Breakdown of the Virginia Administrative Process Act

After some requests from constituents, I wanted to share a breakdown of the Virginia Administrative Process Act for any of those interested. The Virginia Administrative Process Act sets up the process that regulatory agencies must follow when those agencies create regulations in their field.

Basic Overview of Regulations

A regulatory agency is a government authority that controls certain areas of human activity. For example the Environmental Protection Agency, a regulatory agency that controls any activity that affects the environment.

When the General Assembly enacts a law pertaining to a certain regulatory agency, that law may give the regulatory agency the power to create specific regulations in its field. For example, one law gives the Department of Alcoholic Beverage Control the power to make regulations pertaining to alcohol. With this power, the Department created a regulation that says “The board may withhold approval of any liquor label which contains any obscene subject matter or illustration.”

How the Administrative Process Act Works

The Administrative Process Act controls the process in which a regulatory agency makes a regulation so that regulatory agencies cannot just make any regulation without allowing anyone to voice their opinion on it.

Under the Administrative Process Act, a regulatory agency must provide notice of the planned regulation to the Registrar of Regulations that describes the planned regulation. After the agency provides notice, it must post the proposed regulation publicly on the Virginia Regulatory Town Hall for at least 30 days so that anyone can comment on it. The Virginia Regulatory Town Hall can be accessed at http://townhall.virginia.gov/, where you can browse the proposed regulations and the scheduled meetings of the agencies. You can also comment on the proposed regulations on this website.

Also, if a new Virginia law is enacted in the General Assembly that requires a new regulation, or a change or repeal of all or any part of an existing regulation, the agency responsible for that regulation must file a Notice of Intended Regulatory Action with the Registrar within 120 days of the law’s effective date.

It is not until after the public comment period on the proposed regulation has closed that the agency can file the proposed regulation with the Registrar. When the agency files the proposed regulation with the Registrar it must include a summary of the regulation, a statement of the basis, purpose, substance, and issues of the regulation, and the economic impact analysis of the regulation with the agency’s response. All of these materials must be published in the Virginia Registrar of Regulations and be available at the Virginia Regulatory Town Hall website mentioned above. Once again there must be the notice of opportunity for oral or written submittals on the proposed regulation.

After the proposed regulation is filed, if there are substantial changes to the proposed regulation before the regulation is published as a final regulation, then any person may petition the agency within 30 days of publication to request another opportunity for comment on the changes to the regulation. If at least 25 people make this request then the agency must halt the regulatory process for 30 days and provide another open comment period for the public.

Proposed and final regulations are also subject to review by the General Assembly and the Governor’s office.

A 30-day final adoption period starts after the final regulation is published with the Registrar. If there is no objection to the regulation by the Governor within this time period, the regulation becomes effective at the conclusion of the 30-day final adoption period.

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