Titles of Regulations: 18VAC41-20. Barbering and Cosmetology Regulations (amending 18VAC41-20-260).

18VAC41-70. Esthetics Regulations (amending 18VAC41-70-260).

Statutory Authority: § 54.1-201 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 22, 2020.

Effective Date: February 10, 2020.

Agency Contact: Stephen Kirschner, Executive Director, Board for Barbers and Cosmetology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8590, FAX (866) 245-9693, or email barbercosmo@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia enumerates board authority to promulgate regulations.

Purpose: The purpose of this fast-track rulemaking action is to align board regulations that rely on Department of Labor and Industry (DOLI) issuing apprenticeship cards with the new procedures being used by DOLI, which no longer include issuing apprenticeship cards. Without this change, apprentices will be unable to comply with the board's regulatory requirement.

In establishing the licensing system for barbers, cosmetologists, nail technicians, estheticians, and master estheticians, the General Assembly determined that occupational regulation of practitioners in these fields is necessary to ensure the safety of the public. However, that purpose is subverted if the public has no way to determine whether the practitioner providing services has demonstrated minimum competency and obtained the requisite license. The board has required the display of licenses or proof of apprenticeship in a public area of the salon or at the employee's work station so that the public can easily determine if a practitioner is minimally competent to perform those services. The amendment is necessary for the public to continue to have access to the license or trainee status of a practitioner. If the current regulation is not amended as proposed by this fast-track rulemaking action, apprentices will not be able to document their legitimate status in a legally compliant manner.

The board also proposes to eliminate the requirement for apprentices to wear a badge identifying themselves as apprentices. The current requirement to wear an apprenticeship badge is duplicative of the requirement of posting proof of apprenticeship. Removing the requirement aligns with the legislative directive for the boards under the Department of Professional and Occupational Regulation to eliminate unnecessary regulatory requirements.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial because it is reducing a regulatory burden on licensees and streamlining intra-agency coordination while maintaining protection of the health, safety, and welfare of the public.

Substance: In 18VAC41-20-260, the display requirement is changed to "proof of apprenticeship registration" from "apprenticeship card," and the requirement for apprentices to wear badges is eliminated.

In 18VAC41-70-260, the display requirement is changed to "proof of apprenticeship registration" from "apprenticeship card," the requirement for apprentices to wear badges is eliminated, and a reference to "shops and salons" is corrected to be "spa."

Issues: The primary advantage to the public is that customers will continue to have a way to verify the credential status and minimum competency of a practitioner providing services. There are no disadvantages for the public.

The primary advantage to the agency and Commonwealth is that the board will continue to protect the health, safety, and welfare of the public using the least restrictive means. There are no disadvantages to the agency or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Barbers and Cosmetology (Board) proposes to: 1) require that proof of apprenticeship registration, rather than apprenticeship cards, be displayed, and 2) no longer require that each apprentice wear a badge clearly indicating his status.

Background. The current Barbering and Cosmetology Regulations and Esthetics Regulations both specify, "All apprenticeship cards issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon." DOLI Division of Registered Apprenticeship has notified the Board that it will no longer utilize apprenticeship cards for its registered apprenticeships and will instead send letters as proof of apprenticeship.

The two regulations also both currently specify, "The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice."

Estimated Benefits and Costs. The Board proposes to replace the words "All apprenticeship cards" with "Proof of apprenticeship registration;" so that the sentence in the two regulations would read "Proof of apprenticeship registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon."² The Department of Professional and Occupational Regulation has indicated that the letters sent by DOLI would serve as proof of apprenticeship registration. Since apprenticeship cards will no longer be issued, amending the requirement to something that can actually be displayed in practice is beneficial.

For both regulations, the Board proposes to eliminate the sentence "The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice." This would moderately reduce compliance costs for the barbershops, nail salons, cosmetology salons, and esthetics spas that employ apprentices in the Commonwealth.

Businesses and Other Entities Affected. The proposed amendments potentially affect the 863 barbershops, 687 nail salons, 5,139 cosmetology salons, and 655 esthetics spas licensed in the Commonwealth.³ The proposed amendments would particularly affect those that employ apprentices. The proposed elimination of the requirement that apprentices wear a badge that identifies as a registered apprentice moderately reduces compliance costs.

Localities⁴ Affected.⁵ The proposed amendments apply throughout the Commonwealth and do not disproportionately affect particular localities. The proposed amendments do not introduce costs for local governments. Accordingly, no additional funds would be required.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantially affect the use and value of the barbershops, nail salons, cosmetology salons, and esthetics spas subject to the regulations. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses:⁶ The proposed amendments do not adversely affect small businesses.

Types and Estimated Number of Small Businesses Affected. All 863 barbershops, 687 nail salons, 5,139 cosmetology salons, and 655 esthetics spas licensed in the Commonwealth are likely small businesses.

Costs and Other Effects. The proposed elimination of the requirement that apprentices wear a badge that identifies as a registered apprentice moderately reduces compliance costs for these firms.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

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²For the Esthetics Regulations, the Board also proposes to replace "shop or salon" with "spa." This is a clarifying change.

³Data source: Department of Professional and Occupational Regulation

⁴"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.

⁵§2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

⁶Pursuant 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 agency concurs with the economic impact analysis.

Summary:

The amendments update the requirement to display proof of apprenticeship registration and eliminate the requirement for apprentices to wear a badge identifying them as apprentices.

18VAC41-20-260. Display of license.

A. Each shop, salon, or school shall ensure that all current licenses, certificates, or permits issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop, salon, or school. Duplicate licenses, certificates, or permits shall be posted in a like manner in every shop, salon, or school location where the regulant provides services.

B. Each shop, salon, or school shall ensure that no employee, licensee, student, or apprentice performs any service beyond the scope of practice for the applicable license.

C. All licensees, certificate holders, and permit holders shall operate under the name in which the license, certificate, or permit is issued.

D. Unless also licensed as a cosmetologist, a barber or master barber is required to hold a separate nail technician or wax technician license if performing nail care or waxing.

E. All Proof of apprenticeship cards registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.

18VAC41-70-260. Display of license.

A. Each licensed spa or school shall ensure that all current licenses and temporary licenses issued by the board shall be displayed in plain view of the public either in the reception area or at individual work stations of the spa or school. Duplicate licenses or temporary licenses shall be posted in a like manner in every spa or school location where the licensee or temporary license holder provides services.

B. All licensees and temporary license holders shall operate under the name in which the license or temporary license is issued.

C. All Proof of apprenticeship cards registration issued by the Department of Labor and Industry (DOLI) shall be displayed in plain view of the public either in the reception area or at individual work stations of the shop or salon spa. The apprentice sponsor shall require each apprentice to wear a badge clearly indicating his status as a DOLI registered apprentice.