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2017 SESSION
17102481DBe it enacted by the General Assembly of Virginia:
1. That §§ 2.2-4007.04 and 2.2-4027 of the Code of Virginia are amended and reenacted as follows:
§ 2.2-4007.04. Economic impact analysis.
A. Before delivering any proposed regulation under consideration to the Registrar as required in § 2.2-4007.05, the agency shall submit on the Virginia Regulatory Town Hall a copy of that regulation to the Department of Planning and Budget. In addition to determining the public benefit, the Department of Planning and Budget in coordination with the agency shall, within 45 days, prepare an economic impact analysis of the proposed regulation, as follows:
1. The economic impact analysis shall include but need not be
limited to the projected number of businesses or other entities to whom the
regulation would apply; the identity of any localities and types of businesses
or other entities particularly affected by the regulation; the projected number
of persons and employment positions to be affected; the impact of the
regulation on the use and value of private property, including additional costs
related to the development of real estate for commercial or residential
purposes; and the projected costs to affected businesses, localities, or
entities of implementing or complying with the regulations, including the
estimated fiscal impact on such localities and sources of potential funds to
implement and comply with such regulation. A copy of the economic impact
analysis shall be provided to the Joint Commission on
2. In conducting the economic
impact analysis, the Department of Planning and Budget shall provide an
opportunity for the businesses or other entities to which the
regulation would apply to provide input regarding the anticipated economic
impact of the proposed regulation, which shall be considered and included in
the economic impact analysis. 3. If the regulation may have
an adverse effect on small businesses, the economic impact analysis shall also
include (i) an identification and estimate of the number of small businesses
subject to the regulation; (ii) the projected reporting, recordkeeping, and
other administrative costs required for small businesses to comply with the
regulation, including the type of professional skills necessary for preparing
required reports and other documents; (iii) a statement of the probable effect
of the regulation on affected small businesses; and (iv) a description of any
less intrusive or less costly alternative methods of achieving the purpose of
the regulation. As used in this subdivision, "small business" has the
same meaning as provided in subsection A of § 2.2-4007.1; and B. Agencies shall provide the Department with such estimated
fiscal impacts on localities and sources of potential funds. The Department may
request the assistance of any other agency in preparing the analysis. The
Department shall deliver a copy of the analysis to the agency drafting the
regulation, which shall comment thereon as provided in § 2.2-4007.05, a copy to
the Registrar for publication with the proposed regulation, and an electronic
copy to each member of the General Assembly. No regulation shall be promulgated
for consideration pursuant to § 2.2-4007.05 until the impact analysis has been
received by the Registrar. For purposes of this section, the term
"locality, business, or entity particularly affected" means any
locality, business, or entity that bears any identified disproportionate material
impact that would not be experienced by other localities, businesses, or
entities. The analysis shall represent the Department's best estimate for the
purposes of public review and comment on the proposed regulation. The accuracy
of the estimate shall in no way affect the validity of the regulation, nor
shall any failure to comply with or otherwise follow the procedures set forth
in this subsection create any cause of action or provide standing for any
person under Article 5 (§ 2.2-4025 et seq.) or otherwise to challenge the
actions of the Department hereunder or the action of the agency in adopting the
proposed regulation. C. In the event that the
economic impact analysis completed by the Department reveals that the proposed
regulation would have an adverse economic impact on businesses or would impose
a significant adverse economic impact on a locality, business, or entity
particularly affected, the Department shall advise the Joint Commission on
Administrative Rules, the House Committee on Appropriations, and the Senate
Committee on Finance within the 45-day period. The Joint Commission on
Administrative Rules shall review such rule or regulation and issue a statement
containing the Commission's findings in accordance with § 30-73.3. § 2.2-4027. Issues on review. The burden shall be upon the party complaining of agency
action to designate and demonstrate an error of law subject to review by the
court. Such issues of law include: (i) accordance with constitutional right,
power, privilege, or immunity, (ii) compliance with statutory authority,
jurisdiction limitations, or right as provided in the basic laws as to subject
matter, the stated objectives for which regulations may be made, and the
factual showing respecting violations or entitlement in connection with case
decisions, (iii) observance of required procedure where any failure therein is
not mere harmless error, and (iv) the substantiality of the evidentiary support
for findings of fact. The determination of such fact issue shall be made upon
the whole evidentiary record provided by the agency if its proceeding was
required to be conducted as provided in § 2.2-4009 or 2.2-4020 or, as to
subjects exempted from those sections, pursuant to constitutional requirement
or statutory provisions for opportunity for an agency record of and decision
upon the evidence therein. In addition to any other judicial review provided by law, a
small business, as defined in subsection A of § 2.2-4007.1, that is adversely
affected or aggrieved by final agency action shall be entitled to judicial
review of compliance with the requirements of When the decision on review is to be made on the agency
record, the duty of the court with respect to issues of fact shall be to
determine whether there was substantial evidence in the agency record to
support the agency decision. The duty of the court with respect to the issues
of law shall be to review the agency decision de novo. The court shall enter
judgment in accordance with § 2.2-4029. Where there is no agency record so required and made, any
necessary facts in controversy shall be determined by the court upon the basis
of the agency file, minutes, and records of its proceedings under § 2.2-4007.01
or 2.2-4019 as augmented, if need be, by the agency pursuant to order of the
court or supplemented by any allowable and necessary proofs adduced in court
except that the function of the court shall be to determine only whether the
result reached by the agency could reasonably be said, on all such proofs, to
be within the scope of the legal authority of the agency. Whether the fact issues are reviewed on the agency record or
one made in the review action, the court shall take due account of the
presumption of official regularity, the experience and specialized competence
of the agency, and the purposes of the basic law under which the agency has
acted.3. 4. In
the event the Department cannot complete an economic impact statement within
the 45-day period, it shall advise the agency and the Joint Commission on
Administrative Rules as to the reasons for the delay. In no event shall the
delay exceed 30 days beyond the original 45-day period.subdivision subdivisions A 2 and 3 of § 2.2-4007.04 and §
2.2-4007.1 within one year following the date of final agency action.