ENGROSSED
H. B. 2501
(By Delegates Douglas, Gallagher, Faircloth, Compton and Linch)
[Introduced February 15, 1995; referred to the
Committee on the Judiciary.]
A Bill to amend and reenact sections five, nine, eleven and
twelve, article three, chapter twenty-nine-a of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, relating to rulemaking; notice of proposed
rulemaking; requiring an agency to hold either a public
hearing or a public comment period; proposal of legislative
rules; requiring the filing of agency approved rules within
a specified time; providing for extending the time period
for filing the agency approved rule; submission of
legislative rules to the legislative rule-making review
committee; requiring the filing of relevant federal statutes
and regulations with the committee; submission of legislative rules to the Legislature; and changing deadline
by which rules must be filed with the committee for
consideration at the legislative session.
Be it enacted by the Legislature of West Virginia:
That sections five, nine, eleven and twelve, article three,
chapter twenty-nine-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted to
read as follows:
ARTICLE 3. RULE MAKING.
§29A-3-5. Notice of proposed rule making.
When an agency proposes to promulgate a rule other than an
emergency rule, it shall file with the secretary of state, for
publication in the state register, a notice of its action,
including therein any request for the submission of evidence to
be presented on any factual determinations or inquiries required
by law to promulgate such rule. At the time of filing the notice
of its action, the agency shall also file with the secretary of
state a copy of the full text of the rule proposed, and a fiscal
note as defined in subsection (b), section four of this article.
If the agency is considering alternative draft proposals, it may
also file with the secretary of state the full text of such draft proposals.
The notice shall fix a date, time and place for the receipt
of public comment in the form of oral statements, written
statements, and documents bearing upon any findings and
determinations which are a condition precedent to the final
approval by the agency of the proposed rule, and shall contain a
general description of the issues to be decided. If no specific
findings and determinations are required as a condition precedent
to the final approval by the agency of the approved rule, the
notice shall fix a date, time and place for the receipt of
general public comment on the proposed rule. To comply with the
public comment provisions of this section, the agency must either
hold a public hearing or schedule a public comment period for the
receipt of written statements and documents.
If findings and determinations are a condition precedent to
the promulgation of such rule, then an opportunity for general
public comment on the merits of the rule shall be afforded after
such findings and determinations are made. In such event, notice
of the hearing, or of the period for receiving public comment on
the proposed rule shall be attached to and filed as a part of the
findings and determinations of the agency when filed in the state register.
In any hearing for public comment on the merits of the rule,
the agency may limit presentations to written material. The
time, date and place fixed in the notice shall constitute the
last opportunity to submit any written material relevant to any
hearing, all of which may be earlier submitted by filing with the
agency. After the public hearing or the close of the public
comment period, whichever is later, the agency shall not permit
the filing or receipt of, nor shall it consider, any attempted ex
parte communications directed to it in the form of additional
comment, prior to the submission of its final agency-approved
rule to the legislative rule-making review committee pursuant to
the provisions of section eleven of this article.
The agency may also, at its expense, cause to be published
as a Class I legal publication in every county of the state any
notice required by this section.
Any citizen or other interested party may appear and be
heard at such hearings as are required by this section.
§29A-3-9. Proposal of legislative rules.
When an agency proposes a legislative rule, other than an
emergency rule, it shall be deemed to be applying to the Legislature for permission, to be granted by law, to promulgate
such rule as approved by the agency for submission to the
Legislature or as amended and authorized by the Legislature by
law.
An agency proposing a legislative rule, other than an
emergency rule, after filing the notice of proposed rulemaking
required by the provisions of section five of this article, shall
then proceed as in the case of a procedural and interpretive rule
to the point of, but not including, final adoption. In lieu of
final adoption, the agency shall finally approve the proposed
rule, including any amendments, for submission to the Legislature
and file such notice of approval in the state register and with
the legislative rule-making review committee, within 30 days
after the public hearing was held or within thirty days after the
end of the public comment period required under section five of
this article: Provided, That upon receipt of a written request
from an agency, setting forth valid reasons why the agency is
unable to file the agency approved rule within the thirty day
time period, the legislative rule-making review committee may
grant the agency an extension of time to file the agency approved
rule.
Such final agency approval of the rule under this section is
deemed to be approval for submission to the Legislature only and
does not give any force and effect to the proposed rule. The
rule shall have full force and effect only when authority for
promulgation of the rule is granted by an act of the Legislature
and the rule is promulgated pursuant to the provisions of section
thirteen of this article.
§29A-3-11. Submission of legislative rules to the legislative
rule-making review committee.
(a) When an agency finally approves a proposed legislative
rule for submission to the Legislature, pursuant to the
provisions of section nine of this article, the secretary of the
executive department which administers the agency pursuant to the
provisions of article two, chapter five-f of this code shall
submit to the legislative rule-making review committee at its
offices or at a regular meeting of such committee fifteen copies
of: (1) The full text of the legislative rule as finally
approved by the agency, with new language underlined and with
language to be deleted from any existing rule stricken through
but clearly legible; (2) a brief summary of the content of the
legislative rule and a description and a copy of any existing rule which the agency proposes to amend or repeal; (3) a
statement of the circumstances which require the rule; (4) a
fiscal note containing all information included in a fiscal note
for either house of the Legislature and a statement of the
economic impact of the rule on the state or its residents; (5)
one copy of any relevant federal statutes or regulations; and
(5)(6) any other information which the committee may request or
which may be required by law. If the agency is an agency, board
or commission which is not administered by an executive
department as provided for in article two, chapter five-f of this
code, the agency shall submit the final agency-approved rule as
required by this subsection.
(b) The committee shall review each proposed legislative
rule and, in its discretion, may hold public hearings thereon.
Such review shall include, but not be limited to, a determination
of:
(1) Whether the agency has exceeded the scope of its
statutory authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity
with the legislative intent of the statute which the rule is
intended to implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any
other provision of this code or with any other rule adopted by
the same or a different agency;
(4) Whether the proposed legislative rule is necessary to
fully accomplish the objectives of the statute under which the
rule was proposed for promulgation;
(5) Whether the proposed legislative rule is reasonable,
especially as it affects the convenience of the general public or
of persons particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was proposed for
promulgation in compliance with the requirements of this article
and with any requirements imposed by any other provision of this
code.
(c) After reviewing the legislative rule, the committee
shall recommend that the Legislature:
(1) Authorize the promulgation of the legislative rule, or
(2) Authorize the promulgation of part of the legislative
rule, or
(3) Authorize the promulgation of the legislative rule with certain amendments, or
(4) Recommend that the proposed rule be withdrawn.
The committee shall file notice of its action in the state
register and with the agency proposing the rule: Provided,
That when the committee makes the recommendations of subdivision
(2), (3) or (4) of this subsection, the notice shall contain a
statement of the reasons for such recommendation.
(d) When the committee recommends that a rule be authorized,
in whole or in part, by the Legislature, the committee shall
instruct its staff or the office of legislative services to draft
a bill authorizing the promulgation of all or part of the
legislative rule, and incorporating such amendments as the
committee desires. If the committee recommends that the rule not
be authorized, it shall include in its report a draft of a bill
authorizing promulgation of the rule together with a
recommendation. Any draft bill prepared under this section shall
contain a legislative finding that the rule is within the
legislative intent of the statute which the rule is intended to
implement, extend, apply or interpret and shall be available for
any member of the Legislature to introduce to the Legislature.
§29A-3-12. Submission of legislative rules to Legislature.
(a) No later than forty days before the sixtieth day of each
regular session of the Legislature, the cochairmen of the
legislative rule-making review committee shall submit to the
clerk of the respective houses of the Legislature copies of all
proposed legislative rules which have been submitted to and
considered by the committee pursuant to the provisions of section
eleven of this article and which have not been previously
submitted to the Legislature for study, together with the
recommendations of the committee with respect to such rules, a
statement of the reasons for any recommendation that a rule be
amended or withdrawn, and a statement that a bill authorizing the
legislative rule has been drafted by the staff of the committee
or by legislative services pursuant to section eleven of this
article. The cochairman of the committee may also submit such
rules at the direction of the committee at any time before or
during a special session in which consideration thereof may be
appropriate. The committee may withhold from its report any
proposed legislative rule which was submitted to the committee
fewer than two hundred ten forty days before the end of the
regular session. The clerk of each house shall submit the report
to his or her house at the commencement of the next session.
All bills introduced authorizing the promulgation of a rule
may be referred by the speaker of the House of Delegates and by
the president of the Senate to appropriate standing committees of
the respective houses for further consideration or the matters
may be otherwise dealt with as each house or its rules provide.
The Legislature may by act authorize the agency to adopt a
legislative rule incorporating the entire rule, or may authorize
the agency to adopt a rule with any amendments which the
Legislature shall designate. The clerk of the house originating
such act shall forthwith file a copy of any bill of authorization
enacted with the secretary of state and with the agency proposing
such rule and the clerk of each house may prepare and file a
synopsis of legislative action during any session on any proposed
rule submitted to the house during such session for which
authority to promulgate was not by law provided during such
session. In acting upon the separate bills authorizing the
promulgation of rules, the Legislature may, by amendment or
substitution, combine the separate bills of authorization insofar
as the various rules authorized therein are proposed by agencies
which are placed under the administration of one of the single
separate executive departments identified under the provisions of section two, article one, chapter five-f of this code, or, the
Legislature may combine the separate bills of authorization by
agency or agencies within an executive department. In the case
of rules proposed for promulgation by an agency which is not
administered by an executive department pursuant to the
provisions of article two, chapter five-f of this code, the
separate bills of authorization for the proposed rules of that
agency may, by amendment or substitution, be combined. The
foregoing provisions relating to combining separate bills of
authorization according to department or agency are not intended
to restrict the permissible breadth of bills of authorization and
do not preclude the Legislature from otherwise combining various
bills of authorization which have a unity of subject matter. Any
number of provisions may be included in a bill of authorization,
but the single object of the bill shall be to authorize the
promulgation of proposed legislative rules.
(b) If the Legislature fails during its regular session to
act upon all or part of any legislative rule which was submitted
to it by the legislative rule-making review committee during such
session, no agency may thereafter issue any rule or directive or
take other action to implement such rule or part thereof unless and until otherwise authorized to do so.
(c) Nothing herein shall be construed to prevent the
Legislature by law from authorizing, or authorizing and
directing, an agency to promulgate legislative rules not proposed
by the agency or upon which some procedure specified in this
chapter is not yet complete.
(d) Whenever the Legislature is convened by proclamation of
the governor, upon his or her own initiative or upon application
of the members of the Legislature, or whenever a regular session
of the Legislature is extended or convened by the vote or
petition of its members, the Legislature may by act enacted
during such extraordinary or extended session authorize, in whole
or in part, any legislative rule whether submitted to the
legislative rule-making review committee, or not, if legislative
action on such rule during such session is a lawful order of
business.
(e) Whenever a date is required by this section to be
computed in relation to the end of a regular session of the
Legislature, such date shall be computed without regard to any
extensions of such session occasioned solely by the proclamation
of the governor.
(f) Whenever a date is required to be computed from or is
fixed by the first day of a regular session of the Legislature,
it shall be computed or fixed in the year one thousand nine
hundred eighty-four, and each fourth year thereafter without
regard to the second Wednesday of January of such years.