANCES.] An agency shall grant a 2.18 variance from a rule as applied to the particular circumstances 2.19 of the petitioner, if the agency finds that the application of 2.20 the rule, as applied to the circumstances of that petitioner, 2.21 would not serve any of the purposes of the rule. 2.22 Subd. 4. [DISCRETIONARY VARIANCES.] An agency may grant a 2.23 variance if the agency finds that: 2.24 (1) application of the rule to the petitioner would result 2.25 in hardship or injustice; 2.26 (2) variance from the rule would be consistent with the 2.27 public interest; and 2.28 (3) variance from the rule would not prejudice the economic 2.29 or substantial legal rights of any person or entity. 2.30 Subd. 5. [RULES.] An agency may adopt rules under section 2.31 14.389 establishing general standards for granting mandatory or 2.32 discretionary variances from its rules. Section 14.389, 2.33 subdivision 5, applies to these rules. An agency also may grant 2.34 variances based on standards specified in other law. 2.35 Sec. 3. [14.056] [RULE VARIANCES; PROCEDURES.] 2.36 Subdivision 1. [CONTENTS OF VARIANCE PETITION.] A petition 3.1 for a variance under section 14.055 must include the following 3.2 information: 3.3 (1) the name and address of the person or entity for whom a 3.4 variance is being requested; 3.5 (2) a description of and, if known, a citation to the 3.6 specific rule for which a variance is requested; 3.7 (3) the variance requested, including the scope and 3.8 duration of the variance; 3.9 (4) the reasons that the petitioner believes justify a 3.10 variance, including a signed statement attesting to the accuracy 3.11 of the facts asserted in the petition; 3.12 (5) a history of the agency's action relative to the 3.13 petitioner, as relates to the variance request; 3.14 (6) information regarding the agency's treatment of similar 3.15 cases, if known; and 3.16 (7) the name, address, and telephone number of any person 3.17 the petitioner knows would be adversely affected by the grant of 3.18 the petition. 3.19 Subd. 2. [FEES.] (a) An agency may charge a petitioner a 3.20 variance fee. The fee is: 3.21 (1) $10, which must be submitted with the petition, and is 3.22 not refundable; or 3.23 (2) the estimated cost for the agency to process the 3.24 variance petition, if the agency estimates that the cost will be 3.25 more than $20. 3.26 (b) If an agency intends to charge costs to the petitioner 3.27 under paragraph (a), clause (2): 3.28 (1) the agency and the petitioner must agree on the costs 3.29 and the timing and manner of payment; 3.30 (2) for purposes of the 60-day limit in subdivision 5, the 3.31 petition is not complete until there is agreement with the 3.32 petitioner on the costs and timing and manner of payment; and 3.33 (3) if the payment made by the petitioner exceeds the 3.34 agency's actual costs, the agency must refund the overpayment to 3.35 the petitioner. The payment is not otherwise refundable. 3.36 (c) Proceeds from fees charged under this subdivision must 4.1 be deposited in the fund that supports the program that is the 4.2 subject of the variance petition. 4.3 Subd. 3. [NOTICE.] In addition to any notice required by 4.4 other law, an agency shall make reasonable efforts to ensure 4.5 that persons or entities who may be affected by the variance 4.6 have timely notice of the request for a variance. The agency 4.7 may require the petitioner to serve notice on any other person 4.8 or entity in the manner specified by the agency. 4.9 Subd. 4. [ADDITIONAL INFORMATION.] Before granting or 4.10 denying a variance petition, an agency may request additional 4.11 information from the petitioner. 4.12 Subd. 5. [ORDER; TIMING.] An agency must issue a written 4.13 order granting or denying a variance and specifying the scope 4.14 and period of any variance granted. The order must contain an 4.15 agency statement of the relevant facts and the reasons for the 4.16 agency's action. The agency shall grant or deny a variance 4.17 petition as soon as practicable, and within 60 days of receipt 4.18 of the completed petition, unless the petitioner agrees to a 4.19 later date. Failure of the agency to act on a petition within 4.20 60 days constitutes approval of the petition. 4.21 Subd. 6. [ORDER; DELIVERY.] Within five days of issuing a 4.22 variance order, the agency shall send the order to the 4.23 petitioner and to any other person entitled to notice under 4.24 other law. 4.25 Subd. 7. [RECORD.] An agency shall maintain a record of 4.26 all orders granting and denying variances under section 14.055. 4.27 The records must be indexed by rule and be available for public 4.28 inspection to the extent provided in chapter 13. 4.29 Sec. 4. [14.057] [RELATION TO OTHER LAW.] 4.30 Sections 14.055 and 14.056 create variance standards and 4.31 procedures that apply when there is not another state or federal 4.32 law or rule authorizing variances. Sections 14.055 and 14.056 4.33 do not apply to the extent another state or federal law or rule 4.34 authorizes or requires the granting of variances. 4.35 Sec. 5. Minnesota Statutes 2000, section 14.116, is 4.36 amended to read: 5.1 14.116 [NOTICE TO LEGISLATURE.] 5.2 When an agency mails notice of intent to adopt rules under 5.3 section 14.14 or 14.22, the agency must make reasonable efforts5.4 tosend a copy of the same notice and a copy of the statement of 5.5 need and reasonableness to the following:5.6 (1) all people who are still legislators and who were main5.7 authors, or supporting authors, of the law granting the agency5.8 the statutory authority the agency relies upon as authority to5.9 adopt the proposed rule; and5.10 (2)the chairs and ranking minority party members of the 5.11 legislative policy and budget committees with jurisdiction over 5.12 the subject matter of the proposed rules. 5.13 In addition, if the mailing of the notice is within two 5.14 years of the effective date of the law granting the agency 5.15 authority to adopt the proposed rules, the agency must make 5.16 reasonable efforts to send a copy of the notice and the 5.17 statement to all sitting legislators who were chief house and 5.18 senate authors of the bill granting the rulemaking authority. 5.19 If the bill was amended to include this rulemaking authority, 5.20 the agency must make reasonable efforts to send the notice and 5.21 the statement to the chief house and senate authors of the 5.22 amendment granting rulemaking authority, rather than to the 5.23 chief authors of the bill. 5.24 Sec. 6. [14.126] [COMMITTEE AUTHORITY OVER RULE ADOPTION.] 5.25 Subdivision 1. [DELAY ACTION.] If the standing committee 5.26 of the house of representatives and the standing committee of 5.27 the senate with jurisdiction over the subject matter of a 5.28 proposed rule both vote to advise an agency that a proposed rule 5.29 should not be adopted as proposed, the agency may not adopt the 5.30 rule until May 30 after the first March 1 following the vote of 5.31 the committees. The speaker of the house of representatives and 5.32 the president of the senate must determine if a standing 5.33 committee has jurisdiction over a rule before a committee may 5.34 act under this section. 5.35 Subd. 2. [VOTE.] A committee vote under this section must 5.36 be by a majority of the committee. The vote may occur any time 6.1 after the publication of the rulemaking notice under section 6.2 14.14, subdivision 1a, 14.22, 14.389, subdivision 2, or 14.3895, 6.3 subdivision 3, and before notice of adoption is published in the 6.4 State Register under section 14.18, 14.27, 14.389, subdivision 6.5 3, or 14.3895, subdivision 3. A committee voting under this 6.6 section must notify the agency, the revisor of statutes, and the 6.7 chief administrative law judge of the vote as soon as possible. 6.8 The committee must publish notice of the vote in the State 6.9 Register as soon as possible. 6.10 Sec. 7. Minnesota Statutes 2000, section 14.18, 6.11 subdivision 1, is amended to read: 6.12 Subdivision 1. [GENERALLY.] A rule is effective after it 6.13 has been subjected to all requirements described in sections 6.14 14.131 to 14.20 and five working days after the notice of 6.15 adoption is published in the State Register unless a later date 6.16 is required by section 14.126 or other law or specified in the 6.17 rule. If the rule adopted is the same as the proposed rule, 6.18 publication may be made by publishing notice in the State 6.19 Register that the rule has been adopted as proposed and by 6.20 citing the prior publication. If the rule adopted differs from 6.21 the proposed rule, the portions of the adopted rule that differ 6.22 from the proposed rule must be included in the notice of 6.23 adoption together with a citation to the prior State Register 6.24 publication of the remainder of the proposed rule. The nature 6.25 of the modifications must be clear to a reasonable person when 6.26 the notice of adoption is considered together with the State 6.27 Register publication of the proposed rule, except that 6.28 modifications may also be made that comply with the form 6.29 requirements of section 14.07, subdivision 7. 6.30 If the agency omitted from the notice of proposed rule 6.31 adoption the text of the proposed rule, as permitted by section 6.32 14.14, subdivision 1a, paragraph (b), the chief administrative 6.33 law judge may provide that the notice of the adopted rule need 6.34 not include the text of any changes from the proposed rule. 6.35 However, the notice of adoption must state in detail the 6.36 substance of the changes made from the proposed rule, and must 7.1 state that a free copy of the portion of the adopted rule that 7.2 was the subject of the rulemaking proceeding, not including any 7.3 material adopted by reference as permitted by section 14.07, is 7.4 available upon request to the agency. 7.5 Sec. 8. Minnesota Statutes 2000, section 14.19, is amended 7.6 to read: 7.7 14.19 [DEADLINE TO COMPLETE RULEMAKING.] 7.8 Within 180 days after issuance of the administrative law 7.9 judge's report, the agency shall submit its notice of adoption, 7.10 amendment, or repeal to the State Register for publication. If 7.11 the agency has not submitted its notice to the State Register 7.12 within 180 days, the rule is automatically withdrawn. The 7.13 agency may not adopt the withdrawn rules without again following 7.14 the procedures of sections 14.05 to 14.28. It shall report to 7.15 the legislative coordinating commission, other appropriate 7.16 committees of the legislature, and the governor its failure to 7.17 adopt rules and the reasons for that failure. The 180-day time 7.18 limit of this section does not include: (1) any days used for 7.19 review by the chief administrative law judge or the commission 7.20 if the review is required by law; or (2) days during which the 7.21 rule cannot be adopted, because of votes by legislative 7.22 committees under section 14.126. 7.23 Sec. 9. [14.381] [UNADOPTED RULES.] 7.24 Subdivision 1. [PETITION.] A person may petition the 7.25 office of administrative hearings seeking an order of an 7.26 administrative law judge determining that an agency is enforcing 7.27 or attempting to enforce a policy, guideline, bulletin, 7.28 criterion, manual standard, or similar pronouncement as though 7.29 it were a duly adopted rule. The petition must be supported by 7.30 affidavit and must be served upon the agency. The agency must 7.31 respond in writing to the petition within ten working days. The 7.32 administrative law judge may order oral argument on the 7.33 petition, but only if necessary to a decision. 7.34 Subd. 2. [ORDER.] The order of the administrative law 7.35 judge must direct the agency to cease enforcement of the 7.36 unadopted rule that is the subject of the petition. The order 8.1 must be served upon the parties and the legislative coordinating 8.2 commission by first class mail and must be published by the 8.3 agency in the State Register. The decision of the 8.4 administrative law judge may be appealed under sections 14.44 8.5 and 14.45. 8.6 Subd. 3. [COSTS.] (a) Except as provided in paragraphs (b) 8.7 and (c), the agency must pay all office of administrative 8.8 hearings costs associated with review of the petition. 8.9 (b) The petitioner must pay office of administrative 8.10 hearings costs if the administrative law judge rules in favor of 8.11 the agency, unless the administrative law judge determines that 8.12 the petition was brought in good faith and that an assessment of 8.13 costs would constitute an undue hardship for the petitioner. 8.14 (c) A person filing a petition under this section must 8.15 provide a bond to the office of administrative hearings in an 8.16 amount that the administrative law judge estimates is the cost 8.17 for the office of administrative hearings to review the 8.18 petition. As an alternative to a bond, the petitioner may 8.19 deposit cash, or another form of guarantee approved by the chief 8.20 administrative law judge. If the petitioner is required under 8.21 paragraph (b) to pay office of administrative hearings costs, 8.22 the agency must recover these costs directly from the 8.23 petitioner, or from the bond or other guarantee provided under 8.24 this paragraph. 8.25 (d) A petitioner entitled to proceed in forma pauperis 8.26 under section 563.01 is not required to pay office of 8.27 administrative hearings costs under this subdivision, and is not 8.28 required to provide a bond or other form of guarantee under 8.29 paragraph (c). 8.30 Sec. 10. [14.3895] [PROCESS FOR REPEALING OBSOLETE RULES.] 8.31 Subdivision 1. [APPLICATION.] An agency may use this 8.32 section to repeal rules identified in the agency's annual 8.33 obsolete rules report under section 14.05, subdivision 5, unless 8.34 a law specifically requires another process or unless 25 8.35 requests are received under subdivision 4. Sections 14.19, 8.36 14.20, 14.365, and 14.366 apply to rules repealed under this 9.1 section. 9.2 Subd. 2. [NOTICE PLAN; PRIOR APPROVAL.] The agency must 9.3 draft a notice plan under which the agency will make reasonable 9.4 efforts to notify persons or classes of persons who may be 9.5 significantly affected by the rule repeal by giving notice of 9.6 its intention in newsletters, newspapers, or other publications, 9.7 or through other means of communication. Before publishing the 9.8 notice in the State Register and implementing the notice plan, 9.9 the agency must obtain prior approval of the notice plan by the 9.10 chief administrative law judge. 9.11 Subd. 3. [NOTICE AND COMMENT.] The agency must publish 9.12 notice of the proposed rule repeal in the State Register. The 9.13 agency must also mail the notice to persons who have registered 9.14 with the agency to receive mailed notices and to the chairs and 9.15 ranking minority party members of the legislative policy and 9.16 budget committees with jurisdiction over the subject matter of 9.17 the proposed rule repeal. The agency must also give notice 9.18 according to the notice plan approved under subdivision 2. The 9.19 mailed notice must include either a copy of the rule proposed 9.20 for repeal or a description of the nature and effect of the 9.21 proposed rule repeal and a statement that a free copy is 9.22 available from the agency upon request. The notice must include 9.23 a statement that, if 25 or more people submit a written request, 9.24 the agency will have to meet the requirements of sections 14.131 9.25 to 14.20 for rules adopted after a hearing or the requirements 9.26 of sections 14.22 to 14.28 for rules adopted without a hearing, 9.27 including the preparation of a statement of need and 9.28 reasonableness and the opportunity for a hearing. The agency 9.29 must allow 60 days after publication in the State Register for 9.30 comment on the proposed rule repeal. 9.31 Subd. 4. [REQUESTS.] If 25 or more people submit a written 9.32 request, the agency may repeal the rule only after complying 9.33 with sections 14.131 to 14.20 or the requirements of sections 9.34 14.22 to 14.28. The requests must be in the manner specified in 9.35 section 14.25. 9.36 Subd. 5. [ADOPTION.] If the final repeal is identical to 10.1 the action originally published in the State Register, the 10.2 agency must publish a notice of repealers in the State 10.3 Register. If the final action is different from the action 10.4 originally published in the State Register, the agency must 10.5 publish a copy of the changes in the State Register. The agency 10.6 must also file a copy of the repealed rule with the governor. 10.7 The repeal is effective after it has been subjected to all 10.8 requirements described in this section or sections 14.131 to 10.9 14.20 or 14.22 to 14.28 and five working days after the notice 10.10 of repeal is published in the State Register unless a later date 10.11 is required by law or specified in the rule repeal proposal. 10.12 Subd. 6. [LEGAL REVIEW.] Before publication of the final 10.13 rule in the State Register, the agency must submit the rule to 10.14 the chief administrative law judge in the office of 10.15 administrative hearings. The chief administrative law judge 10.16 shall within 14 days approve or disapprove the rule as to its 10.17 legality and its form to the extent the form relates to legality. 10.18 Sec. 11. [REPEALER.] 10.19 (a) Minnesota Statutes 2000, section 14.05, subdivision 4, 10.20 is repealed. Variances granted and rules adopted under 10.21 Minnesota Statutes, section 14.05, subdivision 4, remain in 10.22 effect, however, and the rules may be amended. 10.23 (b) Laws 1999, chapter 129, section 6, is repealed. 10.24 Sec. 12. [EFFECTIVE DATE.] 10.25 Sections 1 and 5 to 11 are effective July 1, 2001. 10.26 Sections 2 to 4 are effective July 1, 2002, except that the 10.27 authority to adopt rules under Minnesota Statutes, section 10.28 14.055, subdivision 5, is effective the day following final 10.29 enactment.