The Virginia Register OF
REGULATIONS is an official state publication issued every other week
throughout the year. Indexes are published quarterly, and are cumulative for
the year. The Virginia Register has several functions. The new and
amended sections of regulations, both as proposed and as finally adopted, are
required by law to be published in the Virginia Register. In addition,
the Virginia Register is a source of other information about state
government, including petitions for rulemaking, emergency regulations,
executive orders issued by the Governor, and notices of public hearings on
regulations.
ADOPTION,
AMENDMENT, AND REPEAL OF REGULATIONS
Unless
exempted by law, an agency wishing to adopt, amend, or repeal regulations must
follow the procedures in the Administrative Process Act (§ 2.2-4000 et
seq. of the Code of Virginia). Typically, this includes first publishing in the
Virginia Register a notice of intended regulatory action; a basis,
purpose, substance and issues statement; an economic impact analysis prepared
by the Department of Planning and Budget; the agency’s response to the economic
impact analysis; a summary; a notice giving the public an opportunity to
comment on the proposal; and the text of the proposed regulation.
Following
publication of the proposed regulation in the Virginia Register, the
promulgating agency receives public comments for a minimum of 60 days. The
Governor reviews the proposed regulation to determine if it is necessary to
protect the public health, safety, and welfare, and if it is clearly written
and easily understandable. If the Governor chooses to comment on the proposed
regulation, his comments must be transmitted to the agency and the Registrar of
Regulations no later than 15 days following the completion of the 60-day public
comment period. The Governor’s comments, if any, will be published in the Virginia
Register. Not less than 15 days following the completion of the 60-day
public comment period, the agency may adopt the proposed regulation.
The
Joint Commission on Administrative Rules or the appropriate standing committee
of each house of the General Assembly may meet during the promulgation or final
adoption process and file an objection with the Registrar and the promulgating
agency. The objection will be published in the Virginia Register. Within
21 days after receipt by the agency of a legislative objection, the agency
shall file a response with the Registrar, the objecting legislative body, and
the Governor.
When
final action is taken, the agency again publishes the text of the regulation as
adopted, highlighting all changes made to the proposed regulation and
explaining any substantial changes made since publication of the proposal. A
30-day final adoption period begins upon final publication in the Virginia
Register.
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 by issuing a directive signed by a majority of the members of
the appropriate legislative body and the Governor. The Governor’s objection or
suspension of the regulation, or both, will be published in the Virginia
Register.
If the
Governor finds that the final regulation contains changes made after
publication of the proposed regulation that 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 required by the
Governor will be published in the Virginia Register. Pursuant to
§ 2.2-4007.06 of the Code of Virginia, any person may request that the
agency solicit additional public comment on certain changes made after
publication of the proposed regulation. The agency shall suspend the regulatory
process for 30 days upon such request from 25 or more individuals, unless the
agency determines that the changes have minor or inconsequential impact.
A
regulation becomes effective at the conclusion of the 30-day final adoption
period, or at any other later date specified by the promulgating agency, unless
(i) a legislative objection has been filed, in which event the regulation,
unless withdrawn, becomes effective on the date specified, which shall be after
the expiration of the 21-day objection period; (ii) the Governor exercises his
authority to require the agency to provide for additional public comment, in
which event the regulation, unless withdrawn, becomes effective on the date
specified, which shall be after the expiration of the period for which the
Governor has provided for additional public comment; (iii) the Governor and the
General Assembly exercise their authority to suspend the effective date of a
regulation until the end of the next regular legislative session; or (iv) the
agency suspends the regulatory process, in which event the regulation, unless
withdrawn, becomes effective on the date specified, which shall be after the
expiration of the 30-day public comment period and no earlier than 15 days from
publication of the readopted action.
A
regulatory action may be withdrawn by the promulgating agency at any time
before the regulation becomes final.
FAST-TRACK
RULEMAKING PROCESS
Section
2.2-4012.1 of the Code of Virginia provides an alternative to the standard
process set forth in the Administrative Process Act for regulations deemed by
the Governor to be noncontroversial. To use this process, the Governor's concurrence
is required and advance notice must be provided to certain legislative
committees. Fast-track regulations become effective on the date noted in the
regulatory action if fewer than 10 persons object to using the process in
accordance with § 2.2-4012.1.
EMERGENCY
REGULATIONS
Pursuant
to § 2.2-4011 of the Code of Virginia, an agency may adopt emergency
regulations if necessitated by an emergency situation or when Virginia
statutory law or the appropriation act or federal law or federal regulation
requires that a regulation be effective in 280 days or fewer from its
enactment. In either situation, approval of the Governor is required. The
emergency regulation is effective upon its filing with the Registrar of
Regulations, unless a later date is specified per § 2.2-4012 of the Code of Virginia. Emergency regulations are
limited to no more than 18 months in duration; however, may be extended for six
months under the circumstances noted in § 2.2-4011 D. Emergency
regulations are published as soon as possible in the Virginia Register
and are on the Register of Regulations website at register.dls.virgina.gov.
During
the time the emergency regulation is in effect, the agency may proceed with the
adoption of permanent regulations in accordance with the Administrative Process
Act. If the agency chooses not to adopt the regulations, the emergency status
ends when the prescribed time limit expires.
STATEMENT
The
foregoing constitutes a generalized statement of the procedures to be followed.
For specific statutory language, it is suggested that Article 2
(§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be
examined carefully.
CITATION
TO THE VIRGINIA REGISTER
The Virginia
Register is cited by volume, issue, page number, and date. 34:8 VA.R.
763-832 December 11, 2017, refers to Volume 34, Issue 8, pages 763 through
832 of the Virginia Register issued on
December 11, 2017.
The
Virginia Register of Regulations is
published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of
Title 2.2 of the Code of Virginia.
Members
of the Virginia Code Commission: John
S. Edwards, Chair; Ryan T. McDougle; Nicole Cheuk; Rita Davis;
Leslie L. Lilley; Thomas M. Moncure, Jr.; Christopher R. Nolen; Don L.
Scott, Jr.; Charles S. Sharp; Marcus B. Simon; Samuel T. Towell; Malfourd W.
Trumbo.
Staff
of the Virginia Register: Karen
Perrine, Registrar of Regulations; Anne Bloomsburg, Assistant
Registrar; Nikki Clemons, Regulations Analyst; Rhonda Dyer,
Publications Assistant; Terri Edwards, Senior Operations Staff
Assistant.