Bill Text: MN HF3049 | 2013-2014 | 88th Legislature | Introduced
Bill Title: Building Code Administrators and Inspections Board established.
Sponsorship: Partisan Bill (Republican 3)
Status: (Introduced - Dead) 2014-03-13 - Introduction and first reading, referred to Jobs and Economic Development Finance and Policy [HF3049 Detail]
Download: Minnesota-2013-HF3049-Introduced.html
1.2relating to building officials; establishing the Building Code Administrators
1.3and Inspections Board;amending Minnesota Statutes 2012, sections 326B.133,
1.4subdivisions 2, 3, 8; 326B.135, subdivisions 1, 2; proposing coding for new law
1.5in Minnesota Statutes, chapter 326B.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. [326B.128] BUILDING CODE ADMINISTRATORS AND
1.8INSPECTIONS BOARD.
1.9 Subdivision 1. Establishment and membership. (a) The Building Code
1.10Administrators and Inspections Board is established and shall consist of nine members
1.11appointed by the governor with the advice and consent of the senate. All members shall be
1.12voting members. Appointments of members by the governor shall be made in accordance
1.13with section 15.066. If the senate votes to refuse to consent to an appointment of a
1.14member made by the governor, the governor shall appoint a new member with the advice
1.15and consent of the senate. Of the nine members, the composition shall be as follows:
1.16(1) one member shall be an architect licensed under chapter 326 or an engineer
1.17licensed under chapter 326;
1.18(2) two members shall be certified building officials, one from the 13-county
1.19metropolitan area and one from greater Minnesota;
1.20(3) one member shall be a representative of the Minnesota Building Permit
1.21Technicians Association;
1.22(4) one member shall represent organized labor;
1.23(5) one member shall be the commissioner of labor and industry or the
1.24commissioner's designee;
1.25(6) one member shall represent the League of Minnesota Cities;
2.1(7) one member shall be the construction programs coordinator of the Minnesota State
2.2Colleges and Universities system and shall serve as an ex officio member of the board; and
2.3(8) one member shall be a public member as defined by section 214.02.
2.4Members shall be appointed for four-year terms. The governor shall initially appoint
2.5two members for a one-year term, two members for two-year terms, two members for
2.6three-year terms, and two members for four-year terms. The commissioner shall be
2.7appointed to a four-year term.
2.8 Subd. 2. Powers, duties, and administrative support. (a) The board shall have
2.9the power to:
2.10(1) elect its chair, vice-chair, and secretary;
2.11(2) adopt bylaws that specify the duties of its officers, the meeting dates of the board,
2.12and containing such other provisions as may be useful and necessary for the efficient
2.13conduct of the business of the board;
2.14(3) adopt rules that regulate the licensure and certification of building officials,
2.15building inspectors, and construction code inspectors;
2.16(4) adopt rules that regulate continuing education and examination requirements for
2.17building officials, building officials limited, and accessibility specialists;
2.18(5) select from its members individuals to serve on any other state advisory council,
2.19board, or committee; and
2.20(6) recommend the fees for licenses and certifications.
2.21(b) The board shall comply with section 15.0597, subdivisions 2 and 4.
2.22(c) The commissioner shall coordinate the board's rulemaking and recommendations
2.23with the recommendations and rulemaking conducted by the other boards created pursuant
2.24to this chapter. The commissioner shall provide staff support to the board. The support
2.25includes professional, legal, technical, and clerical staff necessary to perform rulemaking
2.26and other duties assigned to the board. The commissioner of labor and industry shall
2.27supply necessary office space and supplies to assist the board in its duties.
2.28 Subd. 3. Compensation. Board members shall not receive compensation or
2.29reimbursement for expenses related to board activities.
2.30 Subd. 4. Removal; vacancy. (a) An appointed member of the board may be removed
2.31by the governor at any time (1) for cause, after notice and hearing, or (2) after missing three
2.32consecutive meetings. The chair of the board shall inform the governor of an appointed
2.33member missing the three consecutive meetings. After the second consecutive missed
2.34meeting and before the next meeting, the secretary of the board shall notify the appointed
2.35member in writing that the member may be removed for missing the next meeting. In the
3.1case of a vacancy on the board, the governor shall, with the advice and consent of the
3.2senate, appoint a person to fill the vacancy for the remainder of the unexpired term.
3.3(b) Vacancies shall be filled pursuant to section 15.0597, subdivisions 5 and 6.
3.4 Subd. 5. Membership vacancy within three months of appointment.
3.5Notwithstanding any law to the contrary, when a membership on the board becomes
3.6vacant within three months after being filled through the appointments process, the
3.7governor may, upon notification to the office of secretary of state, choose a new member
3.8from the applications on hand from the vacating member's appointments process and need
3.9not repeat the process under subdivision 1.
3.10 Subd. 6. Officers, quorum, voting. (a) The board shall elect annually from its
3.11members a chair, vice-chair, and secretary. A quorum of the board shall consist of a
3.12majority of members of the board qualified to vote on the matter in question. All questions
3.13concerning the manner in which a meeting is conducted or called that is not covered
3.14by statute shall be determined by Robert's Rules of Order (revised) unless otherwise
3.15specified by the bylaws.
3.16(b) Each proposed rule and rule amendment considered by the board pursuant to
3.17the rulemaking authority specified in subdivision 2 that receives an affirmative majority
3.18vote of all the voting members of the board shall be included in the next rulemaking
3.19proceeding initiated by the board. If a proposed rule or rule amendment considered or
3.20reconsidered by the board receives less than an affirmative majority vote of all the voting
3.21members of the board, the proposed rule or rule amendment shall not be included in the
3.22next rulemaking proceeding initiated by the board.
3.23(c) The board may reconsider proposed rules or rule amendments during an
3.24active rulemaking proceeding in which the amendment previously failed to receive an
3.25affirmative majority vote of all the voting members of the board only if new or updated
3.26information that affects the proposed rule or rule amendment is presented to the board.
3.27The board may also reconsider failed proposed rules or rule amendments in subsequent
3.28rulemaking proceedings.
3.29 Subd. 7. Board meetings. (a) The board shall hold meetings at such times as the
3.30board shall specify. Notice and conduct of all meetings shall be pursuant to chapter 13D
3.31and in such a manner as the bylaws may provide.
3.32(b) If compliance with section 13D.02 is impractical, the board may conduct a
3.33meeting of its members by telephone or other electronic means so long as the following
3.34conditions are met:
3.35(1) all members of the board participating in the meeting, wherever their physical
3.36location, can hear one another and can hear all discussion and testimony;
4.1(2) members of the public present at the regular meeting location of the board can
4.2hear clearly all discussion and testimony and all votes of members of the board and, if
4.3needed, receive those services required by sections 15.44 and 15.441;
4.4(3) at least one member of the board is physically present at the regular meeting
4.5location; and
4.6(4) all votes are conducted by roll call, so each member's vote on each issue can be
4.7identified and recorded.
4.8(c) Each member of the board participating in a meeting by telephone or other
4.9electronic means is considered present at the meeting for purposes of determining a
4.10quorum and participating in all proceedings.
4.11(d) If telephone or other electronic means is used to conduct a regular, special, or
4.12emergency meeting, the board, to the extent practical, shall allow a person to monitor
4.13the meeting electronically from a remote location. The board may require the person
4.14making such a connection to pay for documented costs that the board incurs as a result of
4.15the additional connection.
4.16(e) If telephone or other electronic means is used to conduct a regular, special,
4.17or emergency meeting, the board shall provide notice of the regular meeting location,
4.18of the fact that some members may participate by telephone or other electronic means,
4.19and that a person may monitor the meeting electronically from a remote location. Any
4.20person monitoring the meeting electronically from a remote location may be required to
4.21pay documented costs incurred by the board as a result of the additional connection. The
4.22timing and method of providing notice is governed by section 13D.04.
4.23 Subd. 8. Data Practices Act. The board is subject to chapter 13, the Minnesota
4.24Government Data Practices Act, and shall protect from unlawful disclosure data classified
4.25as not public.
4.26 Subd. 9. Official records. The board shall make and preserve all records necessary
4.27for a full and accurate knowledge of its official activities in accordance with section 15.17.
4.28 Sec. 2. Minnesota Statutes 2012, section 326B.133, subdivision 2, is amended to read:
4.29 Subd. 2. Qualifications. A building official, to be eligible for designation, must
4.30be certified and have the experience in design, construction, and supervision which the
4.31commissioner board under section 326B.128 deems necessary and must be generally
4.32informed on the quality and strength of building materials, accepted building construction
4.33requirements, and the nature of equipment and needs conducive to the safety, comfort, and
4.34convenience of building occupants. No person may be designated as a building official for
5.1a municipality unless thecommissioner board determines that the official is qualified as
5.2provided in subdivision 3.
5.3 Sec. 3. Minnesota Statutes 2012, section 326B.133, subdivision 3, is amended to read:
5.4 Subd. 3. Certification criteria. Thecommissioner board under section 326B.128
5.5 shall by rule establish certification criteria as proof of qualification pursuant to subdivision
5.62. Thecommissioner board may:
5.7 (1) develop and administer written and practical examinations to determine if a
5.8person is qualified pursuant to subdivision 2 to be a building official;
5.9 (2) accept documentation of successful completion of testing programs developed
5.10and administered by nationally recognized testing agencies, as proof of qualification
5.11pursuant to subdivision 2; or
5.12 (3) determine qualifications by satisfactory completion of clause (2) and a mandatory
5.13training program developed or approved by thecommissioner board.
5.14 Upon a determination of qualification under clause (1), (2), or (3), the commissioner
5.15shall issue a certificate to the building official stating that the official is certified. The
5.16commissioner or a designee may establish categories of certification that will recognize
5.17the varying complexities of code enforcement in the municipalities within the state. The
5.18commissioner shall provide educational programs designed to train and assist building
5.19officials in carrying out their responsibilities.
5.20 Sec. 4. Minnesota Statutes 2012, section 326B.133, subdivision 8, is amended to read:
5.21 Subd. 8. Continuing education requirements; extension of time. (a) This
5.22subdivision establishes the number of continuing education units required within each
5.23two-year certification period.
5.24A certified building official shall accumulate 16 continuing education units in any
5.25education program that is approved under Minnesota Rules, part 1301.1000.
5.26A certified building official-limited shall, in each year of the initial two-year
5.27certification period, accumulate eight continuing education units in any education program
5.28that is approved under Minnesota Rules, part 1301.1000. Continuing education units
5.29shall be reported annually during the initial two-year certification period by the method
5.30established in rule. A certified building official-limited shall accumulate 16 continuing
5.31education units for each two-year certification period thereafter in any education program
5.32that is approved under Minnesota Rules, part 1301.1000.
5.33An accessibility specialist must accumulate four continuing education units in any
5.34of the programs described in Minnesota Rules, part 1301.1000, subpart 1 or 2. The four
6.1units must be for courses relating to building accessibility, plan review, field inspection,
6.2or building code administration.
6.3Continuing education programs may be approved as established in rule.
6.4 (b) Subject to sections326B.101 to
326B.194 , the commissioner board may by rule
6.5establish or approve continuing education programs for certified building officials dealing
6.6with matters of building code administration, inspection, and enforcement.
6.7 Each person certified as a building official for the state must satisfactorily complete
6.8applicable educational programs established or approved by thecommissioner board to
6.9renew certification.
6.10(c) The state building official may grant an extension of time to comply with
6.11continuing education requirements if the certificate holder requesting the extension of
6.12time shows cause for the extension. The request for the extension must be in writing. For
6.13purposes of this section, the certificate holder's current certification effective dates shall
6.14remain the same. The extension does not relieve the certificate holder from complying
6.15with the continuing education requirements for the next two-year period.
6.16 Sec. 5. Minnesota Statutes 2012, section 326B.135, subdivision 1, is amended to read:
6.17 Subdivision 1. Competency criteria.The commissioner of labor and industry
6.18 As provided under section 326B.128, subdivision 2, the Building Code Administrators
6.19and Inspections Board shall adopt rules establishing required competency criteria for
6.20individuals serving as construction code inspectors. For the purpose of this section,
6.21"construction code inspectors" means building inspectors, mechanical inspectors,
6.22plumbing inspectors, and combination inspectors under the supervision of the building
6.23official. Required competency criteria shall be relevant to the building, mechanical, and
6.24plumbing codes as adopted in Minnesota.
6.25 Sec. 6. Minnesota Statutes 2012, section 326B.135, subdivision 2, is amended to read:
6.26 Subd. 2. Continuing education.The commissioner of labor and industry As
6.27provided under section 326B.128, subdivision 2, the Building Code Administrators and
6.28Inspections Board shall adopt rules establishing or approving education programs for
6.29construction inspectors related to construction inspection and administration of the State
6.30Building Code. Each construction code inspector must satisfactorily complete continuing
6.31education requirements as established in rule by thecommissioner board.
1.3and Inspections Board;amending Minnesota Statutes 2012, sections 326B.133,
1.4subdivisions 2, 3, 8; 326B.135, subdivisions 1, 2; proposing coding for new law
1.5in Minnesota Statutes, chapter 326B.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. [326B.128] BUILDING CODE ADMINISTRATORS AND
1.8INSPECTIONS BOARD.
1.9 Subdivision 1. Establishment and membership. (a) The Building Code
1.10Administrators and Inspections Board is established and shall consist of nine members
1.11appointed by the governor with the advice and consent of the senate. All members shall be
1.12voting members. Appointments of members by the governor shall be made in accordance
1.13with section 15.066. If the senate votes to refuse to consent to an appointment of a
1.14member made by the governor, the governor shall appoint a new member with the advice
1.15and consent of the senate. Of the nine members, the composition shall be as follows:
1.16(1) one member shall be an architect licensed under chapter 326 or an engineer
1.17licensed under chapter 326;
1.18(2) two members shall be certified building officials, one from the 13-county
1.19metropolitan area and one from greater Minnesota;
1.20(3) one member shall be a representative of the Minnesota Building Permit
1.21Technicians Association;
1.22(4) one member shall represent organized labor;
1.23(5) one member shall be the commissioner of labor and industry or the
1.24commissioner's designee;
1.25(6) one member shall represent the League of Minnesota Cities;
2.1(7) one member shall be the construction programs coordinator of the Minnesota State
2.2Colleges and Universities system and shall serve as an ex officio member of the board; and
2.3(8) one member shall be a public member as defined by section 214.02.
2.4Members shall be appointed for four-year terms. The governor shall initially appoint
2.5two members for a one-year term, two members for two-year terms, two members for
2.6three-year terms, and two members for four-year terms. The commissioner shall be
2.7appointed to a four-year term.
2.8 Subd. 2. Powers, duties, and administrative support. (a) The board shall have
2.9the power to:
2.10(1) elect its chair, vice-chair, and secretary;
2.11(2) adopt bylaws that specify the duties of its officers, the meeting dates of the board,
2.12and containing such other provisions as may be useful and necessary for the efficient
2.13conduct of the business of the board;
2.14(3) adopt rules that regulate the licensure and certification of building officials,
2.15building inspectors, and construction code inspectors;
2.16(4) adopt rules that regulate continuing education and examination requirements for
2.17building officials, building officials limited, and accessibility specialists;
2.18(5) select from its members individuals to serve on any other state advisory council,
2.19board, or committee; and
2.20(6) recommend the fees for licenses and certifications.
2.21(b) The board shall comply with section 15.0597, subdivisions 2 and 4.
2.22(c) The commissioner shall coordinate the board's rulemaking and recommendations
2.23with the recommendations and rulemaking conducted by the other boards created pursuant
2.24to this chapter. The commissioner shall provide staff support to the board. The support
2.25includes professional, legal, technical, and clerical staff necessary to perform rulemaking
2.26and other duties assigned to the board. The commissioner of labor and industry shall
2.27supply necessary office space and supplies to assist the board in its duties.
2.28 Subd. 3. Compensation. Board members shall not receive compensation or
2.29reimbursement for expenses related to board activities.
2.30 Subd. 4. Removal; vacancy. (a) An appointed member of the board may be removed
2.31by the governor at any time (1) for cause, after notice and hearing, or (2) after missing three
2.32consecutive meetings. The chair of the board shall inform the governor of an appointed
2.33member missing the three consecutive meetings. After the second consecutive missed
2.34meeting and before the next meeting, the secretary of the board shall notify the appointed
2.35member in writing that the member may be removed for missing the next meeting. In the
3.1case of a vacancy on the board, the governor shall, with the advice and consent of the
3.2senate, appoint a person to fill the vacancy for the remainder of the unexpired term.
3.3(b) Vacancies shall be filled pursuant to section 15.0597, subdivisions 5 and 6.
3.4 Subd. 5. Membership vacancy within three months of appointment.
3.5Notwithstanding any law to the contrary, when a membership on the board becomes
3.6vacant within three months after being filled through the appointments process, the
3.7governor may, upon notification to the office of secretary of state, choose a new member
3.8from the applications on hand from the vacating member's appointments process and need
3.9not repeat the process under subdivision 1.
3.10 Subd. 6. Officers, quorum, voting. (a) The board shall elect annually from its
3.11members a chair, vice-chair, and secretary. A quorum of the board shall consist of a
3.12majority of members of the board qualified to vote on the matter in question. All questions
3.13concerning the manner in which a meeting is conducted or called that is not covered
3.14by statute shall be determined by Robert's Rules of Order (revised) unless otherwise
3.15specified by the bylaws.
3.16(b) Each proposed rule and rule amendment considered by the board pursuant to
3.17the rulemaking authority specified in subdivision 2 that receives an affirmative majority
3.18vote of all the voting members of the board shall be included in the next rulemaking
3.19proceeding initiated by the board. If a proposed rule or rule amendment considered or
3.20reconsidered by the board receives less than an affirmative majority vote of all the voting
3.21members of the board, the proposed rule or rule amendment shall not be included in the
3.22next rulemaking proceeding initiated by the board.
3.23(c) The board may reconsider proposed rules or rule amendments during an
3.24active rulemaking proceeding in which the amendment previously failed to receive an
3.25affirmative majority vote of all the voting members of the board only if new or updated
3.26information that affects the proposed rule or rule amendment is presented to the board.
3.27The board may also reconsider failed proposed rules or rule amendments in subsequent
3.28rulemaking proceedings.
3.29 Subd. 7. Board meetings. (a) The board shall hold meetings at such times as the
3.30board shall specify. Notice and conduct of all meetings shall be pursuant to chapter 13D
3.31and in such a manner as the bylaws may provide.
3.32(b) If compliance with section 13D.02 is impractical, the board may conduct a
3.33meeting of its members by telephone or other electronic means so long as the following
3.34conditions are met:
3.35(1) all members of the board participating in the meeting, wherever their physical
3.36location, can hear one another and can hear all discussion and testimony;
4.1(2) members of the public present at the regular meeting location of the board can
4.2hear clearly all discussion and testimony and all votes of members of the board and, if
4.3needed, receive those services required by sections 15.44 and 15.441;
4.4(3) at least one member of the board is physically present at the regular meeting
4.5location; and
4.6(4) all votes are conducted by roll call, so each member's vote on each issue can be
4.7identified and recorded.
4.8(c) Each member of the board participating in a meeting by telephone or other
4.9electronic means is considered present at the meeting for purposes of determining a
4.10quorum and participating in all proceedings.
4.11(d) If telephone or other electronic means is used to conduct a regular, special, or
4.12emergency meeting, the board, to the extent practical, shall allow a person to monitor
4.13the meeting electronically from a remote location. The board may require the person
4.14making such a connection to pay for documented costs that the board incurs as a result of
4.15the additional connection.
4.16(e) If telephone or other electronic means is used to conduct a regular, special,
4.17or emergency meeting, the board shall provide notice of the regular meeting location,
4.18of the fact that some members may participate by telephone or other electronic means,
4.19and that a person may monitor the meeting electronically from a remote location. Any
4.20person monitoring the meeting electronically from a remote location may be required to
4.21pay documented costs incurred by the board as a result of the additional connection. The
4.22timing and method of providing notice is governed by section 13D.04.
4.23 Subd. 8. Data Practices Act. The board is subject to chapter 13, the Minnesota
4.24Government Data Practices Act, and shall protect from unlawful disclosure data classified
4.25as not public.
4.26 Subd. 9. Official records. The board shall make and preserve all records necessary
4.27for a full and accurate knowledge of its official activities in accordance with section 15.17.
4.28 Sec. 2. Minnesota Statutes 2012, section 326B.133, subdivision 2, is amended to read:
4.29 Subd. 2. Qualifications. A building official, to be eligible for designation, must
4.30be certified and have the experience in design, construction, and supervision which the
4.31
4.32informed on the quality and strength of building materials, accepted building construction
4.33requirements, and the nature of equipment and needs conducive to the safety, comfort, and
4.34convenience of building occupants. No person may be designated as a building official for
5.1a municipality unless the
5.2provided in subdivision 3.
5.3 Sec. 3. Minnesota Statutes 2012, section 326B.133, subdivision 3, is amended to read:
5.4 Subd. 3. Certification criteria. The
5.5 shall by rule establish certification criteria as proof of qualification pursuant to subdivision
5.62. The
5.7 (1) develop and administer written and practical examinations to determine if a
5.8person is qualified pursuant to subdivision 2 to be a building official;
5.9 (2) accept documentation of successful completion of testing programs developed
5.10and administered by nationally recognized testing agencies, as proof of qualification
5.11pursuant to subdivision 2; or
5.12 (3) determine qualifications by satisfactory completion of clause (2) and a mandatory
5.13training program developed or approved by the
5.14 Upon a determination of qualification under clause (1), (2), or (3), the commissioner
5.15shall issue a certificate to the building official stating that the official is certified. The
5.16commissioner or a designee may establish categories of certification that will recognize
5.17the varying complexities of code enforcement in the municipalities within the state. The
5.18commissioner shall provide educational programs designed to train and assist building
5.19officials in carrying out their responsibilities.
5.20 Sec. 4. Minnesota Statutes 2012, section 326B.133, subdivision 8, is amended to read:
5.21 Subd. 8. Continuing education requirements; extension of time. (a) This
5.22subdivision establishes the number of continuing education units required within each
5.23two-year certification period.
5.24A certified building official shall accumulate 16 continuing education units in any
5.25education program that is approved under Minnesota Rules, part 1301.1000.
5.26A certified building official-limited shall, in each year of the initial two-year
5.27certification period, accumulate eight continuing education units in any education program
5.28that is approved under Minnesota Rules, part 1301.1000. Continuing education units
5.29shall be reported annually during the initial two-year certification period by the method
5.30established in rule. A certified building official-limited shall accumulate 16 continuing
5.31education units for each two-year certification period thereafter in any education program
5.32that is approved under Minnesota Rules, part 1301.1000.
5.33An accessibility specialist must accumulate four continuing education units in any
5.34of the programs described in Minnesota Rules, part 1301.1000, subpart 1 or 2. The four
6.1units must be for courses relating to building accessibility, plan review, field inspection,
6.2or building code administration.
6.3Continuing education programs may be approved as established in rule.
6.4 (b) Subject to sections
6.5establish or approve continuing education programs for certified building officials dealing
6.6with matters of building code administration, inspection, and enforcement.
6.7 Each person certified as a building official for the state must satisfactorily complete
6.8applicable educational programs established or approved by the
6.9renew certification.
6.10(c) The state building official may grant an extension of time to comply with
6.11continuing education requirements if the certificate holder requesting the extension of
6.12time shows cause for the extension. The request for the extension must be in writing. For
6.13purposes of this section, the certificate holder's current certification effective dates shall
6.14remain the same. The extension does not relieve the certificate holder from complying
6.15with the continuing education requirements for the next two-year period.
6.16 Sec. 5. Minnesota Statutes 2012, section 326B.135, subdivision 1, is amended to read:
6.17 Subdivision 1. Competency criteria.
6.18 As provided under section 326B.128, subdivision 2, the Building Code Administrators
6.19and Inspections Board shall adopt rules establishing required competency criteria for
6.20individuals serving as construction code inspectors. For the purpose of this section,
6.21"construction code inspectors" means building inspectors, mechanical inspectors,
6.22plumbing inspectors, and combination inspectors under the supervision of the building
6.23official. Required competency criteria shall be relevant to the building, mechanical, and
6.24plumbing codes as adopted in Minnesota.
6.25 Sec. 6. Minnesota Statutes 2012, section 326B.135, subdivision 2, is amended to read:
6.26 Subd. 2. Continuing education.
6.27provided under section 326B.128, subdivision 2, the Building Code Administrators and
6.28Inspections Board shall adopt rules establishing or approving education programs for
6.29construction inspectors related to construction inspection and administration of the State
6.30Building Code. Each construction code inspector must satisfactorily complete continuing
6.31education requirements as established in rule by the
