Introduced Version
House Bill 2171 History
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Committee Substitute
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2171
(By Delegates Fleischauer, Miley, Caputo, Pino,
Overington and Sobonya)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §29A-1-2 and §29A-1-3 of the Code of
West Virginia, 1931, as amended; to amend and reenact §29A-3-
1a, §29A-3-4, §29A-3-6, §29A-3-8, §29A-3-15, §29A-3-15a and
§29A-3-15b of said code; and to amend said code by adding
three new sections, designated §29A-3-1c, §29A-3-1d and §29A-
3-9a, all relating to review of State Administrative Agency
rule-making; defining terms; altering designation of types of
rules that have not been approved by the Legislature and that
are exempt from legislative review; establishing deadline for
action by agency action for certain proposed rules before the
rule is deemed withdrawn; requiring agency response to public
comments; requiring all sections of a rule be filed when
agency proposing rule amendment; providing for methodology for
repeal of rules; establishing new publishing and rule-making
requirements for certain Department of Health and Human
Services policy manuals; providing new process for review and approval of legislative rules incorporating federal mandated
requirements; revising emergency rule-making process to allow
for public comment, more information, and extended comment
period; providing new process for provisional legislative
rules; and altering certain agency filing requirements.
Be it enacted by the Legislature of West Virginia:
That §29A-1-2 and §29A-1-3 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that §29A-3-1a, §29A-3-4,
§29A-3-6, §29A-3-8, §29A-3-15, §29A-3-15a and §29A-3-15b of said
code be amended and reenacted; and that said code be amended by
adding three new sections, designated §29A-3-1c, §29A-3-1d and
§29A-3-9a, 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 shall may not
include rule making;
(c) "Agency-promulgated rule" means any rule an agency is
authorized by the Legislature to promulgate that meets all
requirements of being considered a legislative rule except for the
authority granted by the Legislature to the agency expressly allows
the agency to proceed with final adoption of the rule without prior
specific authorization by Legislature rule enactment pursuant to
section nine, article three of this chapter
. An agency-promulgated
rule to be lawfully promulgated shall comport to all other
requirements of this article and shall have the same force and
effect as a legislative rule.
(e) (d) "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 conditions are not prescribed by statute or by legislative
rule, may be established by an interpretive rule and such rule is
admissible in any administrative or judicial proceeding to prove
such conditions.
(d) (e) "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; (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) (f) "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) (g) "Person" includes individuals, partnerships,
corporations, associations or public or private organizations of
any character;
(g) (h) "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) (i) "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;
(j) "Provisional legislative rule" means a legislative rule
that the agency has been directed by law to propose, to be
effective for a limited time as a legislative rule prior to
legislative authorization for promulgation as a legislative rule,
pursuant to this chapter.
_______________(i) (k) "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) (l) "Rule making" means the process for the formulation,
amendment or repeal of a rule as provided in this chapter.
§29A-1-3. Application of chapter; limitations.
(a) The provisions of this chapter do This chapter does not
apply in any respect whatever to executive orders of the Governor,
which orders to the extent otherwise lawful shall be effective
according to their terms: Provided, That the executive orders
shall be admitted to record in the State Register when and to the
extent the Governor deems considers suitable and shall be included
therein by the Secretary of State when tendered by the Governor.
(b) Except as to requirements for filing in the State
Register, and with the Legislature or its rule-making review
committee, provided in this chapter or other law, the provisions of
this chapter do this chapter does not apply in any respect whatever
to the West Virginia Board of Probation and Parole, the Public
Service Commission, the Board of Public Works sitting as such and
the Secondary Schools Activities Commission. Provided, That The
rules of such these agencies shall be filed in the State Register
in the form prescribed by this chapter and be effective no sooner
than sixty consecutive days after being so filed Provided,
however, That The rules promulgated by the state colleges and
universities shall only be filed with the higher education
governing boards. Provided further, That Such These agencies may promulgate emergency rules in conformity with section fifteen,
article three of this chapter. Rules or amendments thereto
authorized by this subsection shall be considered by the agency for
adoption not later than six months after the close of public
comment. A notice of adoption or withdrawal by the agency shall be
filed in the State Register within that period. Failure to file
such notice shall constitute withdrawal. The Secretary of State
shall note such withdrawal in the State Register immediately upon
the expiration of the six- month period.
(c) The provisions of this chapter do This chapter does not
apply to rules relating to or contested cases involving the conduct
of inmates or other persons admitted to public institutions, the
open seasons and the bag, creel, size, age, weight and sex limits
with respect to the wildlife in this state, or the conduct of
persons in military service. or the receipt of public assistance.
Such These rules shall be filed in the State Register in the form
prescribed by this chapter and be effective upon filing: Provided,
That rules relating to the receipt of public assistance shall be
subject to section one-c, article three of this chapter.
(d) Nothing herein shall be construed to affect, limit or
expand any express and specific exemption from this chapter
contained in any other statute relating to a specific agency, but
such exemptions shall be construed and applied in accordance with
the provisions of this chapter to effectuate any limitations on such exemptions contained in any such other statute.
ARTICLE 3. RULE MAKING.
§29A-3-1a. Filing proposed amendments to an existing rule.
(a) Rules promulgated to amend existing rules may be filed on
a section by section basis without having to refile in the state
register all of the other sections of an existing series numbered
rule: Provided, That such filing shall list, by proper citation,
those sections, not amended, which are directly affected by those
sections amended: Provided, however, That amendments so filed When
amending an existing rule or proposing a new rule, agencies shall
file all sections of the proposed rule. Each amendment filed to an
existing rule shall be accompanied by note of explanation as to the
effect of such amendment and its relation to the existing rules.
(b) Rules promulgated to amend existing rules and filed as an
emergency rule may be filed on a section by section basis without
having to refile in the state register all of the other sections of
an existing series numbered rule: Provided, That such filing shall
list, by proper citation, those sections not amended, which are
directly affected by those sections amended.
(b) Any rule being repealed shall be filed in its entirety
with the rule series provisions stricken. A rule may not be
repealed by reference in another rule.
§29A-3-1c. Rules of the Department of Health and Human Services.
__________(a) The Secretary of the Department of Health and Human
Services as authorized by this section, other statute or
legislative rule, may publish manuals that provide policy guidance
for the implementation and administration of agency programs.
Manuals are considered agency-promulgated rules as defined pursuant
to this article.
__________(b) Notwithstanding section eight, article two of this
chapter, the Secretary of the Department of Health and Human
Services may
make manuals available to the public in an electronic
format
. U
pon the effective date of the manual or any amendment
thereto
, the secretary shall provide an electronic copy of policy
manual to the Secretary of State at no cost. Each manual will be
considered addendums to the code of state rules, and electronically
published as part of the State Register. This manual shall be
noticed in the State Register pursuant to article two of this
chapter
and subject to thirty day public notice and comment period
pursuant to section five of this article.
__________(c) The following Department of Health and Human Services
manuals are agency-promulgated rules, and subject to this section:
Bureau for Child Support Enforcement Policy Manual; Income
Maintenance Manual; West Virginia Medicaid Provider Manuals;
Medicaid State Plan Manual; and the Social Services Manual.
§29A-3-1d. Proposal of federally mandated rules.
__________(a) Notwithstanding section nine of this article, when a legislative rule or amendment to an existing legislative rule is
being proposed by an agency to adopt by reference or otherwise
comport the rule to a federal counterpart regulation for the
purposes of meeting minimum federal requirements for a state
administered program in which the state has assumed regulatory
responsibility, the agency may promulgate the rule as an agency-
promulgated rule without legislative approval upon meeting the
requirements of this section.
__________(b) To qualify for agency-promulgated rule status, the rule or
amendment to the existing rule may contain only provisions
necessary to fulfill the state's duties associated with
administering and complying with the federally delegated program,
and may not exceed minimum federal requirements, and to the extent
the rule does, it is in violation of this section and shall be
severed from the rule and be null and void.
__________(c) The agency shall fulfill all filing, hearing and notice
requirements otherwise required pursuant to this article. The
agency shall as part of rule filing, provide an explanation of the
purpose of the rule and a statement and finding specifically
detailing the reasons the rule is eligible for agency-promulgated
rule status.
__________(d) The federal regulation or statute shall be electronically
attached or otherwise electronically available and be available for
inspection at the Secretary of State's office.
__________(e) The rule is effective thirty days following close of
public comment period. Rules are to be filed with the Legislative
Rule-making and Review Committee as provided in section eleven of
this article. The Legislature may disapprove or amend an agency-
promulgated rule without limitation.
§29A-3-4. Filing of proposed agency-promulgated rules,
procedural rules and interpretive rules.
(a) When an agency proposes a an agency-promulgated rule,
procedural rule or an interpretive rule, the agency shall file in
the State Register a notice of its action, including the text of
the rule as proposed.
(b) All proposed rules filed under subsection (a) of this
section shall have a fiscal note attached itemizing the cost of
implementing the rules as they relate to this state and to persons
affected by the rules. and regulations. Such fiscal note shall
include 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. The objectives of the rules
shall be clearly and separately stated in the fiscal note by the
agency issuing the proposed rules. No agency-promulgated rule,
procedural or interpretive rule shall be void or voidable by virtue
of noncompliance with this subsection.
§29A-3-6. Filing findings and determinations for rules in State Register; evidence deemed public record.
(a) Incident to fixing a date for public comment on a proposed
rule, the agency shall promulgate the findings and determinations
required as a condition precedent thereto, and state fully and
succinctly the reasons therefor and file such findings and
determinations in the State Register. If the agency amends the
proposed rule as a result of the evidence or comment presented
pursuant to section five, such amendment shall be filed with a
description of any changes and a statement listing the reasons for
the amendment. The agency shall also provide an analysis of the
comments received and the reasons for adoption or rejection of any
suggested revisions submitted as comments to the proposed rule.
(b) The statement of reasons and a transcript of all evidence
and public comment received pursuant to notice are public records
and shall be carefully preserved by the agency and be open for
public inspection and copying for a period of not less than five
years from the date of the hearing.
§29A-3-8. Adoption of agency-promulgated rules, procedural and
interpretive rules.
A An agency-promulgated, procedural and interpretive rule,
shall be considered by the agency for adoption not later than six
months after the close of public comment and a notice of withdrawal
or adoption shall be filed in the State Register within that period. Failure to file such notice shall constitute withdrawal
and the Secretary of State shall note such failure in the State
Register immediately upon the expiration of the six- month period.
A An agency-promulgated,
procedural or interpretive rule may
be amended by the agency prior to final adoption without further
hearing or public comment. No such amendment may change the main
purpose of the rule. If the fiscal implications have changed since
the rule was proposed, a new fiscal note shall be attached to the
notice of filing. Upon adoption of the rule, (including any such
amendment,) the agency shall file the text of the adopted agency-
promulgated,
procedural or interpretive rule with its notice of
adoption in the State Register and the same shall be effective on
the date specified in the rule or thirty days after such filing,
whichever is later.
§29A-3-9a. Proposal and promulgation of provisional legislative
rules.
_____(a) Unless otherwise specified in the implementing statute,
whenever the Legislature enacts a law mandating an agency to
propose a legislative rule, and further directs the agency to
promulgate a provisional legislative rule, the agency shall within
sixty days of the effective date of the statute
, file the rule for
public notice as provided in section five of this article and also
submit the rule as a legislative rule as provided pursuant to the
requirements of this article
.
The provisional legislative rule shall be
filed by the agency as provided in section six of this
article
no later than thirty days following the close of public
comment. The
rule is
effective upon final filing by the agency
.
The provisional legislative rule shall remain effective for fifteen
months or until the legislative rule is acted upon by enactment of
the Legislature pursuant to section thirteen of this article,
whichever occurs first. Any amendment by the agency to the
provisional legislative rule is subject to the same notice and
effective date requirements. Amendments to the provisional
legislative rule do not alter the initial fifteen month effective
period for the provisional legislative rule. If
the provisional
legislative rule expires due to the failure of legislative
authorization pursuant to section thirteen of this article, the
agency may not refile the same or similar rule as an emergency rule
or a provisional legislative rule.
_____(b) A provisional legislative rule may be disapproved by the
Secretary of State, acting under the authority provided in section
fifteen-a of this article, or the Attorney General, acting under
the authority provided in section fifteen-b of this article.
§29A-3-15. Emergency legislative rules; procedure for
promulgation; definition.
(a) Any age
ncy with authority to propose legislative rules
may, without hearing, find that an emergency exists requiring that
emergency rules be promulgated and promulgate the same in accordance with this section. Such emergency rules, together with
a statement of the facts and circumstances constituting the
emergency, and a listing of state agencies, professions, businesses
and other identifiable interest groups affected by the proposed
emergency rule shall be filed with the Secretary of State, and a
notice of such filing shall be published in the State Register:
Provided, That failure to list all known state agencies,
professions, businesses and other identifiable interest groups
may
not be the basis for disapproval of the rule or subject the rule to
judicial review. The agency shall have a thirty day public comment
period for a proposed emergency rule, beginning the day of filing.
Upon closure of the public hearing, the Such emergency rules rule
shall become effective upon the approval of the Secretary of State
in accordance with section fifteen-a of this article or upon the
approval of the Attorney General in accordance with section
fifteen-b or upon the forty-second forty-fifth day following such
filing, whichever occurs first: Provided, however, That at upon a
finding
that the emergent circumstances existing pursuant to
subsection (f) of this section require immediate authorization of
the emergency rule, the Secretary of State, acting under the
authority provided in section fifteen-a of this article, or the
Attorney General
, acting under the authority provided in section
fifteen-b of this article
,
may immediately approve the emergency
rule for the remainder of the forty-five day comment and review period, at which time that approval of the emergency rule will
expire. Any time following the close of public hearing, the final
determination on the existence of an emergency may be made
by the
Secretary of State, acting under the authority provided in section
fifteen-a of this article, or the Attorney General, acting under
the authority provided in section fifteen-b of this article
. Such
Emergency rules may adopt, amend or repeal any legislative rule,
but the circumstances constituting the emergency requiring such
adoption, amendment or repeal shall be stated with particularity
and be subject to de novo review by any court having original
jurisdiction of an action challenging their validity. Fourteen Two
paper copies and an electronic version of the rules and of the
required statement shall be filed immediately with the Secretary of
State and one paper copy and an electronic copy shall be filed
immediately with the Legislative Rule-Making Review Committee.
An emergency rule shall be effective for not more than fifteen
months and shall expire earlier if any of the following occurs:
(1) The Secretary of State, acting under the authority
provided for in section fifteen-a of this article, or the Attorney
General, acting under the authority provided in section fifteen-b
of this article, disapproves the emergency rule because: (A) The
emergency rule or an amendment to the emergency rule exceeds the
scope of the law authorizing or directing the promulgation thereof;
(B) an emergency does not exist justifying the promulgation of the emergency rule; or (C) the emergency rule was not promulgated in
compliance with the provisions of this section. An emergency rule
may not be disapproved pursuant to the authority granted by
paragraphs (A) or (B) of this subdivision on the basis that the
Secretary of State or the Attorney General disagrees with the
underlying public policy established by the Legislature in enacting
the supporting legislation. An emergency rule which would otherwise
be approved as being necessary to comply with a time limitation
established by this code or by a federal statute or regulation may
not be disapproved pursuant to the authority granted by paragraphs
(A) or (B) of this subdivision on the basis that the agency has
failed to file the emergency rule prior to the date fixed by such
time limitation. When the supporting statute specifically directs
an agency to promulgate an emergency rule, or specifically finds
that an emergency exists and directs the promulgation of an
emergency rule, the emergency rule may not be disapproved pursuant
to the authority granted by paragraph (B) of this subdivision. An
emergency rule may not be disapproved on the basis that the
Legislature has not specifically directed an agency to promulgate
the emergency rule, or has not specifically found that an emergency
exists and directed the promulgation of an emergency rule.
(2) The agency has not previously filed and fails to file a
notice of public hearing on the proposed rule within thirty days of
the date the proposed rule was filed as an emergency rule; in which case the emergency rule expires on the thirty-first day.
(3) The agency has not previously filed and fails to file the
proposed rule with the Legislative Rule-Making Review Committee
within ninety days of the date the proposed rule was filed as an
emergency rule; in which case the emergency rule expires on the
ninety-first day.
(4) The Legislature has authorized or directed promulgation of
an authorized legislative rule dealing with substantially the same
subject matter since such emergency rule was first promulgated, and
in which case the emergency rule expires on the date the authorized
rule is made effective.
(5) The Legislature has, by law, disapproved of such emergency
rule; in which case the emergency rule expires on the date the law
becomes effective.
(b) Any amendment to an emergency rule made by the agency
shall be filed in the State Register and does not constitute a new
emergency rule for the purpose of acquiring additional time or
avoiding the expiration dates in subdivision (2), (3), (4) or (5),
subsection (a) of this section: Provided, That such emergency
amendment shall become effective upon the approval of the Secretary
of State in accordance with section fifteen-a of this article or
upon approval of the Attorney General in accordance with section
fifteen-b of this article or upon the forty-second forty-fifth day
following such filing, whichever occurs first.
(c) Once an emergency rule expires due to the conclusion of
fifteen months or due to the effect of subdivision (2), (3), (4) or
(5), subsection (a) of this section, the agency may not refile the
same or similar rule as an emergency rule.
(d) The provision of this section shall This section may not
be used to avoid or evade any provision of this article or any
other provisions of this code, including any provisions for
legislative review and approval of proposed rules. Any emergency
rule promulgated for any such purpose may be contested in a
judicial proceeding before a court of competent jurisdiction.
(e) The Legislative Rule-Making Review Committee may review
any emergency rule to determine: (1) Whether the emergency rule or
an amendment to the emergency rule exceeds the scope of the law
authorizing or directing the promulgation thereof; (2) whether
there exists an emergency justifying the promulgation of such
emergency rule; and (3) whether the emergency rule was promulgated
in compliance with the requirements and prohibitions contained in
this section. The committee may recommend to the agency, the
Legislature, or the Secretary of State such action as it may deem
consider proper.
(f) For the purposes of this section, an emergency exists when
the promulgation of an emergency rule is necessary: (1) For the
immediate preservation of the public peace, health, safety or
welfare; (2) to comply with a time limitation established by this code or by a federal statute or regulation; or (3) to prevent
substantial harm to the public interest.
§29A-3-15a. Disapproval of emergency and provisional legislative
rules by the Secretary of State; judicial review.
(a) Upon the filing of an emergency rule or filing of an
amendment to an emergency rule by an agency, under the provisions
of section fifteen of this article, by any agency, except for the
Secretary of State, the Secretary of State shall review such rule
or such amendment and, within forty-two forty-five
days of such
filing, shall issue a decision as to whether or not such emergency
rule or such amendment to an emergency rule should be disapproved.
An emergency rule filed by the Secretary of State shall be reviewed
by the Attorney General as provided in section fifteen-b of this
article.
(b) The Secretary of State shall disapprove an emergency rule
or an amendment to an emergency rule if he or she determines:
(1) That the emergency rule or an amendment to the emergency
rule exceeds the scope of the law authorizing or directing the
promulgation thereof; or
(2) That an emergency does not exist justifying the
promulgation of the emergency rule or the filing of an amendment to
the emergency rule; or
(3) That the emergency rule or an amendment to the emergency
rule was not promulgated in compliance with the provisions of section fifteen of this article.
(c) If the Secretary of State determines, based upon the
contents of the rule or the supporting information filed by the
agency, that the emergency rule should be disapproved, he or she
may disapprove such rule without further investigation, notice or
hearing. If, however, the Secretary of State concludes that the
information submitted by the agency is insufficient to allow a
proper determination to be made as to whether the emergency rule
should be disapproved, he or she
may make further investigation,
including, but not limited to, requiring the agency or other
interested parties to submit additional information or comment or
fixing a date, time and place for the taking of evidence on the
issues involved in making a determination under the provisions of
this section.
(d) If the Secretary of State determines, based upon the
contents of the amendment to an emergency rule or the supporting
information filed by the agency, that the amendment to the
emergency rule should be disapproved, he or she may disapprove such
amendment without further investigation, notice or hearing. If,
however, the Secretary of State concludes that the information
submitted by the agency is insufficient to allow a proper
determination to be made as to whether the amendment should be
disapproved, he or she may make further investigation, including,
but not limited to, requiring the agency or other interested parties to submit additional information or comment or fixing a
date, time and place for the taking of evidence on the issues
involved in making a determination under the provisions of this
section.
____________________________________________(e) The Secretary of State shall disapprove a provisional
legislative rule upon a finding that the rule was unlawfully
promulgated or that the provisional legislative rule or an
amendment thereto exceeds the scope of the law authorizing the
rule's promulgation
.
____________________________________________(e) (f) The determination of the Secretary of State shall be
reviewable by the Supreme Court of Appeals under its original
jurisdiction, based upon a petition for a writ of mandamus,
prohibition or certiorari, as appropriate. Such proceeding may be
instituted by:
(1) The agency which promulgated the emergency rule;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the
emergency rule by the Secretary of State.
§29A-3-15b. Disapproval of emergency rules and provisional
legislative rules by the Attorney General;
judicial review.
(a) Upon the filing of an emergency rule or filing of an
amendment to an emergency rule by the Secretary of State under the provisions of section fifteen of this article, the Attorney General
shall review such rule or such amendment and, within forty-two
forty-five
days of such filing, shall issue a decision as to
whether or not such emergency rule or such amendment to an
emergency rule should be disapproved.
(b) The Attorney General shall disapprove an emergency rule or
an amendment to an emergency rule if he or she determines:
(1) That the emergency rule or an amendment to the emergency
rule exceeds the scope of the law authorizing or directing the
promulgation thereof; or
(2) That an emergency does not exist justifying the
promulgation of the emergency rule or the filing of an amendment to
the emergency rule; or
(3) That the emergency rule or an amendment to the emergency
rule was not promulgated in compliance with the provisions of
section fifteen of this article.
(c) If the Attorney General determines, based upon the
contents of the rule or the supporting information filed by the
Secretary of State, that the emergency rule should be disapproved,
he or she may disapprove such rule without further investigation,
notice or hearing. If, however, the Attorney General concludes
that the information submitted by the Secretary of State is
insufficient to allow a proper determination to be made as to
whether the emergency rule should be disapproved, he or she
may make further investigation, including, but not limited to,
requiring the Secretary of State or other interested parties to
submit additional information or comment or fixing a date, time and
place for the taking of evidence on the issues involved in making
a determination under the provisions of this section.
(d) If the Attorney General determines, based upon the
contents of the amendment to an emergency rule or the supporting
information filed by the agency, that the amendment to the
emergency rule should be disapproved, he or she
may disapprove such
amendment without further investigation, notice or hearing. If,
however, the Attorney General concludes that the information
submitted by the agency is insufficient to allow a proper
determination to be made as to whether the amendment should be
disapproved, he or she
may make further investigation, including,
but not limited to, requiring the agency or other interested
parties to submit additional information or comment or fixing a
date, time and place for the taking of evidence on the issues
involved in making a determination under the provisions of this
section.
(e) The Attorney General shall disapprove a provisional
legislative rule upon a finding that the rule was unlawfully
promulgated or that the provisional legislative rule or an
amendment thereto exceeds the scope of the law authorizing the
rule's promulgation.
____________________________________________(e) (f)
The determination of the Attorney General shall be
reviewable by the Supreme Court of Appeals under its original
jurisdiction, based upon a petition for a writ of mandamus,
prohibition or certiorari, as appropriate. Such proceeding may be
instituted by:
(1) The Secretary of State;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the
emergency rule by the Attorney General.
NOTE: The purpose of this bill is to
review State
Administrative Agency rule-making. The bill defines terms. The bill
alters designation of types of rules that have not been approved by
the Legislature and that are exempt from legislative review. The
bill establishes deadline for action by agency action for certain
proposed rules before the rule is deemed withdrawn. The bill
requires agency response to public comments. The bill requires all
sections of a rule be filed when agency proposing rule amendment.
The bill provides for methodology for repeal of rules. The bill
establishes new publishing and rule-making requirements for certain
Department of Health and Human Services policy manuals. The bill
provides new process for review and approval of legislative rules
incorporating federal mandated requirements. The bill revises
emergency rule-making process to allow for public comment, more
information, and extended comment period. The bill provides new
process for provisional legislative rules. The bill alters certain
agency filing requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§29A-3-1c, §29A-3-1d and §29A
-3-9a are new; therefore, they
have been completely underscored.