6 Va. Admin. Code § 10-10-30

Current through Register Vol. 41, No. 8, December 2, 2024

Section 6VAC10-10-30 - Public participation guidelines

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.

6 Va. Admin. Code § 10-10-30

Derived from Virginia Register Volume 13, Issue 8, eff. February 5, 1997.

Statutory Authority

§§ 2.2-4007 and 22.1-343 of the Code of Virginia.