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This document is made available electronically by the Minnesota Legislative Reference Library as part of anongoing digital archiving project. ay, October 27, 2016Legislative Reference Library645 State Office Building100 Constitution AvenueSt. Paul, Minnesota 55155Re: Proposed Amendment to Rules Governing Mobile Salons and Cosmetology, Minnesota Rules,Chapter 2105; Revisor’s ID Number 0-4343Dear Librarian:The Minnesota Board of Cosmetologist Examiners intends to adopt rules governing GoverningMobile Salons and Cosmetology, Minnesota Rules, Chapter 2105; Revisor’s ID Number 0-4343.We plan to publish a Notice of Intent to Adopt Rules with or without a Hearing in the October 31,2106 State Register.The Board has prepared a Statement of Need and Reasonableness. As required by MinnesotaStatutes, sections 14.131 and 14.23, the Board is sending the Library an electronic copy of theStatement of Need and Reasonableness at the same time we are mailing our Dual Notice of Intentto Adopt Rules.If you have questions, please contact me at (651) 201-2751.Yours very truly,Rebecca GaspardRules Analyst
Enclosure: Statement of Need and Reasonableness
Minnesota Board of Cosmetologist ExaminersSTATEMENT OF NEED AND REASONABLENESSIn the Matter of Proposed Revisions of Minnesota Rule Chapters 2015 Governing Mobile SalonsRevisor’s # 4343
ALTERNATIVE FORMATUpon request, this Statement of Need and Reasonableness (SONAR) can be made available in analternative format, such as large print, Braille, or audio. To make a request, contactRebecca Gaspard at: rebecca.gaspard@state.mn.us or1000 University Avenue W, Suite 100,St. Paul, Minnesota, 55104651-201-2751 (voice), or fax 612-617-2801.Persons with hearing loss or speech disabilities may call the Board through their preferredTelecommunications Relay Service.Board of Cosmetologist ExaminersMobile SalonsSONAR RD 4343Page 2 of 15
TABLE OF CONTENTSAcronyms or abbreviations .41.2.3.4.5.6.7.8.9.10.11.12.13.Introduction 5Statutory Authority .5General Statement of Need . . .5Public Participation and Stakeholder Involvement . .6Regulatory Analysis . .6Performance Based Rules .8Additional Notice Plan for Notice of Intent to Adopt with or without a Hearing .9Consultation with MMB on Local Government Impact . 9Determination about Rules Requiring Local Implementation .10Cost of Complying for Small Business or City . . .10List of Witnesses .10Rule-by-Rule Analysis 10Conclusion . .14Board of Cosmetologist ExaminersMobile SalonsSONAR RD 4343Page 3 of 15
Acronyms and AbbreviationsAdministrative Law JudgeAmerican National Standards InstituteBoard of Cosmetologist ExaminersBeauty Continued Education AssociationMinnesota Rules chapter 2105Minnesota Rules chapter 2110Code of Federal RegulationsMinnesota Department of Labor & IndustryDesignated Licensed Salon ManagerOffice of Administrative HearingsOccupational Health and Safety AdministrationMinnesota Management and BudgetMinnesota Department of TransportationNational Sanitation Foundation InternationalSection (Minn. Stat. Section)Salon and Spa Professional AssociationStatement of Need and ReasonablenessBoard of Cosmetologist ExaminersMobile SalonsALJANSIBoard or BCEBCEAChapter 2105Chapter 2110CFRDOLIDLSMOAHOSHAMMBMNDOTNSF§SSPASONARSONAR RD 4343Page 4 of 15
1. INTRODUCTIONThe Board of Cosmetologist Examiners proposes to adopt new rules and amend its current rules to providefor the licensing and operations of mobile salons, as directed by Minnesota Session Laws 2015, Chapter 77,art 2, s 81 (a) which directs the Board to “ adopt rules governing the licensure, operation, and inspection ofmobile salons, including facility requirements; safety and infection control requirements; a process for a salonlicensee to notify the board of the mobile salon’s location and times of operation; requirements for supplyingand disposing of water and waste products; and the scope of personal services to be provided in mobilesalons. The rules must prohibit mobile salons from violating reasonable municipal restrictions on time andplace of operation of a mobile salon within its jurisdiction, and shall establish penalties, up to and includingrevocation of a license, for repeated violations of municipal laws.”BackgroundThe Minnesota Board of Cosmetologist Examiners (BCE) is the regulatory agency charged with the licensingand regulating of cosmetologists, manicurists, estheticians, advanced practice estheticians, salon managers,salons, instructors, school managers, and cosmetology schools in the Minnesota. The Board’s mission is toprotect the health and safety of the public in the practice of cosmetology (Minnesota Statutes, section155A.21.)Historically, regulatory responsibility for cosmetology began in Minnesota in 1927 with the establishment ofthe Board of Hairdressing and Beauty Culture Examiners. In 1971, the board name was changed to Board ofCosmetology. In 1981, regulatory authority was transferred to the Commissioner of Commerce when theboard was eliminated. In 2003, the licensing and regulatory responsibility was transferred to the BarbersExaminers Board, renamed the Board of Barber and Cosmetologist Examiners. In 2009, the legislaturecreated the current Board of Cosmetologist Examiners, which now consists of 7 members appointed by theGovernor and a small staff.1. STATUTORY AUTHORITYIn addition to Minnesota Session Laws 2015, Chapter 77, art 2, s 81 (a), the Board’s additionalstatutory authority to adopt these rules is stated in Minnesota Statutes, section 155A as follows:A. §155A.26, which states:The Board may develop and adopt rules according to chapter 14 that the board considers necessaryto carry out sections 155A.21 to 155A.36B. §155A.29 Subd. 2., which states, regarding salons:The conditions and process by which a salon is licensed shall be established by the board by rule.C. §155A.29 Subd. 3., which states:Minimum infection control standards for the operation of a salon shall be established by rule.Under the session law and the statute, the Board has the necessary statutory authority to adoptthe proposed rules.2. GENERAL STATEMENT OF NEEDThe Administrative Procedure Act, Minn. Stat. Ch. 14, requires the Board to establish the need forthe proposed rules by an affirmative presentation of the facts.Board of Cosmetologist ExaminersMobile SalonsSONAR RD 4343Page 5 of 15
The Minnesota Legislature directed the Board to develop rules for mobile salons. Minnesota SessionLaws 2015, Chapter 77, Article 2, Section 81(a) states: “The Board of Cosmetologist Examiners shalladopt rules governing the licensure, operation, and inspection of mobile salons, including facilityrequirements; safety and infection control requirements; a process for a salon licensee to notify theboard of the mobile salon's location and times of operation; requirements for supplying anddisposing of water and waste products; and the scope of personal services to be provided in mobilesalons. The rules must prohibit mobile salons from violating reasonable municipal restrictions ontime and place of operation of a mobile salon within its jurisdiction, and shall establish penalties, upto and including revocation of a license, for repeated violations of municipal laws.”3. PUBLIC PARTICIPATION AND STAKEHOLDER INVOLVEMENTThe Board published a Request for Comments (RFC) on Mobile Salons in the State Register on July20, 2015 (40 SR 1033). As part of the Board’s Additional Notice Plan, approved by the HonorableJames LaFave , the Board posted the RFC on the Board’s website, posted information about it onthe Board’s Facebook page, and emailed the RFC to licensees with an email address. The RFC wasalso sent to SSPA, BCEA, the League of Minnesota Cities, the Association of Minnesota Counties,the Minnesota Association of Townships, and the Minnesota Pollution Control Agency as noted inthe approved additional notice plan.After reviewing the 14 comments that were received, a working draft was approved by the Board’sRule Committee and posted on the Board’s website on February 8, 2016, and information about theavailability of the working draft was posted on the Board’s Facebook page on February 12, 2016. Acopy of the working draft was emailed to all parties who submitted comments in response to theRFC, and additional input was sought from the Minnesota Fire Marshal’s office, DOLI, DPS, andMNDOT. The Board met with representatives of SSPA in March, 2016 to discuss the association’scomments on the working draft.Mobile salon proposed rules were discussed at properly noticed meetings of the Board’s RuleCommittee in September, 2015, February, 2016, April, 2016, and October 2016, and progress reportson the rulemaking discussed at properly noticed meetings of the Board in 2015 and 2016.At the October 17, 2016 Board of Cosmetology board meeting, the Board passed aresolution approving the rules as drafted, and authorizing the actions necessary to adopt the rules,including publishing a Notice of Intent to Adopt Rules without a Hearing.4.REGULATORY ANALYSISMinnesota Statutes, section 14.131, sets out eight factors for a regulatory analysis that must be includedin the SONAR. Paragraphs (1) through (8) below quote these factors and then give the Board’sresponse.“(1) a description of the classes of persons who probably will be affected by the proposedrule, including classes that will bear the costs of the proposed rule and classes that willbenefit from the proposed rule”Board of Cosmetologist ExaminersMobile SalonsSONAR RD 4343Page 6 of 15
Classes of affected persons: The proposed rules will affect applicants for mobile salon licenses,licensees working in mobile salons, owners of mobile salons, the clients who receive cosmetologyservices in a mobile salon, and municipalities where mobile salons may operate.Who will bear the costs of the proposed rules? Licensees and applicants for licensure will bear anypotential costs associated with implementation or compliance with the proposed rules. Where aparticular proposed rule has a probable cost, that cost is discussed in the rule-by-rule analysis.Who will benefit from the proposed rules?Licensees working in mobile salons and clients of mobile salons will benefit because the rules addresshealth and safety issues related to mobile salons. The public, municipalities, and residents andbusinesses located in close proximity to an operating mobile salon will benefit from the rules related tonoise, wastewater disposal, and compliance with local ordinances. Applicants for mobile salon licenses,licensees working in mobile salons, owners of mobile salons, and municipalities where mobile salonsmay operate and the Board will benefit from the proposed rules amendments because greatertransparency makes it easier to comply with requirements and to predict the outcome of applicationsfor licensure, renewal applications, and inspections;“(2) the probable costs to the agency and to any other agency of the implementation andenforcement of the proposed rule and any anticipated effect on state revenues”The probable costs to the Board are anticipated to be a one-time cost estimated to be approximately 16,000 for changes to the Board’s licensing software programs, under the current vendor (less than2% of the Board’s budget for Fiscal Year 2016.) The software changes are necessary to addresschanges in initial salon licensure requirements and renewal requirements.There is no anticipated significant effect on state revenue, as the board anticipates less than 10 mobilesalon licenses to be initially issued in contrast to the 5,500 salons licensed by the board. In other stateswhere mobile salon licenses are issued, the number of mobile salons has not exceeded ten mobilesalons.“(3) a determination of whether there are less costly methods or less intrusive methods forachieving the purpose of the proposed rule”The Board has carefully considered any cost and burden of the proposed rules, and has sought inputfrom interested parties, including those contemplating operating a mobile salon. No comments havebeen received regarding the potential cost of any specific rule proposed. There were no methods thatwere less costly or less intrusive which would achieve the purposes of the proposed rules.“(4) a description of any alternative methods for achieving the purpose of the proposed rulethat were seriously considered by the agency and the reasons why they were rejected infavor of the proposed rule”When an alternative method for achieving the purpose of the proposed rule was seriously consideredby the Board, the reasons the alternative methods were rejected in favor of the proposed rule arediscussed in the rule-by-rule analysis.“(5) the probable costs of complying with the proposed rule, including the portion of thetotal costs that will be borne by identifiable categories of affected parties, such as separateclasses of governmental units, businesses, or individuals”Board of Cosmetologist ExaminersMobile SalonsSONAR RD 4343Page 7 of 15
The costs of complying with the proposed rules will fall on mobile salon owners. No costs wouldbe borne by governmental units because governmental units are not subject to the proposed rules.Where a probable cost to compliance exists, the cost is discussed in the rule-by-rule analysis.“(6) the probable costs or consequences of not adopting the proposed rule, including thosecosts or consequences borne by identifiable categories of affected parties, such as separateclasses of government units, businesses, or individuals”There are no probable costs to not adopting the rule, other than potential litigation costs to the state shouldprospective mobile salon owners opt to litigate the Board’s failure to comply with the constituent drivenlegislative directive to adopt rules. Without rules establishing the requirements for mobile salon licensure, theBoard would be unable to issue mobile salon licenses.The probable consequences of not adopting the proposed rules are: the Board would not be in compliance with the legislature’s directive to adopt rules on mobile salons. potential salon owners would be denied the opportunity to choose a mobile salon as a businessopportunity. licensees would be denied the opportunity to work in a mobile salon environment. the public would be denied access to services via a mobile salon.The consequences of not adopting the proposed rules changes will be borne by the public, licensees andapplicants for licensure, and the Board.“(7) an assessment of any differences between the proposed rule and existing federalregulations and a specific analysis of the need for and reasonableness of each difference”There are no existing federal regulations concerning the practice of cosmetology, or the operation of a mobilesalon. Some mobile salons may be large enough to be classified as a commercial vehicle, and there are federalregulations related to operation of a commercial vehicle. However, none of the proposed rules address anyissues or requirements in federal regulations because the driving or towing of a mobile salon is not regulatedby the proposed rules, and therefore there is no difference to discuss.“(8) an assessment of the cumulative effect of the rule with other federal and stateregulations related to the specific purpose of the rule.”The proposed rules address the regulation of cosmetology in Minnesota, which is not regulated by federallaw. The Board is the only regulatory authority addressing cosmetology in Minnesota. Therefore, thisconsideration is not applicable for this rules amendment.6. PERFORMANCE-BASED RULESMinnesota law (Minnesota Statues, sections 14.002 and 14.131) requires that the SONAR describe how BCE,in developing the rules, considered and implemented performance-based standards that emphasize superiorachievement in meeting the board’s regulatory objectives and maximum flexibility for licensees and applicantsfor licensure, and the board in meeting those goals.BCE was guided by performance based regulatory principles as it developed these proposed amendments.By clarifying procedures and processes that applicants for mobile salon licensure and licensees working inmobile salons must follow, the proposed rules amendments help applicants and licensees to comply withrequirements designed to protect the health and safety of the public. The Board believes the proposed rulesamendments are performance-based to the extent possible because proposed amendments extend duties andBoard of Cosmetologist ExaminersMobile SalonsSONAR RD 4343Page 8 of 15
burdens no further than is necessary to meet the Board’s regulatory objectives and at the same time preserveoptimal flexibility for the licensees and applicants.7. ADDITIONAL NOTICE PLANThe Board’s Additional Notice Plan was reviewed by OAH and approved by the Honorable Eric L. Lipmanon September 28, 2016. As part of the plan, the Board will: Email the Notice of Intent to Adopt without a Hearing with links to the rules drafts and SONAR toevery licensee who has an email address listed with the board. Licensees include cosmetologists,estheticians, nail technicians, salon managers, salons, instructors, school managers, and schools.Approximately 93% of our 37,2505 licensees list an email address. Post the Notice of Intent to Adopt on the Board’s website and Facebook Page at with links to therules drafts and SONAR. Offer visitors the Notice of Intent to Adopt without a Hearing with copies of the rules drafts andSONAR to visitors at the Board’s office. The Board averages 225 walk in applicants and licensees amonth. Mail the Notice of Intent to Adopt, the SONAR, and the rules drafts; or email the Dual Notice ofIntent to Adopt with links to the rules drafts and SONAR to:o the Salon and Spa Professional Association, and the Beauty Certified EducationAssociation, (professional associations for Minnesota licensed practitioners);o Minnesota Fire Marshal;o Minnesota League of Cities.o Association of Minnesota Counties,o Minnesota Association of Townshipso Minnesota Pollution Control Agencyo Minnesota Department of Transportationo Minnesota Office of Commercial Vehicle Serviceso Minnesota Propane Association The Additional Notice Plan also includes giving notice required by statute. We will email the Noticeof Intent to Adopt with links to the SONAR and the rules drafts to everyone who has registered tobe on the Board's rulemaking mailing list under Minnesota Statutes, section 14.14, subdivision 1 a.We will also give notice to the Legislature per Minnesota Statutes, section 14.116. The Additional Notice Plan does not include notifying the Commissioner of Agriculture because therules do not affect farming operations per Minnesota Statutes, section 14.111. The Additional Notice Plan does not including notifying the Council on Affairs of Chicano/LatinoPeople because the rules do not have a primary effect on Chicano/Latino people per MinnesotaStatutes, section 3.922.8. CONSULTATION WITH MMB ON LOCAL GOVERNMENT IMPACTAs required by Minnesota Statutes, section 14.131, the Board will consult with Minnesota Management andBudget (MMB). We will do this by sending MMB copies of the documents that we send to the Governor'sOffice for review and approval on the same day we send them to the Governor's office. We will do thisbefore the Board's publishing the Notice of Intent to Adopt without a Hearing. The documents will include:the Governor's Office Proposed Rule and SONAR Form; the proposed rules; and the SONAR. The Boardwill submit a copy of the cover correspondence and any response received from Minnesota Management andBudget to OAH with the documents it submits for ALJ review.Board of Cosm
salons, instructors, school managers, and cosmetology schools in the Minnesota. The Board’s mission is to protect the health and safety of the public in the practice of cosmetology (Minnesota Statutes, section 155A.21.) Historically, regulatory responsibility for cosmetology began in
