SF 3113

as introduced - 90th Legislature (2017 - 2018) Posted on 03/09/2018 09:13am

A bill for an act
relating to state government; modifying rulemaking; amending Minnesota Statutes
2016, sections 14.05, by adding subdivisions; 14.116; 14.126; 14.127, subdivision
4; 14.22, subdivision 1; 14.366; 14.381, subdivision 3; 14.388, subdivision 2;
14.45; repealing Minnesota Statutes 2016, section 14.05, subdivision 5.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 14.05, is amended by adding a subdivision
to read:

new text begin Subd. 1a. new text end

new text begin Limitation regarding certain policies, guidelines, and other interpretive
statements. new text end

new text begin An agency shall not seek to implement in a permit or contract, or enforce against
any person through monetary or nonmonetary penalty, a policy, guideline, bulletin, criterion,
manual, standard, interpretive statement, or similar pronouncement, including but not limited
to the metropolitan solid waste policy plan revisions authorized by other law that has not
been published under section 14.22, or was first published under section 14.22, more than
two years prior to the date the agency seeks to implement the policy in a permit or contract
or enforce against a person. In any proceeding under this chapter challenging an agency
action prohibited by this subdivision, the reviewing authority must independently and without
reference to the agency determine if the agency has violated this subdivision. The agency
must overcome the presumption that its action is prohibited.
new text end

Sec. 2.

Minnesota Statutes 2016, section 14.05, is amended by adding a subdivision to
read:

new text begin Subd. 5a. new text end

new text begin Review and repeal of environmental assessment worksheets and impact
statements. new text end

new text begin By December 1, 2018, and every five years thereafter, the Environmental
Quality Board, Pollution Control Agency, Department of Natural Resources, and Department
of Transportation, after consultation with political subdivisions, shall submit to the governor,
the Legislative Coordinating Commission, the chairs and ranking minority members of the
legislative committees having jurisdiction over environment and natural resources, and the
revisor of statutes a list of mandatory environmental assessment worksheets or mandatory
environmental impact statements for which the agency or a political subdivision is designated
as the responsible government unit, and for each worksheet or statement, a document
including:
new text end

new text begin (1) intended historic purpose of the category;
new text end

new text begin (2) whether projects that fall within the category are also subject to local, state, or federal
permits; and
new text end

new text begin (3) a justification for why the mandatory worksheet or statement should not be eliminated
and its intended outcomes achieved through an existing permit or other federal, state, or
local law.
new text end

Sec. 3.

Minnesota Statutes 2016, section 14.116, is amended to read:

14.116 NOTICE TO LEGISLATURE.

(a) By January 15 each year, each agency must submit its rulemaking docket maintained
under section 14.366, deleted text begin and deleted text end the official rulemaking record required under section 14.365 for
any rule adopted during the preceding calendar year, new text begin and all agency policies, guidelines,
bulletins, criteria, manuals, standards, interpretive statements, or similar pronouncements
new text end to the chairs and ranking minority members of the legislative policy and budget committees
with jurisdiction over the subject matter of the proposed rule new text begin and to the Legislative
Coordinating Commission. Each agency must post a link to its rulemaking docket on the
agency Web site home page new text end .

(b) When an agency deleted text begin mails deleted text end new text begin sends a new text end notice of intent to adopt rules new text begin hearing new text end under section
14.14 new text begin , new text end or new text begin a notice of intent to adopt rules or dual notice under section new text end 14.22, the agency
must send a copy of the same notice and a copy of the statement of need and reasonableness
to the chairs and ranking minority party members of the legislative policy and budget
committees with jurisdiction over the subject matter of the proposed rules and to the
Legislative Coordinating Commission.

(c) In addition, if the mailing of the notice is within two years of the effective date of
the law granting the agency authority to adopt the proposed rules, the agency shall make
reasonable efforts to send a copy of the notice and the statement to all sitting legislators
who were chief house of representatives and senate authors of the bill granting the rulemaking
authority. If the bill was amended to include this rulemaking authority, the agency shall
make reasonable efforts to send the notice and the statement to the chief house of
representatives and senate authors of the amendment granting rulemaking authority, rather
than to the chief authors of the bill.

Sec. 4.

Minnesota Statutes 2016, section 14.126, is amended to read:

14.126 COMMITTEE AUTHORITY OVER RULE ADOPTION new text begin AND GUIDANCE new text end .

Subdivision 1.

Delay action.

If new text begin the Legislative Coordinating Commission votes or if
new text end the standing committee of the house of representatives and the standing committee of the
senate with jurisdiction over the subject matter of a proposed rule both vote to advise an
agency that a proposed rule should not be adopted new text begin or a guidance document listed under
section 14.366, paragraph (b), clause (2), should not be used new text end as proposed, the agency may
not adopt the rule new text begin or use the guidance document new text end until the legislature adjourns the annual
legislative session that began after the vote of the committees. The speaker of the house
and the president of the senate shall determine if a standing committee has jurisdiction over
a rule new text begin or guidance document new text end before a committee may act under this section.

Subd. 2.

Vote.

new text begin (a) new text end A new text begin commission or new text end committee vote under this section must be by a
majority of the new text begin commission or new text end committee.

new text begin (b) For rulemaking, new text end the vote may occur any time after the publication of the rulemaking
notice under section 14.14, subdivision 1a, 14.22, 14.389, subdivision 2, or 14.3895,
subdivision 3, and before notice of adoption is published in the State Register under section
14.18, 14.27, 14.389, subdivision 3, or 14.3895, subdivision 3. A new text begin commission or new text end committee
voting under this deleted text begin section deleted text end new text begin paragraph new text end shall notify the agency, the revisor of statutes, and the
chief administrative law judge of the vote as soon as possible.

new text begin (c) For guidance documents, the vote may occur any time within one year after the listing
of the docket as prescribed in section 14.366, paragraph (b), clause (2). A commission or
committee voting under this paragraph shall notify the agency of the vote as soon as possible.
new text end

new text begin (d) new text end The new text begin commission or new text end committee shall publish notice of the vote in the State Register
as soon as possible.

Sec. 5.

Minnesota Statutes 2016, section 14.127, subdivision 4, is amended to read:

Subd. 4.

Exceptions.

(a) Subdivision 3 does not apply if the administrative law judge
approves an agency's determination that the legislature has appropriated money to sufficiently
fund the expected cost of the rule upon the business or city proposed to be regulated by the
rule.

(b) Subdivision 3 does not apply if the administrative law judge approves an agency's
determination that the rule has been proposed pursuant to a specific federal statutory or
regulatory mandate.

(c) This section does not apply if the rule is adopted under section 14.388 or under
another law specifying that the rulemaking procedures of this chapter do not apply.

(d) This section does not apply to a rule adopted by the Public Utilities Commission.

deleted text begin (e) Subdivision 3 does not apply if the governor waives application of subdivision 3.
The governor may issue a waiver at any time, either before or after the rule would take
effect, but for the requirement of legislative approval. As soon as possible after issuing a
waiver under this paragraph, the governor must send notice of the waiver to the speaker of
the house and the president of the senate and must publish notice of this determination in
the State Register.
deleted text end

Sec. 6.

Minnesota Statutes 2016, section 14.22, subdivision 1, is amended to read:

Subdivision 1.

Contents.

(a) Unless an agency proceeds directly to a public hearing on
a proposed rule and gives the notice prescribed in section 14.14, subdivision 1a, the agency
shall give notice of its intention to adopt a rule without public hearing new text begin and its intention to
use a policy, guideline, bulletin, criteria, manual, standard, interpretative statement, or
similar pronouncement new text end . The notice must be given by publication in the State Register and
by United States mail or electronic mail to persons who have registered their names with
the agency under section 14.14, subdivision 1a. The mailed notice must include either a
copy of the proposed rule new text begin or policy new text end or an easily readable and understandable description of
its nature and effect and an announcement that a free copy of the proposed rule new text begin or policy new text end is
available on request from the agency. In addition, each agency shall make reasonable efforts
to notify persons or classes of persons who may be significantly affected by the rule new text begin or
policy new text end by giving notice of its intention in newsletters, newspapers, or other publications, or
through other means of communication. The notice in the State Register must include the
proposed rule or the amended rule in the form required by the revisor under section 14.07,
an easily readable and understandable summary of the overall nature and effect of the
proposed rule new text begin or policy new text end , a citation to the most specific statutory authority for the proposed
rule new text begin or policy new text end , a statement that persons may register with the agency for the purpose of
receiving notice of rule proceedings and notice that a rule has been submitted to the chief
administrative law judge, and other information required by law or rule. When an entire
rule new text begin or policy new text end is proposed to be repealed, the notice need only state that fact, along with an
easily readable and understandable summary of the overall nature of the rules new text begin or policies
new text end proposed for repeal, and a citation to the rule to be repealed. The notice must include a
statement advising the public:

(1) that the public has 30 days in which to submit comment in support of or in opposition
to the proposed rule new text begin or policy new text end and that comment is encouraged;

(2) that each comment should identify the portion of the proposed rule new text begin or policy
new text end addressed, the reason for the comment, and any change proposed;

(3) that if 25 or more persons submit a written request for a public hearing within the
30-day comment period, a public hearing will be held;

(4) of the manner in which persons must request a public hearing on the proposed rule new text begin
or policy new text end ;

(5) of the requirements contained in section 14.25 relating to a written request for a
public hearing, and that the requester is encouraged to propose any change desired;

(6) that the proposed rule new text begin or policy new text end may be modified if the modifications are supported
by the data and views submitted; and

(7) that if a hearing is not required, notice of the date of submission of the proposed rule
to the chief administrative law judge for review will be mailed to any person requesting to
receive the notice.

In connection with the statements required in clauses (1) and (3), the notice must also
include the date on which the 30-day comment period ends.

(b) The chief administrative law judge may authorize an agency to omit from the notice
of intent to adopt the text of any proposed rule new text begin or policy new text end , the publication of which would
be unduly cumbersome, expensive, or otherwise inexpedient if:

(1) knowledge of the rule new text begin or policy new text end is likely to be important to only a small class of
persons;

(2) the notice of intent to adopt states that a free copy of the entire rule new text begin or policy new text end is
available upon request to the agency; and

(3) the notice of intent to adopt states in detail the specific subject matter of the omitted
rule, cites the statutory authority for the proposed rule new text begin or policy new text end , and details the proposed
rule's new text begin or policy's new text end purpose and motivation.

Sec. 7.

Minnesota Statutes 2016, section 14.366, is amended to read:

14.366 PUBLIC RULEMAKING DOCKET.

(a) Each agency shall maintain a current, public rulemaking docket.

(b) The rulemaking docket must contain a listing of the precise subject matter of new text begin :
new text end

new text begin (1) new text end each possible proposed rule currently under active consideration within the agency
for proposal, the name and address of agency personnel with whom persons may
communicate with respect to the matter, and an indication of its present status within the
agency deleted text begin . deleted text end new text begin ; and
new text end

new text begin (2) any policy, guideline, bulletin, criterion, manual, standard, interpretive statement,
or similar pronouncement used for permitting, if the guideline, bulletin, criterion, manual,
standard, interpretive statement, or similar pronouncement has not been adopted according
to the rulemaking process provided under this chapter.
new text end

(c) The rulemaking docket must list each pending rulemaking proceeding. A rulemaking
proceeding is pending from the time it is begun, by publication of the notice of solicitation,
the notice of intent to adopt, or notice of hearing, to the time it is terminated, by publication
of a notice of withdrawal or the rule becoming effective. For each rulemaking proceeding,
the docket must indicate:

(1) the subject matter of the proposed rule;

(2) a citation to all published notices relating to the proceeding;

(3) where written comments on the proposed rule may be inspected;

(4) the time during which written comments may be made;

(5) the names of persons who have made written requests for a public hearing, where
those requests may be inspected, and where and when the hearing will be held;

(6) the current status of the proposed rule and any agency determinations with respect
to the rule;

(7) any known timetable for agency decisions or other action in the proceeding;

(8) the date of the rule's adoption;

(9) the date the rule was filed with the secretary of state; and

(10) when the rule will become effective.

Sec. 8.

Minnesota Statutes 2016, section 14.381, subdivision 3, is amended to read:

Subd. 3.

Costs.

The agency is liable for all Office of Administrative Hearings costs
associated with review of the petition. If the administrative law judge rules in favor of the
agency, the agency may recover all or a portion of the costs from the petitioner unless the
petitioner is entitled to proceed in forma pauperis under section 563.01 or the administrative
law judge determines that the petition was brought in good faith and that an assessment of
the costs would constitute an undue hardship for the petitioner. deleted text begin If an agency has reason to
believe it will prevail in the consideration of a petition, and that an effort to recover costs
from the petitioner will be unsuccessful, it may request the chief administrative law judge
to require the petitioner to provide bond or a deposit to the agency in an amount the chief
administrative law judge estimates will be the cost to the Office of Administrative Hearings
to review the petition.
deleted text end

Sec. 9.

Minnesota Statutes 2016, section 14.388, subdivision 2, is amended to read:

Subd. 2.

Notice.

An agency proposing to adopt, amend, or repeal a rule under this section
must give new text begin notice to the chairs and ranking minority members of the legislative policy and
budget committees with jurisdiction over the subject matter of the proposed rules and to
the Legislative Coordinating Commission, must give new text end electronic notice of its intent in
accordance with section 16E.07, subdivision 3, and new text begin must give new text end notice by United States mail
or electronic mail to persons who have registered their names with the agency under section
14.14, subdivision 1a. The notice must be given no later than the date the agency submits
the proposed rule to the Office of Administrative Hearings for review of its legality and
must include:

(1) the proposed rule, amendment, or repeal;

(2) an explanation of why the rule meets the requirements of the good cause exemption
under subdivision 1; and

(3) a statement that interested parties have five business days after the date of the notice
to submit comments to the Office of Administrative Hearings.

Sec. 10.

Minnesota Statutes 2016, section 14.45, is amended to read:

14.45 RULE DECLARED INVALID.

In proceedings under section 14.44, the court shall declare the rule new text begin or agency policy,
guideline, bulletin, criterion, manual, standard, interpretive statement, or similar
pronouncement new text end invalid if it finds that it violates constitutional provisions or exceeds the
statutory authority of the agency or new text begin if the rule new text end was adopted new text begin or the policy, guideline, bulletin,
criterion, manual, standard, interpretive statement, or similar pronouncement was improperly
implemented or enforced new text end without compliance with statutory rulemaking procedures. Any
party to proceedings under section 14.44, including the agency, may appeal an adverse
decision of the Court of Appeals to the Supreme Court as in other civil cases.

Sec. 11. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2016, section 14.05, subdivision 5, new text end new text begin is repealed.
new text end

Sec. 12. new text begin EFFECTIVE DATE; APPLICATION.
new text end

new text begin (a) This act is effective August 1, 2018, and applies to rules for which a notice of hearing
under Minnesota Statutes, section 14.14; a notice of intent to adopt under Minnesota Statutes,
section 14.22; or a dual notice under Minnesota Statutes, section 14.225, is published in the
State Register on or after that date.
new text end

new text begin (b) This act also applies to policies, guidelines, bulletins, criteria, manuals, standards,
interpretive statements, and similar pronouncements existing or published on or after August,
1, 2018.
new text end

APPENDIX

Repealed Minnesota Statutes: 18-5880

14.05 GENERAL AUTHORITY.

Subd. 5.

Review and repeal of rules.

By December 1 of each year, an agency must submit to the governor, the Legislative Coordinating Commission, the policy and funding committees and divisions with jurisdiction over the agency, and the revisor of statutes, a list of any rules or portions of rules that are obsolete, unnecessary, or duplicative of other state or federal statutes or rules. The list must also include an explanation of why the rule or portion of the rule is obsolete, unnecessary, or duplicative of other state or federal statutes or rules. By December 1, the agency must either report a timetable for repeal of the rule or portion of the rule, or must develop a bill for submission to the appropriate policy committee to repeal the obsolete, unnecessary, or duplicative rule. Such a bill must include proposed authorization to use the expedited procedures of section 14.389 to repeal or amend the obsolete, unnecessary, or duplicative rule. A report submitted under this subdivision must be signed by the person in the agency who is responsible for identifying and initiating repeal of obsolete rules. The report also must identify the status of any rules identified in the prior year's report as obsolete, unnecessary, or duplicative. If none of an agency's rules are obsolete, unnecessary, or duplicative, an agency's December 1 report must state that conclusion.