3-0210-15112-1

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENTOF ADMINISTRATION

In the Matter of the Proposed Amendments to Rules Governing Special Fire Protection Systems (optional),

Minnesota Rules, Chapter 1306

REPORT OF THE

ADMINISTRATIVE LAW JUDGE

A hearing concerning the above rules was conducted by Administrative Law Judge Kathleen D. Sheehy beginning at 9:30 a.m. on December 4, 2002, at the Building Codes and Standards Division Offices, 408 Metro Square Building, 121 E. 7^th Place, St. Paul, Minnesota. The hearing continued until all interested persons, groups and associations had an opportunity to be heard concerning the proposed rules.

The hearing and this report are part of a rulemaking process that must occur under the Minnesota Administrative Procedure Act[1] before an agency can adopt rules. The legislature has designed this process to ensure that state agencies have met all the requirements that Minnesota law specifies for adopting rules. Those requirements include assurances that the proposed rules are necessary and reasonable, that they are within the agency’s statutory authority, and that any modifications of the rules made after their initial publication does not result in rules that are substantially different from those originally proposed.

The rulemaking process also includes a hearing, when a sufficient number of persons request a hearing. The hearing is intended to allow the agency and the Administrative Law Judge reviewing the proposed rules to hear public comment regarding the impact of the proposed rules and what changes might be appropriate. The Administrative Law Judge is employed by the Office of Administrative Hearings, an agency independent of the Department of Administration (Department).

Amy Kvalseth, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106, appeared on behalf of the Building Codes and Standards Division of the Department of Administration. Thomas Joachim, State Building Official and Director of the Building Codes and Standards Division, and Colleen Chirhart, Rule Coordinator, Building Codes and Standards Division, Minnesota Department of Administration, 408 Metro Square Building, 121 East 7^th Place, St. Paul, MN 55101, presented the Department’s position and answered questions at the hearing. Approximately 15 persons attended the hearings and 12 signed the hearing register. Ten people spoke at the hearing.

Several public comments were submitted before the hearing. After the hearing ended, the Administrative Law Judge kept the record open for 19 calendar days until December 23, 2002, to allow interested persons and the Department an opportunity to submit written comments. During this initial comment period the Administrative Law Judge received written comments from the Department and seven public comments. Following the initial comment period, the Administrative Procedure Act requires that the hearing record remain open for another five business days to allow interested parties and the agency to respond to any written comments. The agency did respond, as well as eleven other individuals and groups. The hearing record closed for all purposes on December 31, 2002.

SUMMARY OF CONCLUSIONS

1. The Department has established the need for and reasonableness of the rule concerning the sprinkler requirement in townhouses, part 1306.0030, Item E, and substitute construction, part 1306.0050.

2. The Department has failed to establish the reasonableness of the rule concerning an alternate on-site source of water, part 1306.0040.

3. The rules have otherwise been shown to be needed and reasonable.

Based upon all the testimony, exhibits and written comments, the Administrative Law Judge makes the following:

FINDINGS OF FACT

Procedural Requirements

1. On July 10, 2000, the Department published a Request for Comments on Planned Amendments to Rules Governing the Minnesota State Building Code in the State Register. The request indicated that the Department intended to review proposed changes to the rules relating to special fire suppression systems. The Request for Comments was published at 25 State Register 62.[2]

2. By a letter dated October 3, 2002,[3] the Department petitioned the Chief Administrative Law Judge to omit the text of the proposed rules from publication in the State Register pursuant to Minn. Stat. § 14.14, subd. 1a(b).[4] The Department estimated that the cost of publication of its entire package of building code rules (eight in all) would be approximately $12,000.

3. By a letter dated October 8, 2002, the Department requested that the Office of Administrative Hearings schedule a rule hearing and assign an Administrative Law Judge. The Department also filed a proposed Dual Notice of Intent to Adopt Rules Without a Public Hearing, a copy of the proposed rules and a draft of the Statement of Need and Reasonableness (SONAR).[5] The Department asked for prior approval of its additional notice plan.

4. In a letter dated October 8, 2002, the Administrative Law Judge approved the Dual Notice. In a letter dated October 15, 2002, the Administrative Law Judge approved the additional notice plan.

5. In a letter dated October 9, 2002, the Chief Administrative Law Judge approved the agency’s petition to omit the text of proposed rules from publication in the State Register.[6]

6. On October 17, 2002, the Department mailed the Dual Notice to all persons and associations who had registered their names with the agency for the purpose of receiving such notice and to all persons identified in the additional notice plan.[7]

7. On October 18, 2002, the Department mailed the Dual Notice and the Statement of Need and Reasonableness to the legislators specified in Minn. Stat. § 14.116.[8]

8. On October 18, 2002, the Department mailed a copy of the Statement of Need and Reasonableness to the Legislative Reference Library.[9]

9. On October 21, 2002, the Dual Notice, signed by Kath Ouska, Assistant Commissioner, Department of Administration, was published at 27 State Register 575-577.[10]

10. On the day of the hearing the following documents were placed in the record:

A. The first Request for Comments published in the State Register.

B. The second Request for Comments published in the State Register.

C. The proposed rule, including Revisor’s approval.[11]

D. The Statement of Need and Reasonableness.

E. A copy of the certificate and transmittal letter showing that the agency sent a copy of the SONAR to the Legislative Reference Library.

F. The Dual Notice as mailed and published in the State Register.

G. Certificate of Mailing the Dual Notice and the Certificate of Accuracy of Mailing List.

H. Certificate of Mailing to Additional Notice recipients.

I. Written comments on the proposed rule received by the Department during the comment period.

J. Department’s petition for omission of the rule language from publication in the State Register and Chief Administrative Law Judge’s approval of petition.

K. Certificate of Mailing Notice to Legislators.

L. Notice of Hearing and mailing list.

Nature of the Proposed Rules

11. These proposed rules relate to the Minnesota State Building Code, which gives the Department authority to govern the construction, safety, and cost of construction of buildings within the state.[12] These rules are a special fire suppression system option within the state building code that local jurisdictions may adopt to reduce the threshold for requiring sprinklers for new construction or additions to existing buildings. Some of the proposed amendments coordinate these rules with the International Building Code, which proposes changes in occupancy classifications and terminology.[13] The International Building Code is currently going through the rulemaking process.

Statutory Authority

12. Two sections of the Minnesota State Building Code provide for authority to adopt rules. The first, Minn. Stat. § 16B.59, provides:

The State Building Code governs the construction, reconstruction, alteration, and repair of buildings and other structures to which the code is applicable. The commissioner shall administer and amend a state code of building construction which will provide basic and uniform performance standards, establish reasonable safeguards for health, safety, welfare, comfort, and security of the residents of this state and provide for the use of modern methods, devices, materials, and techniques which will in part tend to lower construction costs. The construction of buildings should be permitted at the least possible cost consistent with recognized standards of health and safety.[14]

The other section, Minn. Stat. § 16B.61, subd. 1, provides:

Subject to sections 16B.59 to 16B.75, the commissioner shall by rule establish a code of standards for the construction, reconstruction, alteration, and repair of buildings, governing matters of structural materials, design and construction, fire protection, health, sanitation, and safety, including design and construction standards regarding heat loss control, illumination, and climate control. The code must also include duties and responsibilities for code administration, including procedures for administrative action, penalties, and suspension and revocation of certification. The code must conform insofar as practicable to model building codes generally accepted and in use throughout the United States, including a code for building conservation. In the preparation of the code, consideration must be given to the existing statewide specialty codes presently in use in the state. Model codes with necessary modifications and statewide specialty codes may be adopted by reference. The code must be based on the application of scientific principles, approved tests, and professional judgment. To the extent possible, the code must be adopted in terms of desired results instead of the means of achieving those results, avoiding wherever possible the incorporation of specifications of particular methods or materials. To that end the code must encourage the use of new methods and new materials. Except as otherwise provided in sections 16B.59 to16B.75, the commissioner shall administer and enforce the provisions of those sections.[15]

Furthermore, “[t]he commissioner shall approve any proposed amendments deemed by the commissioner to be reasonable in conformity with the policy and purpose of the code and justified under the particular circumstances involved. Upon adoption, a copy of each amendment must be distributed to the governing bodies of all affected municipalities.”[16]

The Department has established its general statutory authority to adopt rules in this area.

Department’s Statement of Purpose and Policy

13. The Department describes the purpose of the act and the policy of the state as follows:

Minnesota Rules, Chapter 1306 is intended to provide local jurisdictions with the ability to adopt more comprehensive fire sprinkler protection provisions for structures within their jurisdictions, to provide for the life safety of the constituents, and the fire safety of the property they are entrusted to protect. Fire sprinklers offer a cost effective alternative to. . . the traditional fire suppression method, which is extremely costly, both in terms of capital and operating needs and has had a very poor record of effectiveness for saving lives and property. Communities that adopt chapter 1306 have a greater ability to utilize limited taxpayer dollars more efficiently by using volunteer fire departments and a reduced number of fire stations and equipment.[17]

Regulatory Analysis

14. The Administrative Procedure Act requires an agency adopting rules to consider six factors in its Statement of Need and Reasonableness. The first factor requires:

(1) A description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule.

The Department states that the classes of persons who will be affected by and will benefit from the proposed rules include municipal building officials and inspectors, commercial and residential building contractors who perform both new construction and remodeling, architects and engineers, building material suppliers, and building owners. In addition, the general public who live, work, shop, and conduct business in buildings will be affected by and benefit from these proposed rules. Those who will bear the cost of these rules include building owners, material suppliers, and building contractors. The costs associated with the adoption of these rules will be addressed in the following sections. In addition to those affected by these rules, members of the fire service and fire suppression personnel, the insurance industry and policy holders, and community taxpayers will benefit from the added protections of these rules.

(2) The probable costs of the Agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues.

The Department does not anticipate additional costs in its implementation and enforcement of these rules. While certain smaller buildings constructed under these rules will bear some added costs, those costs are minor in comparison to those associated with the destruction brought on by fire. The Department notes that many smaller buildings constructed under these rules will be exempted from the rules due to their remote location. There will be no effect on state revenues.

(3) The determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule.

The Department states that there are no less costly or intrusive methods for achieving the purpose of these rules. Building contractors disagree; their arguments will be addressed in the analysis of individual rules below.

(4) A description of any alternative methods for achieving the purpose of the proposed rules that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rules.

The Department based these rules on public safety considerations, and local building officials can choose to accept alternate options within the code to reduce other code requirements with the installation of fire sprinklers. The Department stressed the high level of fire protection afforded by sprinklers and felt that no alternative existed.

(5) The probable costs of complying with the proposed rules.

The Building Codes and Standards Division estimates that the cost of installing fire sprinklers in commercial buildings is approximately $2.24 per square foot. Most insurance companies offer discounts on fire insurance for buildings protected by automatic fire sprinkler systems. The Department states that the number of building code requirements will be reduced with the adoption of these rules, especially with regard to sprinkler protection requirements.

(6) An assessment of any differences between the proposed rules and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.

There are no federal regulations that require automatic fire sprinklers in certain buildings or occupancies; however, the Hotel and Motel Fire Safety Act of 1990 mandates that federal employees traveling must stay in public accommodations that comply with NFPA 13 or 13R with respect to hardwired single station smoke detectors in each room and automatic sprinkler systems with a head in each room. Properties lower than three stories are exempt from the sprinkler requirement.

The Department has satisfied the requirements of Minn. Stat. § 14.131, which requires it to ascertain the above information to the extent the agency can do so through reasonable effort.

Performance Based Rules

15. The Administrative Procedure Act[18] also requires an agency to describe how it has considered and implemented the legislative policy supporting performance- based regulatory systems. A performance-based rule is one that emphasizes superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.[19] The statutory authority for adopting these rules[20] as well as the purpose and policy of the state building code[21] both address the importance of performance-based standards in the implementation of the code. The Department also states that the International Building Code, associated with chapter 1306, incorporates performance-related provisions that comply with the statutory requirement to adopt, to the extent possible, performance-based standards.[22]

Additional Notice

16. In addition to the mailed and published notice required by statute, the Department also mailed a copy of the rules to anyone requesting them, including all municipal code officials and those involved in code administration, members of the Construction Codes Advisory Council, and the Metropolitan Council. The Department’s rulemaking mailing list contains numerous trade associations. A copy of the notice, the proposed rules and the SONAR were also published on the Department’s web page.

17. The Department convened a rulemaking advisory committee, which included members of the fire service, fire chiefs, fire marshals, building code officials, members of the Building Code and Standards Division, members of the State Fire Marshal Division, local government, the Builders Association of Minnesota (BAM), Multi-Housing Association of Minnesota, and the Building Owners and Managers Association of Minnesota.[23] The Department continued to stay in contact with those people and groups who were interested in the rulemaking proceedings.

Rulemaking Legal Standards

18. Under Minn. Stat. § 14.14, subd. 2, and Minn. Rule 1400.2100, a determination must be made in a rulemaking proceeding as to whether the agency has established the need for and reasonableness of the proposed rule by an affirmative presentation of facts. In support of a rule, an agency may rely on legislative facts, namely general facts concerning questions of law, policy and discretion, or it may simply rely on interpretation of a statute, or stated policy preferences.[24] The Department prepared a Statement of Need and Reasonableness in support of the proposed rules. At the hearing, the Department primarily relied upon the SONAR as its affirmative presentation of need and reasonableness for the proposed amendments. The SONAR was supplemented by comments made by agency representatives at the public hearing and in written post-hearing submissions.

19. The question of whether a rule has been shown to be reasonable focuses on whether it has been shown to have a rational basis, or whether it is arbitrary, based upon the rulemaking record. Minnesota case law has equated an unreasonable rule with an arbitrary rule.[25] Arbitrary or unreasonable agency action is action without consideration and in disregard of the facts and circumstances of the case.[26] A rule is generally found to be reasonable if it is rationally related to the end sought to be achieved by the governing statute.[27] The Minnesota Supreme Court has further defined an agency’s burden in adopting rules by requiring it to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[28] An agency is entitled to make choices between possible approaches as long as the choice made is rational. Generally, it is not the proper role of the Administrative Law Judge to determine which policy alternative presents the “best” approach since this would invade the policy-making discretion of the agency. The question is rather whether the choice made by the agency is one that a rational person could have made.[29]

20. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the rule adoption procedure was complied with, whether the rule grants undue discretion, whether the Board has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[30] In this matter, the Department has proposed some changes to the rule language after publication in the State Register. Because of this circumstance, the Administrative Law Judge must determine if the new language is substantially different from that which was originally proposed.[31]

21. The standards to determine if new language is substantially different are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced … in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the … notice of hearing and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.” In determining whether modifications make the rules substantially different, the Administrative Law Judge is to consider whether “persons who will be affected by the rule should have understood that the rulemaking proceeding … could affect their interests,” whether “the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the … notice of hearing,” and whether “the effects of the rule differ from the effects of the proposed rule contained in the … notice of hearing.”[32] At the hearing, the Administrative Law Judge and a commenter raised a point of confusion in one subpart of the rule, which the Department subsequently clarified. Any substantive language that differs from the rule as published in the State Register has been assessed to determine whether the language is substantially different. Because some of the changes are not controversial, not all of the altered language has been discussed. Any change not discussed is found to be not substantially different from the rule as published in the State Register. Substantive and controversial changes are discussed in the following discussion of the proposed rules.

Analysis of the Proposed Rules

General

22. This report is limited to discussion of the portions of the proposed rules that received significant comment or otherwise need to be examined. When proposed rules are adequately supported by the SONAR or the Department’s oral or written comments, a detailed discussion of the proposed rules is unnecessary. The agency has demonstrated the need for and reasonableness of all rule provisions not specifically discussed in this report by an affirmative presentation of facts. All provisions not specifically discussed are authorized by statute and there are no other problems that would prevent the adoption of the rules.

Discussion of Proposed Rules by Subpart

1306.0020 -- Municipal Option

Subparts 2 and 3 of the proposed rule describe the application of the rule to new buildings, buildings increased in total floor area, or buildings in which the occupancy classification has changed. It also sets forth some exceptions. No person objected to these provisions; however, the Administrative Law Judge recommends that the following changes be made to clarify the meaning:

Subp. 2. Existing and new buildings. Automatic sprinkler systems for new buildings, buildings increased in total floor area (including the existing building), or buildings in which the occupancy classification has changed, must be installed and maintained in operational condition within the structure. The requirements of this subpart apply to structures that fall within the occupancy classifications established in part 1306.0030, items A to E.

Exceptions:

1. The floor area of minor additions that do not increase the occupant load do does not have to be figured into the square footage for occupancy classifications established in part 1306.0030, items A to E.

2. The existing portion of R-2 apartment occupancies, attached R-3 occupancies, and attached townhomes ~~are~~ is not required to be sprinklered under this chapter.

Subp. 3. New Buildings. Automatic sprinkler systems for new buildings, additions to existing buildings, or buildings in which the occupancy classification has changed must be installed and maintained in operational condition within the structure. The requirements of this subpart apply to structures that fall within the occupancy classifications established in part 1306.0030, items A to E.

Exception: The floor area of minor additions that do not increase the occupant load do does not have to be figured into the square footage for occupancy classifications established in part 1306.0030, items A to E.

1306.0030 -- Requirements.

Much of the controversy in this proceeding concerns the application of fire sprinkler requirements to townhouses built to the International Residential Code[33] with 8,500 gross square feet[34] or more of floor area. All of those requesting a hearing regarding these rules named this added requirement as their sole point of contention.

23. Part E of the rule permits municipalities to require sprinklers for optional occupancy groups. Municipalities may choose between option 1 or option 2 as follows: Option 1 includes group R-1 and R-2 occupancies with 8,500 gross square feet or more of floor area or with dwelling units or guestrooms on three or more floors; and attached R-3 occupancies and attached townhouses built to the International Residential Code with 8,500 gross square feet or more of floor area. All floors, basements, and garages are included in this floor area threshold.[35] Option 2 is attached R-3 occupancies and attached townhouses built to the International Residential Code with more than 16 dwelling units or more than three stories in height.

24. In developing the proposed rule, the Building Codes and Standards Division facilitated a 1306 Advisory Committee that included members from the construction industry, multi-housing interests, fire service, building owners, architects and engineers, fire sprinkler industry, code officials, and the public. All members of the committee contributed to the content of the proposed rules, and the Department maintains that consensus was reached on all items.[36]

25. According to the Department, the threshold requirement of 8,500 gross square feet provides an added safety measure for both the occupants of these buildings and for the firefighters who must enter these buildings to contain fires.[37] The Advisory Committee arrived at the 8,500 square foot requirement through a compromise between its fire service members and its building contractor members.[38] Attached R-3 and attached townhouses were added due to input from the fire service, building officials, and city representatives based upon concern about the growing number of attached R-3 and attached townhouses being erected in their communities and the increased fire hazard.[39] Fires in attached townhouses are similar to those in apartments and hotels, because migrates from residence to residence via the building’s exterior. Finally, these proposed rules, in an effort to avoid excessive costs, allows municipalities to exclude existing apartments, R-3 occupancies, and attached townhouses from a retroactive application of the rules.

26. BAM and Centex Homes each object to 1306.0030, Item E on a number of grounds. First, BAM suggests removing R-2 and R-3 occupancies from Option 1, as well as removing the requirement that basements and garages be included in the calculation of gross square feet of floor area. BAM also suggests that Option 2 apply to both R-2 and R-3 occupancies with more than 12 dwelling units or more than three stories in height.[40] BAM argues that the 8,500 square foot threshold is arbitrary with respect to R-3 occupancies and that fire resistive construction currently used in R-2 and attached R-3 buildings makes sprinklers unnecessary.[41] It further argues that townhouses have not been shown to be statistically more dangerous than other types of occupancies.[42]

27. Second, BAM and Centex contend that sprinklers installed in unheated garages may freeze and burst in the winter.[43] BAM cites to NFPA 13-R as its basis that typical R-2 and attached R-3 garages must have sprinklers. Third, BAM and Centex maintain that townhomes have become the entry level product for first-time home buyers and that the cost of sprinklers is financially burdensome for this group.[44]

28. With regard to the first argument raised by BAM and Centex, the fact that the threshold requirement of 8,500 square feet was the result of negotiation between the firefighters and the building contractors does not make it arbitrary in the sense that it is capricious or lacks a rational basis. The firefighters wanted the threshold to be set at 2,000 gross square feet,[45] the builders wanted a higher number. The consensus threshold of 8,500 square feet represents a compromise to both groups that is based on both safety considerations and cost. It is not unreasonable or arbitrary. In addition, the firefighters have established that requiring the use of sprinklers in R-2 and R-3 attached townhouses is reasonable, even though these buildings are constructed with other fire- resistive materials. The concern expressed by firefighters is that fire can spread quickly through the roof and from an adjoining roof to the interior of other units. Sprinklers contain fires and the smoke they generate. It is not an unreasonable policy to require sprinklers for the protection of the public.

29. With regard to the issue of requiring sprinklers in unheated garages, there is evidence in the record that if sprinkler systems are properly installed, the risks of freezing are reduced or eliminated.[46] With regard to cost, there is a great deal of evidence in the record that installation of sprinklers in townhouses costs less than the carpeting that is typically installed in these units. Furthermore, the costs of installing sprinklers may be offset by cost savings produced by narrower road requirements, reduced requirements for fire department access roads, greater fire hydrant spacing, fewer fire-rated wall and floor assemblies, and reduced fire insurance premiums. Given the public safety benefits, the Administrative Law Judge cannot say that the Department’s decision to allow municipalities to shift some portion of the cost of fire protection to builders and homeowners by requiring the installation of sprinklers is unreasonable, arbitrary, or capricious.

30. The Administrative Law Judge finds that the Department has shown the need for and reasonableness of the rule as proposed.

1306.0040 – Standard.

31. This proposed rule provides in relevant part:

[i]f a public water supply is not available, an alternate on-site source of water may be used if it meets the approval of the building official and fire chief.

(emphasis added). Although no person objected to this language at the hearing or in a comment filed afterward, the Administrative Law Judge finds that the highlighted phrase fails to provide any standard by which the building official and fire chief are to make the determination as to whether an alternate on-site source of water may be used. The lack of a standard is a defect in the proposed rule because it grants unlimited discretion to those officials. The Department could remedy this defect by phrasing the rule as follows: “If a public water supply is not available, the building official and fire chief shall approve the use of an alternate on-site source of water if the alternate source provides protection that is comparable to that provided by a public water supply.”

1306.0050 – Substitute Construction

32. At the time of hearing, both the Administrative Law Judge and a representative of Centex Homes expressed concern about confusing language contained in this rule part, which states:

The installation of an automatic sprinkler system, as required by this chapter, does not preclude the substitution of one-hour fire-resistive construction as permitted by the International Building Code, Table 601, footnote d.

33. A representative from Centex Homes objected to the use of a double negative and stated that certain municipalities have interpreted this provision to prohibit them from substituting fire-resistive construction for sprinklers. The Department clarified that this part was added to the rule to show that adoption of 1306 does not prohibit use of other sections of the building code, and the Department subsequently proposed an amendment to change “does not preclude” to “would still allow.” The language proposed by the Department is needed and reasonable, and it is not substantially different from the rule as published in the State Register.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Department gave proper notice of the hearings in this matter.

2. The Department has fulfilled the procedural requirements of Minn. Stat. §§ 14.14, subds. 1, 1a, 1b and 14.14, subds. 2 and 2a, and all other procedural requirements of law or rule.

3. The Department has demonstrated its statutory authority to adopt the proposed rules and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1, 14.15, subd. 3 and 14.50 (i) and (ii).

4. The Department has documented the need for and reasonableness of its proposed rules with an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 2 and 14.50 (iii), except as noted in Finding of Fact No. 31.

5. The amendments and additions to the proposed rules which were suggested by the Department after publication in the State Register do not result in rules which are substantially different from the proposed rules as published in the State Register within the meaning of Minn. Stat. §§ 14.05, subd. 2 and 14.15, subd. 3.

6. Due to Conclusion No. 4, this Report has been submitted to the Chief Administrative Law Judge for his approval pursuant to Minn. Stat. § 14.15, subd. 3 or 4.

7. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.

8. A finding or conclusion of need and reasonableness in regard to any particular rule subsection does not preclude and should not discourage the Department from further modification of the proposed rules based upon an examination of the public comments, provided that the rule finally adopted is based upon facts appearing in this rule hearing record.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the proposed rules be adopted, except where specifically otherwise noted above.

Dated this

30th

Day of

January

2003.

/s/ Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

Reported: Transcript Prepared.

NOTICE

The Department must wait at least five working days before taking any final action on the rules. During that period, this Report must be made available to all interested persons upon request.

Pursuant to the provisions of Minnesota Rules, part 1400.2100, and Minnesota Statutes, section 14.15, subdivisions 3 and 4, this Report has been submitted to the Chief Administrative Law Judge for his approval. If the Chief Administrative Law Judge approves the adverse findings of this Report, he will advise the Commissioner of actions which will correct the defects. If the Department elects to make any changes to the rule, it must resubmit the rule to the Chief Administrative Law Judge for a review of those changes before adopting the rule.

However, in those instances where the Chief Administrative Law Judge identifies defects which relate to the issues of need or reasonableness, the Department may either follow the Chief Administrative Law Judge's suggested actions to cure the defects or, in the alternative, if the Department does not elect to follow the suggested actions, it must submit the proposed rule to the Legislative Coordinating Commission, and the House of Representatives and Senate Policy Committees with primary jurisdiction over state governmental operations for the advice of the Commission and Committees.

When the rule is filed with the Secretary of State, the Department must give notice on the day of filing to all persons who requested that they be informed of the filing.

[4] Minn. Stat. §14.14, subd. 1a(b) provides that:

The chief administrative law judge may authorize an agency to omit from the notice of rule hearing the text of any proposed rules, the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient if: (1) knowledge of the rule is likely to be important to only a small class of persons; (2) the notice of rule hearing states that a free copy of the entire rule is available upon request to the agency; and (3) the notice of rule hearing states in detail the subject matter of the omitted rule, cites the statutory authority for the proposed rule, and details the proposed rule’s purpose and motivation.

[11] The proposed rule containing the Revisor’s signature was filed with the Office of Administrative Hearings on December 13, 2002 and was placed in Ex. C at that time.

[23] BAM withdrew from the Advisory Council toward the end of the process.

[24] Mammenga v. Dept.of Human Services, 442 N.W.2d 786 (Minn. 1989); Manufactured Housing Institute v. Pettersen, 347 N.W.2d 238, 244 (Minn. 1984).

[25] In re Hanson, 275 N.W.2d 790 (Minn. 1978); Hurley v. Chaffee, 231 Minn. 362, 367, 43 N.W.2d 281, 284 (1950).

[26] Greenhill v. Bailey, 519 F.2d 5, 19 (8^th Cir. 1975).

[27] Mammenga, 442 N.W.2d at 789-90; Broen Memorial Home v. Minnesota Department of Human Services, 364 N.W.2d 436, 444 (Minn. Ct. App. 1985).

[28] Manufactured Housing Institute, 347 N.W.2d at 244.

[29] Federal Security Administrator v. Quaker Oats Co., 318 U.S. 218, 233 (1943).

[33] This section of the state building code, Rule 1309, is currently under review by the Office of Administrative Hearings for rule approval without a hearing.

[34] Gross square footage (gsf) is defined in the International Building Code.

[35] According to § 310 of the International Building Code, R-1 occupancies are residential occupancies that are transient in nature, including boarding houses, hotels, and motels; R-2 occupancies are residential occupancies containing more than two dwelling units where occupants are primarily permanent in nature, including apartment houses, boarding houses that are not transient, convents, and dormitories; and R-3 occupancies are residential occupancies where the occupants are primarily permanent in nature and not classified as R-1 or R-2, and where buildings do not contain more than two dwelling units. An “attached R-3” is not specifically defined; however, § 202 of the International Residential Code defines townhouses as a single family dwelling unit constructed in a group of three or more attached units in which each unit extends from foundation to roof and with open space on at least two sides.

[37] Firefighters may attack a fire in a building of 2,000 square feet or less from outside the building; however, they must enter buildings larger than 2,000 square feet in order to contain the fire. Tr. at 49.

[38] Comment of Chief Nyle Zikmund, Minnesota State Fire Chief Association.

[40] BAM Comment at 1, 2. At the time of hearing, BAM suggested that sprinklers should be required in townhouses with sixteen units or more, but in the interest of compromise reduced that number to twelve in its post-hearing comments.

[42] Tr. at 19. BAM referred to the Minnesota Department of Public Safety’s “Fire in Minnesota 2001” report that shows that single family homes have the highest incidence of fires.