OAH Docket No. 70-2000-19212-1
Governor’s Tracking No. AR 363
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES
|
In the Matter of the Proposed Exempt Permanent Rules of the Minnesota Department of Natural Resources Relating to the Designated Special Management and Fishing Restrictions. |
ORDER ON REVIEW OF RULES UNDER MINN. STAT. §§
14.386 AND 14.388 |
On September 12, 2007, the Minnesota Department of Natural Resources (Department) filed documents with the Office of Administrative Hearings (OAH) seeking review and approval of the above-entitled rules under Minn. Stat. §§ 14.386 and 14.388.
Based upon a review of the written submissions by the Department, and for the reasons set out in the Memorandum which follows below,
IT IS HEREBY ORDERED THAT:
1. The following rules or parts thereof are approved:
a. Minn. R. 6260.1800, subpart 1 (A);
b.
c. Minn. R. 6260.1800, subpart 3;
d. Minn. R. 6262.0100, subpart 3;
e. Minn. R. 6264.0400, subpart 8; and,
f. Minn. R. 6266.0700, subpart 3.
2. The following rules or parts thereof are not approved:
a. Minn. R. 6260.1800, subpart 1 (B);
b. Minn. R. 6260.1800, subpart 2; and,
c. Minn. R. 6262.0100, subpart 5, item D.
Dated: September 26, 2007
___/s/ Eric. L. Lipman______
ERIC L. LIPMAN
Administrative Law Judge
NOTICE
Minn. Rule pt. 1400.2400, subp. 4a provides that when a rule is disapproved, the agency must resubmit the rule to the Administrative Law Judge for review after it has revised the proposed rules. The ALJ then has five working days to review and approve or disapprove the rule. Minn. Rule pt. 1400.2400, subp. 5 provides that an agency may ask the Chief Administrative Law Judge to review a rule that has been disapproved by a Judge. The request must be made within five working days of receiving the Judge’s decision. The Chief Administrative Judge must then review the agency’s filing, and approve or disapprove the rule within 14 days of receiving it.
MEMORANDUM
Pointing to statutory changes in five specific sections of the session laws of 2007, and one section of the session laws of 2006, the Department requests the approval of new permanent rules under the “good cause exemption.” The Department asserts:
The Department of Natural Resources finds that the rulemaking provisions of Minnesota Statutes, Chapter 14 are unnecessary, impracticable, or contrary to the public interest for amending these rules governing the taking of fish. Pursuant to Minnesota Statutes, section 14.388, subdivision 1, clause (3), these changes incorporate specific changes set forth in applicable statutes with no interpretation of law required. The use of the good cause exemption process for these rules is authorized by Laws of Minnesota 2006, Chapter 281, Article 2, Section 56 and Laws of Minnesota 2007, Chapter 131, Article 1, Sections 83 and 86.[1]
Minn. Stat. § 14.388, subd. 1 directs the OAH to review the
rules for legality and to determine whether adequate justification has been
provided for use of the good cause process.
Notice to Interested Persons
and Comments from the Public
Minn. Stat. § 14.388, subd. 2 requires that an “agency proposing to adopt, amend, or repeal a rule under this section must give electronic notice of its intent in accordance with section 16E.07, subdivision 3, and notice by United States mail or electronic mail to persons who have registered their names with the agency under section 14.14, subdivision 1a. The notice must be given no later than the date the agency submits the proposed rule to the Office of Administrative Hearings for review of its legality and must include: (1) the proposed rule, amendment or repeal; (2) an explanation of why the rule meets the requirements of the good cause exemption under subdivision 1; and (3) a statement that interested parties have five business days after the date of the notice to submit comments to the Office of Administrative Hearings.”
The Notice of Submission of Exempt Rules states that that Department had dispatched a copy of the Notice to all of those persons who requested notification of rulemaking proceedings under Minn. Stat. § 14.14, subd. 1a. Further, the Department stated that a copy of the Notice had been posted to its website, in accordance with Minn. Stat. § 14.388, subd. 2.[2] Upon this record, the Administrative Law Judge concludes that the notice requirements for these proceedings were satisfied.
Minn. Stat. § 14.388, subd. 2 provides that interested parties have five business days after the date of the Notice of Adoption to submit comments to the Office of Administrative Hearings. This comment period ended on September 17, 2007 at 4:30 p.m. OAH received no comments concerning the proposed rules.
Use of
the Good Cause Exemption
Minn. Stat. § 14.388 provides that an abbreviated and streamlined set of procedures for promulgating new rules may be used when “good cause” is present.
Good cause exists for approval and adoption of proposed rules when the rules “incorporate specific changes set forth in applicable statutes [and] no interpretation of law is required,”[3] or the proposed rules “make changes that do not alter the sense, meaning or effect” of existing rules.[4]
Under the good cause exemption both the agency’s rulemaking powers, and the breadth of the review by the Office of Administrative Hearings, are sharply reduced. This is because the good cause exemption contemplates that administrative rules will only be promulgated with this method in order to meet truly exigent circumstances,[5] or when the policy choices underlying the new rules were made through an earlier, publicly-accessible process (such as a prior rulemaking or through the Legislature’s enactment of a statute which sets forth the specific requirements).[6] In these circumstances, the legal review completed by OAH is narrowed.[7]
In exempt rulemaking, the legality determination is governed by the standards of Minn. R. 1400.2100, Items A and D to G.[8] These standards state:
A rule must be disapproved by the judge or chief judge if the rule:
A. was not adopted in compliance with procedural requirements of this chapter, Minnesota Statutes, chapter 14, or other law or rule, unless the judge decides that the error must be disregarded under Minnesota Statutes, section 14.15, subdivision 5, or 14.26, subdivision 3, paragraph (d);
. . .
D. exceeds, conflicts with, does not comply with, or grants the agency discretion beyond what is allowed by its enabling statute or other applicable law;
E. is unconstitutional or illegal;
F. improperly delegates the agency’s powers to another agency, person or group;
G. is not a “rule” as defined in Minnesota Statutes, section 14.02, subdivision 4, or by its own terms cannot have the force and effect of law. . . .
For the reasons detailed below, some, but not all of the rules proposed by the Department “incorporate specific changes set forth in applicable statutes [as to which] no interpretation of law is required”[9] or propose “changes that do not alter the sense, meaning or effect” of existing rules.[10]
Analysis of the Proposed Rules
Proposed Amendments to Minn. R. 6260.1800, subparts 1 (A)
and (C):
While the Department does not cite to the provisions of Minn. Stat. § 14.388, subd.1 (4) in its submissions, the changes in nomenclature it proposes in these sections do not amount to substantive alterations of the underlying rules. The use of the term “round whitefish,” instead of its local moniker “menoninee whitefish,” is both an improvement and a non-substantive change in the regulatory text. Similarly, the addition of the word “special” to describe the permit that is issued under subpart 1 (C) is in the nature of an editorial revision. Regardless of whether the agency cited to the appropriate review provisions these changes “do not alter the sense, meaning or effect” of the existing rules. Accordingly, the modifications in these paragraphs are approved.
Proposed Amendments to
While
Chapter 131, Article 1, Section 52 of the 2007 Laws of Minnesota does provide
that the Commissioner may authorize the use of pound nets or trap nets for
taking certain fish, including “lake whitefish,” in designated portions of Lake
Superior, it does not require the Department to jettison the existing
limitation on the taking of whitefish less than 20 inches in length. The proposed deletion of the existing
limitation on the size of whitefish that may be taken by use of a pound or trap
net does not “incorporate specific changes set forth in applicable
statutes [as to which] no interpretation of law is required.” Accordingly,
the modification in this paragraph is not approved.
Proposed Amendments to
While
Chapter 131, Article 1, Section 52 of the 2007 Laws of Minnesota does provide
that the Commissioner may authorize the use of pound nets or trap nets for
taking certain fish in designated portions of
Proposed Amendments to
The
proposed addition of the specific portions of
Proposed Amendments to
The
proposed addition of the rule regarding “Take a Kid Ice Fishing Weekend” is
drawn directly from the provisions of Chapter 131, Article 1, Section 27 of the
2007 Laws of Minnesota. The proposed
addition does “incorporate specific changes set forth in applicable
statutes [as to which] no interpretation of law is required.” Accordingly,
the modification in this subpart is approved.
Proposed Amendments to
While Chapter 131, Article
1, Section 86 of the 2007 Laws of Minnesota does provide permit anglers in a
fish house or dark house to possess fillets of fish otherwise subject to size
restrictions, this section is silent as to the requirement to segregate and
keep the carcasses of the filleted fish for later inspection. Even if this addition is an otherwise
sensible anti-poaching provision, and it may well be, it does not “incorporate
specific changes set forth in applicable statutes [as to which] no
interpretation of law is required.” Accordingly, only the addition of the
words “when on the ice” is approved. The
modifications beginning on Page 4, line 17 of
Proposed Amendments to
The
proposed deletion of
Proposed Amendments to
There are two separate grounds for approving the proposed cross-reference to Rule 6262.0100, subpart 5, item D. First, the proposed rule imposes the changes made to the ice fishing rules by Chapter 131, Article 1, Section 86 of the 2007 Laws of Minnesota. Additionally, the placement of a cross-reference in Part 6266.0700 of the rule expressed in Part 6262.0100 does not “alter the sense, meaning or effect” of the existing rules. Accordingly, the modification in this subpart is approved.
E.L.L.
[1] See, Order Adopting Rules, at 1 (September 6, 2007).
[2] See also, http://files.dnr.state.mn.us/input/rules/fisheries/rules9-11-07.pdf (Sept. 25, 2007).
[3] Compare, Order Adopting Rules, at 1 and
[4] See,
[5] See,
[6] See,
[7] For example, unlike a more typical rulemaking proceeding, rules presented under the good cause exemption are not examined as to their need or reasonableness. Compare generally, Minn. Stat. § 14.388, subd.1 (2006).
[8] See, Minn. R. 1400.2400, subp. 3 (2005).
[9]
[10]