CHAPTER 10
PUBLIC PARTICIPATION GUIDELINES (REPEALED)

8VAC40-10-10. Definitions. (Repealed.)

"Council" means the State Council of Higher Education for Virginia.

"Interested persons" includes state-supported and independent college and university presidents, state-supported and independent college and university (institutional) representatives, members of standing advisory and ad hoc committees to the council, persons who have requested to receive information in regard to specific council regulations or activities, persons who, in the preceding two years, have participated in public hearings concerning council regulatory actions, and in some cases the public at large (see 8VAC40-10-40 A of this chapter).

"Regulatory action" means promulgating a new regulation, or amending or repealing a current regulation.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §1; Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-20. Purpose.  (Repealed.)

In developing any proposed new or revised regulation, or when considering the repeal of an existing regulation, the council will solicit comments from officials of institutions of higher education, relevant agencies, organizations, and interested persons. This chapter outlines the procedures to be used by the council in encouraging the participation of all interested persons in the formation and development of regulatory proposals under Virginia's Administrative Process Act (Chapter 1.1:1 (§9-6.14:1 et seq.) of Title 9 of the Code of Virginia).

The guidelines are based on the principle that interested citizens have both a right and a responsibility to take part in the governmental process, that government functions best when it provides for participation by the public, and that a state agency should impose only those requirements which are absolutely necessary to implement the agency's statutory responsibilities.

The chapter shall apply to all regulations proposed or promulgated by the council which are subject to the Administrative Process Act.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §2, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-30. Initiation of regulations.  (Repealed.)

The council may initiate proposed regulations at any time. A petition for a new regulation or for the amendment or repeal of any existing regulation may be filed by any department of government, group, or individual.

To be considered, a petition shall contain at least the following:

1. The name, address, and telephone number of the petitioner.

2. The regulatory action (promulgation of new regulation, amendment of current regulation, or repeal of current regulation) proposed by the petitioner.

3. The reason for requesting the regulatory action.

4. The anticipated effects of making the regulatory change, including costs to relevant parties.

5. The anticipated effects of not making the regulatory change.

The council shall respond to the petition for regulatory action within 180 days. The council recommends that all petitions include documentation to support the requested regulatory action.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §3, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-40. Identification and notification of interested persons.  (Repealed.)

A. Identification of interested persons. Prior to the development of any regulations the council shall identify agency or institutional officials, persons, and groups who might be interested in or affected by the proposed regulatory action. Because of the nature of the council's mission, there are certain regulatory functions in which the public at large may have an interest. In these instances, the public at large will be regarded as the interested party. At other times, when proposed regulations will be more limited in their effect, the council will identify certain institutional officials, individuals, groups, associations, agencies and organizations that have an interest in the matter to be considered. The council, in identifying persons interested in proposed regulatory changes, will consider the following:

1. List of advisory and ad hoc committees to the council, including the General and Professional Advisory Committee (public college presidents), Institutional and Professional Advisory Committee (public college provosts and other chief academic officers), Financial Aid Advisory Committee (public college financial aid officers), and when relevant more specialized committees such as the Library Advisory Committee;

2. A listing of persons who request to be placed on a mailing list maintained by the council, including those persons requesting to receive all council mailings and those who express interest in a particular area if relevant to the proposed regulation;

3. A listing of persons who previously participated in public proceedings concerning related subjects or issues; and

4. The council's complete mailing list, which includes all college presidents in Virginia, the members of all standing committees, institutional representatives, representatives of faculty and student organizations, legislators, representatives from other state agencies, and persons who specifically request to be placed on the council's mailing list.

The council's mailing list will be revised every two years to ensure that it is current and to make sure all relevant persons are included.

B. Notification of interested persons. The council will notify the president or chancellor of each state-supported college and university in Virginia of the initiation of any regulatory action. The president or chancellor of each independent college and university in Virginia will be notified of any regulatory action that pertains to the Tuition Assistance Grant Program or to any other matter which might directly or indirectly affect independent institutions. Dependent on determination pursuant to subsection A of this section, the council will notify all members of relevant advisory and ad hoc committees to the council of the intent to initiate regulatory action. The council also will notify any other persons who have been identified from the list in subsection A of this section as having a particular interest in the proposed regulatory action. In addition, the council will invite those notified to offer input regarding the proposed regulatory action.

C. Use of advisory or ad hoc committees and those groups or individuals registering interest in working with the agency. Council staff will keep informed and consult with advisory and ad hoc committees and groups or individuals who have registered an interest in working with the agency throughout the regulatory process under, but not limited to, the following circumstances:

1. If the advisory or ad hoc committee or group or individual registering an interest in working with the agency is deemed to have expertise or advisory capabilities in an area relevant to the proposed regulatory action, or

2. If the advisory or ad hoc committee or group or individual registering an interest in working with the agency has registered as having an interest in an area relevant to the proposed regulatory action.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §4, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-50. Proposal of Regulatory Action.  (Repealed.)

A. Notice of Intended Regulatory Action. Prior to the development of any regulations, the council shall prepare a Notice of Intended Regulatory Action (NOIRA). The NOIRA will contain a brief and concise statement regarding the proposed regulatory action and invite all interested persons to provide written comments within 30 days of the publication of the NOIRA in The Virginia Register of Regulations (Virginia Register). At least two weeks prior to its publication date, the NOIRA shall be submitted to the Registrar for inclusion in the Virginia Register. On or about the publication date of the NOIRA in the Virginia Register, the council, using its mailing list as described in 8VAC40-10-40, will directly notify persons of its intent to develop the regulations.

The NOIRA shall state whether a public hearing is to be held. A public hearing will be held in all cases where required by basic law. If the NOIRA states that a public hearing is not scheduled to be held, then no hearing will be held unless, prior to the end of the comment period, the Governor directs that a public hearing should be held or the council receives requests for a public hearing from 25 or more persons.

The public hearing normally will be held in Richmond in the council's conference room. The council may hold the hearing in another location if the proposed regulations are of special interest to institutions or citizens in a particular geographic area. If determined desirable, the council may hold a public hearing on proposed regulations in several locations throughout the Commonwealth.

To the extent possible, a hearing will be conducted at a time which is generally convenient for officials, persons, and organizations most directly affected by the matter under consideration.

The public will be offered an opportunity at the hearing to make oral or written comment with regard to any proposed regulatory action. Persons addressing the proposed action at a public hearing will be encouraged to provide written copies of their statements.

At the council's discretion, the hearing's record of proceedings may be held open to provide additional time for receiving written comments following the conclusion of the public hearing.

B. Impact analysis statement. Prior to submitting a proposed regulatory change to the Registrar of Regulations to be printed in the Virginia Register, the council will deliver a copy of the regulation to the Department of Planning and Budget. Within 45 days from receipt of the delivery, the Department of Planning and Budget will determine the public benefit and prepare an economic impact analysis of the proposed regulation and deliver it to the council. The council will include that analysis statement as well as the council's response to that statement in its proposed regulation submission package to be printed in the Virginia Register.

C. Submission of proposed regulations. After consideration of all public comments received within the 30-day period or at any public hearing that may have been held, the council shall prepare a draft of the proposed regulatory change. All drafts of the regulations will be labeled with word "draft" and dated. The council shall submit a copy of the draft regulations along with a summary of the regulation; a statement of the basis, purpose, substance, and issues of the regulation (as defined in §9-6.14:7.1 of the Code of Virginia); and the economic impact analysis, along with the agency's response to that analysis, to the Registrar of Regulations who will publish the proposed regulations in the Virginia Register.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §5, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-60. Public participation period.  (Repealed.)

Any person will have at least 60 days from the date of publication in the Virginia Register to offer comment on the proposed regulations. A copy of the draft regulations will be provided to all persons who request the document.

Copies of draft regulations will also be available for public inspection at the council's office in Richmond at the address contained in 8VAC40-10-90 of these guidelines and at the office of the Registrar of Regulations.

The council will publish a notice in regards to any proposed regulatory action that is considered to be of interest to more than a specific identifiable group. The notice will include information about the subject matter and the purpose of the regulations under consideration and will announce the opportunity for public comment, including the time, date, and place of the scheduled public hearing. The notice will be published in the agency's summary of its monthly meetings, which is distributed to the council's entire mailing list.

During the 60-day public participation period, the following persons and officials will have an opportunity to review and comment on the proposed regulations:

1. The public;

2. The Governor;

3. The General Assembly;

4. The Secretary of Education; and

5. The Attorney General.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §6, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-70. Emergency regulations. (Repealed.)

From time to time, it may be necessary to enact emergency regulations which do not allow the normal 60-day period for public comment. The Administrative Process Act recognizes this possibility and permits enactment of emergency regulations with the approval of the Governor. In these instances, the emergency regulations will become effective when filed with the Registrar of Regulations (unless a later effective date is given). The emergency regulations will be published in the next edition of The Virginia Register of Regulations.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §7, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-80. Final action on proposed regulations. (Repealed.)

The council shall take final action on the proposed regulations following the 60-day public participation period and any public hearings that may have been held during that time. After the council takes final action, the action will be reported in a general news release and announced in The Virginia Register of Regulations. Under §9-6.14:9 of the Code of Virginia, regulations cannot become operative until 30 days after the final regulations, as approved by the particular board, have been published in The Virginia Register of Regulations.

If the Governor, at any point in that final 30-day period, finds that one or more changes with substantial impact have been made to the proposed regulation, the Governor may require that the council solicit additional public comment on the changes. If that occurs, the council will contact those individuals/groups identified as interested persons and seek any comments they may have. In addition, the council will include a notice of the extended comment period in its next summary of council activities.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §8, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

8VAC40-10-90. Copies of regulations. (Repealed.)

The council will print copies of adopted regulations.

Copies of adopted regulations may be obtained by writing the Associate Director, State Council of Higher Education for Virginia, James Monroe Building, 101 North Fourteenth Street, Richmond, VA 23219.

Statutory Authority

§§9-6.14:7.1 and 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from VR380-01-00 §9, eff. February 21, 1985; amended, Virginia Register Volume 11, Issue 21, eff. August 9, 1995.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

8VAC40-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the State Council of Higher Education for Virginia. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-20. 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 Council of Higher Education for Virginia, 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

Part II
Notification of Interested Persons

8VAC40-11-30. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-40. 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 8VAC40-11-30, 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

Part III
Public Participation Procedures

8VAC40-11-50. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-60. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-70. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-80. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-90. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-100. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.

8VAC40-11-110. 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 23-9.6:1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume , Issue , eff. Month dd, yyyy.