Title of Regulation: 18VAC120-11. Public Participation Guidelines (amending 18VAC120-11-50).

Statutory Authority: §§ 2.2-4007.02 and 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 24, 2016.

Effective Date: September 8, 2016.

Agency Contact: Mary Broz-Vaughan, Director of Communications, Legislation and Consumer Affairs, Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8537, FAX (804) 527-4403, or email mary.broz-vaughan@dpor.virginia.gov.

Basis: Section 2.2-4007.02 of the Code of Virginia mandates each agency develop, adopt, and use public participation guidelines for soliciting the input of interested parties in the formation and development of its regulations. The Director of the Department of Professional and Occupational Regulation is the promulgating entity.

Purpose: The proposed change updates the agency's public participation guidelines to conform to the change in the Administrative Process Act enacted by Chapter 795 of the 2012 Acts of Assembly. The related provision provides that in formulating any regulation an interested party shall be entitled to be accompanied by and represented by counsel or other qualified representative. Allowing interested parties to be accompanied by and represented by counsel or other parties is beneficial to the public welfare.

Rationale for Using Fast-Track Rulemaking Process: As the proposed change merely conforms the regulation to the underlying statute (§ 2.2-4007.02 B of the Code of Virginia), the rulemaking is not expected to be controversial and, therefore, is appropriate for the fast-track rulemaking process.

Substance: The proposed change allows persons interested in the development of regulations to be accompanied by and represented by counsel or other representative.

Issues: As the proposed change merely updates the regulation to conform to the underlying statute, the primary advantage is to ensure consistency between the law and regulation, which should reduce the chance of any confusion. There are no anticipated disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 795 of the 2012 Acts of Assembly, the Department of Professional and Occupational Regulation (DPOR) proposes to update its regulation to allow persons interested in the development of regulations to be accompanied by and represented by counsel or other representative.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Chapter 795 of the 2012 Acts of Assembly¹ allows persons interested in the development of regulations to be accompanied by and represented by counsel or other representative. The main purpose of the public participation guidelines is to facilitate citizen participation in rulemaking. Allowing interested parties to be accompanied by and represented by counsel or other parties is beneficial to the rulemaking process.

The proposed change updates the regulation to reflect the existing right of interested parties under the statute since 2012. Thus, no significant economic impact is expected upon promulgation of this amendment other than improving the consistency between the statute and the regulation.

Businesses and Entities Affected. The proposed amendment to DPOR's public participation guidelines potentially affects all citizens and entities in the Commonwealth who have an interest in its regulations.

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. No impact on employment is expected upon promulgation of the proposed amendment.  

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. The proposed amendment would have the same effect as that discussed above on small businesses interested in the development of DPOR regulations.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect non-small businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

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¹http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0795

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Chapter 795 of the 2012 Acts of Assembly, the proposed amendment allows persons interested in the development of regulations to be accompanied by and represented by counsel or other representative.

Part III
Public Participation Procedures

18VAC120-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency and (ii) be accompanied by and represented by counsel or other representative. 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.