Understanding Emergency Rules
An emergency rule may be promulgated only when an emergency exists, or when the law specifically authorizes an emergency rule to allow implementation of a law before then next legislative session. W. Va. Code §29A-3-15(f) defines emergency narrowly:
"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."
When an agency proposes an emergency rule, it is filed with the Secretary of State and Legislative Rule Making Review Committee. The Secretary of State has 42 days to review the rule and decide if an emergency truly exists. (If the Secretary of State files an emergency rule, the Attorney General reviews and either approves or disapproves it as an emergency.)
Here are several important points about emergency rules:
- If the rule is approved as an emergency by the Secretary of State, the rule is effective for a maximum of 15 months while the proposed legislative rule goes through the normal rule-making process.
- There are no extensions of this 15 months and it does not enable an agency to bypass the legislative process.
- If the emergency rule is disapproved, this in no way stops the agency from proceeding through the regular rule-making process.
- The agency must either have completed a hearing or comment period or must file for a hearing or comment period within 30 days after the emergency rule is filed.
- The agency approved legislative rule must be filed with LRMRC within 90 days after the emergency rule is filed. If either of these deadlines are missed, the emergency rule expires and cannot be re-filed.
EMERGENCY RULE STEP PROCEDURE GUIDES
Remember, the steps for promulgating an emergency rule are very specific, and missing a deadline can cause the rule to die, with no way for the agency to correct the problem. This information is not intended to replace W. Va. Code Chapter 29A (the Administrative Procedures Act) but is to assist the agency with its compliance. The APA is the controlling document and should be consulted during the entire rule-making process.
Consult the guide for help in promulgating Emergency Rules.