Section 1 [Objections to Rules or Proposed Rules] changes the Legislature’s role in overseeing agency rulemaking.
Under current law, when a legislative policy committee or the Legislative Coordinating Commission (LCC) determines a rule (including “proposed rules” in certain circumstances) is beyond the procedural or substantive authority delegated to the agency, the committee or LCC may file an objection with the Secretary of State. The agency then has a chance to respond to the objection. The committee may then withdraw or modify its objection. If the committee does not withdraw its objection, the agency will have the burden to show that the rule is valid if the agency goes to court to enforce the rule.
Section 1 revises this rule challenge system in several ways.
Proposed rules: Under current law, a proposed rule is only subject to challenge after an administrative law judge determines that the agency has not demonstrated the need for or reasonableness of the proposed rule. As amended by section 1, any proposed rule is subject to review and objection.
Grounds on which a committee may object to a rule: Current law allows objection if the rule is “beyond the procedural or substantive authority delegated to the agency.” As amended, the LCC or policy committee may object to a rule or proposed rule if it:
(1) is beyond the procedural or substantive authority delegated to the agency;
(2) is inconsistent with the enabling statute;
(3) is unnecessary or redundant; or
(4) fails to meet the requirements of Minnesota Statutes, section 14.131, that require the agency to prepare a statement of need and reasonableness.
Result of legislative objection: Under current law, the agency may adopt a proposed rule over an objection filed by a legislative committee. As amended by Section 1, an agency may not adopt a proposed rule for which an objection is filed until the Legislature adjourns the annual legislative session that began after the vote of the commission or committee. The LCC or committee that files an objection must, as soon as practical, make a recommendation on a bill that approves the proposed rule, prohibits adoption of the proposed rule, or amends or repeals the law governing a previously adopted rule for which an objection was filed.
Consequences for adoption of a rule to which the committee or LCC has filed an objection: Under current law, in any proceeding for judicial review or for enforcement of a rule to which a committee or the LCC objected, the agency has the burden to establish that the whole or portion of the rule objected to is valid. As amended by Section 1, the agency has the burden to show by clear and convincing evidence that the rule is valid and must also demonstrate that the objection is not justified under any of the grounds for objection.
Section 2 [Agency Report to Commission] expands the list of information that an agency must include in its reports to the Sunset Advisory Commission to include a list of rules promulgated by the agency and specified information about the rules.
Section 3 [Criteria for Review] adds assessment of an agency’s rules to the criteria the Sunset Advisory Commission shall consider in its agency review.
Section 4 [Recommendations] adds recommendations for repeal, consolidation, transfer, or amendment of rules promulgated by an agency to the list of items to be included in the Sunset Advisory Commission's report on a state agency.
Section 5 [Authority to Adopt Original Rules Restricted] is amended to change and add conditions to an agency’s authority to adopt, amend, suspend, or repeal its rules.
Section 6 [Limitation Regarding Certain Policies, Guidelines, and Other Nonbinding Interpretive Statements] is a new section of law that precludes an agency from implementing or enforcing a policy, guideline, or other nonbinding interpretive statement that meets the definition of a rule if the policy, guideline, or other nonbinding interpretive statement has not been adopted as a rule.
Section 7 [Notice to Legislature] adds the Legislative Coordinating Commission to the list of entities to which an agency must mail notice of an intent to adopt rules. Current law requires that when an agency mails notice of intent to adopt a rule, the agency must send a copy of the notice and the agency’s statement of need and reasonableness to the chair and ranking minority members of the policy and budget committees with jurisdiction over the subject matter of the rules.
Section 8 [Statement of Need and Reasonableness] adds an assessment of the cumulative effect of the rules with other federal and state regulations and local ordinances and rules to the list of requirements that an agency must include in its statement of need and reasonableness when proposing a rule. The statement must describe, with reasonable particularity, the scientific, technical, and economic information that supports the proposed rule.
Section 9 [Notice] applies to agency rulemaking that is exempt for good cause from typical rulemaking procedures. This section amends the notice requirement to require an agency to give 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 LCC when the agency adopts, amends, or repeals a rule under this good cause exemption authority.
Section 10 [Notice and Comment] applies to agency rulemaking through an expedited procedure that may be used when a law so specifies. Section 12 amends the notice requirement to require an agency to give 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 LCC when the agency adopts, amends, or repeals rules under this expedited procedure.
Section 11 [Review and Sunset of Certain Rules; Report] requires certain agencies (Pollution Control Agency, Department of Natural Resource, Board of Water and Soil Resources, Environmental Quality Board, and the Department of Agriculture) to submit a list of all rules promulgated by the agency to the governor, the LCC, and the policy and funding committees and divisions with jurisdiction over the agency by January 15, 2013. The submission must include specified information about each rule. The Legislature must refer the agency reports to appropriate policy committees for preparation of draft legislation to sunset rules that are obsolete, unnecessary, or duplicative of other state or federal statutes or rule.