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Administrative Procedures Act – Virginia

In Virginia, the Administrative Procedure Act is known as Administrative Process Act and is found in Title 2.2, chapter 40 of Code of Virginia.  According to Va. Code Ann. § 2.2-4007, any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation.  Within fourteen days of receiving a petition, the agency should send a notice to the Registrar for publication in the Virginia Register of Regulations.  The agency should also provide a twenty-one day period for acceptance of written public comment.

As per Va. Code Ann. § 2.2-4007.01, prior to rule making an agency should provide the Registrar of Regulations with a Notice of Intended Regulatory Action that describes the subject matter and intent of the planned regulation.  Further, at least thirty days should be provided for public comment.

Va. Code Ann. § 2.2-4007.02 provides that each agency should develop, adopt and use, public participation guidelines for soliciting the input of interested parties in the formation and development of its regulations.  Further, each agency should afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing.

According to Va. Code Ann. § 2.2-4007.04, before delivering any proposed regulation under consideration to the Registrar, the agency should submit a copy of that regulation to the Department of Planning and Budget.  Within forty-five days, the Department of Planning and Budget in coordination with the agency should prepare an economic impact analysis of the proposed regulation.

Va. Code Ann. § 2.2-4007.05 provides that before promulgating any regulation under consideration, the agency should deliver a copy of that regulation to the Registrar.  The agency should also file along with copy of regulation a summary of the regulation and a separate and concise statement of:

  • basis of the regulation,
  • purpose of the regulation,
  • substance of the regulation,
  • issues of the regulation, and
  • response of agency to the economic impact analysis.

According to Va. Code Ann. § 2.2-4011, an agency may adopt an emergency rule upon consultation with the Attorney General.  The approval of Governor will be granted only if agency submits a request stating in writing the nature of the emergency, and the necessity for such action.  All emergency regulations are limited to twelve months in duration.

As per Va. Code Ann. § 2.2-4013, executive review of proposed and final regulations procedures include:

  • review by the Attorney General to ensure statutory authority for the proposed regulations, and
  • examination by the Governor to determine if the proposed regulations are (a) necessary to protect the public health, safety and welfare and (b) clearly written and easily understandable.

The executive review of proposed and final regulations procedures may also include review of the proposed regulation by the appropriate Cabinet Secretary.

Va. Code Ann. § 2.2-4014 provides for legislative review of proposed and final regulations.  After publication of the Virginia Register of Regulations, the standing committee of each house of the General Assembly or the Joint Commission on Administrative Rules may meet and file with the Registrar and the promulgating agency an objection to a proposed or final adopted regulation.  The Registrar should publish any such objection received by him as soon as practicable in the Virginia Register of Regulations.

According to Va. Code Ann. § 2.2-4019, agencies may make decisions upon ascertaining the facts through informal conference or consultation proceedings.  As per Va. Code Ann. § 2.2-4020, agencies should take evidence formally if the basic laws provide expressly for decisions upon or after hearing.  Parties to formal proceedings should be given reasonable notice of the details of hearing.  In such formal proceedings the parties are entitled to:

  • accompanied by and represented by counsel,
  • submit oral and documentary evidence and rebuttal proofs,
  • conduct such cross-examination as may elicit a full and fair disclosure of the facts, and
  • have the proceedings completed and a decision made with dispatch.

Va. Code Ann. § 2.2-4022 provides that agency may issue subpoenas requiring testimony or the production of books, papers, and physical or other evidence.

As per Va. Code Ann. § 2.2-4023, final orders may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the agency head or his designee.  Va. Code Ann. § 2.2-4024 provides that all formal hearings should be presided over by a hearing officer selected from a list prepared by the Executive Secretary of the Supreme Court and maintained in the Office of the Executive Secretary of the Supreme Court.

According to Va. Code Ann. § 2.2-4026, any person affected by and claiming the unlawfulness of any regulation, or party aggrieved by and claiming unlawfulness of a case decision have a right to review by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the rules of the Supreme Court of Virginia.  Actions may be instituted in any court of competent jurisdiction and the judgments of the courts of original jurisdiction are subject to appeal to or review by higher courts.

Inside Administrative Procedures Act – Virginia