Title of Regulation: 1VAC20-10. Public Participation Guidelines (adding 1VAC20-10-10 through 1VAC20-10-130).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: July 19, 2010.

Agency Contact: James B. Alcorn, Deputy Secretary, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8944, or email james.alcorn@sbe.virginia.gov.

Summary:

The regulations provide procedures for the adoption of regulations based on model public participation guidelines issued by the Department of Planning and Budget. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

CHAPTER 10
PUBLIC PARTICIPATION GUIDELINES

1VAC20-10-10. 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 State Board of Elections.

"Approving authority" means the State Board of Elections established pursuant to § 24.2-103 of the Code of Virginia as the legal authority to adopt regulations.

"Board" means the State Board of Elections, which is the unit of state government empowered by Title 24.2 of the Code of Virginia to make rules and regulations for registration of voters and elections. Actions specified in this chapter may be fulfilled by state employees as delegated by the 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 of the board 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.

1VAC20-10-20. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

1VAC20-10-30. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 1VAC20-10-20, the agency shall send the following information:

1. A notice of proposed exempt regulatory action with the comment period for a proposed, a reproposed, or an emergency regulation; and

2. If available, hyperlinks to, or instructions on how to obtain, a copy of the proposed action and any supporting documents.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

1VAC20-10-40. Public comment.

A. Whenever directed by statute or upon its own initiative, the agency may commence the regulation adoption process and proceed to draft a proposal according to these procedures.

B. In considering any nonemergency, exempt regulatory action, the board shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; any economic impact analysis of the proposed 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.

C. 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 proposed exempt regulatory action.

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

3. To the extent reasonably possible following the publication of a proposed emergency regulation.

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

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

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

E. If the board finds that one or more changes with substantial impact have been made to a proposed regulation, it may allow an additional 30 calendar days to solicit additional public comment on the changes.

F. If practicable, the board shall send a draft of the board's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation.

1VAC20-10-50. Petition for rulemaking.

A. Any person may petition the board to consider a regulatory action.

B. A petition shall include sufficient information to understand and evaluate the proposed action and contact the person responsible for presenting it. The following is a noninclusive list of information typically needed to the extent available:

1. The petitioner's name, mailing address, email address, and telephone number;

2. The petitioner's interest in the proposed action;

3. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections;

4. Reference to the legal authority of the agency to take the action requested;

5. Statement of the need and justification for the proposed action;

6. Statement of the impact on the petitioner and other affected persons; and

7. Supporting documents, if applicable.

C. The agency shall receive, consider, and respond to a petition and shall have the sole authority to dispose of the petition. The board may require a petitioner to reimburse copying costs associated with a petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

1VAC20-10-60. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if the proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate.

1VAC20-10-70. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation; or

2. The agency determines that resolution of a controversy is unlikely.

1VAC20-10-80. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

1VAC20-10-90. Public hearings on regulations.

A. The board shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The board may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The Governor requests the board to hold a public hearing; or

2. The board receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of proposed regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The board shall also notify those persons who requested a hearing under subdivision C 2 of this section.

1VAC20-10-100. Effective date and posting to agency website.

Regulations adopted by the board shall be effective as of the date stated in the regulation, which may provide conditions, including preclearance required under the federal Voting Rights Act, and in no event before they are published in the Register of Regulations. All adopted regulations shall be posted to the agency website within three business days after they become effective.

1VAC20-10-110. Appeal of board decisions.

Any person aggrieved by an action of the board under this chapter may appeal to the House or Senate Privileges and Elections Committee or to the Joint Commission on Administrative Rules to make an objection as provided in § 2.2-4014 of the Code of Virginia.

1VAC20-10-120. Periodic review of regulations.

A. Following each presidential election, the board shall conduct a periodic review of its regulations consistent with an executive order issued by the Governor to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

1VAC20-10-130. Transition.

All regulatory actions shall be processed in accordance with this chapter. Policies of the board adopted or approved before July 19, 2010, shall be processed as regulations for publication in the Virginia Administrative Code.