CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES (REPEALED)

Part I
General Provisions

12VAC35-11-10. Purpose. (Repealed.)

The purpose of this chapter is to provide guidelines for the involvement of the public in the development and promulgation of regulations of the State Mental Health, Mental Retardation and Substance Abuse Services Board. The guidelines do not apply to regulations exempted or excluded from the provisions of the Administrative Process Act (§2.2-4007 of the Code of Virginia).

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §1.1; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-11-15. Definitions. (Repealed.)

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the State Mental Health, Mental Retardation and Substance Abuse Services Board.

"Department" means the Department of Mental Health, Mental Retardation and Substance Abuse Services.

"Notification lists" means lists used by the board to notify persons or entities pursuant to these regulations. Such lists may include lists maintained electronically through a state website (e.g., Virginia Regulatory Townhall) or by any other means.

"Virginia Register" means the publication issued under the provisions of Article 6 (§2.2-4031 et seq.) of the Administrative Process Act (§2.2-4000 et seq. of the Code of Virginia).

"Virginia Regulatory Townhall" means the state website that is accessible to the public and used to document regulatory changes and solicit public participation in the regulatory development process. The website address for the Virginia Regulatory Townhall is http://www.townhall.state.va.us.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

Part II
Notification List

12VAC35-11-20. Composition of the notification lists. (Repealed.)

A. The board shall maintain notification lists of persons or entities who have requested to be notified of the formation and promulgation of regulations.

B. Any person or entity may request to be placed on the notification list by indicating so electronically or in writing to the board. The board may add to the list any person or entity it believes will serve the purpose of enhancing participation in the regulatory process.

C. The board may maintain additional notification lists for persons or entities who have requested to be informed of specific regulatory issues, proposals, or actions.

D. The board shall periodically request those on the notification lists to indicate their desire to continue to receive documents or be deleted from the list. Persons or entities on a notification list may request that notices be sent electronically. When mail is returned as undeliverable, such persons or entities shall be deleted from the list.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §2.1; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-11-30. Documents to be sent to persons or entities on the notification lists. (Repealed.)

Persons or entities on the notification lists described in 12VAC35-11-20 shall be mailed the following documents related to the promulgation of regulations:

1. A Notice of Intended Regulatory Action.

2. A Notice of Comment Period on a proposed regulation and instructions on how to obtain a copy of the regulation.

3. A notice that the board has adopted a final regulation and instructions on how to obtain a copy of the regulation.

4. A notice of soliciting comment on a final regulation when the regulatory process has been extended.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §2.2; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

Part III
Public Participation Procedures

12VAC35-11-40. Petition for rulemaking. (Repealed.)

A. As provided in §2.2-4007 of the Code of Virginia, any person may petition the board to develop a new regulation or amend an existing regulation.

B. A petition shall include but need not be limited to the following:

1. The petitioner's name, mailing address, telephone number, and, if applicable, the organization represented in the petition.

2. The number and title of the regulation to be addressed, if applicable.

3. The substance and purpose of the rulemaking that is requested.

4. A recommended addition, deletion, or amendment to the regulation.

5. A reference to the legal authority of the board to take the action requested.

C. The board shall receive, consider and respond to a petition as provided in §2.2-4007 A of the Code of Virginia.

D. Nothing herein shall prohibit the board from receiving information from the public and proceeding on its own motion for rulemaking.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §3.1; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-11-50. Notice of Intended Regulatory Action. (Repealed.)

A. The Notice of Intended Regulatory Action (NOIRA) shall describe the subject matter and intent of the planned regulation.

B. The NOIRA shall indicate whether the board intends to hold a public hearing on the proposed regulation after it is published. If the board does not intend to hold a public hearing, it shall state the reason in the NOIRA.

C. If, prior to the close of the 30-day comment period on the NOIRA, the board receives requests for a public hearing on the proposed regulation from at least 25 persons, such hearing shall be scheduled.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §3.2; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-11-60. Notice of Comment Period. (Repealed.)

A. The Notice of Comment Period shall indicate that copies of the proposed regulation are available on the department's website and may be requested in writing from the contact person specified in the Notice of Comment Period.

B. The Notice of Comment Period shall indicate that copies of the statement of substance, issues, basis, purpose, and estimated impact of the proposed regulation may also be requested in writing.

C. The Notice of Comment Period shall make provision for comments pertaining to the proposed regulation by regular mail, facsimile, on the Virginia Regulatory Townhall, or by electronic means.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §3.3; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-11-70. Notice of meeting. (Repealed.)

A. For any meeting of the board or advisory committee at which the formation or adoption of regulation is anticipated, the subject shall be described in the Notice of Meeting, which is posted electronically and transmitted to the Registrar of Regulations for inclusion in The Virginia Register.

B. If the board anticipates action on a regulation for which an exemption to the Administrative Process Act is claimed under §2.2-4006 of the Code of Virginia, the Notice of Meeting shall indicate that a copy of the proposed regulation is available on a state website or may be obtained upon request to the board at least two days prior to the meeting. A copy of the regulation shall be made available to the public attending such meeting.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §3.5; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-11-80. Public hearing on regulations. (Repealed.)

The board shall conduct a public hearing during the 60-day comment period following the publication of a proposed regulation or amendment to an existing regulation, unless at a noticed meeting the board determines that a hearing is not required.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §3.5; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

Part IV
Advisory Committees

12VAC35-11-90. Appointment of committees. (Repealed.)

A. The department may appoint an ad hoc advisory committee on behalf of the board whose responsibility shall be to assist in the review and development of regulations for the board.

B. The department may appoint an ad hoc advisory committee on behalf of the board to provide professional specialization or technical assistance when the board determines that such expertise is necessary to address a specific regulatory issue or need or when groups of individuals register an interest in working with the board.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from VR470-01-01:1 §4.1; Virginia Register Volume 12, Issue 6, eff. January 10, 1996; amended, Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

Part V
Periodic Reviews

12VAC35-11-110. Periodic review of regulations. (Repealed.)

A. Unless otherwise directed by executive order, the board shall review and receive comment on each of its existing regulations at least every three years to consider the effectiveness, efficiency, clarity and cost impact of the regulation in achieving its intended goals.

B. Notice of the review shall be transmitted to the Registrar of Regulations for inclusion in the Virginia Register and shall be sent to the notification list identified in 12VAC35-11-20.

Statutory Authority

§§2.2-4007 and 37.1-10 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 19, Issue 19, eff. July 2, 2003; repealed, Volume 25, Issue 2, eff. October 29, 2008.

CHAPTER 12
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

12VAC35-12-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Mental Health, Mental Retardation and Substance Abuse Services Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§2.2-4000 et seq. of the Code of Virginia).

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Mental Health, Mental Retardation and Substance Abuse Services Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by §2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§2.2-4031 et seq.) of the Administrative Process Act.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

Part II
Notification of Interested Persons

12VAC35-12-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 12VAC35-12-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to §2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

Part III
Public Participation Procedures

12VAC35-12-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with §2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to §2.2-4012 E of the Code of Virginia.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-60. Petition for rulemaking.

A. As provided in §2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to §2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with §2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.

12VAC35-12-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to §2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in §2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

Statutory Authority

§§2.2-4007.02 and 37.2-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 2, eff. October 29, 2008.