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4VAC10-10

CHAPTER 10
PUBLIC PARTICIPATION GUIDELINES (REPEALED)

4VAC10-10-10

4VAC10-10-10. Definitions. (Repealed.)

A. 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.

"Advisor" means any of the following: (i) a standing advisory panel; (ii) an ad hoc advisory panel; (iii) groups; (iv) individuals; and (v) any combination thereof.

"Department" means the Department of Forestry, including staff, etc., established pursuant to Virginia law (§§ 9-6.14:7.1 and 10.1-1101) that implements programs and provides administrative support to the State Forester.

"State Forester" means the head of the Department of Forestry who has been established pursuant to Virginia law as the legal authority to adopt regulations.

"Virginia law" means the provisions found in the Code of Virginia or the Virginia Acts of Assembly authorizing the department to make regulations or decide cases or containing procedural requirements thereof.

"Governor's Executive Order" means any policy or procedure issued by the Governor under § 2.1-41.1 or § 9-6.14:9.1 A of the Code of Virginia establishing the administrative policy and procedures for gubernatorial review of regulatory actions governed by the Administrative Process Act.

"Secretary" means person responsible for the Governor's cabinet function of Commerce and Trade.

B. Unless specifically defined in Virginia law or in this chapter, terms used shall have the meanings commonly ascribed to them.

Statutory Authority

§§ 2.2-4007 and 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from VR312-01-1:1 § 1, eff. May 18, 1994; repealed, Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-10-20

4VAC10-10-20. General. (Repealed.)

A. The procedures of 4VAC10-10-30 of this chapter shall be used for soliciting the input of interested parties in the formation and development or repeal of regulations and any revisions thereto in accordance with the Administrative Process Act. These procedures shall not only be utilized prior to the formation and drafting of regulations, but shall be utilized during the entire formation, promulgation and final adoption process.

The guidelines for public participation are based on the principle that citizens have both a right and a responsibility to take part in the governmental processes, that government functions best when it provides for participation by the public, and that department regulations should impose only those requirements which are necessary and do not unreasonably burden private businesses or individual citizens.

B. At the discretion of the State Forester, the procedures in 4VAC10-10-30 may be supplemented by any means and in any manner to gain additional public participation in the regulation adoption process or as necessary to meet federal requirements, provided such means allow for balanced participation by the interested parties.

C. The failure of any person or organization to receive any notice or copies of any documents shall not affect the validity of any regulation otherwise adopted in accordance with the Administrative Process Act and Governor's Executive Order.

D. Any person may petition the department to request the department to develop a new regulation, or amend or repeal an existing regulation. The State Forester shall respond to the petition within 180 days or as required under the Administrative Process Act.

Statutory Authority

§§ 2.2-4007 and 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from VR312-01-1:1 § 2, eff. May 18, 1994; repealed, Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-10-30

4VAC10-10-30. Public participation procedures. (Repealed.)

A. The department shall establish and maintain a list or lists consisting of interested citizens, organizations, associations and industry expressing an interest in the adoption, amendment or repeal of regulations.

B. Whenever the State Forester so directs, the department may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

C. The department may form an ad hoc advisory group to assist in the drafting and formation of the proposal. When an ad hoc advisory group is formed, it shall be formed so as to give a balanced representation of interested parties.

D. The department regulatory coordinator shall prepare the draft regulatory review package and hold in the department's office for the inspection of the Secretary of Commerce and Trade at least 30 days before the department anticipates submitting the proposed Notice of Intended Regulatory Action (NOIRA) to The Virginia Register of Regulations, the Governor, the Department of Planning and Budget and the Board of Forestry. Also, at least 30 days before the anticipated date of submission of the NOIRA, the department regulatory coordinator shall deliver to the Secretary all requirements of the office of the Secretary.

E. The department shall consult with the Attorney General's office before and during the regulatory process.

F. The department shall issue a NOIRA for all regulatory proposals in accordance with the Administrative Process Act.

1. The NOIRA shall include, in addition to the requirements of the Registrar of Regulations, the following:

a. A brief statement as to the need for regulatory action.

b. 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.

2. The department shall hold at least one public meeting when considering the adoption of new regulations. In the case of amendments to or repeal of existing regulations, the necessity for holding at least one public meeting shall be decided by the State Forester.

In those cases where at least one public meeting has been determined to be necessary, 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(s).

3. The public comment period for NOIRAs under this section shall be no less than 30 days after publication in The Virginia Register of Regulations.

G. 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 of Regulations.

2. Distribution by mail to parties on the list(s) established under subsection A of this section.

3. Distribution by mail to the Governor, the Department of Planning and Budget and the Board of Forestry.

H. After consideration of public input, the department may prepare the draft proposed regulation and prepare the Notice of Public Comment (NOPC) and any supporting documentation required for review by the Administrative Process Act, Governor's Executive Order, and the Secretary of Commerce and Trade. The State Forester shall notify the Secretary by telephone and in writing of any substantive differences between what was reviewed and approved by the Secretary in the NOIRA and what was actually proposed prior to filing the proposed regulation with the Governor, the Department of Planning and Budget, The Virginia Register of Regulations and the Board of Forestry. 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.

I. The NOPC shall include, in addition to the requirements of the Registrar of Regulations, the following:

1. The notice of the opportunity to comment on the proposed regulation.

2. 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.

3. A request for comments on the costs and benefits of the proposal.

4. A statement that an analysis of the following has been conducted by the department and is available to the public upon request:

a. A statement of purpose: why the regulation is proposed and the desired end result or objective of the regulation.

b. A statement of estimated impact:

(1) Number and types of regulated entities or persons affected.

(2) 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.

(3) Projected cost to the department for implementation and enforcement.

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 upon small businesses or organizations in Virginia.

e. A discussion of alternative approaches that were considered to meet the need the proposed regulation addresses, the department assurance that the proposed regulation is the least burdensome available alternative.

f. A schedule setting forth when, within two years after a regulation is promulgated, the department will evaluate it for effectiveness and continued need.

5. The date, time and place of at least one public hearing to receive comments on the proposed regulation. The hearings may be held at any time during the public comment period. The hearings may be held in Charlottesville or in such locations as the department determines will best facilitate input from interested parties.

J. The public comment period shall close no less than 60 days after publication of the NOPC in The Virginia Register of Regulations.

K. Upon approval of the draft proposed regulation by the State Forester, the department may publish the proposal for public comment.

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

1. Distribution to the Registrar of Regulations for:

a. Publication in The Virginia Register of Regulations.

b. Publication in a newspaper of general circulation published at the state capital and such other newspapers as the department may deem appropriate.

2. Distribution by mail to parties on the list(s) established under subsection A of this section.

3. Distribution by mail to the Department of Planning and Budget and the Board of Forestry.

4. Distribution by mail to the office of the Governor.

M. The regulatory coordinator shall prepare a summary of comments received in response to the NOPC and submit them to the State Forester for approval. Both the summary and the comments shall become a part of the department file. The State Forester or designated representative shall inform the Secretary in accordance with requirements prior to filing the final regulation with The Virginia Register of Regulations, the office of the Governor, the Department of Planning and Budget and the Board of Forestry.

N. If one or more changes are made to the proposed regulations from the time it is published as a proposed regulation to the time it is published as a final regulation, any person may petition the department within 30 days from the publication of the final regulation to request an opportunity for oral and written submittals on changes to the regulation. If 25 or more persons submit requests for an opportunity to submit oral or written comments, the department shall suspend the regulatory process for 30 days to solicit additional public comment.

O. Regulations may be formally and finally adopted by the signed order of the State Forester. A 30-day final adoption period for regulations shall commence upon the publication of the final regulation in The Virginia Register. The Governor shall review the final regulation during this 30-day final adoption period and if the Governor objects to any portion or all of the regulation, the Governor may file a formal objection to the regulation, suspend the effective date of the regulation, or both.

If no objection is filed during the 30-day final period, the regulation shall become effective at the conclusion of the 30-day final adoption period or at a later date specified by the State Forester.

Statutory Authority

§§ 2.2-4007 and 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from VR312-01-1:1 § 3, eff. May 18, 1994; repealed, Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

4VAC10-11-10

Part I
Purpose and Definitions

4VAC10-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Forestry. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-20

4VAC10-11-20. 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 Department of Forestry, 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-30

Part II
Notification of Interested Persons

4VAC10-11-30. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-40

4VAC10-11-40. 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 4VAC10-11-30, 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-50

Part III
Public Participation Procedures

4VAC10-11-50. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-60

4VAC10-11-60. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-70

4VAC10-11-70. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-80

4VAC10-11-80. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-90

4VAC10-11-90. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-100

4VAC10-11-100. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.

4VAC10-11-110

4VAC10-11-110. 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 10.1-1101 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 6, eff. December 24, 2008.