CHAPTER 10
GUIDELINES FOR PUBLIC PARTICIPATION IN REGULATION DEVELOPMENT AND PROMULGATION (REPEALED)

Part I
General Provisions

23VAC10-10-10. Generally. (Repealed.)

These guidelines shall govern the development or revision of all regulations not exempt from the public participation provisions of the Administrative Process Act (APA), Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. These guidelines seek to expand participation by providing for electronic exchange with the public and thereby increasing participation, reducing costs, and improving the speed of communication.

In developing any regulation that it proposes, the Department of Taxation (department) is committed to soliciting a high level of input and comment from a broad cross section of interested taxpayers, professional associations, and industry associations. Such input and participation shall be actively solicited by the department.

The department will generally promulgate new regulations or revise existing regulations as the result of federal or state law changes, regulatory changes by other federal or state agencies, changes or clarifications in department policy, or upon petition by an individual or group. Petitions requesting revision or development of a regulation will be responded to by the department as provided for in the APA.

Any person who is interested in participating in the regulation development process generally, or in specific regulation development efforts, or who wishes to petition for the development or revision of a regulation or regulations, should notify, preferably by email, the department's regulatory coordinator or other agency contact listed on the Virginia Department of Planning and Budget's Virginia Regulatory Town Hall (Town Hall) in writing.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 1.1, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

Part II
Identification of Interested Parties

23VAC10-10-20. Identification of interested parties. (Repealed.)

A. Any associations, committees, groups, or individuals interested in the department's regulatory activities should enroll as registered users on the Town Hall and choose to receive notification of the department's regulatory activities. Additionally, the department shall identify associations, committees, groups, or individuals whom it feels would be interested in or affected by its regulatory activities and request that they enroll as registered users on the Town Hall and choose to receive notification of the department's regulatory activities. The methods for identifying interested parties generally shall include, but not be limited to, the following:

1. Obtain from the Secretary of the Commonwealth a list of all persons, taxpayer groups, associations and others who have registered as lobbyists for the annual General Assembly session. This list will be used to identify groups that may be interested in the department's regulatory activities.

2. Utilize the statewide listing of business, professional, civic, and charitable associations and societies in Virginia published by the Virginia Chamber of Commerce to identify industry and professional associations that might be interested in the department's regulatory activities.

3. Utilize department subject matter files to identify persons who have previously raised questions or expressed an interest in state and local tax issues through requests for formal rulings or administrative appeals.

4. Utilize a standing list, compiled by the department, of persons who have previously participated in public proceedings relative to similar subject matters or who have expressed an interest in all tax regulations.

5. Utilize a standing list, compiled by the department, of attorneys, certified public accountants, and corporate tax personnel who practice in the field of state and local taxation.

6. Develop a list of persons who, in accordance with 23VAC10-10-10, petitioned for the development or revision of a regulation or notified the department of an interest in participating in the regulation development process.

B. The department may periodically request that those persons who have enrolled as registered users on the Town Hall with respect to the department's regulatory activities indicate their desire to continue to receive notification of the department's regulatory activity electronically. When either electronic mail is returned as undeliverable or there has been no response to the request from the department, the department may request that such persons be removed from the Town Hall's list of registered users with respect to the department's regulatory activities.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 2.1, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

Part III
Notification of Interested Parties

23VAC10-10-30. Generally. (Repealed.)

The department shall prepare a Notice of Intended Regulatory Action (notice) prior to the development of any regulation when required by the APA. The notice shall conform to the requirements of the APA.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 3.1, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-10-40. Dissemination of notice. (Repealed.)

The methods for disseminating the notice to the public generally shall include, but not be limited to, the following:

1. Posting the notice on the Town Hall; and

2. Publishing the notice in the Virginia Register of Regulations.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 3.2, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-10-50. Working draft. (Repealed.)

The department may elect to begin development of a working draft of the regulation (see 23VAC10-10-60 B) during the period of time covered by the notice. Also, the department may choose to develop a working draft prior to this time and disseminate the draft to interested persons along with the notice in order to facilitate informed comments.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 3.3, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

Part IV
Public Participation

23VAC10-10-60. Regulation development. (Repealed.)

A. After interested parties have responded to the notice, the department will analyze the level of interest. If sufficient interest exists, or absent a substantial expression of interest if the department feels such action is warranted, informal meetings may be scheduled to determine the specific areas of interest or concern and to gather factual information relative to the subject matter of the regulation.

Alternatively, the department may elect to request that persons who have responded to the notice make written submittals of comments, concerns and suggestions relative to the regulation.

The department, in its discretion, may establish an ad hoc working group to assist in the regulation development process. The department will always establish an ad hoc working group if: (i) requested by 25 or more persons affected by the regulation; (ii) requested by an industry, professional, or similar group, organized formally or informally, representing 25 or more persons affected by the regulation; or (iii) the subject matter of the regulation is of an esoteric nature.

The activities of an ad hoc working group typically will include: (i) reviewing or drafting one or more working drafts and providing feedback; (ii) furnishing information on, and facilitating the department's understanding of, a business or industry, including site visits to plants or other facilities; (iii) formulating alternative approaches within applicable statutory and case law; and (iv) providing any other assistance that will facilitate the adoption of a comprehensive and technically accurate regulation.

B. Subsequent to the initial public input on the development of any regulation, the department shall develop a working draft of the proposed regulation. In certain instances where the technical nature of the subject matter merits, the department may request that industry or professional groups, or ad hoc working groups formed under subsection A of this section, develop a working draft. Copies of the working draft will be furnished to all interested parties who responded to the notice and to those persons participating in the initial comment phase of the development process. Persons to whom a copy of the working draft is furnished will be invited to submit written comments on the draft. The communication providing the working draft to interested parties shall specify the deadline for comments. A minimum of 14 days will generally be allowed by the department for comments and where possible a longer period of time will be provided for this purpose. If the response warrants, or upon request by interested parties or a working group, additional informal meetings may be held to discuss the working draft.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 4.1, eff. June 29, 1994; repealed, Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-10-70. Submission of the regulation under the Administrative Process Act. (Repealed.)

Upon consideration of comments received in connection with the working draft, the department shall prepare a proposed regulation for submission under the APA. After submission of the proposed regulation to the Registrar of Regulations pursuant to the APA, the regulation will be published in the Virginia Register of Regulations.

The department shall post on the Town Hall a copy of the regulation as submitted under the APA, together with any other material that may be helpful in better understanding the regulation.

Except in the case of nonsubstantive or noncontroversial changes, the department will generally conduct a public hearing on proposed regulations. If comment will be restricted to written submittals, the date and place to which submittals must be made shall be clearly specified.

Where a public hearing is to be held, the time, date, and place shall be posted on the Town Hall and published in the Virginia Register of Regulations.

When a public hearing will be held, persons who will participate will be encouraged to submit written copies of their comments in advance or at the hearing in order to insure that all comments are accurately reflected in the formal transcript of the proceeding.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 4.2, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-10-80. Adoption period. (Repealed.)

Upon responding to all public comments on the proposed regulation and making any changes it deems necessary based upon such comments, the department may adopt the regulation.

The final regulation will also be posted on the Town Hall and published in the Virginia Register of Regulations.

In addition to the requirements specified in § 2.2-4012 E of the Code of Virginia relating to the draft summary description of public comments, at least five days prior to adopting a regulation, the department will post a copy of the final regulation together with a summary of public comments and its responses to all commentators and interested parties on the Town Hall.

Statutory Authority

§§ 2.2-4007.02 and 58.1-203 of the Code of Virginia.

Historical Notes

Derived from VR630-0-1 § 4.3, eff. June 29, 1994; amended, Virginia Register Volume 24, Issue 12, eff. April 19, 2008; repealed, Volume 25, Issue 4, eff. December 28, 2008.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

23VAC10-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Taxation. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-20. 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 Taxation, 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

Part II
Notification of Interested Persons

23VAC10-11-30. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-40. 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 23VAC10-11-30, 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

Part III
Public Participation Procedures

23VAC10-11-50. 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 60 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 60 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-60. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-70. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-80. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-90. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-100. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.

23VAC10-11-110. 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 58.1-203 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 4, eff. December 28, 2008.