|Action||General Regulatory Reduction Initiative|
|Comment Period||Ends 3/15/2023|
Mark W. Craig Auctions
4 Pops Lane, Bridgewater, VA 22812
Tel: (540) 246-6430 E-mail: firstname.lastname@example.org
March 15, 2023
Commonwealth of Virginia Auctioneers Board
Department of Professional and Occupational Regulation
9960 Maryland Drive, Suite 400, Richmond, VA 23233
ATTN: Ms. Bonnie Davis, Regulatory Operations Administrator
Re: Comments in Response to Notice of Intended Regulatory Action Regarding Virginia’s Regulations Concerning Auctioneers.
Dear Ms. Davis:
By a Notice of Intended Regulatory Action (“NOIRA”) published in 39 Va. Register of Regulations #13 on February 13, 2023, the Virginia Auctioneers Board (the “Board”) announced its intention to consider amending 18VAC25-21, Rules and Regulations of the Virginia Auctioneers Board (the “Regulations”). The announced purpose of the Intended Regulatory Action (the “IRA”) is “to remove overly burdensome or no longer applicable requirements and clarify and consolidate regulations in accordance with Governor Youngkin's Executive Directive One (2022)”. The deadline for submitting public comments on the IRA is today, March 15, 2023.
By this letter, I’m submitting to the Board my comments on the IRA. By way of background, I’m a licensed Virginia auctioneer (#2905002160) doing business in the Shenandoah Valley since 1995. I conduct approximately 60 auctions each year, auctioning both personal property (including motor vehicles, farm equipment, coins, firearms, furniture, and household goods) and real property.
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First and foremost, the NOIRA has no text, or any link to the text, of whatever amendments to the Regulations the Board is considering; indeed, the Virginia Regulatory Town Hall website (townhall.virginia.gov) states that the NOIRA was submitted without any “preliminary draft text” of the amended Regulations. I’m informed by a friend of mine, who’s both an active Virginia lawyer and an avid auction-goer (and who helped me prepare these comments), that he’s been in touch with you by telephone and e?mail, and that you’ve advised him that, after comments on the IRA are received and considered, the Board will publish for public comment the full text of the proposed amended Regulations. I’m trusting that this advice is correct and, if so, please be assured that I’ll have comments on the proposed amended Regulations if they’re warranted.
That being said, what is posted on the Virginia Regulatory Town Hall website is an Agency Background Document (the “ABD”) for the NOIRA, which identifies 22 out of the 30 provisions of the Regulations that the Board is considering for amendment or deletion. (The eight provisions that apparently are to be left intact are 18VAC25-21-10, ?30, -70, ?95, -120, -170, -185, -260). The Board’s proposed actions vis-à-vis these 22 provisions fall into several distinct categories, which I address in no particular order:
1. The ABD identifies four provisions (18 VAC25-21-40, -100, -230, -250) proposed to be “repealed as [their provisions are] specified/repeated in the statute”. I don’t think that’s a good idea. Considering the IRA’s announced purpose, these four provisions aren’t “overly burdensome or no longer applicable requirements” and their removal doesn’t “clarify [or] consolidate regulations.” Rather, in my opinion, their removal detracts from the nature of the Regulations as a comprehensive and comprehensible body of rules that benefits not just the public but also auctioneers, by enhancing their notice of, and thus their compliance with, those rules. Indeed, my lawyer friend mentioned above, who practiced federal administrative law for almost 40 years, tells me that regulations commonly and deliberately incorporate statutory language for that very purpose. In short, removing all statutory language from regulations may well save on paper and ink, but it has a significant downside.
2. The ABD identifies six provisions (18 VAC25-21-20, -50, -110, -140, -150, -190) for which “the language is [proposed to be] reworded and clarified”. Since the IRA doesn’t explain how their language is proposed to be reworded or clarified, I await publication of the full text of any proposed amendments to the Regulations before commenting.
3. The ABD proposes to repeal 18VAC25-21-60, regarding the auctioneer’s examination, because “it is repeated in another regulation”. That other regulation isn’t identified, and I can’t find it. The one that comes closest is 18VAC25-21-200, but that regulation specifies the subjects that a school of auctioneering must teach, not those that an auctioneer’s examination must cover.
4. The ABD proposes to amend two provisions (18VAC25-21-80, -90) because “a portion of their information is redundant”. What language is deemed redundant isn’t specified, so I await publication of the full text of any proposed amendments to the Regulations before commenting.
5. The ABD identifies five provisions (18VAC25-21-130, -180, -240, -270, ?280) that are proposed to be repealed/deleted, in whole or in part, “because [they are] unnecessary”. I disagree with that assessment. Specifically:
a. 18VAC25-21-130: As I understand it, the proprietor of every licensed business in Virginia must display the business license in the principal place of business or carry it if mobile; auctioneers should be no different.
b. 18VAC25-21-180: How is it unnecessary for the Regulations to specify the grounds for disciplinary action against an auctioneer? And what particular grounds for disciplinary action does the Board deem unnecessary?
c. 18VAC25-21-240, -270, -280: Speaking as a licensed auctioneer who regularly attends auctioneering continuing education courses, the requirements embodied in these provisions are very necessary if continuing education, as essential in auctioneering as it is in any other regulated profession or business, is to be effective and enforceable.
6. The ABD identifies four provisions that are proposed to be repealed because their substance is “better suited” to be incorporated into other provisions that are proposed to be “reworded and clarified”. Specifically, 18VAC25-21-160 is to be incorporated into revised 18VAC25-21-140, while three provisions (18VAC25-21?200, -210, -220) will be incorporated into revised 18VAC25-21-190. Absent the proposed reworded/clarified language of the provisions that will receive the substance of the provisions proposed for repeal, I can’t meaningfully comment at this time.
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Finally, I think it’s important for the Board to take a step back from the details of its proposed amendments to the Regulations and consider generally the essential purpose of legislative statutes and administrative regulations, and specifically the vogue currently enjoyed by efforts to consolidate, streamline, and otherwise “reduce” them. In the abstract, everyone (except, perhaps, a few lawyers, politicians and functionaries) would like to see our legislatures and agencies simplify the complex, shorten the verbose, remove the redundant, and do away with the unduly burdensome and the unnecessary. But these aren’t to be done for their own sake; rather, they’re the surest means to a desirable end – that being, in our particular context, crafting a set of intelligible rules and requirements that are conducive, if not essential, to the honest, economical and effective conduct of auctioneering. I respectfully urge the Board to stay focused on achieving that goal rather than “reducing” the Regulations at all costs.
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I hope that you will find my comments useful in the Board’s consideration of possible amendments to the Regulations. Please feel free to communicate with me if you have any questions about them.
Mark W. Craig Auctions
By Mark W. Craig, Principal
P.S.: I’ve read the five comments on the IRA that have thus far been posted on townhall.virginia.gov. They explain in great detail, and most persuasively, why auctioneering shouldn’t be deregulated, and especially why auctioneer licensing shouldn’t be eliminated. Apparently, their concerns arise from the unsuccessful proposal to do so made during last year’s legislative session by means of Senate Bill 1480.
I agree wholeheartedly with everything that the prior commentators say but, with all due respect, they don’t address the IRA by its own terms. For example, the IRA proposes that, of the six provisions of the Regulations governing auctioneer licensing (18VAC25-21-20 through ?70), two (-30, -70) will be left intact, two (?20, ?50) will be reworded/clarified, and two (-40, -60) will be removed as redundant. So at this time, the IRA doesn’t look to me like a backdoor attempt by the Board to deregulate auctioneering or eliminate auctioneer licensing, i.e., to achieve by amended regulation what failed by amended statute. Nor can it be so, since the Board, as an administrative agency, is bound by its governing statutes and lacks the power to nullify, deviate from, or ignore them.