2006 Code of Virginia § 3.1-398 - Authority to make regulations; conformity with federal regulations; hearings; enforcement of articl...

3.1-398. Authority to make regulations; conformity with federalregulations; hearings; enforcement of article; review of regulations.

A. The authority to promulgate regulations for the efficient enforcement ofthis article is hereby vested in the Board, unless specially conferred on theCommissioner. The Board is hereby authorized to make the regulationspromulgated under this article conform, insofar as practicable with thosepromulgated under the federal act. Notwithstanding any other requirementunder the Administrative Process Act ( 2.2-4000 et seq.) to the contrary,the Commissioner may adopt any regulation under the federal act withoutpublic hearing. Such regulation shall be effective upon filing with theRegistrar of Regulations. The Board, at its next regular meeting, shall adoptthe regulation after notice but without public hearing unless a petition isfiled in accordance with subsection F.

B. The Board may adopt any edition of the Food and Drug Administration's FoodCode, or supplement thereto, or any portion thereof, as regulations, with anyamendments as it deems appropriate. In addition, the Board may repeal oramend any regulation adopted pursuant to this subsection. No regulationsadopted or amended by the Board pursuant to this subsection, however, shallestablish requirements for any license, permit or inspection unless suchlicense, permit or inspection is otherwise provided for in this title. Theprovisions of the Food and Drug Administration's Food Code shall not apply tofarmers selling their own farm-produced products directly to consumers fortheir personal use, whether such sales occur on such farmer's farm or at afarmers' market, unless such provisions are adopted in accordance with theAdministrative Process Act ( 2.2-4000 et seq.).

C. The provisions of the Administrative Process Act ( 2.2-4000 et seq.)shall not apply to the adoption of any regulation pursuant to subsection B ifthe Board of Health adopts the same edition of the Food Code, or the sameportions thereof, pursuant to subsection C of 35.1-14 and the regulationsadopted by the Board and the Board of Health have the same effective date. Inthe event that the Board of Health adopts regulations pursuant to 2.2-4012.1, the effective date of the Board's regulations may be any date onor after the effective date of the regulations adopted by the Board of Health.

Notwithstanding any exemption to the contrary, a regulation promulgatedpursuant to subsection B shall be subject to the requirements set out insubsections F, H, and I of 2.2-4007, and shall be published in the VirginiaRegister of Regulations. After the close of the 60-day comment period, theBoard may adopt a final regulation, with or without changes. Such regulationshall become effective 15 days after publication in the Virginia Register,unless the Board has withdrawn or suspended the regulation, or a later datehas been set by the Board. The Board shall also hold at least one publichearing on the proposed regulation during the 60-day comment period. Thenotice for such public hearing shall include the date, time and place of thehearing.

D. Hearings authorized or required by this article shall be conducted by theBoard, the Commissioner or such officer, agent, or employee as the Board maydesignate for the purpose.

E. It shall be the duty of the Commissioner to coordinate enforcement of thisarticle with the applicable federal agencies charged with enforcement of thefederal act, in order to avoid unnecessary or unjustified conflict betweenenforcement of this article and the federal act as to Virginia foodmanufacturers, processors, packers and retailers.

F. It shall be the duty of the Board or Commissioner from time to time forgood cause shown to review the regulations and enforcement guidelinespromulgated pursuant to this article. If the Commissioner finds that anyfederal regulation or enforcement guideline which shall include any toleranceor action level is not in consonance with the health and welfare of thecitizens of the Commonwealth, he shall petition the appropriate federalagency or agencies to change the federal regulation or enforcement guideline.

G. The Commissioner or any interested party for good cause shown may requestthe Board to hold a public hearing concerning any regulation or enforcementguideline. If the Board after hearing finds that the regulation orenforcement guideline is not in consonance with the health and welfare of thecitizens of this Commonwealth, it shall adopt a new regulation or enforcementguideline that is in consonance with the health and welfare of the citizensof this Commonwealth. Within the limits of personnel and funds available allstate agencies and institutions shall cooperate and assist in furnishinginformation and data as to whether the regulations or enforcement guidelinesin question are in consonance with the health and welfare of the citizens ofthis Commonwealth.

(Code 1950, 3-318; 1966, c. 702; 1977, c. 440; 2003, c. 695; 2004, c. 802.)