Va. Code § 2.2-4007.01 (Notice of intended regulatory action; public hearing) states that “A. In the case of all regulations, . . . an agency shall (i) provide the Registrar of Regulations with a Notice of Intended Regulatory Action that describes the subject matter and intent of the planned regulation[.]” (Emphasis added.) But this NOIRA provides no particularized subject matter and nothing to indicate the actual changes that are “intended” to be made in this “regulatory action.” Instead, the Agency has improperly substituted the “Periodic Review” stage (as described in§ 2.2-4007.1 and § 2.2-4017) with the NOIRA stage.

This fact is further substantiated by the Agency’s own NOIRA document under the “Substance” section, which states, “Please briefly identify and explain the new substantive provisions that are being considered, the substantive changes to existing sections that are being considered, or both.” (Emphasis added.) The Agency, however, has provided neither “new substantive provisions” to 12 VAC 5-412, nor any “substantive changes” to any existing sections within 12 VAC 5-412. It should also be noted that this is never the way a NOIRA is conducted under the Agency’s normal regulatory actions. The Agency’s methodology here is an anomaly by its own standards and practices.     

Moreover, the Agency’s NOIRA document states that the process is subject to Executive Order 14 (as amended July 16, 2018). That Executive Order requires that for the Standard Rulemaking Process (which this is), “The NOIRA shall include the nature and scope of the regulatory changes being considered and the relevant sections of the VAC. This package shall include draft regulatory text if it is available.” However, neither the nature nor the scope of the possible (though completely absent) regulatory changes has been included in the NOIRA document by the Agency, and no individual regulatory sections are listed.     

The NOIRA was not designed to be a fishing expedition to see what changes any member of the public may like to see within a regulatory chapter. Such a broad and unlimited inquiry would only be appropriate during a “Periodic Review” phase. Yet that is precisely what this so-called “Notice of Intended Regulatory Action” seeks to be. As such, this process is now illegitimate in its current posture, and the Board of Health should start it over correctly in the right posture if it is to be considered legally sound.  

Josh Hetzler, Esq.

Legislative Counsel, The Family Foundation of Virginia