CODE OF VIRGINIA

EVIDENTIARY HEARINGS ON REGULATIONS (§ 2.2-4009)

Where an agency proposes to consider the exercise of authority to promulgate a
regulation, it may conduct or give interested persons an opportunity to
participate in a public evidentiary proceeding; and the agency shall always do
so where the basic law requires a hearing. Evidentiary hearings may be limited
to the trial of factual issues directly related to the legal validity of the
proposed regulation in any of the relevant respects outlined in §
2.2-4027.General notice of the proceedings shall be published as prescribed in
§ 2.2-4007.03. In addition, where the proposed regulation is to be addressed to
named persons, the latter shall (i) also be given the same notice individually
by mail or otherwise if acknowledged in writing and (ii) be entitled to be
accompanied by and represented by counsel or other representative. The
proceedings may be conducted separately from, and in any event the record
thereof shall be separate from, any other or additional proceedings the agency
may choose or be required to conduct for the reception of general data, views,
and argument pursuant to § 2.2-4007.02 or otherwise. Any probative evidence may
be received except that the agency shall as a matter of efficiency exclude
irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, and may
deny rebuttal, or cross-examination. Testimony may be admitted in written form
provided those who have prepared it are made available for examination in
person.The agency or one or more of its subordinates specially designated for
the purpose shall preside at the taking of evidence and may administer oaths and
affirmations. The proceedings shall be recorded verbatim and the record thereof
shall be made available to interested persons for transcription at their expense
or, if transcribed by or for the agency, for inspection or purchase at
cost.Where subordinates preside at the taking of the evidence, they shall report
their recommendations and proposed findings and conclusions that shall be made
available upon request to the participants in the taking of evidence as well as
other interested persons and serve as a basis for exceptions, briefs, or oral
argument to the agency itself. Whether or not subordinates take the evidence,
after opportunity for the submittal of briefs on request and such oral argument
as may be scheduled, the agency may settle the terms of the regulation and shall
promulgate it only upon (a) its findings of fact based upon the record of
evidence made pursuant to this section and facts of which judicial notice may be
taken, (b) statements of basis and purpose as well as comment upon data received
in any informational proceedings held under § 2.2-4007.03 and (c) the
conclusions required by the terms of the basic law under which the agency is
operating.

HISTORY: 1975, c. 503, § 9-6.14:8; 1985, c. 602; 2001, c. 844; 2007, cc. 873,
916; 2012, c. 795.