TITLE 8. EDUCATION

STATE BOARD OF EDUCATION

Fast-Track Regulation

Titles of Regulations: 8VAC20-530. Regulations Governing Criteria to Identify Toxic Art Materials; Labeling; Use in Elementary Grades Prohibited (repealing 8VAC20-530-10 through 8VAC20-530-80).

8VAC20-720. Regulations Governing Local School Boards and School Divisions (adding 8VAC20-720-190).

Statutory Authority: §§ 22.1-16 and 22.1-274.1 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: December 17, 2025.

Effective Date: January 1, 2026.

Agency Contact: Jim Chapman, Director of Board Relations, Department of Education, James Monroe Building, 101 North 14th Street, 25th Floor, Richmond, VA 23219, telephone (804) 750-8750, or email jim.chapman@doe.virginia.gov.

Basis: Section 22.1-16 of the Code of Virginia authorizes the State Board of Education to promulgate regulations necessary to carry out its powers and duties and the provisions of Title 22.1 of the Code of Virginia.

Purpose: This action is essential to protect the health, safety, and welfare of citizens because it ensures that the board's policies regarding toxic art materials are aligned to state statute and federal law.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because it aligns the chapter with current statutory language, removes incorrect references, and corrects outdated information, while retaining the underlying regulatory requirements of 8VAC20-530 in a new section of 8VAC20-720.

Substance: This action (i) repeals Regulations Governing Criteria to Identify Toxic Art Materials; Labeling; Use in Elementary Grades Prohibited (8VAC20-530) and (ii) moves the underlying requirements of 8VAC20-530 to a new section in Regulations Governing Local School Boards and School Divisions (8VAC20-720).

Issues: The primary advantage to the public and the Commonwealth is that the regulation will be consistent with the current statutory language and provide accurate information and references. There are no disadvantages.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. As a result of a 2024 periodic review,² the State Board of Education (board) is proposing to repeal the Regulations Governing Criteria to Identify Toxic Art Materials; Labeling; Use in Elementary Grades Prohibited (8VAC20-530) in its entirety and add a significantly abbreviated version of the regulation's content as a new section in the Regulations Governing Local School Boards and School Divisions (8VAC20-720). The Department of Education (DOE) has confirmed that the proposed changes are intended to align board policies regarding toxic art materials with state statute and federal law, as well as ensure that regulatory requirements are easier to find.

Background. The Regulations Governing Criteria to Identify Toxic Art Materials; Labeling; Use in Elementary Grades Prohibited (8VAC20-530) are specifically authorized by Section 22.1-274.1 of the Code of Virginia, which requires DOE to develop criteria with the State Department of Health to identify toxic art materials.³ In addition, § 22.1-274.1 specifies that (i) DOE shall require school divisions to evaluate all art materials used in schools and identify those which are toxic and (ii) all materials used in the public schools which meet the criteria as toxic shall be so labeled, and their use shall be prohibited in kindergarten through grade five. Accordingly, the regulation largely relies on two documents incorporated by reference: the labeling standards required by the American Society for Testing and Materials (ASTM D-4236) and a list of carcinogens by the International Agency for Research on Cancer and the National Toxicology Program. The board proposes moving these requirements to a new section in the Regulations Governing Local School Boards and School Divisions (8VAC20-720). The new section is titled, Criteria to Identify Toxic Art Materials; Labeling; Use in Elementary Grades Prohibited and refer the reader to definitions and requirements in the Code of Federal Regulations (CFR).⁴ Specifically, 16 CFR 1500.14(b)(8) contains the requirements of ASTM D-4236, and 16 CFR 1500.135 contains a summary of guidelines for determining chronic toxicity. DOE reports that it would be more concise to direct regulated stakeholders to these two sections of the CFR rather than require them to reference the eight sections of 8VAC20-530 and crosswalk those requirements from the old ASTM D-4236 requirements with the federal regulatory requirements of 16 CFR 1500.14(b)(8) and 1500.135.

Estimated Benefits and Costs. Moving these requirements to 8VAC20-720 is not expected to have any practical impact on school divisions, school personnel, or students and families. DOE reports that the Virginia Art Education Association and the Virginia Coalition of Fine Arts Education are aware of the proposed regulatory change and have not expressed any concern.

Businesses and Other Entities Affected. The requirement pertains to the 131 school divisions in the Commonwealth. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ As the proposal neither increases cost nor reduces benefit, no adverse impact is indicated.

Small Businesses⁷ Affected.⁸ The proposal does not adversely affect small businesses.

Localities⁹ Affected.¹⁰ The proposal neither disproportionally affects particular localities nor affects costs for local governments.

Projected Impact on Employment. The proposal does not affect employment.

Effects on the Use and Value of Private Property. The proposal affects neither the use and value of private property nor costs related to the development of real estate.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=2529.

³ See VR 270-01-0051. See page 1792 of the Virginia Register of Regulations, Volume 04, Issue 17 at https://register.dls.virginia.gov/vol04/iss17/v04i17.pdf.

⁴ See https://www.ecfr.gov/current/title-16/chapter-II/subchapter-C/part-1500/section-1500.14 and https://www.ecfr.gov/current/title-16/chapter-II/subchapter-C/part-1500/section-1500.135.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to the Economic Impact Analysis: The State Board of Education thanks the Department of Planning and Budget for its thorough economic impact analysis.

Summary:

The action (i) repeals Regulations Governing Criteria to Identify Toxic Art Materials; Labeling; Use in Elementary Grades Prohibited (8VAC20-530) and (ii) moves the underlying requirements of 8VAC20-530 to a new section in Regulations Governing Local School Boards and School Divisions (8VAC20-720).

8VAC20-720-190. Criteria to identify toxic art materials; labeling; use in elementary grades prohibited.

A. The definitions and requirements of 16 CFR 1500.14(b)(8) and 16 CFR 1500.135 are incorporated by reference.

B. School divisions shall evaluate all art material used in schools. All art materials used in the public schools that meet the criteria as toxic under 16 CFR 1500.14(b)(8) and 16 CFR 1500.135 shall be so labeled.

C. Use of art materials evaluated to be toxic under 16 CFR 1500.14(b)(8) and 16 CFR 1500.135 shall be prohibited in kindergarten through grade five.