2006 Code of Virginia § 2.2-4007 - Notice of intended regulatory action; public participation; informational proceedings; effect of no...

2.2-4007. Notice of intended regulatory action; public participation;informational proceedings; effect of noncompliance.

A. Any person may petition an agency to request the agency to develop a newregulation or amend an existing regulation. The petition shall state (i) thesubstance and purpose of the rulemaking that is requested, includingreference to any applicable Virginia Administrative Code sections, and (ii)reference to the legal authority of the agency to take the action requested.Within 14 days of receiving a petition, the agency shall send a noticeidentifying the petitioner, the nature of the petitioner's request and theagency's plan for disposition of the petition to the Registrar forpublication in the Virginia Register of Regulations in accordance with theprovisions of subsection B of 2.2-4031. A 21-day period for acceptance ofwritten public comment on the petition shall be provided after publication inthe Virginia Register. The agency shall issue a written decision to grant ordeny the petitioner's request within 90 days following the close of thecomment period. However, if the rulemaking authority is vested in an entitythat has not met within that 90-day period, the entity shall issue a writtendecision no later than 14 days after it next meets. The written decisionissued by the agency shall include a statement of its reasons and shall besubmitted to the Registrar for publication in the Virginia Register ofRegulations. Agency decisions to initiate or not initiate rulemaking inresponse to petitions shall not be subject to judicial review.

B. In the case of all regulations, except those regulations exempted by 2.2-4002, 2.2-4006, 2.2-4011, or 2.2-4012.1, an agency shall provide theRegistrar of Regulations with a Notice of Intended Regulatory Action thatdescribes the subject matter and intent of the planned regulation. At least30 days shall be provided for public comment after publication of the Noticeof Intended Regulatory Action. An agency shall not file proposed regulationswith the Registrar until the public comment period on the Notice of IntendedRegulatory Action has closed.

C. Agencies shall state in the Notice of Intended Regulatory Action whetherthey plan to hold a public hearing on the proposed regulation after it ispublished. Agencies shall hold such public hearings if required by basic law.If the agency states an intent to hold a public hearing on the proposedregulation in the Notice of Intended Regulatory Action, then it shall holdthe public hearing. If the agency states in its Notice of Intended RegulatoryAction that it does not plan to hold a hearing on the proposed regulation,then no public hearing is required unless, prior to completion of the commentperiod specified in the Notice of Intended Regulatory Action (i) the Governordirects the agency to hold a public hearing or (ii) the agency receivesrequests for a public hearing from at least 25 persons.

D. Public participation guidelines for soliciting the input of interestedparties in the formation and development of its regulations shall bedeveloped, adopted and utilized by each agency pursuant to the provisions ofthis chapter. The guidelines shall set out any methods for the identificationand notification of interested parties, and any specific means of seekinginput from interested persons or groups that the agency intends to use inaddition to the Notice of Intended Regulatory Action. The guidelines shallset out a general policy for the use of standing or ad hoc advisory panelsand consultation with groups and individuals registering interest in workingwith the agency. Such policy shall address the circumstances in which theagency considers the panels or consultation appropriate and intends to makeuse of the panels or consultation.

E. In formulating any regulation, including but not limited to those inpublic assistance and social services programs, the agency pursuant to itspublic participation guidelines shall afford interested persons anopportunity to submit data, views, and arguments, either orally or inwriting, to the agency or its specially designated subordinate. However, theagency may begin drafting the proposed regulation prior to or during anyopportunities it provides to the public to submit comments.

F. In the case of all regulations, except those regulations exempted by 2.2-4002, 2.2-4006, or 2.2-4011, the proposed regulation and general noticeof opportunity for oral or written submittals as to that regulation shall bepublished in the Virginia Register of Regulations in accordance with theprovisions of subsection B of 2.2-4031. In addition, the agency may, in itsdiscretion, (i) publish the notice in any newspaper and (ii) publicize thenotice through press releases and such other media as will best serve thepurpose and subject involved. The Register and any newspaper publicationshall be made at least 60 days in advance of the last date prescribed in thenotice for such submittals. All notices, written submittals, and transcripts,summaries or notations of oral presentations, as well as any agency actionthereon, shall be matters of public record in the custody of the agency.

G. If an agency wishes to change a proposed regulation before adopting it asa final regulation, it may choose to publish a revised proposed regulationprovided the latter is subject to a public comment period of at least 30additional days and the agency complies in all other respects with thissection.

H. Before delivering any proposed regulation under consideration to theRegistrar as required in subsection I, the agency shall deliver a copy ofthat regulation to the Department of Planning and Budget. In addition todetermining the public benefit, the Department of Planning and Budget incoordination with the agency, shall, within 45 days, prepare an economicimpact analysis of the proposed regulation, as follows:

1. The economic impact analysis shall include, but need not be limited to,the projected number of businesses or other entities to whom the regulationwould apply; the identity of any localities and types of businesses or otherentities particularly affected by the regulation; the projected number ofpersons and employment positions to be affected; the impact of the regulationon the use and value of private property; and the projected costs to affectedbusinesses, localities or entities to implement or comply with theregulations, including the estimated fiscal impact on such localities andsources of potential funds to implement and comply with such regulation; and

2. If the regulation may have an adverse effect on small businesses, theeconomic impact analysis shall also include (i) an identification andestimate of the number of small businesses subject to the regulation; (ii)the projected reporting, recordkeeping, and other administrative costsrequired for small businesses to comply with the regulation, including thetype of professional skills necessary for preparing required reports andother documents; (iii) a statement of the probable effect of the regulationon affected small businesses; and (iv) a description of any less intrusive orless costly alternative methods of achieving the purpose of the regulation.As used in this subdivision, "small business" has the same meaning asprovided in subsection A of 2.2-4007.1.

Agencies shall provide the Department with such estimated fiscal impacts onlocalities and sources of potential funds. The Department may request theassistance of any other agency in preparing the analysis. The Departmentshall deliver a copy of the analysis to the agency drafting the regulation,which shall comment thereon as provided in subsection I, and a copy to theRegistrar for publication with the proposed regulation. No regulation shallbe promulgated for consideration pursuant to subsection I until the impactanalysis has been received by the Registrar. For purposes of this section,the term "locality, business, or entity particularly affected" means anylocality, business, or entity that bears any identified disproportionatematerial impact that would not be experienced by other localities,businesses, or entities. The analysis shall represent the Department's bestestimate for the purposes of public review and comment on the proposedregulation. The accuracy of the estimate shall in no way affect the validityof the regulation, nor shall any failure to comply with or otherwise followthe procedures set forth in this subsection create any cause of action orprovide standing for any person under Article 5 ( 2.2-4025 et seq.) of thischapter or otherwise to challenge the actions of the Department hereunder orthe action of the agency in adopting the proposed regulation.

I. Before promulgating any regulation under consideration, the agency shalldeliver a copy of that regulation to the Registrar together with a summary ofthe regulation and a separate and concise statement of (i) the basis of theregulation, defined as the statutory authority for promulgating theregulation, including an identification of the section number and a briefstatement relating the content of the statutory authority to the specificregulation proposed; (ii) the purpose of the regulation, defined as therationale or justification for the new provisions of the regulation, from thestandpoint of the public's health, safety or welfare; (iii) the substance ofthe regulation, defined as the identification and explanation of the keyprovisions of the regulation that make changes to the current status of thelaw; (iv) the issues of the regulation, defined as the primary advantages anddisadvantages for the public, and as applicable for the agency or the state,of implementing the new regulatory provisions; and (v) the agency's responseto the economic impact analysis submitted by the Department of Planning andBudget pursuant to subsection H. Any economic impact estimate included in theagency's response shall represent the agency's best estimate for the purposesof public review and comment, but the accuracy of the estimate shall in noway affect the validity of the regulation. Staff as designated by the CodeCommission shall review proposed regulation submission packages to ensure therequirements of this subsection are met prior to publication of the proposedregulation in the Register. The summary; the statement of the basis, purpose,substance, and issues; the economic impact analysis; and the agency'sresponse shall be published in the Virginia Register of Regulations, togetherwith the notice of opportunity for oral or written submittals on the proposedregulation.

J. When an agency formulating regulations in public assistance and socialservices programs cannot comply with the public comment requirements ofsubsection F due to time limitations imposed by state or federal laws orregulations for the adoption of such regulation, the Secretary of Health andHuman Resources may shorten the time requirements of subsection F. If, in theSecretary's sole discretion, such time limitations reasonably preclude anyadvance published notice, he may waive the requirements of subsection F.However, the agency shall, as soon as practicable after the adoption of theregulation in a manner consistent with the requirements of subsection F,publish notice of the promulgation of the regulation and afford anopportunity for public comment. The precise factual basis for the Secretary'sdetermination shall be stated in the published notice.

K. If one or more changes with substantial impact are made to a proposedregulation from the time that it is published as a proposed regulation to thetime it is published as a final regulation, any person may petition theagency within 30 days from the publication of the final regulation to requestan opportunity for oral and written submittals on the changes to theregulation. If the agency receives requests from at least 25 persons for anopportunity to submit oral and written comments on the changes to theregulation, the agency shall (i) suspend the regulatory process for 30 daysto solicit additional public comment and (ii) file notice of the additional30-day public comment period with the Registrar of Regulations, unless theagency determines that the changes made are minor or inconsequential in theirimpact. The comment period, if any, shall begin on the date of publication ofthe notice in the Register. Agency denial of petitions for a comment periodon changes to the regulation shall be subject to judicial review.

L. In no event shall the failure to comply with the requirements ofsubsection F be deemed mere harmless error for the purposes of 2.2-4027.

M. This section shall not apply to the issuance by the State Air PollutionControl Board of variances to its regulations.

(1984, c. 5, 9-6.14:7.1; 1985, c. 602; 1989, c. 71; 1991, c. 488; 1993, cc.898, 944; 1994, c. 938; 1995, cc. 25, 677, 717, 790; 1997, c. 87; 2001, c.844; 2002, cc. 241, 391, 747; 2003, c. 224; 2005, cc. 619, 682.)