TITLE 9. ENVIRONMENT
Title of Regulation: 9VAC25-11. Public Participation
Guidelines (amending 9VAC25-11-50).
Statutory Authority: §§ 2.2-4007.02 and 62.1-44.15
of the Code of Virginia.
Public Hearing Information: No public hearings are
scheduled.
Public Comment Deadline: October 18, 2017.
Effective Date: November 2, 2017.
Agency Contact: Melissa Porterfield, Department of
Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218,
telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.
Basis: Section 2.2-4007.02 of the Administrative Process
Act requires agencies to develop and adopt public participation guidelines to
solicit input from interested parties during the development of regulations.
The State Water Control Board previously adopted regulations concerning public
participation guidelines using the regulatory development process.
Purpose: State law requires the State Water Control
Board to adopt public participation guidelines to solicit input during the
development of regulations. Chapter 795 of the 2012 Acts of Assembly revised
§ 2.2-4007.02 B of the Code of Virginia to allow interested parties the
right to be accompanied by or represented by counsel during the formulation of
a regulation. Participation by the public in the regulatory process is
essential to assist the State Water Control Board in the promulgation of
regulations that will protect the public health and safety.
Rationale for Using Fast-Track Rulemaking Process: The
proposed amendments are expected to be noncontroversial and appropriate for
using the fast-track rulemaking process. The amendments to this regulation make
the regulations consistent with the Code of Virginia and the model public
participation guidelines developed by the Department of Planning and Budget.
Substance: The Code of Virginia allows interested
parties the right to be accompanied by or represented by counsel during the
formulation of a regulation. This language has been added to the regulation.
Issues: This regulatory change will benefit the public
and the agency. The regulatory change amends the regulation to be consistent
with the Code of Virginia. The regulatory change does not place any additional
requirements on the public or the agency; therefore, there are no disadvantages
to the public or the agency.
Department of Planning and Budget's Economic Impact
Analysis:
Summary of the Proposed Amendments to Regulation. Pursuant to
Chapter 795 of the 2012 Acts of Assembly,1 the State Water Control
Board (Board) proposes to specify in this regulation that interested persons
shall be afforded an opportunity to be accompanied by and represented by
counsel or other representative when submitting data, views, and arguments,
either orally or in writing, to the agency.
Result of Analysis. The benefits likely exceed the costs for
all proposed changes.
Estimated Economic Impact. The current Public Participation
Guidelines state that: "In considering any nonemergency, nonexempt
regulatory action, the agency shall afford interested persons an opportunity to
submit data, views, and arguments, either orally or in writing, to the
agency." The Board proposes to append "and (ii) be accompanied by and
represented by counsel or other representative."
Chapter 795 of the 2012 Acts of Assembly added to § 2.2-4007.02
of the Code of Virginia "Public participation guidelines" that
interested persons also be afforded an opportunity to be accompanied by and
represented by counsel or other representative. 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
Board's proposal to add this language to the regulation will not change the law
in effect, but will be beneficial in that it will inform interested parties who
read this regulation but not the statute of their legal rights concerning
representation.
Businesses and Entities Affected. The proposed amendment
potentially affects all individuals who comment on pending regulatory changes.
Localities Particularly Affected. The proposed amendment does
not disproportionately affect particular localities.
Projected Impact on Employment. The proposed amendment does not
significantly affect employment.
Effects on the Use and Value of Private Property. The proposed
amendment does not affect the use and value of private property.
Real Estate Development Costs. The proposed amendment does not
affect real estate development costs.
Small Businesses:
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. The proposed amendment does not affect
costs for small businesses.
Alternative Method that Minimizes Adverse Impact. The proposed
amendment does not adversely affect small businesses.
Adverse Impacts:
Businesses. The proposed amendment does not adversely affect
businesses.
Localities. The proposed amendment does not adversely affect
localities.
Other Entities. The proposed amendment does not adversely
affect other entities.
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1 See http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0795+hil
Agency's Response to Economic Impact Analysis: The State
Water Control board has no comment on the economic impact analysis.
Summary:
Pursuant to § 2.2-4007.02 of the Code of
Virginia, the amendment provides that interested persons submitting data,
views, and arguments on a regulatory action may be accompanied by and
represented by counsel or another representative.
Part III
Public Participation Procedures
9VAC25-11-50. 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.
VA.R. Doc. No. R18-5105; Filed August 25, 2017, 8:20 a.m.