CHAPTER 10
PUBLIC PARTICIPATION GUIDELINES (REPEALED.)

Part I
Definitions

12VAC5-10-10. Definitions. (Repealed.)

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 1.1:1 (§ 9-6.14:1 et seq.) of Title 9 of the Code of Virginia.

"Board" means the State Board of Health.

"Commissioner" means the State Health Commissioner.

"Department" means the Virginia Department of Health.

"Regulation" means any statement of general application, having the force of law, affecting the rights or conduct of any person, promulgated by an authorized board or agency.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 1.1, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

Part II
General Information

12VAC5-10-20. General information. (Repealed.)

A. The procedures in Part III of this chapter shall be used for soliciting the input of interested persons in the initial formation and development, amendment or repeal of regulations in accordance with the Administrative Process Act. This chapter does not apply to regulations exempted from the provisions of the Administrative Process Act (§ 9-6.14:4.1 A and B) or excluded from the operation of Article 2 of the Administrative Process Act (§ 9-6.14:4.1 C).

B. At the discretion of the board or the commissioner, the procedures in Part III may be supplemented to provide additional public participation in the regulation adoption process or as necessary to meet federal requirements.

C. The failure of any person to receive any notice or copies of any documents provided under these guidelines shall not affect the validity of any regulation otherwise adopted in accordance with this chapter.

D. Any person may petition the board for the adoption, amendment or repeal of a regulation. The petition, at a minimum, shall contain the following information:

1. Name of petitioner;

2. Petitioner's mailing address and telephone number;

3. Petitioner's interest in the proposed action;

4. Recommended regulation or addition, deletion or amendment to a specific regulation or regulations;

5. Statement of need and justification for the proposed action;

6. Statement of impact on the petitioner and other affected persons; and

7. Supporting documents, as applicable.

The board shall receive, consider and respond to such petition within 180 days.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 2.1, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

Part III
Public Participation Procedures

12VAC5-10-30. Interested parties lists. (Repealed.)

A. Whenever the board so directs or upon its own initiative, the department may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

B. Programs within the department which are responsible for rule making as assigned by the commissioner will maintain a list of those persons and organizations who have demonstrated an interest in the adoption, amendment or repeal of specific program regulations.

C. Periodically, but not less than every two years, the commissioner shall publish a notice in The Virginia Register, in a newspaper published at Richmond, and in other newspapers in Virginia localities to request that any individual or organization interested in participating in the development of specific rules and regulations so notify the office of the commissioner. Any persons or organizations identified in this process will be incorporated in the lists developed under this section. The commissioner may at any time remove from the lists persons or organizations that request to be removed or who fail to respond to any inquiry regarding continued interest.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 3.1, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-10-40. Notice of intent. (Repealed.)

A. The department shall issue a Notice of Intended Regulatory Action (NOIRA) at the direction of the board whenever it considers the adoption, amendment or repeal of any regulation. The NOIRA shall include at least the following:

1. The title of the regulation to be developed or modified;

2. A summary of the subject matter including a brief statement as to the need for regulatory action;

3. A request for comments on the intended regulatory action, to include any ideas to assist the department in the drafting and formation of any proposed regulation developed pursuant to the NOIRA;

4. An indication of the board's intent to hold a public hearing on the proposed regulation after it is published, and the reason if a public hearing is not planned;

5. The program contact person, mailing address and telephone number; and

6. The date by which comments must be received.

B. 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.

C. The department shall disseminate the NOIRA to the public via the following:

1. Distribution to the Registrar of Regulations for publication in The Virginia Register; and

2. Distribution by written notice to persons on the list(s) established under 12VAC5-10-30.

D. If the department published a statement in the NOIRA indicating no intention to hold a public hearing on the proposed regulation after publication, no public hearing is required unless, prior to completion of the specified NOIRA comment period:

1. The Governor directs that the agency shall hold a public hearing; or

2. The agency receives requests for a public hearing from 25 persons or more.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 3.2, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-10-50. Ad hoc advisory committees. (Repealed.)

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

B. The ad hoc committee shall provide professional specialization or technical assistance when the board or commissioner 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 agency.

C. The advisory committee may be dissolved when the process for promulgating the specific regulation is completed.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 3.3, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-10-60. Proposed regulations. (Repealed.)

A. After consideration of public input, the department may prepare the draft proposed regulation and any supporting documentation required for review. If an ad hoc advisory group has been established, the draft regulation shall be developed in consultation with such group. A summary or copies of the comments received in response to the NOIRA shall be distributed to the ad hoc advisory group 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 board.

B. Upon approval of the draft proposed regulation by the board, the department shall publish a Notice of Public Comment (NOPC) together with the proposed regulation for public comment, a summary of the regulation, and a statement containing the basis, purpose, substance, issues and estimated impact as described in 12VAC5-10-40 D.

C. The NOPC shall include at least the following:

1. The notice of the opportunity to comment on the proposed regulation, location where copies of the draft may be obtained and a 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.

D. A statement of basis, purpose, substance, issues, and estimated impact shall be published and include at least the following:

1. Basis: the statutory authority for promulgating the regulation.

2. Purpose: why the regulation is proposed and the desired end result or objective of the regulation.

3. Substance: the identification and explanation of the key provisions of the regulation.

4. Issues: the primary advantages and disadvantages for the public affected by the proposed regulation.

5. Estimated impact: an analysis of the estimated impact conducted by the agency and available to the public upon request. The statement of estimated impact should include the following:

a. Number and types of regulated entities or persons affected.

b. Projected cost to regulated entities (and to the public, if applicable) for implementation and compliance. In those instances where the department 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.

c. Projected cost to the department for implementation and enforcement.

d. The beneficial impact the regulation is designed to produce.

e. An explanation of the need for the proposed regulation and potential consequences that may result in the absence of the regulation.

f. 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.

g. A statement assessing in what manner the department believes the proposed regulation is the least burdensome alternative to the regulated community that fully meets the stated purpose of the proposed regulation.

h. A schedule setting forth when and how the department will evaluate the regulation for effectiveness and continued need.

6. The date, time and place of at least one public hearing, if indicated in the NOIRA or required as specified in 12VAC5-10-40 D, held in accordance with § 9-6.14:7.1 of the Code of Virginia to receive comments on the proposed regulation. The public hearing(s) may be held at any time during the public comment period and may be held in such location(s) as the department determines will best facilitate input from interested persons.

7. The public comment period shall close no fewer than 60 days after publication of the NOPC in The Virginia Register.

8. The department shall disseminate the NOPC to the public via the following:

a. Distribution to the Registrar of Regulations for publication in The Virginia Register and for publication in a newspaper of general circulation published at the state capital and as the department may determine, it may similarly request publication in newspapers in localities particularly affected.

b. Distribution by mail to persons on the list(s) established under 12VAC5-10-30.

9. The department shall prepare a summary of comments received in response to the NOPC and submit it or, if requested, submit the full comments to the board. Both the summary and the comments shall become a part of the department's file.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 3.4, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-10-70. Completing adoption process. (Repealed.)

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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 3.5, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-10-80. Exempt regulations. (Repealed.)

Any regulations exempt under § 9-6.14:4.1 of the Administrative Process Act and being considered by the board for adoption shall be provided to any member of the public requesting a copy at least two days prior to the meeting of the board at which the regulation is to be considered.

Statutory Authority

§§ 2.2-4007 and 32.1-12 of the Code of Virginia.

Historical Notes

Derived from VR355-01-100 § 3.6, eff. July 1, 1993; amended, Virginia Register Volume 10, Issue 17, eff. July 1, 1994; repealed, Volume 25, Issue 4, eff. January 1, 2009.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

12VAC5-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Board of Health. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-20. 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 Board of Health, 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

Part II
Notification of Interested Persons

12VAC5-11-30. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-40. 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 12VAC5-11-30, 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

Part III
Public Participation Procedures

12VAC5-11-50. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-60. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-70. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-80. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-90. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-100. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.

12VAC5-11-110. 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 32.1-12 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. January 1, 2009.