Sunset Provision in Legislative Rules

During the 2016 Legislative session, the sunset provision in rules was added as W. Va. Code §§29A-3-19 and 29A-3A-20.

Unless exempted, any new legislative rule promulgated after April 1, 2016 must include a sunset provision terminating the rule after five years. For rules already existing, a sunset provision must be added upon proposing amendments.

The statute also provides for a procedure allowing sunsetting rules to be reviewed and renewed for another term of years.

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Sunset Provision Time Frame

18 months prior to a legislative rule’s termination date, the Secretary of State will notify the agency of the approaching date.

The Secretary of State will send an email notice to those with permissions in the eRules system for the agency’s rule.
It is each agency’s responsibility to stay compliant with the sunset provision. No agency shall be permitted to use a failure of receipt of notice from the Secretary of State as an excuse for falling out of compliance.

The agency has 60 days from receipt of the notice to affirmatively seek renewal by filing the rule with the Secretary of State and LRMRC/LOCEA.

LRMRC will be notified through the eRules system that the filing has been made.
If filing with LOCEA, please check with them for notification of the filing.

Once the required filing is made, the rule goes through the rest of the rule-making process.

The rule will be reviewed by LRMRC or LOCEA.
The rule will be placed in a bill and considered during the next Legislative Session.
Upon approval, the rule must be final filed.

Sunset Provision Filing Steps

Step 1

The agency files a Sunset Extension Request Form.

Log in to eRules and locate the “Your Sunsetting Rules” table.
Access the rule from this table.
The “Sunset Extension Request” form has been added to the documents list. Click on the PDF.
Once completed, it gets submitted like a rule. First click on “Submit to Agency Head”, then after review the agency head will “Submit to SOS.”

Step 2

The agency files an Agency Approved rule.

Log in to eRules and request a new version for the rule.
The new version file will be found in the “Your Agencies In-Progress Rules” table.
Upload full text of the rule to the Agency Approved field. Submit like other rule filings.
LRMRC will be notified and will access the rule through the eRules system. If filing with LOCEA, please check with them for notification of the filing.

Important Things to Remember

An agency seeking to renew a Legislative rule that is scheduled to sunset may change the filing date, effective date and sunset date of the rule only.

No other amendments will be accepted.
Rules filed solely pursuant to the sunset provision will not be subject to the public comment period requirement.
If other amendments to the rule are planned, the rule must go through the full rule-making process. Timing should be considered or the rule could expire before the amended rule completes the process.

When filing the Agency Approved rule, full text of the rule must be uploaded. The only changes allowable to the rule are the filing date, effective and sunset date.

1.3 Filing Date and 1.4 Effective Date will be struck-through.
The sunset date in 1.5 will be struck-through and the requested new sunset date will be added and underlined.

Filing the Agency Approved rule will initiate the review. Your agency will be contacted if additional information is needed.

Upon completing the full process, the rule must be final filed.

The entire rule will be uploaded to the Final File field in the eRules system.
The new filing date and effective date will be added to 1.3 and 1.4 of the General section of the rule.
The language in 1.5 will be changed to: “This rule shall terminate and have no further force or effect on (the actual date).

An agency does not have to wait for a sunset term to end in order to file needed amendments to a rule. Amendments can be made between sunset terms by going through the full rule-making process explained in W. Va. Code §§29A-3 and 29A-3A.

These instructions as well as required language for the Sunset Provision, 1.5, in rules are subject to change.

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