Legal Basis for Rulemaking
Laws and regulations governing rulemaking
The following laws and regulations set out the legal authority to promulgate a regulation in Virginia. They also set out the process for how a regulation is promulgated.
An agency/board's authority to promulgate regulations is determined by:
An agency/board's authority to promulgate regulations is determined by:
- that agency’s authorizing statute in the Code of Virginia and
- Federal statutes and regulations, if applicable.
The process for promulgating a regulation is prescribed by:
- Article 2 of the Administrative Process Act,
- Executive Order 17 (2014) – Development and Review of Regulations Proposed by State Agencies (PDF file) and
- An agency or board’s public participation guidelines.
The requirements for publication in the Virginia Register of Regulations are prescribed by:
- The Virginia Register Act,
- Regulations of the Virginia Code Commission for implementing the Virginia Register Act and
- Virginia Register Form, Style, and Procedure Manual (RTF document).
General legal principles (provided by the Office of the Attorney General)Jump down to
- Good regulatory practice
- Ex parte communications
- Review by the Office of the Attorney General (OAG)
- How to make a regulation enforceable
- Keeping a permanent record
- Incorporation by reference
Good regulatory practice
Regulations of the type covered by this guide are administrative "legislation" and thus have the force and effect of law. The precise definition of "regulation" is found in § 2.2-4001 of the Code of Virginia, a part of the Administrative Process Act (APA). A regulation is:
any statement of general application, having the force of law, affecting the rights or conduct of any person, adopted by an agency in accordance with the authority conferred on it by applicable basic laws.
This distinguishes a regulation from an agency policy--which lacks the legal status of a regulation--and from a guidance document (§ 2.2-4001 of the Code of Virginia). A guidance document is the closest thing in Virginia statutory law to an "interpretative" regulation. It merely tells the public and agency staff how an agency interprets its statutes and regulations.
The APA definition is the key to good regulatory practice. Agencies should keep in mind certain basic principles as they consider promulgating regulations. These are:
- the agency must identify its statutory authority to promulgate,
- the necessity for a regulation--having the force of law—as opposed to a policy or a guidance document,
- a consideration of which procedures (APA Article 2, emergency or exempt process) are necessary and appropriate for the promulgation,
- the need to comply with applicable executive orders, and
- the need for a record to support the regulation to be promulgated.
Review by the Office of the Attorney General (OAG)
The formal role of the Attorney General in the regulatory process is limited. Section § 2.2-4013 (A) of the Code only mandates that the OAG review regulations for statutory authority. Recent executive orders have expanded the number and nature of certifications agencies are to request from the OAG. Typically an agency will contact its own counsel within the OAG and request one of these certifications. Experienced regulatory coordinators will work with their counsel so that deadlines can be met and problems avoided and, if possible, involve their own counsel during the preliminary stages of regulatory development.
The less formal role of the OAG varies, but it can be considerable. Some agencies involve their counsel in the development of some or all of their regulations. When appropriate, this may save considerable time. If the lawyer is initially involved, drafting problems may be eliminated and delays avoided. Legal problems identified in a draft or final regulation are typically handled through privileged communications which, even if put in writing, are not part of the public record. Statements of authority, on the other hand, are made part of the agency’s regulatory package and so are public documents.
How to make a regulation enforceable
First and foremost, a regulation must be supported by statutory authority. Express authority is preferred, but implied authority is sufficient provided it can be fairly implied from the language used in the basic law or it is necessary to enable the agency to exercise the powers that are expressly granted. See Muse v. Alcohol Beverage Control Board, 9 Va. App. 74, 384 S.E.2d 110 (1989). For example, the power to impose a lesser sanction such as a license restriction does not necessarily indicate that the agency has the power to impose a monetary penalty or fine.
A properly promulgated and adopted regulation is entitled to a presumption of validity in a judicial proceeding. See § 2.2-4027 of the Code of Virginia. That is the goal. While it may seem elementary and perhaps even unnecessary, the best way to achieve this goal is to write the regulation clearly, in simple English. Avoid technical terminology as much as possible. Spell out what is to be done or not to be done and the penalty for any violation. Relate the regulation clearly to its statutory authority. The regulation must be understandable to (1) the regulated community (2) lawyers who may end up challenging or defending it, and (3) a court which may hear that challenge.
- Be sure the agency has the statutory authority ofto promulgate and adopt the regulation.
- Be sure the regulation is necessary; that is, be sure imposing more law on the public is the most efficient and effective way for the agency to carry out its mandate.
- Be sure about, and follow exactly, the procedures necessary to promulgate the regulation. Bend over backwards to accommodate public input and to avoid procedural errors. Public involvement is mandated through public participation guidelines. See 2.2-4007.02 of the Code of Virginia.
- Be sure the record contains everything the agency uses to support promulgation of the regulation.
Ex parte communications
There is a need to distinguish between ex parte communication and late comment. In the case of the latter—when a regulatory record has closed—nothing new should be added unless the record is officially reopened for further public comment. Reopening the record should be limited because once the statutory process has been followed, adding late comments lengthens the regulatory process because the public must have another opportunity to comment on any newly submitted information.
Ex parte communication occurs when someone with an interest in the outcome of a regulatory action seeks to communicate with and/or influence an agency’s decision makers. The law in Virginia is not clear as to how such matters should be handled. But in the interest of preserving both fairness and the appearance of fairness in the regulatory process, all such communication should be voluntarily disclosed by the recipient (typically a member of the board) and placed in the record so they are not kept secret and are known to all. The decision maker must then decide whether an opportunity for further public comment is necessary to assure that the record is complete and all interested parties have been treated fairly and consistently in accordance with the law.
Keeping a permanent record
Agencies must keep an official "regulatory record." This may generally be defined as any document or information used by the agency in making its decision to promulgate a regulation. Such materials must be kept at a minimum until the time for challenging the regulation has passed. Better practice is to keep this record as long as the regulation is in effect and is thus subject to an "as applied" challenge by someone against whom the agency is seeking to enforce the regulation. See § 2.2-4007.03 of the Code of Virginia.
Incorporation by reference
The process of incorperation by reference is governed by the Virginia Register Act (in particular, § 2.2-4103 of the Code of Virginia). This statute, in part, states:
Where regulations adopt textual matter by reference to publications other than the Federal Register or Code of Federal Regulations, the agency shall (i) file with the Registrar copies of the referenced publications, (ii) state on the face of or as notations to regulations making such adoptions by reference the places where copies of the referred publications may be procured, and (iii) make copies of such referred publications available for public inspection and copying along with its other regulations.
See also January 24, 1994 Regulations of the Virginia Code Commission for Implementing the Virginia Register Act, Part III, §§ 3.1-3.3.