Chapter 1 - Rulemaking in General

In general. This chapter briefly describes the basis for rulemaking and the history of the Minnesota Administrative Procedure Act, lists ongoing rule management responsibilities, and gives information about an informal group of state agency rules staff and a rules help desk.

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[New in 2014] Editor’s Note: ACCESSIBILITY Minnesota law requires all products produced by the State of Minnesota to be accessible to all individuals. A document or application is considered accessible if meets certain technical criteria and can be used by people with disabilities. This includes access by people who are mobility impaired, blind, low vision, deaf, hard of hearing, or who have cognitive impairments. We believe all documents that make up this Manual now meet these state standards. See your agency’s accessibility coordinator for further information or if you believe these documents require further modification for your use.

[New in 2014]Editor’s Note: PLAIN LANGUAGE.OnMarch 4, 2014, Governor Dayton signed Executive Order 14-07, which requires state agencies to use plain language “to communicate with Minnesotans.”According to the Order, “Plain Language is a communication, which an audience can understand the first time they read or hear it.” (This Order is addition to various agencies’ statutes that already require that they use plain language and Minnesota Statutes, in and section 14.07, subdivision 3(3), already requires that, in determining the drafting form of rules, the Revisor’s Office,“to the extent practicable, use plain language in rules and avoid technical language.”)Order 14-07 also states, “The Office of the Governor will provide guidance for implementing Minnesota’s Plain Language policy.” The Editor’s best determination of how this plain-language directive jibes with agencies’ work is the following principle: communications that agencies push out to the general public must adhere to this plain-language order; legal documents, such as those that meet the APA, must be legally accurate. [New in 2018] Having stated the official requirements, the Editor notes that there are important practical reasons to embrace plain language. Plain language is the best way for you to tell the story of your rulemaking. Your agency’s communicators can help. If your agency does not have communicators, check with other agencies that do to find communicators willing to help.

1.1 Selected statutory provisions.

-Rule.“‘Rule’ means every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.” Minnesota Statutes, section14.02, subdivision4.

-Nonapplicability.“The definition of a rule in section14.02, subdivision4, does not include:

(1)rules concerning only the internal management of the agency or other agencies that do not directly affect the rights of or procedures available to the public;

(2)an application deadline on a form; and the remainder of a form and instructions for use of the form to the extent that they do not impose substantive requirements other than requirements contained in statute or rule;

(3)the curriculum adopted by an agency to implement a statute or rule permitting or mandating minimum educational requirements for persons regulated by an agency, provided the topic areas to be covered by the minimum educational requirements are specified in statute or rule;

(4)procedures for sharing data among government agencies, provided these procedures are consistent with chapter 13 and other law governing data practices.” Minnesota Statutes, section14.03, subdivision3, paragraph(a).

-Required rules.“Each agency shall adopt rules ... setting forth the nature and requirements of all formal and informal procedures related to the administration of official agency duties to the extent that those procedures directly affect the rights of or procedures available to the public.” Minnesota Statutes, section14.06, paragraph(a).

-[New in 2018] Counting time. “To count a time period, the day of filing, mailing, publication, or other action is not counted and the last day of the time period is counted. Saturdays, Sundays, and legal holidays are included in calendar day time periods and are not included in working day time periods. If a calendar day time period ends on a Saturday, Sunday, or legal holiday, the time period ends on the next day which is not a Saturday, Sunday, or legal holiday. A time period is in calendar days unless it is stated as ‘working days.’” Minnesota Rules, part1400.2030, subpart1. [Editor’s note: I added this here for convenience because it applies at many points in rulemaking, even though it also appears in various other places throughout the manual, where applicable.]

1.2 Delegation of Power. Legislative bodies delegate rulemaking power to administrative agencies by statute, either by authorizing rules on specific topics or by a general provision that the agency may make rules necessary to carry out the purpose of statutorily assigned duties. Historically, a legislature could not delegate its lawmaking authority to administrative bodies. Because society has become increasingly complex, the courts have recognized the difficulty for legislatures to develop comprehensive regulations and, therefore, have allowed legislative bodies considerable flexibility in delegating authority. However, legislative delegation of authority to an administrative agency will be sustained only if the delegation was accompanied by “ascertainable” or “adequate standards” or “intelligible principles” necessary to guide the agency.

Minnesota Rulemaking Manual

9/20/18Chapter 1 - Rulemaking In General

A “rule” is the product of rulemaking. “Rulemaking” is the part of the administrative process that resembles a legislature’s enactment of a statute. As such, it is an executive branch quasi-legislative practice to formulate policy necessary to administer a legislatively created program and to fill any gap left, implicitly or explicitly, by the legislature. Administrative agencies have knowledge and experience to regulate and supervise programs of highly specialized or rapidly changing subject matter.

1.3 The Minnesota Administrative Procedure Act. Rulemaking in Minnesota follows procedures outlined in the Minnesota Administrative Procedure Act (APA), Minnesota Statutes, chapter14. (This is distinct from rulemaking by the federal government and by other states—this Manual will address only the Minnesota APA.) A codified set of procedures for relating to rulemaking was first enacted in Minnesota by the 1945 Legislature. The statutory history of chapter14 began in 1957. In the early days of rulemaking under chapter14, all rules had to go through a hearing before adoption. This was changed because at the great majority of rule hearings, no one from the public showed up to testify. The current chapter14 allows rules to be adopted with or without a hearing, depending on whether 25or more persons request a hearing.

1.4 Office of Administrative Hearings Rules. The Office of Administrative Hearings (OAH) is charged with many responsibilities under the Minnesota APA. OAH has, therefore, adopted rules “to implement or make specific the law enforced or administered by” OAH. More specifically, OAH has adopted rules to implement or make specific the Minnesota APA. These rules are at Minnesota Rules, chapter1400. (Note that throughout this Manual, these rules are cited as “OAHRules.”) The most recent OAH amendments to chapter1400 were in 2001. These amendments included a general update of existing rules and the addition of new rules for the expedited rulemaking process in Minnesota Statutes, section14.389. For general information about OAH, refer to OAH-INF in the appendix.

1.5 Governor’s Office Rule Review Process.[Revised in 2015] In 1999, the Governor was given authority to veto rules by Minnesota Statutes, section14.05, subdivision6. This veto authority is at the end of the rulemaking process when 99.9% of the work on the rules is done. Governor Pawlenty’s Office (and Governor Ventura’s Office before that) responded by putting a policy in place where agencies submit rules to the Governor’s Office for review while the rules are in the draft stage. This way, if the Governor is opposed to the rules, the agency can stop the rules project early in the process and avoid wasting everyone’s time and effort. Or, if the Governor wants the rules to take a different direction, the agency can redirect the rules at a point in the process where the advisory committee and the public have a chance to respond to the Governor’s decision. Governor Dayton’s Office issued its rules review policy on 9/21/11, which it subsequently revised on 9/13/13 and 9/17/15. For a copy of the rules review policy, see GOV-PLCY in the appendix.

Kate Carlucci(651) 201-3420, Legislative Coordinator, is managing the rules review process for the Governor’s Office and will work with Governor’s Office staff to ensure a quick turn-around when rules are submitted for review.

Editor’s note: [Revised in 2017] The Governor’s office has returned to 130 State Capitol.Also, the Governor’s Office is encouraging agencies to deliver documents via email. This means you may submit electronic rulemaking forms in PDF format to Kate Carlucci at Kate .

[Revised in 2016]1.6 Minnesota Administrative Procedure Act—2015 changes:The Legislature made two procedural changes that affect various sections of Chapter 14,effective January 1, 2016. First, it authorized agencies to file rule-related documents electronically with the Office of Administrative Hearings. Second, it codified the practice for final steps of adopting and filing rules that OAH and the agencies had already been using. Minnesota Laws 2015, Chapter 63.In January 2016, OAH launched its eFiling system, plus another system for receiving public comments electronically, as described below:

[Revised in 2018] 1.6.1 EFilingrule-related documents. OAH asks that agencies eFile all rule-related documents wherever possible. This means all documents submitted for ALJ review should be eFiled. OAH has posted step-by-step instructions for creating an account and filing your documents on its website at . (The page also includes a link to frequently asked questions.) You may also request a hearing date either through eFiling, or placing a telephone call.Always check to make sure that the system has uploaded your documents.Saving a screen shot or printing the window showing a file has uploaded is a prudent practice. In addition, save any correspondence or documents you receive from OAH for your own recordssince those itemsmight not remain in the eFile.

[Revisedin 2017]1.6.2 Public Comments Using OAH’s eComment website. ] OAH collects public comments on its user-friendly and centralized rulemaking website at This system enables the public to better participate in an efficient and open rulemaking process. (Public instructions for making comments can be found at eComments.)Agencies must use this system after public hearings on proposed rules, when comments must be submitted to the ALJ under Minnesota Rule 1400.2230. OAH will set up a public comment webpage after the hearing.

Agencies may also use this system for collecting public comments during the 60-day comment period after the Request for Comments is published or the 30-day comment period after rules are proposed. To set up a public eComments webpage for your rule, contact Katie Lin, OAH Rulemaking Coordinator at or (651) 361-7911 at least a week before your notice is published in the State Register. See OAH-INF for more specific details about what to provide.

[Editor’s note:[Revised in 2018] With the advent of eFiling and eComments, OAH’s systems continue to evolve. As of publication, eFilingwill be necessary in most circumstances. Using the eComments system remains voluntary, unless the APA requires the ALJ to receive comments (as noted above and in the individual chapters).OAH, the Revisor’s Office, and Secretary of State’s Office nowaccomplish the final steps electronically as permitted in Minnesota Statutes, section 14.16. This is how it works. When the agency eFilesthe signed Order Adopting Rules, OAH requests the Final Rules from the Revisor’s Office.OAH files the Final Rules with the Secretary of State’s Office. The Secretary of State’s Office serves the Final Rules on the Governor’s Office to start the 14-day veto periodvia email to the Governor’s Office, using a distribution list that includes the agency. The email contains no explanation and is how you will know your rule has been served on the Governor’s Office, so you must watch for it.Also, these steps can take place swiftly.

Questions remain about exact procedure, so giving precise instructions that fit all situations is elusive.The editor expects further experience willyield clarity for editing subsequent editions. As always, the editor welcomes your suggestions for adding to our collective wisdom.Also, the Interagency Rules Committee will continue to monitor, discuss, and share these developments.]

1.7[Revised in 2018]Ongoing rule management and oversight responsibilities. An agency has a number of ongoing responsibilities regarding the agency’s rules.While not a new requirement, the Editor added new section 1.7.1 for convenience.

1.7.1 The agency must maintain a rulemaking mailing list under Minnesota Statutes, section 14.14, subd. 1a, which states:

“(a) Each agency shall maintain a list of all persons who have registered with the agency for the purpose of receiving notice of rule proceedings. Persons may register to receive notice of rule proceedings by submitting to the agency:

(1)their electronic mail address; or

(2) their name and United States mail address.”

Editor’s note: The statute further states, “[t]he agency may inquire as to whether those persons on the list wish to remain on it and may remove persons for whom there is a negative reply or no reply within 60 days.”

1.7.2 Public rulemaking docket. The agency must maintain a current, public rulemaking docket. The rulemaking docket must contain a listing of each possible proposed rule currently under active consideration and each pending rulemaking proceeding. There is an extensive list of details that must be included for each rulemaking project. Minnesota Statutes, section14.366.

1.7.3 Obsolete rules report. These are the main requirements of Minnesota Statutes, section14.05, subdivision5:

-By December1 of each year, the agency must submit a report to the governor, the Legislative Coordinating Commission [or LCC], the policy and funding committees and divisions with jurisdiction over the agency, and the Revisor of Statutes.

-The report must list any of the agency’s rules that are obsolete, unnecessary, or duplicative of other state or federal statutes or rules.

-The agency must either give a timetable for repeal of the rules or must develop a bill to repeal the rules.

-The report must be signed by the agency person responsible for identifying and initiating repeal of the rules.

-The report must also give the status of any rules identified in the agency’s prior year’s report.

[New in 2014]Editor’s Note:The LCC specifically requests that we submit the annual reports via electronic copy . Submission in electronic format has become so prevalent and accepted for official business, however, that the Editor sees no reason to send this report in paper to any of the other officials named in the statute either.]

1.7.3 Maintaining Official Rulemaking Records. Minnesota Statutes, section14.365, states, “The agency shall maintain the official rulemaking record for every rule adopted under sections 14.05 to 14.389. The record must be available for public inspection. The record required by this section constitutes the official and exclusive agency rulemaking record with respect to agency action on or judicial review of the rule.”

Editor’s note:In 2013, the Legislature added Minnesota Statutes, section 13.356, to the Data Practices Act, protecting certain telephone and email lists. Data maintained in your historic rulemaking files might be affected.Data classificationsare based on the law at the time a request is made. In other words, data that was public at the time it was created can be changed retroactively to private data by a change to the Data Practices Act. Consult your data practices resource or legal counsel if you receive a data request related to rulemaking files.

1.8 Interagency Rules Committee.The IRC is an informal group of agency staff that meets approximately quarterly to discuss common issues related to rulemaking. It was begun in February1995 by a cadre of state agency rules staff. Meeting attendance is usually ranges between 15to 30persons. The committee communicates via a subscription service (see below). The IRC has provided the organization and contributed expertise for developing thisMinnesota Rulemaking Manual. It also sponsors the annual rulemaking seminar. And it serves as an interagency forum to discuss proposed legislation governing rulemaking procedures.

Communication System. The Interagency Rules Committee communicates through GovDelivery Client Services, a web-based subscription service that delivers email messages to those who have subscribed.Thus the messages you receive will be from Interagency Rules Committee <. If you wish to subscribe, send a message using your agency email address to Cretia Weaver at and she will register you.

Here’s how our communication works.