We refer to administrative rules that went through MAPA's notice-and-comment procedures as "promulgated rules" and administrative rules that did not as "unpromulgated rules."See, e.g. , In re PERA Salary Determinations Affecting Retired & Active Emps. , 820 N.W.2d 563, 570, 573 (Minn. App. 2012). While section 14.381 uses the term "unadopted" rules, the supreme court uses the term "unpromulgated" rules when discussing rulemaking that has not been through the MAPA's notice-and-comment procedures.

But an interpretive rule that has not properly been promulgated may still be valid if (1) the agency's interpretation corresponds with the plain meaning of the statute or (2) if the statute is ambiguous and the agency's interpretation is a longstanding one. In re PERA Salary Determinations Affecting Retired & Active Empls. of City of Duluth, 820 N.W.2d 563, 570 (Minn. App. 2012). If an unpromulgated interpretive rule falls under one of these exceptions, "the agency is not deemed to have promulgated a new rule," and the agency's interpretation is not invalid, but it does not have the force and effect of law.

Because MAPA broadly defines a rule as "every agency statement of general applicability and future effect," Minn. Stat. § 14.02, subd. 4, this court has recognized that agencies must promulgate even interpretive rules. See In re PERA Salary Determinations , 820 N.W.2d 563, 570 (Minn. App. 2012). Notwithstanding the general requirement for promulgation, if the agency’s interpretation corresponds with the plain meaning of the statute, or if it is a longstanding interpretation of an ambiguous statute, the agency is deemed not to have promulgated a new rule and the interpretation is not invalid, although it does not have the force and effect of law.

This is an "expansive definition." In re PERA, 820 N.W.2d 563, 570 (Minn. App. 2012). Thus, if an agency statement (1) has general applicability; (2) has future effect; and (3) is intended to interpret or create law, policy, or procedure, it is a rule.

. See Minn. Stat. § 299A.465, subd. 1(b)(3) (allowing judicial review of "a final determination made by the Office of Administrative Hearings" regarding an employer's obligation to provide continued health-insurance coverage to a firefighter disabled in the line of duty); In re PERA Salary Determinations Affecting Retired & Active Emps. of City of Duluth, 820 N.W.2d 563, 569 (Minn.App. 2012) (stating that, because PERA is analogous to an administrative agency, we review PERA decisions using our standard of review for agency decisions); see also Minn. Stat. § 14.63 (2022) (providing right to judicial review of final agency decision in contested case).

See In re PERA Salary Determinations Affecting Retired &Active Emps. of City of Duluth, 820 N.W.2d 563, 569 (Minn.App. 2012) (stating that, because PERA is analogous to an administrative agency, we review PERA decisions using our standard of review for agency decisions); see also Minn. Stat. § 14.63 (2020) (providing a right to judicial review of a final agency decision in a contested case). The scope of our review of an agency's decision following a contested-case hearing before an ALJ is provided by statute.

DHS, HCPM, Ch. 29.15. At oral argument, respondent agreed that the program manual, cited by the commissioner, contains interpretive rules that have not been promulgated and do not have the force of law. Our decision, In re PERA Salary Determinations Affecting Retired & Active Employees of the City of Duluth, 820 N.W.2d 563, 570 (Minn. App. 2012), explained that promulgated administrative rules "have the force and effect of law." We stated the general rule that unpromulgated administrative rules are "invalid and cannot be used as the basis for agency action.

See Gerber v. Gerber, 714 N.W.2d 702, 706 (Minn. 2006) (holding that administrative income withholding to collect child support was not an "action"); In re PERA, 820 N.W.2d 563, 570 (Minn. App. 2012) (stating Public Employees Retirement Association board's adjustment of contributions and benefits or recoupment of overpaid benefits is not an "action"). Rather, DEED imposed a mandatory administrative penalty.

Under this "expansive definition," an agency must generally promulgate legislative rules and interpretive rules. In re PERA Salary Determinations Affecting Retired & Active Emps. of the City of Duluth, 820 N.W.2d 563, 570 (Minn. App. 2012). "Legislative rules are those promulgated pursuant to delegated powers to make substantive law."

Minn.Stat. § 14.02, subd. 4. An agency must promulgate legislative rules and interpretive rules. In re PERA, 820 N.W.2d 563, 570 (Minn.App.2012). Legislative rules are those “promulgated pursuant to delegated powers to make substantive law.”