Office of the Revisor of Statutes
Minnesota Session Laws - 2001, Regular Session
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.
Official Publication of the State of Minnesota
Revisor of Statutes