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With new laws come new rules: A look at what’s ahead in Minnesota rulemaking [1]

['More From Author', 'January', 'Ian Lewenstein']

Date: 2024-01-12

Depending on your political predilections, you and other like-minded Minnesotans celebrated many legislative accomplishments this past year. But it would be misguided to forget the 27 administrative rules that were adopted in 2023 — with more to come in 2024.

Administrative rules are laws adopted by state agencies. The plodding bureaucracy behind rulemaking can obscure rulemaking’s importance, but it plays a complementary role to legislation by congealing it into a comprehensive regulatory scheme.

Although rules may not be feted with the gusto of legislation and the pomp of signing ceremonies, they are equally as important to society and Minnesotans.

Increase in adopted rules

The 27 rules that were adopted in 2023 were the most since 2016, when 31 rules were adopted. (This tally doesn’t include annual game and fish regulations).

Of the 27 adopted rules, about 30% were found to have a legal defect by the Office of Administrative Hearings, a nonpartisan agency that reviews the rules to ensure — among other things — that they are constitutional, reasonable, and congruous with legislation. This 30% defect average is aligned with data from the past 10 years, and the number of adopted rules (27) is similarly aligned with historical averages (about 25 adopted rules per calendar year).

But given the flurry of legislative activity in the 2023 session and the accompanying (and oft-cited) 40% growth in state government, expect 2024 and 2025 to experience a noticeable increase in the number of adopted rules and the concomitant increase in the number of legal defects that add to rulemaking’s time and expense.

Agencies prepare to adopt more rules

While legislation establishes the basics of state policy on recreational cannabis, educational standards, and nursing-home regulations, rulemaking fills in the details for these programs by relying on the subject-matter expertise of the scientists, educators, medical professionals and other agency professionals who help build the Legislature’s public-policy preferences into enforceable and understandable laws.

With the 2023 legislative fillip, prepare for lots of rulemaking. How much? At least 52 rules for starters: That’s the number of topics that the Legislature authorized or directed state agencies to proceed with rulemaking on. This number doesn’t include rules that agencies must adopt in response to legislative changes; rules that agencies were already planning to do; rules that may be needed in response to federal law; and, rules that may be needed because of an emergency or other exigent need.

A new rulemaking direction?

Not only will the number of proposed rules increase, but the process by which these rules will be adopted will be different than the standard rulemaking process. For example, the standard process requires a drab document called the statement of need and reasonableness, or SONAR, and the possibility for a public hearing. Together with other important requirements, a public hearing and the SONAR — which details the need and evidence for the rule — promote agency accountability and transparency.

When authorizing rulemaking, however, the Legislature can allow an agency to use a quicker rulemaking process called expedited rulemaking, a process that the Legislature authorized for about 15% of the 2023 rulemaking directives, a small but not insignificant number.

Expedited rulemaking does away with the SONAR and opportunity for a public hearing. Created in 1997 and not significantly changed since, expedited rulemaking was created to closer mimic the federal rulemaking procedure and to allow agencies to adopt noncontroversial rules or rules that need to be done quickly to comply with changes in state or federal law.

As an administrative law judge remarked in a 2020 rule order, expedited rulemaking pales in comparison to the standard rulemaking process, “a process that [requires] far more public input and participation.”

But despite its rushed nature, expedited rulemaking still ensures some measure of agency accountability and transparency, with a 30-day comment period and a legal review from the Office of Administrative Hearings.

A problem emerges, however, when the Legislature authorizes expedited rulemaking for new state programs and regulatory schemes. That’s because rulemaking under the standard process with a public hearing allows for a 30-day OAH legal review — and this review period is often extended. In contrast, expedited rulemaking allows for only a 14-day review period, and there is no ability to extend it.

Proceed with caution

So while expedited rulemaking may be appropriate for rules requiring window-cleaning safety features to comply with a nationally recognized standard, the process is arguably ill-suited for agencies establishing substantive rules to implement new regulatory schemes. No SONAR, no public hearing, and a tight 14-day window for OAH to review newly drafted, complex rules with potentially hundreds of comments. For a process meant to “provide oversight of powers and duties delegated to administrative agencies,” this recipe isn’t ideal.

The 2023 Legislature passed laws that either authorized or mandated expedited rulemaking, including legalization of cannabis and the establishment of the Minnesota Nursing Home Workforce Standards Board.

When the expedited process was first created, a legal treatise included a prediction: “Time will tell whether the Legislature will authorize (expedited rulemaking) in a sufficient number of delegations so that it will become the prevalent rulemaking procedure in Minnesota.”

It looks like that time is now.

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[1] Url: https://minnesotareformer.com/2024/01/12/with-new-laws-come-new-rules-a-look-at-whats-ahead-in-minnesota-rulemaking/

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