by Dick Hall-Sizemore

There has been a fair amount of general discussion on this blog lately about promulgating or repealing regulations in Virginia. As a recent post of Steve Haner indicates, the regulatory process also figures prominently in bills being introduced in the current General Assembly. To help inform this and future discussions, the following is a brief outline of the regulatory process in Virginia. There are two major caveats:

1. The description is not complete. There are details and contingency provisions that are not covered.
2. As with any major statutory provisions, there are exceptions, many of which I do not attempt to cover.

The Players

Before proceeding, it would be helpful to identify to identify the players in this process:

• Administrative Process Act (APA)—That portion of the Code of Virginia that sets out the requirements for adopting regulations. ( 40 of Title 2.2).
• Agency or board initiating regulatory action. Not all agency boards are authorized to promulgate regulations.  Not all agencies have supervisory or policy boards. In the latter two instances, the agency initiates regulatory action; otherwise, it is the agency board. For purposes of the Administrative Process Act, the Code defines “agency” as “any authority, instrumentality, officer, board or other unit of the state government empowered by the basic laws to make regulations or decide cases.” Therefore, a reference to an “agency” is actually a reference to the board overseeing the agency, if that board has the power to make regulations. Although agencies usually work closely with their oversight boards to develop regulations, legally, they are performing in a ministerial function.
• Registrar of Regulations — The Registrar is the administrative director of the Code Commission, a unit of the Division of Legislative Services. One of the responsibilities of the Code Commission is  “compiling and codifying all of the administrative regulations of state agencies into the Virginia Administrative Code” and to maintain the Virginia Register of Regulations, which is Virginia’s official state publication of regulations.
• Department of Planning and Budget (DPB) — Performs an Economic Impact Analysis of proposed regulations and maintains the Virginia Regulatory Town Hall. This website contains information relating to proposed changes to Virginia’s regulations, including a meetings calendar and board minutes. It also facilitates public participation through online comment forums and an email notification service.
• Joint Commission on Administrative Rules — a body established by law within the legislative branch. Its role is to “review (i) existing agency rules, regulations and practices and (ii) agency rules or regulations during the promulgation or final adoption process and make recommendations to the Governor and General Assembly.” It is composed of seven House members and five members of the Senate.
• Governor
• General Assembly

The Standard Process

According to the Registrar of Regulations’ website, this process typically takes 18 to 24 months from start to finish. That does not include the time it takes to develop the initial regulation.

Step 1—Notice of Intended Regulatory Action (NOIRA)

• Informs the public that a regulatory change (adding, amending, or repealing) is being considered;
• Includes description of changes being considered;
• Published in Virginia Register of Regulations;
• Provides at least 30-day period for public comment.

InterimEconomic Impact Analysis (EIA)

• Performed by Dept. of Planning and Budget (DPB)
• Must be completed within 45 days; agency may request extension of up to 30 days.
• If EIA projects adverse economic impact, DPB advises Joint Commission on Administrative Rules and General Assembly money committees. Joint Commission shall review the regulation and issue statement.

Step 2—Proposed Regulation

Published in Virginia Register of Regulations. In addition to text of regulation, publication includes:

• Statement explaining the basis, purpose, substance, and issues surrounding the regulation;
• EIA prepared by DPB;
• Agency response to DPB;
• 60-day comment period begins.

Interim

• Agency may make changes to proposed regulation based on comments received.

Step 3—Final Regulation

• New, amended, or repealed regulation published in Virginia Register of Regulations;
• Changes made since publication of proposed regulation highlighted;
• Becomes effective 30 days after publication, except in the following circumstances:
  • The legislature has objected or has exercised its authority to suspend the effective date (see below for details);
  • The Governor has exercised his authority to require additional public comment or his authority to suspend the effective date (see below for details).

Role of Governor

The role of the governor is a little ambiguous. The Regulatory Town Hall site has a feature that shows the status of actions taken at each stage in the adoption of a regulation. One of those actions at each stage is “Governor’s Review” with the notation of the completion date of the review and the result of the review, i.e. approved or not approved. However, with a few exceptions for actions outside the standard process, there is no Code section that would require that the Governor approve a proposed regulation at any stage of the process, including the final stage of adoption.

There is a statutory requirement that the Governor must adopt and publish, by June 30 of his first year in office,  procedures for the review of proposed regulations. Those procedures must include:

• Review by the Attorney General regarding the statutory authority for the proposed regulation.
• Examination by the Governor to determine if the proposed regulation is:
  • Necessary to protect the public health, safety, and welfare; and
  • Clearly written and easily understandable.
• Review by the appropriate cabinet secretary.

Those procedures published by the governor at the beginning of his term may have included a requirement that a proposed regulation be reviewed at each stage by the governor and approved by him before advancing to the next stage. I have not been able to find on-line the document published by the last administration.

In addition to there being no Code section requiring gubernatorial review at a specific stage, there is also no Code provision that prohibits an agency from proceeding even if the governor does not approve at any stage. The Code does provide the governor with some options if he has an objection to a proposed regulation:

• He can file comments with the Registrar within 15 days of the completion of the public comment period. The agency has the option of modifying the regulation in accordance with the governor’s comments or adopting the regulation without changes despite the governor’s recommendation.
• If the governor finds that one or more changes with substantial impact have been made to the proposed regulation, he can order an additional 30 days for public comment.
• During the 30 days after a regulation’s final adoption and before it becomes effective, the governor may take one or both of the following actions:
  • Filing of a formal objection to the regulation with the Registrar;
  • Ordering the suspension of the effective date of the regulation until the end of the next regular session of the General Assembly. If the legislature takes no action, the regulation becomes effective.

In summary, there are no statutory provisions that would enable a governor to prohibit an agency or board from developing a regulation or “vetoing” its adoption. The most a governor can do formally would be to delay its effective date. Despite this formal lack of authority for the governor to block a regulation, no one that I talked to about this issue could remember a circumstance in which an agency or board adopted a regulation over a governor’s objections.

There are two related reasons for this actual power of the governor to control the regulatory process. First, the governor is the head of the Executive Branch and the agency heads serve at his pleasure. Consequently, no director of any agency without a regulatory board, such as the Department of State Police or the Department of General Services, is going to proceed with regulatory action against the wishes of the Governor. If he did, he would be looking for a new job very quickly.

Secondly, even those boards with clear statutory authority to promulgate regulations would be limited, in practical terms, as to what they could do. To develop new regulations, or even amendments to existing regulations, especially if those actions are more than technical, a board would need the assistance of agency staff. That staff would, understandably, be reluctant provide more assistance than minimally required by law in the face of gubernatorial opposition to the board’s actions.

In a situation such as now exists, with a new governor taking office, whose policies are significantly different from those of his predecessor, a board could, practically speaking, enact only those new regulatory actions that are already far along in the pipeline. For example, the Board of Health, which has clear statutory authority to regulate private wells, has proposed an amendment to an existing regulation. That proposal is now in the public comment phase. Even if Governor Youngkin had an objection to that proposed amendment, there would be no means of keeping the Board from adopting it. The most the governor could do would be to suspend the effective date of the action for a year.

In all likelihood, the only major effect a regulatory board could have with a governor in office who had different priorities or philosophies would be to refuse to enact, amend, or repeal regulations that the governor wanted or did not like.  Of course, that defensive posture would last only until the governor could replace a majority of the board members with his own appointees.

Role of the Legislature

• Standing committee of each house to which matters relating to the content of a regulation are referred, or the Joint Commission on Administrative Rules, may file an objection to a proposed or final adopted regulation. Within 21 days, the promulgating agency shall file a response to the objection. The regulation then becomes effective in due course.
• With the Governor’s concurrence, the standing committee of both houses of the General Assembly to which matters relating to the content of a regulation are referred, or the Joint Commission on Administrative Rules, may suspend the effective date of a regulation until the end of the next regular session of the General Assembly. The legislature may pass a bill at the next session nullifying all or a portion of the proposed regulation. If no such bill is passed, the suspended regulation shall become effective upon the conclusion of the session.

Emergency Regulations

As already noted, it typically takes 18 to 24 months for a regulation to work its way through the regulatory process. Sometimes, an emergency situation or provisions of state or federal law necessitate regulations being in place within a shorter time span. In such cases, the Code of Virginia allows for the following process:

• Agency submits request stating in writing the nature of the emergency and the necessity for the regulation;
• Approval shall be at sole discretion of the governor;
• Effective on day published in Register;
• Effective for no more than 18 months, although the governor may extend regulation for additional six months. Extension solely at discretion of Governor and not subject to judicial review.

Fast Track

This process can be used for regulations expected to be noncontroversial.

• Governor must approve of the use of fast-track process.
• Agency publishes proposed regulatory action in Register, noting the accelerated process.
• 30-day public comment period.
• Regulation becomes effective 15 days after close of public comment period.
• If objection to use of fast-track process is raised by any of the following, the process ends and regulatory action returns to standard process at step 2:
  • Any member of the applicable committee of the House of Delegates or Senate;
  • Any member of the Joint Commission on Administrative Rules, or
  • Ten or more members of the public.

Exemptions

The Administrative Process Act exempts some agencies completely or partially from its provisions. Certain types of regulatory actions are also exempted. Those exemptions are too numerous to list here.  For anyone interested, they can be found here and here. Occasionally, the General Assembly will enact legislation that includes an exemption for a specified activity. This was the case with the legislation that Steve Haner referred to, dealing with motor vehicle emission rules.

Other comments

An agency may withdraw a regulatory action at any point in the process before it becomes effective.

The APA contains numerous provisions for “suspending,” or pausing, the regulatory process, but they are too numerous to set out here.

An individual may petition an agency to develop a new regulation or amend an existing regulation. For an example of such a petition along with comments, see here.

State law requires each governor to issue an executive order setting out a procedure for periodic review of regulations during his administration.

In many cases, an agency board, rather than the agency per se, has the legal authority to propose and adopt regulations. In these cases, the agency does have some ministerial functions, such as filing the proper notices with the Registrar of Regulations. However, agency staff usually are also heavily involved in the development of regulations by their regulatory boards. The staff have the professional backgrounds in the subject matter that board members often lack, as well as access to data and other information that are not readily available to board members.

The Virginia Register of Regulations is the official document, published every two weeks, that provides notice of regulatory actions. The Virginia Regulatory Town Hall website, maintained by DPB, provides a convenient way for members of the public to access the Register.  On this site, one can find all the adopted regulations of agencies, sorted by secretariat and agency; information on proposed regulatory action, including the texts of new and proposed regulations, various required related documents such as the economic impact analysis; and status of the action in the process. It also includes meeting schedules for all the Commonwealth’s regulatory boards, along with agendas and minutes of prior meetings.