WEST virginia legislature
2018 regular session
Committee Substitute
for
Senate Bill 522
By Senator Maynard
[Originating in the Committee on the Judiciary; Reported on February 19, 2018]
A BILL to amend and reenact §29A-1-3b of the Code of West Virginia, 1931, as amended; and to amend and reenact §29A-3-8, §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all relating generally to the Administrative Procedures Act; providing that rules become void if statutory authority is repealed; providing that legislative exempt, procedural, or interpretive rules may be repealed by an agency upon notification to Secretary of State; relating to the deadline for filing agency-approved rules; providing a procedure for the agencies to affirmatively seek renewal of a legislative rule; providing that legislative rules up for termination are not subject to a public comment period; and providing for review by the Legislative Rule-Making Review Committee.
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 rule-making authority, any rule adopted or promulgated by the agency pursuant to that statute is void.
ARTICLE 3. RULEMAKING.
§29A-3-8. Adoption of legislative exempt, procedural, and interpretive rules.
(a) 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.
(b) 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.
(c) 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 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 §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 the 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 cochairmen of the committee may also submit such the
rules at the direction of the committee at any time before or during a special
session in which consideration thereof of the rules 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 2020, and every four years 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 President of the
Senate and by the Speaker of the House of Delegates 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 adopted by the Legislature. The
clerk of the house originating such the act shall forthwith
immediately file a copy of any bill of authorization enacted with the
Secretary of State and with the agency proposing such the 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
the session for which authority to promulgate was not by law provided
during such the 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 in the amendment or substitution
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 §5F-1-2 of this code, the separate bills of authorization for the
proposed rules of that agency may, by amendment or substitution, be combined. The
foregoing These 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 Rule-Making Review Committee
during such the session, no an agency may not
thereafter issue any rule or directive or take other action to implement such
the rule or part thereof of the rule unless and until
otherwise authorized to do so, except that the agency may resubmit the same or
similar proposed rule to the Legislative Rule-Making 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 the
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 the rule during such
the session is a lawful order of business.
(e) As a part of any act that amends chapter 64 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 §29A-3-15 of this code.
(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 legislative rule is promulgated, the enabling
statute’s provision shall controls: Provided further, That this
subsection shall not apply to legislative rules promulgated by the
Department of Environmental Protection or emergency rules promulgated pursuant
to §29A-3-15
of this code.
(c) The existence of a
sunset provision terminating a legislative rule shall not preclude the
repeal of such the legislative rule by the Legislature prior to the
expiration of the sunset provision its termination.
(d) As part of its rule
review under this article, the Legislative Rule-Making Review Committee is
authorized to may establish a procedure for timely review of rules
a legislative rule prior to the expiration its termination
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 terminating legislative 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 Rule-Making
Review Committee at least 18 months prior to every legislative rule’s
expiration termination date. The promulgating agency has 60
days from receipt of the notice to file the legislative rule with the Secretary
of State and the Legislative Rule-Making Review Committee affirmatively seeking
renewal of the legislative rule: Provided, That the legislative rule that
is scheduled to sunset may not be amended or changed except for a new sunset
date and is not subject to the public comment period requirements contained in
§29A-3-5 of this code. The
Legislative Rule-Making Review Committee, as part of its rule review under this article, may begin reviewing a legislative rule upon its filing.