WHAT IS A RULE?
Rulemaking is an important government function that allows state agencies to adopt, amend, or repeal rules. A rule is like a statute passed by the legislature, except a rule is adopted by an agency. Both a rule and a statute have the force and effect of law. A statute is more general and establishes the basic form and function of the law, while a rule makes the statute more specific and fills in gaps needed to complement the statute. And for an agency to adopt a rule, the legislature must give it statutory authority, and the agency must complete the requirements of the Administrative Procedure Act (APA), Minnesota Statutes, chapter 14.
WHO IS INVOLVED IN RULEMAKING?
1. Rulemaking involves both the legislature and the agency. The agency must ensure that it has the statutory authority to adopt rules, follow the direction of the legislature when adopting rules, and adopt rules that don’t conflict with the governing statute. Furthermore, the agency must notify the legislature when the agency is adopting a rule, and the agency must send two annual rulemaking reports to the legislature.
2. Another key agency is the Office of Administrative Hearings (OAH). OAH is an independent, quasi-judicial agency that oversees almost all rule proceedings. OAH ensures that an agency follows all the applicable requirements of the APA and that the rule:
- is rationally related to the agency's objective and that the agency demonstrates the need for and reasonableness of the rule;
- does not exceed, conflict with, or grant the agency discretion beyond what is allowed by its enabling statute or other applicable law;
- is not unconstitutional or illegal; and
- follows other substantive and procedural requirements of the APA.
HOW MANY DIFFERENT RULE PROCEDURES ARE THERE?
There are four main ones:
1. "Normal": an agency can adopt a rule with or without a hearing, and the agency must comply with all chapter 14 requirements. A rule is published twice in the State Register, as proposed and adopted.
2. Expedited: an agency needs legislative approval to use this process and can skip the hearing unless 100 people request one (but sometimes this 100-request requirement does not apply). All other chapter 14 requirements apply. A rule is published twice in the State Register, as proposed and adopted.
3. Expedited: an agency needs legislative approval to use this process and can skip the hearing unless 100 people request one (but sometimes this 100-request requirement does not apply). All other chapter 14 requirements apply. A rule is published twice in the State Register, as proposed and adopted.
4. Obsolete rule: any agency can use this fast-track process to repeal an obsolete rule. Most of the normal chapter 14 requirements apply. A rule is published twice in the State Register, as proposed and adopted.
WAIT, THERE ARE MORE RULE PROCEDURES?
There are! A unique procedure would be the expedited emergency rules, including game-and-fish rules. These rules are adopted by the Department of Natural Resources, and they don't even go to OAH. Instead, the Attorney General's Office reviews these rules, with little fanfare or oversight. These rules are published once in the State Register and are effective for a maximum of 18 months. The DNR also has another category of exempt rules for a few areas such as for special management waters. These rules follow their own exempt process and requirements.
Another agency, the Minnesota Occupational Safety and Health Administration, can adopt rules using an exempt process, known as OSHA exempt.
And there is a whole list of exemptions in chapter 14. Click here for the list.
CAN I COMMENT ON A RULE?
Of course! In fact, OAH and agencies (usually) encourage comment. The best place to comment is OAH's eComments site. You should also go to the agency's website to track agency rules and to sign up for the agency's rulemaking list to be notified of current and future rulemaking proceedings.
WHAT IS A SONAR?
In addition to drafting the rule, an agency must also write a Statement of Need and Reasonableness (SONAR). The SONAR is a crucial part of rulemaking, and an agency uses its SONAR to justify the need and reasonableness for the rule. Important to keep in mind is that an agency’s regulatory choice does not have to be the “best” option; rather, the regulation must be a reasonable option for accomplishing the rule’s purpose. Not all rule procedures require a SONAR, but even then an agency must usually justify its rule.