mitchell hamline school of law

Minnesota Administrative Procedure

Chapter 20. Rulemaking with a Hearing

Original Authors: Lee Sheehy and Thomas Barrett

Revised in 2014 by Kerstin Forsythe Hahn

Revised in 2025 by Ian Lewenstein

Download a PDF of Chapter 20

20.1 Introduction

Rulemaking in Minnesota has been described as being “unnecessarily complicated, cumbersome, costly, and time consuming,”[1] while others have identified similar rulemaking procedures as “designed to insure that rulemaking determinations are democratic as well as technocratic.”[2] Regardless, formal procedures governing rulemaking with a hearing before an administrative law judge (ALJ) with the Minnesota Office of Administrative Hearings (OAH) are well established. The public’s opportunity to be heard during rulemaking has a clear basis in statute and OAH rules.

Amendments to the Minnesota Administrative Procedure Act (APA) in 1982 and 1984 streamlined the rulemaking process and authorized rulemaking without a hearing while retaining most other formal public participation procedures. In the mid-2000s, amendments to the APA required agencies to conduct a regulatory analysis for the statement of need and reasonableness (SONAR) and to seek additional methods of notifying affected persons on the proposed rule.[3]

20.1.1. What Distinguishes Adopting a Rule with a Hearing?

Adopting a rule with a hearing is one in which an agency proposes a rule with at least a 30-day comment period before the hearing. The hearing presents an opportunity to test the rule as proposed and is not generally a forum in which facts are gathered to create the rule. At the hearing, the agency may defend and support its rule but should be willing to listen and accept other proposals from those commenting on the rule. A hearing supports the goals of transparency and community participation in the formal rulemaking process and provides a venue for affected parties to provide feedback–both in support and in opposition to the proposed rule– and gives the agency an opportunity to listen to feedback and consider other rule proposals.

20.1.2. How Do Agencies Gather Public Feedback before a Hearing?

Before proposing a rule, an agency that wishes to manage the time and money spent on the rulemaking process will actively seek information and feedback from people affected by the proposed rule. Agencies usually engage with affected parties through task forces or stakeholder groups or by soliciting comments before the hearing from expert reviewers and any affected parties. Through this engagement process, agencies and affected parties have an opportunity to become aware of any controversial issues and try to resolve them before the hearing.

20.1.3. When Else Must an Aency Hold a Hearing?

This chapter addresses adopting rules with a public hearing, which is initiated by publishing a Notice of Intent to Adopt Rules with a Hearing. A hearing can also be initiated by a request of 25 persons in response to a Notice of Intent to Adopt Rules Without a Public Hearing or a dual notice. The procedures for adopting rules using a dual notice are discussed in chapter 19 and are only briefly mentioned in this chapter.

20.2 Initiating Rulemaking with a Hearing

Before a hearing, the public and affected parties have several prehearing opportunities to participate in the rulemaking process. These opportunities include informal comments through the Request for Comments[4] and possible input on the SONAR.[5]

The APA’s structure encourages discussions with agency staff and decision-makers over rulemaking issues before a proposed rule is published in the State Register. For example, throughout the formal rulemaking process, the agency seeks to obtain proposals and comments on the rules from affected parties. An agency may do this formally by establishing a task force or a stakeholder advisory group, consulting with expert reviewers, holding town-hall meetings, or directly contacting affected parties or their representatives. Affected parties may also directly contact the agency to provide feedback.[6]

20.2.1 Rulemaking with a Hearing Initiated by an Agency

An agency must make the strategic decision whether to publish its rule with a notice of hearing, a notice to adopt without a hearing, or a dual notice. This decision is one that is entirely within the agency’s discretion. Practical agency considerations in convening a hearing include:

  1. the scope and number of possible objections and objectors;
  2. the type and scope of possible controversies;
  3. the urgency to adopt rules;
  4. the likelihood of challenge to or subsequent judicial review of the rules or of the application of the rules; and
  5. the costs of rulemaking with a hearing.

20.2.2 Triggering Rulemaking Hearing by Request of 25 Persons

Even if an agency decides to publish a Notice of Intent to Adopt Rules Without a Public Hearing, a hearing is required if 25 or more persons during the 30-day comment period request the agency to hold a hearing.[7]

To save time and expense, the agency may publish a dual notice. A dual notice provides that a hearing will not be held unless 25 or more persons request a hearing.[8] If 25 or more people request a hearing, the hearing time, date, and place are already published in the dual notice and the agency does not have to publish an additional notice of hearing.[9] For a hearing request to be valid, the written request must include:

  1. the name and address of the person requesting a hearing; and
  2. the portion or portions of the rule that the person objects to or a statement that the person objects to the rule in its entirety.[10]

20.3 Procedures for a Rulemaking Hearing before an Administrative Law Judge

The procedural requirements for rulemaking with a hearing before an ALJ are set forth under statute and rule.[11] These requirements have not generated much case law, and preenforcement judicial review of agency rules is limited.[12] Furthermore, an absence of codification or annotation of agency or OAH precedent makes it difficult to comparatively review rulemaking proceedings.

20.3.1 Appointing Administrative Law Judge and Filing Jurisdictional Documents

Before publishing the rule in the State Register, an agency must submit its notice of hearing or dual notice and other documents to OAH to schedule a hearing date.[13] The agency must file with the chief ALJ required documents, including:

  1. the proposed rules with certification of approval by the revisor of statutes;
  2. a draft or final copy of the SONAR; and
  3. a proposed notice of hearing or dual notice containing the time, date, and place of the hearing.[14]

The ALJ then reviews the notice of hearing or dual notice and may suggest changes or additions. The ALJ must also advise the agency on the hearing’s time and other hearing details.[15]

20.3.2 Publication and Other Notice

The APA and OAH rules govern the notice of hearing.[16] Notice must be published in the State Register. Notice must be sent to persons who have registered to be on the agency’s list to receive the notices.[17] Agencies must make reasonable efforts to notify persons or classes of persons who may be significantly affected by the rule by giving notice of its intention in newsletters, newspapers, or other publications, or through other means of communication.[18]

The notice of hearing contains either the text of the proposed rule or a description of the nature and effect of the proposed rule and an announcement of the availability of a free rule copy from the agency[19] (all agencies publish their proposed rules on their websites). Importantly, the notice invites public comment on the proposed rule for at least a 30-day comment period. OAH has adopted rules for the form and content of the notice of hearing.[20]

20.4 Nature of the Hearing

In addition to the mandated procedures, the rulemaking hearing is adapted by the ALJ–after consultation with the agency and interested parties–to the problems arising out of the rules proposed, the subject matter sought to be regulated, the requirements of law, and the interests of nonagency participants. In most instances, the hearing involves accepting the agency’s documents as exhibits, hearing statements from agency staff and attendees in the form of oral or written testimony, and answering questions. On a few occasions, a proceeding has evolved into something like a trial at which witnesses are examined. The participants at the hearing are the agency, the ALJ, and interested persons.

While hearings used to be held in person, almost all hearings are now conducted virtually through online platforms such as Microsoft Teams or Webex. The Covid-19 pandemic necessitated this switch, and OAH and agencies witnessed the increased access that virtual hearings provide (internet availability notwithstanding) along with more accountability and transparency. OAH has not yet updated its rules to account for the nature of virtual hearings, but the state’s Interagency Rules Committee has updated its rulemaking manual to address how these virtual hearings have been conducted.

Some best practices include:

  1. posting hearing procedures on the agency’s website;
  2. requiring attendees to register for the hearing so agencies can gather email addresses and ask whether the attendee wants notices sent to them after the hearing or if they would like to speak at the hearing or need accommodations such as a translator;
  3. posting exhibits that the agency will introduce into the hearing record on the agency’s website before the hearing; and
  4. after the hearing, posting exhibits that interested parties submitted into the hearing record.

As stated, there are no OAH rules governing virtual hearings, and there is no case law on APA violations or whether a person was aggrieved because of unadopted procedures relating to virtual hearings.

20.5 Participants

20.5.1 The Agency

At the hearing, staff members active in drafting the rule and the SONAR usually speak for the agency. In more-complex rulemakings, the agency may offer expert witnesses to support and expand on the agency’s conclusions. The agency may be represented by agency leadership, program staff with expertise in the rulemaking area, agency rulemaking staff, or a representative from the attorney general’s office. Agency representatives at the hearing may advise staff on developing the record and may ask questions on behalf of the agency of other participants commenting on the proposed rule.

20.5.2 The Administrative Law Judge

According to statute, the chief ALJ assigns the ALJ who will conduct the hearing.[21] ALJs are not subject to any automatic disqualification, as is the case with judicial branch judges. Rather, under OAH rules, ALJs may be disqualified only for cause.[22]

The ALJ is an active participant in many rulemaking proceedings. Their first obligation is to manage the hearing and to create an accurate record. The ALJ must also ensure that all persons involved in the rule hearing are treated fairly and impartially.[23] More substantively, however, the ALJ independently examines the entire record and the language of the proposed rules to determine if the agency has shown, among other things, the rules to be needed and reasonable. In effect, the agency must meet a limited burden of proof about its rules that is independent of the strength of any opposition presented.[24]

The agency is not required to demonstrate on judicial review that its rules are supported by “substantial evidence.”[25] Rather, the rules must meet the more general legislative standard that they not be arbitrary and capricious.[26] In making this analysis, a reviewing court will make a “searching and careful” inquiry of the record to ensure that the agency action has a rational basis.[27] It is the agency’s responsibility to explain the evidence on which it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.[28]

The ALJ’s final obligation is preparing a report with findings and conclusions on each section of the rules proposed by the agency. The report examines compliance with procedural requirements, compliance with substantive requirements of law, and whether the agency has shown the need for and reasonableness of the proposed rules. The report may examine the rationale offered by the agency. The report may also criticize the rule, offer alternative language, or recommend changes .[29] Finally, the report will determine whether the changes (formally called “modifications”) offered by the agency after the published notice, or changes proposed by the ALJ, are “substantially different” than the rules as proposed.[30]

In addition to testing the rule for need and reasonableness, the ALJ must examine the relation of the rule to the statutory grant on which the rule is based to determine if the agency has statutory authority for the rule. The agency and the courts may properly rely on the legislative history of the statute in rationalizing the need and reasonableness of the rule.[31]

20.5.3 Interested Persons

In addition to the agency and the ALJ, “interested persons”[32] may participate in the hearing process. The notice of hearing includes the reminder that persons seeking to affect the rule are subject to lobbying reporting requirements of the Campaign Finance and Public Disclosure Board.[33]

Interested persons who participate may include businesses or individuals affected by the rule, lobbyists, attorneys, or expert witnesses. The participation of interested persons may range from the submission of written comments to a complete presentation of witnesses and argument, legal and factual, on the proposed rule.

20.6 Hearing Procedure and Questioning Witnesses and Participants

At the start of the hearing, the ALJ will explain the hearing process.[34] The hearing is usually recorded, although in some cases a court reporter may be employed. If the hearing is recorded, a transcript can be prepared if requested by the agency, attorney general, chief ALJ, or any other interested person.[35]

The agency submission into the hearing record includes exhibits required under OAH rules, including documents that demonstrate the agency’s compliance with the APA’s procedural rulemaking requirements.[36]

Next, the agency proceeds to demonstrate its substantive case. The APA requires the agency to make an affirmative presentation of facts establishing the need for and reasonableness of the proposed rule at the hearing and to fulfill any relevant substantive or procedural requirements of law.[37] The agency may rely on facts presented by others to support its proposed rule.[38]

In general, the agency’s case is contained in the SONAR. In effect, the SONAR is the text of the evidence and argument that the agency submits for review by the public and examination by the ALJ. In many instances, the agency’s only submission at the hearing will be the SONAR, and OAH rules provide that an agency may rely on its SONAR as its affirmative presentation at the hearing.[39] The agency may, however, present additional oral evidence.[40] If the agency presents testimony or evidence that was not summarized in the SONAR, a continuance of the hearing is possible.[41]

Members of the public and interested persons who appear need not submit in advance any documents outlining the objections, criticism, or support they intend to offer on the rule. At the hearing, their testimony or written statement may be submitted.[42] There is no prehearing registration requirement for persons intending to speak at the hearing. Persons attending may indicate on a registration sheet[43] at the hearing if they wish to speak or to be notified of either the date that the ALJ’s report is issued or the date that the rules are filed with the secretary of state.[44]

During the hearing, the ALJ must allow questioning of agency representatives, of witnesses, and of interested persons making oral statements.[45] At most hearings, the questioning process is informal. If trial-type facts must be resolved to determine the rule’s reasonableness, the hearing may increasingly resemble a trial-type proceeding in which the witnesses are cross-examined by interested persons or their attorneys. The form of the examination of witnesses is within the ALJ’s discretion, but the available trial-type legal models tend to govern as the hearings become more adversarial.[46]

Questioning on the purpose or intended operation of a rule is always allowed.[47] Questioning will be allowed for other purposes, such as to test the validity of data supporting the rule, if it is material to evaluating the proposed rule.[48]

20.7 The Rulemaking Record and Ex Parte Communications

The goal of both the agency and the ALJ is to build a careful record that will explain the basis of the rule.[49] The agency should attempt to address all material issues raised by interested parties and by the ALJ, either by oral answers to questions or in written submissions after the hearing closes. The record that the ALJ prepares for submission to the agency includes:

  1. all required documents submitted by the agency;
  2. all written materials submitted by participants;
  3. a recording of the hearing, or a transcript if one has been requested and prepared;[50]
  4. all exhibits or other items of physical evidence; and
  5. the ALJ report.

Certain ex parte contact with agency members by interested persons is allowed by the APA in the rulemaking process.[51] As such, the process of rulemaking is more analogous to the legislative process than to a judicial determination.[52] One could assert that First Amendment issues may be involved in petitioning the government.

This informality is difficult to reconcile with the mandate of a formal and “exclusive” record.[53] In a formal hearing, the agency is obligated to create a record showing that the proposed rule is needed, reasonable, and consistent with law. The agency also has the responsibility to listen to feedback and consider proposed changes from affected and interested parties. .

It also appears that the ALJ is not bound by any express ex parte limitations. Although the OAH has an explicit ex parte contact prohibition for contested cases,[54] no such rule exists for formal rulemaking. But this omission must be understood within the context of the obligation of the ALJ to provide a fair and impartial hearing and the existence of an “exclusive” record for purposes of judicial review.

20.8 Posthearing Procedures

20.8.1 Posthearing Comments

At the close of the hearing, the record remains open to allow the agency and interested persons to submit additional comments. The posthearing comment period is for at least five working days, or, at the ALJ’s discretion, for up to 20 calendar days. The length of the posthearing comment period is announced at the hearing.

After the posthearing comment period, both the agency and interested persons have five working days to comment on any proposed modifications or new information submitted.[55] The 20-day period is called the “posthearing comment period,” and the five day period is called the “rebuttal period.”[56] People may not submit new evidence during the five-day rebuttal period.[57]

20.8.2 Administrative Law Judge’s Report and Chief Administrative Law Judge’s Review

The ALJ must prepare a report within 30 days of the close of the record unless the chief ALJ grants an extension upon written request of the ALJ.[58] If the report finds a defect—that is, it concludes that the agency has proposed changes to the rule that are substantial, that the rule as proposed is not needed or reasonable, or that the agency lacks statutory authority or has proposed a rule with a legal defect—then the report is submitted to the chief ALJ, who then prepares their own report.[59] The ALJ’s report is submitted directly to the agency if the ALJ:

  1. finds no defects and recommends that the agency adopt the rule as proposed or modified;
  2. finds that the rule is needed, reasonable, and legal; and
  3. finds no changes proposed by the agency to be substantial.

The agency need not return the rule to the chief ALJ unless the agency makes changes to the rule other than those recommended by the ALJ. If changes are made, the record is returned to the chief ALJ for a review on the issue of substantial difference only.[60] The “substantial difference” requirement is discussed further in chapter 22.

As part of the legal review, the ALJ must disapprove a rule upon finding a defect under OAH rules.[61] A rule must be disapproved if it:

  1. was not adopted in compliance with the procedural requirements of the APA or other law;
  2. is not rationally related to the agency’s objective or the record does not demonstrate the need for or reasonableness of the rule;
  3. is substantially different than the proposed rule, and the agency did not follow the applicable procedures of Minnesota Rules, part 1400.2110;
  4. exceeds, conflicts with, does not comply with, or grants the agency discretion beyond what is allowed by its enabling statute or other applicable law;
  5. is unconstitutional or illegal;
  6. improperly delegates the agency’s powers to another agency, person, or group;
  7. is not a “rule” as defined in the APA[62] or by its own terms cannot have the force and effect of law; or
  8. is subject to applicable requirements on withdrawal of hearing requests and the withdrawal is inconsistent with Minnesota Statutes, section 14.001, clauses (2), (4), and (5).

If the chief judge agrees with the adverse conclusion of the ALJ, the chief judge advises both the agency and the revisor of statutes of changes that will correct the defect.[63] The agency cannot adopt the rule unless it alters the rule consistent with the chief ALJ findings, or, if applicable, shows that the agency has satisfied the rule requirements for adopting a substantially different rule.[64]

The agency may also request that the chief ALJ reconsider the disapproval[65] or may withdraw a rule part. An agency may withdraw a rule part unless the withdrawal makes the remainder of the rule substantially different.[66]

If the chief ALJ determines that the rule is not needed or reasonable, however, the agency—if it still wishes to adopt the rule—may submit the proposed rule to the Legislative Coordinating Commission and to the house of representatives and senate policy committees with primary jurisdiction over state governmental operations. The agency must consider the commission’s and committees’ advice, and the agency may proceed to adopt the rule after 60 days even if the commission and committees have not yet provided advice and comment.[67] There are no cases of an agency adopting a rule if disapproved on need and reasonableness.

If an agency makes a procedural error in the rulemaking process, the rule will not be disapproved if the ALJ determines that the error or corrective action to cure the error or defect did not deprive any person or entity of an opportunity to participate meaningfully in the rulemaking process.[68] This procedural error is known as “harmless error.” Therefore, if the agency makes what has been determined to be a harmless error in the rulemaking proceeding, the agency will not have to restart the rulemaking process and the ALJ will make a finding to this effect and proceed with completing the rulemaking process.

20.8.3 Agency Findings and Adopting the Rule

Once the ALJ report is submitted or the objections of the chief ALJ have been met, the agency may then determine whether to adopt the rule. As previously stated, if the ALJ report didn’t contain defects and the agency makes changes only as recommended by the ALJ, the agency may proceed to adopt the rule without resubmitting it to the chief ALJ. If the ALJ report contained defects or the agency makes changes other than those recommended by the chief ALJ, the agency must resubmit the rule to the chief ALJ.[69]

Upon resubmission, the agency must file with the chief ALJ the proposed rule, a proposed order adopting the rule, the rule containing the agency’s changes, and the hearing record if requested by the chief ALJ.[70] The proposed order discusses changes in the rule, discusses the rationale supporting the changes in the rule, and makes conclusions about the legal validity of the rule.[71] Failure to explain agency findings that deviate from the ALJ report is grounds for voiding a rule.[72]

Although the APA requires findings of fact and conclusions in contested cases,[73] it does not require them in rulemaking proceedings. In the order adopting rules, the agency will detail the reasons for changes between the rule as proposed and the rule to be adopted, including discussion of relevant testimony, data, and evidence. If the agency takes exception to the ALJ findings, the agency should set forth the basis of the exceptions with citations to the record showing its rationale. Any subsequent changes in the text of the rule between the proposed rules and the rules as adopted must be approved to form by the revisor.[74] The agency’s findings must be signed by a person authorized to make the order.[75]

The agency must submit its Notice of Adoption to the State Register within 180 days of the date of the ALJ’s report.[76] If not, the rule is withdrawn, although—aside from a petition for declaratory judgment and appellate review—there is no mechanism to enforce untimely filed rules.

20.8.4 Postadoption Procedures to Make a Rule Effective

Once the agency adopts the rule, several steps remain before a rule is effective. A copy of the rule as adopted must be filed with the Minnesota Office of the Secretary of State,[77] and a Notice of Adoption must be published in the State Register.[78] Generally, a rule is effective five working days after publication unless a later date is specified.[79]

20.8.5 Custody of the Rulemaking Record

The agency is the repository of the official rulemaking record for every rule adopted.[80] The record must be available for public inspection, and it will form the basis of the agency defense to any legal challenge to the rule’s validity. This record must be retained according to the agency’s record retention schedule or policy. Generally, rulemaking records are retained permanently or as long as the rule is effective. An agency may determine how long to retain official rulemaking records.[81]

Footnotes

  1. Carl A. Auerbach, Administrative Rulemaking in Minnesota, 63 Minn. L. Rev. 151, 152 (1979). ↑
  2. Arthur Earl Bonfield, An Introduction to the 1981 Model State Administrative Procedure Act, Part I: General Provisions, Access to Agency Law and Policy, Rulemaking and Review of Rules, 34 Ad. L. Rev. 1, 7 (1982). ↑
  3. Minn. Stat. § 14.131. ↑
  4. Id. § 14.101; see § 17.2.4. ↑
  5. Minn. Stat. §§ 14.131, .23; Minn. R. 1400.2070; see § 17.3. ↑
  6. See § 17.2.3. ↑
  7. Minn. Stat. § 14.25, subd. 1. ↑
  8. Id. § 14.22, subd. 2. ↑
  9. See § 19.3. ↑
  10. Minn. Stat. § 14.25, subd. 1. ↑
  11. Id. §§ 14.131-.20; Minn. R. 1400.2000-.2240. ↑
  12. See chapter 23. ↑
  13. See Minn. Stat. § 14.14, subd. 2a ; Minn. R. 1400.2020, subp. 1, .2080, subp. 5. ↑
  14. Minn. R. 1400.2080, subps. 4, 5. ↑
  15. Minn. Stat. § 14.50 ; Minn. R. 1400.2080, subp. 5. ↑
  16. Minn. Stat. § 14.14, subd. 1a; Minn. R. 1400.2080. ↑
  17. Minn. Stat. §§ 14.14, subd. 1a, .22 (each agency maintains its own rulemaking list and includes a list of names and addresses of all persons registered with the agency to receive rulemaking notices). ↑
  18. Minn. Stat. § 14.14, subd. 1a ; see also id. § 14.116 (providing for notice to legislature); Minn. R. 1400.2060 (allowing for an agency to receive prior approval of its plan regarding “additional notice” from OAH). ↑
  19. Minn. Stat. § 14.14, subd. 1a. ↑
  20. Minn. R. 1400.2530. This is a suggested form, and most agencies rely on updated forms from the Interagency Rules Committee. ↑
  21. Minn. Stat. § 14.14, subd. 2a. ↑
  22. Minn. R. 1400.2020, subps. 2, 3. ↑
  23. Minn. Stat. §§ 14.14, subd. 2a, .50. ↑
  24. See Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d 238, 244 (Minn. 1984). ↑
  25. Id. at 244. ↑
  26. Id. ↑
  27. Id. ↑
  28. Id. ↑
  29. See Minn. Stat. § 14.15 ; Minn. R. 1400.2240 . ↑
  30. Minn. Stat. § 14.15, subd. 3. ↑
  31. See Pettersen, 347 N.W.2d at 242. ↑
  32. Minn. Stat. § 14.14, subd. 2a. ↑
  33. Minn. R. 1400.2080, subp. 4(H). ↑
  34. Id. 1400.2210, subp. 2. ↑
  35. Id. 1400.2210, subp. 10; see also Minn. Stat. § 14.14, subd. 3. ↑
  36. Minn. R. 1400.2220. ↑
  37. See Minn. Stat. § 14.14, subd. 2. ↑
  38. Id. ↑
  39. Minn. R. 1400.2200, subp. 3. ↑
  40. Minn. Stat. § 14.14, subd. 2a; Minn. R. 1400.2210, subp. 3. ↑
  41. Minn. R. 1400.2210, subp. 3. ↑
  42. Minn. Stat. § 14.14, subd. 2a; Minn. R. 1400.2210, subp. 5. ↑
  43. It’s unclear whether OAH uses a standard registration procedure for virtual hearings. ↑
  44. Minn. R. 1400.2210, subp. 1. ↑
  45. Minn. Stat. § 14.14, subd. 2a ; Minn. R. 1400.2210, subp. 4. ↑
  46. See Auerbach, supra note 1, at 184; see also Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 520-24 (1978) (“cautioning reviewing courts against engrafting their own notions of proper procedures” and stating that “the formulation of procedures was basically to be left within the discretion of the agencies”); City of Morton v. Minn. Pollution Control Agency, 437 N.W.2d 741, 748 (Minn. Ct. App. 1989) (concluding that availability of an exhibit at a rulemaking hearing makes it a part of the record without further evidence that it was affirmatively presented by the agency); In re Hibbing Taconite Co., 431 N.W.2d 885, 894-95 (Minn. Ct. App. 1988) (stating that development of a record on policymaking must be done through rulemaking and applied in a contested case). ↑
  47. Minn. Stat. § 14.14, subd. 2a. ↑
  48. Id. ↑
  49. See Mammenga v. Dep’t of Human Servs., 442 N.W.2d 786, 791 (Minn. 1989) (stating that the rulemaking record varies with the nature of the rule; some cases require a substantial evidentiary record while others may rely on “common knowledge” or “common sense”); Pettersen, 347 N.W.2d at 244 (stating that “in determining if the agency acted arbitrarily and capriciously the court must make a ‘searching and careful’ inquiry of the record to ensure that the agency action has a rational basis”). ↑
  50. An agency may be billed for a hearing transcript. You should determine whether your agency has encumbered funds for this cost. ↑
  51. See Minn. Stat. § 14.101 (advice on possible rules); see also id. § 14.15, subd. 2 (requiring an agency to wait five working days after receiving the ALJ report before taking any action). ↑
  52. See Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (discussing ex parte contact between the EPA and coal-industry advocates, including a senator). ↑
  53. Minn. Stat. § 14.365. ↑
  54. Minn. R. 1400.7700. ↑
  55. Minn. R. 1400.2230, subp. 2 ; see also Minn. Stat. § 14.15, subd. 1. ↑
  56. Minn. Stat. § 14.15, subd. 1. ↑
  57. Id. ↑
  58. Id., subd. 2. ↑
  59. Id., subds. 3, 4; Minn. R. 1400.2240. ↑
  60. Minn. Stat. § 14.16, subd. 1 ; Minn. R. 1400.2240. ↑
  61. Minn. R. 1400.2100. ↑
  62. Minn. Stat. § 14.02, subd. 4. ↑
  63. Id. § 14.15, subd. 3 ; Minn. R. 1400.2240, subp. 4. ↑
  64. Minn. Stat. §§ 14.15, subd. 3, .16, subd. 2. ↑
  65. Minn. R. 1400.2240, subp. 4. ↑
  66. Id., subp. 8. ↑
  67. Minn. Stat. § 14.15, subd. 4. ↑
  68. Id. subd. 5. ↑
  69. Id. § 14.16, subds. 1, 2; Minn. R. 1400.2240, subps. 4, 5. ↑
  70. Minn. R. 1400.2240, subp. 5. ↑
  71. Id. 1400.2090; see also id. 1400.2560 (form for recommended order adopting rules). ↑
  72. Pettersen, 347 N.W.2d at 245-46; see also Yellowbird, Inc. v. MSP Express, Inc., 377 N.W.2d 490, 493 (Minn. Ct. App. 1985) (concluding, in a contested case, that “[i]n the absence of findings, [the court is] unable to determine whether substantial evidence supports the Board’s findings, conclusions or decision”). ↑
  73. See § 14.3. ↑
  74. Minn. Stat. §§ 14.07, subd. 2, .08(b), .20. ↑
  75. Minn. R. 1400.2090(G). ↑
  76. Minn. Stat. § 14.19. ↑
  77. Id. § 14.16, subd. 3. In Minnesota, OAH files the rules with the secretary of state, which then notifies the revisor of statutes to draft the Notice of Adoption for agency publication to complete the formal rulemaking process. ↑
  78. Id. § 14.18, subd. 1. ↑
  79. Id. ↑
  80. Id. § 14.365. ↑
  81. Id. § 138.17. ↑