Standard Regulatory Process
- An agency must follow the law passed by the General
Assembly that sets out the process for creating, amending, or repealing a
regulation. The law is the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
- Three basic steps take place to create, amend, or repeal
- Typically, regulatory actions take about 18-24 months
from start to finish.
Step 1 - Notice of Intended Regulatory Action (NOIRA)
The public receives notification that a regulatory change is being considered,
along with a description of the changes being considered. Once the NOIRA is
published in The Virginia Register of Regulations, there is at least a
30-day period during which the agency receives comments from the public. The
agency reviews these comments as it develops the proposed regulation.
Step 2 - Proposed regulation
The new, amended, or repealed regulation; a statement explaining the basis,
purpose, substance and issues of the regulatory action; an Economic Impact
Analysis (EIA) prepared by the Department of Planning and Budget (DPB); the
agency response to the DPB EIA; and an agency contact person are published in
the Virginia Register. A 60-day public comment period begins upon
publication of the proposed regulatory action in the Virginia
Register. The agency may make changes to the proposed regulation based on
comments received during the public comment period.
Step 3 - Final regulation
The new, amended, or repealed regulation is published in the Virginia
Register, highlighting (by bracketing changed language) any changes made
to the text of the regulation since the proposed regulation was published. A
30-day waiting period takes place before the regulation becomes effective.
The Governor may review the final regulation during this time and, if he
objects, forward his objection to the Registrar and the agency. In addition to
or in lieu of filing a formal objection, the Governor may suspend the effective
date of a portion or all of a regulation until the end of the next regular
General Assembly session. The Governor's objection or suspension of the
regulation, or both, will be published in the Virginia Register. If
the Governor finds that changes made to the proposed regulation have
substantial impact, he may require the agency to provide an additional 30-day
public comment period on the changes. Notice of the additional public comment
period will be published in the Virginia Register.
The agency shall suspend the regulatory process for 30 days when it receives
requests from 25 or more individuals to solicit additional public comment,
unless the agency determines that the changes have minor or inconsequential
A regulatory action may be withdrawn by the promulgating agency at any time
before the regulation becomes final.
Nonstandard Regulatory Process
- Sometimes the General Assembly passes a law requiring an
emergency regulation, while at other times the promulgating agency may
determine that a regulation is necessitated by an emergency situation. The
three-step process for standard regulatory actions does not apply to
- An emergency regulation can take effect on the day it is
filed for publication in the Virginia Register. An emergency
regulation may be effective for no more than 12 months, unless an
additional six-month extension is authorized by the Governor.
- Since an emergency regulation will expire, the agency
usually begins the normal three-step regulatory process at the same time
that the emergency is filed for publication in the Virginia
Exempt regulations (§§ 2.2-4002 and 2.2-4006 of the Code of Virginia)
- Sometimes the General Assembly passes a law allowing the
agency to skip the standard three-step regulatory process described above.
Most exempt regulations are published in final form only; however, some
exempt actions include notice and publication of proposed text.
Fast-track regulations (§ 2.2-4012.1 of the Code of Virginia)
- The fast-track rulemaking process is for regulations
that are expected to be noncontroversial. If the Governor determines that a
regulation is noncontroversial, the agency may publish the fast-track
rulemaking in the Virginia Register of Regulations. A public
comment period of at least 30 days follows publication of the fast-track
- A fast-track regulation can become effective as early as
45 days from publication in the Virginia Register.
- If objections to the regulatory action are raised by any
of the following during the comment period, the fast-track rulemaking
process ends and the rulemaking continues under the normal regulatory
process (starting with Step 2):
- Any member of the applicable standing committee of the
- Any member of the applicable standing committee of the House of
- Any member of the Joint Commission on Administrative Rules
- Any objection from 10 or more members of the public.
- If there are no objections as described above, the
regulation becomes effective 15 days after the close of the public comment
period, unless the regulation is withdrawn or a later effective date is
specified by the agency.
Regulatory Process in Virginia - Powerpoint Presentation