Title of Regulation: 18VAC70-20. Rules and Regulations for the Virginia Board for Geology (amending 18VAC70-20-30).

Statutory Authority: §§ 54.1-201 and 54.1-1402 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: March 16, 2011.

Effective Date: April 1, 2011.

Agency Contact: David Dick, Executive Director, Board for Geology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8588, FAX (804) 527-4297, or email geology@dpor.virginia.gov.

Basis: Section 2.2-3704 F of the Code of Virginia states, in part, that a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. Section 2.2-3704 A of the Code of Virginia provides that public records must be open to inspection and copying by citizens of the Commonwealth.

Subdivision 5 of § 54.1-201 of the Code of Virginia provides that the board has the power and duty to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq.) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system administered by the regulatory board.

Section 54.1-1402 of the Code of Virginia requires the Board for Geology to establish regulations necessary for the reasonable administration of Chapter 14 (§ 54.1-1400 et seq.) of Title 54.1 of the Code of Virginia.

Purpose: The purpose of amending the regulation is to remove language regarding the fee for duplicate wall certificates so that the cost will be set by the department in compliance with § 2.2-3704 F of the Virginia Freedom of Information Act (FOIA). Section 2.2-3704 F provides that the department may make reasonable charges not to exceed its actual costs incurred for assessing, duplicating, supplying or searching for requested records. The goal of the proposed regulatory action is to remove from the regulations a fee that must be determined in compliance with FOIA.

Rationale for Using Fast-Track Rulemaking Process: The fast-track rulemaking process is being used to remove language regarding the fee for duplicate wall certificates from the regulations. The proposed regulatory action will result in the fee being set in compliance with FOIA. There is no substantive change in the existing regulations.

Substance: No substantive change is proposed. The substance of the regulation remains the same.

Issues: The primary advantage to the public is compliance with FOIA and the removal of a fee controlled by FOIA from the regulations.

The primary advantage to the Commonwealth is continued implementation of the fee as provided for by FOIA.

There are no other pertinent matters of interest or any disadvantages to the public or Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Board for Geology (Board) proposes to repeal the text in this regulation that specifies: The fee for duplicate wall certificates shall be $25.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Certified geologists are not required to display or otherwise possess their physical certificate. Possessing and displaying a wall certificate is optional. The Board proposes to repeal the current language in these regulations that the fee for duplicate wall certificates shall be $25. The Department of Professional and Occupational Regulation (Department) has indicated that the fee for requested duplicate wall certificates would be set in accordance with Code of Virginia 2.2-3704.F: A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.

The Department has also indicated that initially at least, the fee would remain at $25 after the text is repealed. Thus, the cost to certified geologists would not change at all, at least initially. If the cost of providing the duplicate certificate some time in the future exceeds $25, the Board could raise the fee to match that cost. If the fee is below the true cost of accessing, duplicating, supplying, searching and providing the duplicate certificate, then presumably the excess cost would be paid for in higher certification fees for all geologists, including those not requesting duplicate certificates. It is beneficial to have those who request an optional service to pay for the true cost of that service, rather than have it subsidized by those not requesting the optional service. If it were to be subsidized, then requests would be encouraged producing additional costs to those who do not benefit from the service.

Businesses and Entities Affected. The proposed amendment potentially affects the 854 certified professional geologists in Virginia.

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

Projected Impact on Employment. The proposal amendment will not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendment will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendment is unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendment is unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendment will not significantly 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 107 (09). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, 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 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 DPBs best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: Concur with the approval.

Summary:

The amendment removes the set fee for issuing a duplicate wall certificate from the regulation as fees for providing public records are addressed in the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). Specifically, § 2.2-3704 F of the Act provides that an agency may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records.

18VAC70-20-30. Fees.

All fees for application, examination, renewal, and reinstatement shall be established by the board pursuant to § 54.1-201 of the Code of Virginia. All fees are nonrefundable and shall not be prorated.

1. The application fee for certification shall be $40.

2. The fee for renewal of certification shall be $35.

3. The fee for examination or reexamination is subject to contracted charges to the department by an outside vendor. These contracts are competitively negotiated and bargained for in compliance with the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia). Fees may be adjusted and charged to the candidate in accordance with this contract.

4. The penalty fee for late renewal shall be $25 in addition to the renewal fee.

5. The reinstatement fee shall be $40.

6. The fee for duplicate wall certificates shall be $25.