Title of Regulation: 24VAC20-50. Rules and Regulations for Motorcycle Rider Safety Training Center Program (repealing 24VAC20-50-10 through 24VAC20-50-80).

Statutory Authority: § 46.2-1189 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 25, 2013.

Effective Date: October 11, 2013.

Agency Contact: Barbara S. Klotz, Legislative Services Manager, Department of Motor Vehicles, P.O. Box 27412, Richmond, Virginia 23269-0001, telephone (804) 367-8171, FAX (804) 367-6631, TTY (800) 272-9268, or email barbara.klotz@dmv.virginia.gov.

Basis: Section 46.2-203 of the Code of Virginia provides the Department of Motor Vehicles (DMV) with general statutory authority for promulgating regulations necessary to carry out the laws administered by the department. Section 46.2-1189 of the Code of Virginia allows DMV to do all things necessary to carry out the purposes of Motorcycle Rider Safety, Article 23 (§ 46.2-1188 et seq.) of Title 46.2 of the Code of Virginia. In both cases, the rulemaking authority is discretionary. The Office of the Attorney General has certified that the agency has the statutory authority to repeal 24VAC20-50 (Rules and Regulations for Motorcycle Rider Safety Training Center Program). It should be noted that the specific rulemaking authority DMV previously had in § 46.2-1189 of the Code of Virginia was removed effective January 1, 2005.

Purpose: The motorcycle rider safety training course is a program of instruction in the operation of motorcycles and the rules of the road. Chapter 734 of the 2004 Acts of Assembly enhanced the overall program and made the current regulations redundant, eliminating the need for these regulations and thereby necessitating their repeal. Chapter 226 of the 2013 Acts of Assembly eliminated any agency discretion that DMV had in implementation of the statutory requirements for the motorcycle rider safety training course program. Repealing these regulations allows DMV to better protect the health, safety, and welfare of the citizens of the Commonwealth, in general, and motorcyclists in particular. Through the use of the statutory requirements for licensing and providing course training, DMV can more easily administer the purpose and applicability of the statutes governing these courses. Likewise, the statutory licensing requirements provide a more appropriate vehicle for overseeing the motorcycle riding courses and course providers. The flexibility and effectiveness of this approach means better course oversight and training. Better course oversight and training translates into safer motorcyclists on the highways of the Commonwealth, which is good for motorcyclists and good for drivers of other types of vehicles. No specific issues should need to be addressed since the repeal of these regulations and the use of the statutory enhancements to the program were endorsed by most, if not all, course providers.

Rationale for Using Fast-Track Process: The fast-track process is being used due to the noncontroversial nature of the proposed repeal action. The regulatory requirements have been incorporated into the Code of Virginia, and recent legislation removes agency discretion.

Substance: There are no new substantive provisions or substantive changes to the regulations because they are being repealed in their entirety.

Issues: There are no real issues associated with the repeal of these regulations because this action will help clarify the statutory changes that became effective on January 1, 2005. The key elements of these regulations were incorporated into statute in 2004, making the regulations unnecessary. It is advantageous to repeal unnecessary regulations to eliminate any possible confusion between the statutes and regulations. There are no disadvantages to the public or the Commonwealth. DMV is seeking the repeal for the following reasons:

1. Chapter 734 of the 2004 Acts of Assembly removed the language in § 46.2-1189 of the Code of Virginia that authorized DMV to promulgate regulations to control the motorcycle rider safety program.

2. DMV wants to repeal the regulations because the General Assembly transitioned the motorcycle rider training program from one in which DMV entered into contracts with training centers to one in which DMV issued licenses to operate training centers.

3. Much of the substance of the regulations is codified as §§ 46.2-1190, 46.2-1190.1, 46.2-1190.2, 46.2-1190.3, and 46.2-1190.4 of the Code of Virginia, leaving the regulations duplicative and sometimes inconsistent with statute. For example, the regulations require a training center to provide a motorcycle for beginner riders that displaces no more than 350 cubic centimeters; the statute institutes a 500 cubic centimeters maximum.

4. Since 2005 the number of training centers has increased from 18 to 36. DMV currently oversees the 36 training centers that train about 16,000 students.

5. As part of the Governor's Regulatory Reform Initiative, DMV proposed legislation removing all requirements for licensure and certification from DMV's discretion. That legislation, Chapter 226 of the 2013 Acts of Assembly, became effective July 1, 2013.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Commissioner of the Department of Motor Vehicles (Department) proposes to repeal these regulations.

Result of Analysis. For the most part, the proposed repeal of these regulations will have no significant impact. The repeal of curricula requirements in regulation is: 1) potentially advantageous in that it will enable the Department to more quickly change such requirements when deemed necessary, and 2) potentially disadvantageous in that it would likely involve less public participation in policy formation and less outside analysis that could perhaps detect unintended consequences.

Estimated Economic Impact. Prior to the 2013 General Assembly, the Code of Virginia (Code) gave the Department broad discretion to add additional requirements beyond those specified in the Code. For example, § 46.2-1190 E of the Code of Virginia stated that "Training centers shall ensure that instructors maintain the minimum qualifications and meet any other instructor requirements established in this article or otherwise established by the Department." Chapter 226 of the 2013 Acts of Assembly removed explicit statements indicating that the Department may add additional requirements. Further, most of the provisions of these regulations are also specifically addressed in the Code. Thus, the proposed repeal of these regulations may not have much impact.

One exception concerning discretion for requirements outside of the Code is curricula. The Code specifies that the Department shall approve the curricula used by training centers; and for the most part the Code does not address necessary attributes of the curricula. The current regulations specify approved curricula. For example, for experienced rider training the regulations state that "The curriculum used to train experienced riders shall be the most current version of the Better Biking Program (BBP) developed by the MSF, or DMV-approved equivalent."

Repealing the regulations would remove the specification of approved curricula from the law. The Department keeps the specification of approved curricula in guidance documents that are available to the public. Having curricula requirements in guidance documents rather than regulations is advantageous in one respect, but disadvantageous in another.

If the Department determines that the curricula requirements should be changed, such changes can essentially be implemented immediately when the requirements are in guidance documents but not regulations. If the change in curricula requirements creates a net benefit for the public, the beneficial change can be implemented sooner than if the requirements were in regulation. It takes months to change regulations since the rules of the Administrative Process Act must be followed. On the other hand, following the requirements of the Administrative Process Act does provide value in that it provides for significant public participation and reduces the probability of policy with unintended consequences being implemented due to the increased analysis of the policy change by more interested parties and analysts.

Businesses and Entities Affected. According to the Department, there are 36 motorcycle rider training centers that train about 16,000 students in the Commonwealth.

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

Projected Impact on Employment. The proposal repeal will most likely not significantly affect employment.

Effects on the Use and Value of Private Property. Initially at least, the proposed repeal is unlikely to significantly affect the use and value of private property. In the long run, the reduced public participation and outside analysis in policy development may result in different and perhaps more frequent changes in curricula requirements for private motorcycle rider safety training centers.

Small Businesses: Costs and Other Effects. Initially at least, the proposed repeal is unlikely to significantly affect small businesses. In the long run, the reduced public participation of small businesses and outside analysis in policy development may result in different and perhaps more frequent changes in curricula requirements for small private motorcycle rider safety training centers.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Retaining the approved curricula in regulation would help assure small businesses ability to participate in curricula policy development.

Real Estate Development Costs. The proposed repeal is unlikely to affect real estate development costs.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: Section 46.2-1190.1 of the Code of Virginia requires motorcycle training schools to use curricula approved by the Department of Motor Vehicles (DMV). It is not necessary, however, to maintain regulations to specify such approved curricula. No law requires approval via the regulatory process, and DMV already has an official policy and guidance document detailing approved curricula. The approved curricula comply with Code of Virginia requirements.

For motorcycle training, DMV has issued an official policy and guidance document entitled the "Virginia Rider Training Program Policy and Procedures" that may be found on DMV's web page at http://www.dmv.state.va.us/webdoc/pdf/dmv226.pdf. This document provides the approved curricula for the basic rider, experienced rider, and sidecar and three-wheeled rider programs. The current DMV-approved curriculum for basic rider training is the Motorcycle Safety Foundation's Basic Rider Course. The current DMV-approved curriculum for experienced rider training is the Motorcycle Safety Foundation's Experienced Rider Suite. The current DMV-approved curriculum for sidecar and three-wheeled motorcycle rider training is the Evergreen Safety Council's Sidecar/Trike Training Course (basic and advanced).

The analysis of the Department of Planning and Budget (DPB) has expressed concern that there will be little public participation and small business participation in policy development if curricula are removed from the regulations. DMV asserts that this concern is unwarranted. The curricula used by the 36 training centers that DMV currently oversees are curricula that reflect the current motor vehicle safety laws. Anytime motor vehicle safety laws change resulting in a need to incorporate the changes into the curricula, DMV works extensively with stakeholders and law enforcement in determining the need for changes and the impact on the motorcycling community as well as the general public. The motorcycling organizations, the training centers representing small businesses, and all other stakeholders have the opportunity to communicate with DMV as well as participate in the legislative process to express preferences and concerns regarding changes in the motor vehicle safety laws that ultimately are reflected in the motorcycle training curricula. The public and small business participation DPB alludes to occurs during the robust process available to shape the motor vehicle safety laws that the curricula covers. This is part of DMV's continuous commitment to receiving stakeholder input and feedback.

Summary:

Pursuant to Chapter 734 of the 2004 Acts of Assembly and Chapter 226 of the 2013 Acts of Assembly, which statutorily provided for motorcycle training centers, this action repeals 24VAC20-50 (Rules and Regulations for Motorcycle Rider Safety Training Center Program) as part of the Governor's Regulatory Reform Initiative.