WEST virginia legislature

2018 regular session

Introduced

Senate Bill 522

By Senator Maynard

[Introduced February 12, 2018; Referred
to the Committee on the Judiciary]

A BILL to amend and reenact §29A-1-3b of the Code of West Virginia, 1931, as amended; and to amend and reenact §29A-3-5, §29A-3-8, §29A-3-12, and §29A-3-19 of said code, all relating generally to the Administrative Procedures Act; providing that rules become void if statutory authority is repealed; requiring agencies and boards to notify licensees of rule changes that include fee increases; providing that legislative exempt, procedural, or interpretive rules may be repealed by an agency upon notification to Secretary of State; relating to the deadline for filing agency-approved rules; providing that certain expiring final filed rules are not subject to comment period; and authorizing the Legislative Rule- Making Review Committee to begin reviewing final filed rules with sunset provisions on May 1, 2019.

Be it enacted by the Legislature of West Virginia:

ARTICLE 1. DEFINITIONS AND APPLICATION OF CHAPTER.

§29A-1-3b. Void rules.

(a) If an agency ceases to exist, through the operation of law or by statute, any rules adopted or promulgated by the agency are void on the date the agency ceases to exist, unless the agency's rule-making power and its rules have been transferred to another agency

(b) Upon repeal or elimination of a statute that provides rulemaking authority, any rule adopted or promulgated by the agency pursuant to that statute is void.

ARTICLE 3. RULEMAKING.

§29A-3-5. Notice of proposed rulemaking.

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 may hold a public hearing or schedule a public comment period for the receipt of written statements and documents, or both.

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 Rulemaking 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.

Prior to the submission of a proposed rule to the Secretary of State, any agency or board proposing a rule that includes a new or increased fee to its licensees, shall notify each licensee, in writing.

Prior to the submission of any agency-approved proposed rule to the Secretary of State, the agency shall respond to public comments received during the rulemaking process and explain the reasoning for comments being incorporated or not incorporated into the rule. Failure to adequately respond to public comments may be grounds for rejection of the proposed rule.

§29A-3-8. Adoption of legislative exempt, procedural and interpretive rules.

An agency shall consider a legislative exempt, procedural and interpretive rule for adoption not later than six months after the close of public comment and file a notice of withdrawal or adoption in the State Register within that period. An agency's failure to file the notice constitutes withdrawal and the Secretary of State shall note the failure in the State Register immediately upon the expiration of the six-month period.

A legislative exempt, procedural or interpretive rule may be amended by the agency prior to final adoption without further hearing or public comment. The amendment may not change the main purpose of the rule. If the fiscal implications have changed since the rule was proposed, the agency shall attach a new fiscal note to the notice of filing. Upon adoption of the rule, including any amendment, the agency shall file the text of the adopted legislative exempt, procedural or interpretive rule with its notice of adoption in the State Register and the rule is effective on the date specified in the rule or 30 days after the filing, whichever is later or as specified in this code.

An agency may repeal a legislative exempt, procedural, or interpretive rule by filing a notice of repeal with the Secretary of State.

§29A-3-12. Submission of legislative rules to Legislature.

(a) No later than 40 days before the 60th day of each regular session of the Legislature, the cochairmen of the legislative Rulemaking 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 §29A-3-11 of this code 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 §29A-3-11 of this code. 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. Beginning in 2019, the committee may withhold from its report any proposed legislative rule which was submitted to the committee fewer than 225 days before the end of the regular session after the last Friday in July and beginning in 2021, and every inaugural year thereafter, by the last Friday in August. 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 §5F-1-2 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 of said chapter, 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 during its regular session disapproves all or part of any legislative rule which was submitted to it by the Legislative Rulemaking 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, except that the agency may resubmit the same or similar proposed rule to the Legislative Rulemaking Review Committee in accordance with the provisions of §29A-3-11 of this code.

(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 Rulemaking Review Committee or not, if legislative action on such rule during such session is a lawful order of business.

(e) As a part of any act that amends chapter sixty-four of this code, authorizing the promulgation of a proposed legislative rule or rules, the Legislature may also provide, by general language or with specificity, for the disapproval of rules not approved or acted upon by the Legislature.

(f) 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.

(g) 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 1984, and each fourth year thereafter without regard to the second Wednesday of January of such years.

§29A-3-19. Sunset provision in rules.

(a) Any new legislative rule promulgated pursuant to this article after April 1, 2016, shall include a sunset provision terminating the rule after five years: Provided, That the rule may be renewed for additional terms of five years or less by the Legislature pursuant to the rule-making procedures and authority in this article: Provided, however, That if a different sunset or termination provision exists in the statute under which the proposed rule is promulgated, the enabling statute’s provision shall control: Provided further, That this subsection shall not apply to rules promulgated by the Department of Environmental Protection or emergency rules promulgated pursuant to section fifteen of this article.

(b) Any legislative rule existing as of April 1, 2016, that is thereafter modified pursuant to this article shall include a sunset provision as part of the modification setting forth a termination date for the rule: Provided, That the rule may be renewed for additional terms of years by the Legislature pursuant to the rule-making procedures and authority in this article: Provided, however, That if a different sunset or termination provision exists in the statute under which the proposed rule is promulgated, the enabling statute’s provision shall control: Provided further, That this subsection shall not apply to rules promulgated by the Department of Environmental Protection or emergency rules promulgated pursuant to §29-A-3-15 of this code.

(c) The existence of a sunset provision terminating a rule shall not preclude the repeal of such rule by the Legislature prior to the expiration of the sunset provision.

(d) As part of its rule review under this article, the Legislative Rulemaking Review Committee is authorized to establish a procedure for timely review of rules prior to the expiration for those agencies that have affirmatively sought renewal prior to expiration.  The procedure may include a requirement that the agency show cause as to why the expiring rule is required and necessary to be continued for another term of years.

(e) The Secretary of State shall provide notice to the promulgating agency and the Legislative Rulemaking Review Committee at least 18 months prior to every rule’s expiration date.

(f) Final filed rules that are set to sunset, and have not been amended or changed, are not subject to the comment period requirements contained in §29A-3-5 of this code. Beginning May 1, 2019, the Legislative Rulemaking Review Committee, as part of its rule review under this article, is authorized to begin reviewing final filed rules.

NOTE: The purpose of this bill is to provide that rules become void if statutory authority repealed; require agencies and boards to notify licensees of rule changes that include fee increases; providing that legislative exempt, procedural or interpretive rules may be repealed by an agency upon notification to Secretary of State; provide that certain expiring final filed rules are not subject to comment period; and authorize the Legislative Rulemaking Review Committee to begin reviewing final filed rules with sunset provisions on May 1, 2019.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.