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Model Public Participation Guidelines
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2VAC5-10

CHAPTER 10
PUBLIC PARTICIPATION GUIDELINES (REPEALED.)

2VAC5-10-10

2VAC5-10-10. Definitions. (Repealed.)

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

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

"Agency" means any of the following in the exercise of its duly authorized regulation-making authority: (i) entities under the jurisdiction of the department that have the authority to make regulations, including the Board of Agriculture and Consumer Services, the commissioner, all divisions of the department (including the state veterinarian), offices, boards (excluding the Pesticide Control Board, but only to the extent that any regulation of the Pesticide Control Board is developed exclusively under 2VAC20-10-10 et seq., Public Participation Guidelines, Pesticide Control Board, or any successor regulation), and commissions under the jurisdiction of the department; and (ii) the Virginia Agricultural Development Authority.

"Commissioner" means the Commissioner of Agriculture and Consumer Services.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Public hearing" means an informational proceeding conducted pursuant to §9-6.14:7.1 of the Code of Virginia.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §1, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-10-20

2VAC5-10-20. Applicability. (Repealed.)

A. These Public Participation Guidelines apply to (i) the development of any proposed regulation; (ii) the development of any proposed amendment to an existing regulation; and (iii) the repeal of an existing regulation, governed by Article 2 of the Administrative Process Act.

B. These Public Participation Guidelines shall apply only to regulatory actions for which a notice of intended regulatory action is filed (irrespective of the date of adoption of the notice of intended regulatory action) on or after the effective date of these Public Participation Guidelines.

C. Any agency governed by these Public Participation Guidelines shall afford interested persons the opportunity to submit data, views, and arguments, either orally or in writing, to the agency or to the agency's specially designated subordinate. Nothing in this subsection shall be deemed to prohibit any agency governed by these Public Participation Guidelines from taking steps to involve the public that are in addition to those contained in these Public Participation Guidelines including, but not limited to, only partial fulfillment of any subdivision of 2VAC5-10-40 A, so long as any other subdivision of 2VAC5-10-40 A is fully complied with in any regulation making.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §2, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-10-30

2VAC5-10-30. Identification of interested persons and advisors. (Repealed.)

A. (i) When the agency intends to comply with 2VAC5-10-40 A 1, the agency in identifying persons who are interested in regulation making pursuant to 2VAC5-10-40 A 1 (i) shall consult, and (ii) the commissioner in identifying potential advisors (pursuant to 2VAC5-10-60 of these Public Participation Guidelines) shall consult:

1. A directory of agricultural organizations printed by the department;

2. Available individual industry mailing lists;

3. A listing of persons who request to be placed on a mailing list maintained by the agency; and

4. A listing prepared by the department's operating divisions of persons who would have a potential interest in participating in the formation of regulations within the divisions' responsibility.

B. Nothing in this chapter shall be deemed to require the agency or the commissioner to use any entry contained in the lists named in subsection A of this section.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §3, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-10-40

2VAC5-10-40. Proposed regulation. (Repealed.)

A. The agency shall comply with at least one of the following subdivisions, and may comply with more than one:

1. Furnish a copy of the proposed regulation to: (i) persons that the agency identifies as being interested in the proposed regulation, and (ii) all persons who respond to the notice of intended regulatory action;

2. Prepare a news release and distribute it to daily and weekly newspapers, radio and television stations, or news wire services serving Virginia concerning the proposed regulation that the agency selects to publicize the news release. In making its selection, the agency shall consider the subject matter of the regulation under development. The news release shall include information about:

a. The subject matter and purpose of the proposed regulation;

b. The deadline for submitting comments on the proposed regulation;

c. The responsible contact person within the agency to whom comments should be addressed;

d. A procedure for obtaining copies of the proposed regulation; and

e. The times, dates, and places of the public hearings; or

3. Make available for public inspection a copy of each proposed regulation at the following offices of the department:

a. Abingdon;

b. Franklin;

c. Harrisonburg;

d. Ivor;

e. Lynchburg;

f. Onley;

g. Roanoke;

h. Suffolk;

i. Warrenton; and

j. Wytheville.

B. The agency shall hold a public hearing on a regulation under development when the law requires a public hearing to be held. In addition, the agency may hold a public hearing or public hearings on a regulation under development in any instance, including but not limited to instances in which the agency believes that a public hearing will provide information useful or necessary not apt to be provided to the agency in the absence of a public hearing.

C. Nothing in this chapter shall be deemed to prohibit the agency from holding the record open to provide an additional time period for receiving written comments on the proposed regulation.

D. Nothing in this chapter specifying that the agency furnish, distribute, provide, or otherwise make available a document, including but not limited to a proposed regulation, shall be deemed to guarantee delivery or receipt. For purposes of this chapter, any document that has been sent by U.S. mail or by any other delivery service, or that has been delivered by hand by a representative of the agency or by any other means, shall be deemed to have been furnished, distributed, provided, or otherwise made available.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §4, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-10-50

2VAC5-10-50. Final regulation. (Repealed.)

After a regulation has been adopted pursuant to the 30-day final adoption process, the agency may issue a news release about the regulation.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §5, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-10-60

2VAC5-10-60. General policy for the use of advisors; notice of intended regulatory action. (Repealed.)

A. This section sets out the general policy of the agency in the use of advisors. This general policy addresses the circumstances in which the agency considers advisors appropriate and the circumstances under which the agency intends to make use of advisors.

B. Any agency governed by these Public Participation Guidelines shall include in any notice of intended regulatory action filed with the Registrar of Regulations: (i) any provision required by statute relating to the notice of intended regulatory action; and (ii) a statement inviting comment on whether there should be an advisor.

C. The agency considers an advisor appropriate and intends to make use of an advisor when:

1. The agency receives in writing from at least 25 persons during the pendency of the notice of intended regulatory action declarations of interest in having an advisor appointed with respect to the regulation under development; and

2. The subject matter of the notice of intended regulatory action has not previously been the subject of regulation making by the agency.

D. The agency hereby delegates to the commissioner the authority to appoint advisors. The provision of subsection C of this section notwithstanding, the commissioner may, at his own motion or when the agency deems it appropriate, appoint an advisor.

E. It is in the commissioner's sole discretion to determine:

1. Who the advisor, if any, shall be; and

2. Whether the advisor, if any, shall be: (i) a standing advisory panel; (ii) an ad hoc advisory panel; (iii) consultation with groups; (iv) consultation with individuals; or (v) any combination of subdivisions (i) through (iv) of this subdivision.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §6, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-10-70

2VAC5-10-70. Delegation. (Repealed.)

Except as otherwise provided herein, the authority to implement the provisions of this chapter is hereby granted to the commissioner and employees of the Department of Agriculture and Consumer Services, subject to the ultimate authority of the Board of Agriculture and Consumer Services and any other agency that is subject to this chapter.

Statutory Authority

§9-6.14:7.1 of the Code of Virginia.

Historical Notes

Derived from VR115-01-01 §7, eff. June 11, 1994; repealed, Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

2VAC5-11-10

Part I
Purpose and Definitions

2VAC5-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Board of Agriculture and Consumer Services or the Department of Agriculture and Consumer Services. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-20

2VAC5-11-20. 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 Board of Agriculture and Consumer Services or the Department of Agriculture and Consumer Services, 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-30

Part II
Notification of Interested Persons

2VAC5-11-30. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-40

2VAC5-11-40. 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 2VAC5-11-30, 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-50

Part III
Public Participation Procedures

2VAC5-11-50. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-60

2VAC5-11-60. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-70

2VAC5-11-70. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-80

2VAC5-11-80. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-90

2VAC5-11-90. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-100

2VAC5-11-100. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.

2VAC5-11-110

2VAC5-11-110. 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 3.2-109 and 58.1-32303.1-14 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 3, eff. November 12, 2008.