August
26, 2009
Carol Milligan
Minnesota Department of Agriculture
RE: In the Matter of the Proposed Amendments to the Rules Governing the
Agriculture Development Bond Beginning Farmer Loan Program,
OAH Docket No. 70-0400-20823-1.
Governor’s Tracking No. AR 475.
Dear Ms. Milligan:
This is to inform you that the
above-referenced rules are approved as to legality. The Administrative Law Judge has not made any
negative findings with respect to these rules.
For clarity of the rulemaking record,
however, the Administrative Law Judge makes the following additional
observations:
Determination
Required by
As
required by Minn. Stat. § 14.128, the Board of the Minnesota Rural Finance
Agency (Board) has made its determination regarding the effect of the rules on the
regulations of a local unit of government.
The Administrative Law Judge reviewed the agency’s determination and
concurs with the agency’s finding that a local unit of government will not be
obliged to adopt or amend an ordinance or other regulation in order to comply
with the proposed rules.
Additional Mailing List
Minnesota
statutes section 14.22 requires that, in addition to publishing proposed rules
and a Notice of Intent to Adopt Rules Without a Public Hearing in the State
Register and mailing the proposed rules and Notice to the agency’s rulemaking
mailing list, the agency must also “make reasonable efforts to notify persons
or classes of persons who may be significantly affected by the rule by giving
notice of its intention in newsletters, newspapers, or other publications, or
through other means of communication.
In its SONAR, the Board stated that it would provide the rules and notice of intent to adopt the rules without a public hearing to the Minnesota Bankers Association, the Independent Community Bankers Association and Farm Credit Services. Earlier in the SONAR, the Board stated that the “classes of people affected by the proposed rules are agriculture lenders and borrowers.” While the Additional Notice Plan provides notice to the lenders referred to in the SONAR, it does not provide any notice to the farmers who are potential borrowers. Such notice would not have been difficult to provide – there are numerous organizations and institutions that represent and serve famers in the state. Nor does there appear to be any information on the Rural Finance Authority’s website about the proposed rule change. The Board does not explain why it failed to notify any organizations representing potential borrowers.
The Board’s failure to develop an Additional
Notice Plan that included all identified classes of persons who may be
significantly affected by the rule or to explain in the SONAR why it did not do
so is an error. In this instance, the
Administrative Law Judge finds that the error is harmless pursuant to Minn.
Stat. § 14.15, subd. 3 because “the failure did not deprive any person or
entity of an opportunity to participate meaningfully in the rulemaking
process.” Although those groups and their
individual members who were not notified may have been deprived of an
opportunity to participate in the process, beginning farmers will benefit from
the proposed rules which are based on federal law and will allow more people to
participate in the loan program.
Therefore, the Board’s failure to include organizations representing
farmers in an Additional Notice Plan did not harm these groups.
The Administrative Law
Judge is concerned about this lack of Additional Notice and reminds the Board
that the additional notice plan
requirement furthers several of the important purposes of the Administrative
Procedure Act, including those which are to:
(a) provide oversight of powers and duties
delegated to administrative agencies;
(b) increase public accountability of
administrative agencies;
(c) increase public access to governmental
information; and to
(d) increase public participation in the
formulation of administrative rules.[1]
While the Legislature was quick to point out that these purposes do not
necessarily result in separate guarantees of substantive rights for regulated
parties, it was the lawmakers’ collective “expectation that better substantive
results will be achieved in the everyday conduct of state government by
improving the process by which those results are attained.”[2] It is widely acknowledged that direct lines
of two-way communication, between government agencies and regulated
parties, benefit the agency, the regulated parties and the broader public.[3]
The rules of the Office
of Administrative Hearings (OAH) permit an agency to ask OAH for prior approval
of the additional notice plan before publishing the request for comments or the
notice of proposed rules.[4] Once the additional notice plan is approved,
the approval is final and the agency can proceed with the rulemaking knowing
that an inadequate notice plan will not require the agency to return to the
early rulemaking stages. This optional
prior approval procedure is frequently used by agencies and boards. In this case, the Board did not seek prior
approval of its additional notice plan under the rule. The Administrative Law Judge strongly
recommends that, in future rulemaking proceedings, the Board take advantage of
the optional prior approval process.
Our Office will file four copies of the adopted rules with the Secretary
of State, who will forward one copy to the Revisor of Statutes, one copy to the
Governor, and one to the Department for its rulemaking record. You will then receive from the Revisor’s
Office three copies of the Notice of Adoption of the rules. Your next step will then be to arrange for
publication of the Notice of Adoption in the State Register.
With the approval of the adoption of these rules, our
Office has closed this file. We are returning
the rule record to you so that your agency can maintain the official rulemaking
record in this matter as required by Minn. Stat. § 14.365. If you have any questions regarding this
matter, please contact
Sincerely,
/s/
Eric L. Lipman
ERIC
L. LIPMAN
Administrative
Law Judge
cc: Revisor of Statutes
Legislative Coordinating Commission
Minnesota Attorney General’s Office
Governor’s
Office
Nancy Breems
Secretary of State, Elections Division
180 State Office Building
RE: In the Matter of the Proposed Rules of the Plumbing Board Governing the
Plumbing Code and Plumbing Licensing and Registration;
OAH Docket No. 16-1900-20065-1. Governor’s Tracking No. AR 384.
Dear Ms. Breems:
Pursuant to Minnesota
Statutes, section 14.26, and Minnesota Rules, part 1400.2300, subpart 5, our
office is filing with the Secretary of State four copies of the above-entitled
adopted rules. The rules were approved
for legality by our office on August 26, 2009.
Please send the agency
copy of the rules to:
Patricia
Munkel-Olson
Minnesota
Department of Labor and Industry
If you have any questions regarding this
matter, please feel free to contact me.
Sincerely,
Laura
Schlatter
Staff
Attorney
(651)
361-7847
Enclosures
[1] See,
[2] See,
[3] See, U. S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1152 n. 11 (5th Cir. 1984) (There is a “widely-shared recognition that administrative agencies need direct lines to the public voice because of their distance from the elective process”); Jewish Community Action, et al. v. Comm’r of Public Safety, 657 N.W.2d 604, 610 (Minn. App. 2003) (“an administrative agency needs public input to remain informed”); accord, U.S. Senate Report on the federal Administrative Procedure Act of 1946, S.Doc. No. 248, 79th Cong., 2d Sess. 19-20 (1946) (“Public participation . . . in the rulemaking process is essential in order to permit administrative agencies to inform themselves, and to afford safeguards to private interest”).
[4] Minn. R. part 1400.2060.