CHAPTER 1400
OFFICE OF ADMINISTRATIVE HEARINGS
HEARING REQUIREMENTS
1400.0200 Repealed, 20 SR 2058
1400.0250 Repealed, 20 SR 2058
1400.0300 Repealed, 20 SR 2058
1400.0400 Repealed, 20 SR 2058
1400.0500 Repealed, 20 SR 2058
1400.0600 Repealed, 20 SR 2058
1400.0700 Repealed, 20 SR 2058
1400.0800 Repealed, 20 SR 2058
1400.0850 Repealed, 20 SR 2058
1400.0900 Repealed, 20 SR 2058
1400.0950 Repealed, 20 SR 2058
1400.1000 Repealed, 20 SR 2058
1400.1100 Repealed, 20 SR 2058
1400.1200 Repealed, 20 SR 2058
1400.1300 Repealed, 15 SR 1595
1400.1500 Repealed, 20 SR 2058
GENERAL RULEMAKING PROVISIONS
1400.2000 SCOPE.
Parts 1400.2010 to 1400.2570 govern all proceedings by an
agency for adopting any rule under Minnesota Statutes, chapter
14.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2010 DEFINITIONS.
Subpart 1. Scope. The definitions in this part apply to
parts 1400.2000 to 1400.2570.
Subp. 2. Agency. "Agency" has the meaning given in
Minnesota Statutes, section 14.02, subdivision 2.
Subp. 3. Chief administrative law judge or chief judge.
"Chief administrative law judge" or "chief judge" means the
chief administrative law judge of the Office of Administrative
Hearings.
Subp. 4. Judge. "Judge" means the administrative law
judge assigned by the chief administrative law judge to conduct
a rule hearing or review a rule.
Subp. 5. Repealed, 26 SR 391
Subp. 6. Multimember agency. "Multimember agency" means
an agency described in Minnesota Statutes, section 15.0597,
subdivision 1, paragraph (a), clause (1), and the Capitol Area
Architectural and Planning Board.
Subp. 7. Office. "Office" means the Office of
Administrative Hearings.
Subp. 8. Revisor. "Revisor" means the Revisor of Statutes.
Subp. 9. Rule. "Rule" has the meaning given in Minnesota
Statutes, section 14.02, subdivision 4.
Subp. 10. Substantially different. "Substantially
different" has the meaning given in Minnesota Statutes, section
14.05, subdivision 2, paragraph (b).
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2020 ASSIGNMENT AND DISQUALIFICATION OF JUDGE.
Subpart 1. Assignment. The chief judge must promptly
assign a judge to a rule proceeding after the chief judge
receives a request to schedule a rule hearing, or a filing from
an agency under parts 1400.2060, 1400.2300, 1400.2400,
1400.2410, or 1400.2450. A request to schedule a rule hearing
must include the documents listed in part 1400.2080, subpart 5.
Subp. 2. Disqualification. An assigned judge must
withdraw from a rule proceeding at any time the judge decides
that he or she is disqualified for any reason.
Subp. 3. Disqualification by affidavit. If an affected
person files an affidavit of prejudice against a judge assigned
to a rulemaking hearing, the chief judge must decide whether to
disqualify the judge. The affidavit must be received by the
chief judge at least five working days before the rulemaking
hearing.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2030 COUNTING TIME AND FILING DOCUMENTS.
Subpart 1. Counting time. To count a time period, the day
of filing, mailing, publication, or other action is not counted
and the last day of the time period is counted. Saturdays,
Sundays, and legal holidays are included in calendar day time
periods and are not included in working day time periods. If a
calendar day time period ends on a Saturday, Sunday, or legal
holiday, the time period ends on the next day which is not a
Saturday, Sunday, or legal holiday. A time period is in
calendar days unless it is stated as "working days."
Subp. 2. Paper size. All documents must be submitted to
the office on standard size 8‑1/2 inch by 11 inch paper, except:
A. handwritten comments from the public; and
B. exhibits.
Subp. 3. Facsimile transmission. A person may file any
document with the office using facsimile transmission. Filing a
facsimile is equivalent to filing the original document, and is
effective when the office receives it. A transmission commenced
before 4:30 p.m. on the last day of filing is timely filed. The
person filing the document must mail or deliver the original
signed document to the office within five days.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2040 PETITION FOR RULEMAKING.
Subpart 1. Content of petition. A petition to an agency
requesting rulemaking under Minnesota Statutes, section 14.09,
must contain the following information:
A. the name and address of the petitioner;
B. the specific action (adoption, amendment, or
repeal of an agency rule) requested by the petitioner; and
C. the need for the requested action.
Part 1400.2500 contains a recommended format for the
petition.
Subp. 2. Filing of petition with agency. The petition
must be filed with the executive director or head of the agency
in person or by United States mail.
Subp. 3. Agency response to petition. The agency must
reply in writing to the petition within 60 days after receiving
it. The reply must meet the requirements of Minnesota Statutes,
section 14.09, and be signed by a person authorized to adopt a
rule or, for multimember agencies, by a member or officer.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2050 REQUEST FOR COMMENTS ON POSSIBLE RULE.
An agency must comply with Minnesota Statutes, section
14.101, before publishing a notice of intent to adopt rules or
notice of hearing. Part 1400.2510 is a recommended form for the
published request for comments.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2060 APPROVAL OF ADDITIONAL NOTICE PLAN.
Subpart 1. Optional prior approval. An agency may ask the
office for approval of its plan for giving additional notice of
its request for comments on possible rulemaking under Minnesota
Statutes, section 14.101, or of its plan for giving additional
notice of proposed rules under Minnesota Statutes, sections
14.131, 14.14, 14.22, and 14.23. If the agency requests
approval of its additional notice plan, it must make the request
and receive approval before it publishes the request for
comments or the notice of proposed rules.
Subp. 2. Filing. An agency asking the office for approval
of an additional notice plan must file with the office:
A. For additional notice plans under Minnesota
Statutes, section 14.101:
(1) a description of its proposed additional
notice plan;
(2) the agency's proposed request for comments on
its possible rule; and
(3) an explanation of why the agency believes
that its additional notice plan complies with Minnesota
Statutes, section 14.101.
B. For additional notice plans under Minnesota
Statutes, sections 14.131, 14.14, 14.22, and 14.23:
(1) a draft of the rules or a copy of the
proposed rules certified as to form by the revisor;
(2) a draft or final copy of the statement of
need and reasonableness under part 1400.2070, containing the
agency's proposed notice plan;
(3) the agency's proposed notice of intent to
adopt rules, notice of hearing, or dual notice under part
1400.2080; and
(4) an explanation of why the agency believes
that its additional notice plan complies with Minnesota
Statutes, section 14.14, subdivision 1a, or 14.22.
Subp. 3. Review. If a proposed additional notice plan is
filed with the office, a judge must review, and approve or
disapprove it within five working days after the office receives
it. The judge must approve the notice plan if the judge finds
that the notice plan meets the requirements of the applicable
statute.
Subp. 4. Approval or disapproval. An approved additional
notice plan is the office's final determination that the
additional notice plan is adequate if the agency implements the
additional notice plan. If the additional notice plan is
disapproved, the judge must explain why and tell the agency what
changes are necessary for approval. The agency may resubmit the
additional notice plan for review after changing it. The judge
must review and approve or disapprove the revised additional
notice plan within five working days after the office receives
it.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2070 STATEMENT OF NEED AND REASONABLENESS.
Subpart 1. General content. The statement of need and
reasonableness must summarize the evidence and argument that the
agency is relying on to justify both the need for and the
reasonableness of the proposed rules, and must state how the
evidence rationally relates to the choice of action taken. The
statement must explain the circumstances that created the need
for the rulemaking and why the proposed rulemaking is a
reasonable solution for meeting the need. The statement must be
sufficiently specific so that interested persons will be able to
fully prepare any testimony or evidence in favor of or in
opposition to the proposed rules. A general description of the
statute being implemented or restating the proposed rule is not
sufficient. The statement must include:
A. citations to any economic, scientific, or other
manuals or treatises the agency anticipates relying on;
B. citations to any statutes or case law the agency
anticipates relying on;
C. if a hearing is scheduled, a list of any nonagency
witnesses the agency anticipates asking to testify and a summary
or description of their testimony;
D. a citation to the agency's grant of statutory
authority to adopt the rule and, if the grant of authority was
made after January 1, 1996, the effective date of the agency's
statutory authority to adopt the rule; and
E. the date the statement is made available for
public review.
The statement need not contain evidence and argument in rebuttal
of evidence and argument presented by the public. If an agency
is amending existing rules, the agency need not demonstrate the
need for and reasonableness of the existing rules not affected
by the proposed amendments.
Subp. 2. Specific requirements. The statement must also
contain the following:
A. for rules to be adopted after a public hearing,
the information required by Minnesota Statutes, section 14.131;
B. for rules to be adopted without a public hearing,
the information required by Minnesota Statutes, section 14.23;
C. an explanation of what effort the agency made to
obtain any information that it states could not be ascertained
through reasonable effort; and
D. information required by any other law or rule to
be included in the statement, or which the agency is required by
law or rule to consider in adopting a rule. Examples include:
Minnesota Statutes, section 16A.1285, subdivision 5; 115.43,
subdivision 1; 116.07, subdivision 6; or 144A.29, subdivision 4.
Subp. 3. Timing. The statement must be prepared on or
before the signature date on the agency's notice of intent to
adopt rules, notice of hearing, or dual notice. The agency must
send a copy of the statement to the Legislative Reference
Library when the notice is mailed.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2080 NOTICE OF PROPOSED RULE.
Subpart 1. General content. A notice of intent to adopt
rules under Minnesota Statutes, section 14.22, must contain the
information in subparts 2 and 3. A notice of hearing under
Minnesota Statutes, section 14.14, must contain the information
in subparts 2 and 4. A dual notice must contain the information
in subparts 2, 3, and 4. Parts 1400.2520, 1400.2530, and
1400.2540 contain recommended forms for these notices.
Subp. 2. Contents of all notices. A notice of intent to
adopt rules, notice of hearing, or dual notice must state:
A. that the agency intends to adopt a rule and
identify the parts of Minnesota Statutes, chapter 14, and this
chapter that the agency must follow;
B. a citation to the specific statutory authority for
the rule;
C. that the proposed rule is attached to the notice
or if the text of the proposed rule is not attached, a
description of the nature and effect of the rule and how to
obtain a free copy from the agency;
D. if applicable, that an entire rule is being
repealed and a citation to the rule;
E. that the statement of need and reasonableness is
available to the public, that the statement contains a summary
of the justification for the proposed rule, including who will
be affected by the proposed rule and an estimate of the probable
cost of the proposed rule, and how to obtain a copy from the
agency;
F. that the proposed rule can be modified if the
modifications are supported by the information and comments
submitted and do not make the rule substantially different;
G. that persons may request to be placed on the
agency's mailing list to receive notice of future rule
proceedings;
H. any other information required by law or rule to
be included in the notice; and
I. the signature of the person authorized to give
notice of intent to adopt rules, notice of hearing, or dual
notice and the date the person signed the notice.
Subp. 3. Additional contents for a notice of intent to
adopt rules or dual notice. A notice of intent to adopt rules
without a public hearing or dual notice must state or include:
A. that the public may comment in support of or in
opposition to the rule or any part of it, and that comment is
encouraged;
B. the calendar date that the comment period ends,
which must be at least 30 days after the date of publication;
C. that each comment should identify the part of the
rule addressed, any change proposed, and the reason for the
suggested change;
D. that if 25 or more persons submit a written
request for hearing during the comment period, a public hearing
must be held on the rule unless a sufficient number later
withdraw their requests in writing;
E. that any person requesting a hearing must include
his or her name and address, must identify the portion of the
rule to which the person objects or a statement that the person
objects to the entire rule, and that a request that does not
provide this information is invalid and will not count when
determining whether a public hearing must be held;
F. that any person requesting a hearing is encouraged
to propose changes to the rule;
G. how persons must submit their comments or requests
for hearing, including an e‑mail address if the agency will
accept e‑mail comments or requests for hearing;
H. that if a public hearing is held the agency must
proceed under Minnesota Statutes, sections 14.131 to 14.20;
I. that if no hearing is required the agency must,
after adopting the rule, submit the rule and supporting
documents to the office for review for legality;
J. that persons who wish to comment on the legality
of the rule must do so during the 30‑day comment period; and
K. that persons may request to be notified of the
date that the rule is submitted to the office for review and how
to make that request.
Subp. 4. Additional contents for a notice of hearing or
dual notice. A notice of hearing or dual notice must state:
A. the time, date, and place of the hearing;
B. that all interested persons will have an
opportunity to participate;
C. how interested persons may present their views at
the hearing;
D. the procedure in part 1400.2230 for submitting
written materials after the hearing;
E. that persons can ask the judge questions about the
procedure, and the name, address, and telephone number of the
judge;
F. that any person can ask to be notified of the date
on which the judge's report will become available and that the
request can be made at the hearing or in writing to the judge;
G. that any person can ask to be notified of the date
on which the agency adopts the rule and files it with the
secretary of state, and that the request can be made at the
hearing or in writing to the agency;
H. that lobbyists must register with the Campaign
Finance and Public Disclosure Board, that questions should be
referred to the board, and the board's address and telephone
number; and
I. that a hearing is ordered.
Subp. 5. Scheduling of hearing, and approval of notice of
hearing or dual notice. The agency must request to schedule a
rule hearing and obtain the judge's approval of any notice of
hearing or dual notice prior to mailing it or publishing it in
the State Register. The judge must also advise the agency as to
when, where, and how many hearings should be held in order to
allow for participation by all affected interests. A copy of
the proposed rule with a certificate of approval as to form by
the revisor of statutes attached, and a draft or final copy of
the statement of need and reasonableness must be filed with a
notice submitted for approval. The judge must review the
proposed notice within five working days of receiving it and
must either approve the notice or advise the agency how the
notice must be revised.
Subp. 6. Timing. A notice of hearing or notice of intent
to adopt rules must be mailed at least 33 days before the end of
the comment period or the start of the hearing, and must be
published in the State Register at least 30 days before the end
of the comment period or the start of the hearing. A dual
notice must be mailed at least 33 days before the end of the
comment period and must be published in the State Register at
least 30 days before the end of the comment period. If a
hearing is required after using a dual notice, there must be at
least ten days between the end of the comment period and the
start of the hearing. Depositing a mailing in the state of
Minnesota's central mail system for United States mail satisfies
the mailing requirement of this subpart.
Subp. 7. Certificates of mailing and accuracy of mailing
list. The agency must prepare a certificate of mailing the
notice to the rulemaking mailing list and a certificate of
accuracy of its rulemaking mailing list. Part 1400.2550 contains
a recommended format for this document.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; L 1997 c 202 art 2 s 63; 26 SR 391
1400.2085 NOTICE OF PROPOSED EXPEDITED RULE.
Subpart 1. General content. A notice of intent to adopt
expedited rules under Minnesota Statutes, section 14.389,
subdivisions 1 to 4, must contain the information in subpart 2.
If an agency is accepting requests for a public hearing under
Minnesota Statutes, section 14.389, subdivision 5, the notice
must also contain the information in subpart 3. Part 1400.2570
contains recommended forms for these notices.
Subp. 2. Contents of expedited rule notices. All notices
of intent to adopt expedited rules must state:
A. that the agency intends to adopt, amend, or repeal
rules under the expedited process and identify the parts of this
chapter and Minnesota Statutes, section 14.389;
B. a citation to the statutory authority for the rule
and the statutory authority for the rule to be adopted under the
expedited process;
C. that the proposed rule is attached to the notice
or if the text of the proposed rule is not attached, a
description of the nature and effect of the proposed rule and
how to obtain a free copy from the agency;
D. if applicable, that an entire rule is being
repealed and a citation to the rule;
E. that the public has 30 days to comment in support
of or in opposition to the rule or any part of it, and that
comment is encouraged;
F. how persons must submit their comments, including
whether the agency will accept e‑mail comments;
G. the calendar date that the comment period ends;
H. that each comment should identify the part of the
rule addressed, any change proposed, and the reason for the
suggested change;
I. if no hearing is held, that the agency must, after
adopting the rule, submit the rule to the office for review for
legality;
J. that persons who wish to comment on the legality
of the rule must do so during the 30‑day comment period;
K. that persons may request to be notified of the
date that the rule is submitted to the office for review and how
to make that request;
L. that the proposed rule may be modified if the
modifications do not make the rule substantially different as
defined under Minnesota Statutes, section 14.05, subdivision 2,
paragraphs (b) and (c);
M. that persons may request to be placed on the
agency's mailing list to receive notice of future rule
proceedings;
N. any other information required by law or rule to
be included in the notice; and
O. the signature of the person authorized to give
notice of intent to adopt rules.
Subp. 3. Additional notice contents when agency accepts
requests for public hearing. If an agency publishes notice
under Minnesota Statutes, section 14.389, subdivision 5, the
notice must also state:
A. that if 100 or more persons submit a written
request for hearing during the comment period, a public hearing
must be held on the rules unless a sufficient number later
withdraw their requests in writing;
B. that any person requesting a hearing must include
that person's name and address, must identify the portion of the
rule to which the person objects or a statement that the person
objects to the entire rule, and that a request that does not
provide this information is invalid and will not count when
determining whether a public hearing must be held;
C. that any person requesting a hearing is encouraged
to propose changes to the rule;
D. how persons must submit their request for hearing;
and
E. that if a public hearing is held the agency must
proceed under Minnesota Statutes, sections 14.131 to 14.20.
Subp. 4. Timing. All notices for expedited rules must be
mailed at least 33 days before the end of the comment period,
and must be published in the State Register at least 30 days
before the end of the comment period. Depositing a mailing in
the state of Minnesota's central mail system for United States
mail satisfies the mailing requirement of this subpart.
Subp. 5. Certificates of mailing and accuracy of mailing
list. The agency must prepare a certificate of mailing the
notice to its rulemaking mailing list and a certificate of the
accuracy of its mailing list.
Subp. 6. Procedure when public hearing is required. If a
public hearing is required, the rule may be adopted by the
agency only after complying with all of the requirements for
rules adopted after a public hearing, Minnesota Statutes,
sections 14.131 to 14.20. This includes preparing a statement
of need and reasonableness and publishing and mailing a notice
of rule hearing under Minnesota Statutes, section 14.14,
subdivision 1a. In addition to the notice requirements in
Minnesota Statutes, section 14.14, subdivision 1a, the agency
must also send the notice of rule hearing to those persons who
requested a public hearing.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
1400.2090 ORDER ADOPTING RULE.
An agency order adopting a rule must contain the following:
A. if any changes were made to the proposed rule in
the adopted rule, a description of the changes, and an
explanation of the reasons for the changes and why they do not
make the rule substantially different, or, if the procedures in
part 1400.2110 were followed, a statement that the agency
followed the procedures in part 1400.2110 before adopting the
changes;
B. a statement that the agency has complied with all
notice and procedural requirements. For multimember agencies,
the order must state that proposal of the rule was authorized by
the agency and provide either:
(1) a copy of the authorization; or
(2) the date of the agency meeting where the
person was authorized to do so, and state that a quorum was
present and authorized proposal of the rule;
C. for rules adopted without a public hearing, the
number of persons who requested a hearing, and the number of
persons who withdrew their request;
D. the number of persons who requested notice that
the rule has been submitted to the office;
E. a statement that the rule is needed and
reasonable;
F. a statement that the rule is adopted by the
agency; and
G. the signature of the person authorized to adopt the
rule or sign the order and the date the person signed the
order. For multimember agencies, the order must state that the
person is authorized by the agency to sign the order and provide
either:
(1) a copy of the authorization; or
(2) the date of the agency meeting where the rule
was adopted, and state that a quorum was present and the agency
authorized the person to sign the order adopting the rule.
Part 1400.2560 is a recommended form for an order adopting
rules.
STAT AUTH: MS s 14.386; 14.388; 14.51
HIST: 20 SR 2058
1400.2100 STANDARDS OF REVIEW.
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);
B. is not rationally related to the agency's
objective or the record does not demonstrate the need for or
reasonableness of the rule;
C. is substantially different than the proposed rule,
and the agency did not follow the procedures of part 1400.2110;
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; or
H. is subject to Minnesota Statutes, section 14.25,
subdivision 2, and the notice that hearing requests have been
withdrawn and written responses to it show that the withdrawal
is not consistent with Minnesota Statutes, section 14.001,
clauses (2), (4), and (5).
STAT AUTH: MS s 14.386; 14.388; 14.51
HIST: 20 SR 2058
1400.2110 PROCEDURE TO ADOPT SUBSTANTIALLY DIFFERENT RULES.
Subpart 1. Required procedure. An agency may adopt a
substantially different rule if it has complied with the
procedures in this part.
Subp. 2. Notice. The agency must mail or deliver to each
person or group that made a written or oral comment during the
comment period or registered at the rule hearing, if the
person's address is known to the agency:
A. a copy of the substantially different rule; and
B. a statement that tells the recipient that the
chief judge found the rule to be substantially different,
explains the agency's reasons for modifying the rule, tells the
recipient that the agency must accept written comments for 15
days, and gives the date the comment period ends.
Subp. 3. Filing. After considering any comments received,
the agency must submit the documents listed in subpart 2 and any
written responses to the chief judge.
Subp. 4. Review. The chief judge must review the agency's
filing to decide whether:
A. the agency has met the requirements of this part;
B. the substantially different modifications to the
rule are based on comments or evidence in the record;
C. the substantially different rule complies with
part 1400.2100; and
D. in light of the nature of the substantially
different modification and the course of the rule proceeding, it
would not be fair to affected persons to allow the agency to
adopt the modification without initiating a new rule proceeding.
The chief judge must either approve or disapprove the
substantially different rule within ten days after the office
receives it, unless it is withdrawn by a person authorized to
withdraw the rule.
Subp. 5. Rule adoption. The agency may adopt the
substantially different rule five working days after it has
received the chief judge's written approval.
Subp. 6. Effect of disapproval. If the chief judge
decides that the substantially different modifications must be
disapproved under subpart 4, the agency may not adopt them
without initiating and completing a new rule proceeding.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
RULEMAKING HEARINGS
1400.2200 APPLICABILITY.
Parts 1400.2200 to 1400.2240 apply to rule hearings and
review of rules adopted by agencies under Minnesota Statutes,
sections 14.131 to 14.20.
STAT AUTH: MS s 14.386; 14.388; 14.51
HIST: 20 SR 2058
1400.2210 CONDUCT OF HEARING.
Subpart 1. Registration of participants. All persons who
present evidence or ask questions must register with the judge
before presenting evidence or asking questions at the hearing.
Any person may register whether or not they speak at the
hearing. Those who register must legibly print their names,
addresses, telephone numbers, and the names of any individuals
or associations that the persons represent at the hearing on a
register provided by the judge. Persons may request on the
register to be informed when the judge's report is available.
Persons may also request on the register that the agency inform
them when the agency adopts the rules and files them with the
secretary of state.
Subp. 2. Introduction by judge. The judge must start the
hearing and must explain the purpose of the hearing and the
procedure to be followed. The judge must explain how written
materials can be submitted after the hearing under part
1400.2230. The judge must also explain the requirements for
registration of lobbyists under Minnesota Statutes, chapter 10A.
Subp. 3. Agency presentation. The agency representatives
and witnesses must identify themselves for the record. The
agency must then make its presentation under part 1400.2220.
Presentation by the agency of evidence not summarized in the
statement of need and reasonableness, other than bona fide
rebuttal, constitutes grounds for the judge, upon proper motion
by any interested person, to recess the hearing to allow all
interested persons an opportunity to prepare evidence in
opposition to the newly presented evidence. The hearing recess
must not exceed 25 days.
Subp. 4. Opportunity for questions. Interested persons
may ask questions of the agency representatives or witnesses and
other interested persons who speak. Agency representatives may
question interested persons who speak. The questions may relate
to the purpose or intended operation of the proposed rules, a
suggested modification, or may be conducted for other purposes
if material to the evaluation or formulation of the proposed
rules.
Subp. 5. Opportunity to present statements and evidence.
Interested persons may present oral and written statements and
evidence regarding the proposed rules.
Subp. 6. Questioning by judge. The judge may question the
agency representatives and witnesses and other interested
persons who speak.
Subp. 7. Further agency evidence. The agency may present
any further evidence that it considers appropriate in response
to statements made by interested persons. Interested persons
may respond to this evidence.
Subp. 8. Powers of judge. Consistent with law, the judge
is authorized to do all things necessary and proper to conduct
the hearing and to promote justice, fairness, and economy. This
includes but is not limited to: presiding at the hearing;
administering oaths or affirmations when appropriate; hearing
and ruling on objections and motions; questioning witnesses
where necessary to make a complete record; ruling on the
admissibility of evidence and striking from the record
objectionable evidence; limiting repetitive or immaterial oral
statements and questioning; and determining the order of making
statements and questions.
Subp. 9. Court reporters. Minnesota Statutes, section
14.52, governs the use of court reporters.
Subp. 10. Transcript. A transcript of the hearing must be
made if requested by the agency, the attorney general, the chief
judge, or any interested person. If a transcript is requested
by an interested person, that person must pay for the original
and one copy. Otherwise, the agency must pay for the original
and any copies it requires. Any interested person may purchase
a copy of a transcript once the original has been ordered by
another person. The cost of an original or copy of a transcript
must be determined by the office's contract with court
reporters. When a transcript has been prepared, the original
must be filed with the office. When a transcript has been
prepared after the judge's report is issued, the original must
be filed with the office and forwarded to the agency as soon as
the office has completed its recordkeeping.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2220 AGENCY PRESENTATION AT HEARING.
Subpart 1. Rulemaking documents. The agency must place
into the hearing record the following documents:
A. the request for comments published in the State
Register;
B. the petition for rulemaking, if the rule was
proposed in response to it;
C. the proposed rule, including the revisor's
approval;
D. the statement of need and reasonableness;
E. a copy of the transmittal letter or a certificate
showing that the agency sent a copy of the statement of need and
reasonableness to the Legislative Reference Library;
F. the notice of hearing or dual notice as mailed and
as published in the State Register;
G. the certificate of mailing the notice of hearing
and certificate of accuracy of its mailing list. Part 1400.2550
is a recommended certificate form;
H. a certificate of additional notice if given or a
copy of the transmittal letter;
I. any written comments on the proposed rule received
by the agency during the comment period;
J. if the chief judge has authorized the agency to
omit from the notice of hearing published in the State Register
the text of any proposed rule, a copy of the document
authorizing the omission; and
K. any other document or evidence to show compliance
with any other law or rule which the agency is required to
follow in adopting this rule. Examples include Minnesota
Statutes, section 3.9223, subdivision 4 (council of
Chicano/Latino people), 14.111 (farming operations), or 14.116
(notice to legislators).
Subp. 2. Copies available. The agency must have copies of
the proposed rules and the statement of need and reasonableness
available at the hearing.
Subp. 3. Showing. The agency must make its affirmative
presentation of facts showing the need for and the
reasonableness of the proposed rules and must present any other
evidence necessary to fulfill all substantive and procedural
requirements of law or rule. The agency may choose to rely on
the statement of need and reasonableness as its presentation and
the statement may be introduced as an exhibit into the record as
though read.
Subp. 4. Agency representatives present. Agency
representatives or other persons thoroughly familiar with the
proposed rules and the statement of need and reasonableness must
be available at the hearing for questioning by the judge and
other interested persons or to briefly summarize all or a
portion of the statement if requested by the judge.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2230 WRITTEN COMMENTS AFTER HEARING AND CLOSE OF HEARING
RECORD.
Subpart 1. Written comments. The judge must allow written
comments to be submitted into the hearing record by the agency
and all interested persons for five working days after the
hearing ends, and may extend this time to no more than 20 days
after the hearing ends. In its comment, the agency may state
whether there are rule modifications that it intends to adopt.
The office must receive the written comments no later than 4:30
p.m. on the last day for submission.
Subp. 2. Written responses. The office must allow the
agency and all interested persons to review the submissions
received under subpart 1 and must allow them a rebuttal period
of five working days to respond in writing to any new
information submitted. The office must receive the responses no
later than 4:30 p.m. on the last day. In its response, the
agency may state whether there are rule modifications that the
agency intends to adopt. Additional evidence may not be
submitted during this rebuttal period. The written responses
are part of the hearing record.
Subp. 3. Close of hearing record. The hearing record
closes on the last date for receipt of written responses filed
under subpart 2.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2240 ADMINISTRATIVE LAW JUDGE'S REPORT.
Subpart 1. Report. The judge must prepare a report on the
rule within 30 days after the hearing record closes, unless an
extension is granted by the chief judge under Minnesota
Statutes, section 14.15, subdivision 2.
Subp. 2. Standard of review. The judge or chief judge
must review the hearing record and must disapprove the rule if
the judge makes any of the findings in part 1400.2100, items A
to G.
Subp. 3. Approval. If the judge approves the rule, the
judge must promptly send the original report and the hearing
record to the agency. The agency and the office must make
copies of the report available to any interested person at
reasonable cost. The agency may not adopt the rule for at least
five working days after receiving the report, so that interested
persons may examine it.
Subp. 4. Disapproval; review by chief judge. If the judge
disapproves the rule, the judge must submit the report and the
hearing record to the chief judge for review. The chief judge
must review the rule and the judge's report and prepare a report
within ten days. If the chief judge disapproves the rule, the
chief judge must explain why and tell the agency what changes or
actions are necessary for approval. The chief judge must
promptly send the chief judge's report, the judge's report, and
the hearing record to the agency. The agency must resubmit the
rule to the chief judge for review after changing it. The
agency may also request that the chief judge reconsider the
disapproval. The chief judge must review and approve or
disapprove the changed rule or a request for reconsideration
within five working days after the office receives it.
Subp. 5. New changes to rule. If the agency wants to
adopt the rule with changes other than those recommended by the
judge or chief judge, the agency must submit to the chief judge:
A. the rule initially proposed;
B. the agency's proposed order adopting rules; and
C. the rule, showing the agency's changes.
The chief judge may request that the agency also return the
hearing record. The chief judge must review the agency's
changes to decide if they make the rule substantially different
than the proposed rule. The chief judge must make a written
decision within ten days after the office receives the rule.
Subp. 6. Disapproval of need and reasonableness. If the
chief judge disapproves the rule because the agency has not
shown it to be needed and reasonable, and if the agency chooses
not to follow the chief judge's recommended corrections, the
agency must submit the rule to the legislative coordinating
commission and the house of representatives and senate policy
committees with primary jurisdiction over state governmental
operations, for review under Minnesota Statutes, section 14.15,
subdivision 4.
Subp. 7. Disapproval based on substantial difference. If
the chief judge disapproves the rule because it is substantially
different than the proposed rule, the agency may end the rule
proceeding, may start a new rule proceeding to adopt the
substantially different rule, or may proceed under part
1400.2110. The agency may adopt the portions of the rules which
are not substantially different.
Subp. 8. Withdrawal of rule. The agency may withdraw a
rule by submitting a notice of withdrawal to the chief judge
signed by a person authorized to withdraw the rule. Withdrawing
a rule is appropriate unless the withdrawal of a rule or a
portion of the rule makes the remaining rules substantially
different. The notice must explain the person's authority to
withdraw the rule. The office must return the agency's filing
promptly after receiving this notice.
Subp. 9. Effect of disapproval. Disapproval of a rule or
part of a rule is binding on the agency to the extent specified
in Minnesota Statutes, sections 14.15, subdivisions 3 and 4, and
14.16.
Subp. 10. Rule adoption. Once the judge or chief judge
approves the rule or the review period for the legislative
coordinating commission and the house of representatives and
senate policy committees with primary jurisdiction over state
governmental operations has passed, the office must file three
copies of the rule with the secretary of state. The agency may
adopt the rule by executing an order adopting the rule. After
the rule is adopted, the agency may publish a notice of rule
adoption in the State Register.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
RULES ADOPTED WITHOUT A PUBLIC HEARING
1400.2300 REVIEW OF RULES ADOPTED WITHOUT A PUBLIC HEARING.
Subpart 1. Applicability. Parts 1400.2300 and 1400.2310
apply to review of rules adopted by agencies under Minnesota
Statutes, sections 14.22 to 14.28.
Subp. 2. Filing. The agency must file with the office the
documents listed in part 1400.2310.
Subp. 3. Review. A judge must review the agency's filing
and either approve or disapprove it within 14 days after the
office receives it, unless it is withdrawn. In reviewing the
filing, the judge must decide whether the rule meets the
standards of part 1400.2100.
Subp. 4. Withdrawal of rule. The agency may withdraw a
rule from review by submitting a notice of withdrawal to the
chief judge signed by a person authorized to withdraw the rule.
Withdrawing a rule is appropriate unless the withdrawal of a
rule or a portion of the rule makes the remaining rules
substantially different. The notice must explain the person's
authority to withdraw the rule. The office must return the
agency's filing promptly after receiving this notice.
Subp. 5. Approval. If the rule is approved either on
initial review or on resubmission, the agency may publish notice
of adoption of the rule in the State Register. The office must
file three copies of the rule with the secretary of state. The
office must notify those persons who requested notification that
the judge's decision is available. The office must also send a
copy of the judge's decision to the legislative coordinating
commission, the revisor, and the attorney general. The office
must send the agency a copy of its decision and promptly return
the agency's filing.
Subp. 6. Disapproval. If the rule is disapproved, the
judge must state in writing the reasons for the disapproval and
recommend what changes or actions are necessary for approval.
The written reasons for disapproval must then be submitted to
the chief judge for review. The chief judge shall approve or
disapprove the judge's determination within five working days
and shall state the reasons in writing and shall advise the
agency what changes are required for approval. The office must
notify those persons who requested notification that the chief
judge's report is available. The office also must send a copy
of the chief judge's decision to the office of the governor, the
legislative coordinating commission, the revisor, the attorney
general, and the house of representatives and senate policy
committees with primary jurisdiction over state governmental
operations. Minnesota Statutes, section 14.26, subdivision 3,
governs the effect of any disapproval. The chief judge shall
then promptly send the rule record to the agency.
Subp. 7. Disapproval based on substantial difference. If
the chief judge disapproves a rule because it is substantially
different than the proposed rule, the agency may end the rule
proceeding, may start a new rule proceeding to adopt the
substantially different rule, or may proceed under part
1400.2110. The agency may adopt the portions of the rules which
are not substantially different.
Subp. 8. Resubmission. The agency must resubmit the rule
to the chief judge for review after changing it. The agency may
also request that the chief judge reconsider the disapproval.
When the agency resubmits the rule for review, it must file with
the office:
A. the rule as initially proposed;
B. the rule with the agency's proposed changes; and
C. the agency's amended order adopting rules. The
order must include an explanation of the changes, why they solve
the problems identified by the chief judge, and why they do not
result in a substantially different rule.
The chief judge may request that the agency also return the rule
record. The chief judge must review the resubmitted rule and
decide whether it meets the standards of part 1400.2100 within
five working days of receiving it. Minnesota Statutes, section
14.26, subdivision 3, governs the effect of any disapproval.
Subp. 8a. New modifications to rule. If the agency wants
to adopt the rule with modifications other than those
recommended by the judge or chief judge, the agency must submit
to the chief judge the filings under subpart 8.
The chief judge may request that the agency also return the
rule record. The chief judge must review the agency's
modifications to decide if they make the rule substantially
different than the proposed rule. The chief judge must make a
written decision within five working days after the office
receives the rule.
Subp. 9. Disapproval of need and reasonableness. If the
chief judge disapproves the rule because the agency has not
shown it to be needed and reasonable, and if the agency chooses
not to follow the chief judge's recommended corrections, the
agency must submit the rule to the legislative coordinating
commission, and to the house of representatives and senate
policy committees with primary jurisdiction over state
governmental operations for review under Minnesota Statutes,
section 14.26, subdivision 3, paragraph (c).
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2310 DOCUMENTS TO BE FILED.
The agency must file the following documents with the
office:
A. the request for comments published in the State
Register;
B. the petition for rulemaking, if the rule was
proposed in response to it;
C. the proposed rule, including the revisor's
approval;
D. the statement of need and reasonableness;
E. the notice of intent to adopt rules as mailed and
as published in the State Register;
F. if the chief judge authorized the agency to omit
from the notice of intent to adopt rules published in the State
Register the text of any proposed rule, a copy of the document
authorizing the omission;
G. the certificate of mailing the notice of intent to
adopt rules and certificate of accuracy of its mailing list;
H. a certificate of additional notice, if given, or a
copy of the transmittal letter;
I. a copy of the transmittal letter or certificate
showing that the agency sent a copy of the statement of need and
reasonableness to the Legislative Reference Library;
J. all written comments and submissions on the
proposed rule received during the comment period, requests for
hearing, and withdrawals of requests for hearing received by the
agency, except those that only requested copies of documents;
K. if required by Minnesota Statutes, section 14.25,
subdivision 2, the notice of withdrawal of hearing request,
evidence that the notice of withdrawal was sent to all persons
who requested a hearing, and any responsive comments received;
L. a copy of the adopted rule, showing any
modifications to the proposed rule and the revisor's approval of
them;
M. if the agency adopted a substantially different
rule using the procedure in part 1400.2110, a copy of the notice
that was sent to persons or groups who commented during the
comment period and evidence that the notice was sent to those
persons or groups;
N. the order adopting the rule that complies with the
requirements in part 1400.2090;
O. the notice of submission of the rule to the
office, if anyone requested this notice, and a copy of the
transmittal letter or certificate showing that the agency sent
out this notice; and
P. any other document or evidence to show compliance
with any other law or rule which the agency is required to
follow in adopting this rule. Examples include Minnesota
Statutes, section 3.9223, subdivision 4 (council of
Chicano/Latino people), 14.111 (farming operations), or 14.116
(notice to legislators).
Part 1400.2550 is a recommended certificate form. Part
1400.2560 is a recommended order adopting rules.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
EXEMPT RULES
1400.2400 REVIEW OF EXEMPT RULES.
Subpart 1. Applicability. This part applies to review of
rules adopted by agencies under Minnesota Statutes, sections
14.386 and 14.388.
Subp. 2. Filing. The agency must file with the office:
A. the rule, including the revisor's approval; and
B. a proposed order adopting the rule, which must
include any explanation needed to support the legality of the
rule, and:
(1) the citation to the rule's statutory
exemption from the rulemaking procedures of Minnesota Statutes,
chapter 14, and any argument needed to support the claim of
exemption; or
(2) an explanation of why the rule meets the
requirements of the good cause exemption under Minnesota
Statutes, section 14.388; and
(3) any other information required by law or rule.
Subp. 3. Review. A judge must review the agency's filing
and either approve or disapprove it within 14 days after the
office receives it. In reviewing the filing, the judge must
decide whether the rule meets the standards of part 1400.2100,
items A and D to G, and whether the agency has established its
exemption from rulemaking under Minnesota Statutes, section
14.386 or 14.388.
Subp. 4. Approval. If the rule is approved, the agency
may publish it in the State Register. If the rule is approved
either on initial review or on resubmission, the office must
file three copies of the rule with the secretary of state. The
office must also send a copy of the judge's decision to the
legislative coordinating commission, the revisor, and the
attorney general. The office must send the agency a copy of the
judge's decision and promptly return the agency's filing.
Subp. 4a. Disapproval. If the rule is disapproved, the
judge must tell the agency why and what changes are necessary
for approval or why the rule is not exempt from rulemaking
procedures. The agency must resubmit the rule to the judge for
review after changing it. The judge must review and approve or
disapprove the rule within five working days after receiving
it. A rule does not take effect unless approved.
Subp. 5. Review by chief judge. An agency may ask the
chief judge to review a rule that has been disapproved by a
judge. The agency must make this request within five working
days of receiving the judge's decision. The chief judge must
review the agency's filing and, within 14 days of receiving it,
either approve or disapprove it under the standards in subpart 3.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2410 REVIEW OF EXPEDITED RULES ADOPTED WITHOUT A PUBLIC
HEARING.
Subpart 1. Applicability. This part applies to review of
expedited rules adopted by agencies under Minnesota Statutes,
section 14.389, where no public hearing is held.
Subp. 2. Filing. The agency must file the following
documents with the office:
A. the proposed rule, including the revisor's
approval;
B. the notice of intent to adopt expedited rules as
mailed and as published in the State Register;
C. the certificate of mailing the notice of intent to
adopt expedited rules and certificate of the accuracy of its
mailing list;
D. a certificate of additional notice, if given, or a
copy of the transmittal letter;
E. all written comments and submissions on the
proposed rule;
F. if required by Minnesota Statutes, section 14.25,
subdivision 2, the notice of withdrawal of hearing request,
evidence that the notice of withdrawal was sent to all persons
who requested a hearing, and any responsive comments received;
G. one copy of the adopted rule, showing any
modifications to the proposed rule and the revisor's approval of
them;
H. if the agency adopts a substantially different
rule using the procedure in part 1400.2110, a copy of the notice
that was sent to persons or groups who commented during the
comment period and evidence that the notice was sent to those
persons or groups;
I. the order adopting the rule that complies with the
requirements in part 1400.2090;
J. the notice of submission of the rule to the
office, if anyone requested this notice, and a copy of the
transmittal letter or certificate showing that the agency sent
this notice; and
K. any other document or evidence to show compliance
with any other law or rule that the agency is required to follow
in adopting this rule.
Subp. 3. Review. A judge must review the agency's filing
and either approve or disapprove it within 14 days after the
office receives it, unless it is withdrawn. In reviewing the
filing, the judge must decide whether the rule meets the
standards of part 1400.2100, items A and C to H.
Subp. 4. Withdrawal of rule. The agency may withdraw an
expedited rule from review by submitting a notice of withdrawal
signed by a person authorized to withdraw the rule unless the
withdrawal of the rule or a portion of the rule makes the
remaining rules substantially different. The notice of
withdrawal must explain the person's authority to withdraw the
rule. The office must return the agency's filing promptly after
receiving this request.
Subp. 5. Approval. If the expedited rule is approved,
either on initial review or on resubmission, the agency may
publish the notice of adoption in the State Register. If the
final expedited rule is different from the rule originally
published in the State Register, the agency must publish a copy
of the changes in the State Register. The agency must file one
copy of the rule with the governor. The office must file three
copies of the rule with the secretary of state. A rule does not
take effect unless approved.
Subp. 6. Disapproval. If the rule is disapproved, the
judge must state in writing the reasons for the disapproval and
what changes or actions are necessary for approval. The agency
must resubmit the rule to the judge for review after changing it.
The judge must review and approve or disapprove the resubmitted
rule within five working days after receiving it.
Subp. 7. Administrative law judge's decision. The office
must notify those persons who requested notification that the
judge's decision is available. The office must send a copy of
the judge's decision to the legislative coordinating commission,
the revisor, and the attorney general. The office must also
send the agency a copy of the judge's decision and promptly
return the agency's filing.
Subp. 8. Review by chief judge. An agency may ask the
chief judge to review an expedited rule that has been
disapproved by a judge. The agency must make this request
within five working days of receiving the judge's decision. The
chief judge must review the agency's filing and, within 14 days
of receiving it, either approve or disapprove it under the
standards of subpart 3.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
MEDIATION
1400.2450 MEDIATION.
Subpart 1. Request. An agency may ask the chief judge to
assign a judge to be a neutral party assisting in mediating or
negotiating a resolution to disputes relating to proposed
rules. The chief judge must assign a judge and notify the
agency of the assignment within ten days after receiving the
agency's written request.
Subp. 2. Scheduling and notice. The assigned judge must
contact the agency to establish a date, time, and place for the
first mediation session and to assist the agency in giving
notice of the mediation. The agency must give notice of the
mediation by publishing a notice in the State Register at least
15 days before the session and by mailing the notice to all
persons registered with the agency to receive rulemaking notices.
Subp. 3. Conduct of judge. The judge assigned must not
communicate, either directly or indirectly, about any facts or
issues in the mediation with any person not participating in the
mediation unless authorized to do so by all persons involved in
the mediation.
Subp. 4. Procedures and guidelines. Procedures and
guidelines for the mediation sessions must be established at the
first session by agreement of all participants.
Subp. 5. Subsequent sessions. If additional mediation
sessions are needed, the date, time, and place must be
determined by agreement of the participants or by the judge if
the participants do not agree. The judge must give notice of
future sessions orally to the participants present and by mail
to any persons who have indicated a desire to participate but
who are not present.
Subp. 6. Termination. The mediation terminates either
when the agency decides to terminate it or when the agency and
the participants sign an agreement resolving the disputed issues.
Subp. 7. Involvement of mediation judge in subsequent
proceedings. The mediation judge shall not be assigned to any
subsequent rule hearing or review that involves the rule that
was the subject of the mediation.
Subp. 8. Compliance with other requirements. The agency
must comply with all requirements of law or rule in subsequently
adopting a rule on which agreement was reached through mediation
under this part.
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
RULEMAKING FORMS
1400.2500 PETITION FOR RULEMAKING.
PETITION FOR RULEMAKING TO THE MINNESOTA DEPARTMENT OF
____________
Name:_______________________________________________
Group Represented or Title:_________________________
Address:____________________________________________
_______________________________________________
_______________________________________________
I request that the agency named above (check one):
___ Adopt a new rule governing ____________________
___ Amend Minnesota Rules, part(s) ________________
___ Repeal Minnesota Rules, part(s) _______________
1. Explain the need or reason for the rulemaking you
request. The agency will consider your reasons in making its
decision, so your explanation must be detailed. You can use
additional pages.
2. For a new rule, state the proposed new language of the
rule. For rule amendments, repeat the text of the rule,
striking through deletions and underlining new language. If you
cannot provide new rule language, then write a detailed
description of the rule that you are requesting. You can use
additional pages.
You must file this petition with the executive director or head
of the agency in person or by United States mail. The agency
must reply in writing to your petition within 60 days after
receiving it.
DATE:_________ _______________________
Signature of Petitioner
STAT AUTH: MS s 14.386; 14.388; 14.51
HIST: 20 SR 2058
1400.2510 RECOMMENDED REQUEST FOR COMMENTS ON POSSIBLE RULE.
Minnesota Department of ___________________
REQUEST FOR COMMENTS
Possible (Amendment to) (Repeal of) Rule Governing ____________,
Minnesota Rules ___________ (citation to rule).
Subject of Rule. The ______________ (name of department)
requests comments on its possible (amendment to) (repeal of)
rule governing ____________. The department is considering (a
rule) (rule amendments) (repealing its rule) that
_________________ (detailed description of subject matter of
rule).
Persons Affected. The (amendment to) (repeal of) the rule
would likely affect ______________ (description of types of
groups and individuals likely to be affected). (Optional): The
department does (not) contemplate appointing an advisory
committee to comment on the possible rule.
Statutory Authority. Minnesota Statutes, section __________
(section number), (authorizes) (requires) the department to
adopt rules for _________________ (brief description of
statutory authority).
Public Comment. Interested persons or groups may submit
comments or information on this possible rule in writing or
orally until 4:30 p.m. on ___________ (date). The department
(insert either: (has) (has not yet) prepared a draft of the
possible rule (amendment) (repeal) OR does not anticipate that a
draft of the rule (amendment) (repeal) will be available before
the publication of the proposed rule). Written or oral
comments, questions (requests to receive a draft of the rule)
(when it has been prepared), and requests for more information
on this possible rule should be addressed to:
__________________________________ (name, address, telephone
number, and e‑mail address optional of staff person).
Comments submitted in response to this notice may not be
included in the formal rulemaking record when a proceeding to
adopt a rule is started.
__________________
Commissioner
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; 26 SR 391
1400.2520 RECOMMENDED NOTICE OF INTENT TO ADOPT A RULE WITHOUT A
PUBLIC HEARING.
Minnesota Department of ________________________
NOTICE OF INTENT TO ADOPT A RULE WITHOUT A PUBLIC HEARING
Proposed (Amendment to) (Repeal of) Rule Governing
________________________, Minnesota Rules ___________ (citation
to rule).
Introduction. The (department name) intends to adopt a
rule without a public hearing following the procedures set forth
in the rules of the Office of Administrative Hearings, parts
1400.2300 and 1400.2310, and the Administrative Procedure Act,
Minnesota Statutes, sections 14.22 to 14.28. You may submit
written comments on the proposed rule and may also submit a
written request that a hearing be held on the rule until
____________ (date).
Agency Contact Person. Comments or questions on the rule
and written requests for a public hearing on the rule must be
submitted to: __________________________________ (name, agency,
address, telephone number, and fax number optional). (You may
submit e‑mail comments, questions, or requests for a public
hearing to: _______________________________(e‑mail address))
optional.
Subject of Rule and Statutory Authority. The proposed rule
is about (subject of rule, and if applicable, that an entire
rule is being repealed and a citation to the rule). The
statutory authority to adopt this rule is (specific statutory
citation). A copy of the proposed rule is published in the
State Register and attached to this notice as mailed. (If the
proposed rule is not attached to the mailed notice, then this
notice must include an easily readable and understandable
description of the rule's nature and effect and include the
announcement that: A free copy of the rule is available upon
request from the agency contact person listed above.)
Comments. You have until ____ p.m. on ____________, ____,
to submit written comment in support of or in opposition to the
proposed rule and any part or subpart of the rule. Your comment
must be in writing and received by the agency contact person by
the due date. Comment is encouraged. Your comment should
identify the portion of the proposed rule addressed and the
reason for the comment. You are encouraged to propose any
change desired. Any comments that you would like to make on the
legality of the proposed rule must also be made during this
comment period.
Request for a Hearing. In addition to submitting comments,
you may also request that a hearing be held on the rule. Your
request for a public hearing must be in writing and must be
received by the agency contact person by ____ p.m. on ________,
____. Your written request for a public hearing must include
your name and address. You must identify the portion of the
proposed rule to which you object or state that you oppose the
entire rule. Any request that does not comply with these
requirements is not valid and cannot be counted by the agency
for determining whether a public hearing must be held. You are
also encouraged to state the reason for the request and any
changes you want made to the proposed rule.
Withdrawal of Requests. If 25 or more persons submit a
valid written request for a hearing, a public hearing will be
held unless a sufficient number withdraw their requests in
writing. If enough requests for hearing are withdrawn to reduce
the number below 25, the agency must give written notice of this
to all persons who requested a hearing, explain the actions the
agency took to effect the withdrawal, and ask for written
comments on this action. If a public hearing is required, the
agency will follow the procedures in Minnesota Statutes,
sections 14.131 to 14.20.
Modifications. The proposed rule may be modified as a
result of public comment. The modifications must be supported
by comments and information submitted to the agency, and the
adopted rule may not be substantially different than this
proposed rule unless the procedure under part 1400.2110 has been
followed. If the proposed rule affects you in any way, you are
encouraged to participate in the rulemaking process.
Statement of Need and Reasonableness. A statement of need
and reasonableness is now available from the agency contact
person. This statement contains a summary of the justification
for the proposed rule, including a description of who will be
affected by the proposed rule and an estimate of the probable
cost of the proposed rule.
Other notices required by law or chosen to be inserted in
this notice.
Adoption and Review of Rule. If no hearing is required,
the agency may adopt the rule after the end of the comment
period. The rule and supporting documents will then be
submitted to the Office of Administrative Hearings for review
for legality. You may ask to be notified of the date the rule
is submitted to the office. If you want to be so notified, or
want to receive a copy of the adopted rule, or want to register
with the agency to receive notice of future rule proceedings,
submit your request to the agency contact person listed above.
Dated:__________ ____________________
Name
Title
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; L 1998 c 154 art 1 s 107; 26 SR 391
1400.2530 RECOMMENDED NOTICE OF HEARING.
Minnesota Department of _________________________
NOTICE OF HEARING
Proposed (Amendment to) (Repeal of) Rule Governing
______________, Minnesota Rules _________________ (citation to
rule).
Public Hearing. The (department name) intends to adopt a
rule after a public hearing following the procedures set forth
in the rules of the Office of Administrative Hearings, parts
1400.2200 to 1400.2240, and the Administrative Procedure Act,
Minnesota Statutes, sections 14.131 to 14.20. The agency will
hold a public hearing on the above‑entitled rule at (place),
starting at (time hearing starts) on ____________, ____, and
continuing until the hearing is completed. Additional days of
hearing will be scheduled if necessary. All interested or
affected persons will have an opportunity to participate by
submitting either oral or written data, statements, or
arguments. Statements may be submitted without appearing at the
hearing.
Administrative Law Judge. The hearing will be conducted by
(name, address, telephone number, and fax number of judge). The
rule hearing procedure is governed by Minnesota Statutes,
sections 14.131 to 14.20, and by the rules of the Office of
Administrative Hearings, Minnesota Rules, parts 1400.2000 to
1400.2240. Questions concerning the rule hearing procedure
should be directed to the Administrative Law Judge.
Subject of Rule, Statutory Authority, and Agency Contact
Person. The proposed rule is about (subject of rule and, if
applicable, that an entire rule is being repealed and a citation
to the rule). The proposed rules are authorized by Minnesota
Statutes, section (specific section number). A copy of the
proposed rule is published in the State Register and attached to
this notice as mailed. (If the proposed rule is not attached to
the mailed notice, then this notice must include an easily
readable and understandable description of the rule's nature and
effect and include the announcement that: A free copy of the
rule is available upon request from the agency contact person.)
The agency contact person is: (name, address, telephone number,
fax number optional, and e‑mail address optional).
Statement of Need and Reasonableness. A Statement of Need
and Reasonableness is now available for review at the agency
offices and at the Office of Administrative Hearings. This
statement contains a summary of the justification for the
proposed rule, including a description of who will be affected
by the proposed rule and an estimate of the probable cost of the
proposed rule. The statement may be reviewed and copies
obtained at the cost of reproduction from the agency.
Other notices required by law or chosen to be inserted in
this notice.
Public Comment. You and all interested or affected
persons, including representatives of associations and other
interested groups, will have an opportunity to participate. You
may present your views either orally at the hearing or in
writing at any time before the close of the hearing record. All
evidence presented should relate to the proposed rule. You may
also submit written material to the Administrative Law Judge to
be recorded in the hearing record for five working days after
the public hearing ends. This five‑day comment period may be
extended for a longer period not to exceed 20 calendar days if
ordered by the Administrative Law Judge at the hearing.
Following the comment period, there is a five‑working‑day
rebuttal period during which the agency and any interested
person may respond in writing to any new information submitted.
No additional evidence may be submitted during the five‑day
rebuttal period. All comments and responses submitted to the
Administrative Law Judge must be received at the Office of
Administrative Hearings no later than 4:30 p.m. on the due
date. All comments or responses received will be available for
review at the Office of Administrative Hearings.
The agency requests that any person submitting written
views or data to the Administrative Law Judge prior to the
hearing or during the comment or rebuttal period also submit a
copy of the written views or data to the agency contact person
at the address stated above.
Accommodation. If you need an accommodation to make this
hearing accessible, please contact the agency contact person at
the address or telephone number listed above.
Modifications. The proposed rules may be modified as a
result of the rule hearing process. Modifications must be
supported by data and views presented during the rule hearing
process, and the adopted rule may not be substantially different
than this proposed rule unless the procedure under part
1400.2110 has been followed. If the proposed rule affects you
in any way, you are encouraged to participate.
Adoption Procedure After Hearing. After the close of the
hearing record, the Administrative Law Judge will issue a report
on the proposed rule. You may ask to be notified of the date
when the judge's report will become available, and can make this
request at the hearing or in writing to the Administrative Law
Judge. You may also ask to be notified of the date on which the
agency adopts the rule and files it with the Secretary of State,
or ask to register with the agency to receive notice of future
rule proceedings, and can make this request at the hearing or in
writing to the agency contact person stated above.
Lobbyist Registration. Minnesota Statutes, chapter 10A,
requires each lobbyist to register with the Campaign Finance and
Public Disclosure Board. Questions regarding this requirement
may be directed to the Campaign Finance and Public Disclosure
Board at: (address, telephone number).
Order. I order that the rulemaking hearing be held at the
date, time, and location listed above.
Dated:______________ ____________________
Name
Title
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; L 1997 c 202 art 2 s 63; L 1998 c 254 art 1 s 107; 26
SR 391
1400.2540 RECOMMENDED DUAL NOTICE.
Minnesota Department of ____________________
DUAL NOTICE: NOTICE OF INTENT TO ADOPT A RULE WITHOUT A PUBLIC
HEARING UNLESS 25 OR MORE PERSONS REQUEST A HEARING, AND NOTICE
OF HEARING IF 25 OR MORE REQUESTS FOR HEARING ARE RECEIVED
Proposed (Amendment to) (Repeal of) Rule Governing
______________, Minnesota Rules ________________ (citation to
rule).
Introduction. The (department name) intends to adopt a
rule without a public hearing following the procedures set forth
in the rules of the Office of Administrative Hearings, parts
1400.2300 and 1400.2310, and the Administrative Procedure Act,
Minnesota Statutes, sections 14.22 to 14.28. If, however, 25 or
more persons submit a written request for a hearing on the rule
by _______________, ____, a public hearing will be held at
(location), starting at (time) on ________________, ____. (The
date must be at least ten days after the end of the comment
period.) To find out whether the rule will be adopted without a
hearing or if the hearing will be held, you should contact the
agency contact person after (date comment period ends) and
before (date of hearing).
Agency Contact Person. Comments or questions on the rule
and written requests for a public hearing on the rule must be
submitted to: ________________________________ (name, address,
telephone number, and fax number optional). (You may submit
e‑mail comments, questions, or requests for a public hearing
to: ______________________________ (e‑mail address)) optional.
Subject of Rule and Statutory Authority. The proposed rule
is about (subject of rule and, if applicable, that an entire
rule is being repealed and a citation to the rule). The
statutory authority to adopt the rule is (specific statutory
citation). A copy of the proposed rule is published in the
State Register and attached to this notice as mailed. (If the
proposed rule is not attached to the mailed notice, then this
notice must include an easily readable and understandable
description of the rule's nature and effect and include the
announcement that: A free copy of the rule is available upon
request from the agency contact person listed above.)
Comments. You have until _____ p.m. on _______________,
____, to submit written comment in support of or in opposition
to the proposed rule or any part or subpart of the rule. Your
comment must be in writing and received by the agency contact
person by the due date. Comment is encouraged. Your comments
should identify the portion of the proposed rule addressed, the
reason for the comment, and any change proposed. You are
encouraged to propose any change desired. Any comments that you
would like to make on the legality of the proposed rule must
also be made during this comment period.
Request for a Hearing. In addition to submitting comments,
you may also request that a hearing be held on the rule. Your
request for a public hearing must be in writing and must be
received by the agency contact person by ____ p.m. on ________,
____. Your written request for a public hearing must include
your name and address. You must identify the portion of the
proposed rule to which you object or state that you oppose the
entire rule. Any request that does not comply with these
requirements is not valid and cannot be counted by the agency
for determining whether a public hearing must be held. You are
also encouraged to state the reason for the request and any
changes you want made to the proposed rule.
Withdrawal of Requests. If 25 or more persons submit a
valid written request for a hearing, a public hearing will be
held unless a sufficient number withdraw their requests in
writing. If enough requests for hearing are withdrawn to reduce
the number below 25, the agency must give written notice of this
to all persons who requested a hearing, explain the actions the
agency took to effect the withdrawal, and ask for written
comments on this action. If a public hearing is required, the
agency will follow the procedures in Minnesota Statutes,
sections 14.131 to 14.20.
Accommodation. If you need an accommodation to make this
hearing accessible, please contact the agency contact person at
the address or telephone number listed above.
Modifications. The proposed rule may be modified, either
as a result of public comment or as a result of the rule hearing
process. Modifications must be supported by data and views
submitted to the agency or presented at the hearing and the
adopted rule may not be substantially different than this
proposed rule unless the procedure under part 1400.2110 has been
followed. If the proposed rule affects you in any way, you are
encouraged to participate in the rulemaking process.
Cancellation of Hearing. The hearing scheduled for
_______________, ____, will be canceled if the agency does not
receive requests from 25 or more persons that a hearing be held
on the rule. If you requested a public hearing, the agency will
notify you before the scheduled hearing whether or not the
hearing will be held. You may also call the agency contact
person at (telephone number) after (date comment period ends) to
find out whether the hearing will be held.
Notice of Hearing. If 25 or more persons submit valid
written requests for a public hearing on the rule, a hearing
will be held following the procedures in Minnesota Statutes,
sections 14.131 to 14.20. The hearing will be held on the date
and at the time and place listed above. The hearing will
continue until all interested persons have been heard. An
Administrative Law Judge is assigned to conduct the hearing.
The judge can be reached at: (name, address, telephone number,
and fax number).
Hearing Procedure. If a hearing is held, you and all
interested or affected persons, including representatives of
associations or other interested groups, will have an
opportunity to participate. You may present your views either
orally at the hearing or in writing at any time before the close
of the hearing record. All evidence presented should relate to
the proposed rule. You may also submit written material to the
Administrative Law Judge to be recorded in the hearing record
for five working days after the public hearing ends. This
five‑day comment period may be extended for a longer period not
to exceed 20 calendar days if ordered by the Administrative Law
Judge at the hearing. Following the comment period, there is a
five‑working‑day rebuttal period during which the agency and any
interested person may respond in writing to any new information
submitted. No additional evidence may be submitted during the
five‑day rebuttal period. All comments and responses submitted
to the Administrative Law Judge must be received at the Office
of Administrative Hearings no later than 4:30 p.m. on the due
date. All comments or responses received will be available for
review at the Office of Administrative Hearings. This rule
hearing procedure is governed by Minnesota Rules, parts
1400.2000 to 1400.2240, and Minnesota Statutes, sections 14.131
to 14.20. Questions about procedure may be directed to the
Administrative Law Judge.
The agency requests that any person submitting written
views or data to the Administrative Law Judge prior to the
hearing or during the comment or rebuttal period also submit a
copy of the written views or data to the agency contact person
at the address stated above.
Statement of Need and Reasonableness. A statement of need
and reasonableness is now available from the agency contact
person. This statement contains a summary of the justification
for the proposed rule, including a description of who will be
affected by the proposed rule and an estimate of the probable
cost of the proposed rule. The statement may be reviewed and
copies obtained at the cost of reproduction from the agency.
Other notices required by law or chosen to be inserted in
this notice.
Lobbyist Registration. Minnesota Statutes, chapter 10A,
requires each lobbyist to register with the Campaign Finance and
Public Disclosure Board. Questions regarding this requirement
may be directed to the Campaign Finance and Public Disclosure
Board at (address and telephone number).
Adoption Procedure if No Hearing. If no hearing is
required, the agency may adopt the rule after the end of the
comment period. The rule and supporting documents will then be
submitted to the Office of Administrative Hearings for review
for legality. You may ask to be notified of the date the rule
is submitted to the office. If you want to be so notified, or
want to receive a copy of the adopted rule, or want to register
with the agency to receive notice of future rule proceedings,
submit your request to the agency contact person listed above.
Adoption Procedure After the Hearing. If a hearing is
held, after the close of the hearing record, the Administrative
Law Judge will issue a report on the proposed rule. You may ask
to be notified of the date when the judge's report will become
available, and can make this request at the hearing or in
writing to the Administrative Law Judge. You may also ask to be
notified of the date on which the agency adopts the rule and it
is filed with the Secretary of State, and can make this request
at the hearing or in writing to the agency contact person stated
above.
Order. I order that the rulemaking hearing be held at the
date, time, and location listed above.
Dated:____________ ____________________
Name
Title
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; L 1997 c 202 art 2 s 63; L 1998 c 254 art 1 s 107; 26
SR 391
1400.2550 RECOMMENDED CERTIFICATES.
NOTE: This part contains the format of a certificate and
language that: certifies the accuracy of the rulemaking mailing
list, certifies the mailing of a notice or proposed rule,
certifies the mailing of the statement of need and
reasonableness to the Legislative Reference Library, certifies
the mailing of a notice of submission of a rule adopted without
a public hearing to the office, and certifies the mailing of the
notice and the statement to legislators. When making
certificates using this part, use only the language that
applies. If two or more people performed the various actions,
create a separate certificate for each person that includes only
the actions done by each individual.
Proposed Rule Governing ____________, Minnesota Rules __________
(citation to rule).
(Certificate of accuracy of the mailing list) I certify
that the list of persons and associations who have requested
under Minnesota Statutes, section 14.14, subdivision 1a, that
their names be placed on the department of ___________________
rulemaking mailing list is accurate, complete, and current as of
_____________, ____.
(Certificate of mailing notice to rulemaking mailing list)
I certify that on _____________, ____, at least 33 days before
the end of the comment period, at the City of _____________,
County of _____________, State of Minnesota, I mailed
the________________ (state what was mailed, for example: (1)
Notice of Intent to Adopt Rules, Dual Notice, or Notice for
Hearing, and (2) the proposed rule) by depositing a copy thereof
in the state of Minnesota's central mail system for United
States mail, with postage prepaid, to all persons and
associations on the rulemaking mailing list established by
Minnesota Statutes, section 14.14, subdivision 1a.
(Certificate of giving additional notice) I certify that on
________________, ____, the following additional notice was
given by the agency:
(Certificate of mailing the statement of need and
reasonableness to the Legislative Reference Library ‑ change the
title on the upper right of document) I certify that on
________________, ____, when the statement of need and
reasonableness became available to the public, I mailed a copy
of the statement to the Legislative Reference Library by
depositing it in the state of Minnesota's central mail system
for United States mail, with postage prepaid.
(Certificate of mailing notice of submission of rule
adopted without a public hearing to the Office of Administrative
Hearings ‑ change the title on the upper right document) I
certify that on ________________, ____, when the adopted rule
was submitted to the Office of Administrative Hearings, I mailed
the notice of submission of the rule to the office by depositing
it in the state of Minnesota's central mail system for United
States mail, with postage prepaid, to all persons and groups who
requested this notice.
(Certificate of mailing the notice and the statement of
need and reasonableness to legislators) (An agency may submit a
copy of the transmittal letter instead of this certificate.) I
certify that on ________________, ____, when the department
mailed Notice of Intent to Adopt Rules under Minnesota Statutes,
section 14.14 or 14.22, I mailed a copy of the Notice and the
Statement of Need and Reasonableness to certain legislators by
depositing it in the state of Minnesota's central mail system
for United States mail, with postage prepaid. The mailing was
done to comply with Minnesota Statutes, section 14.116. (List
the legislators contacted, or attach copy of cover letter sent
to legislators.)
____________________
Name
Title
STAT AUTH: MS s 14.386; 14.388; 14.51; 15.474
HIST: 20 SR 2058; L 1998 c 254 art 1 s 107; 26 SR 391
1400.2560 RECOMMENDED ORDER ADOPTING RULES.
Minnesota Department of ____________________
ORDER ADOPTING RULE
Adoption of Rule Governing _____________________, Minnesota
Rules ___________
WHEREAS:
1. All notice and procedural requirements in Minnesota
Statutes, chapter 14, Minnesota Rules, chapter 1400, and other
applicable law have been complied with. (For multimember
agencies, add the following: A copy of the authorization from
the board to propose the rule is attached. OR Proposal of the
rule was authorized by the board at its meeting on
_______________, ____, and a quorum was present.) (For rules
adopted without a public hearing, if all notice and procedural
requirements were not complied with, state what happened, what
corrective action was taken (if any), and why the office should
find it to be harmless under Minnesota Statutes, section 14.26,
subdivision 3, paragraph (d).)
2. (For rules adopted without a public hearing, state the
following: The agency received no written comments and
submissions on the rule. ________ persons requested a public
hearing , of which ___ were subsequently withdrawn. Therefore,
there are not 25 or more outstanding requests for a public
hearing. The agency received ___ requests for notice of
submission to the Office of Administrative Hearings.) OR (For
rules adopted after a public hearing, state the following: The
department adopts the Administrative Law Judge's Report dated
__________, ____, and incorporates the Report into this order,
except as described above.)
3. If any changes were made between the proposed rule and
the adopted rule, explain each change, why the change is
reasonable, and why the change does not make the rule
substantially different. (This requirement does not apply to
rules adopted after a public hearing if the judge's report
approved the specific change.)
4. The rule is needed and reasonable.
5. (For multimember agencies, add the following: A copy
of the authorization from the board to adopt the rule is
attached. OR The rule was adopted by the board at its meeting
on ______________, ____, a quorum was present, and the
undersigned was authorized to sign this order.)
IT IS ORDERED that the above‑captioned rule is adopted.
DATE:______________ ____________________
Name
Title
STAT AUTH: MS s 14.386; 14.388; 14.51
HIST: 20 SR 2058; L 1998 c 254 art 1 s 107
1400.2570 RECOMMENDED NOTICE OF INTENT TO ADOPT EXPEDITED RULE
WITHOUT A PUBLIC HEARING.
Minnesota Department of ___________________
NOTICE OF INTENT TO ADOPT EXPEDITED RULES WITHOUT A PUBLIC
HEARING
Proposed (Amendment to) (Repeal of) Rule Governing ____________
(topic), Minnesota Rules ___________ (citation to rules).
Introduction. The ______________ (agency name) intends to
adopt rules under the expedited rulemaking process set forth in
the rules of the Office of Administrative Hearings, part
1400.2410, and the Administrative Procedure Act, Minnesota
Statutes, section 14.389. You may submit written comments on
the proposed expedited rules until _________________ (date).
Agency Contact Person. Comments or questions on the rule
must be submitted to: _______________________________ (name,
agency, address, telephone number, and fax number optional).
(You may submit e‑mail comments, questions, or requests for a
public hearing to: ________________________________ (e‑mail
address)) optional.
Subject of Expedited Rule and Statutory Authority. The
proposed expedited rule is about _________________ (subject of
rule and, if applicable, that an entire rule is being repealed
and a citation to the repealed rule). The statutory authority
to adopt this rule is (citation to specific statutory
authority). The statutory authority to adopt this rule under
the expedited rulemaking process is ______________ (citation to
statutory authority to adopt rules under Minnesota Statutes,
section 14.389). A copy of the proposed rule is published in
the State Register and attached to this notice as mailed. (If
the proposed rule is not attached to the mailed notice, then
this notice must include an easily readable and understandable
description of the rule's nature and effect and include the
announcement that a free copy of the rule is available upon
request from the agency contact person listed above.) The
proposed expedited rule may be viewed at: ______________
(applicable Web site address) optional.
Comments. You have until ______ (time) on _____________
(date) to submit written comment in support of or in opposition
to the proposed expedited rule and any part or subpart of the
rule. Your comment must be in writing and received by the
agency contact person by the due date. Comment is encouraged.
Your comment should identify the portion of the proposed
expedited rule addressed and the reason for the comment. You
are encouraged to propose any change desired. Any comments that
you would like to make on the legality of the proposed rule must
also be made during this comment period.
(If the agency is accepting requests for a public hearing,
the following paragraph must be included.)
Request for a Hearing. In addition to submitting comments,
you may also request that a hearing be held on the rule. Your
request for a public hearing must be in writing and must be
received by the agency contact person by _______ (time) on
____________ (date). Your written request for a public hearing
must include your name and address. You must identify the
portion of the proposed rule to which you object or state that
you oppose the entire rule. Any request that does not comply
with these requirements is not valid and cannot be counted by
the agency for determining whether a public hearing must be
held. You are also encouraged to state the reason for the
request and any changes you want made to the proposed rule.
(If the agency is accepting requests for a public hearing,
the following paragraph must be included.)
Withdrawal of Requests. If 100 or more persons submit a
valid written request for a hearing, a public hearing will be
held unless a sufficient number withdraw their requests in
writing. If enough requests for hearing are withdrawn to reduce
the number below 100, the agency must give written notice of
this to all persons who requested a hearing, explain the actions
the agency took to effect the withdrawal, and ask for written
comments on this action. If a public hearing is required, the
agency will follow the procedures in Minnesota Statutes,
sections 14.131 to 14.20.
Modifications. The agency may modify the proposed
expedited rule if the modifications do not make the rule
substantially different as defined in Minnesota Statutes,
section 14.05, subdivision 2, paragraphs (b) and (c), unless the
procedure under part 1400.2110 has been followed. If the final
rule is identical to the rule originally published in the State
Register, the agency will publish a notice of adoption in the
State Register. If the final rule is different from the rule
originally published in the State Register, the agency must
publish a copy of the changes in the State Register. If the
proposed expedited rule affects you in any way, you are
encouraged to participate in the rulemaking process.
Other notices required by law or chosen to be inserted in
this notice.
Adoption and Review of Expedited Rule. (If no hearing is
required, the) or (The) agency may adopt the rules at the end of
the comment period. The rules and supporting documents will
then be submitted to the Office of Administrative Hearings for
review for legality. You may ask to be notified of the date the
rules are submitted to the office. If you want to be so
notified, or want to receive a copy of the adopted rules, or
want to register with the agency to receive notice of future
rule proceedings, submit your request to the agency contact
person listed above.
Dated:____________ ____________________
Name
Title
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
CONTESTED CASE HEARINGS
1400.5010 SCOPE.
The procedures in parts 1400.5010 to 1400.8400 govern all
contested cases conducted by the office under Minnesota
Statutes, chapter 14.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
1400.5100 DEFINITIONS.
Subpart 1. Administrative law judge or judge.
"Administrative law judge" or "judge" means the person or
persons assigned by the chief administrative law judge pursuant
to Minnesota Statutes, section 14.50, to hear the contested case.
Subp. 2. Agency. "Agency" means the state or public
agency for whom a contested case hearing is being conducted.
Subp. 3. Chief judge. "Chief judge" means the chief
administrative law judge of the Office of Administrative
Hearings.
Subp. 3a. Filing. "Filing" means transmission of a
document to the Office of Administrative Hearings by mail,
delivery, fax, or licensed overnight express mail service.
Subp. 4. Repealed, 15 SR 1595
Subp. 5. Repealed, 15 SR 1595
Subp. 6. Office. "Office" means the Office of
Administrative Hearings.
Subp. 7. Party. "Party" means each person named as a
party by the agency in the notice of and order for hearing, or
persons granted permission to intervene pursuant to part
1400.6200. The term "party" shall include the agency except
when the agency participates in the contested case in a neutral
or quasi‑judicial capacity only.
Subp. 8. Person. "Person" means any individual, business,
nonprofit association or society, or governmental entity.
Subp. 9. Service; serve. "Service" or "serve" means
personal service or, unless otherwise provided by law, service
by first class United States mail or a licensed overnight
express mail service.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 116C.66; 363.06
HIST: 9 SR 2276; 15 SR 1595; 26 SR 391
1400.5200 Repealed, 26 SR 391
1400.5275 DOCUMENTS FILED.
Forms, documents, or written materials prepared
specifically for and used or filed in contested proceedings
before the office must be on standard size 8‑1/2‑inch by 11‑inch
paper.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.5300 REQUEST FOR ADMINISTRATIVE LAW JUDGE.
Before issuing a notice of and order for hearing, an agency
must first file with the docket coordinator a request for
assignment of an administrative law judge. The request must
include a proposed time, date, and place for the hearing or
prehearing conference.
In proposing a hearing location, the requesting agency must
take into account the location of known parties, witnesses, and
other participants so as to maximize convenience and minimize
costs.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.5400 ASSIGNMENT OF ADMINISTRATIVE LAW JUDGE.
Within ten days of the receipt of a request pursuant to
part 1400.5300, the chief judge shall assign a judge to hear the
case and set the time, date, and place for hearing or prehearing
conference, taking into account the agency's request. The
agency shall issue the notice of and order for hearing, unless
the substantive law requires it to be issued otherwise.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.5500 DUTIES OF ADMINISTRATIVE LAW JUDGE.
Consistent with law, the judge shall perform the following
duties:
A. grant or deny a demand for a more definite
statement of charges;
B. grant or deny requests for discovery including the
taking of depositions;
C. receive and recommend action upon requests for
subpoenas where appropriate and consistent with part 1400.7000;
D. hear and rule on motions;
E. preside at the contested case hearing;
F. administer oaths and affirmations;
G. grant or deny continuances;
H. examine witnesses as necessary to make a
complete record;
I. prepare findings of fact, conclusions, and
recommendations or a final order where required by law;
J. make preliminary, interlocutory, or other orders
as deemed appropriate;
K. recommend a summary disposition of the case or any
part thereof where there is no genuine issue as to any material
fact or recommend dismissal where the case or any part thereof
has become moot or for other reasons;
L. permit testimony, upon the request of a party or
upon his or her own motion to be prefiled in whole or in part
where the prefiling will expedite the conduct and disposition of
the case without imposing an undue burden on any party;
M. grant or deny a request to substitute initials or
numbers for proper names in the hearing record or in findings of
fact, conclusions, and recommendations or order;
N. appoint an interpreter where necessary to provide
a fair hearing;
O. set a reasonable limit on the time allowed for
testimony after considering the requests of the parties;
P. change the location of the hearing based upon the
request of a party where necessary to provide a fair hearing;
Q. do all things necessary and proper to the
performance of the foregoing; and
R. in his or her discretion, perform such other
duties as may be delegated by the agency ordering the hearing.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.5550 SERVICE AND FILING PROCEDURE.
Subpart 1. Certificate of service. A certificate of
service must be made by the person making the service. A
certificate of service must bear the name of the person
certifying that service has been made, but need not be signed or
notarized.
Subp. 2. Service by mail. Service by mail or licensed
overnight express mail service is effective upon placing the
item to be served in the mail or delivering it to the authorized
agent of the express mail service. Postage must be prepaid.
Mail to a person other than a state agency shall be addressed to
the last known address of the person. Agencies of the state of
Minnesota may also deposit the document with the state of
Minnesota's central mail system for United States mail.
Subp. 3. Personal service. Personal service may be
accomplished by either delivering the document to the person or
by leaving the document at the person's home or place of
business with someone of suitable age and discretion who resides
in the same house or who is located at the same business address
as the person to be served.
Subp. 4. Service upon a confined person. If a person is
confined to a federal or state institution, a copy of the
document must also be served upon the chief executive officer of
the institution.
Subp. 5. Filing by facsimile and other means. Any paper
relating to hearings conducted by an administrative law judge
under Minnesota Statutes, chapter 14, may be filed with the
office by fax transmission. Filings are effective on the date
that the office receives the fax transmission if the
transmission is begun before 4:30 p.m. on that date. The filing
of a fax has the same force and effect as the filing of the
original document. Filings made by other means described in
part 1400.5100, subpart 3a, are effective on the date the office
receives the filing.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
1400.5600 NOTICE AND ORDER FOR HEARING.
Subpart 1. Commencing a contested case. A contested case
is commenced, subsequent to the assignment of a judge, by the
service of a notice of and order for hearing by the agency.
Subp. 2. Contents of notice and order. Unless otherwise
provided by law, a notice of and order for hearing, which shall
be a single document, shall be served upon all parties, shall be
filed with the office and shall contain, among other things, the
following:
A. The time, date, and place for the hearing or a
prehearing conference, or a statement that the matter has been
referred to the office and that a hearing or prehearing time,
date, and place will be set by the judge;
B. Name, address, and telephone number of the judge;
C. A citation to the agency's statutory authority to
hold the hearing and to take the action proposed;
D. A statement of the allegations or issues to be
determined together with a citation to the relevant statutes or
rules allegedly violated or which control the outcome of the
case;
E. Notification of the right of the parties to be
represented by an attorney, by themselves, or by a person of
their choice if not otherwise prohibited as the unauthorized
practice of law;
F. A citation to parts 1400.5100 to 1400.8400, to any
applicable procedural rules of the agency, and to the contested
case provisions of Minnesota Statutes, chapter 14, and
notification of how copies may be obtained in print or online;
G. A brief description of the procedure to be
followed at the hearing;
H. A statement advising the parties to bring to the
hearing all documents, records, and witnesses they need to
support their position;
I. A statement that subpoenas may be available to
compel the attendance of witnesses or the production of
documents, referring the parties to part 1400.7000 relating to
subpoenas;
J. A statement advising the parties of the name of
the agency official or member of the attorney general's staff to
be contacted to discuss informal disposition pursuant to part
1400.5900 or discovery pursuant to parts 1400.6700 and
1400.6800;
K. A statement advising the parties that a notice of
appearance must be filed with the judge within 20 days of the
date of service of the notice of and order for hearing if a
party intends to appear at the hearing unless the hearing date
is less than 20 days from the issuance of the notice of and
order for hearing;
L. A statement advising existing parties that failure
to appear at a prehearing conference, settlement conference, or
the hearing, or failure to comply with any order of the judge
may result in the allegations of the notice of and order for
hearing being taken as true, or the issues set out being deemed
proved, and a statement that explains the possible results of
the allegations being taken as true or the issues proved;
M. A statement advising the parties that state
agencies are required by law to keep some data not public, that
parties are required to advise the judge if not public data is
offered into the record, and that if not public data is admitted
into evidence it may become public unless a party objects and
asks for relief under Minnesota Statutes, sections 14.60,
subdivision 2;
N. A statement advising the parties and counsel that
the office conducts contested case proceedings in accordance
with the Minnesota Rules of Professional Conduct and the
Professionalism Aspirations adopted by the Minnesota State Bar
Association;
O. Notification that the agency will, upon request,
make an accommodation so that the hearing is accessible and will
appoint a qualified interpreter if necessary; and
P. A statement advising the parties that if an
interpreter is needed the judge must be promptly notified.
Subp. 3. Service. Unless otherwise provided by law, the
notice of and order for hearing shall be served and filed not
less than 30 days prior to the hearing. Provided, however, that
a shorter time may be allowed, where it can be shown to the
chief judge that a shorter time is in the public interest and
that interested persons are not likely to be prejudiced.
Subp. 4. Repealed, 26 SR 391
Subp. 5. Amendment. At any time prior to the start of the
evidentiary hearing, the agency may file and serve an amended
notice of and order for hearing, provided that, should the
amended notice and order raise new issues or allegations, the
parties shall have a reasonable time to prepare to meet the new
issues or allegations if requested. Amendments sought after the
start of the hearing must be approved by the judge.
Subp. 6. Alternative documents and procedures. With the
prior written concurrence of the chief judge, an agency may
substitute other documents and procedures for the notice of and
order for hearing provided that the documents and procedures
inform actual and potential parties of the information contained
in subpart 2.
Subp. 7. Department of Human Rights hearings. After
receipt of a request for a hearing forwarded by the commissioner
of the Department of Human Rights under Minnesota Statutes,
section 363.071, subdivision 1a, and the assignment of a judge
to the case, the judge shall prepare and issue a notice of and
order for hearing. The notice shall incorporate the charge or
charges filed by the charging party and shall state that an
answer to the charges must be served and filed by the respondent
within 20 days after service of the notice.
STAT AUTH: MS s 3.764; 14.06; 14.131; 14.51; 15.474; 116C.66; 363.06
HIST: 9 SR 2276; 11 SR 1385; 15 SR 1595; 26 SR 391
1400.5700 NOTICE OF APPEARANCE.
Each party intending to appear at a contested case hearing
shall file with the judge and serve upon all other known parties
a notice of appearance which shall advise the judge of the
party's intent to appear and shall indicate the title of the
case, the agency ordering the hearing, the party's current
address and telephone number, and the name, office address, and
telephone number of the party's attorney or other
representative. The notice of appearance shall be filed and
served within 20 days of the date of service of the notice of
and order for hearing, except that, where the hearing or
prehearing conference date is less than 20 days from the
commencement of the contested case, the notice of appearance
shall be filed as soon as possible. The failure to file and
serve a notice may, in the discretion of the judge, result in a
continuance of the hearing if the party failing to file appears
at the hearing. A notice of appearance form shall be included
with the notice of and order for hearing for use by the party
served. After an attorney has filed a notice of appearance,
withdrawal is effective only if a notice of withdrawal is
promptly served on all parties and filed with the judge. The
notice of withdrawal must include the address and telephone
number of the party. Withdrawal of counsel does not create any
right to a continuance.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 116C.66; 363.06
HIST: 9 SR 2276; 15 SR 1595; 26 SR 391
1400.5800 RIGHT TO COUNSEL.
Parties may be represented by an attorney throughout the
proceedings in a contested case, by themselves, or by a person
of their choice if not otherwise prohibited as the unauthorized
practice of law. Persons appearing in contested case
proceedings in a representative capacity must conform to the
standards of professional conduct required of attorneys before
the courts of Minnesota. If any representative fails to conform
to these standards, the judge may exclude the person from the
proceeding.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.5900 CONSENT ORDER, SETTLEMENT, OR STIPULATION.
Informal disposition may be made of any contested case or
any issue therein by stipulation, agreed settlement, or consent
order at any point in the proceedings. Parties may enter into
these agreements on their own or may utilize the mediation
procedures in part 1400.5950 or the settlement conference
procedures in part 1400.6550. The parties must promptly notify
the judge in writing of a settlement so that the office file can
be closed.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.5950 MEDIATION.
Subpart 1. Definition. "Mediation" is a voluntary process
where parties to a dispute jointly explore and resolve all or a
part of their differences with the assistance of a neutral
person. The mediator's role is to assist the parties in
resolving the dispute themselves. The mediator has no authority
to impose a settlement.
Subp. 2. Office to provide. The office will provide
mediation services to any state agency, court, or political
subdivision in a contested case proceeding or other contested
matter other than labor relation disputes which are within the
jurisdiction of the Bureau of Mediation Services. For purposes
of this part only, "agency" means either a state agency, court,
or political subdivision of the state.
Subp. 3. Initiating mediation. Mediation may be initiated
in the following ways:
A. Prior to the initiation of a contested case
proceeding, an agency may propose mediation by filing a written
request for mediation services with the chief judge. A copy of
the request shall be served upon all persons whom the agency
would name as parties in the notice of and order for hearing.
B. Subsequent to the initiation of a contested case
proceeding, the agency, a party to a contested case, or the
judge assigned to the contested case may propose that the case
be mediated by filing a request for mediation services with the
chief judge. A copy of the request must be served upon the
agency, the judge, and all parties.
C. Upon receipt of a request for mediation, the chief
judge or designee shall contact, either orally or in writing,
the agency and all parties to determine whether they are willing
to participate in mediation. No matter shall be ordered for
mediation if the agency or any party is opposed.
D. If the chief judge determines that no party or the
agency is opposed to mediation, the chief judge shall appoint a
mediator and issue an order for mediation, which shall set forth:
(1) the name, address, and telephone number of
the mediator; and
(2) a date by which the mediator must initiate
the mediation proceedings.
The order shall be served upon the agency, the parties, and
the judge assigned to the contested case, if any.
E. The mediator must initiate the mediation
proceedings by contacting the agency and each party no later
than the date set forth in the order for mediation.
Subp. 4. Confidentiality. The mediator shall not
communicate, either directly or indirectly, regarding any facts
or issues in the mediation with any person not participating in
the mediation unless authorized to do so by the parties to the
mediation.
Subp. 5. Termination. The mediation process shall
terminate when all parties are, or the agency is, unwilling to
continue mediation; or a settlement agreement is signed setting
forth the resolution of the disputed issues.
Upon termination, the mediator shall either forward the
signed settlement agreement to the agency or the judge, if
applicable, for appropriate action; or inform the agency or the
judge, if applicable, that the mediation has been terminated
without agreement.
Subp. 6. Admissibility. Any offers to compromise or
evidence of conduct or statements made during mediation are not
admissible.
Subp. 7. Unsuccessful mediation. The person appointed to
mediate a dispute shall not be assigned to hear any portion of
the case should mediation terminate unsuccessfully.
STAT AUTH: MS s 14.06; 14.131; 14.51; 116C.66; 363.06 subd 4 cl (8)
HIST: 9 SR 2276; 15 SR 1595
1400.6000 DEFAULT.
The agency or the judge, where authorized, may dispose of a
contested case adverse to a party which defaults. Upon default,
the allegations of or the issues set out in the notice of and
order for hearing or other pleading may be taken as true or
deemed proved without further evidence. A default occurs when a
party fails to appear without the prior consent of the judge at
a prehearing conference, settlement conference, or a hearing or
fails to comply with any interlocutory orders of the judge.
STAT AUTH: MS s 14.06; 14.131; 14.51; 116C.66; 363.06 subd 4 cl (8)
HIST: 9 SR 2276; 15 SR 1595
1400.6100 TIME.
Subpart 1. Computation. In computing any period of time
prescribed by parts 1400.5100 to 1400.8400 or the procedural
rules of any agency, the day of the last act, event, or default
from which the designated period of time begins to run shall not
be included. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday, or a legal holiday.
Subp. 2. Extra time: service by mail. Whenever a party
has the right or is required to do some act or take some action
within a prescribed period after the service of a notice or
other paper upon the party, or whenever service is required to
be made within a prescribed period before a specified event, and
the notice or paper is served by mail, three days shall be added
to the prescribed period. In the event an agency chooses to
utilize the Central Mailing Section, Publications Division,
Department of Administration, four days shall be added to the
prescribed period.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.6200 INTERVENTION IN PROCEEDINGS AS PARTY.
Subpart 1. Petition. Any person not named in the notice
of hearing who desires to intervene in a contested case as a
party shall submit a timely written petition to intervene to the
judge and shall serve the petition upon all existing parties and
the agency. Timeliness will be determined by the judge in each
case based on circumstances at the time of filing. The petition
shall show how the petitioner's legal rights, duties, or
privileges may be determined or affected by the contested case;
shall show how the petitioner may be directly affected by the
outcome or that petitioner's participation is authorized by
statute, rule, or court decision; shall set forth the grounds
and purposes for which intervention is sought; and shall
indicate petitioner's statutory right to intervene if one should
exist. The agency may, with the consent of the judge, and where
good reason appears therefor, specify in the notice of and order
for hearing or prehearing the final date upon which a petition
for intervention may be submitted to the judge.
Subp. 2. Objection. Any party may object to the petition
for intervention by filing a written notice of objection with
the judge within seven days of service of the petition if there
is sufficient time before the hearing. The notice shall state
the party's reasons for objection and shall be served upon all
parties, the person petitioning to intervene and the agency. If
there is insufficient time before the hearing for a written
objection, the objection may be made orally at the hearing.
Subp. 2a. Hearing on petition. Where necessary to develop
a full record on the question of intervention, the judge shall
conduct a hearing on the petition to determine specific
standards that will apply to each category of intervenor, and to
define the scope of intervention.
Subp. 3. Order. The judge shall allow intervention upon a
proper showing pursuant to subpart 1 unless the judge finds that
the petitioner's interest is adequately represented by one or
more parties participating in the case. An order allowing
intervention shall specify the extent of participation permitted
the petitioner and shall state the judge's reasons. A
petitioner may be allowed to:
A. file a written brief without acquiring the status
of a party;
B. intervene as a party with all the rights of a
party; or
C. intervene as a party with all the rights of a
party but limited to specific issues and to the means necessary
to present and develop those issues.
Subp. 4. By agency in a neutral capacity. Where the
agency participates in the hearing in a neutral or
quasi‑judicial capacity, the agency staff, or a portion of the
agency staff, may petition to intervene under the rule.
Subp. 5. Participation by public. The judge may, in the
absence of a petition to intervene, nevertheless hear the
testimony and receive exhibits from any person at the hearing,
or allow a person to note that person's appearance, or allow a
person to question witnesses, but no person shall become, or be
deemed to have become, a party by reason of such participation.
Persons offering testimony or exhibits may be questioned by
parties to the proceeding.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.6300 Repealed, 9 SR 2276
1400.6350 CONSOLIDATION OF CASES.
Subpart 1. Standards for consolidation. Whenever two or
more separate contested cases present substantially the same
issues of fact and law, that a holding in one case would affect
the rights of parties in another case, that consolidating the
cases for hearing would save time and costs, and that
consolidation would not prejudice any party, the cases may be
consolidated for hearing under this part.
Subp. 2. Agency consolidation. Subject to a motion for
severance as provided in subpart 7, prior to referring cases to
the office for hearing an agency may consolidate two or more
cases for hearing.
Subp. 3. Service of petition. A party requesting
consolidation shall serve a petition for consolidation on all
parties to the cases to be consolidated, on the agency if the
agency is not a party, and shall file the original with the
judge assigned to the cases, together with a proof of service
showing service as required herein. Any party objecting to the
petition shall serve and file their objections within ten
calendar days following service of the petition for
consolidation.
Subp. 4. Determination of petition. When more than one
judge is assigned to the cases which are the subject of the
petition for consolidation, the petition will be determined by
the judge assigned to the first case submitted to the office.
Subp. 5. Order. Upon determining whether cases should be
consolidated, the judge shall serve a written order on all
parties and the agency, if the agency is not a party. The order
shall contain, among other things, a description of the cases
for consolidation, the reasons for the decision, and
notification of a consolidated prehearing conference if one is
being scheduled.
Subp. 6. Stipulations. Nothing contained in this part
shall be deemed to prohibit parties from stipulating and
agreeing to a consolidation which shall be granted upon
submission of a written stipulation, signed by all parties, to
the judge. A judge may consolidate two or more cases presently
pending before that judge on the judge's own motion, applying
the standards in subpart 1.
Subp. 7. Petition for severance. Following receipt of a
notice of or order for consolidation, any party may petition for
severance by serving it on all other parties and the agency, if
the agency is not a party, and filing it with the judge at least
seven business days prior to the first scheduled hearing date.
If the judge finds that the consolidation will prejudice the
petitioner, the judge shall order the severance or other relief
which will prevent the prejudice from occurring.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.6400 ADMINISTRATIVE LAW JUDGE DISQUALIFICATION.
The judge shall withdraw from participation in a contested
case at any time if he or she deems himself or herself
disqualified for any reason. Upon the filing in good faith by a
party of an affidavit of prejudice, the chief judge shall
determine the matter as a part of the record provided the
affidavit shall be filed no later than five days prior to the
date set for hearing. A judge must be removed upon an
affirmative showing of prejudice or bias. A judge may not be
removed merely because of rulings on prior cases.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.6500 PREHEARING CONFERENCE.
Subpart 1. Purpose. The purpose of the prehearing
conference is to simplify the issues to be determined, to
consider amendment of the agency's order if necessary, to obtain
stipulations in regard to foundation for testimony or exhibits,
to obtain stipulations of agreement on nondisputed facts or the
application of particular laws, to consider the proposed
witnesses for each party, to consider how the hearing will be
recorded and whether a transcript will be prepared, to consider
whether an interpreter or other accommodation is needed, to
identify and exchange documentary evidence intended to be
introduced at the hearing, to determine deadlines for the
completion of any discovery, to consider a reasonable limit on
the time allowed for presenting evidence, to establish hearing
dates and locations if not previously set, to determine whether
the issues in the case are susceptible to mediation, to consider
such other matters that may be necessary or advisable and, if
possible, to reach a settlement without the necessity for
further hearing.
Subp. 2. Procedure. Upon the request of any party or upon
his or her own motion, the judge may, in his or her discretion,
hold a prehearing conference prior to each contested case
hearing. A prehearing conference may be held by telephone. The
judge may require the parties to file a prehearing statement
prior to the prehearing conference which shall contain such
items as the judge deems necessary to promote a useful
prehearing conference. A prehearing conference shall be an
informal proceeding conducted expeditiously by the judge.
Agreements on the simplification of issues, amendments,
stipulations, or other matters may be entered on the record or
may be made the subject of an order by the judge.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.6550 SETTLEMENT CONFERENCE.
Subpart 1. Purpose. A settlement conference is for the
primary purpose of assisting the parties in resolving disputes
and for the secondary purpose of narrowing the issues and
preparing for hearing as in part 1400.6500, subpart 1.
Subp. 2. Scheduling. Upon the request of any party or the
judge, the chief judge shall assign the case to another judge
for the purpose of conducting a settlement conference. Unless
both parties and the judge agree, a unilateral request for a
settlement conference will not constitute good cause for a
continuance. The conference shall be conducted at a time and
place agreeable to all parties and the judge. It shall be
conducted by telephone if any party would be required to travel
more than 50 miles to attend, unless that party agrees to travel
to the location set for the conference. If a telephone
conference is scheduled, the parties must be available by
telephone at the time of the conference. Where mediation
between the parties has previously occurred, a settlement
conference will not be ordered unless all parties agree.
Subp. 3. Procedures at conference. All parties shall
attend or be represented at a settlement conference. Parties or
their representatives attending a settlement conference shall be
prepared to participate in meaningful settlement discussions.
Subp. 4. Preconference discussions. The parties shall
discuss the possibility of settlement before a settlement
conference if they believe that a reasonable basis for
settlement exists.
Subp. 5. Information provided. At the settlement
conference, the parties shall be prepared to provide the
information and to discuss all matters required by part
1400.6500, subpart 1.
Subp. 6. Orders. If, following a settlement conference, a
settlement has not been reached but the parties have reached an
agreement on any facts or other issues, the judge presiding over
the settlement conference shall issue an order confirming and
approving, if necessary, those matters agreed upon. The order
is binding on the judge who is assigned to hear the case.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.6600 MOTIONS.
Any application to the judge for an order shall be by
motion which, unless made during a hearing, shall be made in
writing, shall state with particularity the grounds therefor,
and shall set forth the relief or order sought. Motions
provided for in parts 1400.5100 to 1400.8400 shall be served on
all parties, the agency, if it is not a party, and the judge.
The written motion shall advise other parties that should they
wish to contest the motion they must file a written response
with the judge and serve copies on all parties, within ten
working days after it is received. No memorandum of law
submitted in connection with a motion may exceed 25 pages,
except with the permission of the judge. If any party desires a
hearing on the motion, they shall make a request for a hearing
at the time of the submission of their motion or response. A
response shall set forth the nonmoving party's objections. A
hearing on a motion will be ordered by the judge only if it is
determined that a hearing is necessary to the development of a
full and complete record on which a proper decision can be
made. Motions may be heard by telephone. All orders on such
motions, other than those made during the course of the hearing,
shall be in writing and shall be served upon all parties of
record and the agency if it is not a party. In ruling on
motions where parts 1400.5100 to 1400.8400 are silent, the judge
shall apply the Rules of Civil Procedure for the District Court
for Minnesota to the extent that it is determined appropriate in
order to promote a fair and expeditious proceeding.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.6700 DISCOVERY.
Subpart 1. Witnesses; statement by parties or witnesses.
Each party shall, within ten days of a written demand by another
party, disclose the following:
A. The names and addresses of all witnesses that a
party intends to call at the hearing, along with a brief summary
of each witness' testimony. All witnesses unknown at the time
of said disclosure shall be disclosed as soon as they become
known.
B. Any relevant written or recorded statements made
by the party or by witnesses on behalf of a party. The
demanding party shall be permitted to inspect and reproduce any
such statements.
C. All written exhibits to be introduced at the
hearing. The exhibits need not be produced until one week
before the hearing unless otherwise ordered.
D. Any party unreasonably failing upon demand to make
the disclosure required by this subpart may, in the discretion
of the judge, be foreclosed from presenting any evidence at the
hearing through witnesses or exhibits not disclosed or through
witnesses whose statements are not disclosed.
Subp. 2. Discovery of other information. Any means of
discovery available pursuant to the Rules of Civil Procedure for
the District Court of Minnesota is allowed. If the party from
whom discovery is sought objects to the discovery, the party
seeking the discovery may bring a motion before the judge to
obtain an order compelling discovery. In the motion proceeding,
the party seeking discovery shall have the burden of showing
that the discovery is needed for the proper presentation of the
party's case, is not for purposes of delay, and that the issues
or amounts in controversy are significant enough to warrant the
discovery. In ruling on a discovery motion, the judge shall
recognize all privileges recognized at law.
Subp. 3. Noncompliance. Upon the failure of a party to
reasonably comply with an order of the judge made pursuant to
subpart 2, the judge may make a further order as follows:
A. an order that the subject matter of the order for
discovery or any other relevant facts shall be taken as
established for the purposes of the case in accordance with the
claim of the party requesting the order;
B. an order refusing to allow the party failing to
comply to support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in
evidence.
Subp. 4. Protective orders. The judge may issue a
protective order as justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense due to a discovery request. When a party is
asked to reveal material considered to be proprietary
information or trade secrets, or not public data, that party may
bring the matter to the attention of the judge, who shall make
such protective orders as are reasonable and necessary or as
otherwise provided by law.
Subp. 5. Filing. Copies of a party's request for
discovery as well as the responses to those requests and copies
of discovery depositions shall not be filed with the office
unless otherwise ordered by the judge or unless they are filed
in support of any motion or unless they are introduced as
evidence in the hearing.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 116C.66; 363.06
HIST: 9 SR 2276; 15 SR 1595; 26 SR 391
1400.6800 REQUESTS FOR ADMISSION OF FACTS OR OPINIONS.
A party may serve upon any other party a written request
for the admission of relevant facts or opinions, or of the
application of law to relevant facts or opinions, including the
genuineness of any document. The request must be served at
least 15 days prior to the hearing, and it shall be answered in
writing by the party to whom the request is directed within ten
days of receipt of the request. The written answer shall either
admit or deny the truth of the matters contained in the request
or shall make a specific objection thereto. Failure to make a
written answer within ten days will result in the subject matter
of the request being deemed admitted unless it can be shown that
there was a justifiable excuse for failing to respond.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.6900 DEPOSITIONS TO PRESERVE TESTIMONY.
Upon the request of any party, the judge may order that the
testimony of any witness be taken by deposition to preserve that
witness' testimony in the manner prescribed by law for
depositions in civil actions. The request shall indicate the
relevancy of the testimony and shall make a showing that the
witness will be unable or cannot be compelled to attend the
hearing or show other good cause.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.6950 EXCHANGE OF WITNESS LISTS AND EXHIBITS.
Subpart 1. Order. Prior to the hearing the judge may,
upon a party's request or at the judge's own motion, order the
parties by a date certain to:
A. exchange a list of all witnesses to be called at
the hearing. The list must include the witness' occupation and
address; and
B. exchange all written exhibits to be offered at the
hearing.
Subp. 2. Objection to foundation. Any party objecting to
the foundation for any written exhibit received under subpart 1
must notify both the offering party and the judge in writing at
least two working days before the hearing or the foundation
objection is waived.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
1400.7000 SUBPOENAS.
Subpart 1. Written request. Requests for subpoenas for
the attendance of witnesses or the production of documents,
either at a hearing or for the purpose of discovery, shall be
made in writing to the judge, shall contain a brief statement
demonstrating the potential relevance of the testimony or
evidence sought, shall identify any documents sought with
specificity, shall include the full name and home or business
address of all persons to be subpoenaed and, if known, the date,
time, and place for responding to the subpoena.
Subp. 2. Service. A subpoena shall be served in the
manner provided by the Rules of Civil Procedure for the District
Courts of Minnesota unless otherwise provided by law. The cost
of service, fees, and expenses of any witnesses subpoenaed shall
be paid by the party at whose request the witness appears. The
person serving the subpoena is not required to make proof of
service by filing the subpoena with the judge. However, a
filing with an affidavit of service will be required with the
motion of a party seeking an order imposing sanctions for
failure to comply with any subpoena issued under parts 1400.5100
to 1400.8400.
Subp. 3. Objection to subpoena. Any person served with a
subpoena who has an objection to it may file an objection with
the judge. The objection shall be filed promptly, and in any
event at or before the time specified in the subpoena for
compliance. The judge shall cancel or modify the subpoena if it
is unreasonable or oppressive, taking into account the issues or
amounts in controversy, the costs or other burdens of compliance
when compared with the value of the testimony or evidence sought
for the presentation of a party's case, and whether or not there
are alternative methods of obtaining the desired testimony or
evidence. Modification may include requiring the party
requesting the subpoena to pay reasonable costs of producing
documents, books, papers, or other tangible things.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.7050 SANCTIONS IN DISCRIMINATION CASES.
Subpart 1. Precomplaint procedure. If, at any time prior
to the issuance of a complaint in any matter pending before the
Minnesota Department of Human Rights, the charging party or the
respondent believes that the other is intentionally and
frivolously delaying any precomplaint proceedings, it may
petition the chief judge for an order imposing sanctions. For
the purpose of this subpart, a respondent is any person against
whom a charge has been filed. The sanctions and the procedures
are as follows:
A. A party requesting the imposition of sanctions
shall file a petition with the chief judge which shall include
proof that a copy of the petition has been served on the other
party.
B. A petition for the imposition of sanctions shall
state, with specificity, the acts of the other party which are
alleged to be intentional and frivolous delay; the sanctions
requested; whether an oral hearing is requested; and shall
include sworn affidavits of persons having first‑hand knowledge
of the alleged acts.
C. The party against whom sanctions are sought shall
have ten working days following receipt of the petition to file
an objection to the petition. The objection shall respond to
each alleged act of delay with specificity; shall include sworn
affidavits of persons having first‑hand knowledge of the alleged
acts; and shall state whether an oral hearing is requested.
Objections are timely filed only if received by the office at or
before 4:30 p.m. of the tenth working day. The objection shall
include proof that it was served on the other party.
D. Upon receipt of a petition and objection under
this part, the chief judge shall either determine the matter or
assign it to a judge for determination. If either party has
requested an oral hearing, it shall be conducted no earlier than
ten calendar days following the receipt of a notice of the
hearing.
E. Intentional and frivolous delay occurs when a
party deliberately delays proceedings for immaterial, meritless,
trivial, or unjustifiable reasons. In determining whether
intentional and frivolous delay has occurred, the judge shall
also give consideration to the number of issues and amount of
damages in controversy, any pattern of similar acts by the
party, and effects of the delay.
F. If it is determined that intentional and frivolous
delay has occurred, the judge shall enter an order requiring the
offending party to cease and desist from the act; compelling
cooperation in all phases of the proceedings; or imposing any
other sanctions, other than fines, deemed necessary to compel
expeditious cooperation and completion of the investigation.
G. In the event the investigation results in a
finding of probable cause and issuance of a complaint, the
determination of intentional and frivolous delay and compliance
with any orders issued under item F shall be taken into
consideration in awarding damages and attorney's fees, where
applicable.
Subp. 2. Procedure during proceedings. If during the
pendency of a contested case before the office either the
charging party or the respondent believe that the other is
intentionally and frivolously delaying the proceedings, they may
bring a motion before the judge by following the procedures in
part 1400.6600. If the judge determines, using the criteria in
subpart 1, item E, that intentional and frivolous delay has
occurred, the judge shall issue an order containing any of the
following:
A. that the party shall cease and desist from the
acts;
B. compelling cooperation during further pendency of
the case;
C. dismissing any or all charges or defenses to
charges, whichever may be appropriate;
D. foreclosing the testimony of specified witnesses
or the presentation of evidence on specified issues;
E. that the delay will be taken into consideration in
awarding damages or attorney's fees; or
F. any sanctions available in civil cases in the
district courts of Minnesota.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.7100 RIGHTS AND RESPONSIBILITIES OF PARTIES.
Subpart 1. Generally. All parties shall have the right to
present evidence, rebuttal testimony, and argument with respect
to the issues, and to cross‑examine witnesses.
Subp. 2. Necessary preparation. A party shall have all
evidence to be presented, both oral and written, available on
the date for hearing. Requests for subpoenas, depositions, or
continuances shall be made within a reasonable time after their
need becomes evident to the requesting party. In cases where
the hearing time is expected to exceed one day, the parties
shall be prepared to present their evidence at the date and time
ordered by the judge or as agreed upon at a prehearing
conference. Parties shall have enough copies of exhibits so
that they can provide a copy to each other party at the time the
exhibit is introduced, unless that other party has already
obtained a copy through discovery.
Subp. 3. Responding to orders. If the judge orders that
parties do an act or not do an act, the parties shall comply
with the order. If a party objects to an order, the objection
shall be stated in advance of the order as part of the record.
If the party had no advance knowledge that the order was to be
issued, any objection shall be made as part of the record as
soon as the party becomes aware of the order.
Subp. 4. Copies. The judge shall send copies of all
orders or decisions to all parties simultaneously. Any party
sending a letter, exhibit, brief, memorandum, subpoena request,
or other document to the judge shall simultaneously send a copy
to all other parties.
Subp. 5. Representation by attorney. A party need not be
represented by an attorney. If a party has notified other
parties of that party's representation by an attorney, all
communications shall be directed to that attorney.
Subp. 6. Communication with judge. No party or attorney
may communicate with the judge on the merits of the case unless
all parties have the opportunity to participate.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 116C.66; 363.06
HIST: 9 SR 2276; 15 SR 1595; 26 SR 391
1400.7150 RIGHTS AND RESPONSIBILITIES OF NONPARTIES.
Subpart 1. Offering evidence. With the approval of the
judge, any person may offer testimony or other evidence relevant
to the case. Any nonparty offering testimony or other evidence
may be questioned by parties to the case and by the judge.
Subp. 2. Questioning witnesses. The judge may allow
nonparties to question witnesses if deemed necessary for the
development of a full and complete record.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.7200 WITNESSES.
Any party may be a witness and may present witnesses on the
party's behalf at the hearing. All oral testimony at the
hearing shall be under oath or affirmation. At the request of a
party or upon the judge's own motion, the judge shall exclude
witnesses from the hearing room so that they cannot hear the
testimony of other witnesses.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.7300 RULES OF EVIDENCE.
Subpart 1. Admissible evidence. The judge may admit all
evidence which possesses probative value, including hearsay, if
it is the type of evidence on which reasonable, prudent persons
are accustomed to rely in the conduct of their serious affairs.
The judge shall give effect to the rules of privilege recognized
by law. Evidence which is incompetent, irrelevant, immaterial,
or unduly repetitious shall be excluded.
Subp. 2. Evidence part of record. All evidence to be
considered in the case, including all records and documents in
the possession of the agency or a true and accurate photocopy,
shall be offered and made a part of the record in the case. No
other factual information or evidence shall be considered in the
determination of the case.
Subp. 3. Documents. Documentary evidence in the form of
copies or excerpts may be received or incorporated by reference
in the discretion of the judge or upon agreement of the
parties. Copies of a document shall be received to the same
extent as the original document unless a genuine question is
raised as to the accuracy or authenticity of the copy or, under
the circumstances, it would be unfair to admit the copy in lieu
of the original.
Subp. 4. Official notice of facts. The judge may take
notice of judicially cognizable facts but shall do so on the
record and with the opportunity for any party to contest the
facts so noticed.
Subp. 5. Burden of proof. The party proposing that
certain action be taken must prove the facts at issue by a
preponderance of the evidence, unless the substantive law
provides a different burden or standard. A party asserting an
affirmative defense shall have the burden of proving the
existence of the defense by a preponderance of the evidence. In
employee disciplinary actions, the agency or political
subdivision initiating the disciplinary action shall have the
burden of proof.
Subp. 6. Examination of adverse party. A party may call
an adverse party or a managing agent, or employees or an
officer, director, managing agent, or employee of the state or
any political subdivision thereof or of a public or private
corporation or of a partnership or association or body politic
which is an adverse party, and interrogate that party by leading
questions and contradict and impeach that party on material
matters in all respects as if that party had been called by the
adverse party. The adverse party may be examined by that
party's counsel upon the subject matter of that party's
examination in chief under the rules applicable to direct
examination, and may be cross‑examined, contradicted, and
impeached by any other party adversely affected by the testimony.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.7400 HEARING RECORD.
Subpart 1. Content. The judge shall maintain the official
record in each contested case until the issuance of the judge's
final report, at which time the record, except for the
audiomagnetic recordings of the hearing, shall be sent to the
agency. The audiomagnetic recordings shall be retained by the
office for five years from the date that the record is returned
to the agency. Unless an agency requests a longer retention
period for a specific case, the recordings may be erased or
otherwise destroyed at the end of the five‑year period.
The record in a contested case shall contain all pleadings,
motions, and orders; evidence offered or considered; offers of
proof, objections, and rulings thereon; the judge's findings of
fact, conclusions, and recommendations; all memoranda or data
submitted by any party in connection with the case; and the
transcript of the hearing, if one was prepared.
Subp. 2. Transcript. The verbatim record shall be
transcribed if requested by the agency, a party, or in the
discretion of the chief judge. The agency or party requesting a
transcript is responsible for the cost. The parties may agree
to divide the cost. When the chief administrative law judge
requests a transcript the agency is responsible for the cost.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 116C.66; 363.06
HIST: 9 SR 2276; 15 SR 1595; 26 SR 391
1400.7500 CONTINUANCES.
Requests for a continuance of a hearing shall be granted
upon a showing of good cause. Unless time does not permit, a
request for continuance of the hearing shall be made in writing
to the judge and shall be served upon all parties of record and
the agency if it is not a party. In determining whether good
cause exists, due regard shall be given to the ability of the
party requesting a continuance to effectively proceed without a
continuance. A request for a continuance filed within five
business days of the hearing shall be denied unless the reason
for the request could not have been earlier ascertained.
"Good cause" shall include: death or incapacitating
illness of a party, representative, or attorney of a party; a
court order requiring a continuance; lack of proper notice of
the hearing; a substitution of the representative or attorney of
a party if the substitution is shown to be required; a change in
the parties or pleadings requiring postponement; and agreement
for a continuance by all parties provided that it is shown that
more time is clearly necessary to complete authorized discovery
or other mandatory preparation for the case and the parties and
the judge have agreed to a new hearing date, or, the parties are
engaged in serious settlement negotiations or have agreed to a
settlement of the case which has been or will likely be approved
by the final decision maker.
"Good cause" shall not include: intentional delay;
unavailability of counsel or other representative due to
engagement in another judicial or administrative proceeding
unless all other members of the attorney's or representative's
firm familiar with the case are similarly engaged, or if the
notice of the other proceeding was received subsequent to the
notice of the hearing for which the continuance is sought;
unavailability of a witness if the witness' testimony can be
taken by deposition; and failure of the attorney or
representative to properly utilize the statutory notice period
to prepare for the hearing.
During a hearing, if it appears in the interest of justice
that further testimony should be received and sufficient time
does not remain to conclude the testimony, the judge shall
either order the additional testimony be taken by deposition or
continue the hearing to a future date and oral notice on the
record shall be sufficient.
A continuance shall not be granted when to do so would
prevent the case from being concluded within any statutory
deadline.
STAT AUTH: MS s 14.06; 14.131; 14.51; 116C.66; 363.06 subd 4 cl (8)
HIST: 9 SR 2276; 15 SR 1595
1400.7600 CERTIFICATION OF MOTIONS TO AGENCY.
No motions shall be made directly to or be decided by the
agency subsequent to the assignment of a judge and prior to the
completion and filing of the judge's report unless the motion is
certified to the agency by the judge. No motions will be
certified in cases where the judge's report is binding on the
agency. Uncertified motions shall be made to and decided by the
judge and considered by the agency in its consideration of the
record as a whole subsequent to the filing of the judge's
report. Any party may request that a pending motion or a motion
decided adversely to that party by the judge before or during
the course of the hearing, other than rulings on the
admissibility of evidence or interpretations of parts 1400.5100
to 1400.8400, be certified by the judge to the agency. In
deciding what motions should be certified, the judge shall
consider the following:
A. whether the motion involves a controlling question
of law as to which there is substantial ground for a difference
of opinion; or
B. whether a final determination by the agency on the
motion would materially advance the ultimate termination of the
hearing; or
C. whether or not the delay between the ruling and
the motion to certify would adversely affect the prevailing
party; or
D. whether to wait until after the hearing would
render the matter moot and impossible for the agency to reverse
or for a reversal to have any meaning; or
E. whether it is necessary to promote the development
of the full record and avoid remanding; or
F. whether the issues are solely within the expertise
of the agency.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.7700 ADMINISTRATIVE LAW JUDGE'S CONDUCT.
Subpart 1. Communication with parties. The judge shall
not communicate, directly or indirectly, in connection with any
issue of fact or law with any person or party including the
agency concerning any pending case, except upon notice and
opportunity for all parties to participate. When these rules
authorize communications contrary to this part, the
communications shall be limited to only those matters permitted
by these rules. The judge may respond to questions relating
solely to procedures for the hearing without violating this part.
Subp. 2. Ex parte communication. Where circumstances
require, ex parte communications for scheduling, administrative
purposes, or emergencies that do not deal with substantive
matters or issues on the merits are authorized, provided;
A. the judge reasonably believes that no party will
gain a procedural or tactical advantage as a result of the ex
parte communication; and
B. the judge makes provisions promptly to notify all
other parties of the substance of the ex parte communication and
allows an opportunity to respond.
Subp. 3. Other communication. The administrative law
judge may:
A. obtain the advice of a disinterested expert on the
law applicable to a proceeding before the judge if the judge
gives prior notice to the parties of the person to be consulted
and an opportunity to object. If the advice is obtained, the
judge shall notify the parties of the substance of the advice
and afford the parties a reasonable opportunity to respond;
B. consult with other judges and with office
personnel whose function is to aid the judge in carrying out the
judge's adjudicative responsibilities;
C. if the parties consent, confer separately with the
parties and/or their representatives in an effort to mediate or
settle matters pending before the judge, subject to part
1400.5950, subpart 7; and
D. initiate or consider any ex parte communication
when expressly authorized by law to do so.
Subp. 4. Code of conduct. Administrative law judges are
subject to the provisions of the Code of Judicial Conduct.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.7800 CONDUCT OF HEARING.
In the absence of a specific provision mandating or
permitting a closed hearing, all contested case hearings are
open to the public. Unless the judge determines that the public
interest will be equally served otherwise, the hearing shall be
conducted substantially in the following manner:
A. The judge shall open the hearing by reading the
title of the case, asking the parties or counsel to note their
appearances, and explaining the hearing procedure to
unrepresented parties.
B. After opening the hearing, the judge shall, unless
all parties are represented by counsel or are otherwise familiar
with the procedures, state the procedural rules for the hearing
including the following:
(1) All parties may present evidence and argument
with respect to the issues and cross‑examine witnesses.
(2) All parties have a right to be represented by
an attorney at the hearing.
(3) The rules of evidence in part 1400.7300,
subpart 1.
C. Any stipulations, settlement agreements, or
consent orders entered into by any of the parties prior to the
hearing shall be entered into the record.
D. The party with the burden of proof may make an
opening statement. All other parties may make statements in a
sequence determined by the judge.
E. After any opening statements, the party with the
burden of proof shall begin the presentation of evidence unless
the parties have agreed otherwise or the administrative law
judge determines that requiring another party to proceed first
would be more expeditious and would not jeopardize the rights of
any other party. It shall be followed by the other parties in a
sequence determined by the judge.
F. Cross‑examination of witnesses shall be conducted
in a sequence and in a manner determined by the judge to
expedite the hearing while ensuring a fair hearing. At the
request of a party whose witness is being cross‑examined, the
judge shall make rulings as are necessary to prevent
argumentative, repetitive, or irrelevant questioning and to
expedite the cross‑examination to the extent consistent with the
disclosure of all relevant testimony and information.
G. Any party may be a witness or may present other
persons as witnesses at the hearing. All evidentiary testimony
presented to prove or disprove a fact at issue shall be under
oath or affirmation.
H. When all parties and witnesses have been heard,
opportunity shall be offered to present oral final argument, in
a sequence determined by the judge. Final argument may, in the
discretion of the judge, be in the form of written memoranda or
oral argument, or both. Final argument need not be recorded, in
the discretion of the judge. Written memoranda may, in the
discretion of the judge, be submitted simultaneously or
sequentially and within time periods as the judge may
prescribe. The judge may limit the length of written memoranda.
I. After final argument, the hearing shall be closed
unless a continuance has been ordered under part 1400.7500. If
continued, it shall be either: continued to a certain time and
day, announced at the time of the hearing and made a part of the
record; or continued to a date to be determined later, which
must be upon not less than five days' written notice to the
parties.
J. The record of the contested case proceeding shall
be closed upon receipt of the final written memorandum,
transcript, if any, or late filed exhibits which the parties and
the judge have agreed should be received into the record,
whichever occurs latest.
STAT AUTH: MS s 14.06; 14.131; 14.51; 15.474; 363.06
HIST: 9 SR 2276; 26 SR 391
1400.7900 PARTICIPATION BY AGENCY.
An agency which is a party to a contested case may only
participate in the hearing by the giving of testimony and
through its designated representative or counsel. Where the
agency is not a party and participates in the hearing in a
neutral or quasi‑judicial capacity, the agency head or a member
of the governing body of the agency or designee may engage in
examination of witnesses as the judge deems appropriate.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.8000 DISRUPTION OF HEARING.
Subpart 1. Cameras. Television, newsreel, motion picture,
still, or other cameras, and mechanical recording devices may be
operated in the hearing room during the course of the hearing
after permission is obtained from the judge and then only
pursuant to any conditions the judge may impose to avoid
disruption of the hearing.
Subp. 2. Other conduct. Pursuant to and in accordance
with Minnesota Statutes, section 624.72, no person shall
interfere with the free, proper, and lawful access to or egress
from the hearing room. No person shall interfere with the
conduct of, disrupt, or threaten interference with or disruption
of the hearing. In the event of interference, disruption, or
threat, the judge shall read this subpart to those persons
causing such interference or disruption and thereafter proceed
as deemed appropriate, which may include ordering the disruptive
person to leave or be removed from the hearing.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.8100 ADMINISTRATIVE LAW JUDGE'S REPORT.
Subpart 1. Based on record. No factual information or
evidence which is not a part of the record shall be considered
by the judge or the agency in the determination of a contested
case.
Subp. 2. Administrative notice. The judge and agency may
take administrative notice of general, technical, or scientific
facts within their specialized knowledge in conformance with
Minnesota Statutes, section 14.60.
Subp. 3. Completion and distribution. Following the close
of the record, the judge shall make a report pursuant to
Minnesota Statutes, section 14.50, and, upon completion, a copy
of the report shall be served upon all parties by personal
service, by first class mail, or by depositing it with the
Central Mailing Section, Publications Division, Department of
Administration.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.8200 AGENCY DECISION.
Following receipt of the judge's report, the agency shall
proceed to make its final decision in accordance with Minnesota
Statutes, sections 14.61 and 14.62 and shall serve a copy of its
final order upon the office by first class mail.
STAT AUTH: MS s 14.06; 14.131; 14.51; 363.06 subd 4 cl (8)
HIST: 9 SR 2276
1400.8300 RECONSIDERATION OR REHEARING.
Once a judge has issued a report, unless that report is
binding on the agency, the judge loses jurisdiction to amend the
report except for clerical or mathematical errors. Unless the
report is a final order, binding on the agency, petitions for
reconsideration or rehearing must be filed with the agency.
Where the judge's decision is binding on the agency, a
petition for reconsideration or rehearing shall be filed with
the judge. The petition must be filed within a reasonable time
but not after an appeal is taken nor more than one year after
the decision was issued. Pursuant to Minnesota Statutes,
section 14.64, a petition for reconsideration must be filed
within ten days after the decision in order to toll the time for
appeal to the court of appeals. A notice of and order for
rehearing shall be served on all parties in the same manner
prescribed for the notice of and order for hearing provided that
the judge may permit service of the notice and order for
rehearing less than 30 days prior to rehearing. The rehearing
shall be conducted in the same manner prescribed for a hearing.
In ruling on a motion for reconsideration or rehearing in
cases where the judge's decision is binding on the agency, the
judge shall grant reconsideration or rehearing if it appears
that to deny it would be inconsistent with substantial justice
and any one of the following has occurred:
A. irregularity in the proceedings whereby the moving
party was deprived of a fair hearing;
B. accident or surprise that could not have been
prevented by ordinary prudence;
C. material evidence newly discovered that with
reasonable diligence could not have been found and produced at
hearing;
D. fraud upon the hearing process;
E. mistake, inadvertence, or excusable neglect; or
F. the decision is not justified by the evidence, or
is contrary to law; but unless it be so expressly stated in the
order granting rehearing, it shall not be presumed, on appeal,
to have been made on the ground that the decision was not
justified by the evidence.
STAT AUTH: MS s 14.06; 14.131; 14.51; 116C.66; 363.06 subd 4 cl (8)
HIST: 9 SR 2276; 15 SR 1595
1400.8400 EMERGENCY PROCEDURES NOT PREEMPTED.
Nothing contained in these rules is intended to preempt,
repeal, or be in conflict with any rule or statute which
provides for acts by the agency in an emergency or procedure for
conduct by the agency in such a situation.
STAT AUTH: MS s 14.51
AWARDS OF EXPENSES AND ATTORNEYS FEES
1400.8401 EXPENSES AND ATTORNEY FEES.
Subpart. 1. Repealed, 26 SR 391
Subp. 2. Repealed, 26 SR 391
Subp. 3. Application. A party seeking an award of
expenses and attorney's fees shall submit to the judge an
application that shows:
A. an itemization of the amount of fees and expenses
sought. This shall include full documentation of fees and
expenses, including an affidavit from each attorney, agent, or
expert witness representing or appearing on behalf of the
applicant stating the actual time expended and the rate at which
fees have been computed and describing the specific services
performed.
The affidavit shall itemize in detail the services
performed by the date, number of hours per date, and the
services performed during those hours. In order to establish
the hourly rate, the affidavit shall state the hourly rate which
is billed and paid by the majority of clients for similar
services during the relevant time periods.
The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of
the amounts paid and payable by the applicant or by any other
person or entity for the services provided;
B. a statement that explains with specificity how or
why the position of the state agency was not substantially
justified;
C. if the claim for attorney's fees exceeds $125 per
hour, a statement of facts showing that the excess award
qualifies under Minnesota Statutes, section 15.471, subdivision
5, paragraph (c); and
D. a proof of service showing that the state agency
and all other parties have been served, either personally or by
first class mail, with a copy of the application.
The application must be signed and sworn to by the party
and the attorney or other agent or representative submitting the
application on behalf of the party, showing the addresses and
phone numbers of all persons signing the application.
Subp. 4. Response or objection to application. The state
agency or any other party may respond or object to all or any
part of the application for expenses and fees. A response or
objection must be sworn to and filed with the judge within 14
days following the service of the application and must show:
A. the name, address, and phone number of the party
and the person submitting the response or objection on behalf of
the party;
B. in detail any objections to the award requested
and identify the facts relied on to support the objection. If
the response or objection is based on any alleged facts not
already reflected in the record of the proceeding, the response
or objection shall include either a supporting affidavit or
affidavits or request for further proceedings under subpart 5b;
and
C. a proof of service showing that all other parties
have been served, either personally or by first class mail, with
a copy of the response or objection.
Subp. 5. Repealed, 11 SR 1385
Subp. 5a. Settlement. A prevailing party and the agency
may agree on a proposed settlement of an award before final
action on the application. If a settlement occurs, a
stipulation for settlement shall be filed with the judge
together with a proposed order which shall be prepared for the
judge's signature. Upon receipt of a stipulation for settlement
and proposed order, the judge shall issue an order, serve all
parties and the chief administrative law judge with a copy, and
send the original to the agency for inclusion with the record of
the contested case which gave rise to the application.
Subp. 5b. Extensions of time and further proceedings.
A. The judge may, on motion and for good cause shown,
grant extensions of time, other than for filing an application
for fees and expenses, after final disposition in the contested
case.
B. Ordinarily, the determination of an award will be
made on the basis of the written record of the underlying
contested case and the filings required or permitted by this
part. However, on the judge's own motion or on the motion of
any party to the underlying contested case, further filings or
other action can be required or permitted, such as an informal
conference, oral argument, additional written submissions, or an
evidentiary hearing. Any further action shall be allowed only
when necessary for a full and fair resolution of the issues
arising from the application and shall take place on the first
date available on the judge's calendar which is also agreeable
to all parties. A motion for further filings or other action
shall specifically identify the information sought on the
disputed issues and shall explain why the further filings or
other action are necessary to resolve the issues.
C. In the event that an evidentiary hearing is
required or permitted by the judge, the hearing and any related
filings or other action required or permitted shall be conducted
under parts 1400.8505 to 1400.8612.
Subp. 6. Repealed, 26 SR 391
Subp. 7. Decision of the administrative law judge. Within
30 days following the close of the record in the proceeding for
the award of expenses and attorney's fees, the administrative
law judge shall issue a written order which shall also contain
findings and conclusions on each of the following which are
relevant to the decision:
A. the applicant's status as a prevailing party;
B. the applicant's qualification as a party under
Minnesota Statutes, section 15.471, subdivision 6;
C. whether the agency's position as a party to the
proceeding was substantially justified;
D. whether special circumstances make an award
unjust;
E. whether the applicant during the course of the
proceeding engaged in conduct that unduly and unreasonably
protracted the final resolution of the matter in controversy;
and
F. the amounts, if any, awarded for fees and other
expenses, explaining any difference between the amount requested
and the amount awarded.
The order shall be served on all parties and the state
agency. The original order and the rest of the record of the
proceedings shall be filed with the state agency at the time the
order is served.
STAT AUTH: MS s 3.764; 14.06; 14.51; 15.474; 116C.66
HIST: 11 SR 334; 11 SR 1385; 15 SR 1595; 26 SR 391
1400.8402 Repealed, 15 SR 1595
1400.8500 Repealed, 9 SR 2276
REVENUE RECAPTURE ACT HEARINGS
1400.8505 SCOPE.
Parts 1400.8505 to 1400.8612 govern hearings based on the
Revenue Recapture Act, Minnesota Statutes, sections 114C.23;
115.076; 116.072, subdivision 6; 144.991; and 270A.01 to
270A.12; and for other hearings as directed by statute. In
addition, parts 1400.8505 to 1400.8612 may be used for any other
hearings conducted by the state Office of Administrative
Hearings if all parties to a particular hearing and the
administrative law judge agree to use them.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
1400.8510 DEFINITIONS.
Subpart 1. Agency. "Agency" means the public agency for
whom the hearing is conducted.
Subp. 2. Repealed, 26 SR 391
Subp. 3. Party. "Party" means each person named as a
party by the agency in the notice of hearing or any other
persons granted permission to intervene pursuant to part
1400.8570. "Party" includes the agency except when the agency
participates in the hearing in a neutral or quasi‑judicial
capacity only.
Subp. 3a. Person. "Person" means any individual,
business, nonprofit association or society, or governmental
entity.
Subp. 4. Service; serve. "Service" or "serve" means
personal service or, unless otherwise provided by law, service
by first class United States mail or a licensed express mail
service.
STAT AUTH: MS s 14.51; 15.474; 116C.66
HIST: 9 SR 2276; 15 SR 1595; 26 SR 391
1400.8520 Repealed, 26 SR 391
1400.8530 WAIVER.
Upon request of all parties, the administrative law judge
shall waive or modify any of the procedures in parts 1400.8505
to 1400.8612, provided that the waiver or modification does not
conflict with any provision of Minnesota Statutes, sections
14.48 to 14.69, or statutes conferring jurisdiction on the
Office of Administrative Hearings.
STAT AUTH: MS s 14.51; 15.474
HIST: 9 SR 2276; L 1984 c 640 s 32; 26 SR 391
1400.8540 ADMINISTRATIVE LAW JUDGE ASSIGNMENT.
Subpart 1. Request for assignment. Any agency may order a
Revenue Recapture Act hearing by filing with the docket
coordinator a request for assignment of an administrative law
judge. The request must include a proposed date, time, and
place for the hearing or prehearing conference.
In proposing a hearing location, the requesting agency must
take into account the location of known parties, witnesses, and
other participants so as to maximize convenience and minimize
costs.
If requested by the chief administrative law judge or
designee, the agency shall file a copy of the notice of hearing
proposed to be issued.
Subp. 2. Assignment. Within ten days of the receipt of a
request, the chief administrative law judge or designee shall
assign an administrative law judge to hear the case and set the
time, date, and place for hearing or prehearing conference,
taking into account the agency's request.
STAT AUTH: MS s 14.51; 15.474
HIST: 9 SR 2276; L 1984 c 640 s 32; 17 SR 1279; 26 SR 391
1400.8545 SERVICE AND FILING PROCEDURE.
Subpart 1. Certificate of service. A certificate of
service must be made by the person making the service. A
certificate of service must bear the name of the person
certifying that service has been made, but need not be signed or
notarized.
Subp. 2. Service by mail. Service by mail or licensed
overnight express mail service is effective upon placing the
item to be served in the mail or delivering it to the authorized
agent of the express mail service. Postage must be prepaid.
Mail to a person other than a state agency shall be addressed to
the last known address of the person. Agencies of the state of
Minnesota may also deposit the document with the state of
Minnesota's central mail system for United States mail.
Subp. 3. Personal service. Personal service may be
accomplished by either delivering the document to the person or
by leaving the document at the person's home or place of
business with someone of suitable age and discretion who resides
in the same house or who is located at the same business address
as the person to be served.
Subp. 4. Service upon a confined person. If a person is
confined to a federal or state institution, a copy of the
document must also be served upon the chief executive officer of
the institution.
Subp. 5. Filing by facsimile and other means. Any paper
relating to hearings conducted by an administrative law judge
under these rules may be filed with the office by fax
transmission. Filings are effective on the date that the office
receives the fax transmission if the transmission is begun
before 4:30 p.m. on that date. The filing of a fax has the same
force and effect as the filing of the original document.
Filings made by other means are effective on the date the office
receives the filing.
STAT AUTH: MS s 14.51; 15.474
HIST: 26 SR 391
1400.8550 NOTICE OF HEARING.
The agency shall issue the notice of hearing. The notice
of hearing shall be served at least 20 days before the hearing.
The notice of hearing shall be served upon all parties. The
notice shall be worded in clear, nontechnical language and shall
contain, at a minimum, the following:
A. the time, date, and place for the hearing or
prehearing conference;
B. the name, address, and telephone number of the
administrative law judge;
C. a statement of the allegations or issues to be
determined at the hearing, together with a citation to any
relevant statutes and rules. Each alleged violation of statute
or rule shall be noted;
D. a citation to the statutory authority to hold the
hearing and to take the action proposed;
E. a citation to these rules, and notification of how
copies may be obtained in print or online;
F. a brief description of the procedure to be
followed at the hearing;
G. the name, address, and telephone number of the
agency representative to be contacted to discuss informal
disposition of the dispute, along with an explanation of the
types of informal disposition that the agency might consider;
H. notification that a party need not be represented
by an attorney but may choose to be represented by an attorney
or by any other person;
I. notification that the agency will, upon request,
make an accommodation so that the hearing location is accessible
and will appoint a qualified interpreter if necessary;
J. a statement advising the parties to bring to the
hearing all documents, records, and witnesses they need to
present their position; in addition, a statement that subpoenas
may be available to compel the attendance of witnesses or the
production of documents and a reference to part 1400.8601
relating to subpoenas;
K. a statement advising parties that failure to
appear at the hearing or prehearing conference will result in
the allegations of the notice being taken as true, and a