Title of Regulation: 4VAC20-510. Pertaining to Amberjack and Cobia (amending 4VAC20-510-12, 4VAC20-510-15, 4VAC20-510-20, 4VAC20-510-25, 4VAC20-510-30).

Statutory Authority: § 28.2-201of the Code of Virginia.

Effective Date: January 1, 2021.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments (i) establish a new recreational season and vessel limit for cobia to comply with Amendment 1 of the Interstate Fisheries Management Plan for Atlantic Migratory Group Cobia and (ii) prohibit gaffing of cobia.

4VAC20-510-12. Definitions.

The following terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Amberjack" means any fish of the species Seriola dumerili.

"Cobia" means any fish of the species Rachycentron canadum.

"Mandatory Harvest Reporting Program Web Application" means the online web-based resource provided by the commission to report commercial harvest of seafood at https://webapps.mrc.virginia.gov/harvest/.

"Recreational vessel" means any vessel, kayak, charter vessel, or headboat vessel participating in the recreational cobia fishery fishing recreationally.

"Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.

"Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.

"Virginia Saltwater Fisherman's Journal" means the online web-based resource provided by the commission to report recreational harvest of seafood at https://www.vasaltwaterjournal.com.

4VAC20-510-15. Recreational cobia permit and mandatory reporting.

A. It shall be unlawful for any person to possess or land any cobia harvested from a recreational vessel unless the captain or operator of that recreational vessel has obtained a Recreational Cobia Permit from the Marine Resources Commission (commission). The captain or operator shall be responsible for reporting for all anglers on the recreational vessel. Any captain or operator who did not participate in any take fishing trips to target cobia during the current recreational cobia season shall be responsible for reporting that captain's or that operator's lack of participation is still required to report lack of participation.

B. It shall be unlawful for any person to possess or land any cobia harvested recreationally from shore, a pier, or any other man-made structure without first having obtained a Recreational Cobia Permit from the Marine Resources Commission. Permittees shall be responsible for reporting all trips. Any permittee who did not participate in any take fishing trips to target cobia during the current recreational cobia season shall be responsible for reporting that permittee's lack of participation is still required to report lack of participation.

C. It shall be unlawful for any recreational cobia permittee to fail to report on forms provided by the commission or through the Virginia Saltwater Fisherman's Journal. Reports shall include MRC ID number, the date of harvest, the mode of fishing, the number of cobia kept or released, and, if fishing from a vessel, the number of persons on board.

1. Any permittee who did not participate in any take any fishing trips to target cobia during the recreational cobia season shall report the permittee's lack of participation by the 21st day after the close of the recreational cobia season midnight on October 6 of that calendar year.

2. Any permittee shall report trips where cobia were targeted but not successfully caught by the 21st day after the close of any recreational cobia fishery season midnight on October 6 of that calendar year.

3. Any permittee shall report trips where cobia were caught, whether harvested, released, or possessed, within seven days after the trip occurred by midnight on October 6 of that calendar year.

D. Following the 21st day after the close of any recreational cobia season October 6 of the current calendar year, any permittee who failed to report for any season shall be ineligible to receive a recreational cobia permit for the following calendar year but shall be eligible to reapply for that permit in subsequent years.

4VAC20-510-20. Recreational fishery possession limits, season, and vessel allowance, and prohibition on gaffing.

A. It shall be unlawful for any person fishing recreationally to possess more than one cobia at any time. When fishing from any boat or recreational vessel where the entire catch is held in a common hold or container, the possession limit for the boat or recreational vessel shall be equal to the number of persons on board legally eligible to fish multiplied by one, except there is a maximum recreational vessel limit of three two cobia per recreational vessel per day. The captain or operator of the boat or recreational vessel shall be responsible for any boat or recreational vessel possession limit. Any cobia caught after the possession limit has been reached shall be returned to the water immediately.

B. It shall be unlawful for any person fishing recreationally to harvest or possess any cobia before June 1 15 or after September 30 15 of the current calendar year.

C. It shall be unlawful for any person fishing recreationally to possess more than two amberjack at any time. When fishing from any boat or recreational vessel where the entire catch is held in a common hold or container, the possession limit for the boat or recreational vessel shall be equal to the number of persons on board legally eligible to fish multiplied by two. The captain or operator of the boat or recreational vessel shall be responsible for any boat or recreational vessel possession limit. Any amberjack caught after the possession limit has been reached shall be returned to the water immediately.

D. It shall be unlawful for any person fishing recreationally to gaff or attempt to gaff any cobia.

4VAC20-510-25. Commercial fishery possession limits, season, and reporting requirements.

A. It shall be unlawful for any person fishing commercially to possess more than two cobia at any time. When fishing from any boat or vessel where the entire catch is held in a common hold or container, the possession limit for the boat or vessel shall be equal to the number of valid commercial fisherman registration licensees on board multiplied by two, except there is a maximum vessel limit of six cobia per vessel per day. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any cobia caught after the possession limit has been reached shall be returned to the water immediately.

B. Any commercial harvest of cobia shall only be reported through the Mandatory Harvest Reporting Program Web Application. Such reports shall record daily harvests from Sunday through Saturday and be submitted on a weekly basis no later than Wednesday of the following week in accordance with 4VAC20-610.

C. It shall be unlawful for any person to take, harvest, land, or possess any cobia for commercial purposes once it has been announced by the commission that the commercial quota has been landed for the current calendar year.

D. It shall be unlawful for any person fishing commercially to possess more than two amberjack at any time. When fishing from any boat or vessel where the entire catch is held in a common hold or container, the possession limit for the boat or vessel shall be equal to the number of valid commercial fisherman registration licensees on board multiplied by two. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any amberjack caught after the possession limit has been reached shall be returned to the water immediately.

E. The possession of amberjack or cobia by licensed seafood buyers or wholesale and retail seafood establishments when operating in their capacity as buyer, wholesaler, or retailer shall not be limited by the possession limits described in this section.

4VAC20-510-30. Size limits.

A. It shall be unlawful for any person to take, catch, or have in possession any amberjack less than 32 inches in total length.

B. It shall be unlawful for any person fishing commercially to take, harvest, or possess any cobia less than 37 inches in total length.

C. It shall be unlawful for any person to take, catch, or have in possession any recreationally harvested cobia less than 40 inches in total length.

D. When fishing from any boat or recreational vessel, it shall be unlawful to take, catch, or have in possession more than one recreationally harvested cobia greater than 50 inches in total length per vessel.

Title of Regulation: 4VAC20-1270. Pertaining to Atlantic Menhaden (amending 4VAC20-1270-30, 4VAC20-1270-35, 4VAC20-1270-50).

Statutory Authority: § 28.2-201of the Code of Virginia.

Effective Date: January 1, 2021.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2248 or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments establish the 2021 Total Allowable Catch per Amendment 3 to the Interstate Fishery Management Plan for Atlantic Menhaden and the Ecological Reference Point Benchmark Assessment and all associated fishery sector allocations.

4VAC20-1270-30. Total allowable landings for menhaden; allocation, accountability, overages, restrictions, closures, and state-to-state transfers.

A. Total allowable commercial landings for menhaden in 2020 2021 shall be equivalent to 372,443,990 335,206,390 pounds (168,937.75152,047.06 metric tons) or 78.66% of the annual total allowable catch (TAC) set by the Atlantic States Marine Fisheries Commission.

B. Total amount of allowable commercial landings in subsection A of this section shall be allocated as quotas among three sectors of the menhaden fishery in proportion to each sector's share of average landings from 2002 through 2011, as described in subdivisions 1, 2, and 3 of this subsection.

1. The purse seine menhaden reduction sector shall be allocated a quota of 335,348,569 301,819,834 pounds or 90.04% of allowable commercial menhaden landings.

2. The purse seine menhaden bait sector shall be allocated a quota of 31,210,806 28,090,295 pounds or 8.38% of allowable commercial menhaden landings.

3. The non-purse seine menhaden bait sector shall be allocated a quota of 5,884,615 5,296,261 pounds or 1.58% of allowable commercial menhaden landings.

C. If the total allowable commercial landings specified in subsection A of this section are exceeded in any calendar year, the total allowable commercial landings for the subsequent calendar year shall be reduced by the amount of the overage. Such overage shall be deducted from the sector of the menhaden fishery that exceeded the allocation specified in subsection B of this section, with the exception of the non-purse seine menhaden bait sector, which shall move into the incidental catch provision outlined in subdivision F 3 of this section.

D. Any portion of the 1.0% of the coastwide total allowable catch set aside by the Atlantic States Marine Fisheries Commission for episodic events that is unused as of September 1 of any calendar year shall be returned to Virginia and other states according to allocation guidelines established by the Atlantic States Marine Fisheries Commission. Any such return of this portion of the coastwide total allowable catch to Virginia shall increase the total allowable commercial landings for that year.

E. It shall be unlawful for any person to take or catch menhaden using a purse seine net except in accordance with the seasons, areas, and gear restrictions as set forth in §§ 28.2-409 and 28.2-410 of the Code of Virginia.

F. It shall be unlawful to harvest or land in Virginia any menhaden after the commissioner projects and announces that 100% of the total allowable landings for any sector has been taken. The commissioner may reopen a fishery sector if, after all reports as described in 4VAC20-1270-60 have been received, the portion of the total allowable catch has not been harvested by that sector.

1. The commissioner shall announce the date of closure when the total allowable landings for the purse seine menhaden reduction sector is projected to be taken.

2. The commissioner shall announce the date of closure when the total allowable landings for the purse seine menhaden bait sector is projected to be taken.

3. The commissioner shall announce the date of closure when the total allowable commercial landings for the non-purse seine menhaden bait sector is projected to be taken. Once this closure is announced, any person licensed in the non-purse seine menhaden bait sector may possess and land up to 6,000 pounds of menhaden per calendar day as bycatch. Any two persons licensed in the non-purse seine menhaden bait sector may possess and land up to 12,000 pounds of menhaden bycatch when working together from the same vessel using stationary multi-species gear per the Atlantic States Marine Fisheries Commission incidental catch provision.

G. The commissioner may request a transfer of menhaden quota from any other state that is a member of the Atlantic States Marine Fisheries Commission. If Virginia receives a transfer of menhaden quota in any calendar year from another state, the total allowable catch commercial landings for that calendar year shall increase by the amount of transferred quota. It shall be unlawful for this quota transfer to be applied to the Bay Cap quota as described in 4VAC20-1270-35. The commissioner may transfer menhaden quota to another state only if there is unused menhaden quota at the end of the calendar year.

4VAC20-1270-35. Chesapeake Bay purse seine menhaden reduction fishery.

A. The annual total allowable Bay Cap landings from the Chesapeake Bay by the purse seine menhaden reduction sector in 2020 2021 shall not exceed 36,196 51,000 metric tons (79,798,520112,435,754 pounds) and shall be subject to annual adjustment for any overages as specified in subdivision 3 of this subsection.

1. It shall be unlawful for any transfers of quota from other states to be applied to the Bay Cap to reduce any overages.

2. It shall be unlawful for any amount of unlanded menhaden quota under the Bay Cap each calendar year to be rolled over or applied as credit for any subsequent calendar years.

3. Any annual menhaden landings in excess of the current calendar year Bay Cap shall be deducted from only the subsequent calendar year Bay Cap.

B. When it is projected that the purse seine menhaden reduction sector has met the annual menhaden Bay Cap in the Chesapeake Bay, based on mandatory daily landings reports, the commissioner shall promptly notify the industry announcing the date of closure.

C. It shall be unlawful for any person to harvest menhaden by purse seine for reduction purposes from the Chesapeake Bay for the remainder of that calendar year after the commissioner has announced the date of closure.

4VAC20-1270-50. Non-purse seine menhaden bait sector quota allocation.

The non-purse seine menhaden bait sector's quota allocation shall be in proportion to share for each gear type of average landings from 2002 through 2011 and are as follows:

Title of Regulation: 9VAC25-880. General VPDES Permit for Discharges of Stormwater from Construction Activities.

Agency Contact: Debra Harris, Policy and Planning Specialist, State Water Control Board, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4209, FAX (804) 698-4178, or email debra.harris@deq.virginia.gov.

FORMS (9VAC25-880)

Annual Standards & Specification (AS&S) Entity Information Sheet (rev. 4/2019)

Construction Activity Operator Permit Fee Form 2019 (rev. 4/2019)

Notice of Termination 2019 (rev. 4/2019)

Registration Statement 2019 (rev. 4/2019)

Registration Statement 2019 (rev. 11/2020)

Transfer of Ownership Agreement 2019 (rev. 4/2019)

Title of Regulation: 20VAC5-335. Regulations Governing the Deployment of Energy Storage (adding 20VAC5-335-10, 20VAC5-335-20, 20VAC5-335-30, 20VAC5-335-40, 20VAC5-335-50, 20VAC5-335-60, 20VAC5-335-70, 20VAC5-335-80, 20VAC5-335-90, 20VAC5-335-100, 20VAC5-335-110, 20VAC5-335-120, 20VAC5-335-130).

Statutory Authority: §§ 12.1-13 and 56-585.5 of the Code of Virginia.

Effective Date: January 1, 2021.

Agency Contact: Michael Cizenski, Principle Utilities Engineer, Public Utilities Regulation, State Corporation Commission, Tyler Building, 1300 East Main Street P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9441 or email mike.cizenski@scc.virginia.gov.

Summary:

The action establishes Regulations Governing the Deployment of Energy Storage (20VAC5-335) to set minimum interim targets for Phase I and Phase II Utilities to conduct annual competitive procurement for energy storage and require each Phase I or Phase II Utility to propose behind-the-meter incentives, non-wires alternative programs, and peak demand reduction programs related to energy storage. The new chapter also establishes processes for the permitting of non-utility energy storage facilities and licensing and registration of energy storage aggregators. Several changes to the proposed regulation have been made, including (i) raising the size threshold requiring energy storage facilities to obtain a permit from 100 kilowatts to one megawatt; (ii) removing language that would prevent a utility-affiliated company from qualifying as "persons other than a public utility;" and (iii) extending the notice period for requests for proposals from at least 45 calendar days to at least 60 calendar days.

AT RICHMOND, DECEMBER 18, 2020

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUR-2020-00120

Ex Parte: In the matter of establishing rules

and regulations pursuant to § 56-585.5 E 5

of the Code of Virginia related to the

deployment of energy storage

ORDER ADOPTING REGULATIONS

During its 2020 Session, the Virginia General Assembly enacted the Virginia Clean Economy Act ("VCEA").¹ Among other things, the VCEA, in Code § 56-585.5 E, requires Appalachian Power Company ("APCo") and Virginia Electric and Power Company ("Dominion") to petition the State Corporation Commission ("Commission") for approval to construct or acquire 400 megawatts ("MW") and 2,700 MW, respectively, of new utility-owned energy storage resources by 2035. Section 56-585.5 E 5 further provides in part that:

By January 1, 2021, the Commission shall adopt regulations to achieve the deployment of energy storage for the Commonwealth required in subdivisions 1 and 2, including regulations that set interim targets and update existing utility planning and procurement rules. The regulations shall include programs and mechanisms to deploy energy storage, including competitive solicitations, behind-the-meter incentives, non-wires alternatives programs, and peak demand reduction programs.

On June 29, 2020, the Commission established this proceeding for the purpose of complying with this statutory requirement and sought comment on several questions raised by § 56-585.5 E 5 of the Code. The Commission directed APCo and Dominion to submit comments and permitted any other interested person or entity to submit comments. In addition to answering specific questions, commenters were also permitted to propose specific regulations. In response, comments were filed by Dominion and APCo (collectively, "Joint Commenters") as well as by various other interested persons and entities. Proposed regulations were filed by Joint Commenters; the U.S. Energy Storage Association ("ESA"); and Delorean Power LLC ("Delorean").

On September 11, 2020, the Commission issued an Order for Notice and Comment ("Procedural Order") in this docket. Draft proposed Rules Governing the Deployment of Energy Storage ("Proposed Rules" or "Rules") prepared by the Commission Staff ("Staff") were appended to the Procedural Order. The Procedural Order permitted interested persons to submit comments on or before November 2, 2020, which could include proposals and hearing requests. The Procedural Order further required Staff to file, on or before November 16, 2020, a report ("Staff Report") providing any response to comments, proposals, or requests for hearing submitted to the Commission on the Proposed Rules. Comments concerning the Proposed Rules were filed by: Joint Commenters; Energy Storage Stakeholders ("ES Stakeholders");² Solar Stakeholders;³ Data Center Coalition;⁴ Office of the Attorney General's Division of Consumer Counsel; Environmental Advocates;⁵ Delorean; Mitsubishi Power Americas, Inc. ("Mitsubishi"); Sierra Club; Virginia Department of Mines, Minerals And Energy ("DMME"); and GlidePath Development LLC ("GlidePath"). Comments were also received jointly from the following members of the Virginia General Assembly: Senator Jennifer McClellan, Senator Scott Surovell, Delegate Rip Sullivan, Delegate Jay Jones, Delegate Mark Keam, and Delegate Alfonso Lopez ("Virginia Legislators"). No requests for hearing were received.

On November 16, 2020, Staff filed a Staff Report including certain revisions to the Proposed Rules proposed by Staff after reviewing the comments provided.

NOW THE COMMISSION, upon consideration of the foregoing, finds that we should adopt the Rules appended hereto as Attachment A effective January 1, 2021. As an initial matter, the Commission expresses appreciation to those who have submitted written comments for our consideration. We have carefully reviewed and considered all comments filed in this matter. The VCEA envisions significant increased deployment of energy storage resources in Virginia through 2035. The Rules adopted today are intended to support this increased deployment, while also protecting the electric system and Virginia consumers. As experience is gained and lessons are learned, the Commission intends to update and revise these Rules as needed. In this regard, we further note that the Rules, as modified herein, permit requests for waiver.⁶

The Rules we adopt herein contain a number of modifications to those that were first proposed by Staff and published in the Virginia Register of Regulations on October 12, 2020. These modifications follow our consideration of further proposed changes made by the Staff in its Staff Report and the comments filed in this proceeding. Although we will not comment on each Rule in detail, there are several issues that we will address further herein.

Task Force, Annual Renewable Portfolio Standard ("RPS") Plans, and Order 2222

Before discussing specific Rules adopted today, the Commission recognizes that this rulemaking is not happening in a vacuum and our decision herein is impacted and informed by other legislation and developments on the national level, which will be discussed further herein.

First, we note that legislation (House Bill 1183)⁷ passed by the 2020 Virginia General Assembly directs the Commission to:

create a task force ["Task Force"]⁸ to evaluate and analyze the regulatory, market, and local barriers to the deployment of distribution and transmission-connected bulk energy storage resources to help integrate renewable energy into the electrical grid, reduce costs for the electricity system, allow customers to deploy storage technologies to reduce their energy costs, and allow customers to participate in electricity markets for energy, capacity, and ancillary services. . . . The [Commission] shall submit a copy of the task force's evaluation and analysis to the General Assembly no later than October 1, 2021.

As discussed further below, we find that many of the issues raised by commenters in this proceeding should be further addressed and evaluated by the Task Force,⁹ given the limited timeframe for finalization of the Rules.¹⁰ The Task Force's report, which must be submitted to the General Assembly by October 1, 2021, may include any recommended changes or additions to the Rules that we adopt today, as well as any supporting analysis.

Second, we also note that Dominion and APCo are required to file annual RPS Plans that address each utility's progress and plans towards reaching the energy storage targets. Specifically, the VCEA requires the utilities to:

submit annually a plan and petition for approval for the development of new solar and onshore wind generation capacity. . . . Such plan shall also include the utility's plan to meet the energy storage project targets of subsection E, including the goal of installing at least 10 percent of such energy storage projects behind the meter.¹¹

As discussed further below, utility specific issues related to energy storage deployment may be raised in the utilities' annual RPS Plan proceedings.¹² The statute requires that the utilities must include information on the progress toward meeting energy storage deployment interim targets to obtain the necessary approvals to construct or acquire, new utility-owned energy storage resources outlined in the VCEA.

Third the Federal Energy Regulatory Commission ("FERC") issued an Order ("Order 2222") earlier this year.¹³ As described by Joint Commenters:

[i]n Order No. 2222, FERC adopted reforms to remove barriers to the participation of distributed energy resource aggregations in the Regional Transmission Organization (RTO) and Independent System Operator (ISO) markets (RTO/ISO markets). FERC's definition of distributed energy resources includes electric storage resources.

***

Order No. 2222 also requires . . . coordination between aggregators, ISO/RTOs, distribution utilities, and state and local regulatory authorities. In so doing, FERC sought to avoid creating undue barriers to entry for distributed energy resource aggregations while also considering the substantial role of distribution utilities and state and local regulators in ensuring the safety and reliability of the distribution system.¹⁴

In adopting the Rules, we are cognizant that Order 2222 may impact the deployment of energy storage and participation of Virginia-sited energy storage in the wholesale markets, including through aggregation of smaller resources and behind-the-meter incentives.

20 VAC 5-335-20

Turning to specific Rules, we adopt the definitions section as proposed in the Staff Report. We find those clarifications and refinements reasonable for purposes of the Rules. Among other things, we adopt a definition for "energy storage" that is technology neutral, so long as the technology is capable of absorbing energy, storing that energy for a period of time, and re-delivering that energy after storage.¹⁵

20 VAC 5-335-30

The comments filed in this case reflect disagreement concerning the specific interim targets for energy storage deployment that should be adopted by the Commission. For example, the Joint Commenters argue "by back-end loading interim targets, customers will likely benefit from any advancements in rapidly-evolving energy storage technology and from projected decreases in costs."¹⁶ The ES Stakeholders disagree, arguing that "by delaying the deployment of energy storage, the Commission will delay anticipated cost declines and miss important benefits of early deployment of energy storage."¹⁷ Among other things, ES Stakeholders reason that "[a] limited storage deployment in early years will prevent Virginia from gaining experience with a diversity of customer benefits, interconnection types, technologies, ownership models, and customer benefits to determine the best long-term path forward as the Commonwealth concurrently pursues 100 percent clean electricity."¹⁸

We adopt the interim targets as originally proposed. In so doing, we are mindful of the current nascent stage of energy storage deployment in Virginia. Earlier this year, for example, we approved Dominion's first energy storage pilot program, which includes 16 MW of new Company-owned energy storage projects.¹⁹ As approved herein, the interim targets require Dominion and APCo to seek approval of 250 MW and 25 MW, respectively, of new energy storage by December 31, 2025. We find this level, as well as the other interim targets, to be reasonable at this time. These interim targets are designed to provide steady continuous development in energy storage complementary to the VCEA. We urge the utilities to make steady progress toward the 2035 mandate, and these interim targets reflect this goal. The Task Force may, in its discretion, address and report on the costs and benefits of more aggressive interim targets. Dominion and APCo are also required to report on their progress towards meeting these particular targets in their annual RPS Plan filings. Should circumstances warrant, the Commission may adjust the interim targets in a future proceeding to amend the Rules. Moreover, nothing prevents Dominion and APCo from seeking Commission approval of amounts of energy storage above the interim targets.

Several commenters request that the Commission establish certain additional requirements associated with the interim targets. For example, GlidePath recommends that 100 percent of non-utility projects be procured via long-term power purchase agreement ("PPA") style mechanisms.²⁰ Environmental Advocates propose to add the legislatively set goal of 10 percent behind-the-meter energy storage to the regulations.²¹ Delorean suggests that the interim targets have individual requirements for distribution-connected, behind-the-meter, and standalone energy storage.²² ES Stakeholders suggest that energy storage located in the service territory of a municipal utility that purchases electricity primarily from Dominion or APCo should count towards the interim targets for that utility.²³

The Commission finds that these additional requirements need not be included in the Rules at this time. As noted by Staff, the VCEA establishes a goal of installing 10 percent of energy storage behind-the-meter, and there is no need to repeat that provision in the Rules.²⁴ The Task Force may make recommendations related to the need for specific requirements for distribution-connected and stand-alone storage and whether energy storage of a municipal utility should count towards a utility's interim targets.

Finally in regard to 20 VAC 5-335-30, the VCEA requires that "[a]fter July 1, 2020, at least 35 percent of the energy storage facilities placed into service shall be (i) purchased by the public utility from a party other than the public utility or (ii) owned by a party other than a public utility, with the capacity from such facilities sold to the public utility."²⁵ As initially proposed, Section 30 included language that would prevent a utility-affiliated company from qualifying as "persons other than a public utility" and counting towards the 35 percent threshold. We agree with Joint Commenters and Staff that this language can be removed.²⁶ We note that any contract or arrangement between a utility and an affiliated interest is subject to approval by this Commission under the Affiliates Act,²⁷ as acknowledged by the Joint Commenters.²⁸

20 VAC 5-335-40

Pursuant to 20 VAC 5-335-40, utilities will be required to competitively procure energy storage resources, including at least one competitive solicitation per calendar year, subject to the provisions of the Rule. Some commenters recommend that utilities be required to provide bidders with access to relevant electric system data with appropriate confidentiality safeguards in place for privacy, system security, and public safety.²⁹ Staff agrees with this recommendation and included proposed new language in Section 40 to address this issue.³⁰ We agree with this change and have included it in the Rules.

Delorean and ES Stakeholders recommend that the notice period for requests for proposals ("RFPs") be extended from at least 45 days to at least 90 days.³¹ In the Staff Report, Staff recommends extending the notice period to at least 60 days.³² Given that distributed energy storage use on the electric system represents a largely new technology, we find it reasonable to adopt a 60-day minimum notice period for RFPs. This additional time will benefit energy storage developers by providing additional time to prepare their responses to utility RFPs.

Several parties recommend the Commission explore use of a third-party administrator to evaluate bids to ensure all energy storage projects are competitively procured in a fair, impartial, and transparent manner.³³ Staff agrees with the idea in concept but states that several questions remain unanswered about how this process would be run in practice, including cost responsibilities.³⁴ We will not require use of a third-party administrator at this time; however, this may be an appropriate topic for further consideration by the Task Force. Similarly, we decline to expand the Rules to:

• Require cost-benefit analyses and identify compliance and Commission oversight procedures;³⁵

• Require utilities to report on the results of completed RFPs;³⁶

• Identify procedures for evaluating the outcome of completed RFPs to determine whether the anticipated benefits to specific storage system performance were achieved and whether there are any lessons learned that might inform future RFPs;³⁷ and

• Provide an opportunity for interested parties to comment on or petition to hold proceedings to further shape future RFPs.³⁸

We find inclusion of these proposed requirements in the Rules to be premature at this time. These topics, however, may be appropriate for further consideration by the Task Force or as part of evaluating Dominion's and APCo's annual RPS Plan filings.

20 VAC 5-335-50, 20 VAC 5-335-60, and 20 VAC 5-335-70

Rules 50, 60, and 70 address behind-the-meter incentives, non-wires alternatives programs and peak demand reduction programs, respectively. Generally, these Rules require the utility to address these incentives and programs in each utility's annual RPS Plan proceeding discussed above. If a proposed incentive or program is offered as a part of a demand-side management program, the Rules also permit a utility to seek approval through existing processes for demand-side programs under Code § 56-585.1 A 5.

Certain commenters request that language be added to require utilities to describe how a proposed program would enable the utility to meet the energy storage targets, including the 10 percent behind-the-meter goal.³⁹ Other recommendations include making program approval under these sections contingent on whether the program supports meeting the statutory goal of installing at least 10 percent of energy storage behind-the-meter.⁴⁰ Staff does not support these recommendations, expressing concern they would unduly limit deployment of energy storage at its current nascent stage.⁴¹ We share this concern and will not include these requirements in the Rules. Notwithstanding our decision in this regard, issues related to meeting the behind-the-meter goals may be raised as part of the Task Force or in cases for approval of specific programs, which could be part of the annual RPS Plan proceeding, part of a demand-side management filing, or a stand-alone filing. We also note that, given the lack of experience in Virginia with behind-the-meter storage programs, it is currently unknown how receptive customers will be to such programs.

ES Stakeholders recommend including deadlines for proposing an initial set of programs to ensure near-term implementation of behind-the-meter incentives, non-wires alternative programs and peak demand reductions programs.⁴² We do not find this requirement necessary at this time. Should the Commission find at a later point that Dominion and APCo have unreasonably delayed filing programs for Commission approval, we can address such in each utility's annual RPS Plan proceeding or other appropriate proceeding.

ES Stakeholders also recommend the Commission direct utilities to specifically propose "Bring Your Own Device Programs" to incentivize behind-the-meter storage systems.⁴³ Staff recommends this topic be explored by the Task Force.⁴⁴ We agree with Staff that inclusion of this specific program in the Rules is not necessary at this time and that the Task Force may want to address this program further.⁴⁵

Environmental Advocates recommend the Commission limit a utility's ability to seek approval of energy storage through existing demand-side management programs by requiring the utility to demonstrate energy storage is cost competitive with other solutions available to the utility.⁴⁶ We find this recommendation unnecessary at this time and agree with Staff that such a requirement could unduly limit energy storage deployment development.⁴⁷ We decline to limit energy storage in this manner through a rulemaking. This determination, however, in no way limits the evidence the Commission might consider relevant in approving a specific program.

20 VAC 5-335-80 – Applicability and Burden of Permitting Requirements

Many commenters address the permitting of non-utility energy storage facilities set forth in 20 VAC 5-335-80. Several commenters take issue with the permitting requirements of the Rules applying only to non-utility owned storage.⁴⁸ As explained by the Staff Report, utility construction of electrical facilities is already encompassed in other statutes that need not be incorporated into the Rules.⁴⁹ For example, under Code § 56-265.2, a public utility must obtain a certificate of public convenience and necessity "to construct, enlarge or acquire, by lease or otherwise, any facilities for use in public utility service, except ordinary extensions or improvements in the usual course of business." Similarly, under Code § 56-580 D,

[t]he Commission shall permit the construction and operation of electrical generating facilities in Virginia upon a finding that such generating facility and associated facilities (i) will have no material adverse effect upon reliability of electric service provided by any regulated public utility, (ii) are required by the public convenience and necessity, if a petition for such permit is filed after July 1, 2007, and if they are to be constructed and operated by any regulated utility whose rates are regulated pursuant to § 56-585.1, and (iii) are not otherwise contrary to the public interest.⁵⁰

Several commenters also take issue with the potential burden of the permitting process set forth in 20 VAC 5-335-80.⁵¹ The Commission has no desire to impose unnecessary regulatory burdens; however, the Commission has the duty to protect the reliability and safety of the electric system to which these non-utility energy storage assets will interconnect. The Rules are intended to ensure developers seeking to operate within the Commonwealth will operate safely, will not negatively impact the reliability of the electric power system, and will be ethically responsible in their interactions with Virginia consumers. The Rules are not intended to curtail private development of energy storage. Like generating units, energy storage facilities will inject power onto the electric grid and it is logical that the permitting process be similar to that of generating units.⁵² As set forth in the Staff Report, the permitting process set forth in the Rules is structured similar to (i) the Commission's rules applicable to non-storage generating facilities certificated by the Commission⁵³ and (ii) guidelines applicable to solar and wind facilities participating in the Commission's pilot program for third party PPAs.⁵⁴ Energy storage deployment is only beginning to develop in Virginia, but once additional experience is gained in the deployment of energy storage, the Commission may find streamlining the permitting requirements to be reasonable.⁵⁵

Finally, there is significant disagreement about the appropriate size threshold for triggering the permitting requirements of 20 VAC 5-335-80. As originally proposed, the threshold would be triggered by an energy storage power rating of 100 kilowatts or larger. Environmental Advocates and ES Stakeholders recommend the Commission increase the threshold size to 20 MW, and Delorean recommends the Commission increase the threshold size to 25 MW.⁵⁶ Recognizing that the Commission's Generation Rules have a threshold of 5 MW to trigger permitting requirements, the Staff Report recommends the Commission increase the size threshold to 1 MW given the early stage of energy storage deployment in Virginia.⁵⁷ We agree with Staff's proposal to increase the threshold to 1 MW. In reaching this determination, we find persuasive that broad deployment of distributed energy storage across Virginia's electric system represents a new use of this technology and warrants a cautious approach. We find a 1 MW threshold appropriately balances the burden of compliance with the need to determine and monitor the full impacts of these resources on the electric system. Once additional experience is gained, the Commission may consider adjusting the threshold further.

20 VAC 5-335-80 Notice Requirements

Commenters take issue with the proposed public notice requirements in 20 VAC 5-335-80.⁵⁸ The Staff Report argues that public notice is needed to address environmental justice policies, among other things.⁵⁹ We agree that public notice should be required by the Rules for facilities exceeding the size to trigger permitting requirements. The Commission requires public notice in numerous proceedings brought before it, particularly those involving new generation facilities.⁶⁰ Notably, the Commission also required public notice of Dominion's energy storage pilot program.⁶¹ The Commission recognizes that public notice may involve additional costs for applicants and would consider recommendations from the Task Force on ways to minimize these costs while still ensuring adequate public notice.

20 VAC 5-335-80 Requisite Commission Findings

Pursuant to subsection B of 20 VAC 5-335-80, in order to approve an energy storage facility, the Commission must find it (i) will have no material adverse effect upon the reliability of electric service provided by any regulated public utility; (ii) does not adversely impact any goal established by the Virginia Environmental Justice Act; and (iii) is not otherwise contrary to the public interest. One or more commenters request the Commission consider excluding each of these required findings. As discussed further below, we find these minimum determinations necessary at this time to protect the electric system as well as utility customers.

With respect to the finding of "no material adverse effect on the reliability of electric service," we note that this requirement is also found in Code § 56-580 D, quoted above, which is applicable to generation facilities. We see no valid reason to treat energy storage facilities differently in this regard. As previously mentioned, like generation facilities, energy storage facilities will inject energy onto the electric grid. In addition, they will also be a source of new incremental load. While we appreciate that other entities such as PJM Interconnection, L.L.C. ("PJM"),⁶² and the North American Electric Reliability Corporation ("NERC") may also have responsibilities to safeguard the reliability of the electric grid, those entities are concerned primarily with the bulk electric (i.e., transmission) system. The States have near complete responsibility over the safety, reliability and adequacy of the distribution grid that delivers power to end use customers; we will not abdicate our responsibility in this regard. We note that certified compliance with the reliability requirements of PJM, NERC, or other relevant authority, could be of evidentiary value to a finding of compliance with the Rule's "no material adverse effect" requirement.

Next, regarding environmental justice, we do not find compliance with this requirement to be unduly burdensome for developers at this time. The General Assembly has made it the Commonwealth's policy to pursue environmental justice, and the Commission finds it reasonable to recognize this requirement in our Rules.

Finally, certain commenters request that the Commission remove the required finding that a facility is "not otherwise contrary to the public interest."⁶³ In addition to being included in Code § 56-580 D, this requirement is also part of the Commission's Generation Rules.⁶⁴ We see no reason to treat energy storage facilities differently at this time.

20 VAC 5-335-80 Filing Requirements

Commenters also take issue with certain filing requirements included in 20 VAC 5-335-80. Delorean proposes to add language permitting applicants to indicate instances where any environmental information required is not applicable to a particular project or technology.⁶⁵ We agree with this recommended change and have included it in the Rules.

ES Stakeholders recommend that the Commission remove the requirement for an applicant to provide financial information, reasoning that it is duplicative of requirements of the PJM interconnection process and localities.⁶⁶ The Commission agrees with Staff that proof of financial viability is an important consumer protection and finds the Rules should include this requirement.⁶⁷ The VCEA provides that "at least 35 percent of the energy storage facilities placed into service shall be (i) purchased by the public utility from a party other than the public utility or (ii) owned by a party other than a public utility, with the capacity from such facilities sold to the public utility."⁶⁸ Particularly given this large carve-out, it is important that non-utility energy storage be provided in a reliable manner by reputable, financially secure entities. If an energy storage provider were to default on a PPA with a utility, for example, the utility may have to obtain a replacement resource that could be at a higher cost to customers. Environmental concerns could also be raised if an energy storage provider were to go bankrupt and abandon a resource without providing for its continued maintenance and upkeep. Finally, we note that comparable information is also required of other entities licensed by the Commission, including competitive service providers, competitive local exchange carriers, and electric and natural gas aggregators.⁶⁹

20 VAC 5-335-90, 20 VAC 5-335-100, and 20 VAC 5-335-110

Pursuant to 20 VAC 5-335-90, aggregators of energy storage facilities are required to obtain a license from the Commission. Several commenters urge the Commission not to require such licensure, or to only require limited licensure for aggregators offering certain services.⁷⁰ We will include the required licensure of energy storage aggregators in the Rules. In doing so, we recognize that similar licensure is required of aggregators of competitive electric and natural gas services under the Commission's Rules Governing Retail Access to Competitive Energy Services.⁷¹ We also recognize there may likely be an increased number of entities seeking to provide aggregation services related to energy storage as a result of Order 2222, as discussed above. We note that the Commission currently has 82 active aggregator licenses in Virginia involving aggregation of electric and natural gas services. The Commission is not aware of any complaints by licensees that the Commission's oversight has suppressed the market for these aggregators.

Also with respect to this Rule, Joint Commenters request clarification regarding the requirement of subsection B 18 of 20 VAC 5-335-90, which requires an applicant to include information related to the standards of conduct.⁷² We do not find additional clarification necessary at this time and note that similar requirements have been adopted recently for other applicants in similar situations.⁷³

Other matters

Delorean provides additional proposed rules to be applicable to APCo's and Dominion's annual RPS Plan filings. While we appreciate the intent behind Delorean's proposal, we decline to adopt those rules as part of the Rules Governing the Deployment of Energy Storage. In the future, we may consider adopting rules applicable to the Annual RPS Plan filings once the Commission has gained some experience with those proceedings, which have just recently begun. Such consideration would be through a separate docketed proceeding with appropriate notice and opportunity for comment.

Accordingly, IT IS ORDERED THAT:

(1) The Regulations Governing the Deployment of Energy Storage, 20 VAC 5-335-10 et seq., as shown in Attachment A to this Order, are hereby adopted and are effective as of January 1, 2021.

(2) The Commission's Division of Information Resources shall forward a copy of this Order, with Attachment A, to the Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(3) An electronic copy of this Order with Attachment A shall be made available on the Division of Public Utility Regulation's section of the Commission's website: scc.virginia.gov/pages/Rulemaking

(4) This docket is dismissed.

A COPY hereof shall be sent electronically by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the Commission.

______________________________________

¹Senate Bill 851, 2020 Va. Acts ch. 1194, and identical House Bill 1526, 2020 Va. Acts ch. 1193 (effective July 1, 2020).

²The ES Stakeholders include the ESA, Virginia Advanced Energy Economy, the Maryland, D.C., and Virginia Solar Energy Industries Association ("MDV SEIA") and the Solar Energy Industries Association ("SEIA").

³The Solar Stakeholders include MDV SEIA and SEIA. The Solar Stakeholders state they "are providing supplemental comments to the Energy Storage Stakeholders, specifically to focus on distributed energy resources, behind-the-meter storage and environmental justice considerations." Solar Stakeholders Comments at 1.

⁴The Data Center Coalition represents that it is the national trade association for the data center industry.

⁵Environmental Advocates include the Southern Environmental Law Center, Appalachian Voices, and the Piedmont Environmental Council.

⁶20 VAC 5-335-130.

⁷2020 Va. Acts of Assembly ch. 863.

⁸The legislation provides that the Task Force shall include "representatives of municipalities, the Virginia Solar Energy Development and Energy Storage Authority, the Department of Mines, Minerals and Energy, the Office of the Attorney General, and at least one representative each from the following sectors: regulated electric service providers, competitive electric service providers, rural utility consumer services cooperatives, commercial or industrial energy customers or an association representing such customers, and energy storage companies or an association representing such companies."

⁹The Task Force is directed by the VCEA to: "(i) assess the potential costs and benefits, including impacts to the transmission and distribution systems, of such energy storage resources and (ii) assess how electric utilities, competitive service providers, customers, and other third parties are able to deploy energy storage resources in the bulk market, in the utility system, and in behind-the-meter applications."

¹⁰As quoted above, the VCEA requires the Commission to adopt the Rules by January 1, 2021.

¹¹Code § 56-585.5 D 4.

¹²Dominion filed its 2020 RPS Filing on October 30, 2020, in Case No. PUR-2020-00134. APCo filed its 2020 RPS Filing on November 2, 2020, in Case No. PUR-2020-00135.

¹³Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators, 172 FERC ¶ 61,247 (2020).

¹⁴Joint Commenters Comments at 6 (internal quotation marks and footnotes omitted).

¹⁵We agree with certain commenters that the Rules should be technology neutral, and the Commission declines to incorporate references in the Rules to specific types of storage technology such as hydrogen-based technology, as also requested by some commenters. See Mitsubishi Comments at 6.

¹⁶Joint Commenters Comments at 1.

¹⁷ES Stakeholders Comments at 4.

¹⁸Id. at 5-6.

¹⁹Application of Virginia Electric and Power Company, To participate in the pilot program for electric power storage batteries pursuant to § 56-585.1:6 of the Code of Virginia, and for certification of a proposed battery energy storage system pursuant to § 56-580 D of the Code of Virginia, PUR-2019-00124, Doc. Con. Cen. No. 200220170, Final Order (Feb. 14, 2020) ("Storage Pilot Order").

²⁰GlidePath Comments at 3.

²¹Environmental Advocates Comments at 18.

²²Delorean Comments at 3-4.

²³ES Stakeholders Comments at 20.

²⁴Staff Report at 8-9.

²⁵Code § 56-585.5 E 5.

²⁶Staff Report at 7-8; Joint Commenters Comments at 2-5.

²⁷Code § 56-76 et seq.

²⁸Joint Commenters Comments at 4-5. The Environmental Advocates recommend independent management of competitive procurements involving utility affiliates. Environmental Advocates Comments at 16. We find such requirement premature at this time, but we note that this issue may be evaluated further by the Task Force.

²⁹Data Center Coalition Comments at 6; ES Stakeholders Comments at 8.

³⁰Staff Report at 9.

³¹Delorean Comments at 6; ES Stakeholders Comments at 20.

³²Staff Report at 9.

³³See, e.g., Virginia Legislators Comments at 2; ES Stakeholders Comments at 8; Delorean Comments at 6.

³⁴Staff Report at 10.

³⁵See, e.g., Data Center Coalition Comments at 4-5; Solar Stakeholders Comments at 4; Delorean Comments at 7.

³⁶Data Center Coalition Comments at 5-6.

³⁷Id. at 5.

³⁸Id.

³⁹See, e.g., ES Stakeholders Comments at 10.

⁴⁰Id.

⁴¹Staff Report at 11-12.

⁴²ES Stakeholders Comments at 10-11.

⁴³Id. at 11.

⁴⁴Staff Report at 10.

⁴⁵Similarly, we decline to limit further the parameters of proposed non-wires alternatives programs and peak reduction programs as part of this rulemaking. See, e.g., Delorean Comments at 10 (recommending limitations on peak demand reduction programs); Environmental Advocates Comments at 20 (recommending limits on non-wires alternative plans). If deemed appropriate, the Task Force may consider and recommend changes related to these recommendations.

⁴⁶Environmental Advocates Comments at 18.

⁴⁷See Staff Report at 12.

⁴⁸Delorean Comments at 11; ES Stakeholders Comments at 13; GlidePath Comments at 3.

⁴⁹Staff Report at 13.

⁵⁰As part of approving Dominion's energy storage pilot program, the Commission approved an amended certificate of public convenience and necessity for the Company's Scott solar generating facility pursuant to Code § 56-580 D. Storage Pilot Order at 5.

⁵¹See, e.g., ES Stakeholders Comments at 11-12; Delorean Comments at 2; Virginia Legislators Comments at 2; DMME Comments at 1-2.

⁵²In addition, when charging, energy storage resources are a source of new load.

⁵³Rules Governing the Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility, 20 VAC 5-302-10 et seq. ("Generation Rules").

⁵⁴Commonwealth of Virginia, ex rel. State Corporation Commission, Concerning the establishment of a renewable energy pilot program for third party power purchase agreements, Case No. PUE-2013-00045, 2013 S.C.C. Ann. Rept. 405, Order Establishing Guidelines (Nov. 14, 2013).

⁵⁵Several commenters raised the possibility of applying in various ways the Permit-by-Rule ("PBR") process used by the Department of Environmental Quality ("DEQ") to permit certain small renewable facilities. See, e.g., ES Stakeholders Comments at 12; GlidePath Comments at 4. As noted in the Staff Report, the DEQ's permitting authority does not apply to energy storage. Staff Report at 19. See Code § 10.1-1197.5 et seq.

⁵⁶See, e.g., Environmental Advocates Comments at 23; ES Stakeholders Comments at 12; Delorean Comments at 12.

⁵⁷Staff Report at 15-16.

⁵⁸See, e.g., Delorean Comments at 14; ES Stakeholders Comments at 13-14.

⁵⁹Staff Report at 18. The 2020 General Assembly passed legislation that formally adopted the following as the policy of the Commonwealth: "to promote environmental justice and ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice communities and fenceline communities." Code § 2.2-235.

⁶⁰See, e.g., Petition of Virginia Electric and Power Company, For approval and certification of the proposed US-4 Solar Project pursuant to §§ 56-580 D and 56-46.1 of the Code of Virginia, and for approval of a rate adjustment clause, designated Rider US-4, under § 56-585.1 A 6 of the Code of Virginia, Case No. PUR-2019-00105, Doc. Con. Cen. No. 190750095, Order for Notice and Hearing at 10-16 (July 31, 2019); Application of C4GT, L.L.C., For certification of an electric generating facility in Charles City County pursuant to § 56-580 D of the Code of Virginia, Case No. PUE-2016-00104, Doc. Con. Cen. No. 161020267, Order for Notice and Hearing at 6-9 (Oct. 18, 2016).

⁶¹Application of Virginia Electric and Power Company to participate in the pilot program for electric power storage batteries pursuant to § 56-585.1:6 of the Code of Virginia, and for certification of a proposed battery energy storage system pursuant to § 56-580 D of the Code of Virginia, PUR-2019-00124, Doc. Con. Cen. No. 190830034, Order for Notice and Hearing at 7-10 (Aug. 16, 2019). The Commission further notes that pursuant to Code § 10.1-1197.6, applicants for a DEQ PBR must also comply with certain notice requirements.

⁶²PJM is the regional transmission organization that coordinates the movement of wholesale electricity in all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and the District of Columbia.

⁶³See, e.g., Delorean Comments at 12; GlidePath Comments at 4.

⁶⁴See 20 VAC 5-302-10.

⁶⁵Delorean Comments at 13.

⁶⁶ES Stakeholders Comments at 13.

⁶⁷See Staff Report at 18.

⁶⁸Code § 56-585.1 E 5.

⁶⁹See e.g., 20 VAC 5-312-40; 20 VAC 5-417-20.

⁷⁰Sierra Club Comments at 4; ES Stakeholders Comments at 14-15; Solar Stakeholders Comments at 5; Environmental Advocates Comments at 24.

⁷¹20 VAC 5-312-10 et seq.

⁷²Joint Commenters Comments at 7.

⁷³See, e.g., 20 VAC 5-315-77 (effective March 1, 2020).

Chapter 335

Regulations Governing the Deployment of Energy Storage

20VAC5-335-10. Purpose and applicability.

This chapter is promulgated pursuant to § 56-585.5 E 5 of the Code of Virginia to achieve the deployment of energy storage for the Commonwealth. Each Phase I or Phase II Utility is subject to 20VAC5-335-30 through 20VAC5-335-70, 20VAC5-335-120, and 20VAC5-335-130. Non-utility developers, owners, operators, and aggregators of energy storage are subject to 20VAC5-335-80 through 20VAC5-335-130. Electric cooperatives are not subject to this chapter.

20VAC5-335-20. Definitions.

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

"Behind the meter" means any system that is on the customer side of the utility service meter.

"Behind-the-meter incentive" means any incentive that encourages an end-use electric customer to implement energy storage systems that are connected to the customer side of the utility service meter, regardless of who actually owns the energy storage equipment.

"Commission" means the Virginia State Corporation Commission.

"Demand-side management program" means energy efficiency, demand response, or peak shaving programs [ or pilots ] approved by the commission that a utility may offer to customers pursuant to § 56-585.1 A 5 of the Code of Virginia.

"Energy storage" means any technology that is capable of absorbing energy, storing that energy for a period of time, and re-delivering that energy after storage.

"Energy storage aggregator" means a person or entity that, as an agent or intermediary, (i) offers to purchase or purchases energy storage system capabilities; or (ii) offers to arrange for or arranges for the purchase of energy storage system capabilities for the purposes of combining or aggregating those capabilities to enable the participation of multiple energy storage systems in electricity markets where such individual systems could not participate individually.

"Energy storage capacity" [ or "stored usable energy" ] means the maximum amount of stored energy of the energy storage system in kilowatt-hours or megawatt-hours that can be delivered to the grid.

"Energy storage facility" or "energy storage system" means an energy storage resource and any equipment, other than a transmission or distribution line, needed to interconnect the energy storage resource to the utility's electric system. This additional equipment can include switchgear, transformers, inverters, switches, cables, wires, conductors, bus work, protection devices and systems, communication and control devices and systems, fire protection systems, and environmental protection systems. [ Other costs associated with the construction and operation of an energy storage facility or energy storage system may include property acquisition costs, development and study costs, or other costs necessary to complete an operative facility or system. ]

"Energy storage power rating" means the total possible instantaneous discharge capability in kilowatts or megawatts of the energy storage system, or the maximum sustained rate of discharge that the energy storage system can achieve starting from a fully charged state to a fully discharged state.

"Energy storage project" means an energy storage facility with a specified location and an associated [ nameplate energy storage ] capacity [ and energy storage power rating ].

"Energy storage resource" means (i) a resource capable of collecting energy from the electric power grid or a power generation facility and then discharging the energy at a future point in time to provide electricity or other grid services, or (ii) a resource capable of the active or dynamic exchange of energy.

"Non-wires alternative [ program ]" means any electricity grid investment, project, or program that uses nontraditional transmission or distribution solutions, such as distributed generation, energy storage, energy efficiency, demand response, and grid software and controls, to delay or remove the need for traditional system upgrades of equipment, such as transmission or distribution lines or transformers, without impacting the safety or overall performance of the electric power system.

"Peak demand reduction program" means any project or program aimed at shifting time of use of electricity from one period to another for the overall economic and reliability benefit of the electric power grid.

"Person" means any individual, corporation, partnership, association, company, business, trust, joint venture, or other private legal entity, and the Commonwealth or any municipality.

"Phase I Utility" has the same meaning as provided in subdivision A 1 of § 56-585.1 of the Code of Virginia.

"Phase II Utility" has the same meaning as provided in subdivision A 1 of § 56-585.1 of the Code of Virginia.

"Storage duration" means the amount of time an energy storage system can discharge at its energy storage power rating before depleting the stored usable energy when the system is at maximum energy [ storage ] capacity. [ Energy storage resources can de-rate their maximum output in order to increase energy storage duration. ]

20VAC5-335-30. Minimum interim targets for energy storage deployment by Phase I and Phase II Utilities.

A. A Phase I Utility shall petition the commission for any necessary approvals to construct or acquire the level of energy storage [ capacity power rating ] by the following dates:

1. By December 31, 2025, 25 megawatts;

2. By December 31, 2030, an additional 125 megawatts for a total of 150 megawatts; and

3. By December 31, 2035, an additional 250 megawatts for a total of 400 megawatts.

B. A Phase II Utility shall petition the commission for any necessary approvals to construct or acquire the level of energy storage [ capacity power rating ] by the following dates:

1. By December 31, 2025, 250 megawatts;

2. By December 31, 2030, an additional 950 megawatts for a total of 1,200 megawatts; and

3. By December 31, 2035, an additional 1,500 megawatts for a total of 2,700 megawatts.

C. At least 35% of energy storage facilities placed into service by a Phase I or Phase II Utility shall be (i) purchased by the Phase I or Phase II Utility from a party other than the utility, or (ii) owned by a party other than the Phase I or Phase II Utility with the capacity from such facilities sold to the utility. The 35% threshold shall also apply to each interim [ targets period target ] identified in this section [ and a Phase I or Phase II Utility's acquisition of energy storage facilities, and purchases of capacity from its own utility-affiliated interests shall not count toward this 35% threshold ].

D. Any type of energy storage technology shall count toward the interim targets set forth in subsections A and B of this section.

E. Each Phase I or Phase II Utility shall report on its plan to meet these interim targets and its progress toward meeting these interim targets in the proceedings established by § 56-585.5 D 4 and §§ 56-597 through 56-599 of the Code of Virginia, consistent with the requirements of each respective statute.

20VAC5-335-40. Procurement of energy storage projects by Phase I and Phase II Utilities.

A. In procuring energy storage projects, each Phase I or Phase II Utility shall use competitive bidding to the extent practicable, consistent with § 56-233.1 of the Code of Virginia.

B. Beginning in 2021 and ending in [ either ] 2035 or when the storage targets [ set forth in 20VAC5-335-30 ] are met, whichever is sooner, each Phase I or Phase II Utility shall sponsor at least one competitive solicitation for energy storage projects per calendar year, consistent with the following requirements:

1. The request for proposals shall quantify and describe the utility's need for energy or capacity.

2. The request for proposals shall be publicly announced and made available for public review on the utility's website at least [ 45 60 ] calendar days prior to the closing of such request for proposals.

3. The request for proposals shall provide, at a minimum, the following information: (i) the size, type, and timing of energy storage [ resources projects ] for which the utility anticipates contracting; (ii) any minimum thresholds that must be met by respondents [ , consistent with established codes and standards ]; (iii) major assumptions to be used by the utility in the bid evaluation process, including environmental emission standards; (iv) detailed instructions for preparing bids so that bids can be evaluated on a consistent basis; (v) the preferred general location of additional energy storage [ capacity projects ]; and (vi) specific information concerning the factors involved in determining the price and non-price criteria used for selecting winning bids.

4. A utility may evaluate responses to the request for proposals based on any criteria that it deems reasonable but shall at a minimum consider the following in its selection process: (i) the status of a particular project's development; (ii) the age of existing facilities; (iii) the demonstrated financial viability of a project and the developer; (iv) a developer's prior experience in the field; (v) the location and effect on the transmission grid of an energy storage [ facility project ]; (vi) the benefits to the Commonwealth that are associated with particular projects, including regional economic development and the use of goods and services from Virginia businesses; (vii) the environmental impacts of particular resources, including impacts on air quality within the Commonwealth and the carbon intensity of the utility's generation portfolio; and (viii) how any project impacts the goals established by the Virginia Environmental Justice Act (§ 2.2-234 et seq. of the Code of Virginia).

5. A utility shall maintain documentation of its reasoning for rejecting any specific response [ to the request for proposals ].

C. [ Each utility shall provide, upon request, equitable access to relevant electric system data, with appropriate confidentiality safeguards in place for privacy, system security, and public safety. Access shall be provided in a timely manner such that third parties may reasonably utilize the data to inform responses to the request for proposal.

D. ] Each utility shall report on any competitive solicitations for energy storage [ resources projects ] as part of the annual plan required by § 56-585.5 D 4 of the Code of Virginia.

20VAC5-335-50. Behind-the-meter incentives by Phase I and Phase II Utilities.

As part of the annual proceeding required by § 56-585.5 D 4 of the Code of Virginia, each Phase I or Phase II Utility shall address behind-the-meter incentives related to energy storage. Each Phase I or Phase II Utility shall file with the commission applications for approval of behind-the-meter incentives related to energy storage. If the utility proposes to offer any such behind-the-meter incentives to customers through a demand-side management program, the utility may seek approval through any existing processes for demand-side management programs under § 56-585.1 A 5 of the Code of Virginia, rather than through a separate proceeding under this section.

20VAC5-335-60. Non-wires alternative programs by Phase I and Phase II Utilities.

As part of the annual proceeding required by § 56-585.5 D 4 of the Code of Virginia, each Phase I or Phase II Utility shall address non-wires alternative programs related to energy storage. Each Phase I or Phase II Utility shall file with the commission applications for approval of non-wires alternative programs related to energy storage. If the utility proposes to offer non-wires alternative programs to customers through a demand-side management program, the utility may seek approval through any existing processes for demand-side management programs under § 56-585.1 A 5 of the Code of Virginia, rather than through a separate proceeding under this section.

20VAC5-335-70. Peak demand reduction programs by Phase I and Phase II Utilities.

As part of the annual proceeding required by § 56-585.5 D 4 of the Code of Virginia, each Phase I or Phase II Utility shall address peak demand reduction programs related to energy storage. Each Phase I or Phase II Utility shall file with the commission applications for approval of peak demand reduction programs related to energy storage. If the utility proposes to offer any such peak demand reduction programs to customers through a demand-side management program, the utility may seek approval through any existing processes for demand-side management programs under § 56-585.1 A 5 of the Code of Virginia, rather than through a separate proceeding under this section.

20VAC5-335-80. Permitting of non-utility energy storage facilities.

A. Other than a Phase I or Phase II Utility, each person seeking to construct and operate an energy storage facility in the Commonwealth with an energy storage power rating of [ 100 kilowatts one megawatt ] or greater, either on a stand-alone basis or on an aggregated basis facilitated by an energy storage aggregator, shall either (i) obtain a permit from the commission pursuant to this section, or (ii) apply for and receive a certificate of public convenience and necessity from the commission pursuant to § 56-580 of the Code of Virginia for the energy storage facility, prior to commencing construction or operation. If such person applies for and receives a certificate of public convenience and necessity from the commission, a permit [ under this section ] shall not be required.

B. In evaluating a permit application, the commission shall make a determination for approval based upon a finding that the energy storage facility (i) will have no material adverse effect upon reliability of electric service provided by any regulated public utility; (ii) does not adversely impact any goal established by the Virginia Environmental Justice Act (§ 2.2-234 et seq. of the Code of Virginia); and (iii) is not otherwise contrary to the public interest.

C. Other than a Phase I or Phase II Utility, each person applying for a permit to construct and operate an energy storage facility with an energy storage power rating of [ 100 kilowatts one megawatt ] or greater shall file an application with the clerk of the commission. If the applicant becomes aware of any material changes to any information while the application is pending, the applicant shall inform the commission of such changes within 10 calendar days. Applications shall include the following information:

1. Legal name of the applicant as well as any trade name.

2. A description of the applicant's authorized business structure, identifying the state authorizing such structure and the associated date (e.g., if incorporated, the state and date of incorporation; if a limited liability company, the state issuing the certificate of organization and the date of issuance).

3. Name and business addresses of all principal corporate officers and directors, partners, and LLC members, as appropriate.

4. Financial information for the applicant or principal participant in the project. If the applicant or principal participant is a private entity, financial information should include an analysis of the entity's financial condition and audited financial statements for the two most recent fiscal years. If the applicant or principal participant is a public company, financial information should include a copy or a link to where a copy can be found on the internet of the entity's most recent stockholder report and most recent Securities and Exchange Commission Form 10 K. If such information is unavailable, provide evidence that applicant has the financial resources or access to capital necessary to complete the proposed project.

5. A discussion of the applicant's qualifications, including:

a. A summary of other projects developed and managed by the applicant. Include location, status, and operational history.

b. A description of any affiliation with an incumbent electric utility as defined in § 56-576 of the Code of Virginia.

c. A disclosure of any affiliate relationship with any other permit holder.

6. Specific information about the site for the proposed facility, including:

a. A written description of the location, including identification of the city or county in which the facility will be constructed. Such description should be suitable for newspaper publication and sufficiently identify any affected areas.

b. A description of the site and a topographical map depiction of the proposed site.

c. The status of site acquisition (e.g., purchase option, ownership).

d. A description of any applicable local zoning or land use approvals required and the status of such approvals.

7. Specific information about the proposed facility, including:

a. Description of all major systems, including energy storage technology type and battery storage chemistry type, if applicable; intended uses; intended facility useful life; facility configuration; and expected suppliers of major components.

b. Energy storage power rating, energy capacity, and storage duration.

c. Estimated costs and schedule for construction, testing, and commercialization.

d. Site layouts that provide for integration of energy storage systems with adequate spacing and property setback requirements incorporated.

e. Codes and standards to which the proposed facility will be constructed.

f. Where applicable, the manner and location of the facility's interconnection to the transmission or distribution grid.

8. A general discussion of the selection process for the energy storage technology, including a description of any competitive procurement processes used.

9. A general discussion of economic development impacts of the project.

10. A list of other local, state, or federal government agencies whose requirements must be met in connection with the construction or operation of the project and a statement of the status of the approval procedures for each of these agencies.

11. An analysis of the environmental impact of the project. This analysis shall include the impacts on the environment and natural resources, analysis of alternatives considered, unavoidable adverse impacts, mitigation measures proposed to minimize unavoidable impacts, and any irreversible environmental changes. The information required by this subdivision shall be submitted to the Department of Environmental Quality, simultaneously with its filing with the commission, for coordination and review by state agencies responsible for environmental and natural resource protection. [ To the extent any of the following information is not applicable to a particular project or technology, the applicant shall indicate it is not applicable. ] The information shall identify:

a. Required air permits, expected restrictions, expected emissions, rates of emissions, and any needed emissions offsets or allowances.

b. Required permits for water withdrawals, expected restrictions, the amount of water estimated to be used, the source of such water, identification of a backup source of water, if any, and identification of any facilities that need to be constructed to provide such water.

c. Required permits for water discharge and potential impacts on regional water flows.

d. Required permits related to the wetlands and an identification of any tidal and nontidal wetlands located near the proposed site and how such wetlands will be impacted by applicant's proposed facility.

e. Impact of solid and hazardous wastes on local water resources.

f. Impact on natural heritage resources and on threatened and endangered species.

g. Erosion and sediment control measures.

h. Archaeological, historic, scenic, cultural, or architectural resources in the area.

i. Chesapeake Bay Preservation Areas designated by the locality.

j. Wildlife resources.

k. Agricultural and forest resources and federal, local, state, or private parks and recreation areas.

l. Use of pesticides and herbicides.

m. Geology and mineral resources, caves, and sinkholes.

n. Transportation infrastructure.

12. An analysis of the social impact of the project, including a general discussion of why the facility will not have a disproportionate adverse impact on "historically economically disadvantaged communities" as defined in § 56-576 of the Code of Virginia.

13. A general discussion of how the project will promote environmental justice in environmental justice communities and fenceline communities consistent with the Virginia Environmental Justice Act (§ 2.2-234 et seq. of the Code of Virginia).

14. A general discussion of reliability impacts, including:

a. A description of interconnection requirements and needed interconnection facilities. Any such facilities shall be depicted on a topographic map.

b. A description of the potential impact of the proposed facility on the interconnected system. Discussion should identify and summarize any system impact studies or proposed studies.

c. A description of anticipated services that may be provided to any transmission service provider or local distribution company, including associated costs and benefits.

d. A discussion of existing and expected generation reserves in the region and the impact of the proposed facility on such reserves.

15. A discussion of safety measures the applicant will implement, including fire and explosion protection, detection and mitigation measures, and an emergency response plan, as well as a discussion of whether such measures are compliant with all applicable codes and standards.

16. A discussion of the projected useful life of the energy storage facility, including known or projected performance degradation, roundtrip efficiency, and the proposed plan for and cost of decommissioning at the end of the facility's useful life.

17. A discussion of whether the proposed facility is not contrary to the public interest. The discussion shall include an analysis of any reasonably known impacts the proposed facility may have upon reliability of service to and rates paid by customers of any regulated public utility providing electric service in the Commonwealth.

Any application that fails to conform to the requirements shall be incomplete. No action shall be taken on any application until deemed complete and filed.

Upon receipt of a complete permit application pursuant to this section, the commission shall enter an order providing notice to appropriate persons and an opportunity to comment on the application. The commission shall issue a permit for construction and operation of the energy storage facility upon finding the applicant satisfies the requirements established by [ this subsection B of this ] section.

D. Construction and operation of an energy storage facility in the Commonwealth with an energy storage power rating of less than [ 100 kilowatts one megawatt ] may be undertaken without complying with the filing requirements established by this section. Persons desiring to construct and operate such facilities shall (i) submit a letter stating the location, size, and technology of the energy storage facility to (a) the Director of the commission's Division of Public Utility Regulation and (b) the utility in whose certificated service territory the energy storage facility is located; and (ii) comply with all other requirements of federal, state, and local law.

E. In addition to the requirements of this section, each person seeking to operate an energy storage facility must complete either the interconnection process required by the commission's Regulations Governing Interconnection of Small Electrical Generators and Storage (20VAC5-314) or any federally approved [ interconnection ] process [ established by the regional transmission organization ].

F. Within 30 days of any transfer or assignment of an energy storage facility for which a permit was granted by the commission, the permit holder shall notify the commission and the utility in whose certificated service territory the energy storage facility is located of such transfer or assignment. The notice shall include (i) the date of transfer or assignment; (ii) the information required in subdivisions C 1 through C 5 of this section for the new permit holder; and (iii) a declaration by the new permit holder that it agrees to abide by all initial and continuing requirements of the permit.

G. Any person receiving a permit to operate an energy storage facility in the Commonwealth pursuant to this section shall comply with all initial and continuing requirements of the commission's permitting process. Should the commission determine, upon complaint of any interested person or the Attorney General or upon staff motion or its own motion that a permitted operator of an energy storage facility has failed to comply with any of the requirements of this section or a commission order, the commission may, after providing due notice and an opportunity for a hearing, suspend or revoke the permit or take any other actions permitted by law or regulations as it may deem necessary to protect the public interest.

20VAC5-335-90. Licensing of energy storage aggregators.

A. Other than a Phase I or Phase II Utility, each person seeking to conduct business as an energy storage aggregator shall obtain a license from the commission prior to commencing operations.

B. Each person applying for a license to conduct business as an energy storage aggregator shall file an application with the clerk of the commission. If the applicant becomes aware of any material changes to any information while the application is pending, the applicant shall inform the commission of such changes within 10 calendar days. Applications shall include the following information:

1. Legal name of the applicant as well as any trade name.

2. A description of the applicant's authorized business structure, identifying the state authorizing such structure and the associated date (e.g., if incorporated, the state and date of incorporation; if a limited liability company, the state issuing the certificate of organization and the date of issuance).

3. Name and business addresses of all principal corporate officers and directors, partners, and limited liability corporation (LLC) members, as appropriate.

4. Physical business addresses and telephone numbers of the applicant's principal office and any Virginia office location.

5. Whether the applicant is an affiliate of a Phase I or Phase II Utility. If so, the application shall further provide a description of internal controls the applicant has designed to ensure that it and its employees, contractors, and agents that are engaged in the (i) merchant, operations, transmission, or reliability functions of the electric generation systems, or (ii) customer service, sales, marketing, metering, accounting, or billing functions do not receive information from the utility or from entities that provide similar functions for or on behalf of the utility as would give the affiliated energy storage aggregator an undue advantage over nonaffiliated energy storage aggregators.

6. A list of states in which the applicant or an affiliate conducts business as an energy storage aggregator, the names under which such business is conducted, and a description of the businesses conducted.

7. Toll-free telephone number of the applicant's customer service department.

8. Name, title, address, telephone number, and email address of the applicant's liaison with the commission.

9. Name, title, and address of the applicant's registered agent in Virginia for service of process.

10. If a foreign corporation, a copy of the applicant's authorization to conduct business in Virginia from the commission or if a domestic corporation, a copy of the certificate of incorporation from the commission.

11. Sufficient information to demonstrate, for purposes of licensure with the commission, financial fitness commensurate with the services proposed to be provided. Applicant shall submit the following information related to general financial fitness:

a. If available, applicant's audited balance sheet and income statement for the most recent fiscal year and published financial information, such as the most recent Securities and Exchange Commission forms 10-K and 10-Q. If not available, other financial information for the applicant or any other entity that provides financial resources to the applicant.

b. If available, proof of a minimum bond rating (or other senior debt) of "BBB-" or an equivalent rating by a major rating agency or a guarantee with a guarantor possessing a credit rating of "BBB-" or higher from a major rating agency. If not available, other evidence that will demonstrate the applicant's financial responsibility.

12. The name of the utility certificated to provide service in the area in which the applicant proposes to provide service, the type of services the applicant proposes to provide, and the class of customers to which the applicant proposes to provide such services.

13. The following information related to the applicant's fitness to operate as an energy storage aggregator:

a. Disclosure of any (i) civil, criminal, or regulatory sanctions or penalties imposed or in place within the previous five years against the company, any of its affiliates, or any officer, director, partner, or member of an LLC or any of its affiliates pursuant to any state or federal law or regulation; and (ii) felony convictions within the previous five years that relate to the business of the company or to an affiliate of any officer, director, partner, or member of an LLC.

b. Disclosure of whether any application for license or authority to conduct the same type of business as it proposes to offer in Virginia has ever been denied, whether any license or authority issued to it or an affiliate has ever been suspended or revoked, and whether other sanctions have been imposed.

c. If the applicant has engaged in the provision of energy storage aggregation in Virginia or any other state, a report of all instances of violations of reliability standards that were determined to be the fault of the applicant, including unplanned outages, failure to meet service obligations, and any other deviations from reliability standards during the previous three years. The report shall include, for each instance, the following information: (i) a description of the event; (ii) its duration; (iii) its cause; (iv) the number of customers affected; (v) any reports, findings, or issuances by regulators or electric and natural gas system reliability organizations relating to the instance; (vi) any penalties imposed; and (vii) whether and how the problem has been remedied.

14. A $250 registration fee payable to the commission.

15. A discussion of the proposed uses of the aggregated resources, including the nature of the intended participation in wholesale electric markets, if any.

16. Sufficient information to demonstrate technical fitness commensurate with the service to be provided, to include:

a. The applicant's experience.

b. Identity of applicant's officers and key managers with direct responsibility for the business operations conducted in Virginia and their experience in the provision of storage aggregation.

c. Documentation of the applicant's membership or participation in regional reliability councils or regional transmission organizations, if any.

d. Billing service options the applicant intends to offer and a description of the applicant's billing capability, including a description of any related experience.

17. A copy of the applicant's dispute resolution procedure.

18. The standards of conduct to which the applicant adheres or agrees to adhere [ to ].

An officer with appropriate authority, under penalty of perjury, shall attest that all information supplied on the application for licensure form is true and correct and that, if licensed, the applicant will abide by all applicable regulations of the commission.

C. Any application that fails to conform to the requirements of this section shall be regarded as incomplete. No action shall be taken on any application until deemed complete and filed.

D. Upon receipt of an application for a license to conduct business as an energy storage aggregator, the commission shall enter an order providing notice to appropriate persons and an opportunity for comments on the application. The commission shall issue a license to conduct business as an energy storage aggregator upon finding the applicant satisfies the requirements established by this section.

E. A license to conduct business as an energy storage aggregator granted under this section is valid until revoked or suspended by the commission after providing due notice and an opportunity for a hearing or until the energy storage aggregators abandons its license.

F. An energy storage aggregator shall comply with all initial and continuing requirements of the commission's licensure process and any reasonable registration processes required by the utility in whose certificated service territory the energy storage aggregator intends to operate. Should the commission determine, upon complaint of any interested person or the Attorney General or upon staff motion or its own motion that an energy storage [ aggregators aggregator ] has failed to comply with any of the requirements of this section or a commission order, the commission may, after providing due notice and an opportunity for a hearing, suspend or revoke the energy storage aggregator's license or take any other actions permitted by law or regulations as it may deem necessary to protect the public interest.

20VAC5-335-100. Energy storage aggregator registration with utility.

A. An energy storage aggregator shall submit to the utility in whose certificated service territory it intends to operate proof of licensure from the commission to provide energy storage aggregation services in the Commonwealth. An energy storage aggregator shall provide notice of any suspension or revocation of its license to the utility upon issuance of the suspension or revocation by the commission.

B. An energy storage aggregator and the utility shall exchange the names, telephone numbers, and email addresses of appropriate internal points of contact to address operational and business coordination issues and the names and addresses of their registered agents in Virginia.

20VAC5-335-110. Marketing by energy storage aggregators.

A. An energy storage aggregator shall provide accurate, understandable information in any advertisements, solicitations, marketing materials, or customer service contracts in a manner that is not misleading. Marketing material found misleading by the commission will be withdrawn [ by the energy storage aggregator from its published materials ].

B. Customer service contracts shall include:

1. Explanations of the price for the energy storage aggregator's services or, if the exact price cannot feasibly be specified, an explanation of how the price will be calculated;

2. Explanations of how the customer will be compensated for the value of their energy storage;

3. Length of the service contract, including any provisions for automatic contract renewal;

4. Provisions for termination by the customer and by the energy storage aggregator;

5. A statement of any minimum contract terms, minimum or maximum storage requirements, minimum or fixed charges, and any other charges;

6. Applicable fees including start-up fees, cancellation fees, late payment fees, and fees for checks returned for insufficient funds;

7. A notice of any billing terms and conditions;

8. A toll-free telephone number and an address for inquiries and complaints;

9. In a conspicuous place, confirmation of the customer's request for enrollment and the approximate date the customer's service shall commence;

10. A notice that, upon request by the customer, the energy storage aggregator shall provide a copy of its dispute resolution procedure; and

11. A notice that, upon any change in the terms and conditions of the contract, including any provisions governing price or pricing methodology or assignment of the contract to another energy storage aggregator, the energy storage aggregator shall communicate such changes to the customer at least 30 days in advance of implementing such changes.

20VAC5-335-120. Confidentiality.

Where any application filed under this chapter, including any supporting documents or pre-filed testimony, contains information that the applicant asserts is confidential, the filing may be made under seal and accompanied by a motion for a protective order or other confidential treatment in accordance with 5VAC5-20-170.

20VAC5-335-130. Waiver.

A. Any request for a waiver of any provision in this chapter may be granted upon such terms and conditions as the commission may impose.

B. For good cause shown, any Phase I or Phase II Utility may request a waiver of the commission's Rules Governing Utility Promotional Allowances (20VAC5-313) for any proposed programs or incentives related to energy storage set forth in 20VAC5-335-50, [ 20VAC335-60 20VAC5-335-60 ], and 20VAC5-335-70.

C. For good cause shown, any Phase I or Phase II Utility may request a waiver of the commission's Regulations Governing the Functional Separation of Incumbent Electric Utilities under the Virginia Electric Utility Restructuring Act (20VAC5-202).

Title of Regulation: 20VAC5-360. Licensed Professional Engineer to Exercise Responsible Charge over Certain Natural Gas Engineering Projects (adding 20VAC5-360-10 through 20VAC5-360-50).

Statutory Authority: §§ 12.1-13 and 56-257.2:1 of the Code of Virginia

Public Hearing Information: A public hearing will be held upon request.

Public Comment Deadline: February 2, 2021.

Agency Contact: Lauren Govoni, Deputy Director, Utility and Railroad Safety Division, State Corporation Commission, Tyler Building, 1300 East Main Street, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9590, FAX (804) 371-9734, or email lauren.govoni@scc.virginia.gov.

Summary:

The proposed regulatory action establishes a new chapter, 20VAC5-360, Licensed Professional Engineer to Exercise Responsible Charge over Certain Natural Gas Engineering Projects. The new regulation requires that licensed professional engineers exercise responsible charge over certain pipeline projects undertaken by natural gas companies jurisdictional to the State Corporation Commission where such projects, among other things, present a material risk to public safety.

AT RICHMOND, DECEMBER 9, 2020

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. URS-2020-00052

Ex Parte: In the matter
concerning regulations required by Chapter 822
of the 2020 Acts of Assembly

ORDER FOR NOTICE AND COMMENT

During its 2020 Session, the Virginia General Assembly enacted Chapter 822 (SB 385) of the 2020 Virginia Acts of Assembly ("Act"). The rulemaking provision of the Act became effective on July 1, 2020.¹ The Act, inter alia, amended the Code of Virginia ("Code") by adding § 56-257.2:1 (the "Statute"), directing the State Corporation Commission ("Commission") to promulgate regulations requiring that a licensed professional engineer exercise responsible charge over engineering projects that (i) involve gas pipeline facilities, as defined in the federal regulations promulgated under 49 U.S.C § 60101 et seq., as amended and adopted by the Commission, and the federal pipeline safety laws, and (ii) may present a material risk to public safety.² These regulations are in furtherance of the Act's related amendment to a Code provision³ that, inter alia, had generally exempted employees of Commission-regulated public service corporations from professional engineer licensing, when those employees provided engineering services in connection with public service corporations' facilities regulated by the Commission. The Act further required the Commission to convene a stakeholder group, including representatives of natural gas utilities in the Commonwealth, and to direct such stakeholder group to develop and propose to the Commission recommendations concerning such regulations no later than December 1, 2020.

On May 29, 2020 the Commission issued an Order Establishing Proceeding that, among other things, directed Staff to, utilizing input from the stakeholder group and upon its own inquiry, submit to the Commission, on or before December 1, 2020, a Staff Report presenting draft regulations, findings, and recommendations corresponding to the Act's Third Enactment Clause. On November 24, 2020 Staff filed its Report in which it summarized the work of the stakeholder group and provided proposed rules for the Commission's consideration in this proceeding ("Proposed Rules").

NOW THE COMMISSION, upon consideration of the foregoing, is of the opinion and finds that notice of the Proposed Rules should be given to the public and that interested persons be provided an opportunity to file written comments on, propose modifications or supplements to, or request a hearing on the Proposed Rules. We further find that a copy of the Proposed Rules should be sent to the Registrar of Regulations for publication in the Virginia Register of Regulations.

The Commission further takes judicial notice of the ongoing public health emergency related to the spread of the coronavirus, or COVID-19, and the declarations of emergency issued at both the state and federal levels.⁴ The Commission has taken certain actions, and may take additional actions going forward, which could impact the procedures in this proceeding.⁵ Consistent with these actions, in regard to the terms of the procedural framework established below, the Commission will, among other things, direct the electronic filing of comments.

Accordingly, IT IS ORDERED THAT:

(1) All filings in this matter shall be submitted electronically to the extent authorized by Rule 5 VAC 5-20-150, Copies and Format, of the Commission's Rules of Practice and Procedure ("Rules of Practice").⁶ For the duration of the COVID-19 emergency, any person seeking to hand deliver and physically file or submit any pleading or other document shall contact the Clerk's Office Document Control Center at (804) 371-9838 to arrange the delivery.⁷

(2) The Commission's Division of Information Resources shall forward a copy of this Order for Notice and Comment ("Order"), including a copy of the Proposed Rules, to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(3) Within five (5) business days of the date of this Order, Staff shall transmit electronically copies of this Order to those persons and entities identified by Staff as potentially having an interest in this matter.

(4) An electronic copy of the Proposed Rules may be obtained by submitting a request to Lauren Govoni in the Commission's Division of Utility and Railroad Safety at the following e-mail address: Lauren.Govoni@scc.virginia.gov. An electronic copy of the Proposed Rules can also be found at the Division of Utility and Railroad Safety's website: scc.virginia.gov/pages/Rulemaking. Additionally, interested persons may download unofficial copies of the Order and the Proposed Rules from the Commission's website: scc.virginia.gov/pages/Case-Information.

(5) On or before February 2, 2021, any interested person may file comments on the Proposed Rules by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. Such comments may also include proposed modifications and hearing requests. All filings shall refer to Case No. URS-2020-00052. Any request for hearing shall state with specificity why the issues raised in the request for hearing cannot be addressed adequately in written comments. If a satisfactory request for hearing is not received, the Commission may consider the matter and enter an order based upon the papers filed herein.

(6) On or before February 25, 2021, the Staff may file with the Clerk of the Commission a report on or a response to any comments, proposals, or requests for hearing submitted to the Commission on the Proposed Rules.

(7) This matter is continued.

A COPY hereof shall be sent electronically by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the Commission. A copy hereof also shall be sent to the Commission's Office of General Counsel and Division of Utility and Railroad Safety.

____________________________

¹The Act's Fourth Enactment Clause delays the effective date of the Act's First Enactment containing these Code amendments to January 1, 2021.

²Under the Statute, a professional engineer is defined as a person who is qualified to practice engineering by reason of special knowledge and use of mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design acquired by engineering education and experience, and whose competence has been attested by the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects through licensure as a professional engineer.

³Section 54.1-401 of the Code.

⁴See, e.g., Executive Order No. 51, Declaration of a State of Emergency Due to Novel Coronavirus, COVID-19, issued March 12, 2020, by Gov. Ralph S. Northam. See also Executive Order No. 53, Temporary Restrictions on Restaurants, Recreational, Entertainment, Gatherings, Non-Essential Retail Businesses, and Closure of K-12 Schools Due to Novel Coronavirus (COVID-19), issued March 23, 2020, by Governor Ralph S. Northam, and Executive Order No. 55, Temporary Stay at Home Order Due to Novel Coronavirus (COVID-19), issued March 30, 2020, by Governor Ralph S. Northam. These and subsequent Executive Orders related to COVID-19 may be found at: https://www.governor.virginia.gov/executive-actions/.

⁵See, e.g., Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic Service of Commission Orders, Case No. CLK-2020-00004, Doc. Con. Cen. No. 200330035, Order Concerning Electronic Service of Commission Orders (Mar. 19, 2020), extended by Doc. Con. Cen. No. 200520105, Order Regarding the State Corporation Commission’s Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel., State Corporation Commission, Ex Parte: Revised Operating Procedures During COVID-19 Emergency, Case No. CLK-2020-00005, Doc. Con. Cen. No. 200330042, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (Mar. 19, 2020) ("Revised Operating Procedures Order"), extended by Doc. Con. Cen. No. 200520105, Order Regarding the State Corporation Commission’s Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic service among parties during COVID-19 emergency, Case No. CLK-2020-00007, Doc. Con. Cen. No. 200410009, Order Requiring Electronic Service (Apr. 1, 2020).

⁶5 VAC 5-20-10 et seq.

⁷As noted in the Revised Operating Procedures Order, submissions to the Commission's Clerk's Office via U.S. mail or commercial mail equivalents may not be processed for an indefinite period of time due to the COVID-19 emergency.

Chapter 360

Licensed Professional Engineer to Exercise Responsible Charge over Certain Natural Gas Engineering Projects

20VAC5-360-10. Purpose and scope.

This chapter delineates standards used by the commission to enforce the provisions of § 56-257.2:1 of the Code of Virginia. This chapter further details certain standards and requirements for professional engineering oversight of projects that (i) involve gas pipeline facilities, as defined in the federal regulations promulgated under 49 USC § 60101 et seq., as amended and adopted by the commission pursuant to § 56-257.2 of the Code of Virginia, and the federal pipeline safety laws and (ii) may present a material risk to public safety.

20VAC5-360-20. Definitions.

Terms used in this chapter shall have the same meaning and effect as in the federal pipeline safety laws under 49 USC § 60101 et seq. and 49 CFR Parts 191, 192, 193, 195, and 199. In addition, the following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means Chapter 822 of the 2020 Acts of Assembly.

"Bypass" means a pipeline connection or control mechanism installed in order to allow construction, maintenance, or repair work, thus altering the flow of gas or hazardous liquid to different facilities other than those transporting the gas prior to installation of the pipeline connection or control mechanism.

"Commission" means the Virginia State Corporation Commission.

"Commission's pipeline safety standards" means standards for gas and hazardous liquid pipeline facilities adopted, prescribed, or enforced by the commission pursuant to §§ 56-257.2 and 56-555 of the Code of Virginia; 49 USC § 60101 et seq.; and 20VAC5-300-70, 20VAC5-307-10, and 20VAC5-308-10.

"Compressor stations" means pipeline facilities that compress natural gas, increasing the pressure and providing the energy needed to move the gas through the pipeline.

"District regulator stations" means a pressure regulating station that controls pressure to a high-pressure or low-pressure distribution main.

"Emergency work" means nonroutine maintenance or repair work, such as repairs to hazardous leaks, that should be performed immediately. Examples include third party damages, repairs, work to maintain priority service, reduce customer outages as a matter of safety, and compromises to system integrity as a cause of overpressurization.

"Engineered structures" means distribution mains vertically attached to buildings, overpasses, or water crossings.

"Gate station" means pressure regulating stations where custody of natural gas or hazardous liquid is transferred from an interstate supplier to a Virginia public service company.

"Maintenance" means any repair or rehabilitation activity performed on a pipeline facility or prescribed by 49 CFR 192, Subpart M.

"MAOP" means maximum allowable operating pressure.

"O&M Procedures" means any operations or maintenance procedures or processes prepared by the operator for conducting operations and maintenance activities or emergency response, as prescribed by 49 CFR 192, Subpart L.

"Peak shaving facilities" means pipeline storage facilities designed to house natural gas or propane gas for reintroduction into an operator's system at times of peak demand. These facilities may store liquefied natural gas or liquefied petroleum gas.

"P.E. stamp" means a professional seal as prescribed by 18VAC10-20-760, pertaining to use of seal.

"Public right-of-way" means any portion of a designated interstate, freeway, or expressway, as well as any other principal arterial roadway with four or more lanes, as defined in the Federal Highway Administration's Highway Functional Classification Concepts, Criteria and Procedures. Section 3.1 (see: https://www.fhwa.dot.gov/planning/processes/statewide/related/highway_functional_classifications/fcauab.pdf).

"Professional engineer" or "P.E." means a person who is qualified to practice engineering by reason of special knowledge and use of mathematical, physical, and engineering sciences and the principles and methods of engineering analysis and design acquired by engineering education and experience, and whose competence has been attested by the Board for Architects. Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects through licensure as a professional engineer.

"PSIG" means pounds per square inch, gauge.

"Repair" means any activity on a distribution main or transmission line that calls for removing the leak by cutting out and replacing a cylindrical piece of pipe, installing a pressure-carrying full encirclement welded split sleeve of appropriate design, or any other permanent repair that is consistent with 49 CFR § 192.717.

"Tie-in" means any process of connecting a newly installed pipeline to either an existing pipeline or another newly installed pipeline by means of joining.

"Uprating" means the act of increasing maximum allowable operating pressures for pipelines.

20VAC5-360-30. Use of professional engineers.

A. Any gas pipeline engineering plans or specifications for engineering work or services that (i) involve gas pipeline facilities, as defined in the federal regulations promulgated under 49 USC § 60101 et seq., as amended and adopted by the commission in the commission's pipeline safety standards pursuant to § 56-257.2 of the Code of Virginia, and the federal pipeline safety laws and (ii) may present a material risk to public safety must be produced by or under the direct charge and supervision of a professional engineer with sufficient knowledge of a gas company's natural gas distribution system, and such plans or specifications must bear the professional engineer's stamp, in accordance with § 54.1-406 of the Code of Virginia.

B. A professional engineer must ensure that the plan or specification conforms to the applicable pipeline safety laws, regulations, and standards, and the review and use of a professional engineer's stamp must comply with the professional and ethical obligations set forth in Virginia.

C. Engineering services involving gas pipeline facilities and that present a material risk to public safety shall include:

1. New installation of district pressure regulator stations, compressor stations, or gate stations.

2. Reconfiguration or physical facility changes performed at district pressure regulator stations, compressor stations, or gate stations that alter or modify the configuration or overpressure protection of equipment.

3. Installation, uprating, repair, or abandonment of intrastate transmission pipelines.

4. Any distribution main piping modifications or replacement work falling within established district regulator awareness zones as established by each operator.

5. Any construction or maintenance work on distribution mains that changes the system operating pressure and requires a bypass or a change in the system operating pressure that involves more than two tie-ins.

6. Installation of distribution mains where such mains attach to bridges or other engineered structures.

7. Installation of distribution mains, including replacements and extension projects, that are within or cross any public right-of-way.

8. Installation or abandonment of service lines connecting to transmission lines or a high-pressure distribution main with a MAOP that exceeds 90 PSIG.

9. Installation of peak shaving facilities, to include any modifications or reconfigurations that would alter such a facility's pressure delivery characteristics.

10. Any other project in the judgment of the operator that poses a material risk to public safety.

D. A professional engineer's stamp is not required for emergency work, but a professional engineer's stamp is required after the emergency has been resolved if the remaining work or services are on a project that presents a material risk to public safety.

E. Incorporation of Guidelines into Operations and Maintenance Procedures: Each public service company shall incorporate the provisions of this chapter into its written procedures as required under 49 CFR Part 192 and the commission's pipeline safety standards.

20VAC5-360-40. Documentation.

Each public service company subject to this chapter shall maintain the plans and specifications that must bear a professional engineer's stamp pursuant to this chapter at its office. These plans and specifications shall be readily accessible upon request of the commission, and they shall be maintained in accordance with the document retention timelines set forth in 49 CFR Part 192 and the commission's pipeline safety standards.

20VAC5-360-50. Commission authority.

A request for a waiver of any of the provisions in this chapter shall be considered by the State Corporation Commission on a case-by-case basis and may be granted upon such terms and conditions as the State Corporation Commission may impose.

Title of Regulation: 24VAC35-70. Remote Alcohol Monitoring Device Regulations (adding 24VAC35-70-10 through 24VAC35-70-140).

Statutory Authority: § 18.2-270.2 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: January 29, 2021.

Agency Contact: Richard Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email richard.foy@vasap.virginia.gov.

Basis: Chapter 1007 of the 2020 Acts of Assembly made changes and additions to §§ 18.2-270.1, 18.2-270.2, 18.2-271.1, and 18.2-272 of the Code of Virginia. Section 18.2-270.2 directs the Executive Director of the Commission on the Virginia Alcohol Safety Action Program (VASAP), pursuant to approval by the commission, to certify remote alcohol monitoring devices for use in the Commonwealth and adopt regulations and forms for the installation, maintenance, and certification of such remote alcohol monitoring devices.

Purpose: Offenders who are eligible for an ignition interlock are usually subject to a number of additional driving restrictions such as limiting the permissible purposes for which they can drive. A new law will permit courts, upon request of offenders, to eliminate these additional driving restrictions when remote alcohol monitoring devices are used in combination with an ignition interlock. Unlike ignition interlock devices, which are designed to prevent attempts to drive under the influence, remote alcohol monitoring devices only provide a notification that someone has a prohibited alcohol concentration at a certain time and location. Remote alcohol monitoring devices do not prevent someone from driving under the influence.

Chapter 1007 of the 2020 Acts of Assembly requires the Commission on VASAP to develop regulations regarding remote alcohol monitoring devices. These proposed regulations are similar in content to Virginia's ignition interlock regulations but include language to encompass the wide variety of remote alcohol monitoring devices on the market that use varying technology. Remote alcohol monitoring devices protect the public by ensuring that persons prohibited from drinking by court order adhere to their probationary requirements.

Substance: The proposed regulation includes sections addressing the qualifications of remote alcohol monitoring device manufacturers and service providers; training and certification of remote alcohol monitoring technicians and state directors; remote alcohol monitoring device specifications and calibration; program participation fees; customer orientation training; and recordkeeping.

Issues: Remote alcohol monitoring devices protect the public by ensuring that persons prohibited from drinking by court order adhere to their probationary requirements. Courts and probationary agencies will have the benefit of receiving real-time information about offenders they are supervising.

A new law, effective July 1, 2021, permits convicted DUI offenders to drive with the sole driving restriction being the installation of an ignition interlock, provided they agree to remote alcohol monitoring as well. This provides drivers who opt to submit to remote alcohol monitoring, in combination with an ignition interlock device, the freedom to drive at any time to any location.

The manufacturers and service providers of remote alcohol monitoring devices will have an opportunity to conduct business in Virginia by providing requested services to this offender population.

Summary:

Pursuant to Chapter 1007 of the 2020 Acts of Assembly, the proposed regulatory action establishes 24VAC35-70, Remote Alcohol Monitoring Device Regulations. The proposed regulation includes requirements for (i) qualifications of remote alcohol monitoring device manufacturers and service providers; (ii) training and certification of remote alcohol monitoring technicians and state directors; (iii) remote alcohol monitoring device specifications and calibration; (iv) program participation fees; (v) customer orientation training; and (vi) recordkeeping.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As required by Chapter 1007 of the 2020 Acts of Assembly (Chapter 1007),¹ the Commission on the Virginia Alcohol Safety Action Program (VASAP) proposes to adopt a regulation for the installation, maintenance, and certification of remote alcohol monitoring devices.

Background.

Ignition Interlock: Code of Virginia Section 18.2-270.1 states that an offender convicted of driving under the influence in Virginia shall be required to have an ignition interlock device installed on his or her vehicle as a condition of a restricted license or license restoration. An ignition interlock is a device that is installed in a motor vehicle to prevent alcohol-impaired individuals from driving. Before starting the vehicle, the offender is required to blow into the ignition interlock's mouthpiece to provide a breath sample for analysis. If the blood alcohol concentration is above the pre-set limit of 0.02%, the vehicle will not start. Once the vehicle is started, the offender may be required to submit additional breath samples at random times while the engine is running.

Chapter 1007: Offenders who have an ignition interlock are usually subject to a number of additional driving restrictions, such as limiting the permissible purposes for which they can drive.² Chapter 1007 permits courts, upon request of offenders, to eliminate these additional driving restrictions when remote alcohol monitoring devices are used in combination with an ignition interlock. The legislation defines "remote alcohol monitoring device" as an unsupervised mobile testing device with the ability to confirm the location and presence of alcohol in a person and that is capable of scheduled, random, and on-demand tests that provide immediate or as-requested results. A testing device may be worn or used by persons ordered by the court to provide measurements of the presence of alcohol in their blood.

The offender would be required to refrain from alcohol consumption at all times, and the monitoring device would be worn or accessible at all times, not only when driving.

Chapter 1007 specifies that VASAP is to "adopt regulations and forms for the installation, maintenance, and certification of such remote alcohol monitoring devices." Further the legislation states that "Such regulations shall also provide for the establishment of a fund, using a percentage of fees received by the manufacturer or distributor providing … remote alcohol monitoring devices, to afford persons found by the court to be indigent all or part of the costs of … remote alcohol monitoring device."

Proposed Regulation: The proposed new regulation, 24VAC35-70, Remote Alcohol Monitoring Device Regulations, has 14 sections. Some of the most noteworthy requirements and their sections are listed.

• 24VAC35-70-30. Approval of manufacturers: Explains the requirements manufacturers of remote alcohol monitoring devices have to meet in order to contract for the provision of services in Virginia. VASAP shall issue a request in compliance with the Commonwealth of Virginia procurement procedures to contract with remote alcohol monitoring manufacturers for the services and commodities required for the implementation and maintenance of the Commonwealth's remote alcohol monitoring program. Requirements for manufacturers seeking to contract include: (1) Services shall be made available within a 50-mile radius of every residence in the Commonwealth unless otherwise authorized by VASAP. Manufacturers are permitted to subcontract remote alcohol monitoring services to third-party service providers for delivery of their remote alcohol monitoring services in Virginia. (2) Adequate insurance covering liability related to remote alcohol monitoring operations, services, and equipment, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence and $3 million general aggregate total. (3) Provide a state remote alcohol monitoring director who will serve as a central point of contact for VASAP regarding all aspects of the manufacturer's remote alcohol monitoring operations. Among other duties, the manufacturer's state remote alcohol monitoring director would be expected to (i) respond promptly to problems in the field; (ii) upon request of VASAP provide testimony themselves, or through a designee, before applicable courts, the General Assembly of Virginia, or VASAP; (iii) assist and provide training to VASAP; and (iv) be responsible for quality control of reports and statistics, updates to all required documentation, and field services reporting and repairs. Provide remote alcohol monitoring generated reports and report all required alcohol-related violations to the relevant local Alcohol Safety Action Program.³

• 24VAC35-70-60. Fees: Establishes the fees manufacturers must pay if they desire to conduct remote alcohol monitoring business in the state. Outlines the fees that service providers may charge offenders. States that all potential manufacturers desiring to conduct business in the Commonwealth of Virginia's remote alcohol monitoring program shall submit a $250 nonrefundable application fee to VASAP. States that the following additional fees shall be paid by the manufacturer to VASAP:

A $250 annual contract review fee;

A $50 annual review fee for each remote alcohol monitoring service location;

A $30 monthly remote alcohol monitoring administrative fee for each offender.

A $250 retest fee each and every time a service provider employee is required to take a second or subsequent Virginia Remote Alcohol Monitoring Certification Exam due to an unsuccessful attempt on the first exam; and

A $250 remote alcohol monitoring device certification fee for any new device proposed for use in the Commonwealth.

States that service providers may charge offenders for remote alcohol monitoring services at rates up to, but not to exceed, the following:

$80 for a standard remote alcohol monitoring device orientation;

$330 plus applicable taxes, per month, for remote alcohol monitoring device calibrations and monitoring, inclusive of the monthly administrative fees to be paid to VASAP;

$10 per month for optional insurance to cover theft or accidental damage to the remote alcohol monitoring device and its components;

An amount of 10% over the actual replacement cost of the remote alcohol monitoring device and its components when theft or accidental damage occurs and the offender has not purchased the optional insurance;⁴

$50 plus mileage calculated at the Commonwealth of Virginia mileage rate in effect at the time, not to exceed 100 miles, for service calls;

$35 for missed appointments; and

An amount permitted by the Code of Virginia at the time for returned checks.

Additionally, in this section it is stated that all manufacturers or their service providers shall create and maintain an indigency fund for offenders who are eligible for a reduction in fees based upon a declaration of indigency by the court and approval by VASAP. No manufacturers or their service providers shall deny service to any offender for whom there has been a declaration of indigency by the court and approval by VASAP.

• 24VAC35-70-80. Remote alcohol monitoring device orientation: Requires that the offender be provided orientation and training in the proper use of the remote alcohol monitoring device.

• 24VAC35-70-120. General manufacturer requirements: Lists general requirements for manufacturers to follow, including obtaining approval from VASAP before disseminating any offender training or advertising materials used in association with the Virginia remote alcohol monitoring program.

• 24VAC35-70-130. Service provider technician certification: Explains the prerequisites for qualifying to be a remote alcohol monitoring service provider technician, to include the certification testing process. Service provider technicians and state directors are required to possess a Virginia Remote Alcohol Monitoring Certification Letter to perform any remote alcohol monitoring services in the Commonwealth. Newly hired service provider technicians, or state directors, however, may perform remote alcohol monitoring services under the direct supervision of a certified technician or state director for training purposes for up to 90 days prior to obtaining a Virginia Remote Alcohol Monitoring Certification Letter. In order to obtain the Virginia Remote Alcohol Monitoring Certification Letter, the applicant must pass the Virginia Remote Alcohol Monitoring Certification Exam.

Estimated Benefits and Costs. The introduction of the option for offenders to request the remote alcohol monitoring device is potentially beneficial for offenders who do not wish to have their driving limited to purposes such as driving to and from work. By refraining from alcohol consumption at all times and paying for the installation and use of the device,⁶ they would be able to drive at any time to any location. To the extent that a substantial number of offenders choose to request the device and their requests are granted by courts, businesses that provide the devices would likely benefit and the additional monitoring data could enable more informed decisions by local courts.

Participating in the remote alcohol monitoring program is optional for offenders. Contracting with VASAP to provide remote alcohol monitoring devices and services is optional for manufacturers. Thus, the creation of the program does not appear to create costs because offenders and businesses could simply choose not to participate in the newly available option.

There is discretion on specifics of the proposed regulation, though. For example, Chapter 1007 does not mandate that manufacturers have service centers within a 50-mile radius of every residence in the Commonwealth. It seems likely that manufacturers would find it more profitable to not meet this proposed requirement in the least populated areas of Virginia. The proposed requirement is beneficial for offenders in rural areas in that it limits how far they would have to travel to receive the service.

The legislation also does not directly address liability insurance for remote alcohol monitoring device manufacturers. Code of Virginia § 18.2-270.2 mandates that the Ignition Interlock Program Regulations (24VAC35-60) require that ignition interlock systems be "manufactured by an entity which is adequately insured against liability, in an amount established by VASAP, including product liability and installation and maintenance errors." The Ignition Interlock Program Regulations⁷ do require manufacturers to submit "sufficient documentation to enable the verification of adequate insurance covering liability related to ignition interlock operations, services, and equipment, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence and $3 million general aggregate total."

Chapter 1007 amends § 18.2-270.2 to require that VASAP adopt regulations and forms for the installation, maintenance, and certification of such remote alcohol monitoring devices, but unlike for ignition interlocks, does not address insurance. On liability insurance, the proposed Remote Alcohol Monitoring Device Regulations are analogous to the existing Ignition Interlock Program Regulations in that it is stated that manufacturers are required to submit "sufficient documentation to enable the verification of adequate insurance covering liability related to remote alcohol monitoring operations, services, and equipment, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence and $3 million general aggregate total." This is beneficial in that it provides some financial protection for Virginians, but it is an additional required cost for manufacturers.

Businesses and Other Entities Affected. VASAP is aware of three manufacturers of remote alcohol monitoring devices that are likely to seek to contract to provide the services and commodities required for the implementation and maintenance of the Commonwealth's remote alcohol monitoring program. Two of the manufacturers already provide ignition interlocks and have service centers throughout the Commonwealth. VASAP believes that those manufacturers would use their existing service centers for the remote alcohol monitoring devices as well as the ignition interlocks. The third manufacturer does not currently have service centers in the Commonwealth. VASAP estimates that it would need 20 to 25 service centers to provide adequate statewide coverage.⁷ This manufacturer could choose to subcontract the servicing of its devices to one or more other firms.

The proposed regulation would also affect VASAP, courts, the 24 Alcohol Safety Action Programs located throughout the Commonwealth,⁸ and those offenders who qualify and are potentially interested in the Virginia remote alcohol monitoring program.

Small Businesses⁹ Affected. According to VASAP, all three manufacturers of remote alcohol monitoring devices that are likely to seek to contract are large corporations and have operations in other states or even in other countries. Thus, they may not be considered to be small businesses. As stated, one of the three manufacturers does not currently have service centers in the Commonwealth and may choose to subcontract the servicing of its devices to one or more other firms. Such firms may be small businesses, but would not be adversely affected by the establishment of this regulation.

Localities¹⁰ Affected.¹¹ The proposed regulation applies throughout the Commonwealth and does not introduce costs for local governments.

Projected Impact on Employment. The manufacturer that does not already have service centers would have to either hire staff for the required service centers, or subcontract the servicing of its product. In the latter case, the subcontractor or subcontractors would have to hire staff. Since according to VASAP each service center would typically have one employee, approximately 20 to 25 new jobs would be created. If the demand for the remote alcohol monitoring devices turns out to be substantial, the two manufacturers with existing service centers may need to hire additional staff as well.

VASAP does not believe additional staff would be necessary for the courts, the Alcohol Safety Action Programs, or itself.

Effects on the Use and Value of Private Property. The manufacturer that does not already have service centers, or its subcontractors, would need to rent or purchase 20 to 25 physical properties for service centers. This would positively impact the value of such properties. To the extent that the renting and servicing of remote alcohol monitoring devices is profitable under the set fees in the proposed regulation, the values of the manufacturers and potential subcontractors may increase.

__________________________________

¹See https://lis.virginia.gov/cgi-bin/legp604.exe?201 ful CHAP1007

²See Code of Virginia Section 18.2-271.1 E for the list of limited driving purposes: https://law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-271.1/

³The 24 Alcohol Safety Action Programs provide probationary oversight to offenders who have been referred from a court, typically for a conviction of driving under the influence.

⁴VASAP is aware of three manufacturers likely to seek a contract and estimates that for two of the manufacturers, the replacement cost of the remote alcohol monitoring device and its components would be $2,000 to $2,500. The replacement cost is unknown for the third likely manufacturer.

⁵This is in addition to the costs paid for the installation and use of the ignition interlock.

⁶See https://law.lis.virginia.gov/admincode/title24/agency35/chapter60/section40/

⁷The proposed regulation requires that services be made available within a 50-mile radius of every residence in the Commonwealth of Virginia unless otherwise authorized by VASAP.

⁸The Alcohol Safety Action Programs provide probationary oversight to offenders who have been referred from a court, typically for a conviction of driving under the influence.

⁹Pursuant 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."

¹⁰"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.

¹¹§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis:

The Commission on the Virginia Alcohol Safety Action Program concurs with the content of the Virginia Department of Planning and Budget's economic impact analysis.

Chapter 70

Remote Alcohol Monitoring Device Regulations

24VAC35-70-10. Definitions.

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

"Alcohol" means ethyl alcohol, also called ethanol (C₂H₅OH).

"ASAP" means a local alcohol safety action program.

"Blood alcohol concentration" or "BAC" means the amount of alcohol in an offender's blood or breath, as determined by chemical analysis, that is measured by the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath.

"Bodily fluid" means any bodily fluid capable of being used to estimate blood alcohol concentration, provided the relationship between such bodily fluid and BAC has been established according to scientifically acceptable standards. Such fluids include blood, exhaled deep lung breath, perspiration (transdermal), and saliva.

"Breath test" means an analysis of the breath alcohol concentration of a deep lung breath sample, where "deep lung breath sample" or "alveolar breath sample" means a minimum 1.0-liter air sample that is the last portion of a prolonged, uninterrupted exhalation and that gives a quantitative measurement of alcohol concentration from which breath sample concentrations can be determined. "Alveolar" refers to the alveoli that are the smallest air passages in the lungs surrounded by capillary blood vessels and through which an interchange of gases occurs during respiration.

"Calibration" means a device system check indicating the absence of issues that affect the remote alcohol monitoring device's ability to provide an accurate alcohol concentration reading.

"Commission" means the Commission on Virginia Alcohol Safety Action Program or its designee.

"Deep lung breath sample," also known as "alveolar breath sample," means a minimum 1.0-liter air sample that is the last portion of a prolonged, uninterrupted exhalation and that gives a quantitative measurement of alcohol concentration from which breath sample concentrations can be determined. "Alveolar" refers to the alveoli that are the smallest air passages in the lungs surrounded by capillary blood vessels and through which an interchange of gases occurs during respiration.

"Device" means a remote alcohol monitoring device.

"Device certification" means the testing and approval process required by the Commission on Virginia Alcohol Safety Action Program for all remote alcohol monitoring devices.

"Executive Finance Committee" means the advisory subcommittee of the commission composed of the Executive Director of the Commission on Virginia Alcohol Safety Action Program, two commission members, and such other persons as the commission designates.

"Manufacturer" means the entity that is responsible for the design, production, and distribution of remote alcohol monitoring devices to service providers.

"Offender" means the individual required by the court to use a remote alcohol monitoring device.

"Orientation" means to increase offender familiarity and understanding of remote alcohol monitoring device operation and program expectations through training and set up of the remote alcohol monitoring device for use by the offender.

"Remote alcohol monitoring device" means an unsupervised mobile testing device with the ability to confirm the location and presence of alcohol in a person and that is capable of scheduled, random, and on-demand tests that provide immediate or as-requested results. A testing device may be worn or used by persons ordered by the court to provide measurements of the presence of alcohol in their blood via breath or bodily fluid.

"Retest" means an additional opportunity to provide a deep lung breath or transdermal sample.

"Routine maintenance" means inspection, calibration, and other simple, small-scale activities associated with regular and general upkeep of the remote alcohol monitoring device against normal wear and tear but does not include internal repair.

"Service center" means the physical location where remote alcohol monitoring services are performed.

"Service provider" means an authorized entity that provides orientation of approved remote alcohol monitoring devices for manufacturers. Among other activities, service providers may calibrate and perform routine maintenance of devices as well as provide required reports and testify in court. In some cases, the service provider may also be a manufacturer of a remote alcohol monitoring device.

"Set point" means the level at which the breath or transdermal alcohol concentration initiates a sequence of events to determine if the BAC or TAC sample is a confirmed alcohol event.

"State director" means a manufacturer employee who provides oversight of the manufacturer's remote alcohol monitoring device operations in the Commonwealth of Virginia.

"Tampering" means an unlawful act or attempt to disable or circumvent the legal operation of the remote alcohol monitoring device.

"Technician" means a service provider employee who provides remote alcohol monitoring services in the Commonwealth of Virginia on behalf of a manufacturer.

"Testing window" means a time period programmed into the remote alcohol monitoring device in which an offender can provide an on demand, random, or scheduled breath or transdermal test.

"Transdermal" means transfer through the skin or the quantification of alcohol from a vapor after it passes through the skin.

"Transdermal alcohol content" or "TAC" means the detection of alcohol in human subjects using an external, noninvasive detection device attached and secured to the skin with tamper resistance approved by the commission.

"Transdermal test" means an analysis of the transdermal concentration of a bodily fluid sample.

"Violation" means an event, such as a breath or transdermal test indicating alcohol consumption; a refusal to provide a deep lung breath or transdermal sample; altering, concealing, hiding, or attempting to hide one's identity from the remote alcohol monitoring device's camera while providing a breath sample; or tampering that breaches the guidelines for use of the remote alcohol monitoring device.

"Virginia Remote Alcohol Monitoring Certification Letter" means a letter issued by the commission to a service provider technician or state director authorizing the service provider technician or state director to perform remote alcohol monitoring services in the Commonwealth of Virginia.

24VAC35-70-20. When remote alcohol monitoring devices are required.

Remote alcohol monitoring devices are required when ordered by a court.

24VAC35-70-30. Approval of manufacturers.

A. The commission shall issue a request in compliance with the Commonwealth of Virginia procurement procedures to contract with remote alcohol monitoring manufacturers for the services and commodities required for the implementation and maintenance of the Commonwealth's remote alcohol monitoring program. Contracts will be for a length of time established by the commission.

B. A manufacturer seeking to contract with the commission shall:

1. Submit evidence demonstrating successful experience in the development and maintenance of a remote alcohol monitoring service program in Virginia, other states, or other countries;

2. Supply and train staff, technicians, and state directors and provide remote alcohol monitoring device orientation to ensure good customer service and compliance with all contract requirements. Personnel seeking to perform remote alcohol monitoring services or administrative duties in the Commonwealth of Virginia shall not necessarily be barred from employment due to a criminal record; however, a criminal record may be considered in conjunction with other information to determine the overall suitability of applicants for employment;

3. Provide, upon request of the commission or the court, via a properly served subpoena, expert or other required testimony in any civil, criminal, or administrative proceedings as to the method of manufacturing the device, remote alcohol monitoring functionality, and the testing protocol by which the device is calibrated and serviced. The manufacturer may assign a service provider designee to perform these duties;

4. Identify all key personnel who will be providing remote alcohol monitoring services for the Commonwealth of Virginia and furnish the commission with credentials on these personnel;

5. Notify the commission at least five business days in advance of a reduction in staffing levels of key personnel in the Commonwealth of Virginia;

6. Ensure that service provider technicians and state directors, or their designee, are trained and available to testify in court if required by a court or Commonwealth's Attorney, or upon a 10-business-day notice by the ASAP in that court's jurisdiction, regardless of whether a subpoena is issued;

7. Submit a description of the manufacturer's plan, to be approved by the commission, for distribution of the device to all locations of the Commonwealth of Virginia where remote alcohol monitoring services will be performed. Services shall be made available within a 50-mile radius of every residence in the Commonwealth of Virginia unless otherwise authorized by the commission. Manufacturers are permitted to subcontract remote alcohol monitoring services to third-party service providers that meet the requirements of this chapter for delivery of their remote alcohol monitoring services in the Commonwealth of Virginia. Alcohol Safety Action Programs may qualify as third-party service providers for a manufacturer for remote alcohol monitoring services in the Commonwealth of Virginia if approved by the commission. Alcohol Safety Action Programs that are approved by the commission to contract with remote alcohol monitoring manufacturers to provide remote alcohol monitoring services shall employ a minimum of one state-certified technician for every 50 remote alcohol monitoring offenders monitored by their program and shall meet the same certification requirements as all other service providers;

8. Submit sufficient documentation to enable the verification of adequate insurance to cover liability related to remote alcohol monitoring operations, services, and equipment, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence and $3 million general aggregate total. This liability insurance shall be considered primary above all other available insurance and shall so stipulate in the "other insurance" or applicable section of the insurance contract. The manufacturer shall provide a signed statement holding harmless the Commonwealth of Virginia and the commission and its members, employees, and agents from all claims, demands, and actions as a result of damage or injury to persons or property that may arise directly or indirectly out of an act or omission by the manufacturer or the manufacturer's service provider relating to the orientation, service, repair, or use of a remote alcohol monitoring device. Coverage shall extend to any action taken or not taken by ASAPs (unless the ASAP is a service provider for a remote alcohol monitoring device manufacturer) or the commission due to verified errors in reporting of remote alcohol monitoring device activity by the manufacturer or the manufacturer's service provider;

9. Submit documentation that the manufacturer will provide a state remote alcohol monitoring director who will serve as a central point of contact for the commission regarding all aspects of the manufacturer's remote alcohol monitoring operations in the Commonwealth. Among other duties, the manufacturer's state remote alcohol monitoring director will be expected to (i) respond promptly to problems in the field; (ii) upon request of the commission, provide testimony themselves or through their designee before applicable courts, the General Assembly of Virginia, or the commission; (iii) assist and provide training to the commission; and (iv) be responsible for quality control of reports and statistics, updates to all required documentation, and field services reporting and repairs. In the event of a state director vacancy, the manufacturer shall submit to the commission the name of an interim state director within 10 days of the vacancy and the name of a permanent state director within 90 days of the vacancy;

10. Not discriminate against an employee or applicant for employment due to race, religion, color, sex, national origin, age disability, or other basis prohibited by state or federal law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary for the normal operation of the manufacturer or the manufacturer's service provider. The manufacturer agrees to post at all service provider locations in conspicuous places available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. Furthermore, the manufacturer shall require that its service providers, in all solicitations or advertisements for employees placed by or on behalf of the service provider, state that the contractor is an equal opportunity employer. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or regulation shall be deemed sufficient for the purpose of meeting the requirements of this subdivision;

11. Not knowingly employ an unauthorized alien as defined in the Federal Immigration Reform and Control Act of 1986 (P.L. 99-603; 100 Stat. 3359) during the performance of the contract for goods and services;

12. Notify the commission in writing within 15 days of a disciplinary action taken by a state or other political entity against the manufacturer in areas where the manufacturer conducts or has conducted remote alcohol monitoring business. This notification shall include the reason for the disciplinary action and other information as the commission may reasonably request. This requirement applies regardless of the existence of an appeal;

13. Notify the commission in writing of all final adjudications against the manufacturer related to the remote alcohol monitoring device or delivery of remote alcohol monitoring services;

14. Provide remote alcohol monitoring generated reports and report all required alcohol-related violations to the Alcohol Safety Action Program of jurisdiction; and

15. Provide documentation annually of the manufacturer's certification to the current International Organization for Standardization (ISO) 9001 Quality Management System (QMS) for aspects related to design, maintenance, and distribution of a remote alcohol monitoring device. Along with this certification, a copy of the manufacturer's Quality Assurance Plan (QAP) for checking the accuracy of the calibration of the remote alcohol monitoring device is required.

C. Provided that all manufacturer, facility certification, and device certification requirements are met, the commission may contract with those manufacturers and may approve multiple makes and models of remote alcohol monitoring devices for use in the Commonwealth of Virginia.

24VAC35-70-40. Remote alcohol monitoring service facility certification.

Each remote alcohol monitoring service facility shall be inspected and certified by the commission prior to opening and at least annually thereafter. Remote alcohol monitoring service facilities shall:

1. Comply with all local business license and zoning requirements and with all federal, state, and local health, fire, and building code requirements. Prior to the jurisdictional compliance deadline, a copy of a valid business license or business license payment receipt, and tax document shall be posted in a conspicuous place at the service facility immediately upon receipt when applicable;

2. Comply with all local, state, and federal laws pertaining to the provisions of physical access to persons with disabilities;

3. Maintain offender records in a manner that complies with federal confidentiality guidelines. All offender files, payment receipts, and other identifying information shall be located in locked filing cabinets if unattended by a technician. Electronic storage of offender files shall be encrypted and secured to prevent third party access;

4. Require and enforce maintenance of a drug-free workplace and have posted in a conspicuous place available to employees and applicants for employment a statement notifying employees that the manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the service provider's workplace. The notice shall specify the actions that may be taken against employees for violations of the policy;

5. Notify offenders of the address and closure date of any remote alcohol service facility and provide the address of an alternate remote alcohol monitoring service facility within 15 days of the closure date, if applicable;

6. Ensure that employees maintain a professional appearance and are attired in such a manner as to be readily identifiable as service provider employees;

7. Ensure that the locations where remote alcohol monitoring services are performed are tidy and pose no hazards to public safety; and

8. Provide the commission a minimum of 20 days' notice prior to the scheduled opening date of a new location. This requirement allows the commission reasonable time to schedule an inspection of the new facility prior to opening services to ASAP offenders.

24VAC35-70-50. Remote alcohol monitoring device specifications and certification.

A. All remote alcohol monitoring devices used in the Commonwealth of Virginia shall be certified by the commission. The commission shall maintain a list of approved remote alcohol monitoring devices.

B. A manufacturer seeking to have a remote alcohol monitoring device certified by the commission shall submit:

1. The name and address of the remote alcohol monitoring device manufacturer;

2. The name and model number of the remote alcohol monitoring device; and

3. A detailed description of the device including drawings, wiring protocols if applicable, and instructions used in orientation.

C. The manufacturer or the manufacturer's service provider shall provide literature promoting its device to the commission and for distribution to the ASAPs.

D. The manufacturer shall provide a certification report that the remote alcohol monitoring device conforms to the minimum specifications set forth by the commission. Included with the certification report should be the name and location of the testing facility, the address and phone number of the testing facility, and the names and qualifications of the individuals performing the tests. This section applies only to the portion of the device that records breath or bodily fluid samples for analysis. At a minimum, the following specifications shall be met:

1. The remote alcohol monitoring device shall work accurately and reliably in an unsupervised environment at minimal inconvenience to others.

2. The remote alcohol monitoring device shall be able to analyze a specimen of alveolar breath or bodily fluid for alcohol concentration, correlate accurately with established measures of blood or transdermal alcohol concentration, and be calibrated according to the manufacturer's specifications.

3. The remote alcohol monitoring device shall use an electrochemical fuel cell or other technology approved by the commission that reacts to and measures ethanol.

4. A remote alcohol monitoring device that is designed to take a breath test shall indicate when an acceptable breath sample has been collected, indicating this by audible or visual means. The remote alcohol monitoring device shall not be set to a breath volume requirement of less than 1.0 L.

5. The remote alcohol monitoring device shall detect and record a BAC or TAC for all completed breath or bodily fluid samples.

6. The results of the test shall be noted through the use of green, yellow, and red signals or similar pass or fail indicators. No digital blood or transdermal alcohol concentration shall be indicated to the offender.

7. The remote alcohol monitoring device shall automatically purge alcohol before allowing subsequent analyses.

8. The remote alcohol monitoring device shall be capable of random, scheduled, continuous, or on-demand tests that provide immediate, scheduled, or on-demand results.

9. The internal memory of the remote alcohol monitoring device shall be capable of recording and storing a minimum of 500 remote alcohol monitoring events.

10. The remote alcohol monitoring device shall be designed and set up in a manner as to minimize opportunities for tampering, alteration, bypass, or circumvention.

11. The remote alcohol monitoring device shall be capable of recording and providing evidence of actual tampering, alteration, bypass, or circumvention.

12. The remote alcohol monitoring device shall operate accurately and reliably at temperatures between 10º and 40ºC.

13. The remote alcohol monitoring device shall operate up to altitudes of 2.5 km above sea level.

14. The readings of the remote alcohol monitoring device shall not be affected by humidity, dust, electromagnetic interference, smoke, or food substance when used in accordance with the manufacturer's instructions.

15. The remote alcohol monitoring device shall be set up with a means to confirm the location and presence of alcohol in an offender. If a remote alcohol monitoring device is equipped with global positioning system (GPS) capabilities, GPS coordinates are not to be shared by the manufacturer unless required by court order, subpoena, or law.

16. The remote alcohol monitoring device shall have a set point equivalent to 0.02g/210 liters of breath unless otherwise approved by the commission.

17. The testing window shall be 30 minutes unless otherwise approved by the commission.

18. Remote alcohol monitoring devices that are not continuously attached to the offender to confirm identity shall be equipped with an internal camera to provide evidence that the offender is the individual providing breath samples into the device as required by law or court order.

19. The remote alcohol monitoring device shall prompt for a subsequent breath or transdermal test 30 minutes after any reading above the set point. If the subsequent test records any BAC level, or is refused, a confirmed alcohol violation will be reported to the ASAP by the manufacturer or the manufacturer's service provider in a manner specified by the commission, unless the manufacturer has its own alcohol violation confirmation process. In situations where a manufacturer has its own alcohol violation confirmation process, the manufacturer may use its process as an alternative standard to report an alcohol violation if approved by the commission.

20. Prompted remote alcohol monitoring device tests that are not provided within the testing window shall be reported as a confirmed alcohol violation to the ASAP by the manufacturer or the manufacturer's service provider in a manner specified by the commission.

21. In the event the remote alcohol monitoring device battery level falls below 20%, the device shall prompt the offender to connect to a power supply. A low battery condition under 20% of capacity and connecting or disconnecting the device from a constant power supply shall be uniquely recorded in the device's memory.

22. Remote alcohol monitoring devices shall have calibration stability of at least six months.

23. Remote alcohol monitoring devices shall be produced by a manufacturer that maintains certification to the current International Organization for Standardization (ISO) 9001 Quality Management Systems for aspects related to the design, maintenance, and distribution of the device. Documentation demonstrating compliance with this requirement shall be submitted to the commission by the manufacturer on an annual basis.

E. All remote alcohol monitoring devices that have been approved by the commission shall have affixed a warning label with the following language: "Any person tampering with or attempting to circumvent this remote alcohol monitoring system shall be guilty of a Class 1 misdemeanor and, upon conviction, be subject to a fine or incarceration or both." Remote alcohol monitoring devices may be equipped with a GPS. If a remote alcohol monitoring device is equipped with a GPS, the following additional language is required in bold on the warning label: "Please note that this remote alcohol monitoring device is equipped with a functioning GPS." The cost and supply of the warning labels to be affixed to the remote alcohol monitoring devices shall be borne by the manufacturer or service provider. The manufacturer or service provider shall submit to the commission a prototype of the warning label for approval.

F. Additional technical specifications for the operation and installation of the remote alcohol monitoring device may be described in the contract between the commission and the manufacturer.

G. The manufacturer shall notify the commission in writing if the approval or certification of a device that is approved, or has been submitted for approval for use in Virginia, is or ever has been denied, withdrawn, suspended, or revoked in another state, whether the action occurred before or after approval in Virginia. This notification shall be made in a timely manner, not to exceed 15 days after the manufacturer has received notice of the denial, withdrawal, suspension, or revocation of approval or certification of the device, whether or not the action will or has been appealed.

24VAC35-70-60. Fees.

A. All potential manufacturers desiring to conduct business in the Commonwealth of Virginia's remote alcohol monitoring program shall submit a $250 nonrefundable application fee to the commission.

B. The following additional fees shall be paid by the manufacturer to the commission:

1. A $250 annual contract review fee;

2. A $50 annual review fee for each remote alcohol monitoring service location;

3. A $30 monthly remote alcohol monitoring administrative fee for each offender. The fee shall be accompanied by an associated offender list, categorized by ASAP, supporting the payment amounts. The ASAP offender list and payment shall be submitted no later than the 10th day of the month following the month when the remote alcohol monitoring services were provided;

4. A $250 retest fee each and every time a service provider employee is required to take a second or subsequent Virginia Remote Alcohol Monitoring Certification Exam due to an unsuccessful attempt on the first exam; and

5. A $250 remote alcohol monitoring device certification fee for any new device proposed for use in the Commonwealth.

C. Service providers may charge offenders for remote alcohol monitoring services at rates up to, but not to exceed, the following:

1. $80 for a standard remote alcohol monitoring device orientation;

2. $330 plus applicable taxes per month for remote alcohol monitoring device calibrations and monitoring, inclusive of the monthly administrative fees to be paid to the commission;

3. $10 per month for optional insurance to cover theft or accidental damage to the remote alcohol monitoring device and its components;

4. An amount of 10% over the actual replacement cost of the remote alcohol monitoring device and its components when theft or accidental damage occurs and the offender has not purchased the optional insurance;

5. $50 plus mileage calculated at the Commonwealth of Virginia mileage rate in effect at the time, not to exceed 100 miles, for service calls;

6. $35 for missed appointments; and

7. An amount permitted by the Code of Virginia at the time for returned checks.

D. All manufacturers or their service providers shall create and maintain an indigency fund for offenders who are eligible for a reduction in fees based upon a declaration of indigency by the court and approval by the commission. No manufacturer or manufacturer's service provider shall deny service to any offender for whom there has been a declaration of indigency by the court and approval by the commission.

24VAC35-70-70. Suspension or revocation of remote alcohol monitoring devices or service facility certification.

A. The commission may indefinitely suspend or revoke certification of a remote alcohol monitoring device or service facility. The Executive Finance Committee, for a period not to exceed 30 days, may suspend or revoke certification of a remote alcohol monitoring device or service facility for the following reasons:

1. When there is a voluntary request by a manufacturer to cancel certification of a device;

2. When a device is discontinued by the manufacturer;

3. When the manufacturer's liability insurance is terminated or canceled, or in cases where the service provider is responsible for the liability insurance, the insurance is canceled and not remedied by the manufacturer within three business days;

4. When a manufacturer or a manufacturer's service provider attempts to conceal its true ownership;

5. When materially false or inaccurate information is provided relating to a device's performance standards by the manufacturer;

6. When there are defects in design, materials, or workmanship causing repeated failures of a device;

7. When a manufacturer or a manufacturer's service provider knowingly permits nonqualified employees to perform work;

8. When a manufacturer or a manufacturer's service provider assists users with circumventing or tampering with a device;

9. When a manufacturer fails to fully correct an identified remote alcohol monitoring facility noncompliance issue within the timeframe required by the Code of Virginia, the provisions of this chapter, or a remote alcohol monitoring manufacturer contract;

10. When there is a pattern of identified remote alcohol monitoring facility noncompliance issues;

11. When a manufacturer or a manufacturer's service provider impedes, interrupts, disrupts, or negatively impacts an investigation conducted by the commission involving customer service issues or other complaint brought forward by a third party;

12. When there is an identified public safety or offender confidentiality issue at a remote alcohol monitoring service facility; or

13. When a manufacturer fails to maintain annual certification with the International Organization for Standardization (ISO) 9001 Quality Management System (QMS) for aspects related to design, maintenance, and distribution of a remote alcohol monitoring device.

B. If a suspension or revocation of a remote alcohol monitoring device or service facility certification occurs, the manufacturer may request judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Should a revocation of certification be upheld, the manufacturer whose device has been revoked (i) shall be responsible for removal of all devices installed and serviced by the manufacturer's service providers that are subject to the revocation and (ii) will bear the costs associated with the required removal and installation of new approved devices. In addition, the manufacturer whose device or facility is subject to the revocation shall continue to provide services for these ASAP offenders for a time to be determined by the commission, but no longer than 90 days.

C. When the certification of a remote alcohol monitoring device or remote alcohol monitoring service facility is suspended or revoked, manufacturers shall continue to make sure services are provided for ASAP offenders; however, no new remote alcohol monitoring installations shall be permitted during the period of suspension.

D. If a manufacturer or a manufacturer's service provider terminates the contract or goes out of business, the manufacturer shall be responsible for removal of all of its devices operational in the Commonwealth and shall bear the costs associated with required offender transfers to new approved devices. In addition, if a manufacturer or a manufacturer's service provider terminates the contract or goes out of business, a manufacturer or manufacturer's service provider shall continue to provide services for 90 days after notification to the commission that services will be terminated in Virginia.

24VAC35-70-80. Remote alcohol monitoring device orientation.

A. No offender who has a court order pursuant to § 18.2-270.1 of the Code of Virginia shall use a remote alcohol monitoring device in Virginia unless enrolled in and monitored by the ASAP. Prior to providing offender orientation of the device, the service provider shall first receive written or electronic authorization from the ASAP for the particular offender. This section also applies to out-of-state offenders who have a Virginia court-ordered remote alcohol monitoring requirement. This enables the commission to maintain consistency in policy and use of remote alcohol monitoring devices in the Commonwealth of Virginia and allows for a consistent pattern of instruction to the manufacturer's service providers.

B. The remote monitoring device shall have orientation provided by a commission-approved service provider within 30 days of the date of the court order; if not, the service provider shall notify the ASAP. Once orientation has occurred, the service provider shall notify the ASAP via a method established by the commission, documenting that the remote alcohol monitoring device orientation has been completed.

C. All agreements between the service provider and the offender shall be in the form of a contract and signed by the service provider and the offender. Copies of the contract shall be retained by the service provider in a manner that complies with federal confidentiality guidelines, with a copy given to the offender.

D. Prior to orientation of the remote alcohol monitoring device, offenders shall provide to the service provider:

1. Photo identification; and

2. Written authorization from the commission when the air volume requirement, blow pressure, or anti-circumvention features of the remote alcohol monitoring device are to be lowered or disabled in order to compensate for an offender's diminished lung capacity, when applicable.

E. A training video for remote alcohol monitoring devices shall be developed and delivered by the service provider to the offender, including information on the use and maintenance of the device as well as procedures for regular and emergency servicing. A remote alcohol monitoring demonstration unit shall be made available to an offender at the offender's orientation appointment for training and practice purposes.

F. Prior to attaching a transdermal unit to an offender, the offender must be breath tested using a remote alcohol monitoring device certified by the commission for use in Virginia to confirm the offender has no BAC level. If during the orientation and demonstration of the remote alcohol monitoring device, the offender provides a positive BAC, the ASAP shall be notified.

G. The service provider shall maintain a toll-free 24-hour emergency telephone service that may be used to request assistance in the event of failure of the remote alcohol monitoring device. The assistance provided by the authorized service provider shall include technical information. The remote alcohol monitoring device shall be made functional within 48 hours of the call for assistance or the remote alcohol monitoring device shall be replaced.

H. At the time of device orientation, a service provider may charge an orientation fee. The maximum permissible cost for orientation of the device shall be set by the commission, and service providers shall not be permitted to exceed the maximum fee established by the commission. A portion of these fees shall include costs for offender indigency funds. In addition to the maximum fee permitted, service providers may collect applicable taxes and charge for optional insurance to cover device theft or accidental damage. Optional insurance may be offered by the service provider, and a written copy of the insurance policy stating clearly the applicable coverages, coverage amounts, conditions, and exclusions shall be given to offenders who purchase the insurance.

I. The manufacturer or manufacturer's service providers shall provide service to those offenders who are eligible for a reduction in fees based upon a declaration of indigence by the court and approval by the commission.

J. A remote alcohol monitoring device installed and assigned to one offender shall not be assigned simultaneously to any additional offender for the purpose of attempting to comply with a court-ordered Virginia remote alcohol monitoring requirement.

K. Remote alcohol monitoring services provided by one service provider for an individual offender shall not be transferred to another remote alcohol monitoring service provider without written permission from the commission. If the offender's reason to transfer to another remote alcohol monitoring service provider is based upon a malfunctioning remote alcohol monitoring device or legitimate customer service issue, the commission shall not unreasonably deny permission.

L. Remote alcohol monitoring test times shall be set by the court of jurisdiction. In the absence of recommended time settings by the court of jurisdiction, default test times shall be set by the commission.

24VAC35-70-90. Calibration and monitoring.

A. Only calibration units found on the current National Highway Traffic Safety Administration's Conforming Products List of Calibrating Units for Breath Alcohol Testers and certified by the commission shall be used by manufacturers or their service providers to calibrate remote alcohol monitoring devices.

B. The manufacturer or the manufacturer's service provider shall:

1. Provide calibration and monitoring of the remote alcohol monitoring device at least every 30 days. If the device self-system check during calibration indicates a potential inaccuracy issue, the manufacturer or service provider shall:

a. Check the remote alcohol monitoring device for accuracy using a dry gas reference sample. Only units currently on the National Highway Traffic Safety Administration's Conforming Products List (CPL) or those subsequently tested and approved for inclusion in the next CPL publication may be used. Dry gas reference values shall be adjusted in a manner approved by the commission;

b. Check the remote alcohol monitoring device for accuracy by using a dry gas alcohol standard with an alcohol reference value between 0.030 and 0.050 g/210L;

c. Expel a three-second purge of the remote alcohol monitoring device prior to introducing the alcohol reference sample into the device. This is not required if there is less than three inches of tubing from the dry gas dispenser to the device;

d. Perform an accuracy check that will consist of two consecutive reference checks with the result of each individual check being within plus or minus 10% or 0.003, whichever is greater, of the alcohol reference value introduced into the remote alcohol monitoring device. The time period between the first and second consecutive accuracy checks shall not exceed five minutes; and

e. Store dry gas alcohol standard tanks in a manner consistent with the gas manufacturer's specifications. The dry gas tanks shall have a label attached that contains the components and concentration of the reference value of the gas, an expiration date that shall not be longer than three years from the date of preparation, and the lot or batch number. Dry gas alcohol standards must be certified to a known reference value and be traceable to the National Institute of Standards and Technology. The reference value shall be adjusted for changes in elevation and pressure. Manufacturers or their service providers shall possess a certificate of analysis from the dry gas standard manufacturer. Dry gas tanks shall be secured in a manner as to prevent harm to the public;

2. Retrieve data from the remote alcohol monitoring device data log for the previous period and electronically submit alcohol-related violations to the ASAP within 24 hours of retrieval;

3. Check the remote alcohol monitoring device for signs of circumvention or tampering if suspicious activity has been indicated to the service provider and electronically report violations to ASAP within the required timeframe established by the commission;

4. Collect the monthly monitoring fee from the offender. If an offender who has not been declared to be indigent by the court is one or more months delinquent in payments, the service provider may, in its discretion, refuse to provide services but shall not retrieve the remote alcohol monitoring device without authorization from the commission. Offenders with an outstanding balance in excess of $250 with any Virginia-approved remote alcohol monitoring device service provider shall not be permitted to install a remote alcohol monitoring device with another remote alcohol monitoring service provider unless otherwise approved by the commission; and

5. Conform to other calibration requirements established by the commission, as applicable.

C. All malfunctions other than routine maintenance of the remote alcohol monitoring device shall be either repaired or replaced by the manufacturer within two business days at no additional expense to the offender. If it is shown that the malfunction is due to damage to the device as a result of mistreatment or improper use, the offender shall be responsible for applicable repair or replacement fees. Routine maintenance of the device may be performed by the service provider.

D. The remote alcohol monitoring device shall record, at a minimum, the following data:

1. The time and date of all breath or transdermal tests;

2. The breath or transdermal alcohol level of all tests;

3. The time and date of attempts to tamper or circumvent the remote alcohol monitoring device;

4. For a unit that uses a breath sample, a photo of each person delivering an accepted breath test sample for analysis by the remote alcohol monitoring device; and

5. A reference photo of the offender.

E. A service provider may charge a monthly monitoring fee. The maximum permissible cost for monitoring and calibration shall be set by the commission through the remote alcohol monitoring regulations, and service providers shall not be permitted to exceed the maximum fee established by the commission. A portion of these fees shall include costs for administrative support and offender indigency funds. In addition to the maximum fee permitted, service providers may collect applicable taxes and charge for optional insurance to cover device theft and accidental damage. Fees for the first monthly monitoring and calibration visit will be collected from the user in advance at the time of installation and monthly thereafter when services are rendered.

24VAC35-70-100. Remote alcohol monitoring device retrieval.

A. Prior to retrieval of the remote alcohol monitoring device, the service provider must receive written or electronic authorization from the ASAP. This requirement also applies to offenders with a court-ordered Virginia remote alcohol monitoring requirement who are receiving services from a service provider in another state.

B. Offenders may not have their remote alcohol monitoring device retrieved or replaced by another manufacturer without written or electronic authorization from the commission. Whenever retrieval of a remote alcohol monitoring device is approved by the commission for the purpose of changing service providers, and the authorized retrieval is a result of a determination that the initial service provider failed to provide a level of service meeting contract requirements, the remote alcohol monitoring regulations, or the Code of Virginia, the original service provider shall bear the costs associated with orientation of the device by the new service provider.

C. Once the remote alcohol monitoring device has been retrieved, the service provider shall send an authorized report to the ASAP via a method established by the commission documenting that the remote alcohol monitoring device has been retrieved by the service provider.

D. No fee shall be charged to the offender for retrieval of the remote alcohol monitoring device.

24VAC35-70-110. Records and reporting.

A. The service provider shall be subject to announced or unannounced site reviews by the commission for the purpose of inspecting the facilities and offender records. Upon request, access to all service provider locations, records, and financial information shall be provided to the commission for the purpose of verifying compliance with state laws, commission regulations, and service provider agreements.

B. In accordance with federal confidentiality guidelines, all personal and medical information provided to the service provider regarding offenders shall be kept confidential. If the information is temporarily held at the offender's service center, it shall be stored in a locked filing cabinet when unattended by a service provider employee.

C. After providing orientation for a remote alcohol monitoring device, the service provider shall provide the ASAP, within 24 hours, an orientation report that includes:

1. The name, address, and telephone number of the offender; and

2. The serial number of the offender's remote alcohol monitoring device.

D. After performing a monitoring and calibration check, the service provider shall submit to the ASAP, within 24 hours, all data generated, to include:

1. Name of the offender whose device was monitored;

2. Name, address, and telephone number of the monitoring official;

3. Date of monitoring and calibration;

4. Make, model, and serial number of the remote alcohol monitoring device;

5. Attempts to alter, tamper, circumvent, bypass, or otherwise remove the device;

6. Noncompliance with conditions of the ASAP or remote alcohol monitoring program;

7. Offender concerns;

8. Charges incurred for the monitoring visit;

9. Date of the next scheduled monitoring visit;

10. For devices that use a breath sample, a photo of each person who has delivered an accepted breath test sample or missed a retest on the remote alcohol monitoring device;

11. A reference photo of the offender; and

12. All identified alcohol-related violations.

E. In addition, the service provider shall have available monthly reports detailing:

1. Device orientations during the period covered;

2. Calibrations performed during the period by date and offender name, detailing any unit replacements made during the monitoring period;

3. Datalogger information from all remote alcohol monitoring devices;

4. Attempts to alter, tamper, circumvent, bypass, or otherwise remove the device;

5. Device failure due to material defect or improper device set up; and

6. A summary of complaints received and corrective action taken.

F. The manufacturer or the manufacturer's service provider shall be responsible for purchasing and providing necessary computer hardware and software to convey all data and information requested by the commission if the equipment is not already present at the commission office or the ASAP.

G. Accurate reports shall be submitted to the ASAP in the format specified by the commission.

H. The service provider shall provide a copy of the most recent "ASAP Remote Alcohol Monitoring Agreement" to each offender at each offender's remote alcohol monitoring installation appointment and shall require the offender to read and sign the agreement.

24VAC35-70-120. General manufacturer requirements.

Remote alcohol monitoring manufacturers that are approved to perform remote alcohol monitoring services in the Commonwealth of Virginia and their service providers shall:

1. Abide by all commission memorandums, directives, contract terms, and regulations pertaining to the statewide remote alcohol monitoring program unless prohibited by state law;

2. Resolve offender, court, Department of Motor Vehicles, ASAP, commission, and other stakeholder complaints as directed by the commission;

3. Provide orientation for all ASAP remote alcohol monitoring device authorizations within the time parameters set forth by the commission. In situations where a remote alcohol monitoring service facility becomes inoperable due to a large-scale weather event or other verified unforeseen circumstances, the manufacturer shall contact the commission within 24 hours with an action plan to mitigate the impact to customer service;

4. Resolve remote alcohol monitoring service facility compliance issues as directed by the commission;

5. Obtain approval from the commission before disseminating any offender training or advertising materials used in association with the Virginia remote alcohol monitoring program;

6. Make modifications to the company website of the manufacturer or the manufacturer's service provider that is used to review monthly calibration reports upon reasonable request by the commission. Reasonable requests include changes due to language that is confusing, misleading, offensive, or inaccurate; changes required due to updated technology; changes to comply with the Code of Virginia or the remote alcohol monitoring regulations; or changes due to workload changes or product enhancements;

7. Assume full liability for action taken or not taken by an ASAP or the commission due to failure by a manufacturer or a manufacturer's service provider to report an alcohol-related violation to the local ASAP as required by this chapter or due to inaccurate or misleading reporting, whether electronic or hard copy, provided by the manufacturer or the manufacturer's service provider;

8. Be accountable for Virginia offenders with remote alcohol monitoring devices set up for use by its company in another state and ensure that all Virginia remote alcohol monitoring processes, regulations, requests for proposal terms, contract terms, and commission requirements are met unless prohibited by state law;

9. Notify the commission within 15 days of disciplinary action received from a state where the manufacturer conducts or has conducted remote alcohol monitoring business. This notification shall include the reason for the disciplinary action. This requirement applies regardless of the existence of an appeal;

10. Provide information technology assistance and training upon reasonable request by the commission; and

11. Report all changes to the remote alcohol monitoring device software or firmware, whether temporary or permanent, to the commission within 30 days of release in the Commonwealth of Virginia.

24VAC35-70-130. Service provider technician certification.

A. Service provider technicians and state directors are required to possess a Virginia Remote Alcohol Monitoring Certification Letter to perform any remote alcohol monitoring services in the Commonwealth of Virginia. Newly hired service provider technicians or state directors, however, may perform remote alcohol monitoring services under the direct supervision of a certified technician or state director for training purposes for up to 90 days prior to obtaining a Virginia Remote Alcohol Monitoring Certification Letter. In order to apply for a certification letter, manufacturers shall submit a completed application to the commission for approval of newly hired service provider technicians and state directors. The completed application shall include submission of:

1. A completed applicant form provided by the commission;

2. A complete local and national criminal history check;

3. A complete driver's record; and

4. Documentation issued by the commission of successful completion of the Virginia Remote Alcohol Monitoring Device Certification Exam.

Failure to submit a completed application will result in disqualification from consideration for a Virginia Remote Alcohol Monitoring Certification Letter by the commission to perform remote alcohol monitoring services in the Commonwealth of Virginia.

B. Applicants shall be required to complete a Virginia Remote Alcohol Monitoring Certification Exam. Successful completion of the exam requires a score of 80% or higher. Applicants who fail to successfully complete the state certification exam on the first attempt shall be allowed a second opportunity to successfully complete the exam. Applicants who fail to successfully complete the state certification exam on the second attempt shall not be allowed to reapply to provide remote alcohol monitoring services for the Commonwealth of Virginia for six months from the date of the second failed exam. Service providers shall be required to pay an administrative fee, as provided in 24VAC35-70-60 B 4, to the commission for all second and subsequent attempts to successfully complete the state certification exam. Applicants who successfully pass the state certification exam will receive documentation of successful completion from the commission that shall be submitted with the application for the Virginia Remote Alcohol Monitoring Certification Letter to perform remote alcohol monitoring services in the Commonwealth of Virginia.

C. The commission may deny, revoke, suspend, or terminate a Virginia Remote Alcohol Monitoring Certification Letter for a service provider technician or state director for any of the following reasons:

1. Having been convicted of a felony;

2. Having been convicted of a misdemeanor potentially punishable by confinement;

3. Committing an unethical, deceptive, or dishonest act that negatively impacts the integrity of the remote alcohol monitoring program;

4. Failing to demonstrate sufficient knowledge or skill required to perform remote alcohol monitoring services in the Commonwealth of Virginia;

5. Material misstatement or omission in an application; or

6. Defrauding any offender, manufacturer, service provider, or other person or entity in the conduct of the licensee's business.

A service provider technician or state director whose Virginia Remote Alcohol Monitoring Certification Letter has been denied, revoked, suspended or terminated may request judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-400 et seq. of the Code of Virginia). In the event that the decision to suspend or revoke the Virginia Remote Alcohol Monitoring Certification Letter of a service provider's technician or state director is upheld, the service provider technician or state director shall not perform remote alcohol monitoring services in the Commonwealth of Virginia for the entire suspension period, or in the case of a revocation or termination, on a permanent basis. This prohibition includes any period during which the denial, suspension, revocation, or termination is being contested. The manufacturer is required to return the Virginia Remote Alcohol Monitoring Certification Letter to the commission within 15 days of the date that the certification was suspended, revoked, or terminated by the commission.

D. Once the completed application has been approved by the commission and all other qualifications have been met by the applicant, a Virginia Remote Alcohol Monitoring Certification Letter to perform remote alcohol monitoring services in the Commonwealth of Virginia shall be issued to the applicant by the commission. The certification letter shall contain the effective date of the letter and a certification number specific to the applicant. The certification letter will be valid for a time period specified by the commission unless otherwise suspended, revoked, or terminated, but for no longer than the manufacturer contract end date. In the event that an applicant is not approved for a Virginia Remote Alcohol Monitoring Certification Letter to perform remote alcohol monitoring services in the Commonwealth of Virginia, the commission will notify the manufacturer in writing within 10 days of the determination. The Virginia Remote Alcohol Monitoring Certification Letter is subject to review by the commission at its discretion during the course of the certification period.

E. An application to renew a Virginia Remote Alcohol Monitoring Certification Letter for a remote alcohol monitoring service provider technician or state director shall be submitted 30 days prior to the expiration date printed on the current certification letter. A service provider technician or state director who has had his state certification revoked or terminated shall be ineligible to reapply for a Virginia Remote Alcohol Monitoring Certification Letter unless otherwise approved by the commission.

F. Manufacturers are required to surrender Virginia Remote Alcohol Monitoring Certification Letters for service provider technicians and state directors who are no longer employed with their company. The surrendered certification letter shall be sent to the commission within 15 days of the date that the service provider technician or state director is no longer employed with the service provider or manufacturer.

G. In addition to the successful completion of the Virginia Remote Alcohol Monitoring Certification Exam required for application, the commission may order that a certified technician or state director already performing remote alcohol monitoring services in the Commonwealth of Virginia review requirements and retake the state certification exam to demonstrate that the technician or state director possesses the knowledge required to perform remote alcohol monitoring services. An exam retake fee is not applicable in this circumstance.

24VAC35-70-140. Emergency declarations.

The commission reserves the right to suspend service-related requirements of this chapter in applicable geographical areas when there exists a federal or state disaster or declaration of emergency.