Title of Regulation: 1VAC50-11. Public Participation Guidelines (amending 1VAC50-11-10, 1VAC50-11-20, 1VAC50-11-50, 1VAC50-11-60, 1VAC50-11-90, 1VAC50-11-100).

Statutory Authority: §§ 2.2-4007.02 and 15.2-2903 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 8, 2018.

Effective Date: March 23, 2018.

Agency Contact: David Conmy, Local Government Policy Administrator, Department of Housing and Community Development, 600 East Main Street, Suite 300, Richmond, VA 23219, telephone (804) 371-8010, FAX (804) 371-7090, or email david.conmy@dhcd.virginia.gov.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Basis: Section 15.2-2903 of the Code of Virginia provides the Commission on Local Government (CLG) the general power and duty to make regulations.

Purpose: The goal of this proposal is to update the CLG's regulations for greater clarity and consistency based upon a review by the commission and its staff at the conclusion of its periodic review of the regulation.

The regulations are essential to protect the health, safety, and welfare of citizens because they support the CLG's purpose to ensure that all of the Commonwealth's "localities are maintained as viable communities in which their citizens can live" as stipulated in § 15.2-2900 of the Code of Virginia.

All of the proposed amendments to the regulations are minor in nature and include items such as (i) updating definitions and regulations to correspond to changes in the Code of Virginia, including removal of references to "Commonwealth Calendar" and the right to counsel in rulemaking proceedings (Chapter 795 of the 2012 Acts of Assembly), (ii) adding Oxford commas for greater clarity, (iii) updating terminology to be gender neutral, (iv) generalizing the commission's regular meeting regulations to allow more meeting flexibility but remain consistent with § 15.2-2904 of the Code of Virginia, and (v) making other minor changes.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial because the proposed amendments to the regulations are minor in nature. None of the proposed amendments to the regulations are substantive in nature, and they do not have an impact on small businesses or individual citizens.

Furthermore, this rulemaking is expected to be noncontroversial because no comments were received during the periodic review public comment period, which ran from June 12, 2017, to July 3, 2017, and was advertised in the Virginia Register of Regulations on June 12, 2017, in Volume 33, Issue 21.

Substance: None of the proposed amendments to the regulations are substantive in nature but include items such as (i) updating definitions and regulations to correspond to changes in the Code of Virginia, including removal of references to "Commonwealth Calendar" and the right to counsel in rulemaking proceedings (Chapter 795 of the 2012 Acts of Assembly), (ii) adding Oxford commas for greater clarity, (iii) updating terminology to be gender neutral, (iv) generalizing the commission's regular meeting regulations to allow more meeting flexibility but remain consistent with § 15.2-2904 of the Code of Virginia, and (v) making other minor changes.

Issues: The advantages to the proposed amendments to the regulations are all minor in nature but, overall, allow for greater clarity and for consistency with the Code of Virginia. There are no anticipated disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation: As the result of a periodic review, the Commission on Local Government (Commission) proposes to amend its public participation guidelines to update definitions and to conform the regulation to changes in statute.

Result of Analysis. Benefits likely outweigh costs for all proposed changes.

Estimated Economic Impact. The Commission promulgated these public participation guidelines in 2008 and has not updated them since. As a result of statutory changes since 2008, these guidelines are no longer completely up to date. Because of this, the Commission now proposes to add language that reflects the statutory right of interested parties who are submitting data, views and arguments to "be accompanied by and represented by counsel or other representative." The Commission also proposes to change references to "the Commonwealth Calendar" to "a calendar maintained by the Commonwealth" because that language more closely resembles relevant statutory language. Changes such as these do not add any extra requirements for regulated entities. Consequently, no affected entities are likely to incur costs. To the extent that these changes remove language that is different from what is in statute, they provide the benefit of eliminating possible confusion.

Businesses and Entities Affected. This regulatory action will affect all localities as well as the Commission. Commission staff reports that there are 95 counties, 190 towns and 38 cities in the Commonwealth.

Localities Particularly Affected. No locality will be particularly affected by this regulatory action.

Projected Impact on Employment. These proposed regulatory changes are unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Real Estate Development Costs. These proposed regulatory changes are unlikely to affect real estate development costs in the Commonwealth.

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. No small businesses are likely to incur any additional costs on account of these proposed regulatory changes.

Alternative Method that Minimizes Adverse Impact. No small businesses are likely to incur any additional costs on account of these proposed regulatory changes.

Adverse Impacts:

Businesses. No businesses are likely to incur any additional costs on account of these proposed regulatory changes.

Localities. Localities in the Commonwealth are unlikely to see any adverse impacts on account of these proposed regulatory changes.

Other Entities. No other entities are likely to be adversely affected by these proposed changes.

Agency's Response to Economic Impact Analysis: The Commission on Local Government staff concurs with the economic impact analysis.

Summary:

The amendments (i) update definitions, (ii) clarify the regulation, (iii) update terminology, and (iv) pursuant to Chapter 795 of the 2012 Acts of Assembly, add that an individual can be accompanied by and represented by counsel or another representative when submitting data, views, and arguments to the agency.

Part I
Purpose and Definitions

1VAC50-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment, or repeal of the regulations of the Commission on Local Government. 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).

1VAC50-11-20. 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 Commission on Local Government within the Virginia Department of Housing and Community Development, 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" "Calendar maintained by the Commonwealth" 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.

Part III
Public Participation Procedures

1VAC50-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity (i) to 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.

1VAC50-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

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

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider, and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the 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.

1VAC50-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and a calendar maintained by the 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.

1VAC50-11-100. Public hearings on regulations.

A. The agency 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 agency 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 agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and a calendar maintained by the Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.