Bill Text: WV HB4031 | 2016 | Regular Session | Engrossed

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Bill Title: Requiring agencies to respond to public comments received during the rule-making process

Spectrum: Moderate Partisan Bill (Republican 9-2)

Status: (Engrossed - Dead) 2016-01-26 - To Government Organization [HB4031 Detail]

Download: West_Virginia-2016-HB4031-Engrossed.html

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WEST virginia legislature

2016 regular session

ENGROSSED

Committee Substitute

for

House Bill 4031

By  DELEGATES FRICH, SOBONYA, HOWELL, MOFFATT, MCCUSKEY, SHOTT, OVERINGTON, MR. SPEAKER, MR. ARMSTEAD, ROWE AND FLEISCHAUER

[Originating in the Committee on Government Organization, January 18, 2016]

A BILL to amend and reenact §29A-3-5, §29A-3-6, and §29A-3-11 of the Code of West Virginia, 1931, as amended, all relating to requiring agencies to respond to public comments received during the rule-making process; permitting the President of the Senate and the Speaker of the House of Delegates to review agencies’ responses; providing grounds for the rejection of a proposed rule; and providing for review of agencies’ responses by legislative rule-making review committee.

Be it enacted by the Legislature of West Virginia:

That §29A-3-5, §29A-3-6, and §29A-3-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 3. RULE MAKING.

§29A-3-5. Notice of proposed rulemaking.

When an agency proposes to promulgate a rule other than an emergency rule, it shall file with the Secretary of State, for publication in the State Register, a notice of its action, including therein any request for the submission of evidence to be presented on any factual determinations or inquiries required by law to promulgate such rule. At the time of filing the notice of its action, the agency shall also file with the Secretary of State a copy of the full text of the rule proposed, and a fiscal note as defined in subsection (b), section four of this article. If the agency is considering alternative draft proposals, it may also file with the Secretary of State the full text of such draft proposals.

The notice shall fix a date, time and place for the receipt of public comment in the form of oral statements, written statements and documents bearing upon any findings and determinations which are a condition precedent to the final approval by the agency of the proposed rule, and shall contain a general description of the issues to be decided. If no specific findings and determinations are required as a condition precedent to the final approval by the agency of the approved rule, the notice shall fix a date, time and place for the receipt of general public comment on the proposed rule. To comply with the public comment provisions of this section, the agency may hold a public hearing or schedule a public comment period for the receipt of written statements and documents, or both.

If findings and determinations are a condition precedent to the promulgation of such rule, then an opportunity for general public comment on the merits of the rule shall be afforded after such findings and determinations are made. In such event, notice of the hearing or of the period for receiving public comment on the proposed rule shall be attached to and filed as a part of the findings and determinations of the agency when filed in the State Register.

In any hearing for public comment on the merits of the rule, the agency may limit presentations to written material. The time, date and place fixed in the notice shall constitute the last opportunity to submit any written material relevant to any hearing, all of which may be earlier submitted by filing with the agency. After the public hearing or the close of the public comment period, whichever is later, the agency shall not permit the filing or receipt of, nor shall it consider, any attempted ex parte communications directed to it in the form of additional comment, prior to the submission of its final agency-approved rule to the Legislative Rule-Making Review Committee pursuant to the provisions of section eleven of this article.

The agency may also, at its expense, cause to be published as a Class I legal publication in every county of the state any notice required by this section.

Any citizen or other interested party may appear and be heard at such hearings as are required by this section.

No sooner than five business days after the public hearing or the close of the public comment period, whichever is later, and prior to the submission of the proposed rule to the Secretary of State, the agency shall respond to public comments made during the rule-making process and explain why comments were incorporated or not incorporated into the rule.  Failure to adequately respond to public comments shall be grounds for rejection of the proposed rule.

'29A-3-6. Filing findings and determinations for rules in state register; evidence deemed public record.

(a) Incident to fixing a date for public comment on a proposed rule, the agency shall promulgate the findings and determinations required as a condition precedent thereto, and state fully and succinctly the reasons therefor and file such findings and determinations in the state register. If the agency amends the proposed rule as a result of the evidence or comment presented pursuant to section five, such amendment shall be filed with a description of any changes and statement listed for the amendment.

(b) The statement of reasons and a transcript of all evidence and public comment received pursuant to notice are public records and shall be carefully preserved by the agency and be open for public inspection and copying for a period of not less than five years from the date of the hearing.

(c) The legislative rule-making review committee may review the proposed rule to determine if the agency adequately responded to the comments received during the public comment period.  Should the committee determine that the agency did not adequately respond to the comments received during the public comment period, the committee may recommend that the Legislature not authorize the proposed rule.

'29A-3-11. Submission of legislative rules to the legislative rule-making review committee.

(a) When an agency finally approves a proposed legislative rule for submission to the Legislature, pursuant to the provisions of section nine of this article, the secretary of the executive department which administers the agency pursuant to the provisions of article two, chapter five-f of this code shall submit to the legislative rule-making review committee at its offices or at a regular meeting of such committee fifteen copies of: (1) The full text of the legislative rule as finally approved by the agency, with new language underlined and with language to be deleted from any existing rule stricken through but clearly legible; (2) a brief summary of the content of the legislative rule and a description and a copy of any existing rule which the agency proposes to amend or repeal; (3) a statement of the circumstances which require the rule; (4) a fiscal note containing all information included in a fiscal note for either house of the Legislature and a statement of the economic impact of the rule on the state or its residents; (5) one copy of any relevant federal statutes or regulations; and (6) any other information which the committee may request or which may be required by law. If the agency is an agency, board or commission which is not administered by an executive department as provided for in article two, chapter five-f of this code, the agency shall submit the final agency-approved rule as required by this subsection.

(b) The committee shall review each proposed legislative rule and, in its discretion, may hold public hearings thereon. Such review shall include, but not be limited to, a determination of:

(1) Whether the agency has exceeded the scope of its statutory authority in approving the proposed legislative rule;

(2) Whether the proposed legislative rule is in conformity with the legislative intent of the statute which the rule is intended to implement, extend, apply, interpret or make specific;

(3) Whether the proposed legislative rule conflicts with any other provision of this code or with any other rule adopted by the same or a different agency;

(4) Whether the proposed legislative rule is necessary to fully accomplish the objectives of the statute under which the rule was proposed for promulgation;

(5) Whether the proposed legislative rule is reasonable, especially as it affects the convenience of the general public or of persons particularly affected by it;

(6) Whether the proposed legislative rule could be made less complex or more readily understandable by the general public; and

(7)  Whether the proposed legislative rule was proposed for promulgation in compliance with the requirements of section five of this article regarding the agency’s response to public comments; and

(7)(8)  Whether the proposed legislative rule was proposed for promulgation in compliance with the requirements of this article and with any requirements imposed by any other provision of this code.

(c) After reviewing the legislative rule, the committee shall recommend that 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 file notice of its action in the state register and with the agency proposing the rule: Provided, That when the committee makes the recommendations of subdivision (2), (3) or (4) of this subsection, the notice shall contain a statement of the reasons for such recommendation.

(d) When the committee recommends that a rule be authorized, in whole or in part, by the Legislature, the committee shall instruct its staff or the office of Legislative Services to draft a bill authorizing the promulgation of all or part of the legislative rule and incorporating such amendments as the committee desires. If the committee recommends that the rule not be authorized, it shall include in its report a draft of a bill authorizing promulgation of the rule together with a recommendation. Any draft bill prepared under this section shall contain a legislative finding that the rule is within the legislative intent of the statute which the rule is intended to implement, extend, apply or interpret and shall be available for any member of the Legislature to introduce to the Legislature.

 

NOTE: The purpose of this bill is to require agencies to respond to public comments received during the rule-making process.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.