(a) "Commission" means the legislative oversight commission on education accountability;
(b) "Board" means the higher education policy commission or the chancellor as defined in chapter eighteen-b of this code, or both, or any successor agency or officer. "Board" also means any other entity directed by this code to promulgate a rule or rules in accordance with this article, but this definition shall apply solely for the purpose of promulgating the rule or rules required to be promulgated in accordance with this article.
In addition to other rule-making requirements imposed by law and except to the extent specifically exempted by the provisions of this chapter or other applicable law, every rule and regulation (including any amendment of or rule to repeal any other rule) shall be promulgated by the board only in accordance with this article and shall be and remain effective only to the extent that it has been or is promulgated in accordance with this article.
(a) Except when, and to the extent, that this chapter or any other provision of law now or hereafter made expressly exempts the board, or a particular grant of the rule-making power, from the provisions of this article, every grant of rule-making authority to the board heretofore provided, shall be construed and applied to be effective only:
(1) If heretofore lawfully exercised in accordance with the prior provisions of this chapter and the resulting rule has not been revoked or invalidated by the provisions hereof or by the board; or
(2) If exercised in accordance with the provisions hereof.
(b) The board shall not be deemed to have the power and authority to promulgate a legislative rule without compliance with this article unless: (1) The provision of this code, heretofore or hereafter enacted, granting such power and authority, expressly exempts its exercise from legislative rule-making review prior to promulgation or (2) the grant of such power and authority is exempted from the application of this chapter by the express provisions of this chapter. To the extent any such grant of power and authority, not so exempt, shall be deemed to exceed the limits and provisions of this article, such power and authority to promulgate legislative rules is hereby revoked.
In addition to other rule-making requirements imposed by law:
(a) The board shall adopt procedural rules governing the formal and informal procedures prescribed or authorized by this chapter. Procedural rules shall include rules of practice before the board, together with forms and instructions.
(b) To assist interested persons dealing with it, the board, shall so far as deemed practicable, supplement its rules or regulations with descriptive statements of its procedures.
(a) When the board proposes a procedural rule or an interpretive rule, the agency shall file in the state register a notice of its action, including the text of the rule as proposed.
(b) All proposed rules filed under subsection (a) of this section shall have a fiscal note attached itemizing the cost of implementing the rules as they relate to this state and to persons affected by the rules and regulations. Such fiscal note shall include 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. The objectives of the rules shall be clearly and separately stated in the fiscal note by the agency issuing the proposed rules. No procedural or interpretive rule shall be void or voidable by virtue of noncompliance with this subsection.
When the board 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 board 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 five of this article. If the board 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 board 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 board of the approved rule, the notice shall fix a date, time and place for the receipt of general public comment on the proposed rule.
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 board when filed in the state register.
In any hearing for public comment on the merits of the rule, the board 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 board. After the public hearing or the close of the public comment period, whichever is later, the board 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 board-approved rule to the legislative oversight commission on education accountability pursuant to the provisions of section twelve of this article.
The board 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.
(a) Incident to fixing a date for public comment on a proposed rule, the board shall promulgate the findings and determinations required as a condition precedent thereto, and state fully and succinctly the reasons therefor and file such findings and determinations in the state register. If the board amends the proposed rule as a result of the evidence or comment presented pursuant to section five, such amendment shall be filed with a description of any changes and statement listed for the amendment.
(b) The statement of reasons and a transcript of all evidence and public comment received pursuant to notice are public records and shall be carefully preserved by the board and be open for public inspection and copying for a period of not less than five years from the date of the hearing.
Notices of hearings required by sections six and seven of this article shall be filed in the state register not less than thirty nor more than sixty days before the date of such hearing or the last day specified therein for receiving written material. Any hearing may be continued from time to time and place to place by the board which shall have the effect of extending the last day for receipt of evidence or public comment. Notice of such continuance shall be promptly filed thereafter in the state register.
A procedural and interpretive rule, shall be considered by the board for adoption not later than six months after the close of public comment and a notice of withdrawal or adoption shall be filed in the state register within that period. Failure to file such notice shall constitute withdrawal and the secretary of state shall note such failure in the state register immediately upon the expiration of the six-month period.
A procedural or interpretive rule may be amended by the board prior to final adoption without further hearing or public comment. No such amendment may change the main purpose of the rule. If the fiscal implications have changed since the rule was proposed, a new fiscal note shall be attached to the notice of filing. Upon adoption of the rule (including any such amendment) the board shall file the text of the adopted procedural or interpretive rule with its notice of adoption in the state register and the same shall be effective on the date specified in the rule or thirty days after such filing, whichever is later.
When the board 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 board for submission to the Legislature or as amended and authorized by the Legislature by law.
When proposing a legislative rule, other than an emergency rule, and after filing the notice of proposed rule-making required by the provisions of section five of this article, the board 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 board 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 oversight commission on education accountability.
Such final 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 fourteen of this article.
(a) There is hereby created a joint commission of the Legislature known as the legislative oversight commission on education accountability to review all legislative rules of the board and such other rules as the commission deems appropriate. The commission shall be composed of six members of the Senate appointed by the president of the Senate and six members of the House of Delegates appointed by the speaker of the House of Delegates. No more than five of the six members appointed by the president of the Senate and the speaker of the House of Delegates, respectively, may be members of the same political party. In addition, the president of the Senate and the speaker of the House of Delegates shall be ex officio nonvoting members of the commission and shall designate the cochairmen. At least one of the Senate members and one of the House members shall be members of the committee on education of the Senate and House, respectively, and at least one of the Senate members and at least one of the House members shall be a member of the committee on finance of the Senate and House, respectively. The members shall serve until their successors shall have been appointed as heretofore provided. Members of the commission shall receive such compensation and expenses as provided in article two-a, chapter four of this code. Such expenses and all other expenses including those incurred in the employment of legal, technical, investigative, clerical,stenographic, advisory and other personnel shall be paid from an appropriation to be made expressly for the legislative oversight commission on education accountability, but if no such appropriation be made, such expenses shall be paid from the appropriation under "Account No. 103 for Joint Expenses", but no expense of any kind whatever payable under said account for joint expenses shall be incurred unless first approved by the joint committee on government and finance. The commission shall meet at any time both during sessions of the Legislature and in the interim.
(b) The commission may adopt such rules of procedure as it considers necessary for the submission, presentation and consideration of rules.
(a) In addition to the powers and duties conferred upon the commission pursuant to the provisions of this article, the commission shall make a continuing investigation, study and review of the practices, policies and procedures of the board and of any and all matters related to education in the state and shall make annual reports to the Legislature of the results of such investigation, study and review.
(b) These reports shall describe and evaluate in a concise manner:
(1) The major activities of the board for the fiscal year immediately past, including important policy decisions reached on initiatives undertaken during that year, especially as such activities, decisions and initiatives relate to the implementation of (1) the constitutional requirement of providing a thorough and efficient education to the children of this state and (2) the objective of improving the quality of education at all levels in this state.
(2) Other information considered by the commission to be important, including recommendations for statutory, fiscal or other reform and reasons for such recommendations.
Further, these reports may specify in what manner said practices, policies and procedures may or should be modified to satisfy said constitutional requirement and to improve the quality of education at all levels in this state.
The commission may meet as often as may be necessary and employ such professional, clerical and technical personnel as it considers necessary to perform effectively the duties herein prescribed.
(c) The commission shall conduct a study to determine whether the bureaucracies of the state board of education and each county board of education are of such size and complexity that they do not best serve the educational needs of the children of the state. The commission may request assistance from the legislative auditor to conduct this study.
(d) For purposes of carrying out its duties, the commission is hereby empowered and authorized to examine witnesses and to subpoena such persons and books, records, documents, papers or any other tangible things as it believes should be examined to make a complete investigation. All witnesses appearing before the commission shall testify under oath or affirmation, and any member of the commission may administer oaths or affirmations to such witnesses. To compel the attendance of witnesses at such hearings or the production of any books, records, documents, papers or any other tangible thing, the commission is hereby empowered and authorized to issue subpoenas, signed by one of the cochairmen, in accordance with section five, article one, chapter four of this code. Such subpoenas shall be served by any person authorized by law to serve and execute legal process and service shall be made without charge. Witnesses subpoenaed to attend hearings shall be allowed the same mileage and per diem as is allowed witnesses before any petit jury in this state.
If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers or any other tangible thing within his control when the same are demanded, the commission shall report the facts to the circuit court of Kanawha County or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such court in the first instance.
(1) The full text of the legislative rule as finally approved by the board, 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; and (5) Any other information which the commission may request or which may be required by law.
(b) The commission 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 board 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 proposed rule was promulgated;
(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 promulgated 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 commission shall recommend that the Legislature:
(1) Authorize the board to promulgate the legislative rule; or
(2) Authorize the board to promulgate part of the legislative rule; or
(3) Authorize the board to promulgate the legislative rule with certain amendments; or
(4) Recommend that the rule be withdrawn.
The commission shall file notice of its action in the state register and with the board proposing the rule: Provided, That when the commission 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 commission recommends that a rule be authorized, in whole or in part, by the Legislature, the commission shall instruct its staff or the office of legislative services to draft a bill authorizing the board to promulgate all or part of the legislative rule. If the commission 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.
(a) No later than forty days before the sixtieth day of each regular session of the Legislature, the cochairmen of the legislative oversight commission on education accountability 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 commission 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 commission with respect to such rules, a statement of the reasons for any recommendation that a rule be withdrawn, and a statement that a bill authorizing the legislative rule has been drafted by the staff of the commission or by legislative services pursuant to section twelve of this article. The cochairman of the commission may also submit such rules at the direction of the commission at any time before or during a special session in which consideration thereof may be appropriate. The commission may withhold from its report any proposed legislative rule which was submitted to the commission fewer than two hundred ten days before the end of the regular session. The clerk of each house shall submit the report to his 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 board to adopt a legislative rule incorporating the entire rule. The clerk of the house originating such act shall forthwith file a copy of any bill enacted in contemplation of this section in the state register and with the board 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.
(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 oversight commission on education accountability during such session, the board may not 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 the board to promulgate legislative rules not proposed by the board 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 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 oversight commission on education accountability, 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.
(a) Except as the Legislature may by law otherwise provide, within sixty days after the effective date of an act authorizing promulgation of a legislative rule, the board shall promulgate the rule only in conformity with the provisions of law authorizing and directing the promulgation of such rule.
(b) A legislative rule authorized by the Legislature shall become effective thirty days after such filing in the state register, or on the effective date fixed by the authorizing act or if none is fixed by law, such later date not to exceed ninety days, as is fixed by the board.
(c) The secretary of state shall note in the state register the effective date of an authorized and promulgated legislative rule, and shall file such legislative rule in the state register in lieu of the proposed legislative rule previously filed pursuant to section seven of this article.
(a) Any legislative rule proposed by the board may be withdrawn any time before passage of a law authorizing or authorizing and directing its promulgation, but no such action shall be construed to affect the validity, force or effect of a law enacted authorizing or authorizing and directing the promulgation of an authorized legislative rule or exercising compliance with such law. The board shall file a notice of any such action in the state register.
(b) At any time before a proposed legislative rule has been submitted by the legislative oversight commission on education accountability to the Legislature pursuant to the provisions of section thirteen of this article, the board may modify the proposed rule to meet the objections of the commission. The board shall file in the state register a notice of its modifying action including a copy of the modified rule, but shall not be required to comply with any provisions of this article requiring opportunity for public comment or taking of evidence with respect to such modification. If a legislative rule has been withdrawn, modified and then resubmitted to such commission, the rule shall be considered to have been submitted to such commission on the date of such resubmission.
(a) The board may, without hearing, find that an emergency exists requiring that emergency rules be promulgated and promulgate the same in accordance with this section. Such emergency rules, together with a statement of the facts and circumstances constituting the emergency, shall be filed in the state register and shall become effective immediately upon such filing. Such emergency rules may adopt, amend or repeal any legislative rule, but the circumstances constituting the emergency requiring such adoption, amendment or repeal shall be stated with particularity and be subject to de novo review by any court having original jurisdiction of an action challenging their validity. Fifteen copies of the rules and of the required statement shall be filed forthwith with the legislative oversight commission on education accountability.
An emergency rule shall be effective for not more than fifteen months and shall expire earlier if any of the following occurs:
(1) The secretary of state, acting under the authority provided for in section sixteen-a of this article, disapproves the emergency rule because: (A) The emergency rule or an amendment to the emergency rule exceeds the scope of the law authorizing or directing the promulgation thereof; (B) an emergency does not exist justifying the promulgation of the emergency rule; or (C) the emergency rule was not promulgated in compliance with the provisions of this section. An emergency rule may not be disapproved pursuant to the authority granted by paragraphs (A) or (B) of this subdivision on the basis that the secretary of state disagrees with the underlying public policy established by the Legislature in enacting the supporting legislation. An emergency rule which would otherwise be approved as being necessary to comply with a time limitation established by this code or by a federal statute or regulation may not be disapproved pursuant to the authority granted by paragraphs (A) or (B) of this subdivision on the basis that the board has failed to file the emergency rule prior to the date fixed by such time limitation. When the supporting statute specifically directs the board to promulgate an emergency rule, or specifically finds that an emergency exists and directs the promulgation of an emergency rule, the emergency rule may not be disapproved pursuant to the authority granted by paragraph (B) of this subdivision. An emergency rule may not be disapproved on the basis that the Legislature has not specifically directed the board to promulgate the emergency rule, or has not specifically found that an emergency exists and directed the promulgation of an emergency rule.
(2) The board has not previously filed and fails to file a notice of public hearing on the proposed rule within sixty days of the date the proposed rule was filed as an emergency rule; in which case the emergency rule expires on the sixty-first day.
(3) The board has not previously filed and fails to file the proposed rule with the legislative oversight commission on education accountability within one hundred eighty days of the date the proposed rule was filed as an emergency rule; in which case the emergency rule expires on the one hundred eighty-first day.
(4) The Legislature has authorized or directed promulgation of an authorized legislative rule dealing with substantially the same subject matter since such emergency rule was first promulgated, and in which case the emergency rule expires on the date the authorized rule is made effective.
(5) The Legislature has, by law, disapproved of such emergency rule; in which case the emergency rule expires on the date the law become effective.
(b) Any amendment to an emergency rule made by the board shall be filed in the state register and does not constitute a new emergency rule for the purpose of acquiring additional time or avoiding the expiration dates in subdivision (2), (3), (4) or (5), subsection (a) of this section.
(c) Once an emergency rule expires due to the conclusion offifteen months or due to the effect of subdivision (2), (3), (4) or (5), subsection (a) of this section, the board may not refile the same or similar rule as an emergency rule.
(d) Emergency legislative rules currently in effect under the prior provisions of this section may be refiled under the provisions of this section.
(e) The provision of this section shall not be used to avoid or evade any provision of this article or any other provisions of this code, including any provisions for legislative review and approval of proposed rules. Any emergency rule promulgated for any such purpose may be contested in a judicial proceeding before a court of competent jurisdiction.
(f) The legislative oversight commission on education accountability may review any emergency rule to determine (1) whether the board has exceeded the scope of its statutory authority in promulgating the emergency rule; (2) whether there exists an emergency justifying the promulgation of such rule; and (3) whether the rule was promulgated in compliance with the requirements and prohibitions contained in this section. The commission may recommend to the board, the Legislature, or the secretary of state such action as it may deem proper.
(g) For the purposes of this section, an emergency exists when the promulgation of a rule is necessary for the immediate preservation of the public peace, health, safety or welfare or is necessary to comply with a time limitation established by this code or by a federal statute or regulation or to prevent substantial harm to the public interest.
(a) Upon the filing of an emergency rule by the board, under the provisions of section sixteen of this article, the secretary of state shall review such rule and, within forty-two days of such filing, shall issue a decision as to whether or not such emergency rule should be disapproved.
(b) The secretary of state shall disapprove an emergency rule if he determines:
(1) That the emergency rule or an amendment to the emergency rule exceeds the scope of the law authorizing or directing the promulgation thereof; or
(2) That an emergency does not exist justifying the promulgation of the emergency rule or the filing of an amendment to the emergency rule; or
(3) That the emergency rule or an amendment to the emergency rule was not promulgated in compliance with the provisions of section sixteen of this article.
(c) If the secretary of state determines, based upon the contents of the rule or the supporting information filed by the board, that the emergency rule should be disapproved, he may disapprove such rule without further investigation, notice or hearing. If, however, the secretary of state concludes that the information submitted by the board is insufficient to allow a proper determination to be made as to whether the emergency rule should be disapproved, he may make further investigation, including, but not limited to, requiring the board or other interested parties to submit additional information or comment or fixing a date, time and place for the taking of evidence on the issues involved in making a determination under the provisions of this section.
(d) The determination of the secretary of state shall be reviewable by the supreme court of appeals under its original jurisdiction, based upon a petition for a writ of mandamus, prohibition of certiorari, as appropriate. Such proceeding may be instituted by:
(1) The board;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be significantly affected by the approval or disapproval of the emergency rule by the secretary of state.
The legislative oversight commission on education accountability may review any procedural rules, interpretive rules or existing legislative rules and may make recommendations concerning such rules to the Legislature, or to the board, or to both the Legislature and the board.
Any rule lawfully promulgated prior to the effective date of this chapter shall remain in full force and effect until:
(1) Such rule is expressly made ineffective by the provisions of this chapter; or
(2) Such rule should expire by reason of failure to refile the same as provided in section five of article two, or expires pursuant to its own terms and provisions lawfully made before the effective date of this section; or
(3) Such rule is repealed by the lawful act of the board, in conformity with this chapter; or
(4) Such rule is invalidated by an act of the Legislature or the force and effect of another law.
§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.