• Ian

EXPEDITE THIS FOR ME, PLEASE

Updated: Jul 10, 2021

In the normal world, "expedite" means to speed something up, to make a process go faster than it normally would. You forgot your mom's birthday, so you need to get expedited shipping for that last-minute gift you are getting her. But in the Minnesota rulemaking world, expedited refers to a statutory rulemaking process, a process that expedites the normally slow and tedious rulemaking process to one that can be completed in half the time with half the cost. So yes. Let's expedite this, please.


Expedited shipping has nothing on expedited rulemaking


Expedited rulemaking wasn't added to Minnesota's Administrative Procedure Act until 1997, and the statute that houses the expedited process, Minnesota Statutes, section 14.389, hasn't changed much since then. And the process is fairly straightforward.


The legislature must grant an agency specific authority--as for all rules--to use the expedited process. The difference is that when the legislature grants an agency permission to use expedited rulemaking, the agency can only use the expedited process once. Accordingly, the legislature grants an agency expedited authority to (1) amend the agency's rules as specifically directed by the legislature, or (2) adopt a new rule on a specific statute. In other words, the legislature knows what it wants, and it wants it fast, usually less than 6 months.


The legislature knows that it can get an agency to follow its legislative directive so quickly because the expedited process does not require a rule hearing (almost always). And an agency does not have to prepare a SONAR, that critical yet mind-numbing document that makes one rather read Proust in between bouts of paint watching. Both the hearing and a SONAR are expensive and time-consuming aspects of the normal rulemaking process. So when the legislature gives an agency expedited authority, the agency thanks the legislature and holds a small rulemaking party.


But expedited rulemaking is not always seamless for the agency. First, the agency must still complete several procedural steps required for most rules, including publishing the rule twice in the State Register and allowing for public comment. Second, the agency must submit its rule to the Office of Administrative Hearings (OAH) for a legal review. Third, sometimes the agency goes beyond what the legislature tells it to do, and the agency gets caught and has its rule--or parts of its rule--rejected. And fourth, sometimes an agency forgets the requirement that it must publish the agency's notice of intent to adopt rules within 18 months after the legislature tells it to. This happens. Oops.


An example of the legislature authorizing expedited rulemaking


You probably should have seen several examples in my rulemaking summary of the 2021 First Special Session. But here is an example:


"(a) The commissioner of public safety must amend Minnesota Rules, parts 7410.2500 and 7410.2800, to include a licensed physician assistant and an advanced practice registered nurse as among the medical providers authorized to complete any required medical statement or report.


(b) The commissioner may use the expedited rulemaking process under Minnesota Statutes, section 14.389, for rulemaking as described in paragraph (a). The commissioner must not adopt any changes that are not specifically described in paragraph (a) pursuant to this grant of rulemaking authority. This is a onetime grant of authority."


The legislature knows what it wants the agency to do, and just to be sure that the agency doesn't get funny ideas, it tells the agency not to do any other changes and that the authority is onetime only. You know, just in case OAH forgets the law.


The "but there is always an exception" exception


The legislature can open the door for a possible hearing if it references Minnesota Statutes, section 14.389, subdivision 5, as opposed to just section 14.389. Then if 100 (it was just changed to 50--read my summary yet?) people request a hearing, the agency must hold one. Bummer. And as a bigger bummer to other agencies, the Department of Natural Resources has permanent expedited rulemaking authority for certain subjects. Take a peek at Minnesota Statutes, section 84.027, subdivision 13a. And you can also sneak a quick peek at the subdivision above 13a (its 13), which I may tackle a few blogs into the future.


I hope this process make a bit more sense now. If not, don't hesitate to contact me.


Ian







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