Current through Register Vol. 41, No. 3, September 23, 2024
A. The agency shall establish and maintain a
list or lists consisting of persons expressing an interest in the adoption,
amendment or repeal of regulations. Any person wishing to be placed on any list
may do so by writing the agency. In addition the agency, at its discretion, may
add to any list any person, organization or publication it believes will be
interested in participating in the promulgation of regulations. Individuals and
organizations may be periodically requested to indicate their desire to
continue to receive documents or be deleted from a list. Individuals and
organizations may be deleted from any list at the request of the individual or
organization, or at the discretion of the agency when mail is returned as
undeliverable.
B. Whenever the
approving authority so directs or upon its own initiative, the agency may
commence the regulation adoption process and proceed to draft a proposal
according to these procedures.
C.
The agency shall use the participatory approach to assist in the development of
the proposal or use one of the following alternatives:
1. Proceed without using the participatory
approach if the approving authority specifically authorizes the agency to
proceed without using the participatory approach; or
2. Include in the Notice of Intended
Regulatory Action (NOIRA) a statement inviting comment on whether the agency
should use the participatory approach to assist the agency in the development
of the proposal. If the agency receives written responses from at least five
persons during the associated comment period indicating that the agency should
use the participatory approach, the agency shall use the participatory approach
requested. Should different approaches be requested, the director shall
determine the specific approach to be utilized.
D. The agency shall issue a NOIRA whenever it
considers the adoption, amendment or repeal of any regulation.
1. The NOIRA shall include at least the
following:
a. A description of the subject
matter of the planned regulation;
b. A description of the intent of the planned
regulation;
c. A brief statement as
to the need for regulatory action;
d. A brief description of alternatives
available, if any, to meet the need;
e. A request for comments on the intended
regulatory action, to include any ideas to assist the agency in the development
of any proposal;
f. A request for
comments on the costs and benefits of the stated alternatives or other
alternatives;
g. A statement of the
agency's intent to hold at least one public hearing on the proposed regulation
after it is published in The Virginia Register of Regulations; and
h. A statement inviting comment on whether
the agency should use the participatory approach to assist the agency in the
development of any proposal. Including this statement shall only be required
when the agency makes a decision to pursue the alternative provided in
subdivision C 2 of the section.
2. The agency shall hold at least one public
meeting whenever it considers the adoption, amendment or repeal of any
regulation unless the approving authority specifically authorizes the agency to
proceed without holding a public meeting.
In those cases where a public meeting or meetings will be
held, the NOIRA shall also include the date, not to be less than 30 days after
publication in The Virginia Register of Regulations, time and place of the
public meeting or meetings.
3. The public comment period for NOIRAs under
this section shall be no less than 30 days after publication of the NOIRA in
The Virginia Register of Regulations.
E. The agency shall disseminate the NOIRA to
the public via the following:
1. Distribution
to the Registrar of Regulations for publication in The Virginia Register of
Regulations.
2. Distribution by
mail to persons on the lists established under subsection A of this
section.
F. After
consideration of public input, the agency may complete the draft proposed
regulation and any supporting documentation required for review. If the
participatory approach is being used, the draft regulation shall be developed
in consultation with the participants. A summary or copies of the comments
received in response to the NOIRA shall be distributed to the participants
during the development of the draft regulation. This summary or copies of the
comments received in response to the NOIRA shall also be distributed to the
approving authority.
G. Upon
approval of the draft proposed regulation by the approving authority, the
agency shall publish a Notice of Public Comment (NOPC) and the proposal for
public comment.
H. The NOPC shall
include at least the following:
1. The notice
of the opportunity to comment on the proposed regulation, the location where
copies of the draft may be obtained and the name, address and telephone number
of the individual to contact for further information about the proposed
regulation;
2. A request for
comments on the costs and benefits of the proposal;
3. The identity of any locality particularly
affected by the proposed regulation;
4. A statement that an analysis of the
following has been conducted by the agency and is available to the public upon
request:
a. A statement of purpose: the
rationale or justification for the new provisions of the regulation, from the
standpoint of the public's health, safety or welfare;
b. A statement of estimated impact:
(1) Projected number and types of regulated
entities or persons affected.
(2)
Projected cost, expressed as a dollar figure or range, to regulated entities
(and to the public, if applicable) for implementation and compliance. In those
instances where the agency is unable to quantify projected costs, it shall
offer qualitative data, if possible, to help define the impact of the
regulation. Such qualitative data shall include, if possible, an example or
examples of the impact of the proposed regulation on a typical member or
members of the regulated community.
(3) Projected cost to the agency for
implementation and enforcement.
(4)
The beneficial impact the regulation is designed to produce.
c. An explanation of need for the
proposed regulation and potential consequences that may result in the absence
of the regulation;
d. An estimate
of the impact of the proposed regulation upon small businesses as defined in
§ 9-199 of the Code of Virginia or organizations in Virginia;
e. A description of provisions of the
proposed regulation which are more restrictive than applicable federal
requirements, together with the reason why the more restrictive provisions are
needed;
f. A discussion of
alternative approaches that were considered to meet the need the proposed
regulation addresses, and a statement as to whether the agency believes that
the proposed regulation is the least burdensome alternative to the regulated
community that fully meets the stated purpose of the proposed regulation;
and
g. A schedule setting forth
when, after the effective date of the regulation, the agency will evaluate it
for effectiveness and continued need.
5. The date, time and place of at least one
public hearing held in accordance with § 9-6.14:7.1 of the Code of
Virginia to receive comments on the proposed regulation. The public hearing or
hearings may be held at any time during the public comment period and, whenever
practicable, no less than 15 days prior to the close of the public comment
period. The public hearing or hearings may be held in such location or
locations as the agency determines will best facilitate input from interested
persons. In those cases where the agency elects to conduct a formal hearing,
the notice shall indicate that the formal hearing will be held in accordance
with § 9-6.14:8 of the Administrative Process Act.
I. The public comment period shall close no
less than 60 days after publication of the NOPC in The Virginia Register of
Regulations.
J. The agency shall
disseminate the NOPC to the public via the following:
1. Distribution to the Registrar of
Regulations for:
a. Publication in The
Virginia Register of Regulations; and
b. Publication in a newspaper of general
circulation published at the state capital and such other newspapers as the
agency may deem appropriate.
2. Distribution by mail to persons on the
lists established under subsection A of this section.
K. The agency shall prepare a summary of
comments received in response to the NOPC and the agency's response to the
comments received. The agency shall send a draft of the summary of comments to
all public commenters on the proposed regulation at least five days before
final adoption of the regulation. The agency shall submit the summary and
agency response and, if requested, submit the full comments to the approving
authority. The summary, the agency response, and the comments shall become a
part of the agency file and after final action on the regulation by the
approving authority, made available, upon request, to interested
persons.
L. If the agency
determines that the process to adopt, amend or repeal any regulation should be
terminated after approval of the draft proposed regulation by the approving
authority, the agency shall present to the approving authority for its
consideration a recommendation and rationale for the withdrawal of the proposed
regulation.
M. Completion of the
remaining steps in the adoption process shall be carried out in accordance with
the Administrative Process Act.
Statutory Authority
§§ 2.2-4007 and 29.1-103 of the Code of Virginia.
