as introduced - 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; amending 1.4 Minnesota Statutes 2000, sections 14.05, subdivision 1.5 6; 14.116; and 14.18, subdivision 1; proposing coding 1.6 for new law in Minnesota Statutes, chapter 14; 1.7 repealing Minnesota Statutes 2000, section 14.05, 1.8 subdivision 4; Laws 1999, chapter 129, section 6. 1.9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10 Section 1. Minnesota Statutes 2000, section 14.05, 1.11 subdivision 6, is amended to read: 1.12 Subd. 6. [VETO OF ADOPTED RULES.] The governor may veto 1.13 all or a severable portion of a rule of an agency as defined in 1.14 section 14.02, subdivisions 2 and 4, by
publishingsubmitting 1.15 notice of the veto into the State Register within 14 days of 1.16 receiving a copy of the rule from the secretary of state under 1.17 section 14.16, subdivision 3, 14.26, subdivision 3, or 14.386 or 1.18 the agency under section 14.389, subdivision 3, or section 1.19 14.3895. The veto is effective when the veto notice is 1.20 submitted to the State Register. This authority applies only to 1.21 the extent that the agency itself would have authority, through 1.22 rulemaking, to take such action. If the governor vetoes a rule 1.23 or portion of a rule under this section, the governor shall 1.24 notify the chairs of the legislative committees having 1.25 jurisdiction over the agency whose rule was vetoed. 1.26 Sec. 2. [14.055] [RULE VARIANCES; STANDARDS.] 1.27 Subdivision 1. [AUTHORITY.] Any person may petition an 2.1 agency for a variance from a rule adopted by the agency, as it 2.2 applies to the circumstances of the petitioner. 2.3 Subd. 2. [GENERAL TERMS.] The following general terms 2.4 apply to variances granted pursuant to this section: 2.5 (1) the agency may attach any conditions to the granting of 2.6 a variance that the agency determines are needed to protect 2.7 public health, safety, or the environment; 2.8 (2) a variance has prospective effect only; and 2.9 (3) conditions attached to the granting of a variance are 2.10 an enforceable part of the rule to which the variance applies. 2.11 Subd. 3. [MANDATORY VARIANCES.] An agency shall grant a 2.12 variance from a rule as applied to the particular circumstances 2.13 of the petitioner, if the agency finds that the application of 2.14 the rule, as applied to the circumstances of that petitioner, 2.15 would not serve any of the purposes of the rule. 2.16 Subd. 4. [DISCRETIONARY WAIVERS.] An agency may grant a 2.17 variance if the agency finds that: 2.18 (1) application of the rule to the petitioner would result 2.19 in hardship or injustice; 2.20 (2) variance from the rule would be consistent with the 2.21 public interest; and 2.22 (3) variance from the rule would not prejudice the 2.23 substantial legal rights of any person or entity. 2.24 Subd. 5. [RULES.] An agency may adopt rules establishing 2.25 general standards for granting mandatory or discretionary 2.26 variances from its rules. An agency also may grant variances 2.27 based on standards specified in other law. 2.28 Sec. 3. [14.056] [RULE VARIANCES; PROCEDURES.] 2.29 Subdivision 1. [CONTENTS OF VARIANCE PETITION.] A petition 2.30 for a variance must include the following information: 2.31 (1) the name and address of the person or entity for whom a 2.32 variance is being requested; 2.33 (2) a description of and, if known, a citation to the 2.34 specific rule for which a variance is requested; 2.35 (3) the variance requested, including the scope and 2.36 duration of the variance; 3.1 (4) the reasons that the petitioner believes justify a 3.2 variance, including a signed statement attesting to the accuracy 3.3 of the facts asserted in the petition; 3.4 (5) a history of the agency's action relative to the 3.5 petitioner, as relates to the variance request; 3.6 (6) information regarding the agency's treatment of similar 3.7 cases, if known; and 3.8 (7) the name, address, and telephone number of any person 3.9 the petitioner knows would be adversely affected by the grant of 3.10 the petition. 3.11 Subd. 2. [NOTICE.] In addition to any notice required by 3.12 other law, an agency shall make reasonable efforts to ensure 3.13 that persons or entities who may be affected by the variance 3.14 have timely notice of the request for a variance. The agency 3.15 may require the petitioner to serve notice on any other person 3.16 or entity in the manner specified by the agency. 3.17 Subd. 3. [ADDITIONAL INFORMATION.] Before granting or 3.18 denying a variance petition, an agency may request additional 3.19 information from the petitioner. 3.20 Subd. 4. [ORDER; TIMING.] An agency must issue a written 3.21 order granting or denying a variance and specifying the scope 3.22 and period of any variance granted. The order must contain an 3.23 agency statement of the relevant facts and the reasons for the 3.24 agency's action. The agency shall grant or deny a variance 3.25 petition as soon as practicable, and within 60 days of receipt 3.26 of the petition, unless the petitioner agrees to a later date. 3.27 Failure of the agency to act on a petition within 60 days 3.28 constitutes approval of the petition. 3.29 Subd. 5. [ORDER; DELIVERY.] Within five days of issuing a 3.30 variance order, the agency shall send the order to the 3.31 petitioner and to any other person entitled to notice under 3.32 other law. 3.33 Subd. 6. [RECORD.] An agency shall maintain a record of 3.34 all orders granting and denying variances. The records must be 3.35 indexed by rule and be available for public inspection. 3.36 Sec. 4. Minnesota Statutes 2000, section 14.116, is 4.1 amended to read: 4.2 14.116 [NOTICE TO LEGISLATURE.] 4.3 When an agency mails notice of intent to adopt rules under 4.4 section 14.14 or 14.22, the agency must make reasonable efforts4.5 tosend a copy of the same notice and a copy of the statement of 4.6 need and reasonableness to the following:4.7 (1) all people who are still legislators and who were main4.8 authors, or supporting authors, of the law granting the agency4.9 the statutory authority the agency relies upon as authority to4.10 adopt the proposed rule; and4.11 (2)the chairs and ranking minority party members of the 4.12 legislative policy and budget committees with jurisdiction over 4.13 the subject matter of the proposed rules. 4.14 In addition, if the mailing of the notice is within two 4.15 years of the effective date of the law granting the agency 4.16 authority to adopt the proposed rules, the agency must make 4.17 reasonable efforts to send a copy of the notice and the 4.18 statement to all sitting legislators who were chief house and 4.19 senate authors of the bill granting the rulemaking authority. 4.20 If the bill was amended to include this rulemaking authority, 4.21 the agency must make reasonable efforts to send the notice and 4.22 the statement to the chief house and senate authors of the 4.23 rulemaking authority, rather than to the chief authors of the 4.24 bill. 4.25 Sec. 5. [14.117] [NOTICE TO THE OFFICE OF THE GOVERNOR.] 4.26 Before an agency mails notice of intent to adopt rules 4.27 under section 14.14, 14.22, 14.389, or 14.3895, the agency must 4.28 send a copy of the proposed rules and the statement of need and 4.29 reasonableness, if one is required, to the office of the 4.30 governor. 4.31 Sec. 6. [14.126] [COMMITTEE AUTHORITY OVER RULE ADOPTION.] 4.32 Subdivision 1. [DELAY ACTION.] If the standing committee 4.33 of the house of representatives and the standing committee of 4.34 the senate with jurisdiction over the subject matter of a 4.35 proposed rule both vote to advise an agency that a proposed rule 4.36 should not be adopted as proposed, the agency may not adopt the 5.1 rule until the legislature next adjourns an annual legislative 5.2 session. The speaker of the house of representatives and the 5.3 senate committee on committees must determine if a standing 5.4 committee has jurisdiction over a rule before a committee may 5.5 act under this section. 5.6 Subd. 2. [VOTE.] A committee vote under this section must 5.7 be by a majority of a quorum of the committee. The vote may 5.8 occur any time after the publication of the rulemaking notice 5.9 under section 14.14, subdivision 1a, 14.22, 14.389, subdivision 5.10 2, or 14.3895, subdivision 3, and before notice of adoption is 5.11 published in the State Register under section 14.18, 14.27, 5.12 14.389, subdivision 3, or 14.3895, subdivision 3. A committee 5.13 voting under this section must notify the agency, the revisor of 5.14 statutes, and the chief administrative law judge of the vote as 5.15 soon as possible. The committee must publish notice of the vote 5.16 in the State Register as soon as possible. 5.17 Sec. 7. Minnesota Statutes 2000, section 14.18, 5.18 subdivision 1, is amended to read: 5.19 Subdivision 1. [GENERALLY.] A rule is effective after it 5.20 has been subjected to all requirements described in sections 5.21 14.131 to 14.20 and five working days after the notice of 5.22 adoption is published in the State Register unless a later date 5.23 is required by section 14.126 or other law or specified in the 5.24 rule. If the rule adopted is the same as the proposed rule, 5.25 publication may be made by publishing notice in the State 5.26 Register that the rule has been adopted as proposed and by 5.27 citing the prior publication. If the rule adopted differs from 5.28 the proposed rule, the portions of the adopted rule that differ 5.29 from the proposed rule must be included in the notice of 5.30 adoption together with a citation to the prior State Register 5.31 publication of the remainder of the proposed rule. The nature 5.32 of the modifications must be clear to a reasonable person when 5.33 the notice of adoption is considered together with the State 5.34 Register publication of the proposed rule, except that 5.35 modifications may also be made that comply with the form 5.36 requirements of section 14.07, subdivision 7. 6.1 If the agency omitted from the notice of proposed rule 6.2 adoption the text of the proposed rule, as permitted by section 6.3 14.14, subdivision 1a, paragraph (b), the chief administrative 6.4 law judge may provide that the notice of the adopted rule need 6.5 not include the text of any changes from the proposed rule. 6.6 However, the notice of adoption must state in detail the 6.7 substance of the changes made from the proposed rule, and must 6.8 state that a free copy of the portion of the adopted rule that 6.9 was the subject of the rulemaking proceeding, not including any 6.10 material adopted by reference as permitted by section 14.07, is 6.11 available upon request to the agency. 6.12 Sec. 8. [14.381] [UNADOPTED RULES.] 6.13 Subdivision 1. [PETITION.] A person may petition the 6.14 office of administrative hearings seeking an order of an 6.15 administrative law judge determining that an agency is using, 6.16 enforcing, or attempting to enforce a policy, guideline, 6.17 bulletin, criterion, manual standard, or similar pronouncement 6.18 as though it was a duly adopted rule. The petition must be 6.19 supported by affidavit and must be served upon the agency. The 6.20 agency must respond in writing to the petition within ten 6.21 working days. The administrative law judge may order oral 6.22 argument on the petition, but only if necessary to a decision. 6.23 Subd. 2. [ORDER.] The order of the administrative law 6.24 judge may direct the agency to cease enforcement of any 6.25 unadopted rule. The order must be served upon the parties and 6.26 the legislative coordinating commission by first class mail and 6.27 must be published by the agency in the State Register. The 6.28 decision of the administrative law judge may be appealed under 6.29 sections 14.44 and 14.45. 6.30 Subd. 3. [COSTS.] If the administrative law judge rules in 6.31 favor of the petitioner, the agency must pay all administrative 6.32 law judge costs associated with review of the petition. If the 6.33 administrative law judge rules in favor of the agency, the 6.34 office of administrative hearings must bill the petitioner for 6.35 these costs, and the petitioner must pay them. 6.36 Sec. 9. [14.3895] [PROCESS FOR REPEALING OBSOLETE RULES.] 7.1 Subdivision 1. [APPLICATION.] An agency may use this 7.2 section to repeal rules identified in the agency's annual 7.3 obsolete rules report under section 14.05, subdivision 5, unless 7.4 a law specifically requires another process or unless 25 7.5 requests are received under subdivision 4. Sections 14.19, 7.6 14.20, 14.365, and 14.366 apply to rules repealed under this 7.7 section. 7.8 Subd. 2. [NOTICE PLAN; PRIOR APPROVAL.] The agency must 7.9 draft a notice plan under which the agency will make reasonable 7.10 efforts to notify persons or classes of persons who may be 7.11 significantly affected by the rule repeal by giving notice of 7.12 its intention in newsletters, newspapers, or other publications, 7.13 or through other means of communication. Before publishing the 7.14 notice in the State Register and implementing the notice plan, 7.15 the agency must obtain prior approval of the notice plan by the 7.16 chief administrative law judge. 7.17 Subd. 3. [NOTICE AND COMMENT.] The agency must publish 7.18 notice of the proposed rule repeal in the State Register. The 7.19 agency must also mail the notice to persons who have registered 7.20 with the agency to receive mailed notices and to the chairs and 7.21 ranking minority party members of the legislative policy and 7.22 budget committees with jurisdiction over the subject matter of 7.23 the proposed rule. The agency must also give notice according 7.24 ot the notice plan approved under subdivision 2. The mailed 7.25 notice must include either a copy of the rule proposed for 7.26 repeal or a description of the nature and effect of the rule and 7.27 a statement that a free copy is available from the agency upon 7.28 request. The notice must include a statement that, if 25 or 7.29 more people submit a written request, the agency will have to 7.30 meet the requirements of sections 14.131 to 14.20 for rules 7.31 adopted after a hearing or the requirements of sections 14.22 to 7.32 14.28 for rules adopted without a hearing, including the 7.33 preparation of a statement of need and reasonableness and the 7.34 opportunity for a hearing. The agency must allow 60 days after 7.35 publication in the State Register for comment on the rule. 7.36 Subd. 4. [REQUESTS.] If 25 or more people submit a written 8.1 request, the agency may adopt the rule only after complying with 8.2 sections 14.131 to 14.20 or the requirements of sections 14.22 8.3 to 14.28. The requests must be in the manner specified in 8.4 section 14.25. 8.5 Subd. 5. [ADOPTION.] If the final repeal is identical to 8.6 the action originally published in the State Register, the 8.7 agency must publish a notice of repealers in the State 8.8 Register. If the final action is different from the action 8.9 originally published in the State Register, the agency must 8.10 publish a copy of the changes in the State Register. The agency 8.11 must also file a copy of the repealed rule with the governor. 8.12 The repeal is effective after it has been subjected to all 8.13 requirements described in sections 14.131 to 14.20 and five 8.14 working days after the notice of repeal is published in the 8.15 State Register unless a later date is required by law or 8.16 specified in the rule repeal proposal. 8.17 Subd. 6. [LEGAL REVIEW.] Before publication of the final 8.18 rule in the State Register, the agency must submit the rule to 8.19 the chief administrative law judge in the office of 8.20 administrative hearings. The chief administrative law judge 8.21 shall within 14 days approve or disapprove the rule as to its 8.22 legality and its form to the extent the form relates to legality. 8.23 Sec. 10. [REPEALER.] 8.24 (a) Minnesota Statutes 2000, section 14.05, subdivision 4, 8.25 is repealed. 8.26 (b) Laws 1999, chapter 129, section 6, is repealed. 8.27 Sec. 11. [EFFECTIVE DATE.] 8.28 Sections 1 to 10 are effective July 1, 2001.