Enrolled Committee Substitute
House Bill 2616 History
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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2616
(By Delegates Brown, Miley, Burdiss,
Talbott, Overington and Pino)
[Passed March 8, 2007; in effect from passage.]
AN ACT
to amend and reenact §64-1-1 of the Code of West Virginia,
1931, as amended; and to amend and reenact article 2, chapter
64 of said code, all relating generally to the promulgation of
administrative rules by the Department of Administration and
the procedures relating thereto; legislative mandate or
authorization for the promulgation of certain legislative
rules by various executive or administrative agencies of the
Department of Administration; authorizing certain of the
agencies to promulgate certain legislative rules in the form
that the rules were filed in the State Register; authorizing
certain of the agencies to promulgate certain legislative
rules with various modifications presented to and recommended
by the Legislative Rule-Making Review Committee; authorizing
certain of the agencies to promulgate certain legislative
rules as amended by the Legislature; authorizing certain of
the agencies to promulgate certain legislative rules with
various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the
Legislature; and disapproving certain rules; authorizing the
Department of Administration to promulgate a legislative rule
relating to purchasing; authorizing the Department of
Administration to promulgate a legislative rule relating to
cannibalization of state property; authorizing the Department
of Administration to promulgate a legislative rule relating to
waste disposal of state property; authorizing the Department
of Administration to promulgate a legislative rule relating to
the accountability of state funds and grants; authorizing the
Consolidated Public Retirement Board to promulgate a
legislative rule relating to the deputy sheriff retirement
system; authorizing the Consolidated Public Retirement Board
to promulgate a legislative rule relating to the teachers
defined contribution system; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule
relating to teachers retirement system; authorizing the
Consolidated Public Retirement Board to promulgate a
legislative rule relating to the public employees retirement
system; authorizing the Consolidated Public Retirement Board
to promulgate a legislative rule relating to refund,
reinstatement and loan interest factors; authorizing the
Division of Personnel to promulgate a legislative rule
relating to the administrative rule of the Division of
Personnel; authorizing the Division of Personnel to promulgate
a legislative rule relating to workers' compensation temporary total disability; authorizing the Division of Personnel to
promulgate a legislative rule relating to interdepartmental
transfer of state employees; and authorizing the Board of Risk
& Insurance Management to promulgate a legislative rule
relating to mine subsidence insurance.
Be it enacted by the Legislature of West Virginia:
That §64-1-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that article 2, chapter 64 of said
code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.
§64-1-1. Legislative authorization.
Under the provisions of article three, chapter twenty-nine-a
of the Code of West Virginia, the Legislature expressly authorizes
the promulgation of the rules described in articles two through
eleven, inclusive, of this chapter, subject only to the limitations
set forth with respect to each such rule in the section or sections
of this chapter authorizing its promulgation. Legislative rules
promulgated pursuant to the provisions of articles one through
eleven, inclusive, of this chapter in effect at the effective date
of this section shall continue in full force and effect until
reauthorized in this chapter by legislative enactment or until
amended by emergency rule pursuant to the provisions of article
three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO
PROMULGATE LEGISLATIVE RULES.
§64-2-1. Department of Administration.
(a) The legislative rule filed in the State Register on the
twenty-eighth day of July, two thousand six, authorized under the
authority of section four, article three, chapter five-a of this
code, modified by the Department of Administration to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the eleventh day of January, two
thousand seven, relating to the Department of Administration
(purchasing, 148 CSR 1), is authorized with the following
amendments:
On pages two and three, by redesignating subdivisions 4.(a)
through 4.(s) as subdivisions 4.1. through 4.19;
On page two, subdivision 4.(a), line three, after the words
"commodities or services" by striking out the remainder of the
subsection and inserting in lieu thereof the following: "that are
not possible to submit for competitive bid. The Director shall
approve the list before the beginning of each fiscal year and shall
make the list available for public review. Spending units may
purchase the commodities and services on the list directly from the
vendor and are not required to have contracts for purchase of those
items approved by the Purchasing Division. A spending unit's
request to add commodities and services to the list must be
accompanied by written justification and an explanation of why
competitive bids are not possible. Nothing in this section
supercedes or replaces the Attorney General's authority to approve
contracts as to form.";
On page three, subdivision 4.(p), after the words "relevant
training" by adding the words "for agency personnel";
On page three, subdivision 4.(q), by striking out the words
"and other purchasing card vendors" and inserting in lieu thereof
the word "or";
On page three, by striking out subdivision 4.(r) in its
entirety and renumbering the remaining subsection accordingly;
On page three, subdivision 4.(s) by striking out the words
"twenty five thousand dollar ($25,000)" and inserting in lieu
thereof "$25,000";
On page three, subdivision 4.(s) by striking out the word
"include" and inserting in lieu thereof the words "may require";
On page three, subdivision 5.1.(c), by striking out "Section
5.3(j)" and inserting in lieu thereof "subsection 5.2.";
On page four, by redesignating subdivision 5.1.2. as
subsection 5.2.;
On page four, subdivision 6.1.1., by striking out the words
"and other purchasing card vendors" and inserting in lieu thereof
the word "or";
On page four, subdivision 6.1.3., by striking out the words
"Such vendors shall pay the fee in 6.1.4.";
On page four, subdivision 6.1.4., by striking out the words
"and other purchasing card vendors" and inserting in lieu thereof
the word "or";
On page five, subdivision 6.1.7., line five, by striking out
the words "any other State agencies of political subdivision. Furthermore, the" and inserting in lieu thereof the words "other
state agencies or political subdivisions. The";
On page five, subdivision 6.1.7., lines six and seven, by
striking out the words "to enable the Director or spending unit"
and inserting in lieu thereof the word "necessary";
On page five, subdivision 6.2.2., line seven, by striking out
the words "shall not accept as the bidder's submission or response"
and inserting in lieu thereof the words "may not accept";
On page five, subdivision 6.2.2., line seven, by striking out
the words "received by" and inserting in lieu thereof the words
"submitted to";
On page five, subdivision 6.2.4., by striking out the words
"Any vendor submitting bids via facsimile shall be aware that bids
sent in such manner" and inserting in lieu thereof the words "Bids
submitted via facsimile";
On page five, subdivision 6.2.4., after the words
"completeness of" by striking out the word "bid" and inserting in
lieu thereof the word "bids";
On page six, subdivision 6.2.5., line three, by striking out
the word "leave" and inserting in lieu thereof the words "be
removed from";
On page six, subdivision 6.3.1., line one, by striking out the
words "the delivering of" and inserting in lieu thereof the word
"delivering";
On page six, subdivision 6.3.1., line five, by striking out
the words "The bids" and inserting in lieu thereof the word "Bids";
On page eight, subdivision 6.5.1., after the words "spending
units." by striking out the remainder of the subdivision and
inserting in lieu thereof the following: "No person may write or
attempt to influence the drafter of specifications to limit
competition or favor or disfavor a particular vendor.";
On page eight, subdivision 6.5.2., by striking out the words
"These standard" and inserting in lieu thereof the word "Standard";
On page nine, subdivision 6.5.2., after the words "the
Director determines there are" by striking out the remainder of the
subdivision and inserting in lieu thereof the following:
"applicable nationally accepted standards. Use of standard
specifications is mandatory unless an exemption is granted by the
Director.";
On page nine, subsection 6.6., by striking out "6.6.1.";
On page nine, subsection 6.6., by striking out the words "no
conflict of interest," and inserting in lieu thereof the words
"that no conflict of interest exists,";
On page nine, subsection 6.6., lines four and five, by
striking out the word "shall" and inserting in lieu thereof the
word "may";
On page nine, subsection 6.6., line seven, by striking out the
word "vendors" and inserting in lieu thereof the word "vendor";
On page nine, subdivision 7.1.2., line one, by striking out
the word "should" and inserting in lieu thereof the word "may";
On page nine, subsection 7.2., line one, after the words "or
less" by inserting the words "per transaction";
On page nine, subsection 7.2., line four, by striking out the
words "these records of the" and inserting in lieu thereof the
words "records of these";
On page ten, subsection 7.4., line four, by striking out the
word "shall" and inserting in lieu thereof the word "is";
On page eleven, subdivision 7.5.4., after the words "formal
bidding" by striking out the word "or,";
On page eleven, subdivision 7.5.5., by striking out the words
"as described" and inserting in lieu thereof the words "in the same
manner described";
On page eleven, subdivision 7.5.6., by striking the words
"used equipment to be purchased directly" and inserting in lieu
thereof the words "the purchase of used equipment directly from the
vendor";
On page eleven, subsection 7.6., by striking out the word
"should" and inserting in lieu thereof the word "shall";
On page twelve, subdivision 7.7.2., after the word "practical"
by striking out the words "RFQs should" and inserting in lieu
thereof the words Requests for Quotations (RFQs)shall";
On page twelve, subdivision 7.7.3., line four, by striking out
the word "shall" and inserting in lieu thereof the word "may";
On page twelve, paragraph 7.9.1.(a), by striking out the words
"agencies of the federal government, agencies of other states,
other public bodies or other state agencies" and inserting in lieu
thereof the words "other public agencies and entities";
On page twelve, paragraph 7.9.1.(a), after the word "comparison" by striking out the word "shall" and inserting in lieu
thereof the word "may";
On page twelve, paragraph 7.9.1.(a), by striking out the words
"Director believes the state's" and inserting in lieu thereof the
word "State's";
On page twelve, paragraph 7.9.1.(b), after the word
"difference" by adding the words "in price";
On pages twelve and thirteen, paragraph 7.9.1.(b), by striking
out the words "agencies of the federal government, agencies of
other states, other public bodies or other state agencies" and
inserting in lieu thereof the words "other public agencies and
entities";
On page thirteen, subdivision 7.9.2., by striking out the
words "evidence and documentation as required by the Director" and
inserting in lieu thereof the words "necessary evidence and
documentation";
On page thirteen, subdivision 7.9.2., by striking out the
words "only approve those requests with submitted" and inserting in
lieu thereof the words "approve only those requests submitted
with";
On page thirteen, subdivision 7.9.2., by striking out the
words "by the Director";
On page thirteen, subdivision 7.10.1., after the words "best
interest of the State" by striking out
the remainder of the
subdivision and inserting in lieu thereof the following:
"In arriving at a determination, the Director will consider the following factors, insofar as they are applicable:
(1) The quality, availability, and reliability of the
supplies, materials, equipment, or service and their adaptability
to the particular use required;
(2) The ability, capacity, and skill of the bidder;
(3) The sufficiency of the bidder's financial resources;
(4) The bidder's ability to provide maintenance, repair parts,
and service;
(5) The compatibility with existing equipment;
(6) The need for flexibility in evaluating new products on a
large scale before becoming contractually committed for all use;
and
(7) Any other relevant factors.";
On page thirteen, subdivision 7.11.1., after the words
"Purchasing Division." by striking out the remainder of the
subdivision and inserting in lieu thereof the following: "The
maximum budgeted amount may not be disclosed to any vendor prior to
the bid opening and may not be changed after the bid opening.";
On page thirteen, subdivision 7.11.2., line three, by
capitalizing the word "state";
On page fourteen, subsection 7.13., by striking out "7.13.1.";
On page fourteen, subdivision 7.13.1, at the beginning of the
first sentence, by striking out the word "The" and inserting in
lieu thereof the words "For contracts for commodities and services
in the amount of $1 million or less, the";
On page fourteen, paragraphs 7.13.1.(a), by capitalizing the word "state";
On page fourteen, after subdivision 7.13.1, by inserting a new
subdivision, designated subdivision 7.13.2, to read as follows:
"7.13.2. For contracts for commodities and services in an
amount exceeding $1 million, the following contract management
procedures apply:
a. Post Award Conferences.
The agency administrator responsible for administering the
contract shall hold a post award conference with the contractor to
ensure a clear and mutual understanding of all contract terms and
conditions, and the respective responsibilities of all parties.
The agenda for the conference shall include, at a minimum, the
introduction of all participants and identification of agency and
contractor key personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of
what the agency is buying;
(2) The contract terms and conditions, particularly any
special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract
monitoring and progress measurement;
(5) The rights and obligations of both parties and the
contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on
its performance both during and at the conclusion of the contract
and that such information may be considered in the selection of future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with
particular attention to whether payment will be made according to
milestones achieved by the contractor;
(9) An explanation of the limits of authority of the personnel
of both the agency and the contractor.
b. Monitoring.
The agency shall develop a comprehensive and objective
monitoring checklist which:
(1) Measures outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance.
c. Reports.
The agency shall make the following reports to the Director,
on a schedule established by the Director, but not less frequently
than once each year:
(1) Status Reports. Status reports describe the progress of
the work; track the organizational structure of the statement of
work in terms of phases, segments, deliverables and products; and
describe what work is complete and what work is pending and
contrast that status against the contract schedule. If there are
any unresolved issues that the agency is contractually obligated to
resolve, those issues should be included in the status report and
a resolution should be requested.
(2) Activity Reports. Activity reports describe all activity on the project, regardless of whether substantial progress has been
made toward completion of the project. If payment is based on the
number of completed transactions, these activities must be
specifically set out in the report.";
On page fourteen, after subsection 7.13, by inserting the
following:
"7.14. Inspection.
7.14.1. The agency shall inspect all materials, supplies, and
equipment upon delivery to insure compliance with the contract
requirements and specifications.
7.14.2. The agency shall report any discrepancies to the
Director immediately.
7.14.3. If unlisted shortages are discovered, the vendor and
the Director must be notified immediately.
7.14.4. A contractor may be required to pick up any
merchandise not conforming to specifications and replace the
merchandise immediately.
7.15. Substitutions.
Substitution of items called for in a contract is not
permitted without the Director's prior approval. The Director will
not approve substitution of items unless the substituted items are
of equal quality and are offered at the same or lower price.
7.16. Cancellations.
7.16.1. The director may cancel a purchase or contract under
any one of the following conditions including, but not limited to:
(a) The vendor agrees to the cancellation;
(b) The vendor has obtained the contract by fraud, collusion,
conspiracy, or in conflict with any statutory or constitutional
provision of the state of West Virginia;
(c) Failure to conform to contract requirements or standard
commercial practices;
(d) The existence of an organizational conflict of interest is
identified; or
(e) Funds are not appropriated or an appropriation is
discontinued by the legislature for the acquisition.
7.16.2. Notwithstanding other provisions of this subdivision,
the Director may cancel a purchase or contract for any reason or
for no reason, upon 30 days' notice to the vendor.
7.17. Damages.
7.17.1. A vendor who fails to perform as required under a
contract shall be liable for actual damages and costs incurred by
the state.
7.17.2. If any merchandise delivered under a contract has been
used or consumed by an agency and on testing is found not to comply
with specifications, no payment may be approved by the Director for
the merchandise until the amount of actual damages incurred has
been determined.
7.17.3. The Director shall seek to collect damages by
following the procedures established by the Office of the Attorney
General for the collection of delinquent obligations."; and
On page 17, subsection 11.1., by capitalizing the word
"internet";
And,
On page 17, after subsection 11.1, by striking out subsections
11.2, 11.3, 11.4 and 11.5 in their entirety and inserting in lieu
thereof the following:
"11.2. The state spending unit for surplus property may
contract with one or more nationally recognized commercial Internet
auction sites to coordinate sales of surplus property, pursuant to
the provisions of §5A-3-45 of the West Virginia Code and this rule.
11.3. To ensure that organizations eligible under Federal
Property Management Regulations (41 CFR Chapter 101) have priority
in obtaining surplus property, all surplus property will be listed
on the West Virginia State Agency for Surplus Property website for
at least five (5) working days prior to being made available on an
Internet auction site."
.
(b) The legislative rule filed in the State Register on the
eleventh day of July, two thousand six, authorized under the
authority of section forty-four, article three, chapter five-a of
this code, modified by the Department of Administration to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixteenth day of August, two
thousand six, relating to the Department of Administration
(cannibalization of state property, 148 CSR 16), is authorized,
with the following amendments:
On page one, by striking out subsection 1.1. in its entirety
and inserting in lieu thereof the following:
"1.1. This rule explains and clarifies operative procedures for the disposal of state surplus property by cannibalization for
use of component parts."
On page one, section two, lines one and two, by striking out
the words "meaning as" and inserting in lieu thereof the word
"meanings", by striking out "§5A-1-1" and inserting in lieu thereof
"§§5A-1-1 et seq.", and by striking out "5A-3-1 et seq., and as
follows" and inserting in lieu thereof the "§§5A-3-1 et seq. In
addition";
On page one, subsection 3.1., by striking out the word
"legislative" and by striking out the word "State" and inserting in
lieu thereof the word "state";
On pages one and two, by striking out section four in its
entirety and renumbering the remaining section accordingly;
On page two, section five, by inserting a new subsection to
read as follows:
"4.1. State assets shall be disposed of exclusively through
the state agency for surplus property.";
On page two, section five, by redesignating subsections 5.1.
through 5.6. as subsections 4.2. through 4.7.;
On page two, subdivisions 5.1.a. through 5.1.c., by inserting
the word "The" before the word "commodity";
On page two, subdivision 5.1.d., by inserting the word "A"
before the word "description";
On page two, subdivision 5.1.e., by capitalizing the word
"whether", after the word "If" by inserting the word "the", and by
striking out the words "why the agency is" and inserting in lieu thereof the word "for";
On page two, subdivision 5.1.f., by capitalizing the word
"how";
On page two, subdivision 5.1.g., lines one and two, by
capitalizing the word "who" and, after the word "document" by
inserting a comma and the words "signed by the spending officer,";
On page two, subdivision 5.1.g., line three, by striking out
the words "which will identify" and inserting in lieu thereof the
word "identifying";
On page two, subdivision 5.1.g., line five, by striking out
the words "qualification. This document must be signed by the
spending officer." and inserting in lieu thereof the word
"qualifications";
On pages two and three, by striking out subsection 5.2. in its
entirety and by inserting in lieu thereof the following:
"4.2.a. If the agency plans to use the cannibalized parts
immediately, it must provide the following additional information:
4.2.a.1. Whether the part restores the commodity to an
operable condition;
4.2.a.2. If the part does not restore the property to an
operable condition, additional justification for the initial
cannibalization, along with the additional steps required to
restore the property to an operable condition; and
4.2.a.3. The cost of the parts and labor to restore the
commodity to an operable condition without cannibalization.
4.2.b. The agency must properly retire an inoperable part being replaced to the state agency for surplus property using the
authorized means of disposal outlined in W. Va. Code §5A-3-45.
4.2.c. The Director shall make a comparison of the current
value of the asset being cannibalized, the value of the property
being repaired and the cost to repair the item without
cannibalization. The Director will not authorize cannibalization
unless the value of the repaired asset exceeds the value of the
asset to be cannibalized, along with the cost of the
cannibalization/repair process."
On page three, subsection 5.3., lines one and two, after the
word "future use" by changing the period to a comma, by striking
out the words "justification must be submitted to and approved by"
and inserting in lieu thereof the words "it must submit written
justification to";
On page three, subsection 5.3., after the word "property" by
inserting the words "for approval";
On page three, subsection 5.3. by striking out "5.3.a." and by
redesignating paragraphs 5.3.a.1. through 5.3.a.4 as subdivisions
4.3.a. through 4.3.d.;
On page three, paragraph 5.3.a.1., by striking out the words
"the potential" and inserting in lieu thereof the word "The";
On page three, paragraph 5.3.a.2. by capitalizing the word
"the" at the beginning of the paragraph;
On page three, paragraph 5.3.a.3. by capitalizing the word
"the" at the beginning of the paragraph and, after the word
"stored;", by inserting the word "and";
On page three, paragraph 5.3.a.2. by capitalizing the word
"the" at the beginning of the paragraph;
On page three, subsection 5.5., lines one and two, by striking
out the words "make determination' and inserting in lieu thereof
the word "determine" and by capitalizing the word "state";
On page three, paragraph 5.5.a. by striking out the word "The"
and inserting in lieu thereof the words "Does the" and, after the
word "cannibalized", by inserting a question mark;
On page three, paragraph 5.5.b. by striking out the words
"There is" and inserting in lieu thereof the words "Is there" and,
after the word "form;", by inserting a question mark, a semi-colon
and the word "and";
On page three, paragraph 5.5.c., by striking out the word
"The" and inserting in lieu thereof the words "Does the" and by
striking out the words "does not";
On page three, paragraph 5.5.c., by capitalizing the word
"state";
On page three, paragraph 5.5.c., by striking out the word
"non-used" and inserting in lieu thereof the word "unused" and by
changing the period to a question mark;
And,
On page three, section 5.6, line one, after the words "review
the" by inserting the word "agency".
(c) The legislative rule filed in the State Register on the
eleventh day of July, two thousand six, authorized under the
authority of section forty-four, article three, chapter five-a of this code, modified by the Department of Administration to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the sixteenth day of August, two
thousand six, relating to the Department of Administration (waste
disposal of state property, 148 CSR 17), is authorized, with the
following amendments:
On page one, by striking out subsection 1.1. in its entirety
and inserting in lieu thereof the following:
"1.1. This rule explains and clarifies operative procedures
for the disposal of commodities as waste."
On page one, section two, lines one and two, by striking out
the words "meaning as" and inserting in lieu thereof the word
"meanings", by striking out "§5A-1-1" and inserting in lieu thereof
"§§5A-1-1 et seq.", and by striking out "5A-3-1 et seq., and as
follows" and inserting in lieu thereof the "§§5A-3-1 et seq. In
addition";
On page one, subsection 3.1., by striking out the word
"legislative" and by striking out the word "State" and inserting in
lieu thereof the word "state";
On pages one and two, by striking out section four in its
entirety and renumbering the remaining section accordingly;
On page two, section five, by inserting a new subsection to
read as follows:
"4.1. State assets shall be disposed of exclusively through
the state agency for surplus property.";
On page two, section five, by redesignating subsections 5.1. through 5.8. as subsections 4.2. through 4.9.;
On page two, subsection 5.1., by striking out the word
"submits" and inserting in lieu thereof the word "shall submit";
On page two, subsection 5.2., by striking out the word "State"
and inserting in lieu thereof the words "The state";
On page two, subsection 5.2., by striking out the word
"evaluates" and inserting in lieu thereof the words "shall
evaluate";
On page two, subdivision 5.3.a., by striking out the words "If
the" and inserting in lieu thereof the word "The";
On page two, subdivision 5.3.c., by striking out the word
"state" and inserting in lieu thereof the word "State";
On page two, subsection 5.4., by striking out "5.4.a." and by
redesignating paragraphs 5.4.a.1. through 5.4.a.3. as subdivisions
4.5.a. through 4.5.c.;
On page two, subsection 5.5., after the words "completed and"
by striking out the words "a physical inspection conducted (if
necessary), a determination is made by" and inserting in lieu
thereof a comma and the words "if necessary, a physical inspection
conducted,";
On page two, subsection 5.5., after the words "surplus
property" by striking out the words "as to" and inserting in lieu
thereof the words "shall determine";
On page two, subsection 5.6., after the words "using any
other" by striking out the words "approved method, in accordance
with §5A-3-45 of the West Virginia Code" and inserting in lieu thereof the words "method approved by W. Vs. Code §5A-3-45";
On page two, subsection 5.7., line one, by striking out the
word "with" and inserting in lieu thereof the word "within";
And,
On page two, subsection 5.7., by striking out the words "shall
be" and inserting in lieu thereof the word "are".
(d) The legislative rule filed in the State Register on the
twenty-sixth day of July, two thousand six, authorized under the
authority of section fourteen, article four, chapter twelve of this
code, modified by the Department of Administration to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the twentieth day of November, two
thousand six, relating to the Department of Administration
(accountability of state funds and grants, 148 CSR 18), is
authorized, with the following amendments:
On page one, subsection 1.1., after the word "Scope. -" by
inserting the following: "This rule establishes standards and
procedures for recipients of state funds and grants to account for
the manner in which those funds are spent.";
On page one, section two, after the caption, by striking out
"2.1." and by redesignating subdivisions 2.1.a. through 2.1.h. as
subdivisions 2.1. through 2.8.;
On page one, subdivision 2.1.a., line two, by striking out the
words "engagement performed by" and inserting in lieu thereof the
words "agreement between a grantee and";
On page one, subdivision 2.1.b., line two, by striking out the words "engagement performed by" and inserting in lieu thereof the
words "agreement between a grantee and";
On page one, subdivision 2.1.g., line one, by striking out the
words "engagement performed by" and inserting in lieu thereof the
words "agreement between a grantee and";
On page one, subdivision 2.1.g., lines seven and eight, by
striking out the words "be in accordance with compliance
attestation standards" and inserting in lieu thereof the words
"comply with Compliance Attestation Standards";
On page one, subdivision 2.1.g., line thirteen, after the word
"purpose." by striking out the remainder of the subdivision and
inserting in lieu thereof the following: "Under specified
circumstances, described in section 4 of this rule, certain types
of independent audits may be substituted for the required report.";
On page one, subdivision 2.1.h., line seven, by striking out
the words "shall means" and inserting in lieu thereof the word
"means";
On page two, paragraph 2.1.h.(J)., after the words "pursuant
to" by striking out the remainder of the paragraph and inserting in
lieu thereof the following: W. Va. Code §33-3-14d, §33-3-33, and
§33-12C-7.";
On page two, subsection 3.1., by striking out the word
"state's" and inserting in lieu thereof the word "state";
On page two, subsection 3.1., by striking out the words "the
disbursement of the state grant funds" and inserting in lieu
thereof the words "how the state grant funds were disbursed";
On page two, subsection 3.2., by striking out the words "The
requirement for a report of the disbursement of state grant funds
may be satisfied" and inserting in lieu thereof the words "A
grantee may satisfy the report requirement of subsection 3.1. of
this rule";
On page two, by striking out subsection 3.3. in its entirety
and redesignating the remaining subsections accordingly;
On page two, subsection 3.4., after the word "Reports" by
inserting the words "required by this section";
On page two, subsection 3.4., by striking out the words "a
minimum" and inserting in lieu thereof the word "least";
On page two, subsection 3.5., by striking out the words "and
if" and inserting in lieu thereof the words "the expenditure and if
the expenditure is";
On page two, subsection 3.6., by striking out the words "In
the event that" and inserting in lieu thereof the word "If";
On page two, subsection 3.6., by striking out the word "such"
and inserting in lieu thereof the word "the";
On page two, by striking out subsection 3.7. in its entirety
and inserting in lieu thereof the following:
"3.7. The grantee shall submit the required report within two
years after the end of the fiscal year in which the grantor
disbursed state grants to the grantee. If the grantee's fiscal
year end is different from the State's fiscal year end (June 30),
the grantee shall file the report withing two years after the end
of its fiscal year following the state fiscal year in which the funds were disbursed.";
On page three, subsection 3.9., by striking out the word
"such" and inserting in lieu thereof the word "the";
On page three, subsection 4.1., by striking out the word "An"
and inserting in lieu thereof the words "In lieu of the required
report, the grantee may submit an";
On page three, subsection 4.1., by striking out the words "may
be submitted in lieu of the required report if said audit" and
inserting in lieu thereof the words "which";
On page three, subsection 4.1., line eight, after the word
"and" by inserting the word "a" and by striking out the word "said"
and inserting in lieu thereof the word "the";
On page three, by striking out subsection 4.2. in its entirety
and by inserting in lieu thereof the following:
"4.2. In lieu of the required report, the grantee may submit
a financial audit, performed by an independent CPA, which complies
with Government Auditing Standards issued by the Comptroller
General of the United States if the audit includes a schedule of
state grant receipts and expenditures and a related auditor's
opinion on whether the schedule is fairly stated in relation to the
financial statements taken as a whole.";
On page three, subsection 5.1., by striking out the words "due
to the fact that" and inserting in lieu thereof the word "because";
On page three, subsection 5.1., by striking out the words
"generally accepted government auditing standards" and inserting in
lieu thereof the words "Government Auditing Standards";
On page three, subsection 5.1., by striking out the words "due
to the fact that an audit is performed that complies" and inserting
in lieu thereof the words "because an audit complying";
On page three, subsection 5.1., after the word "A-133" by
striking out the word "which";
On page three, subsection 5.1., after the words "The form" by
striking out the word "should" and inserting in lieu thereof the
word "shall";
On page three, subsection 5.2., by striking out the words
"shall rest" and inserting in lieu thereof the word "rests";
On page three, subsection 5.3., by striking out the words "All
sworn statements" and inserting in lieu thereof the words "A sworn
statement";
On page three, subsection 5.3., after the word "include" by
striking out the comma and the words "at a minimum," and inserting
in lieu thereof the words "at least";
On page three, subsection 5.4., by striking out the words
"following language shall be utilized for the actual" and, after
the word "statement" by inserting the words "shall be in the
following form";
On page three, subsection 5.4., by striking out "5.4.1";
On page four, subsection 5.5., line one, after the word
"representative" by inserting the words "of the grantee";
On page four, subsection 5.5., after the words "and provide"
by striking out the word "their" and inserting in lieu thereof the
words "his or her";
On page four, subsection 5.5., after the word "grantor" by
striking out the words "of the State grants";
On page four, subsection 5.5., line twelve, by striking out
the word "Said" and inserting in lieu thereof the word "The";
On page four, by striking out subsection 5.6. in its entirety
and inserting in lieu thereof the following:
"5.6. The grantee shall submit the sworn statement of
expenditures within two years after the end of the fiscal year in
which the grantor disbursed state grants to the grantee. If the
grantee's fiscal year end is different from the State's fiscal year
end (June 30), the grantee shall file the report within two years
after the end of its fiscal year following the state fiscal year in
which the funds were disbursed.";
On page four, subsection 6.1., after the word "expenditures"
by inserting the words "for state grants disbursed after July 1,
2003";
On page four, subsection 6.1., after the words "required time"
by striking out the words "period for state grants disbursed by the
grantor after July 1, 2003";
On page four, subsection 6.1., after the words "grantee
complies with" by striking out the word "said" and inserting in
lieu thereof the word "its";
On page four, subsection 6.2., by striking out the words "that
provided the state grant";
On page four, subsection 6.3., by striking out the words "that
provided the state grant" and by striking out the words "The debarment process shall consist of the following:";
On page four, subdivision 6.3.1., after the words "a grantee"
by striking out the word "shall" and inserting in lieu thereof the
word "should";
On page four, subdivision 6.3.1., after the words "certified
mail," by striking out the remainder of the subdivision and
inserting in lieu thereof the following: "return receipt requested,
of the reasons and the causes relied upon for the proposed
debarment";
On page four, by striking out subdivisions 6.3.2. and 6.3.3.
in their entirety and inserting in lieu thereof the following:
"6.3.2. If the grantee disputes the proposed debarment, it
must submit its argument to the grantor in writing within 30
calendar days after receipt of the notice.
6.3.3. If a grantee contests the debarment decision, the
grantor shall decide the matter in accordance with the provisions
of W. Va. Code §29A-5-1 et seq."
On page four, subdivision 6.3.4., by striking out the words
"shall be" and inserting in lieu thereof the word "is";
On page four, subsection 6.5., line one, by striking out the
word "their" and inserting in lieu thereof the word "its";
On page four, subsection 6.5., line three, by striking out the
word "for" and inserting in lieu thereof the words "with regard
to";
On page four, subsection 6.5., line four, after the word
"grants" by striking out the remainder of the subsection and inserting in lieu thereof the following: "from either the same
state spending unit or from a different one.";
On page five, subsection 6.7., by striking out the words
"Prior to any grantor providing State grants to a person" and
inserting in lieu thereof the words "Before disbursing a state
grant";
On page five, subsection 6.7., line three, by striking out the
word "from" and inserting in lieu thereof the word "with";
On page five, subsection 7.1., by striking out the words "that
provides State grants";
On page five, subdivision 7.2.1., line three, by striking out
the word "this" and inserting in lieu thereof the words "the
notification";
On page five, subdivision 7.2.1., by striking out the words
"to convey the reporting requirements under W V Code §12-4-14";
On page five, subsection 7.3., after the word "expenditures"
by striking out the remainder of the subsection and inserting in
lieu thereof the following: "for a state grant disbursed after July
1, 2003, within the required time."
On page five, subsection 7.4., by striking out the words
"shall begin" and inserting in lieu thereof the word "begins" and
by striking out the words "these rules" and inserting in lieu
thereof the words "this rule";
On page five, subsection 7.5., lines two and three, by
striking out the words "the requirements of";
On page five, subsection 7.5., lines thirteen and fourteen, by striking out the words "by the grantor";
On page five, subsection 8.1., by striking out the words
"Prior to" and inserting in lieu thereof the word "Before";
On page five, subsection 8.1., line two, by striking out the
word "grantors" and inserting in lieu thereof the words "a
grantor";
On page five, subdivision 8.1.1., line one, by striking out
the word "its" and inserting in lieu thereof the word "the";
On page five, subdivision 8.1.1., line two, by striking out
the words "to be";
On page five, subdivision 8.1.1., line three, after the word
"person" by inserting the words "seeking the grant";
On page five, subdivision 8.1.1., line four, by striking out
the word "Sate" and inserting in lieu thereof the word "State";
On page five, subdivision 8.1.1., line eight, after the word
"page" by inserting the word "that";
On page five, subdivision 8.1.2., lines three and six, after
the word "person" by inserting the words "seeking the grant";
On page five, subdivision 8.1.2., line seven, by striking out
the word "their" and inserting in lieu thereof the word "his or
her";
On page five, subdivision 8.1.2., line twelve, by striking out
the word "that";
On page five, subsection 8.2., lines two, after the word
"person" by inserting the words "seeking the grant";
And,
On page six, subsection 8.2., by striking out the words
"identified as one who is debarred or who has" and inserting in
lieu thereof the words "debarred or".
§64-2-2. Consolidated Public Retirement Board.
(a) The legislative rule filed in the State Register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five of this code,
modified by the Consolidated Public Retirement Board to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the nineteenth day of September,
two thousand six, relating to the Consolidated Public Retirement
Board (deputy sheriff retirement system, 162 CSR 10), is
authorized.
(b) The legislative rule filed in the State Register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five of this code,
relating to the Consolidated Public Retirement Board (teachers
defined contribution system, 162 CSR 3), is authorized.
(c) The legislative rule filed in the State Register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five of this code,
relating to the Consolidated Public Retirement Board (teachers
retirement system, 162 CSR 4), is authorized.
(d) The legislative rule filed in the State Register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five of this code, modified by the Consolidated Public Retirement Board to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the nineteenth day of September,
two thousand six, relating to the Consolidated Public Retirement
Board (public employees retirement system, 162 CSR 5), is
authorized.
(e) The legislative rule filed in the State Register on the
twelfth day of July, two thousand six, authorized under the
authority of section one, article ten-D, chapter five of this code,
modified by the Consolidated Public Retirement Board to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on the nineteenth day of September,
two thousand six, relating to the Consolidated Public Retirement
Board (refund, reinstatement and loan interest factors, 162 CSR 7),
is authorized.
§64-2-3. Division of Personnel.
(a) The legislative rule filed in the State Register on the
twenty-first day of July, two thousand six, authorized under the
authority of section ten, article six, chapter twenty-nine of this
code, modified by the Division of Personnel to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the thirtieth day of November, two thousand six,
relating to the Division of Personnel (administrative rule of the
West Virginia Division of Personnel, 143 CSR 1), is authorized
with
the following amendments:
On page seven, subsection 3.88., after the words "not to exceed" by striking out the number "1,000" and inserting in lieu
thereof the number "720";
On page twenty-one, subsection 9.4., after the words "not to
exceed" by striking out the number "1,000" and inserting in lieu
thereof the number "720";
On page twenty-two, subsection 9.5., by striking subsection
(e) in its entirety and by redesignating the remaining subsections
accordingly;
On page thirty-nine, section nineteen, before the word "Each"
by adding "19.1.";
And,
On page thirty-nine, section nineteen, by adding a new
subsection, designated subsection 19.2. to read as the follows:
19.2. Neither this section nor any other provision of this
rule shall interfere with the right of the Legislature, its
committees, administrative units and staff to have access to agency
personnel records under the common law, or pursuant to the
provisions of W. Va. Code §§4-2-5, 4-3-4, 4-5-3, 4-10-5, or any
other statutory provision giving a legislative agency or subunit
access to records of a state agency. The Legislature, its
committees, administrative units and staff having access to these
records shall maintain the confidentiality of the records, to the
extent reasonably possible.
(b) The legislative rule filed in the State Register on the
twenty-first day of July, two thousand six, authorized under the
authority of section four, article five-A, chapter twenty-three and
section ten, article six, chapter twenty-nine
of this code,
relating to the Division of Personnel (workers' compensation
temporary total disability, 143 CSR 3), is authorized.
(c) The legislative rule filed in the State Register on the
seventeenth day of February, two thousand six, authorized under the
authority of section seven, article two, chapter five-F of this
code, modified by the Division of Personnel to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on the twenty-first day of November, two thousand
six, relating to the Division of Personnel (interdepartmental
transfer of permanent state employees, 143 CSR 7), is authorized.
§64-2-4. Board of Risk and Insurance Management.
The legislative rule filed in the State Register on the
twenty-first day of July, two thousand six, authorized under the
authority of section fifteen, article thirty, chapter thirty-three
of this code, modified by the Board of Risk and Insurance
Management to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on the third day
of November, two thousand six, relating to the Board of Risk and
Insurance Management (mine subsidence insurance, 115 CSR 1), is
authorized.