Administrative Procedure Act – West Virginia

The West Virginia Administrative Procedure Act is found in chapter 29 A of Code of West Virginia.  As per W. Va. Code § 29A-1-1, the Administrative Procedure Act establishes procedures for rule making, declaratory rulings by agencies and the conduct of contested administrative cases.

According to W. Va. Code § 29A-2-1, the Secretary of State should establish and maintain a State Register.  As per W. Va. Code § 29A-2-3, State Register includes: notice and text of proposed rules, every judgment tendered by agency and executive order tendered by the Governor, and such other material related to administrative procedures.  W. Va. Code § 29A-2-2 states that the State Register is a public record and the Secretary of State should offer copies of State Register for subscription and distribution.

As per W. Va. Code § 29A-2-5, every agency should file in the State Register a certified copy of all rules adopted by the agency.  If any agency fails to file a certified copy of any rule or proposed rule, then such rule or proposed rule not so filed would be thereafter void and unenforceable.  W. Va. Code § 29A-2-9 states that agencies should file in the State Register all final orders, decisions and opinions in the adjudication of contested cases.  However, agencies may hold  final orders, decisions and opinions confidential, for good cause.

W. Va. Code Ch. 29A, Art. 3 contain the provisions of rule making.  As per W. Va. Code § 29A-3-1a, rules made to amend existing rules may be filed in the State Register on a section by section basis without having to refile in the State Register all of the other sections of an existing series numbered rule.  W. Va. Code § 29A-3-2 states that every rule making authority should exercise their rule making power in accordance with the provisions of the West Virginia Administrative Procedure Act.

As per W. Va. Code § 29A-3-3, agencies should adopt procedural rules to govern the formal and informal procedures prescribed by the West Virginia Administrative Procedure Act.  W. Va. Code § 29A-3-4 states that when an agency proposes a procedural rule, the agency should file in the State Register a notice, proposed text of the rule and a fiscal note.  Fiscal note should include objectives of the rules and a statement of economic impact of the rule on the state of West Virginia or its residents.

As per W. Va. Code § 29A-3-5, when an agency proposes to promulgate a rule, a notice should be filed in the State Register.  Along with the notice, a copy of the full text of the rule proposed and a fiscal note should be attached.  The notice should fix a date, time and place for the receipt of public comment.  The agency may also conduct hearing to receive public comment.  In any hearing for public comment, the agency may limit presentations to written material.  As per W. Va. Code § 29A-3-6, if the agency amends the proposed rule as a result of the evidence or comment, such amendment should be filed with a description of any changes and a statement listing the reasons for the amendment.  The statement of reasons, evidences and public comment received pursuant to notice are public records and is open for public inspection.

According to W. Va. Code § 29A-3-8, a procedural and interpretive rule is adopted by an agency within six months after the close of public comment.  After adoption, a notice of adoption is filed in the State Register within six months.

As per W. Va. Code § 29A-3-9, when an agency proposes a legislative rule, instead of final adoption, the agency should approve the proposed rule for submission to the Legislature.  The agency should file such notice of approval in the State Register and with the Legislative Rule-Making Review Committee created under W. Va. Code § 29A-3-10.  The notice of approval should be filed within ninety days after the public hearing or within ninety days after the end of the public comment period.

W. Va. Code § 29A-3-11 states that the secretary of the executive department should file the full text of the legislative rule as finally approved by the agency with the Legislative Rule-Making Review Committee for review.  The secretary should also file a brief summary of the content of the legislative rule, a statement of the circumstances which require the rule, a fiscal note, one copy of any relevant federal statutes or regulations and any other information required by law.

As per W. Va. Code § 29A-3-12, within forty days before the sixtieth day of each regular session of the Legislature, the cochairmen of the Legislative Rule-Making Review Committee should submit to the clerk of the respective houses of the Legislature, copies of all proposed legislative rules which have been submitted to and considered by the committee.  The clerk of each house submits the report to his/her house at the commencement of the next session.  All bills introduced authorizing the promulgation of a rule may be referred by the Speaker of the House of Delegates and by the President of the Senate to appropriate standing committees of the respective houses for further consideration.  The Legislature may authorize the agency to adopt a legislative rule incorporating the entire rule or may authorize the agency to adopt a rule with any amendments which the Legislature designates.  The clerk of the house originating such act should file a copy of any bill of authorization enacted with the Secretary of State and with the agency proposing such rule.  If the Legislature disapproves all or part of any legislative rule submitted to it by the Legislative Rule-Making Review Committee, no agency may thereafter issue any rule or directive or take other action to implement such rule or part thereof.  However, the agency may resubmit the same or similar proposed rule to the Legislative Rule-Making Review Committee.

According to W. Va. Code § 29A-3-15, if any emergency exists, an agency may make emergency rules without hearing.  Such emergency rules, together with a statement of the facts and circumstances constituting the emergency, should be filed with the Secretary of State, and a notice of such filing should be published in the State Register.  Such emergency rules are effective upon the approval of the Secretary of State or upon the approval of the Attorney General or upon the forty-second day following such filing, whichever occurs first.

W. Va. Code § 29A-4-1 states that on petition of any interested person, an agency may issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it.  A declaratory ruling is binding between the agency and the petitioner on the state of facts alleged, but it is not binding on any other person.

As per W. Va. Code § 29A-5-1, in a contested case all parties should be given an opportunity for hearing after at least ten days’ written notice.  The notice should contain the date, time and place of the hearing and a statement of matters asserted.  For the purpose of conducting a hearing in any contested case, an agency may issue subpoenas in the name of the agency.  Also, evidentiary depositions may be taken and read as in civil actions in the circuit courts.

W. Va. Code § 29A-5-2 states that in contested cases irrelevant, immaterial, or unduly repetitious evidence should be excluded.  Every party has the right of cross-examination of witnesses who testify and has the right to submit rebuttal evidence.

According to W. Va. Code § 29A-5-3, every final order or decision rendered by any agency in a contested case should be in writing and should be accompanied by findings of fact and conclusions of law.  A copy of the order or decision and accompanying findings and conclusions should be served upon each party in person or by registered or certified mail.

As per W. Va. Code § 29A-5-4, any party adversely affected by a final order or decision in a contested case is entitled to judicial review.  Proceedings for review should be instituted by filing a petition within thirty days of receipt of notice of the final order or decision of the agency.  A copy of the petition should be served upon the agency and all other parties.  Within fifteen days after receipt of a copy of the petition by the agency, the agency transmits to circuit court the original or a certified copy of the entire record of the proceeding under review.  The court may affirm the order or decision of the agency or remand the case for further proceedings.  The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals.  W. Va. Code § 29A-6-1 states that any party adversely affected by the final judgment of the circuit court may seek review by appeal to the Supreme Court of Appeals.


Inside Administrative Procedure Act – West Virginia