COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 378
(By Senators Ross and Sharpe)
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[Originating in the Committee on the Judiciary;
reported February 28, 1995.]
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A BILL to amend and reenact sections five, nine, eleven and
twelve, article three, chapter twenty-nine-a of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, relating to rulemaking; notice of proposed
rulemaking; allowing an agency to hold either a public
hearing or a public comment period; proposal of
legislative rules; requiring the filing of agency approved
rules within a specified time; providing for extending the
time period for filing the agency approved rule;
submission of legislative rules to the legislative rule-
making review committee; requiring the filing of relevant
federal statutes and regulations with the committee;
submission of legislative rules to the Legislature; and
changing deadline by which rules must be filed with the
committee for consideration at the legislative session.
Be it enacted by the Legislature of West Virginia:
That sections five, nine, eleven and twelve, article three, chapter twenty-nine-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
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.
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 rule-making 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.
§29A-3-9. Proposal of legislative rules.
When an agency proposes a legislative rule, other than an
emergency rule, it shall be deemed to be applying to the
Legislature for permission, to be granted by law, to promulgate
such rule as approved by the agency for submission to the
Legislature or as amended and authorized by the Legislature by
law.
An agency proposing a legislative rule, other than an
emergency rule, after filing the notice of proposed rulemaking
required by the provisions of section five of this article,
shall then proceed as in the case of a procedural and
interpretive rule to the point of, but not including, final
adoption. In lieu of final adoption, the agency shall finally
approve the proposed rule, including any amendments, for
submission to the Legislature and file such notice of approval
in the state register and with the legislative rule-making
review committee, within ninety days after the public hearing
was held or within ninety days after the end of the public
comment period required under section five of this article:
Provided, That upon receipt of a written request from an
agency, setting forth valid reasons why the agency is unable to
file the agency approved rule within the ninety-day time
period, the legislative rule-making review committee may grant
the agency an extension of time to file the agency approved
rule.
Such final agency approval of the rule under this section
is deemed to be approval for submission to the Legislature only
and does not give any force and effect to the proposed rule.
The rule shall have full force and effect only when authority
for promulgation of the rule is granted by an act of the
Legislature and the rule is promulgated pursuant to the
provisions of section thirteen of this article.
§29A-3-11.
Submission of legislative rules to the legislative
rule-making review committee.
(a) When an agency finally approves a proposed legislative
rule for submission to the Legislature, pursuant to the
provisions of section nine of this article, the secretary of
the executive department which administers the agency pursuant
to the provisions of article two, chapter five-f of this code
shall submit to the legislative rule-making review committee at
its offices or at a regular meeting of such committee fifteen
copies of: (1) The full text of the legislative rule as
finally approved by the agency, with new language underlined
and with language to be deleted from any existing rule stricken
through but clearly legible; (2) a brief summary of the content
of the legislative rule and a description and a copy of any
existing rule which the agency proposes to amend or repeal; (3)
a statement of the circumstances which require the rule; (4) a
fiscal note containing 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; (5)
one copy of any relevant federal statutes or regulations; and (6) any other information which the committee may request or
which may be required by law. If the agency is an agency,
board or commission which is not administered by an executive
department as provided for in article two, chapter five-f of
this code, the agency shall submit the final agency-approved
rule as required by this subsection.
(b) The committee shall review each proposed legislative
rule and, in its discretion, may hold public hearings thereon.
Such review shall include, but not be limited to, a
determination of:
(1) Whether the agency has exceeded the scope of its
statutory authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity
with the legislative intent of the statute which the rule is
intended to implement, extend, apply, interpret or make
specific;
(3) Whether the proposed legislative rule conflicts with
any other provision of this code or with any other rule adopted
by the same or a different agency;
(4) Whether the proposed legislative rule is necessary to
fully accomplish the objectives of the statute under which the
rule was proposed for promulgation;
(5) Whether the proposed legislative rule is reasonable,
especially as it affects the convenience of the general public
or of persons particularly affected by it;
(6) Whether the proposed legislative rule could be made
less complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was proposed for
promulgation in compliance with the requirements of this
article and with any requirements imposed by any other
provision of this code.
(c) After reviewing the legislative rule, the committee
shall recommend that the Legislature:
(1) Authorize the promulgation of the legislative rule; or
(2) Authorize the promulgation of part of the legislative
rule; or
(3) Authorize the promulgation of the legislative rule
with certain amendments; or
(4) Recommend that the proposed rule be withdrawn.
The committee shall file notice of its action in the state
register and with the agency proposing the rule:
Provided,
That when the committee makes the recommendations of
subdivision (2), (3) or (4) of this subsection, the notice
shall contain a statement of the reasons for such
recommendation.
(d) When the committee recommends that a rule be
authorized, in whole or in part, by the Legislature, the
committee shall instruct its staff or the office of legislative
services to draft a bill authorizing the promulgation of all or
part of the legislative rule and incorporating such amendments
as the committee desires. If the committee recommends that the
rule not be authorized, it shall include in its report a draft
of a bill authorizing promulgation of the rule together with a recommendation. Any draft bill prepared under this section
shall contain a legislative finding that the rule is within the
legislative intent of the statute which the rule is intended to
implement, extend, apply or interpret and shall be available
for any member of the Legislature to introduce to the
Legislature.
§29A-3-12. Submission of legislative rules to Legislature.
(a) No later than forty 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
section eleven of this article 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 section
eleven of this article. 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. The committee may withhold from
its report any proposed legislative rule which was submitted to
the committee fewer than two hundred ten days before the end of
the regular session. 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 section two,
article one, chapter five-f 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 fails during its regular session to
act upon all or part of any legislative rule which was
submitted to it by the legislative rule-making 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.
(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 rule-making review committee, or
not, if legislative action on such rule during such session is
a lawful order of business.
(e) 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.
(f) 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 the year one thousand nine
hundred eighty-four, and each fourth year thereafter without
regard to the second Wednesday of January of such years.