January 5, 2007
Wendy Willson Legge
Minnesota Department of Labor and Industry
RE: Review of Adopted Rules of the State Department of Labor and Industry Relating to Adoption of the 2006 International Building Code, Minnesota Rules, Chapter 1305.
OAH Docket No. 9-1900-17502-1.
Governor’s Tracking Number AR-146.
Dear Ms. Willson Legge:
After reviewing the above-referenced rules concerning the Adoption of the 2006 International Building Code (IBC), the Administrative Law Judge has found no defects. The rule is approved for legality. However the Administrative Law Judge offers a suggestion.
Failure to Respond to Comment
The Department
received four comments. The final Order Adopting the Rules does not
indicate that the Department considered a series of e-mail comments from Bill
Ziegert, rendered on behalf of the Smoke Safety Council. Mr. Ziegert’s
comments relate to changes in the rules relating to enclosed elevator lobbies
for buildings. As you know, enclosed elevator lobbies are used to restrict the
spread of smoke to upper floors of a building in the event of a fire. The
2006 IBC modified the height requirement to permit construction of taller
buildings without elevator lobbies. Mr. Ziegert asserted to the agency that
there was no technical justification for the rule increasing the “triggering
height” of the building and that the wide temperature variations experienced
during
The Administrative Law Judge has determined that it would have been preferable for the Department to state its response to the public comments.
Wendy Wilson Legge
January 5, 2007
Page 2
It bears mentioning, in this context, that among the important purposes
of the Administrative Procedure Act 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]
In this case, where there is no
reply from the agency to timely, detailed and substantive concerns raised by
interested stakeholders, the Legislature’s expectation that “better substantive
results” were achieved through this process is in genuine doubt. The agency is speechless on the important
question of whether the modified height requirements will lead to better
substantive results in the construction of buildings in
As noted above, the stakeholders and the broader public have no substantive right to demand a reply from the agency on this score. Thus, in the short term, only the Legislature’s settled expectation that this process would be transparent, meaningful and understandable is deflated. In the longer term, however, if the quiet continues, the agency itself may begin to suffer some effects. 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] An agency’s reputation for being taciturn might chill otherwise useful conversations, and thereby, undermine its best, long-term interests.
Wendy Wilson Legge
January 5, 2007
Page 3
Approval
With the approval of the adoption of the rules, our office has closed this file and is 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. 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 and one copy to the Governor. You will then receive from the Revisor’s Office three copies of the Notice of Adoption of your rules.
Your next step is to arrange for publication of the Notice of Adoption in the State Register. You should submit two copies of the Notice of Adoption that you receive from the Revisor’s Office to the State Register for publication. A permanent rule without a hearing does not become effective until five working days after a Notice of Adoption is published in the State Register in accordance with Minn. Stat. § 14.27.
Sincerely,
ERIC LIPMAN
Administrative Law Judge
612/341-7609
cc: Office of the Attorney General
Legislative Coordinating Commission
Revisor of Statutes
Office of the Governor
[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”).