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 Step Procedures for Interpretive and Procedural Rules

Definitions of Interpretive and Procedural rule: [W. Va. Code §29A-1-2(c) & (g)]

Interpretive means every rule 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 private rights, privileges or interest.

Procedural means every rule which fixes rules of procedure, practice or evidence for dealings with or proceedings before and agency, including forms prescribed by the agency.

The following are the seven (7) steps for adoption of an Interpretive or Procedural rule. They are quite similar to the steps for Legislative rules.  Consult W. Va. Code §29A, the Administrative Procedures Act for guidance as to whether the agency's proposal falls within the definition of an interpretive or procedural rule and not within the definition of a legislative rule. Simply calling a rule interpretive or procedural does not make it so. The content and effect of the rule dictates its type, not the mere label.

AGAIN, IF THE AGENCY IS IN DOUBT OR HAS ANY QUESTIONS -
PLEASE CALL THE SECRETARY OF STATE'S OFFICE!!!!!

 

Step 1. RECOGNITION OF NEED - An agency recognizes the need for filing a new rule, amending an existing rule or revoking an existing rule or part of a rule. This need may be based on changes in state statute, federal statute or rule, judicial order, request by interested groups or citizens, agency investigation of a problem, or other need.
Step 2. DRAFTING - The agency must classify the proposed rule as either legislative, interpretive or procedural rule according to W. Va. Code §29A. The agency may reclassify an interpretive or procedural rule as a legislative rule, but a legislative rule can not become an interpretive or procedural rule. During the process of drafting a rule an agency should seek information on content from numerous sources, i.e., staff investigations, interest groups, other state rules, other state agencies, court rulings, scientific or association publications, the agency's Attorney General representative, etc. It is during the drafting stage when many problems, interests and jurisdictional conflicts can be dealt with preventing greater problems from arising during public hearings or legislative review.
Step 3. REVIEW OF DRAFT - When an agency files any draft of a proposed rule with the Secretary of State , it MUST have prior written approval of the Cabinet Secretary with administrative supervision over the agency. If the agency is an agency, board or commission which is not administered by a Cabinet Secretary, the agency MUST have prior written consent of the agency head, board or commission.
Step 4. THE PROPOSED RULE - The final draft of the proposed rule MUST follow the format established by the Secretary of State's rule 153CSR6 Standard Size and Format for Rules and Related Documents Filed in the Secretary of State's Office. The agency must include as Section 1, a GENERAL section. Within the GENERAL section there must be the following subsections -- "scope", "authority", "filing date", effective date" and if necessary a provision for "repeal of a former rule."  During the time the interpretive or procedural rule is proposed, the "filing date" and the "effective date" shall be blank. 

If the agency is amending an existing rule, the new language MUST be underlined and the language to be deleted MUST be stricken through, but clearly legible. If the agency is proposing major changes to an existing rule, the agency may request permission from LRMRC to repeal the existing rule and replace the rule as a new rule. If so, underlining and strike-throughs are not required but a provision indicating the amendment is to repeal and replace MUST be placed in the GENERAL section of the proposed rule. This may be done only with permission and only if the agency is proposing major changes to the rule.

All copies of the rules MUST be filed on 8 1/2 x 11 paper, single sided or double sided, but not a combination of both. The copy of the interpretive or procedural rule filed with the Secretary of State's office MUST be an original with page numbering and no staples.
Step 5.

PUBLIC HEARING AND/OR COMMENT PERIOD - FILING - The agency shall file its proposed rule with the Secretary of State for Public Hearing and/or Comment Period. The following documents must be included in this order when filing:

  1. One copy of the Notice of Public Hearing and/or Comment Period, forms #1 or #2, signed  by the Cabinet Secretary or the agency head of board or commission, who administers the agency or;
  2. One copy of Approval of Filing by the Cabinet Secretary, agency head, board or commission, who administers the agency;
  3. One copy of brief summary of the proposed rule;
  4. One copy of statement of circumstances which require this rule;
  5. One copy of the fiscal note, with name of contact person and telephone number;
  6. One copy of the proposed rule with page numbering;
  7. One copy of any relevant federal statutes or regulations, if applicable; and

The agency should decide whether it will hold a public hearing and/or a comment period for the proposed rule. The proper notice MUST contain the TIME, DATE AND PLACE of the public hearing and/or where the written comments may be mailed. THE PUBLIC HEARING AND/OR COMMENT PERIOD NOTICE MUST BE FILED IN THE SECRETARY OF STATE'S OFFICE NOT LESS THAN THIRTY (30) DAYS NOR MORE THAN SIXTY (60) DAYS BEFORE THE DATE OF THE PUBLIC HEARING AND/OR THE END OF THE COMMENT PERIOD. The notice must contain the rule title and an authorized signature for filing notice.

The agency should file one complete set of the proposed rule, stamped by the Secretary of State, with the LRMRC at this time. Additional information may be requested by the committee following preliminary staff review.

Even though the Code only requires notice of Public Hearing and/or Comment Period to be filed with the Secretary of State for inclusion in the State Register and grants to each agency discretionary publication as a Class I legal advertisement, the following other distributions are prudent:

  • Capitol News Service
  • Interested or affected state and local agencies
  • Interested or affected federal agencies
  • Interested or affected associations
  • Interested or affected individuals, legislators and the Governor's Office
Step 5A. CONDUCT OF PUBLIC HEARING AND/OR COMMENT PERIOD - The conduct of the public hearing is under the discretion of the agency and the procedure that best ensures the receipt of comments. However, the manner in which comments are received and the conduct of the hearing should be partially determined by the needs of the agency and the information required by the Administrative Procedures Act for legislative review and State Register filing.
Step 5B.

FOLLOWING PUBLIC HEARING AND/OR COMMENT PERIOD - The agency should review all comments received to determine possible changes in the proposed rule. No comments can be reviewed and/or accepted after the close of the public hearing and/or comment period. The following actions are required to be documented and filed with the rule:

  1. If a public hearing was held, a transcript of the hearing and names of all who attended;
  2. Comments received, both written and oral with a response to the comments;
  3. Amendments made to the proposed rule as a result of comments or other information received; and
  4. Reasons for the amendments.
Step 6.

AGENCY ADOPTION OF PROPOSED RULE - Again, before the agency files the adopted rule with the Secretary of State, the agency MUST have prior written approval by the Cabinet Secretary, agency head, board or commission, who administers the agency. This must be done within six months of the public hearing or close of comment period, or the rule will be deemed withdrawn.

**AMENDMENTS TO THE RULE AFTER HEARING DO NOT REQUIRE AN ADDITIONAL HEARING BUT CANNOT CHANGE THE MAIN PURPOSE OF THE RULE.**

Step 6A.

FILING ADOPTED RULE WITH THE SECRETARY OF STATE - This is an extremely important and frequently omitted step. Be sure to perform this step accurately and completely. The following documents MUST be filed with the Secretary of State in this order:

  1. One copy of the notice of agency adoption, form #5, signed  by the Cabinet Secretary or the agency head of board or commission, who administers the agency or;
  2. One copy of Approval of Filing by the Cabinet Secretary, agency head, board or commission, who administers the agency;
  3. One copy of the agency adopted rule, with page numbering;
  4. One copy of all documents listed in 5B; and
  5. The agency MUST submit the interpretive or procedural rule on a CD or 3 1/2" disk, in a WordPerfect compatible format, to the Secretary of State's office. The disk copy MUST be a CLEAN COPY, with all underlining and strike-throughs taken out. The text of the computer filed rule MUST be identical - word for word, comma for comma - as the paper copy which is final filed.  Please state on the disk the format the rule is in and the title it is filed under.

Remember to include the effective date of the rule. This can be established by the agency or the effective date will be thirty (30) days after filing, whichever date is later. The agency MUST adopt or withdraw the rule within six (6) months after the close of public comment and/or comment period or the rule will be deemed withdrawn.

Step 7. PROOFREADING - The final rule, as produced by the Secretary of State, shall be sent to the agency for review and proofing. The agency may have up to ten (10) working days to review the final rule and return any corrections or a statement of confirmation. Following confirmation or corrections, as the case may be, the Secretary of State shall submit to the agency a final version of the rule for their records.