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Minnesota Legislature

Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

                            CHAPTER 179-S.F.No. 555 
                  An act relating to state government; modifying certain 
                  procedures relating to administrative rules; 
                  appropriating money; amending Minnesota Statutes 2000, 
                  sections 14.05, subdivision 6; 14.116; 14.18, 
                  subdivision 1; 14.19; proposing coding for new law in 
                  Minnesota Statutes, chapter 14; repealing Laws 1999, 
                  chapter 129, section 6. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 2000, section 14.05, 
        subdivision 6, is amended to read: 
           Subd. 6.  [VETO OF ADOPTED RULES.] The governor may veto 
        all or a severable portion of a rule of an agency as defined in 
        section 14.02, subdivisions 2 and 4, by publishing submitting 
        notice of the veto in to the State Register within 14 days of 
        receiving a copy of the rule from the secretary of state under 
        section 14.16, subdivision 3, 14.26, subdivision 3, or 14.386 or 
        the agency under section 14.389, subdivision 3, or section 
        14.3895.  The veto is effective when the veto notice is 
        submitted to the State Register.  This authority applies only to 
        the extent that the agency itself would have authority, through 
        rulemaking, to take such action.  If the governor vetoes a rule 
        or portion of a rule under this section, the governor shall 
        notify the chairs of the legislative committees having 
        jurisdiction over the agency whose rule was vetoed. 
           Sec. 2.  [14.055] [RULE VARIANCES; STANDARDS.] 
           Subdivision 1.  [AUTHORITY.] A person or entity may 
        petition an agency for a variance from a rule adopted by the 
        agency, as it applies to the circumstances of the petitioner. 
           Subd. 2.  [GENERAL TERMS.] The following general terms 
        apply to variances granted pursuant to this section: 
           (1) the agency may attach any conditions to the granting of 
        a variance that the agency determines are needed to protect 
        public health, safety, or the environment; 
           (2) a variance has prospective effect only; 
           (3) conditions attached to the granting of a variance are 
        an enforceable part of the rule to which the variance applies; 
        and 
           (4) the agency may not grant a variance from a statute or 
        court order. 
           Subd. 3.  [MANDATORY VARIANCES.] An agency shall grant a 
        variance from a rule as applied to the particular circumstances 
        of the petitioner, if the agency finds that the application of 
        the rule, as applied to the circumstances of that petitioner, 
        would not serve any of the purposes of the rule. 
           Subd. 4.  [DISCRETIONARY VARIANCES.] An agency may grant a 
        variance if the agency finds that: 
           (1) application of the rule to the petitioner would result 
        in hardship or injustice; 
           (2) variance from the rule would be consistent with the 
        public interest; and 
           (3) variance from the rule would not prejudice the 
        substantial legal or economic rights of any person or entity. 
           Subd. 5.  [RULES.] An agency may adopt rules under section 
        14.389 establishing general standards for granting mandatory or 
        discretionary variances from its rules.  Section 14.389, 
        subdivision 5, applies to these rules.  An agency also may grant 
        variances based on standards specified in other law. 
           Subd. 6.  [WHEN NOT APPLICABLE.] This section and section 
        14.056 do not apply if another state or federal law or rule 
        authorizes or requires the granting of variances by an agency or 
        in certain circumstances. 
           Sec. 3.  [14.056] [RULE VARIANCES; PROCEDURES.] 
           Subdivision 1.  [CONTENTS OF VARIANCE PETITION.] A petition 
        for a variance under section 14.055 must include the following 
        information: 
           (1) the name and address of the person or entity for whom a 
        variance is being requested; 
           (2) a description of and, if known, a citation to the 
        specific rule for which a variance is requested; 
           (3) the variance requested, including the scope and 
        duration of the variance; 
           (4) the reasons that the petitioner believes justify a 
        variance, including a signed statement attesting to the accuracy 
        of the facts asserted in the petition; 
           (5) a history of the agency's action relative to the 
        petitioner, as relates to the variance request; 
           (6) information regarding the agency's treatment of similar 
        cases, if known; and 
           (7) the name, address, and telephone number of any person 
        the petitioner knows would be adversely affected by the grant of 
        the petition. 
           Subd. 2.  [FEES.] (a) An agency may charge a petitioner a 
        variance fee.  The fee is: 
           (1) $10, which must be submitted with the petition, and is 
        not refundable; or 
           (2) the estimated cost for the agency to process the 
        variance petition, if the agency estimates that the cost will be 
        more than $20. 
           (b) If an agency intends to charge costs to the petitioner 
        under paragraph (a), clause (2): 
           (1) the agency and the petitioner must agree on the costs 
        and the timing and manner of payment; 
           (2) for purposes of the 60-day limit in subdivision 5, the 
        petition is not complete until there is agreement with the 
        petitioner on the costs and timing and manner of payment; and 
           (3) if the payment made by the petitioner exceeds the 
        agency's actual costs, the agency must refund the overpayment to 
        the petitioner.  The payment is not otherwise refundable. 
           (c) Proceeds from fees charged under this subdivision are 
        appropriated to the commissioner of finance.  The commissioner 
        of finance may transfer amounts to the fund and agency that 
        supports the program that is the subject of the variance 
        petition when the agency makes a request for the fee proceeds 
        and the commissioner of finance determines the agency needs the 
        fee proceeds to implement this section.  Annually, the 
        commissioner of finance must transfer proceeds from fees that 
        are not transferred to agencies to the general fund. 
           Subd. 3.  [NOTICE.] In addition to any notice required by 
        other law, an agency shall make reasonable efforts to ensure 
        that persons or entities who may be affected by the variance 
        have timely notice of the request for a variance.  The agency 
        may require the petitioner to serve notice on any other person 
        or entity in the manner specified by the agency. 
           Subd. 4.  [ADDITIONAL INFORMATION.] Before granting or 
        denying a variance petition, an agency may request additional 
        information from the petitioner. 
           Subd. 5.  [ORDER; TIMING.] An agency must issue a written 
        order granting or denying a variance and specifying the scope 
        and period of any variance granted.  The order must contain an 
        agency statement of the relevant facts and the reasons for the 
        agency's action.  The agency shall grant or deny a variance 
        petition as soon as practicable, and within 60 days of receipt 
        of the completed petition, unless the petitioner agrees to a 
        later date.  Failure of the agency to act on a petition within 
        60 days constitutes approval of the petition. 
           Subd. 6.  [ORDER; DELIVERY.] Within five days of issuing a 
        variance order, the agency shall send the order to the 
        petitioner and to any other person entitled to notice under 
        other law. 
           Subd. 7.  [RECORD.] An agency shall maintain a record of 
        all orders granting and denying variances under section 14.055.  
        The records must be indexed by rule and be available for public 
        inspection to the extent provided in chapter 13. 
           Sec. 4.  Minnesota Statutes 2000, section 14.116, is 
        amended to read: 
           14.116 [NOTICE TO LEGISLATURE.] 
           When an agency mails notice of intent to adopt rules under 
        section 14.14 or 14.22, the agency must make reasonable efforts 
        to send a copy of the same notice and a copy of the statement of 
        need and reasonableness to the following: 
           (1) all people who are still legislators and who were main 
        authors, or supporting authors, of the law granting the agency 
        the statutory authority the agency relies upon as authority to 
        adopt the proposed rule; and 
           (2) the chairs and ranking minority party members of the 
        legislative policy and budget committees with jurisdiction over 
        the subject matter of the proposed rules. 
           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 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 and senate authors of the 
        amendment granting rulemaking authority, rather than to the 
        chief authors of the bill. 
           Sec. 5.  [14.126] [COMMITTEE AUTHORITY OVER RULE ADOPTION.] 
           Subdivision 1.  [DELAY ACTION.] If 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 as proposed, the agency may not adopt the 
        rule until the legislature adjourns the annual legislative 
        session that began after the vote of the committees.  The 
        speaker of the house of representatives and the president of the 
        senate shall determine if a standing committee has jurisdiction 
        over a rule before a committee may act under this section. 
           Subd. 2.  [VOTE.] A committee vote under this section must 
        be by a majority of the committee.  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 committee voting under this 
        section shall notify the agency, the revisor of statutes, and 
        the chief administrative law judge of the vote as soon as 
        possible.  The committee shall publish notice of the vote in the 
        State Register as soon as possible. 
           Sec. 6.  Minnesota Statutes 2000, section 14.18, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [GENERALLY.] A rule is effective after it 
        has been subjected to all requirements described in sections 
        14.131 to 14.20 and five working days after the notice of 
        adoption is published in the State Register unless a later date 
        is required by section 14.126 or other law or specified in the 
        rule.  If the rule adopted is the same as the proposed rule, 
        publication may be made by publishing notice in the State 
        Register that the rule has been adopted as proposed and by 
        citing the prior publication.  If the rule adopted differs from 
        the proposed rule, the portions of the adopted rule that differ 
        from the proposed rule must be included in the notice of 
        adoption together with a citation to the prior State Register 
        publication of the remainder of the proposed rule.  The nature 
        of the modifications must be clear to a reasonable person when 
        the notice of adoption is considered together with the State 
        Register publication of the proposed rule, except that 
        modifications may also be made that comply with the form 
        requirements of section 14.07, subdivision 7.  
           If the agency omitted from the notice of proposed rule 
        adoption the text of the proposed rule, as permitted by section 
        14.14, subdivision 1a, paragraph (b), the chief administrative 
        law judge may provide that the notice of the adopted rule need 
        not include the text of any changes from the proposed rule.  
        However, the notice of adoption must state in detail the 
        substance of the changes made from the proposed rule, and must 
        state that a free copy of the portion of the adopted rule that 
        was the subject of the rulemaking proceeding, not including any 
        material adopted by reference as permitted by section 14.07, is 
        available upon request to the agency. 
           Sec. 7.  Minnesota Statutes 2000, section 14.19, is amended 
        to read: 
           14.19 [DEADLINE TO COMPLETE RULEMAKING.] 
           Within 180 days after issuance of the administrative law 
        judge's report, the agency shall submit its notice of adoption, 
        amendment, or repeal to the State Register for publication.  If 
        the agency has not submitted its notice to the State Register 
        within 180 days, the rule is automatically withdrawn.  The 
        agency may not adopt the withdrawn rules without again following 
        the procedures of sections 14.05 to 14.28.  It shall report to 
        the legislative coordinating commission, other appropriate 
        committees of the legislature, and the governor its failure to 
        adopt rules and the reasons for that failure.  The 180-day time 
        limit of this section does not include:  (1) any days used for 
        review by the chief administrative law judge or the commission 
        if the review is required by law; or (2) days during which the 
        rule cannot be adopted, because of votes by legislative 
        committees under section 14.126. 
           Sec. 8.  [14.381] [UNADOPTED RULES.] 
           Subdivision 1.  [PETITION.] (a) A person may petition the 
        office of administrative hearings seeking an order of an 
        administrative law judge determining that an agency is enforcing 
        or attempting to enforce a policy, guideline, bulletin, 
        criterion, manual standard, or similar pronouncement as though 
        it were a duly adopted rule.  The petition must be supported by 
        affidavit and must be served upon the agency.  The agency shall 
        respond in writing to the petition within ten working days.  The 
        administrative law judge may order oral argument on the 
        petition, but only if necessary to a decision. 
           (b) An agency determination is not considered an unadopted 
        rule when the agency enforces a law or rule by applying the law 
        or rule to specific facts on a case-by-case basis. 
           Subd. 2.  [ORDER.] The order of the administrative law 
        judge must direct the agency to cease enforcement of the 
        unadopted rule that is the subject of the petition.  The order 
        must be served upon the parties and the legislative coordinating 
        commission by first class mail and must be published by the 
        agency in the State Register.  The decision of the 
        administrative law judge may be appealed under sections 14.44 
        and 14.45. 
           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.  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.  
           Sec. 9.  [14.3895] [PROCESS FOR REPEALING OBSOLETE RULES.] 
           Subdivision 1.  [APPLICATION.] An agency may use this 
        section to repeal rules identified in the agency's annual 
        obsolete rules report under section 14.05, subdivision 5, unless 
        a law specifically requires another process or unless 25 
        requests are received under subdivision 4.  Sections 14.19, 
        14.20, 14.365, and 14.366 apply to rules repealed under this 
        section. 
           Subd. 2.  [NOTICE PLAN; PRIOR APPROVAL.] The agency shall 
        draft a notice plan under which the agency will make reasonable 
        efforts to notify persons or classes of persons who may be 
        significantly affected by the rule repeal by giving notice of 
        its intention in newsletters, newspapers, or other publications, 
        or through other means of communication.  Before publishing the 
        notice in the State Register and implementing the notice plan, 
        the agency shall obtain prior approval of the notice plan by the 
        chief administrative law judge. 
           Subd. 3.  [NOTICE AND COMMENT.] The agency shall publish 
        notice of the proposed rule repeal in the State Register.  The 
        agency shall also mail the notice to persons who have registered 
        with the agency to receive mailed notices and to the chairs and 
        ranking minority party members of the legislative policy and 
        budget committees with jurisdiction over the subject matter of 
        the proposed rule repeal.  The agency shall also give notice 
        according to the notice plan approved under subdivision 2.  The 
        mailed notice must include either a copy of the rule proposed 
        for repeal or a description of the nature and effect of the 
        proposed rule repeal and a statement that a free copy is 
        available from the agency upon request.  The notice must include 
        a statement that, if 25 or more people submit a written request, 
        the agency will have to meet the requirements of sections 14.131 
        to 14.20 for rules adopted after a hearing or the requirements 
        of sections 14.22 to 14.28 for rules adopted without a hearing, 
        including the preparation of a statement of need and 
        reasonableness and the opportunity for a hearing.  The agency 
        shall allow 60 days after publication in the State Register for 
        comment on the proposed rule repeal. 
           Subd. 4.  [REQUESTS.] If 25 or more people submit a written 
        request, the agency may repeal the rule only after complying 
        with sections 14.131 to 14.20 or the requirements of sections 
        14.22 to 14.28.  The requests must be in the manner specified in 
        section 14.25. 
           Subd. 5.  [ADOPTION.] If the final repeal is identical to 
        the action originally published in the State Register, the 
        agency shall publish a notice of repealers in the State 
        Register.  If the final action is different from the action 
        originally published in the State Register, the agency shall 
        publish a copy of the changes in the State Register.  The agency 
        shall also file a copy of the repealed rule with the governor.  
        The repeal is effective after it has been subjected to all 
        requirements described in this section or sections 14.131 to 
        14.20 or 14.22 to 14.28 and five working days after the notice 
        of repeal is published in the State Register unless a later date 
        is required by law or specified in the rule repeal proposal. 
           Subd. 6.  [LEGAL REVIEW.] Before publication of the final 
        rule in the State Register, the agency shall submit the rule to 
        the chief administrative law judge in the office of 
        administrative hearings.  The chief administrative law judge 
        shall within 14 days approve or disapprove the rule as to its 
        legality and its form to the extent the form relates to legality.
           Sec. 10.  [EXPIRATION.] 
           Minnesota Statutes 2000, section 14.05, subdivision 4, 
        expires July 1, 2002.  Variances granted and rules adopted under 
        Minnesota Statutes, section 14.05, subdivision 4, remain in 
        effect after that date, however, and the rules may be amended. 
           Sec. 11.  [REPEALER.] 
           Laws 1999, chapter 129, section 6, is repealed. 
           Sec. 12.  [EFFECTIVE DATES.] 
           Sections 1 and 4 to 11 are effective July 1, 2001.  
        Sections 2 and 3 are effective July 1, 2002, except that the 
        authority to adopt rules under Minnesota Statutes, section 
        14.055, subdivision 5, is effective the day following final 
        enactment. 
           Presented to the governor May 23, 2001 
           Signed by the governor May 25, 2001, 12:04 p.m.