TITLE 19. PUBLIC SAFETY

DEPARTMENT OF FIRE PROGRAMS

Fast-Track Regulation

Title of Regulation: 19VAC15-11. Public Participation Guidelines (amending 19VAC15-11-10, 19VAC15-11-20, 19VAC15-11-50).

Statutory Authority: §§ 2.2-4007.02 and 9.1-203 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 14, 2024.

Effective Date: February 25, 2024.

Agency Contact: Spencer Willett, Government Affairs Manager, Department of Fire Programs, 1005 Technology Park Drive, Glen Allen, VA 23059, telephone (804) 249-1966, or email spencer.willett@vdfp.virginia.gov.

Basis: Section 2.2-4007.02 of the Code of Virginia requires agencies to develop public participation guidelines if they possess regulatory authority. The Executive Director of the Department of Fire Programs has the authority to promulgate regulations related to reduced cigarette ignition propensity as found in § 9.1-215 of the Code of Virginia.

Purpose: The goal of this regulatory change is to correct the definition of "agency" found in 19VAC15 to the Department of Fire Programs. This will ensure compliance with § 2.2-4007.02 of the Code of Virginia, ensure that the public can participate in the future development of regulations, and remove an outdated reference to a board with no regulatory authority. The amendment also conforms the agency's public participation guidelines to the change in the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) made by Chapter 795 of the 2012 Acts of the Assembly.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial because it does not make any substantial changes to the regulation. This edit is technical, merely conforming the regulation to § 2.2-4007.02 of the Code of Virginia; therefore, the action is appropriate for the fast-track rulemaking process.

Substance: The general definitions do not impose regulatory requirements but provide support for the public participation guidelines section that require certain actions by the agency and members of the public when participating in regulatory activities. The amendments (i) remove "Virginia Fire Services Board" and replace it with "Department of Fire Programs"; and (ii) pursuant to Chapter 795 of the 2012 Acts of the Assembly, provide that interested persons submitting data, views, and arguments on a regulatory action may be accompanied by and represented by counsel or another representative.

Issues: There are no disadvantages to the public or the Commonwealth. The advantage of this technical edit to the public and the agency is that it will lead to greater opportunity for participation by members of the public.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Department Fire Programs (DFP) proposes to specify in this regulation that "An interested person may be accompanied by counsel or another representative when providing public comment to the agency." Additionally, the agency proposes to change "Virginia Fire Services Board" to "Department of Fire Programs" where the former currently appears in the regulation.

Background. Pursuant to Chapter 795 of the 2012 Acts of Assembly,² DFP proposes to specify in this regulation that "An interested person may be accompanied by counsel or another representative when providing public comment to the agency." Prior to Chapter 795, part B of Virginia Code § 2.2-4007.02 was as follows:

"B. In formulating any regulation, including but not limited to those in public assistance and social services programs, the agency pursuant to its public participation guidelines shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency, to include an on-line public comment forum on the Virginia Regulatory Town Hall, or other specially designated subordinate. However, the agency may begin drafting the proposed regulation prior to or during any opportunities it provides to the public to submit comments."

Chapter 795 amended this text to:³

"B. In formulating any regulation, including but not limited to those in public assistance and social services programs, the agency pursuant to its public participation guidelines shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency, to include an online public comment forum on the Virginia Regulatory Town Hall, or other specially designated subordinate and (ii) be accompanied by and represented by counsel or other representative. However, the agency may begin drafting the proposed regulation prior to or during any opportunities it provides to the public to submit comments."

The current regulation states that "The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Virginia Fire Services Board" and defines "Agency" as "the Virginia Fire Services Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases." Chapter 791 of the 1997 Acts of Assembly⁴ removed the Virginia Fire Services Board's regulatory authority. DFP, through its director, still has regulatory authority.⁵ Thus, DFP proposes to replace "Virginia Fire Services Board" with "Department of Fire Programs" where the former currently appears in the regulation.

Estimated Benefits and Costs. Since the Code of Virginia already specifies that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative, the DFP's proposal to add this language to the regulation would not change the law in effect, but would be beneficial in that it would inform interested parties who read this regulation but not the statute of their legal rights concerning representation.

19VAC15-11 Public Participation Guidelines pertains to the public's involvement in the development, amendment, or repeal of the regulations of the department. Correcting the name of the rulemaking authority improves clarity, but otherwise should not have substantive impact.

Businesses and Other Entities Affected. The proposed amendments potentially affect all individuals who comment on pending regulatory changes. Individuals who are interested in being accompanied by and represented by counsel or other representative, and were not previously aware of this right, would be particularly affected.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation. An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Since the proposed amendments do not introduce cost nor reduce revenue, no adverse impact is indicated.

Small Businesses⁶ Affected:⁷ The proposed amendments do not adversely affect small businesses.

Localities⁸ Affected.⁹ The proposed amendments neither disproportionately affect any particular locality, nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not substantively affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantively affect the use and value of private property. The proposed amendments do not affect real estate development costs.

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

² See http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0795+hil

³ Bold added for emphasis.

⁴ See https://lis.virginia.gov/cgi-bin/legp604.exe?971+ful+CHAP0791+hil

⁵ See https://law.lis.virginia.gov/vacode/title9.1/chapter2.1/section9.1-215/

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

⁷ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁸"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.

⁹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments (i) define "agency" as the "Department of Fire Programs" and (ii) pursuant to Chapter 795 of the 2012 Acts of the Assembly, provide that interested persons submitting data, views, and arguments on a regulatory action may be accompanied by and represented by counsel or another representative.

19VAC15-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment, or repeal of the regulations of the Virginia Fire Services Board Department of Fire Programs. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). 2.2-4000

19VAC15-11-20. Definitions.

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

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Virginia Fire Services Board Department of Fire Programs, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending, or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended, and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

19VAC15-11-50. Public comment.

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

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.