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 Step Procedures for Legislative Rule Making

The following twelve (12) steps constitute rule making for legislative rules. If there is to be a deviation from these procedures, PLEASE contact the Legislative Rule-Making & Review Committee (LRMRC) staff or the Secretary of State's office for guidance on specific cases.

The Secretary of State's office understands the complexity of filing legislative rules for rule-making. If at anytime a question arises, PLEASE CALL the Administrative Law Division at (304) 558-6000 -- WE WILL BE GLAD TO HELP.

 

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 needs.
Step 2. DRAFTING - 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 and Legislative Rule-making Review Committee (LRMRC), 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 legislative 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 legislative 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
  8. One additional complete set of items #1-7 above to be stamped prior to delivery to LRMRC.

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 APPROVAL OF PROPOSED RULE AND FILING WITH LRMRC - Again, before the agency files the agency approved rule with the Secretary of State and LRMRC, 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 ninety (90) days of the public hearing or close of comment period, or the rule will be deemed withdrawn (unless a specific exemption is granted by LRMRC).

This is a 2-step procedure. The agency MUST first file all documents with the Secretary of State's office. After properly filing with the Secretary of State's office, the agency is required to file the documents with LRMRC.

**REMEMBER THAT THIS IS A FILING OF AN AGENCY APPROVED RULE AND NOT THE FINAL FILING OF THE RULE. It is still a PROPOSED rule and must be approved by the Legislature.**

Step 6A.

FILING APPROVED RULE WITH THE SECRETARY OF STATE - Be sure to perform this step accurately and completely. The following documents MUST be filed in this order with the Secretary of State:

  1. One copy of the notice of agency approval and submission to the LRMRC, form #3, 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 completed LRMRC questionnaire, with name of contact person, clearly printed, address, telephone number and e-mail address;
  4. One copy of brief summary of agency approved rule;
  5. One copy of statement of circumstances which require this rule;
  6. One copy of the fiscal note;
  7. One copy of the agency approved rule, with page numbering;
  8. One copy of all documents listed in 5B; and
  9. Fifteen additional sets including items #1-8 to be stamped for filing with the LRMRC.
Step 6B.

FILING WITH LRMRC - The following documents are required to be included when filing an agency approved rule with the LRMRC:

  1. Fifteen (15) stamped copies of the document package filed with the Secretary of State's office in Step 6A;
  2. Any other information requested by the LRMRC rules. Additional information may be requested by the committee following preliminary staff review.

    Filing may be at the LRMRC staff office, located at the Main Capitol, Room MB 49, or at a scheduled LRMRC meeting.

    A proposed legislative rule will be placed on the LRMRC agenda following completion of staff analysis. It is therefore necessary that a proposed rule be filed early enough for this work to be accomplished. The agency will be notified at which meeting the proposed rules will be placed on the agenda. During the course of staff analysis it may be necessary to meet with committee staff. A copy of the analysis will be sent to the agency and a written response to the analysis by the agency may be filed with the LRMRC or responses may be delivered orally before the LRMRC . When filing with the LRMRC remember that all documents must be present and complete.

    **IMPORTANT: The text of the proposed rule filed with the Secretary of State and with LRMRC MUST be identical - word for word, comma for comma. Failure to ensure this fact may result in the LRMRC's authorization of a rule different from the agency approved rule in the Secretary of State's Office. The Legislature may authorize a rule that is not filed with the Secretary of State and therefore not legally in existence.**

    Step 7.

    LRMRC REVIEW - Department heads, board chairpersons or executive secretaries should be present at all meetings at which their agency approved rules are on the agenda. Support personnel may also attend the meetings to aid the department head or board chairperson. Be prepared to:

    • Explain the need for the rule;
    • Explain the general content of the rule;
    • Respond to questions of the committee members; and
    • Respond to staff analysis, etc.

    The committee review shall also include those areas enumerated in W. Va. Code §29A-3-11(b). The committee may hold a public hearing on the proposed rules, delay action until later, recommend changes to be made by the agency prior to committee action at a later meeting or take action upon the rule. After the review the committee will recommend one of the following to the Legislature:

    1. Authorize the promulgation of the legislative rule, or
    2. Authorize the promulgation of part of the legislative rule, or
    3. Authorize the promulgation of the legislative rule with certain amendments, or
    4. Recommend that the proposed rule be withdrawn.

    The committee shall immediately file a notice of which action occurs in the State Register and with the agency proposing the legislative rule. When the recommendation is other than the promulgation of the proposed legislative rule, a statement of the reasons for such recommendation will be stated in the notice to be filed in the State Register and with the agency.

    Step 8.

    COMPLYING WITH RECOMMENDATIONS OF LRMRC - In the event of LRMRC authorizes the agency to promulgate the legislative rule as originally filed, the agency is not required to file any documents with the Secretary of State's office. The committee will submit the proposed legislative rule to the Legislature in its agency approved form.

    In the event the agency or the committee decides to make changes or modifications to the proposed legislative rule, the agency should consult with committee staff on the preparation of such modifications. Again, before the agency complies with the recommendations of LRMRC, the agency MUST have prior written approval by the Cabinet Secretary, agency head, board or commission, who administers the agency. Within 10 days of the LRMRC meeting the agency MUST file with the Secretary of State and LRMRC the following:

    1. One copy of the Notice of Rule Modification of Proposed Rule, form #4 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 proposed legislative rule with modifications; and
    4. Five copies of the document package including items #1-3 above as filed and stamped by the Secretary of State's office to be filed with LRMRC.

    If the committee recommends that the rule be withdrawn, the agency may comply by submitting a letter stating that the proposed rule be withdrawn with proper signatures to the Secretary of State's office to be published in the State Register.

    Step 9. SUBMISSION OF LEGISLATIVE RULE TO LEGISLATURE - The LRMRC drafts a Bill of Authorization including a copy of the proposed legislative rule to be introduced prior to the 20th day of the Session. A notice of the submission to the Legislature will be filed in the State Register by the LRMRC prior to the 20th day of the Session.
    Step 10. LEGISLATIVE SESSION - Bills of Authorization are treated like other bills and go through the usual enactment process. The agency may contact the LRMRC Committee staff or this office to determine the status of any particular Bill of Authorization during the Session.

    Each rule will be introduced in the House of Delegates and Senate under separate bill numbers.  Those bill numbers are listed in the Rule Monitor in the State Register following introduction, and those bills can be followed using the bill tracking section of the WV Legislature web site.  After review by committees, several rules are rolled together into a bundled bill with a new number, and that number will be listed in the State Register.
    Step 11.

    EFFECTIVE AND FILING DATE - The effective date may be established by the Legislature or the agency following passage of the Bill of Authorization. In either case the agency MUST FINAL FILE the proposed legislative rule with the Secretary of State. Again, before the agency files the final filed 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. The documents required to final file the rule are:

    1. One completed copy of the Notice of Final Filing and Adoption, form #6 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. The effective date of the legislative rule, if the Legislature has not established the effective date in the Bill of Authorization. **IMPORTANT** The agency has up to 60 days following the following passage of the Bill of Authorization to final file the legislative rule with the Secretary of State's office. The agency may set the effective date of the legislative rule up to 90 days from the date the legislative rules are final filed with the Secretary of State.
      The agency MUST submit the legislative rule on either a CD or email, in a WordPerfect compatible format, to the Secretary of State's office. The electronic copy MUST be a CLEAN COPY, with all underlining and strike-throughs taken out. The text of the electronic filed rule MUST be identical - word for word, comma for comma - as the hard copy authorized by the Legislature. Please state on the disk the format of the rule (e.g. WordPerfect 6.1, WP8) and the title under which it is filed.
    Step 12. 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.

     

    REMEMBER, if you have any questions about the Emergency Rule process- please call the Secretary of State's Office at (304) 558-6000 and ask for the Administrative Law Division.