Title of Regulation: 6VAC35-11. Public Participation Guidelines (amending 6VAC35-11-50).

Statutory Authority: §§ 2.2-4007.02 and 66-10 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 16, 2019.

Effective Date: October 31, 2019.

Agency Contact: Kristen Peterson, Regulatory Coordinator, Department of Juvenile Justice, 600 East Main Street, 20th Floor, Richmond, VA 23219, telephone (804) 588-3902, FAX (804) 371-6490, or email kristen.peterson@djj.virginia.gov.

Basis: Section 2.2-4007.02 of the Code of Virginia requires state agencies to develop, adopt, and use public participation guidelines in order to ensure the involvement of interested persons in the formation and development of the agency's regulations. Among other requirements, § 2.2-4007.02 B directs agencies, pursuant to such guidelines, to provide interested persons with the opportunity to be accompanied and represented by counsel or other representatives.

Additionally, § 66-10 of the Code of Virginia authorizes the board to promulgate such regulations as may be necessary to carry out the provisions of Title 66 of the Code of Virginia and other laws of the Commonwealth.

Purpose: This regulatory action is necessary to comply with Chapter 795 of the 2012 Acts of Assembly. The amendment was recommended by the Department of Planning and Budget (DPB) and will conform the board's public participation guidelines with DPB's model guidelines. Participation by the public in the regulatory process is essential to assist the board in the promulgation of regulations that will protect the public health and safety.

Rationale for Using Fast-Track Rulemaking Process: Chapter 795 of the 2012 Acts of Assembly requires nonexempt rulemaking agencies to afford interested parties, pursuant to the agency's public participation guidelines, with the opportunity to be accompanied and represented by counsel or other representatives with respect to the formation of regulations. This is in addition to the current requirements in the public participation guidelines, which direct the department, in considering nonemergency, nonexempt regulatory action, to afford interested parties the opportunity to submit data, views, and arguments to the agency.

Pursuant to the statutory mandate in § 2.2-4007.1 of the Code of Virginia, the department conducted a periodic review of the Public Participation Guidelines in 2018 and discovered this omission. The department asked the board to approve an amendment to 6VAC35-11-50 to incorporate this requirement.

The proposed amendment is mandated by statute and will ensure the department's compliance with the statutory provision. Therefore, the amendment is not expected to be controversial.

Substance: The amendment adds language to 6VAC35-11-50 requiring the department, in formulating regulations, to afford interested parties an opportunity to be accompanied and represented by counsel or other representatives as part of the regulation formation process.

Issues: There are no disadvantages associated with the regulatory change. The advantage for the agency is that the amendment will bring the department into compliance with § 2.2-4007.02 of the Code of Virginia. In addition, the amendment will benefit the general public as well as the department by ensuring that, with respect to regulatory development, repeal, and amendment, interested persons are able to have adequate representation throughout the regulatory formation process.

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.

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 Board of Juvenile Justice (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.

Background. Chapter 795 of the 2012 Acts of Assembly added to the Code of Virginia § 2.2-4007.02 "Public participation guidelines" that persons interested in submitting data, views, and arguments, either orally or in writing, to the agency also be afforded an opportunity to be accompanied by and represented by counsel or other representative.

Estimated Benefits and Costs. 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." 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 Other Entities Affected. The proposed amendment potentially affects all individuals who comment on pending regulatory changes. It would particularly affect those who are interested in being accompanied by and represented by counsel or other representative, and were not previously aware of this right. The proposal does not produce cost.

Localities² Affected.³ The proposed amendment applies statewide. No locality would be particularly affected.

Projected Impact on Employment. The proposed amendment is unlikely to affect total employment.

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

Adverse Effect on Small Businesses:⁴ The proposed amendment does not adversely affect small businesses.

Types and Estimated Number of Small Businesses Affected. The proposed amendment does not directly affect small businesses.

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.

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¹See http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0795+hil

²"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.

³§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁴Pursuant 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."

Agency's Response to Economic Impact Analysis: The responsible Virginia Board of Juvenile Justice has reviewed the Department of Planning and Budget's (DPB's) economic impact analysis and concurs with DPB's 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

6VAC35-11-50. 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.