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 a list
may do so by writing the agency. In addition, the agency, at its discretion,
may add to the 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 state their desire to continue
to receive documents or be deleted from a list. Individuals and organizations
may be deleted from a list at the request of the individual or at the
discretion of the agency when mail is returned as undeliverable.
B. Whenever the approving authority so
directs, or on its own initiative, the agency may begin the regulatory 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.
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
superintendent shall determine the specific approach to be utilized.
D. The agency shall issue a NOIRA
whenever it considers the adoption, amendment or repeal of a 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 of the regulatory action.
d. A brief description of available
alternatives to meet the need.
e. A
request for comments on the intended regulatory action, to include ideas to
assist the agency in the development of a 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. The agency is required to hold a public
hearing if (i) a hearing is required by the agency's basic law; (ii) the agency
states an intent to hold a public hearing on the proposed regulation in the
NOIRA; (iii) the agency's public participation guidelines require that a public
hearing be held; (iv) the Governor directs that the agency hold a public
hearing; or (v) the agency receives requests for a public hearing from at least
25 persons.
h. A statement inviting
comment on whether the agency should use the participatory approach to assist
the agency in the development of a proposal. This statement shall only be
required when the agency makes a decision to pursue the alternative provided in
subdivision C 2 of this section.
2. The agency shall hold at least one public
meeting whenever it considers the adoption, amendment or repeal of a regulation
unless the approving authority specifically authorizes the agency to proceed
without holding a public meeting. In those cases where the 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; and
2. Distribution by
mail to persons on the list or lists established under subsection A of this
section.
F. After
consideration of public input, the agency may draft the proposed regulation and
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 development of the draft
regulation. The summary or copies of the comments received in response to the
NOIRA shall also be distributed to the approving authority.
G. On approval of the draft proposed
regulation by the approving authority, the agency shall publish a Notice of
Comment Period (NOCP) and the proposal for public comment.
H. The NOCP 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 a 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 on 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. Qualitative data shall include, if
possible, an example or examples of the impact of the proposed regulation on a
typical member, or on 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 on small businesses as defined in
§ 9-199 of the Code of Virginia or on 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.
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 may
be held during the public comment period, and whenever practicable, no less
than 15 days before the close of the public comment period. The public hearing
may be held in a location that the agency determines will best facilitate input
from interested persons. In those cases where the agency chooses to or is
required to conduct a formal hearing, the notice shall show 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
NOCP in the Virginia Register of Regulations.
J. The agency shall disseminate the NOCP to
the public via the following:
1. Distribution
to the Registrar of Regulations for publication in the Virginia Register of
Regulations.
2. Publication in a
newspaper of general circulation published at the state capital and other
newspapers as the agency may deem appropriate.
3. Distribution by mail to persons on the
list or lists established under subsection A of this section.
K. The agency shall prepare a
summary of comments received in response to the NOCP and the agency's response
to the comments received. The agency shall send a draft of the summary of
comments to the public comment participants 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, on request, to interested
persons.
L. If the agency
determines that the process to adopt, amend or repeal a regulation should be
ended after approval of the draft proposed regulation by the approving
authority, the agency shall present to the approving authority for their
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 22.1-343 of the Code of Virginia.
