Title of Regulation: 17VAC5-40. Regulations Governing Contextualization of Monuments or Memorials for Certain War Veterans (adding 17VAC5-40-10 through 17VAC5-40-50).

Statutory Authority: § 10.1-2204 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 13, 2022.

Effective Date: April 29, 2022.

Agency Contact: Stephanie Williams, Deputy Director, Department of Historic Resources, 2801 Kensington Avenue, Richmond, VA 23221, telephone (804) 482-6082, or email stephanie.williams@dhr.virginia.gov.

Basis: The Director of the Department of Historic Resources is granted the authority pursuant to § 10.1-2202 of the Code of Virginia to promulgate regulations. Enactment Clause 4 of Chapters 1100 and 1101 of the 2020 Acts of Assembly require the Board of Historical Resources to promulgate regulations to govern the manner in which any monument or memorial may be contextualized.

Purpose: This action is essential to protect the health, safety, or welfare of citizens in order to provide localities and the leaders and citizens of those localities with rules on interpreting certain war monuments and memorials in relation to contextualizing certain war monuments or memorials if a locality chooses. Currently no rules for localities that choose to contextualize certain war monuments or memorials exist, and this regulation cures that.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial as contextualization is voluntary for local governing bodies, and the General Assembly has required the board to guide those local governing bodies in this process.

Substance: This regulation provides rules to local governing bodies that choose to contextualize certain war monument or memorials within their jurisdiction. These rules includes general provisions regarding the markers, including their appearance, location, and ownership and the application requirements and approval process.

Issues: The primary advantage to the public is that the public will know the process that localities must undergo in order to contextualize certain monuments or memorials. There are no disadvantages to the public. The primary advantage to the Commonwealth is that contextualization of certain monuments or memorials will be done in a uniform fashion. There are no disadvantages to the Commonwealth. The primary advantage to all is that the information on the marker will be vetted by historians at the department and only credible, documented facts will be a part of the contextualization.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. Pursuant to a legislative mandate, the Board of Historic Resources (Board) proposes to create a new regulation governing the contextualization of war monuments and memorials. The proposed chapter, 17VAC5-40, Regulations Governing Contextualization of Monuments or Memorials for Certain War Veterans, would define relevant terms and describe the requirements for localities to obtain Board approval for a contextualizing marker.² The new regulation would include a form for localities to use when submitting an application to the Department of Historic Resources (DHR).

Background. Chapter 1100 and 1101 of the 2020 Acts of Assembly permits localities to remove, relocate, contextualize, or cover publicly owned war-related monuments or memorials on the locality's public property, except for those located in publicly owned cemeteries.³ The legislation specifically directs the Board to "promulgate regulations governing the manner in which any monument or memorial may be contextualized pursuant to the provisions of this act." Accordingly, the new regulation defines "monument" or "memorial" to mean "any object erected on a locality's public property pursuant to § 15.2-1812 of the Code of Virginia, intended to commemorate the veterans of any war or conflict, or any engagement of such war or conflict, to include the following: Algonquin (1622), French and Indian (1754-1763), Revolutionary (1775-1783), War of 1812 (1812-1815), Mexican (1846-1848), Civil War (1861-1865), Spanish-American (1898), World War I (1917-1918), World War II (1941-1945), Korean (1950-1953), Vietnam (1965-1973), Operation Desert Shield-Desert Storm (1990-1991), Global War on Terrorism (2000- ), Operation Enduring Freedom (2001- ), and Operation Iraqi Freedom (2003- ). "Monument" or "memorial" includes both the object and the pedestal on which it is placed. "Monument or Memorial" does not include any monument or memorial located in a publicly owned cemetery."

DHR reports that Virginia has 423 Civil War monuments (both Union and Confederate) and an additional 274 statues or monuments of various types; of the latter, only those that meet this definition would be subject to the legislation as well as the proposed regulation.

The proposed regulation defines "contextualize" as "the use of facts derived from sources that can be cited to explain the circumstances, influences, and conditions that existed at the time a war memorial or monument was erected, and which resulted in its erection." Accordingly, the proposed regulation would require that the text on a marker include (i) a description of the circumstances, influences and conditions that existed at the time the monument or memorial was erected, (ii) an explanation of the documented motivation for the monument's or memorial's creation, (iii) the parties involved in the creation of the monument or memorial and what their motivations were, and (iv) the parties excluded from the process of creating the monument or memorial.⁴ In addition, the design of the marker would have to be distinct from state historical markers and would have to identify the governing body (i.e., the locality) or its agent that funded the production and erection of the marker.

Local governments that elect to contextualize a monument or memorial with a marker would be required to submit an application form to DHR.⁵ The proposed regulation specifies that DHR shall process up to five applications for contextualization per quarter, on a first-come, first-served basis. DHR may review the application for completeness and accuracy before presenting it to the Board. The Board shall evaluate the applications and approve them based on the following considerations: (i) whether the proposed marker contains true and correct text, (ii) whether the proposed text provides a complete and accurate historical context, (iii) the quality and validity of the documented sources and the documented research provided, (iv) whether the proposed design is sufficiently distinct from state historical markers, and (v) the appropriateness of the proposed location of the marker.

In addition to new markers, any changes to an existing marker would also have to be approved by the Board. However, the local government could choose to remove a previously erected marker. The proposed regulation would not allow local governments to apply for more than one marker at a specific site. The local government would bear all the costs relating to the design, production, and installation of the marker.

Estimated Benefits and Costs. Since the proposed regulation does not mandate any action, and allows actions that were not previously permitted, any costs that arise would be solely at the discretion of local governments. Local governments would be responsible for any costs associated with the production and installation of the markers, if they elect to do so. DHR estimates these costs to range from $500 to $1,500 per marker. The new regulation would satisfy the legislative mandate and benefit local governments that seek to contextualize monuments via markers by providing them with a process to do so. In localities where the removal or relocation of certain monuments may be politically untenable for the local government, the option of erecting a marker to contextualize the monument may benefit the government officials and the public by offering a viable compromise. Having a marker that accurately describes the historical context would provide a public education benefit, for residents of the locality as well as visitors.

Businesses and Other Entities Affected. The proposed amendments do not directly impact businesses in general. If a local government receives approval for a marker and contracts with a local business to fabricate and/or install the marker, that business would benefit from the promulgation of this regulation.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted above, the proposed regulation does not create any costs. Thus, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments do not appear to adversely affect small businesses.

Localities⁹ Affected.¹⁰ The proposed amendments would only impact localities where the local government decided to erect a marker to contextualize a monument. In that case, the local government would need to allocate or raise funds to cover the cost of designing, fabricating, and installing the marker. However, the proposed regulation does not create new costs for local governments in general. Therefore, an adverse impact for local governments is not indicated.

Projected Impact on Employment. The proposed regulation would not affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation does not directly affect the use or value of private property. Real estate development costs are also unaffected.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²A marker could be a plaque, signboard, or other form of signage located near the monument.

³See https://lis.virginia.gov/cgi-bin/legp604.exe?ses=201&typ=bil&val=ch1100. Chapter 1101 is identical. Both chapters overturned an 1890 Act of Assembly that made it unlawful to disturb or interfere with such monuments. Under the new law, local governments may remove, relocate, contextualize, or cover a monument, provided they publish a notice of intent in a local newspaper and conduct a public hearing. The legislation contains specific requirements for the publication of the notice and the hearing, as well as requirements for local governments that vote to remove or relocate a monument or memorial. Thus, adding a marker to contextualize the monument is one option among many, and local governments are not legally mandated to exercise any of these options.

⁴See this marker in DeKalb County, Georgia, that contextualizes the 1908 Confederate monument in Decatur Square, for an example provided by DHR: https://www.ajc.com/news/local/marker-supplies-historical-context-for-dekalb-confederate-monument/3mGyZ6ITzCEGVgz785O1zJ/.

⁵See https://ris.dls.virginia.gov/uploads/17VAC5/forms/Application to Propose Contextualization_DRAFT-20210810114954.docx.

⁶Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁷Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to Code § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Historic Resources on behalf of the Board of Historic Resources concurs with the economic impact analysis.

Summary:

Pursuant to Chapters 1100 and 1101 of the 2020 Acts of Assembly, the amendments establish Regulations Governing Contextualization of Monuments of Memorials for Certain War Veterans (17VAC5-40), which provides local governing bodies that choose to contextualize certain war monuments or memorials within their jurisdiction requirements for the markers, including (i) the marker's appearance, location, and ownership, (ii) application requirements, and (iii) the application approval process.

Chapter 40

Regulations Governing Contextualization of Monuments or Memorials for Certain War Veterans

17VAC5-40-10. Definitions.

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

"Application" means an application for approval of a marker, in a form prescribed by the director and containing the basic information required by 17VAC5-40-40,

"Board" means the Virginia Board of Historic Resources.

"Contextualize" means the use of facts derived from sources that can be cited to explain the circumstances, influences, and conditions that existed at the time a war memorial or monument was erected and resulted in its erection.

"Department" means the Virginia Department of Historic Resources.

"Director" means the Director of the Department.

"Locality's public property" means any property owned by a locality, excluding any publicly owned cemetery.

"Marker" means a marker, plaque, or signage of any kind that contextualizes or purports to contextualize a monument or memorial. A marker is not a monument or memorial.

"Monument" or "memorial" means any object erected on a locality's public property pursuant to § 15.2-1812 of the Code of Virginia, intended to commemorate the veterans of any war or conflict, or any engagement of such war or conflict, to include the following: Algonquin (1622), French and Indian (1754-1763), Revolutionary (1775-1783), War of 1812 (1812-1815), Mexican (1846-1848), Civil War (1861-1865), Spanish-American (1898), World War I (1917-1918), World War II (1941-1945), Korean (1950-1953), Vietnam (1965-1973), Operation Desert Shield-Desert Storm (1990-1991), Global War on Terrorism (2000- ), Operation Enduring Freedom (2001- ), and Operation Iraqi Freedom (2003- ). "Monument" or "memorial" includes both the object and the pedestal on which an object is placed. "Monument" or "memorial" does not include any monument or memorial located in a publicly owned cemetery.

17VAC5-40-20. Applicability.

This chapter shall apply to any locality that proposes to contextualize any monument or memorial pursuant to § 15.2-1812 of the Code of Virginia.

17VAC5-40-30. General provisions.

A. After first fulfilling the requirements set forth in § 15.2-1812 B of the Code of Virginia, any locality proposing to contextualize any monument or memorial shall submit an application to the department and obtain approval of the application from the board.

B. No marker shall be erected or placed on or near a monument or memorial without approval from the board.

C. If a marker is erected without having received approval from the board, then such marker must be removed.

D. If the board has approved a marker and a locality subsequently desires to change that marker, then the locality must submit a new application for such change.

E. Markers shall differ in style and appearance from state historical markers and shall display on the face of the marker prominent notice of the governing body or its agent that funded its production and erection. The text of a marker shall adhere to the formatting guidelines as described in the application.

F. Any marker that is erected shall be the property of the locality.

G. The locality shall be responsible for covering all expenses associated with producing and installing the marker.

H. The name of the locality and the year the marker was created shall appear on the marker.

I. Only one marker per monument or memorial will be approved by the board.

17VAC5-40-40. Marker approval application.

A. Subject to the requirements of this chapter, a locality may, at its own expense, erect a marker on or near any monument or memorial located within its boundaries.

B. Prior to erecting such a marker, the locality shall first submit an application to the department and obtain approval from the board of such application.

C. The application shall be in such form as prescribed by the director and shall include the following basic information:

1. Name, address, email address, and phone number of the local government official who will serve as the primary point of contact;

2. Location and description of the monument or memorial for which the marker is proposed;

3. The text of any and all inscriptions that appear on the monument or memorial;

4. A statement indicating when the monument or memorial was erected, who erected it, and who paid for it, if known, accompanied by documents verifying this information;

5. A statement of purpose of the project;

6. The proposed text and location for the marker, which shall include the following information:

a. A description of the circumstances, influences, and conditions that existed at the time the monument or memorial was erected;

b. An explanation of the documented motivation for the monument's or memorial's creation;

c. The parties involved in the process of creating the monument or memorial and what their motivations were; and

d. The parties excluded from the process of creating the monument or memorial;

7. The proposed location for the marker, which location shall (i) be at or close to the monument or memorial being contextualized and (ii) permit the public to safely view the marker;

8. Documentation relevant to the application, including (i) copies of all references and sources used to draft the proposed text of the marker and (ii) photographs of the monument or memorial to be contextualized;

9. The expected timetable for erection or placement of the marker; and

10. The design, appearance, size, and height for the proposed marker.

D. The department shall process up to five applications for contextualization per quarter, on a first-come, first-served basis. Any applications received after the first five will be deferred to the next board cycle. The department shall review the applications for completeness and accuracy. The department, as it deems necessary, may request additional documentation and information from an applicant. The department may deny an application if it is incomplete or otherwise does not include all the documentation or information required by the department. After the department determines that an application is complete and accurate, the department will present the application to the board.

17VAC5-40-50. Issuance of approval.

A. The board shall evaluate applications presented by the department to the board and determine whether to approve such applications. Approval of an application is in the board's sole discretion. In evaluating whether to approve an application, the board may consider, without limitation:

1. Whether the proposed marker contains true and correct text;

2. Whether the proposed text provides a complete and accurate historical context of the monument or memorial;

3. The quality and validity of the documented sources and documented research provided;

4. Whether the proposed design, appearance, size, and height for the marker differs in style and appearance from state historical markers; and

5. The appropriateness of the proposed location of the marker.

B. The actual text, location, design, appearance, size, and height of a marker as erected shall not differ from the text, location, design, appearance, size, and height set forth in the application that has been approved by the board.

C. The board shall not consider any application until the department has determined that such application is complete and accurate and that sufficient documentary evidence has been submitted to establish the authenticity of the proposed text for the project.

FORMS (17VAC5-40)

Monument or Memorial Contextualization Approval Application (eff. 12/2021)