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West Virginia Administrative Procedure Act
| Administrative State |
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| Five Pillars of the Administrative State |
| •Agency control • Executive control • Judicial control •Legislative control • Public Control |
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The West Virginia Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations and provides for judicial review of agency adjudications and other final decisions in West Virginia. It can be found in Chapter 29 A of the Code of West Virginia.[1]
Article 1: Definitions and application of chapter
§29A-1-1: Legislative findings and statement of purpose
Text of §29A-1-1:
| The Legislature finds and declares that administrative law and the administrative practice and procedure of the various executive and administrative officers, offices and agencies comprises a body of law and policy which is voluminous, often formulated without adequate public participation and collected and preserved for public knowledge and use in an unacceptable and essentially inaccessible fashion. The Legislature further finds that the delegation of its legislative powers to other departments and agencies of government requires of the Legislature that the rules and regulations of such other departments and agencies, which have the force and effect of law because of their legislative character, should be carefully and extensively reviewed by the Legislature in a manner properly respectful of the separation of powers but in keeping with the legislative force and effect of such rules and regulations. Accordingly the Legislature has and by this chapter intends to fix by law uniform and settled administrative practices and procedures, subject only to enumerated exceptions, for the exercise of executive rule- making authority and for the exercise by executive and administrative officers, offices and agencies of lawfully delegated legislative power, with appropriate legislative review of that exercise of such delegated legislative authority and with established procedures for Legislative Oversight of the exercise of executive rule-making authority.
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§29A-1-2: Definitions of terms used in this chapter
Text of §29A-1-2:
| For the purposes of this chapter:
(b) "Contested case" means a proceeding before an agency in which the legal rights, duties, interests or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing, but does not include cases in which an agency issues a license, permit or certificate after an examination to test the knowledge or ability of the applicant where the controversy concerns whether the examination was fair or whether the applicant passed the examination and does not include rulemaking. (c) "Interpretive rule" means every rule, as defined in subdivision (j) of this section, adopted by an agency independently of any delegation of legislative power which is intended by the agency to provide information or guidance to the public regarding the agency's interpretations, policy or opinions upon the law enforced or administered by it and which is not intended by the agency to be determinative of any issue affecting constitutional, statutory or common law rights, privileges or interests. An interpretive rule may not be relied upon to impose a civil or criminal sanction nor to regulate conduct or the exercise of constitutional, statutory or common law rights or privileges nor to confer any right or privilege provided by law and is not admissible in any administrative or judicial proceeding for that purpose, except where the interpretive rule established the conditions for the exercise of discretionary power as provided in this subdivision. However, an interpretive rule is admissible for the purpose of showing that the prior conduct of a person was based on good faith reliance on the rule. The admission of the rule in no way affects any legislative or judicial determination regarding the prospective effect of the rule. Where any provision of this code lawfully commits any decision or determination of fact or judgment to the sole discretion of any agency or any executive officer or employee, the conditions for the exercise of that discretion, to the extent that the conditions are not prescribed by statute or by legislative rule, may be established by an interpretive rule and such rule is admissible in any administrative or judicial proceeding to prove the conditions. (d) "Legislative exempt rule" means every rule promulgated by an agency or relating to a subject matter that is exempt from the rule-making provisions of article three of this chapter, under section three, article one of this chapter or any other section of this code. (e) "Legislative rule" means every rule, as defined in subdivision (j) of this section, proposed or promulgated by an agency pursuant to this chapter. Legislative rule includes every rule which, when promulgated after or pursuant to authorization of the Legislature, has: (1) The force of law; or (2) supplies a basis for the imposition of civil or criminal liability; or (3) grants or denies a specific benefit. Every rule which, when effective, is determinative on any issue affecting constitutional, statutory or common law rights, privileges or interests is a legislative rule. Unless lawfully promulgated as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or effect until promulgated by specific authorization of the Legislature. Except where otherwise specifically provided in this code, legislative rule does not include: (A) Findings or determinations of fact made or reported by an agency, including any findings and determinations that are required to be made by any agency as a condition precedent to proposal of a rule to the Legislature; (B) declaratory rulings issued by an agency pursuant to the provisions of section one, article four of this chapter; (C) orders, as defined in subdivision (e) of this section; or (D) executive orders or proclamations by the Governor issued solely in the exercise of executive power, including executive orders issued in the event of a public disaster or emergency. (f) "Order" means the whole or any part of the final disposition, whether affirmative, negative, injunctive or declaratory in form, by any agency of any matter other than rulemaking. (g) "Person" includes individuals, partnerships, corporations, associations or public or private organizations of any character. (h) "Procedural rule" means every rule, as defined in subdivision (j) of this section, which fixes rules of procedure, practice or evidence for dealings with or proceedings before an agency, including forms prescribed by the agency. (i) "Proposed rule" is a legislative rule, interpretive rule or a procedural rule which has not become effective pursuant to the provisions of this chapter or law authorizing its promulgation. (j) "Rule" includes every rule, standard or statement of policy or interpretation of general application and future effect, including the amendment or repeal of the rule, affecting constitutional, statutory or common law rights, privileges or interests, or the procedures available to the public, adopted by an agency to implement, extend, apply, interpret or make specific the law enforced or administered by it or to govern its organization or procedure, but does not include rules relating solely to the internal management of the agency, nor rules of which notice is customarily given to the public by markers or signs, nor mere instructions. Every rule shall be classified as "legislative rule", "interpretive rule" or "procedural rule", all as defined in this section, and is effective only as provided in this chapter. (k) "Rulemaking" means the process for the formulation, amendment or repeal of a rule as provided in this chapter.[1] |
§29A-1-3: Application of chapter; limitations
Text of §29A-1-3:
| (a) The provisions of this chapter do not apply in any respect whatever to executive orders of the Governor, which orders to the extent otherwise lawful shall be effective according to their terms: Provided, That the executive orders shall be admitted to record in the state register when and to the extent the Governor deems suitable and shall be included therein by the Secretary of State when tendered by the Governor.
(c) The provisions of this chapter do not apply to rules relating to or contested cases involving the conduct of inmates or other persons admitted to public institutions, the open seasons and the bag, creel, size, age, weight and sex limits with respect to the wildlife in this state, the conduct of persons in military service or the receipt of public assistance. Such rules shall be filed in the state register in the form prescribed by this chapter and be effective upon filing. (d) Nothing herein shall be construed to affect, limit or expand any express and specific exemption from this chapter contained in any other statute relating to a specific agency, but such exemptions shall be construed and applied in accordance with the provisions of this chapter to effectuate any limitations on such exemptions contained in any such other statute.[1] |
§29A-1-3A:Technical amendments to a current rule
Text of §29A-1-3A:
| The provisions of this chapter do not apply to purely technical amendments to a current rule, including correcting addresses, phone numbers, punctuation, spelling, code citations or internal citations, numbering, grammatical errors or changes to language to standardize rules generally without affecting the content of any rule. An agency may make these amendments by filing the corrected rule with the Secretary of State's office.[1] |
§29A-1-3B: Void rules
Text of §29A-1-3B:
| If an agency ceases to exist, through the operation of law or by statute, any rules adopted or promulgated by the agency are void on the date the agency ceases to exist, unless the agency's rule-making power and its rules have been transferred to another agency.[1] |
§29A-1-4: Application of open governmental proceedings law
Text of §29A-1-4:
| (a) All meetings of an agency, board or commission of the executive branch of government or of the legislative rule-making review committee which may only be convened upon the presence of a required quorum, and which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of a rule, as defined in subsection (i), section two of this article, are subject to the open governmental proceedings law as set forth in article nine-a, chapter six of this code, except as may otherwise be provided for in this section.
(c) When the legislative rule-making review committee is considering the form and substance of a rule or proposed rule, the informal occurrence of (1) consultations between the members of the committee and its staff members, (2) deliberations by the governing members, or (3) the engagement of a governing member or members in the process of making a decision, does not constitute a meeting within the meaning of article nine-a, chapter six of this code when, during such stages, neither a quorum nor the convening of the members of the committee is required. (d) After public hearing or the close of the public comment period, during which hearing or period an agency, board or commission has received statements concerning the form and substance of a rule or proposed rule, the agency, board or commission 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, article three of this chapter. Nothing contained herein shall prohibit the agency, board or commission from soliciting or receiving information relating to the rule or proposed rule from the federal government, from the Legislature or its members, or from another agency, board or commission of the executive branch of the government of this state. (e) After a proposed rule is approved for submission and is submitted to the legislative rule-making review committee pursuant to the provisions of section eleven, article three of this chapter, the right of the people to assemble, to petition government, to consult for the common good, to instruct their representatives, and to apply for redress of grievances, in accordance with the provisions of section sixteen, article III of the Constitution, shall reserve to a person the right to freely communicate, ex parte or otherwise, with the agency, board or commission or the legislative rule-making review committee in attempts to influence deliberations or decision-making regarding the form and substance of the proposed rule prior to authorization being granted for promulgation of the rule.[1] |
Article 2: State register
§29A-2-1: Duty of the Secretary of State
Text of §29A-2-1:
| It is the nondiscretionary, nondelegable duty of the Secretary of State to establish and maintain the state register hereby created, and offer copies for subscription and public distribution in accordance with the provisions of this article.[1] |
§29A-2-2: State register created
Text of §29A-2-2:
| There is hereby created in the office of the Secretary of State, a public record to be known and denominated as the state register, to be established, compiled, indexed and copied, and such copies offered for subscription and distribution, in accordance with the provisions of this article.[1] |
§29A-2-3: Contents of state register
Text of §29A-2-3:
| The Secretary of State shall receive and file in the state register:
(b) The text of every proposed rule and subsequent proposed amendment thereto and fiscal notes attached thereto. (c) Every determination of fact or judgment tendered by an agency for inclusion therein and every notice of submission to the Legislature or its rule-making review committee made in conformity with this chapter. (d) Every executive order tendered by the Governor. (e) Every notice of and the text of any report or finding of the legislative rule-making review committee and such other material as may be tendered by the clerk or presiding officer of either house of the Legislature for filing in the state register. (f) Such other material related to administrative procedures and actions as an agency may desire to make a public record or the Secretary of State may deem appropriate, or where required by law. (g) Notice of and the text of any action by an agency of the Legislature or its committees relative to the process of promulgation of rules tendered to the Secretary of State for inclusion in the register. (h) Every other paper required by law to be filed in such register or which may be filed therein in order to comply with any other provision of law.[1] |
§29A-2-4: Contents of state register deemed a public record
Text of §29A-2-4:
| Every paper filed in the state register shall be a public record provable and admissible as evidence if otherwise relevant, of which judicial notice may be taken, either under lawful certification or by reason of duplication and distribution as a copy of the state register in accordance with this article.[1] |
§29A-2-5: Agency rules to be filed in state register; failure to file
Text of §29A-2-5:
| (a) Notwithstanding any filing prior to the effective date of this section, each agency shall hereafter file in the state register a certified copy of all of its lawfully adopted rules which are in force on the date of such filing and all of its proposed rules which have not become effective prior to the date of such filing. All such rules and proposed rules shall be arranged, compiled, numbered and indexed in accordance with the provisions of section six of this article, and shall also include a designation of each rule as either legislative rule, interpretive rule or procedural rule. Any agency desiring to pursue promulgation of a rule proposed prior to the effective date of this section but not then yet effective, shall refile such proposed rule, following the procedure set forth in article three: Provided, That it shall not be necessary for the agency to again hold a public hearing to determine facts or public comment, but in all other respects the procedures provided for the promulgation of rules under this section shall be complied with. On or before January 1, 1983, any other agency required by law to file its rules in the state register in order for such rules to be effective shall resubmit and refile such rules in accordance with this section. If any agency fails to file a certified copy of any rule or proposed rule in accordance with this section on or before January 1, 1983, then such rule or proposed rule not so filed shall be thereafter void and unenforceable and shall be of no further force and effect except as to enforcement of its effective provisions for actions, causes or matters occurring prior to January 1, 1983.
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§29A-2-6: Format and numbering of agency rules filed in State Register; electronic filing required beginning July 1, 2011; pilot project
Text of §29A-2-6:
| (a) Each proposed rule filed by an agency requiring a notice to be published in the state Register in accordance with the provisions of section five, article three of this chapter shall include as its initial provisions: (1) A statement identifying such rule as a legislative rule, an interpretive rule or a procedural rule, as the case may be; (2) a statement of such section, article and chapter of this code to which such rule or any part thereof relates; and (3) a statement of the section, article and chapter of this code or any other provision of law which provides authority for the promulgation of such rule. The agency shall be estopped from relying on any authority for the promulgation of such rule which is not stated therein in accordance with the requirements of this subdivision.
(c) The Secretary of State shall prescribe by legislative rule a standard size, format, numbering and indexing for rules to be filed in the state Register, and may prescribe procedural or interpretive rules to clarify and interpret the provisions in this section. The Secretary of State shall refuse to accept for filing any rules which do not comply with the specific provisions of this section. The Secretary of State may also refuse to accept any rules which do not comply with the rules issued pursuant to this section. (d) Unless and until the Secretary of State prescribes otherwise by rule issued and made effective under the provisions of subsection (c) of this section, each rule filed in paper form in the state Register shall be on white paper measuring eight and one-half inches by eleven inches, typewritten and single-spaced, with a one inch margin at the top, bottom and each side of each page, and shall be reproduced photographically, or by xerography or other duplication process. The Secretary of State may grant specific exceptions to such requirements in the case of maps, diagrams and exhibits, if the same may not be conveniently folded and fastened with the other pages of rules and in the case of rules which incorporate a rule or regulation of a federal agency or other organization which could not be submitted in the standard size and format except at undue expense. Materials submitted for inclusion in the state Register shall be fastened on the left side by two or more fasteners attached through holes suitable for insertion into ring binders. (e)(1) Beginning July 1, 2011, unless otherwise authorized by the Secretary of State, all agencies, boards and commissions having rulemaking authority, shall file the provisions of and attachments to all proposed rules required to be filed with the Secretary of State, and any associated documents that are required to be published in the state Register, exclusively in a electronic format. The Secretary of State may exempt an agency, board or commission from this requirement upon the Secretary of State's determination that the filer is without the means to electronically file the documents and to require electronic filing would place an unreasonable burden on the agency, board or commission. (2) On or before July 1, 2010, the Secretary of State shall propose for promulgation legislative rules to establish a uniform system for the electronic filing required by the provisions of this section and to otherwise implement those provisions. (3) During the calendar year 2010, through procedural rules, the Secretary of State may institute a limited pilot project through which proposed new rules or amendments to existing rules may be filed electronically by any agency, board or commission under agreement with the Secretary of State. Participation by any agency, board or commission in the pilot project is voluntary.[1] |
§29A-2-7: Publication of State Register
Text of §29A-2-7:
| (a) The Legislature intends that the Secretary of State offer to the public access to the State Register and Code of State Rules. The State Register, the Code of State Rules and other documents produced by the Secretary of State's office shall be available in electronic format on the Secretary of State's website.
(1) Agency; (2) Code citation to which it relates and by which it is filed in the State Register; and (3) Other information in the description or cross index as the Secretary of State believes will aid a person in using the index. (c) The Secretary of State shall post on the website with each update of the Code of State Rules, a copy of the rule monitor and its cross index which shows the rules that have become effective, and a table showing rules which are out for public comment, and agency-approved, modified and emergency rules. (d) The Secretary of State may propose rules for legislative approval, in accordance with the provisions of article three of this chapter, to change the procedures outlined in this section. (e) One half of all the fees and amounts collected for the sale of the State Register, the Code of State Rules and other copies or data provided by the Secretary of State shall be deposited in the State General Revenue Fund and one half of the fees in the service fees and collections account established in accordance with subsection (f), section two, article one, chapter fifty-nine of this code for the operations of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article. (f) A person who is unable to access electronic versions of documents may review the documents at the office of the Secretary of State, or may request a printed copy at a cost which is sufficient, in the judgment of the Secretary of State, to defray the expenses of publication, including labor, paper and postage: Provided, That the Secretary of State may waive the fee.[1] |
§29A-2-9: Making orders and records available
Text of §29A-2-9:
| Every agency shall file in the state register all final orders, decisions and opinions in the adjudication of contested cases except those required for good cause to be held confidential and not cited as precedent. Except as otherwise required by statute, matters of official record shall be made available for public inspection pursuant to rules adopted in accordance with the provisions of this chapter.[1] |
Article 3: Rule making
§29A-3-1: Rules to be promulgated only in accordance with this article
Text of §29A-3-1:
| 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, and except as provided for in article three-a of this chapter, every rule and regulation (including any amendment of or rule to repeal any other rule) shall be promulgated by an agency 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.[1] |
§29A-3-1A: Filing proposed amendments to an existing rule; and repealing an existing rule
Text of §29A-3-1A:
| (a) An agency shall file all sections of the proposed rule when proposing an amendment to an existing rule. The proposed rule shall be accompanied by note of explanation as to the effect of the amendment and its relation to the existing rules.
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§29A-3-1B: Rules of the tax department
Text of §29A-3-1B:
| Notwithstanding the provisions of section eight, article two of this chapter, the Tax Commissioner may reproduce the same in his state tax bulletin and may, upon request, distribute copies of the proposed or emergency rule after such proposed or emergency rule has been filed in the state register and may charge a reasonable fee in an amount set to recover his cost of duplicating and mailing the same. The moneys so received shall be deposited in the treasury to the credit of the Tax Commissioner's account for printing, office supplies or postage.[1] |
§29A-3-2: Limitations on authority to exercise rule-making power
Text of §29A-3-2:
| (a) Except when, and to the extent, that this chapter or any other provision of law now or hereafter made expressly exempts an agency, or a particular grant of the rule-making power, from the provisions of this article, every grant of rule-making authority to an executive or administrative officer, office or agency, heretofore provided, shall be construed and applied to be effective only:
(2) If exercised in accordance with the provisions hereof. (b) No executive or administrative agency shall be deemed to have 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.[1] |
§29A-3-3: Rules of procedure required
Text of §29A-3-3:
| In addition to other rule-making requirements imposed by law:
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§29A-3-4: Filing of proposed legislative exempt rules, procedural rules and interpretive rules
Text of §29A-3-4:
| (a) When an agency proposes a legislative exempt rule, 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.
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§29A-3-5: Notice of proposed rulemaking
Text of §29A-3-5:
| 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.
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.[1] |
§29A-3-6: Filing findings and determinations for rules in state register; evidence deemed public record
Text of §29A-3-6:
| (a) Incident to fixing a date for public comment on a proposed rule, the agency 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 agency 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.
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§29A-3-7: Notice of hearings
Text of §29A-3-7:
| Notices of hearings required by sections five and six 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 agency 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.[1] |
§29A-3-8: Adoption of legislative exempt, procedural and interpretive rules
Text of §29A-3-8:
| An agency shall consider a legislative exempt, procedural and interpretive rule for adoption not later than six months after the close of public comment and file a notice of withdrawal or adoption in the State Register within that period. An agency's failure to file the notice constitutes withdrawal and the Secretary of State shall note the failure in the State Register immediately upon the expiration of the six-month period.
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§29A-3-9: Proposal of legislative rules
Text of §29A-3-9:
| 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.
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§29A-3-10: Creation of a legislative rule-making review committee
Text of §29A-3-10:
| (a) There is hereby created a joint committee of the Legislature, known as the legislative rule-making review committee, to review all legislative rules of the several agencies and such other rules as the committee deems appropriate. The committee 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. In addition, the President of the Senate and the Speaker of the House of Delegates shall be ex officio nonvoting members of the committee and shall designate the cochairmen. Not more than four of the voting members of the committee from each house shall be members of the same political party: Provided, That in the event the membership of a political party is less than fifteen percent in the House of Delegates or Senate, then the membership of that political party from the legislative house with less than fifteen percent membership may be one from that house. The members shall serve until their successors shall have been appointed as heretofore provided. Members of the committee 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 rule-making review committee, 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 No. 103 for joint expenses shall be incurred unless first approved by the Joint Committee on Government and Finance. The committee shall meet at any time, both during sessions of the Legislature and in the interim.
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§29A-3-11: Submission of legislative rules to the Legislative Rule-Making Review Committee
Text of §29A-3-11:
| (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:
(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.[1] |
§29A-3-12: Submission of legislative rules to Legislature
Text of §29A-3-12:
| (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 twenty-five 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.
(b) If the Legislature during its regular session disapproves all or part of any legislative rule which was submitted to it by the legislative rule-making review committee during such 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, except that the agency may resubmit the same or similar proposed rule to the legislative rule-making review committee in accordance with the provisions of section eleven of this article. (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) As a part of any act that amends chapter sixty-four of this code, authorizing the promulgation of a proposed legislative rule or rules, the Legislature may also provide, by general language or with specificity, for the disapproval of rules not approved or acted upon by the Legislature. (f) Whenever a date is required by this section to be computed in relation to the end of a regular session of the Legislature, such date shall be computed without regard to any extensions of such session occasioned solely by the proclamation of the Governor. (g) Whenever a date is required to be computed from or is fixed by the first day of a regular session of the Legislature, it shall be computed or fixed in the year one thousand nine hundred eighty-four, and each fourth year thereafter without regard to the second Wednesday of January of such years.[1] |
§29A-3-13: Adoption of legislative rules; effective date
Text of §29A-3-13:
| (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 agency shall promulgate the rule in conformity with the provisions of law authorizing and directing the promulgation of the rule. In the case of a rule proposed by an agency which is administered by an executive department pursuant to the provisions of article two, chapter five-f of this code, the secretary of the department shall promulgate the rule as authorized by the Legislature. In the case of an agency which is not subject to administration by the secretary of an executive department, the agency which proposed the rule for promulgation shall promulgate the rule as authorized by the Legislature.
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§29A-3-14: Withdrawal or modification of proposed rules
Text of §29A-3-14:
| (a) Any legislative rule proposed by an agency may be withdrawn by the agency 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 agency shall file a notice of any such action in the state register.
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§29A-3-15: Emergency legislative rules; procedure for promulgation; definition
Text of §29A-3-15:
| (a) Any agency with authority to propose legislative rules may, without hearing, find that an emergency exists requiring that an emergency rule be promulgated and promulgate the emergency rule in accordance with this section. The agency shall file the emergency rule, together with a statement of the facts and circumstances constituting the emergency and a listing of state agencies, professions, businesses and other identifiable interest groups affected by the proposed emergency rule, with the Secretary of State, who shall publish a notice of the filing in the State Register. However, an agency's good faith failure to list all known state agencies, professions, businesses and other identifiable interest groups is not a basis for disapproval of the emergency rule or does not subject the emergency rule to judicial review. The emergency rule becomes effective upon the approval of the Secretary of State in accordance with section fifteen-a of this article or upon the approval of the Attorney General in accordance with section fifteen-b of this article or upon the forty-second day following the filing, whichever occurs first. The emergency rule may adopt, amend or repeal any legislative rule, but the agency shall state, with particularity, the circumstances constituting the emergency requiring the adoption, amendment or repeal, and the emergency rule is subject to de novo review by any court having original jurisdiction of an action challenging its validity. An agency shall immediately file a copy of the emergency rule and the required statement with the Secretary of State and one copy with the Legislative Rule-Making Review Committee.
(1) The Secretary of State, acting under the authority provided in section fifteen-a of this article, or the Attorney General, acting under the authority provided in section fifteen-b 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 of the rule; (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 clauses (A) or (B) of this subdivision on the basis that the Secretary of State or the Attorney General disagrees with the underlying public policy established by the Legislature in enacting the authorizing 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 agency has failed to file the emergency rule prior to the date fixed by the time limitation. When the authorizing statute specifically directs an agency 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 an agency to promulgate the emergency rule, or has not specifically found that an emergency exists and directed the promulgation of an emergency rule; (2) The agency has not previously filed and fails to file a notice of public hearing on the proposed rule within thirty days of the date the proposed rule was filed as an emergency rule, in which case the emergency rule expires on the thirty-first day; (3) The agency has not previously filed and fails to file the proposed rule as approved by the agency following the close of the public comment period with the Legislative Rule-Making Review Committee within ninety days of the date the proposed rule was filed as an emergency rule, in which case the emergency rule expires on the ninety-first day; (4) The Legislature has authorized or directed promulgation of an authorized legislative rule dealing with substantially the same subject matter since the emergency rule was first promulgated, in which case the emergency rule expires on the date the authorized rule is made effective; or (5) The Legislature has, by law, disapproved the emergency rule, in which case the emergency rule expires on the date the law becomes effective. (b) Any amendment to an emergency rule made by the agency 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: Provided, That the emergency amendment becomes effective upon the approval of the Secretary of State in accordance with section fifteen-a of this article or upon approval of the Attorney General in accordance with section fifteen-b of this article or upon the forty-second day following the filing, whichever occurs first. (c) Once an emergency rule expires due to the conclusion of fifteen months or due to the effect of subdivision (2), (3), (4) or (5), subsection (a) of this section, the agency may not refile the same or similar rule as an emergency rule. (d) An agency may not use the provisions of this section 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 that purpose may be contested in a judicial proceeding before a court of competent jurisdiction. (e) The Legislative Rule-Making Review Committee may review any emergency rule to determine: (1) Whether the emergency rule or an amendment to the emergency rule exceeds the scope of the law authorizing or directing its promulgation; (2) whether there exists an emergency justifying the promulgation of the emergency rule; and (3) whether the emergency rule was promulgated in compliance with the requirements and prohibitions contained in this section. The committee may recommend to the agency, the Legislature or the Secretary of State any action it determines appropriate. (f) For the purposes of this section, an emergency exists when the promulgation of an emergency rule is necessary: (1) For the immediate preservation of the public peace, health, safety or welfare; (2) to comply with a time limitation established by this code or by a federal statute or regulation; or (3) to prevent substantial harm to the public interest.[1] |
§29A-3-15A: Disapproval of emergency rules and amendments to emergency rules by the secretary of state; judicial review
Text of §29A-3-15A:
| (a) Upon the filing of an emergency rule or filing of an amendment to an emergency rule by an agency, under the provisions of section fifteen of this article, by any agency, except for the Secretary of State, the Secretary of State shall review such rule or such amendment and, within forty-two days of such filing, shall issue a decision as to whether or not such emergency rule or such amendment to an emergency rule should be disapproved. An emergency rule filed by the Secretary of State shall be reviewed by the Attorney General as provided for in section fifteen-b of this article.
(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 fifteen of this article. (c) If the Secretary of State determines, based upon the contents of the rule or the supporting information filed by the agency, 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 agency 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 agency 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) If the Secretary of State determines, based upon the contents of the amendment to an emergency rule or the supporting information filed by the agency, that the amendment to the emergency rule should be disapproved, he may disapprove such amendment without further investigation, notice or hearing. If, however, the Secretary of State concludes that the information submitted by the agency is insufficient to allow a proper determination to be made as to whether the amendment should be disapproved, he may make further investigation, including, but not limited to, requiring the agency 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. (e) 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 or certiorari, as appropriate. Such proceeding may be instituted by: (1) The agency which promulgated the emergency rule; (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.[1] |
§29A-3-15B: Disapproval of emergency rules and amendments to emergency rules by the attorney general; judicial review
Text of §29A-3-15B:
| (a) Upon the filing of an emergency rule or filing of an amendment to an emergency rule by the Secretary of State under the provisions of section fifteen of this article, the Attorney General shall review such rule or such amendment and, within forty-two days of such filing, shall issue a decision as to whether or not such emergency rule or such amendment to an emergency rule should be disapproved.
(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 fifteen of this article. (c) If the Attorney General determines, based upon the contents of the rule or the supporting information filed by the Secretary of State, that the emergency rule should be disapproved, he may disapprove such rule without further investigation, notice or hearing. If, however, the Attorney General concludes that the information submitted by the Secretary of State 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 Secretary of State 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) If the Attorney General determines, based upon the contents of the amendment to an emergency rule or the supporting information filed by the agency, that the amendment to the emergency rule should be disapproved, he may disapprove such amendment without further investigation, notice or hearing. If, however, the Attorney General concludes that the information submitted by the agency is insufficient to allow a proper determination to be made as to whether the amendment should be disapproved, he may make further investigation, including, but not limited to, requiring the agency 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. (e) The determination of the Attorney General shall be reviewable by the Supreme Court of Appeals under its original jurisdiction, based upon a petition for a writ of mandamus, prohibition or certiorari, as appropriate. Such proceeding may be instituted by: (1) The Secretary of State; (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 Attorney General.[1] |
§29A-3-16: Legislative review of procedural rules, interpretive legislative rules
Text of §29A-3-16:
| (a) The Legislative Rule-Making Review Committee may, with the assistance of the Legislative Auditor's Office, review any procedural rule, interpretive rule or existing legislative rule to determine if the rule is achieving its purpose, and based on its determination, if the rule should be continued, amended or repealed.
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§29A-3-17: Prior rules
Text of §29A-3-17:
| Any rule lawfully promulgated prior to the effective date of this chapter shall remain in full force and effect until:
(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 agency, 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.[1] |
§29A-3-18: Severability of legislative rules
Text of §29A-3-18:
| Unless there is a provision in a legislative rule specifying that the provisions thereof shall not be severable, the provisions of every legislative rule, whether enacted before or subsequent to the effective date of this section, shall be severable so that if any provision of any rule section or amendment thereto is held to be unconstitutional or void, the remaining provisions of the rule shall remain valid, unless the court finds the valid provisions are so essentially and inseparably connected with, and so dependent upon, the unconstitutional or void provision that the court cannot presume the Legislature would have enacted the remaining valid provisions without the unconstitutional or void one, or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent: Provided, That if any legislative rule has its own severability clause, then that severability clause shall govern and control with respect to that section, in lieu of the provisions of this section. The provisions of this section shall be fully applicable to all future amendments to legislative rules, with like effect as if the provisions of this section were set forth in extenso and every such amendment were reenacted as a part thereof, unless such amendment to the legislative rule contains its own severability clause.[1] |
§29A-3-19: Sunset provision in rules
Text of §29A-3-19:
| (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.
(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.[1] |
§29A-3-20: Executive review of agency rules, guidelines, policies and recommendations
Text of §29A-3-20:
| (a) All executive agencies with rule-making authority shall:
(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.[1] |
Article 3A: Higher education rule making
§29A-3A-1: Definitions
Text of §29A-3A-1:
| As used in this article:
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§29A-3A-2: Rules to be promulgated only in accordance with this article
Text of §29A-3A-2:
| 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.[1] |
§29A-3A-3: Limitations on authority to exercise rule-making power
Text of §29A-3A-3:
| (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:
(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.[1] |
§29A-3A-4: Rules of procedure required
Text of §29A-3A-4:
| In addition to other rule-making requirements imposed by law:
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§29A-3A-5: Filing of proposed procedural rules and interpretive rules
Text of §29A-3A-5:
| (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.
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§29A-3A-6: Notice of proposed rule making
Text of §29A-3A-6:
| 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.
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.[1] |
§29A-3A-7: Filing findings and determinations for rules in state register; evidence deemed public record
Text of §29A-3A-7:
| (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.
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§29A-3A-8: Notice of hearings
Text of §29A-3A-8:
| 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.[1] |
§29A-3A-9: Adoption of procedural and interpretive rules
Text of §29A-3A-9:
| 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.
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§29A-3A-10: Proposal of legislative rules
Text of §29A-3A-10:
| 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.
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§29A-3A-11: Creation of a Legislative Oversight commission on education accountability
Text of §29A-3A-11:
| (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.
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§29A-3A-11A: Additional powers and duties; subpoena powers
Text of §29A-3A-11A:
| (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.
(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] |
§29A-3A-12: Submission of legislative rules to the Legislative Oversight commission on education accountability
Text of §29A-3A-12:
| (a) When the board finally approves a proposed legislative rule for submission to the Legislature, pursuant to the provisions of section ten of this article, the board shall submit to the Legislative Oversight commission on education accountability at its offices or at a regular meeting of such commission fifteen copies of the following:
(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.[1] |
§29A-3A-13: Submission of legislative rules to Legislature
Text of §29A-3A-13:
| (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.
(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.[1] |
§29A-3A-14: Adoption of legislative rules; effective date
Text of §29A-3A-14:
| (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.
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§29A-3A-15: Withdrawal or modification of proposed rules
Text of §29A-3A-15:
| (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.
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§29A-3A-16: Emergency legislative rules; procedure for promulgation; definition
Text of §29A-3A-16:
| (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.
(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 of fifteen 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.[1] |
§29A-3A-16A: Disapproval of emergency rules by the secretary of state; judicial review
Text of §29A-3A-16A:
| (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.
(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.[1] |
§29A-3A-17: Legislative review of procedural rules, interpretive rules and existing legislative rules
Text of §29A-3A-17:
| 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.[1] |
§29A-3A-18: Prior rules
Text of §29A-3A-18:
| Any rule lawfully promulgated prior to the effective date of this chapter shall remain in full force and effect until:
(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.[1] |
§29A-3A-19: Severability of legislative rules
Text of §29A-3A-19:
| Unless there is a provision in a legislative rule specifying that the provisions thereof shall not be severable, the provisions of every legislative rule, whether enacted before or subsequent to the effective date of this section, shall be severable so that if any provision of any rule section or amendment thereto is held to be unconstitutional or void, the remaining provisions of the rule shall remain valid, unless the court finds the valid provisions are so essentially and inseparably connected with, and so dependent upon, the unconstitutional or void provision that the court cannot presume the Legislature would have enacted the remaining valid provisions without the unconstitutional or void one, or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent: Provided, That if any legislative rule has its own severability clause, then that severability clause shall govern and control with respect to that section, in lieu of the provisions of this section. The provisions of this section shall be fully applicable to all future amendments to legislative rules, with like effect as if the provisions of this section were set forth in extenso and every such amendment were reenacted as a part thereof, unless such amendment to the legislative rule contains its own severability clause.[1] |
§29A-3A-20: Sunset provision in rules
Text of §29A-3A-20:
| (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.
(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.[1] |
Article 3B: State Board of Education rule making
§29A-3B-1: Definitions
Text of §29A-3B-1:
| As used in this article:
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§29A-3B-2: Rules to be promulgated in accordance with this article
Text of §29A-3B-2:
| 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 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.[1] |
§29A-3B-3: Rules of procedure required
Text of §29A-3B-3:
| In addition to other rule-making requirements imposed by law:
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§29A-3B-4: Filing of proposed rules
Text of §29A-3B-4:
| (a) When the board proposes a procedural, interpretive or legislative rule, the agency shall file in the state register a notice of its action, including the text of the rule as proposed.
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§29A-3B-5: Notice of proposed rule making
Text of §29A-3B-5:
| When the board proposes to promulgate a rule other than an emergency rule, it shall file in the state register a notice of its action, including a text of the rule proposed, a fiscal note as defined in subsection (b) of section four, and any request for the submission of evidence to be presented on any factual determinations or inquiries required by law to promulgate such rule. If the board is considering alternative draft proposals, it may include the text thereof.
If findings and determinations are a condition precedent to the promulgation of such rule, then an opportunity for 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. 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.[1] |
§29A-3B-6: Filing findings and determinations for rules in state register; evidence deemed public record
Text of §29A-3B-6:
| (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.
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§29A-3B-7: Notice of hearings
Text of §29A-3B-7:
| Notices of hearings required by section five 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.[1] |
§29A-3B-8: Adoption of rules
Text of §29A-3B-8:
| A 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.
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§29A-3B-9: Submission of legislative rules to the Legislative Oversight Commission on Education Accountability
Text of §29A-3B-9:
| (a) When the board proposes a legislative rule, the board shall submit the following to the Legislative Oversight Commission on Education Accountability: (1) The full text of the legislative rule as proposed by the board and filed with the office of the Secretary of State, 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.
(1) By submitting twenty copies of the proposed rule to the Legislative Oversight Commission on Education Accountability at its offices or at a regular meeting of the commission; or (2) By submitting the proposed rule electronically to the Legislative Oversight Commission on Education Accountability. Proposed rules submitted electronically shall be transmitted in a timely manner, shall contain all required information and shall be compatible with computer applications in use by the Legislative Oversight Commission on Education Accountability. (c) 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. (d) After reviewing the legislative rule, the commission may recommend to the board any changes needed to comply with the legislative intent of the statute upon which the rule is based or otherwise to modify the activity subject to the rule, or may make any other recommendations to the board as it considers appropriate. (e) When the board finally adopts a legislative rule, the board shall submit to the Legislative Oversight Commission on Education Accountability at its offices or at a regular meeting of the commission six copies of the rule as adopted by the board. The board, at its discretion, may meet the filing requirement contained in this subsection by submitting the legislative rule in electronic format to the Legislative Oversight Commission on Education Accountability. Rules submitted electronically shall be transmitted in a timely manner and shall be compatible with computer applications in use by the Legislative Oversight Commission on Education Accountability. (f) After reviewing the legislative rule, the commission may recommend to the Legislature any statutory changes needed to clarify the legislative intent of the statute upon which the rule is based or may make any other recommendations to the Legislature as it considers appropriate.[1] |
§29A-3B-10: Emergency legislative rules; procedure for promulgation; definition
Text of §29A-3B-10:
| (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.
(c) An emergency rule shall be effective for not more than fifteen months and shall expire earlier if any of the following occurs: (1) 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. (2) 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. (3) The board adopts a 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. (d) 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 (1), (2) or (3), subsection (c) of this section. (e) Once an emergency rule expires due to the conclusion of fifteen months or due to the effect of subdivision (1), (2) or (3), subsection (c) of this section, the board may not refile the same or similar rule as an emergency rule. (f) Emergency legislative rules currently in effect under the prior provisions of this section may be refiled under the provisions of this section. (g) 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 of proposed rules. Any emergency rule promulgated for any such purpose may be contested in a judicial proceeding before a court of competent jurisdiction. (h) 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.[1] |
§29A-3B-11: Legislative review of procedural rules, interpretive rules and existing legislative rules
Text of §29A-3B-11:
| 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.[1] |
§29A-3B-12: Prior rules
Text of §29A-3B-12:
| Any rule lawfully promulgated prior to the effective date of this chapter shall remain in full force and effect until:
(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.[1] |
Article 4: Declaratory rulings and declaratory judgments
§29A-4-1: Declaratory rulings by agencies
Text of §29A-4-1:
| On petition of any interested person, an agency may issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it. A declaratory ruling, if issued after argument and stated to be binding, is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside by a court, but it shall not be binding on any other person. Such ruling is subject to review before the court and in the manner hereinafter provided for the review of orders or decisions in contested cases. Each agency may prescribe by rule the form for such petitions and the procedure for their submission, consideration and disposition.[1] |
§29A-4-2: Declaratory judgment on validity of rule
Text of §29A-4-2:
| (a) Any person, except the agency promulgating the rule, may have the validity of any rule determined by instituting an action for a declaratory judgment in the circuit court of Kanawha county, West Virginia, when it appears that the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair, the legal rights or privileges of the plaintiff or plaintiffs. The agency shall be made a party to the proceeding. The declaratory judgment may be rendered whether or not the plaintiff or plaintiffs has or have first requested the agency to pass upon the validity of the rule in question.
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Article 5: Contested cases
§29A-5-1: Notice required; hearing; subpoenas; witness fees, etc.; depositions; records
Text of §29A-5-1:
| (a) In any contested case all parties shall be afforded an opportunity for hearing after at least ten days' written notice. The notice shall contain the date, time and place of the hearing and a short and plain statement of the matters asserted. If the agency is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application a more definite and detailed statement shall be furnished. An opportunity shall be afforded all parties to present evidence and argument with respect to the matters and issues involved. The required notice must be given as specified in section two, article seven of this chapter. All of the testimony and evidence at any such hearing shall be reported by stenographic notes and characters or by mechanical means. All rulings on the admissibility of testimony and evidence shall also be reported. The agency shall prepare an official record, which shall include reported testimony and exhibits in each contested case, and all agency staff memoranda and data used in consideration of the case, but it shall not be necessary to transcribe the reported testimony unless required for purposes of rehearing or judicial review. Informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order or default. Each agency shall adopt appropriate rules of procedure for hearing in contested cases.
(c) Evidentiary depositions may be taken and read as in civil actions in the circuit courts of this state. (d) All hearings shall be conducted in an impartial manner. The agency, any member of the body which comprises the agency, or any hearing examiner or other person permitted by statute to hold any such hearing for such agency, and duly authorized by such agency so to do, shall have the power to: (1) Administer oaths and affirmations, (2) rule upon offers of proof and receive relevant evidence, (3) regulate the course of the hearing, (4) hold conferences for the settlement or simplification of the issues by consent of the parties, (5) dispose of procedural requests or similar matters, and (6) take any other action authorized by a rule adopted by the agency in accordance with the provisions of article three of this chapter. (e) Except where otherwise provided by statute, the hearing in any contested case shall be held in the county selected by the agency. (f) Notwithstanding the provisions of subparagraph (a) of this section, upon request to the agency from any party to the hearing all reported testimony and evidence at such hearing shall be transcribed, and a copy thereof furnished to such party at his expense. The agency shall have the responsibility for making arrangements for the transcription of the reported testimony and evidence, and such transcription shall be accomplished with all dispatch.[1] |
§29A-5-2: Rules of evidence; taking notice of facts; correction of transcript
Text of §29A-5-2:
| (a) In contested cases irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the circuit courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Agencies shall be bound by the rules of privilege recognized by law. Objections to evidentiary offers shall be noted in the record. Any party to any such hearing may vouch the record as to any excluded testimony or other evidence.
(c) Every party shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence. (d) Agencies may take notice of judicially cognizable facts. All parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. (e) Upon motion in writing served by any party as notice may be served pursuant to section two, article seven of this chapter and therein assigning error or omission in any part of any transcript of the proceedings had and testimony taken at any such hearing, the agency shall settle all differences arising as to whether such transcript truly discloses what occurred at the hearing and shall direct that the transcript be corrected and revised in the respects designated by the agency, so as to make it conform to the whole truth.[1] |
§29A-5-3: Orders or decisions
Text of §29A-5-3:
| Every final order or decision rendered by any agency in a contested case shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. Prior to the rendering of any final order or decision, any party may propose findings of fact and conclusions of law. If proposed, all other parties shall be given an opportunity to except to such proposed findings and conclusions, and the final order or decision shall include a ruling on each proposed finding. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. A copy of the order or decision and accompanying findings and conclusions shall be served upon each party and his attorney of record, if any, in person or by registered or certified mail.[1] |
§29A-5-4: Judicial review of contested cases
Text of §29A-5-4:
| (a) Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means of review, redress or relief provided by law.
(c) The filing of the petition shall not stay enforcement of the agency order or decision or act as a supersedeas thereto, but the agency may stay such enforcement, and the appellant, at any time after the filing of his petition, may apply to such circuit court for a stay of or supersedeas to such final order or decision. Pending the appeal, the court may grant a stay or supersedeas upon such terms as it deems proper. (d) Within fifteen days after receipt of a copy of the petition by the agency, or within such further time as the court may allow, the agency shall transmit to such circuit court the original or a certified copy of the entire record of the proceeding under review, including a transcript of all testimony and all papers, motions, documents, evidence and records as were before the agency, all agency staff memoranda submitted in connection with the case, and a statement of matters officially noted; but, by stipulation of all parties to the review proceeding, the record may be shortened. The expense of preparing such record shall be taxed as a part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the court. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs involved. Upon demand by any party to the appeal, the agency shall furnish, at the cost of the party requesting same, a copy of such record. In the event the complete record is not filed with the court within the time provided for in this section, the appellant may apply to the court to have the case docketed, and the court shall order such record filed. (e) Appeals taken on questions of law, fact or both, shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued. The court or judge shall fix a date and time for the hearing on the petition, but such hearing, unless by agreement of the parties, shall not be held sooner than ten days after the filing of the petition, and notice of such date and time shall be forthwith given to the agency. (f) The review shall be conducted by the court without a jury and shall be upon the record made before the agency, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs. (g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are: (1) In violation of Constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (h) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals of this state in accordance with the provisions of section one, article six of this chapter.[1] |
§29A-5-5: Exceptions
Text of §29A-5-5:
| The provisions of this article shall not apply to the workers' compensation fund, the Bureau of Employment Programs, the State Tax Commissioner, the state road commissioner, the state road commission, and the teachers' retirement board.[1] |
Article 6: Appeals
§29A-6-1: Supreme court of appeals
Text of §29A-6-1:
| Any party adversely affected by the final judgment of the circuit court under this chapter may seek review thereof by appeal to the Supreme Court of Appeals of this state, and jurisdiction is hereby conferred upon such court to hear and entertain such appeals upon application made therefor in the manner and within the time provided by law for civil appeals generally.[1] |
Article 7: General provisions
§29A-7-1: Limitations on certain administrative powers
Text of §29A-7-1:
| No process, requirement of a report, inspection, or other investigative act or demand shall be issued, made, or enforced in any manner or for any purpose except as authorized by law.[1] |
§29A-7-2: Notice generally
Text of §29A-7-2:
| Whenever an agency or person is authorized or required to give any notice under this chapter, unless a different method of giving such notice is otherwise expressly permitted or prescribed, such notice shall be given either by personal delivery thereof to the agency or person to be so notified, or by depositing such notice in the United States mail, postage prepaid, in an envelope addressed to such agency or person at the last-known address of such agency or person. Proof of the giving of notice in either such manner may be made by the affidavit of any officer or assistant or employee of the agency, or by affidavit of any person over eighteen years of age, naming the agency or person to which or to whom such notice was given and specifying the time, place and manner of the giving thereof.[1] |
§29A-7-3: Repeals; subsequent legislation
Text of §29A-7-3:
| All acts or parts of acts which are inconsistent with the provisions of this chapter are hereby repealed to the extent of such inconsistency, but such repeal shall not affect pending proceedings. No subsequent legislation shall be held to supersede or modify the provisions of this chapter except to the extent that such legislation shall do so specifically and expressly.[1] |
§29A-7-4: Construction and effect; severability of provisions
Text of §29A-7-4:
| Nothing in this chapter shall be held to limit or repeal additional requirements imposed by statute or otherwise recognized by law. No procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of this chapter. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the chapter which can be given effect without the invalid provision or its application, and to this end the provisions of this chapter are declared to be severable.[1] |
See also
External links
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 1.39 1.40 1.41 1.42 1.43 1.44 1.45 1.46 1.47 1.48 1.49 1.50 1.51 1.52 1.53 1.54 1.55 1.56 1.57 1.58 1.59 1.60 1.61 1.62 1.63 1.64 1.65 1.66 1.67 1.68 1.69 1.70 1.71 1.72 1.73 1.74 1.75 1.76 1.77 1.78 1.79 1.80 1.81 1.82 1.83 1.84 West Virginia Code, "State Administrative Procedures Act," accessed July 13, 2023
