Rules Task Force

Please consider the following as a first draft of language for the RRTF report that we will issue at the end of our meetings.

We recommend that the House and Senate Governmental Operations Committees study and consider extending the use of interpretive notices to other appropriate situations. Revenue notices (i.e., interpretive notices related to the Department of Revenue) have been used for ten years. They have met with very positive feedback from the public and the agency. Interpretive notices offer the benefits of a response to issues that is more timely than rulemaking and a response that can be relied upon by the public. The protections against agency over-reaching include prior notice to the Legislature and the fact that the notices bind the agency, but not the regulated public.

The following draft language started with Minnesota Statutes, section 270.0604, governing revenue notices, and then adapted it to make it apply generally. This will also need a reference in Minnesota Statutes, section 14.03, subdivision 3, paragraph (b), to exempt it from the regular rulemaking process. Also, we may want to consider a reference like the one in Minnesota Statutes, section 14.06, paragraph (b), that would require the agency to put its interpretations in rule, upon request or under some conditions, and as soon as feasible.

Subdivision 1. Authority. An agency may make, adopt, and publish interpretive notices. An "interpretive notice" is a policy statement that has been published pursuant to subdivision 5 and that provides interpretation, details, or supplementary information concerning the application of law or rules. Interpretive notices are published for the information and guidance of citizens, regulated parties, the agency, and others concerned.

Subd. 2. Effect. Interpretive notices do not have the force and effect of law and have no precedential effect, but may be relied on by regulated parties until revoked or modified. A notice may be expressly revoked or modified by the agency, by the issuance of an interpretive notice, but may not be revoked or modified retroactively to the detriment of the regulated parties. A change in the law or an interpretation of the law occurring after the interpretive notice is issued, whether in the form of a statute, court decision, administrative rule, or interpretive notice, results in revocation or modification of the notice to the extent that the change affects the notice.

Subd. 3. Retroactivity. Interpretive notices are generally interpretive of existing law and therefore are retroactive to the effective date of the applicable law provision unless otherwise stated in the notice.

Subd. 4. Issuance. The issuance of interpretive notices is at the discretion of the agency. Before issuing interpretive notices, the agency shall establish procedures governing the issuance of interpretive notices. At least one week before publication of an interpretive notice in the State Register, the agency shall provide a copy of the notice to the chairs and ranking minority party members of the legislative policy and budget committees with jurisdiction over the subject matter of the proposed notice.

Subd. 5. Publication. The agency shall publish the interpretive notice in the State Register and in any other manner that makes it accessible to the general public. The agency may charge a reasonable fee for publications.

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Updated: (jhr)