Governor’s Tracking No. AR 567
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE DEPARTMENT OF AGRICULTURE
|
In
the Matter of the Proposed Rule Amendments of the Minnesota Department of Agriculture
Relating to Compensation for Wolf Damage; |
ORDER ON REVIEW OF RULES UNDER STATUTES, SECTION 14.26 |
The
Minnesota Department of Agriculture (“Department”) sought review and approval
of the above-entitled rules, which were adopted by the agency without a
hearing. Review and approval is governed
by Minn. Stat. § 14.26. On April 1, 2011,
the Office of Administrative Hearings received the documents that must be filed
by the agency under Minn. Stat. § 14.26 and Minn. R. 1400.2310. Based upon a review of the written
submissions and filings, and for the reasons set out in the Memorandum which
follows below,
IT IS HEREBY ORDERED:
1.
The agency has the statutory authority to adopt the proposed rules.
2.
The rules are needed and reasonable.
3.
The rules were adopted in compliance with the procedural requirements of
Minnesota Statutes, Chapter 14, and Minnesota Rules, Chapter 1400, with the
exception that is set forth in the Memorandum below. Accordingly, the rules are DISAPPROVED as not meeting the
requirements of Minnesota Rules, part 1400.2100, item A.
4.
The agency shall correct the defect by:
(a)
Re-sending (by either first-class or electronic mail) a copy of the
Notice of Intent to Adopt a Rule, the proposed rules, and the Statement of Need
and Reasonableness (SONAR) to the Minnesota Board of Veterinary Medicine; the Minnesota
Veterinary Medical Association; and the University of Minnesota College of
Veterinary Medicine, so that the materials are received no later than May 20, 2011;
(b)
Posting the Notice, the proposed rules, and the SONAR to the
Department’s website; and
(c)
Re-submitting the proposed rules to this Office with:
i.
documentary evidence that the Department has complied with step (a),
above;
ii.
copies of any comments received during the comment period, including
comments from any interested parties; and,
iii.
copies of any responses made by the Department to commentators.
These materials shall be
submitted to the Administrative Law Judge for approval following the close of a second 30-day comment period.
5.
Pursuant to Minn. Stat. § 14.26 (3)(b), and Minn. R. 1400.2300 (6), the
rules will be submitted to the Chief Administrative Law Judge for review.
Dated: April
14, 2011 /s/
Richard C. Luis
__________________________
RICHARD
C. LUIS
Administrative
Law Judge
MEMORANDUM
Pursuant
to Minnesota Statutes, section 14.26, the agency has submitted these rules to
the Office of Administrative Hearings for a legal review.
According to state law,
there are several circumstances under which a rule must be disapproved by the
Administrative Law Judge or the Chief Administrative Law Judge. A proposed rule is defective when it:
(a)
is not adopted in compliance with the procedural requirements of state
law, unless the judge finds that the error was harmless in nature and should be
disregarded;
(b)
is not rationally related to the agency’s objectives or the agency has
not demonstrated the need for and reasonableness of the rule;
(c)
is substantially different than the rule as originally proposed and the
agency did not comply with required procedures;
(d)
grants undue discretion to the agency, is unconstitutional[1]
or illegal;[2]
(e)
improperly delegates the agency’s powers to another entity; or
(f)
falls outside of the statutory definition of a “rule.”[3]
Defect
in the Proposed Rules
In this
matter, the Administrative Law Judge has found one procedural defect in the proposed
rules. The defect follows from a failure
to provide the Notice of Intent to Adopt a Rule to classes of persons who may
be significantly affected by the proposed rules as required by Minn. Stat. §
14.22.
Additional notice
The
Administrative Law Judge finds that a procedural error has occurred in this
rulemaking process. 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.” Minnesota Statutes
section 14.23 requires that the agency describe its “efforts to provide
additional notification . . . or . . . explain why these efforts were not made”
in its Statement of Need and Reasonableness (SONAR).
In its SONAR, the Department stated that it would
provide the rules and notice of intent to adopt the rules without a public
hearing to the Minnesota Cattlemen’s Association, Minnesota Lamb and Wool
Producers, and the Minnesota Sheriff’s Association. Earlier in the SONAR, the Department stated
that the classes of people affected by the proposed rules are veterinarians,
sheriffs, and livestock producers. While
the Additional Notice Plan provides notice to the sheriffs and livestock
producers referred to in the SONAR, it does not indicate that any notice was
provided to veterinarians. Upon further
inquiry by this office, the Department demonstrated that they provided some
type of notice of the proposed rules to the Board of Animal Health, who
included the information in their newsletter.
This information should have been included in the SONAR and Additional
Notice Plan. The ALJ also notes that
notice of the proposed rule change was not posted on the Department’s
website.
The Administrative Law
Judge finds that the Department’s additional notice plan was insufficient to
meet the requirements of Minn. Stat. § 14.22.
This procedural error is not merely technical in nature. The failure to develop and implement an
additional notice plan has deprived interested persons or entities (veterinarians)
of an opportunity to participate meaningfully in the rulemaking process.[4]
According to the SONAR, the
proposed rule affects veterinarians, who have recently become eligible to
conduct investigations of wolf predation of livestock.[5] The proposed rules describe specific
procedures for investigation and claims submission, including the imposition of
report preparation and filing requirements.
The Department may have been well served in this process by the input
from the following members of the veterinary community: the Minnesota Board of
Veterinary Medicine; the Minnesota Veterinary Medical Association; and the
University of Minnesota College of Veterinary Medicine.
The
additional notice plan requirement furthers several of the important purposes
of the Administrative Procedure Act, including those which:
· provide oversight of powers
and duties delegated to administrative agencies;
· increase public
accountability of administrative agencies;
· increase public access to
governmental information; and to
· increase public
participation in the formulation of administrative rules.[6]
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.”[7] 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.[8]
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.[9] 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, however, the
Department did not seek prior approval of its additional notice plan. Had it done so, the shortcomings in its
notice plan could have been identified and remedied at an earlier stage of the
process.
The Department
can cure this defect by resubmitting the Notice of Intent to Adopt Rules, the
proposed rules, and the SONAR to the veterinary organizations listed above by May
20, 2011, and re-opening a 30-day comment period. These materials must also be posted to the
Department’s website. The Department is
not required to republish its Notice in the State
Register or re-mail the materials to its rulemaking mailing list or its
additional notice mailing list. However,
the Department must accept comments and requests for hearing from the veterinary
community as well as any other interested member of the public during this
period. If the second 30-day comment
period produces 25 or more requests for a hearing, then the Department will be
required to proceed to hearing.
Statement of Need and Reasonableness (SONAR)
The ALJ notes the following issues regarding adequacy
of the SONAR. Among the statutory
procedural requirements that the ALJ is required to review is “whether the
record demonstrates a rational basis for the need for and reasonableness of the
proposed rule.”[10] The SONAR is a
critical part of the rulemaking process because it promotes meaningful public
participation in the rulemaking process and provides guidance on how a rule
should be interpreted.[11] Minn. Stat. §
14.23 emphasizes the importance of the SONAR: “By the date of the section 14.22
notice (Notice of Intent to Adopt Rules), the agency shall prepare a statement
of need and reasonableness, which must be available to the public.” Minn. Stat. § 14.131
provides that “the agency must
prepare, review, and make available for public review a statement of the need
for and reasonableness of the rule.”
[Emphasis supplied] Minn. Stat. § 14.131 goes on to list the items of information that
must be included to establish the need for and reasonableness of a rule
provision.
The Department’s SONAR is
silent as to three provisions of the proposed rules – Parts 1515.3100, subparts
8 and 9, and 1515.3800. The proposed
amendments to these particular provisions are merely grammatical or clerical in
nature and do not make any substantive change to the rules. Nevertheless, it is important for the
Department to acknowledge that the changes are being proposed and explain the
reason for the changes. While these
issues do not rise to the level of a defect in this instance, the ALJ offers
this comment to the Department to be noted for future rulemaking proceedings.
R. C. L.
[1]
In order to meet constitutional requirements, a rule
must be sufficiently specific to provide fair warning of the type of conduct to
which the rule applies. See, e.g., Cullen
v. Kentucky, 407
[2] See,
[3] See,
[4] See
Minn. R. 1400.2100 A. and Minn. Stat. § 14.26, subd. 3 (d).
[5] SONAR at page 1. See
also, 2010 Laws of Minnesota, ch. 333, art. 1, § 1 (codified at Minn. Stat.
§ 3.737, subd. 1 (b).
[6] See,
[7] See,
[8] 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”).
[9] Minn. R. part 1400.2060.
[10]
[11] See Minnesota Chamber of Commerce v. Minnesota Pollution Control Agency, 469 N.W.2d 100, 104 (Minn. App. 1991), review denied (Minn. July 24, 1991) (agreeing with ALJ's determination that agency's SONAR commenting on the proposed rule's impact supported conclusion that decision not arbitrary or capricious). See also Citizens Advocating Responsible Dev. v. Kandiyohi County Bd. of Comm'rs, 713 N.W.2d 817, 830 (Minn. 2006); and Saif Food Mkt. v. State, 664 N.W.2d 428 (Minn. Ct. App. 2003).