Senate Bill No. 541
(By Senators Wooton, Ross, Dittmar, Whitlow, Helmick,
Schoonover, Love, Sharpe, Oliverio, Deem, Anderson and Bowman)
____________
[Introduced February 20, 1995; referred to the Committee
on Government Organization.]
____________
A BILL to amend and reenact section two, article one, chapter
twenty-nine-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact section two, article three of said chapter, all
relating to authorizing the secretary of state to make
technical corrections to an existing rule where necessary to
insure or improve the accuracy, integrity and clarity of the
state register.
Be it enacted by the Legislature of West Virginia:
That section two, article one, chapter twenty-nine-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section two, article three of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 1. DEFINITIONS AND APPLICATION OF CHAPTER.
§29A-1-2. Definitions of terms used in this chapter.
For the purposes of this chapter:
(a) "Agency" means any state board, commission, department,
office or officer authorized by law to make rules or adjudicate
contested cases, except those in the legislative or judicial
branches;
(b) "Contested case" means a proceeding before an agency in
which the legal rights, duties, interests or privileges of
specific parties are required by law or constitutional right to
be determined after an agency hearing, but does not include cases
in which an agency issues a license, permit or certificate after
an examination to test the knowledge or ability of the applicant
where the controversy concerns whether the examination was fair
or whether the applicant passed the examination and does not
include rule making;
(c) "Interpretive rule" means every rule, as defined in
subsection (i) of this section, adopted by an agency
independently of any delegation of legislative power which is intended by the agency to provide information or guidance to the
public regarding the agency's interpretations, policy or opinions
upon the law enforced or administered by it and which is not
intended by the agency to be determinative of any issue affecting
private rights, privileges or interests. An interpretive rule may
not be relied upon to impose a civil or criminal sanction nor to
regulate private conduct or the exercise of private rights or
privileges nor to confer any right or privilege provided by law
and is not admissible in any administrative or judicial
proceeding for such purpose, except where the interpretive rule
established the conditions for the exercise of discretionary
power as herein provided. However, an interpretive rule is
admissible for the purpose of showing that the prior conduct of
a person was based on good faith reliance on such rule. The
admission of such rule in no way affects any legislative or
judicial determination regarding the prospective effect of such
rule. Where any provision of this code lawfully commits any
decision or determination of fact or judgment to the sole
discretion of any agency or any executive officer or employee, the conditions for the exercise of that discretion, to the extent
that such the conditions are not prescribed by statute or by
legislative rule, may be established by an interpretive rule and
such the rule is admissible in any administrative or judicial
proceeding to prove such conditions.
(d) "Legislative rule" means every rule, as defined in
subsection (i) of this section, proposed or promulgated by an
agency pursuant to this chapter. Legislative rule includes
every rule which, when promulgated after or pursuant to
authorization of the Legislature, has: (1) The force of law; or
(2) supplies a basis for the imposition of civil or criminal
liability; or (3) grants or denies a specific benefit. Every
rule which, when effective, is determinative on any issue
affecting private rights, privileges or interests is a
legislative rule. Unless lawfully promulgated as an emergency
rule, a legislative rule is only a proposal by the agency and has
no legal force or effect until promulgated by specific
authorization of the Legislature. Except where otherwise
specifically provided in this code, legislative rule does not include: (A) Findings or determinations of fact made or reported
by an agency, including any such findings and determinations as
are required to be made by any agency as a condition precedent to
proposal of a rule to the Legislature; (B) declaratory rulings
issued by an agency pursuant to the provisions of section one,
article four of this chapter; (C) orders, as defined in
subdivision (e) of this section; or (D) executive orders or
proclamations by the governor issued solely in the exercise of
executive power, including executive orders issued in the event
of a public disaster or emergency;
(e) "Order" means the whole or any part of the final
disposition (whether affirmative, negative, injunctive or
declaratory in form) by any agency of any matter other than rule
making;
(f) "Person" includes individuals, partnerships,
corporations, associations or public or private organizations of
any character;
(g) "Procedural rule" means every rule, as defined in
subsection (i) of this section, which fixes rules of procedure, practice or evidence for dealings with or proceedings before an
agency, including forms prescribed by the agency;
(h) "Proposed rule" is a legislative rule, interpretive
rule, or a procedural rule which has not become effective
pursuant to the provisions of this chapter or law authorizing its
promulgation;
(i) "Rule" includes every regulation, standard or statement
of policy or interpretation of general application and future
effect, including the amendment or repeal thereof, affecting
private rights, privileges or interests, or the procedures
available to the public, adopted by an agency to implement,
extend, apply, interpret or make specific the law enforced or
administered by it or to govern its organization or procedure,
but does not include regulations relating solely to the internal
management of the agency, nor regulations of which notice is
customarily given to the public by markers or signs, nor mere
instructions. Every rule shall be classified as "legislative
rule," "interpretive rule" or "procedural rule," all as defined
in this section, and shall be effective only as provided in this chapter;
(j) "Rule making" means the process for the formulation,
amendment or repeal of a rule as provided in this chapter.
(k) "Technical corrections to a rule" means nonsubstantive
revisions to an existing rule which include, but are not limited
to: Correcting typographical errors, correcting inappropriate
code citations and cross references, correcting formatting
errors, all of which do not change the meaning, intent, or
purpose of the rule.
ARTICLE 3. RULE MAKING.
§29A-3-2. Limitations on authority to exercise rule-making
power.
(a) Except when, and to the extent, that this chapter or any
other provision of law now or hereafter made expressly exempts an
agency, or a particular grant of the rule-making power, from the
provisions of this article, every grant of rule-making authority
to an executive or administrative officer, office or agency,
heretofore provided, shall be construed and applied to be
effective only:
(1) If heretofore lawfully exercised in accordance with the
prior provisions of this chapter and the resulting rule has not
been revoked or invalidated by the provisions hereof or by the
agency; or
(2) If exercised in accordance with the provisions hereof.
(b) No executive or administrative agency shall be deemed to
have power and authority to promulgate a legislative rule without
compliance with this article unless: (1) The provision of this
code, heretofore or hereafter enacted, granting such power and
authority, expressly exempts its exercise from legislative
rule-making review prior to promulgation; or (2) the grant of
such power and authority is exempted from the application of this
chapter by the express provisions of this chapter. To the extent
any such grant of power and authority, not so exempt, shall be
deemed to exceed the limits and provisions of this article, such
power and authority to promulgate legislative rules is hereby
revoked.
(c) The secretary of state may, make technical corrections
to an existing rule where necessary to insure or improve the
accuracy, integrity, and clarity of the state register:
Provided, That the secretary of state complies with the same notice and filing procedures as set forth in sections two and
eight of this article.
NOTE: The purpose of this bill is to authorize the
secretary of state to make technical corrections to an existing
rule where necessary to insure or improve the accuracy,
integrity, and clarity of the state register.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.