WVSOS -- Administrative Law -- Detailed Step Procedures for Emergency Rule Making

Step Procedure for Emergency Rule Making

When the West Virginia Legislature has specifically authorized an agency to file an emergency rule because a rule is needed before a legislative rule can be made effective, or when the agency can make the case that a true emergency exists, as defined by law, the agency may promulgate an emergency rule.

An emergency rule is always a legislative rule, never an interpretive or procedural rules. Emergency rules remain valid up to fifteen (15) months from filing, which gives agency time to promulgate a legislative rule to take its place.

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 - 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 EMERGENCY 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. The proposed emergency rule must be exactly the same as the proposed legislative rule. 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 decide 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 MUST be placed in the GENERAL section of the proposed rule. This should only be done if the agency is proposing major changes to the rule and with written permission from the LRMRC. 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.	FILING AN AGENCY ADOPTED EMERGENCY RULE - Before the agency files the agency adopted emergency 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. The following documents MUST be filed in this order with the Secretary of State's office: Fourteen (14) copies of Notice of an Emergency rule, form #7 Fourteen (14) copies of Approval of Filing by the Cabinet Secretary, agency head, board or commission, who administers the agency Fourteen (14) copies of LRMRC Emergency Rule Questionnaire with the name of the contact person and telephone number clearly printed. Fourteen (14) copies of brief summary of the proposed Emergency rule, with statement of circumstances constituting the emergency. Fourteen (14) copies of Fiscal Note. Fourteen (14) copies of the proposed Emergency rule with page numbering with new language underlined and with language to be deleted from any existing rule stricken through but clearly legible. Be specific about the facts and circumstances constituting the emergency and cite the appropriate and applicable necessity enumerated in W. Va. Code §29A-3-15(f). IMPORTANT - If the agency has not already filed a notice for public hearing and/or comment period, the agency MUST file that notice with the Secretary of State's office WITHIN thirty (30) days of the date the emergency rule was filed. If the agency fails to do this, the emergency rule WILL EXPIRE on the thirty-first (31st) day. The Secretary of State's office is required by law (W. Va. Code §29A-3-15) to review all emergency rules to determine: That the scope of statutory authority has not been exceeded Whether there exists a justified emergency Whether the agency complied with these procedures The Secretary of State has forty-two (42) days from the date the rule is filed as an emergency to make the above determination. The Secretary of State may disapprove an emergency rule for any of the reasons listed above. This decision is appealable to the Supreme Court of Appeals. The Secretary of State may solicit additional information, conduct a public hearing, meet with the agency or take other actions to acquire information needed to reach a decision to approve or disapprove an emergency rule. The Secretary of State strongly urges agencies to at least conduct a public hearing and/or comment period on proposed rule before considering filing proposed rule as an emergency. NOTE: An Emergency Rule will become effective upon the approval of the Secretary of State or upon the forty-second (42nd) day following filing, whichever occurs first, unless disapproved by the Secretary of State. (W. Va. Code §29A-3-15).
Step 6.	FILING WITH LRMRC - The filing of an agency adopted emergency rule requires the following documents to be filed with the LRMRC: One copy of the documents filed with the Secretary in Step 5 above.
Step 7.	LRMRC REVIEW - The LRMRC may review the emergency rule to determine: That the scope of statutory authority has not been exceeded Whether there exists a justified emergency Whether the agency complied with these procedures The LRMRC may recommend to the agency, the Legislature or the Secretary of State such actions as it may deem proper. The agency MUST, as part of the legislative rule making procedure, file the agency approved rule with the LRMRC. If the agency fails to file the agency approved rule with the Secretary of State and the LRMRC within ninety (90) days from the date the emergency rule was filed, the rule WILL EXPIRE on the ninety-first (91st) day. Remember the filing of the emergency rule with the LRMRC (Step 6 above) is separate from the filing of the agency approved rule with the LRMRC (Step 6 of the Legislative rule-making procedure). DO NOT confuse the two SEPARATE steps below: The filing of an emergency rule The filing of an agency approved rule to go through the legislative rule-making procedure. IMPORTANT If an emergency rule expires due to the agency's failure to follow Steps 5, 6 & 7, the emergency rule cannot be revived by ANY method.
Step 8.	AMENDMENTS TO AN EMERGENCY RULE - if the agency wishes to amend an emergency rule the agency MUST have prior written approval by the Cabinet Secretary, agency head, board or commission, who administers the agency before filing with the Secretary of State and LRMRC. The agency MUST file with the Secretary of State the following: Fourteen (14) copies of the Notice of an Emergency Amendment to an Emergency rule, form # 8, signed Fourteen (14) copies of all documents in Step 5 above, with amendments The agency is required to submit One copy of all documents filed above to the LRMRC NOTE: The emergency amendment will become effective upon the approval of the Secretary of State or upon the forty-second (42nd) day following filing of the amendment, whichever occurs first. The amendment will be included into the original emergency rule BUT this does not gain the agency additional time or relieve you from Steps 6 or 7. , REMEMBER - The Emergency rule and/or the Emergency rule amendment will remain in effect for a TOTAL** of fifteen (15) months, or until the Legislative rule goes into effect.

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 ADMINISTRATIVE LAW DIVISION.