WVSOS -- Administrative Law -- Summary of Regular Rule Making Steps

Summary of Regular Rule-Making Steps

The first chart offers a quick view of the steps in rule making for each regular rule type. The steps are listed in the first column, the requirements and 2008-2009 deadlines for legislative rules in the second and third columns, requirements for procedural rules in column four, and for interpretive rules in column five. The second chart provides more information about the steps. Links to detailed steps for each rule type are provided below. Go to Emergency Rules to learn more about the special requirements for those rules.

Steps	Legislative	2008-09 Deadlines	Procedural	Interpretive
Initial Filing	Proposed rule	7/31/2008	Proposed rule	Proposed rule
Public Comment	30-day period		30-day period	30-day period
Public Hearing	Optional unless required by legislation authorizing rule		Optional unless required by legislation authorizing rule	Optional unless required by legislation authorizing rule
Agency Approved Filing	No later than 90 days after hearing or close of comment period	8/29/2008	These steps are not required for procedural or interpretive rules.
Review & Approval by Legislative Rule Making & Review Committee	Usually during Interims; may be amended by committee.	Sept 2008 through Jan 2009
Modified Rule Filing	If committee requests modification, agency files modified rule.	After LRMRC review
Review & Approval by House & Senate Committee(s)	During regular legislative session; may be amended by committees.	2/11/2009 through 4/11/2009
Passage in House & Senate	During regular legislative session; may be amended on floor.	2/11/2009 through 4/11/2009
Signature by Governor	Within 15 days adjournment of Legislature (following extended session for budget approval)	Early May
Final Filing	Within 60 days after rules bill is passed	Early May to Mid July	No later than six months after close of comment period	No later than six months after close of comment period
Effective Date	Agency specifies date no earlier than final filing, no later than 90 days after final filing unless statute sets.	Early May to August unless set by law	No sooner than 30 days after final filing, no later than 60 days after final filing	No sooner than 30 days after final filing, no later than 60 days after final filing

UNDERSTANDING THE STEPS

The table below gives a more detailed description of the steps. When actually preparing a rule for filing, use the appropriate step procedures guide for the particular rule type. See below for a link to those guides.

Initial Filing Legislative Procedural Interpretive	An agency must have the authority of law to promulgate legislative rules, and the authority must be cited at the beginning of the rule. The rule is prepared in a standard format. The Secretary of State rule, CSR 153-6, "Standard Size and Format for Rules and Procedures for Publication of the State Register or Parts of the State Register," describes the formatting requirements. A rule may not include provisions which exceed the authority provided by law. The initial filing of a new or amended rule, with specific forms attached, will include a fiscal note, statement of purpose, and statement of circumstances. Copies are filed with the Secretary of State and the Legislative Rule Making and Review Committee (LRMRC).
Public Comment Public Hearing Legislative Procedural Interpretive	When the agency promulgates a new rule or amends an existing rule, the agency must announce either a public comment period or public hearing or both. The hearing/comment notice is included with the initial filing, and is published in the State Register. The comment period must be no less than 30 days long and end no more than 60 days after the rule is filed.
Agency Approved Legislative	After the comment period or hearing is finished, the agency may modify the proposed rule. The agency must file within 90 days after the close of the comment period a complete copy of the rule, any comments that were received and a summary of the responses to all comments with both the Administrative Law Division for publication in Register and with Legislative Rule Making Review Committee (LRMRC). The law sets the deadline for an agency approved filing in order for a legislative rule to be considered at the next session. W. Va. Code §29A-3-12(a) allows the LRMRC the right to refuse to consider and withhold from its report to the Legislature rules which were submitted to them fewer than 225 days before the end of the regular session. This means that the public hearing or comment period must be held and finished and the agency approved rule filed with the LRMRC around the first week of August each year. (This is about 4 weeks later the year that the governor is inaugurated.)
Review & Approval by LRMRC Legislative	The Legislative Rule Making and Review Committee (LRMRC) has staff members review each rule to decide if it complies with the W. Va. Code, does not exceed statutory authority, and is clearly written. The staff sends their suggestions back to the agency. Staff will present it to the full Committee at meeting, usually during the three-day monthly interim legislative sessions. At this time the public may attend the meeting and may ask to speak to the rule before the Committee. The Committee may vote to approve the rule as filed, ask that modifications be made or ask the agency to withdraw the rule. If the LRMRC approves the rule, the agency needs to do nothing further before the rule goes to the full Legislature. Find information about upcoming interim meetings at the WV Legislature web site.
Modified Rule Legislative	If modifications are agreed upon, the agency must refile for publication in the Register a modified rule and also file with the LRMRC.
Review & Approval by House and Senate Committees Legislative	The final version of the rule goes to both houses of the Legislature. Each rule is assigned a bill number in each house, and is assigned to one or more committees in both the House and Senate. Once again the public has ability to appear and comment. A committee may amend the rule.
Consideration & Passage by the Legislature Legislative	Once the committees complete review, rules go to the floor of each body to be voted upon one by one. Then, all rules that are similar (environmental, health, elected offices, etc.) are grouped together, 'bundled', for passage of the full Legislature. If there are disagreements between the House and the Senate, the rules may go to conference. Because of this lengthy process, it is unusual for a final rules bill to receive approval before the last few days of the regular legislative session.
Signature of Governor Legislative	The 'bundled' bill passed by the Legislature goes to the Governor for signature. If the Governor vetoes the bill because of one rule, the other rules will die as well. The Governor has fifteen days from the end of the session (including any extended session) to review all bills. If the Governor does not sign or veto a bill within that time, the bill becomes law without his signature.
Final Filing Legislative Procedural Interpretive	The agency must final file the rule with the Secretary of State for publication in the Register and set an effective date, unless the Legislature has specifically set the effective date. For an interpretive or procedural rule, the agency has six months following the hearing or comment period to make the final filing and set the effective date. If the agency fails to final file their rule within 6 months, the rule-making process dies and the agency must start again from the beginning.

DETAILED STEP PROCEDURE GUIDES

The steps for promulgating a rule are very specific, and agencies must comply with all the requirements in order to have a rule become effective.

Preparing to propose or amend a rule? Three step-procedure guides are provided to help agencies prepare the specific rule. This information is not intended to replace W. Va. Code §29A (the Administrative Procedures Act or "APA") 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 these guides for help in promulgating:

Legislative Rules

Interpretive & Procedural Rules

Emergency Rules