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Enrolled Version - Final Version Senate Bill 619 History

OTHER VERSIONS  -  Introduced Version  |  Committee Substitute (1)  |  Engrossed Version  |    pdf  |  Email


WEST virginia legislature

2016 regular session

Enrolled

Committee Substitute

for

Senate Bill 619

By Senators Blair, Carmichael, Cline, Gaunch, Karnes, Mullins and Trump, original sponsors

[Passed March 12, 2016, in effect 90 days from passage]

 

AN ACT to amend and reenact §29A-3-5 and §29A-3-11 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §29A-3-19 and §29A-3-20; and to amend said code by adding thereto a new section, designated §29A-3A-20, all relating generally to legislative rulemaking; requiring agencies to respond to public comments received during the rule-making process; requiring agencies to explain reason for comments being included or excluded from the rule; providing that failure of an agency to adequately explain why or why not public comments were incorporated into the rule may be grounds for rejection of the proposed rule; making changes to the procedures for the submission of a proposed legislative rule; allowing copies of proposed rule to be submitted in electronic or paper form at the request of the Legislative Rule-Making Review Committee; requiring additional information to be included when an agency submits proposed rules to the Legislative Rule-Making Review Committee; adding determinations the Legislative Rule-Making Review Committee shall make as part of its review of a proposed legislative rule; allowing the Legislative Rule-Making Review Committee to recommend rejection of the proposed legislative rule as one of the recommendations the Legislative Rule-Making Review Committee may make to the Legislature following its committee review; providing for a five-year sunset provision for all new legislative rules promulgated after April 1, 2016; requiring sunset provisions in all future modifications of existing legislative rules after April 1, 2016; allowing for renewal for an additional term of years; clarifying that statutory sunset provisions take precedence over sunset provisions in a rule; expressly exempting rules promulgated by the Department of Environmental Protection from the sunset requirement; expressly exempting emergency rules from the sunset requirement; providing that the existence of a sunset provision shall not preclude the repeal of the legislative rule prior to the expiration of the sunset provision; authorizing the Legislative Rule-Making Review Committee to establish a procedure for timely review of rules prior to the expiration of the sunset provision; requiring the Secretary of State to provide notice to agencies at least eighteen months prior to an agency’s rule sunset date; requiring executive agencies with rulemaking authority to submit a report to the Joint Committee on Government and Finance and to the Legislative Rule-Making Review Committee on or before November 1, 2017, indicating a description of state rules, guidelines, policies and recommendations that are more stringent than federal counterparts as well as public comments received relating to the same;  requiring agencies with rulemaking authority to perform certain actions, evaluations, determinations and public comment period in preparation of the report;  requiring each executive agency with rulemaking authority to review each of its rules, make certain determinations, within four years and submit a report to the Legislative Rule-Making Review Committee on or before July 1, 2020; setting forth the information to be included in the report to the Legislative Rule-Making Review Committee; requiring a five-year sunset provision for all new legislative rules promulgated after April 1, 2016, by the Higher Education Policy Commission or other higher education entity defined as a board under section one, article three-a, chapter twenty-nine-a of the code; requiring sunset provisions in all future modifications of existing legislative rules promulgated after April 1, 2016, by the Higher Education Policy Commission or other higher education entity defined as a board under section one, article three-a, chapter twenty-nine-a of the code; allowing for renewal for an additional term of years; clarifying that statutory sunset provisions take precedence over sunset provisions in a rule; expressly exempting emergency rules from the sunset requirement; providing that the existence of a sunset provision shall not preclude the repeal of the legislative rule prior to the expiration of the sunset provision; authorizing the Legislative Oversight Commission on Education Accountability to establish a procedure for timely review of rules prior to the expiration of the sunset provision; and requiring the Secretary of State to provide notice to the Higher Education Policy Commission or other higher education entity defined as a board under section one, article three-a, chapter twenty-nine-a of the code at least eighteen months prior to an agency’s rule sunset date.

Be it enacted by the Legislature of West Virginia:


That §29A-3-5 and §29A-3-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto two new sections, designated §29A-3-19 and §29A-3-20; and that said code be amended by adding thereto a new section, designated §29A-3A-20, all 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, 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 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.

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 rule-making 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-3-11. 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  a number of copies in electronic or paper form as requested by the committee, which shall include the following information:

(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 detailed description of the rule’s purpose and all proposed changes to the rule;

(5) 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;

(6) One copy of any relevant federal statutes or regulations; 

(7) An explanation of the statutory authority for the rule, including a detailed summary of the effect of each provision of the rule with citation to the specific statute which empowers the agency to enact such provision;

(8) All public comments for each proposed rule. An agency may consolidate substantially similar comments in the interest of efficiency;

(9) All written responses by the agency to the substance of any public comments received, including whether the agency chose to modify the proposed rule in response to the comments or, if no changes were made, the rationale for declining to incorporate or make any suggested changes responding to the public comments. An agency may consolidate substantially similar responses in the interest of efficiency:  Provided, That the agency’s response shall address each issue and concern expressed by all comments received; and

 (10) 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 specific statutory authority to propose the rule and has not 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 overlaps, duplicates or conflicts with any other provision of this code,  any other rule adopted by the same or a different agency, with federal statutes and rules, or with local laws and rules;

(4) Whether federal funding will be impacted by its expiration and explanation as to such;

(5) Whether the proposed legislative rule is necessary to fully accomplish the objectives of the statute under which the rule was proposed for promulgation;

(6) Whether the proposed legislative rule is reasonable, especially as it affects the convenience of the general public or of persons particularly affected by it;

(7) Whether the proposed legislative rule could be made less complex or more readily understandable by the general public; and

(8) 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;

(2) Authorize the promulgation of part of the legislative rule;

(3) Authorize the promulgation of the legislative rule with certain amendments;

(4) Recommend that the proposed rule be withdrawn; or

(5) Reject the proposed rule.

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), (4) or (5) 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-3-19. 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 section fifteen of this article.

(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 Rule-Making 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 at least eighteen months prior to every rule’s expiration date.

§29A-3-20. Executive review of agency rules, guidelines, policies and recommendations.


(a) All executive agencies with rule-making authority shall:

(1) Review and evaluate all state rules, guidelines, policies and recommendations under their jurisdiction that have similar federal rules, guidelines, policies and recommendations;

(2) Determine whether the state rules, guidelines, policies and recommendations are more stringent than federal counterparts;

(3) Provide for a comment period for all rules, guidelines, policies and recommendations; and

(4) Submit a report to the Joint Committee on Government and Finance and the Legislative Rule-Making Review Committee on or before November 1, 2017, which shall include:

(A) A description of the state rules, guidelines, policies and recommendations that are more stringent than federal counterparts; and

(B) Comments received from the comment period provided for in subdivision (3) of this subsection.

(b) Within four years of the enactment of this law, each executive agency with rule-making authority shall review all of its rules and determine whether the rules should be continued without change, modified or repealed. On or before July 1, 2020, each agency shall submit a report to the Legislative Rule-Making Review Committee which includes the following information for each rule under the agency’s jurisdiction:

(1) A description of the rule;

(2) A determination of whether the rule should continue without change, be modified or repealed; and

(3) The reasoning for said determination.

ARTICLE 3A. HIGHER EDUCATION RULEMAKING.


§29A-3A-20.  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 emergency rules promulgated pursuant to section sixteen 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 emergency rules promulgated pursuant to section sixteen of this article.

(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 Oversight Commission on Education Accountability is authorized to establish a procedure for timely review of a rule prior to its expiration if the board has affirmatively sought renewal prior to expiration.  The procedure may include a requirement that the board 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 board at least eighteen months prior to every rule’s sunset date.


 

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