TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
FORENSIC SCIENCE BOARD
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Forensic Science conducted a periodic review and a small business impact review of 6VAC40-20, Regulations for Breath Alcohol Testing, and determined that this regulation should be retained in its current form. The department is publishing its report of findings dated May 24, 2021, to support this decision.
The regulation is necessary for the protection of public health, safety, and welfare, as it provides the mechanisms for a breath test to be utilized in prosecutions for driving under the influence, boating under the influence, and operating a commercial motor vehicle under the influence. The regulation fulfills a mandate imposed on the department by the Code of Virginia. It is clearly written, and no stakeholders have indicated difficulty in understanding its requirements.
Having reviewed 6VAC40-20 and received no public comment objecting to the regulation, the regulation will be retained as is without making changes.
This regulation does not have an economic impact on small businesses. Small businesses are eligible to submit their preliminary breath test devices for evaluation by the Department of Forensic Science. The criteria for approval of preliminary breath devices are set forth in 6VAC40-20-170. No fees are solicited by the department for this approval process, and devices that are approved are periodically published in the Virginia Register of Regulations. Because it is implementing requirements imposed by the Code of Virginia on the department, there is a continued need for the regulation. No comments or complaints have been received concerning this regulation. The regulation does not overlap, duplicate, or conflict with any other federal or state law or regulation. This regulation was last reviewed in 2017, and no technology, economic conditions, or other factors have changed in this area since that time. It currently meets Code of Virginia requirements and the needs of agencies that use it.
Contact Information: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Forensic Science conducted a periodic review and a small business impact review of 6VAC40-30, Regulations for the Approval of Field Tests for Detection of Drugs, and determined that this regulation should be amended. The department is publishing its report of findings dated May 24, 2021, to support this decision.
The regulation is necessary for the protection of public health, safety, and welfare. As required by the Code of Virginia, the regulation specifies the methods for the department's approval of field tests under § 19.2-188.1 A of the Code of Virginia. The regulation is clearly written. No stakeholders have indicated difficulty in understanding the requirements of the regulation.
Having reviewed 6VAC40-30 and having received no public comment objecting to the regulation, the intent of the Forensic Science Board was to retain the regulation as is. However, upon further review of the legislative changes made by Chapters 550 and 551 of the 2021 Acts of Assembly, Special Session I, the statutory citation contained in 6VAC40-30-20 will need to be amended. The Forensic Science Board will consider this amendment as a legislative mandate at its July 2021 meeting.
This regulation has no significant economic impact on small businesses. Small businesses are eligible to submit their product for evaluation and approval by the Department of Forensic Science. Current fees for approval are $50 for each presumptive chemical test and $2,500 for each presumptive mobile instrument for which individual evaluation is requested, in addition to the costs of any street drug preparation required for the approval process. These fees are reflective of the staff time required for the evaluation and approval of these field tests. Field tests that are approved are periodically published in the Virginia Register of Regulations. Because it is still mandated by the Code of Virginia, there is a continued need for the regulation. No complaints have been received concerning this regulation. No comments or complaints were received concerning this regulation. The regulation provides necessary guidelines for the approval process of any field test. It does not overlap, duplicate, or conflict with any other federal or state law or regulation. The regulation meets Code of Virginia requirements and the needs of agencies and manufacturers that use it. This regulation was amended in October 2020 to reflect new technological advances for presumptive mobile instruments and to permit the approval of any new instruments that may become available for law enforcement use. No other factors have change in this area since October 2020.
Contact Information: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Forensic Science conducted a periodic review and a small business impact review of 6VAC40-40, Regulations for the Implementation of the Law Permitting DNA Analysis Upon Arrest for All Violent Felonies and Certain Burglaries, and determined that this regulation should be retained in its current form. The department is publishing its report of findings dated May 24, 2021, to support this decision.
The regulation is necessary for the protection of public health, safety, and welfare. As required by the enacting legislation, the regulation provides the procedures for DNA sampling of those arrested for violent felonies and certain burglaries. The regulation is clearly written. No stakeholders have indicated difficulty in understanding the requirements of the regulation. The department provides education for law-enforcement entities on an ongoing basis on the required DNA sampling for certain arrestees.
Having reviewed 6VAC40-40 and having received no public comment objecting to the regulation, the regulation will be retained as is without making any changes.
This regulation has no significant economic impact on small businesses. Because it is mandated by statute, there is a continued need for the regulation. No comments or complaints have been received concerning this regulation. The regulation meets Code of Virginia requirements and the needs of user agencies. The regulation provides necessary guidance for required DNA sampling of certain arrestees. The regulation does not overlap, duplicate, or conflict with any federal or state law or regulation. The regulation was last reviewed in 2017, and there have been no changes in technology, economic conditions, or other factors in the area affecting the regulation. Changes in technology may eventually require amendment of this regulation, but those technological advancements have not been deployed at the time of this review.
Contact Information: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Forensic Science conducted a periodic review and a small business impact review of 6VAC40-50, Regulations for the Approval of Marijuana Field Tests for Detection of Marijuana Plant Material, and determined that this regulation should be amended. The department is publishing its report of findings dated May 24, 2021, to support this decision.
In 2019, changes in federal and state law regarding marijuana and industrial hemp required that department to notify its customers and stakeholders of the impact of those changes on the use of marijuana field tests. Marijuana and industrial hemp are different strains of the Cannabis sativa plant. The only mechanism to distinguish hemp plant material from marijuana plant material is to conduct a quantitative analysis to determine the tetrahydrocannabinol (THC) concentration of the plant material.
As a result, the department notified its customers and stakeholders on May 23, 2019, that the DuquenoisLevine field tests approved by department under 6VAC40-50 could only presumptively identify Cannabis sativa plant material. These tests could not distinguish marijuana from industrial hemp. The department subsequently validated and purchased 4-AP (Cannabis Typification) Field Tests for use by law-enforcement agencies. The 4-AP test could not be approved because (i) it wasn’t a Duquenois-Levine field test, and (ii) when used alone, it cannot presumptively identify Cannabis sativa plant material accurately and reliably as is required by the statue. Law-enforcement agencies were instructed to utilize the Duquenois-Levine and 4-AP tests in tandem. The Duquenois-Levine field test was used to determine whether plant material was cannabis, and the 4-AP test determined whether the plant material was more likely to be marijuana and therefore should be submitted to the laboratory for analysis.
Simple possession of marijuana was then decriminalized by the 2020 General Assembly. In 2021, the General Assembly enacted legislation legalizing the simple possession of marijuana and creating a new statutory framework for offenses related to the possession of over a pound of marijuana or possession by a person younger than 21 years of age. As a result of these changes and because the Duquenois-Levine field test cannot distinguish between marijuana and hemp, the regulation will need to be amended.
While the department is still required under the new law to approved marijuana field tests for use at trial by law-enforcement officers for the prosecution of some marijuana offenses, there are currently no marijuana field tests that are able to independently distinguish industrial hemp from marijuana. The department will need to amend the regulation to allow for the approval of field tests that are not Duquenois-Levine field tests and for the possibility of presumptive mobile instruments or other technology that may become available with the ability to identify Cannabis sativa plant material and also distinguish marijuana from industrial hemp.
The regulation is still necessary for the protection of public health, safety, and welfare, as the department is still required to approve field tests for the identification of marijuana under § 19.2-188.1 B of the Code of Virginia. It provides necessary guidelines for the approval of marijuana field tests. Stakeholders have not indicated any issues with understanding the requirements of the regulation.
Noting these issues and amendments required for the new law effective July 1, 2021, the Forensic Science Board has recommended to amend this regulation.
This regulation has no significant economic impact on small businesses. Small businesses are eligible to submit their product for evaluation and approval by the Department of Forensic Science. Current fees for approval are de minimis, that is, $50 for each marijuana field test for which individual evaluation is requested. The board will consider the impact on small business of any fees that will be assessed for other types of field tests or technology that may be approved under an amended regulation. Marijuana field tests that are approved are periodically published in the Virginia Register of Regulations. Because it is still mandated by the Code of Virginia, even with the legalization of simple possession of marijuana, there is a continued need for the regulation. No comments or complaints have been received concerning this regulation. The regulation meets Code of Virginia requirements and the needs of user agencies and manufacturers. The regulation does conflict with the legislative changes made by Chapters 550 and 551 of the 2021 Acts of Assembly, Special Session I and will need to be amended as noted. Amendments should also reflect the changes in technology that may occur by creating mechanisms for the approval of other types of field tests or technology that may be developed with the ability to distinguish marijuana and industrial hemp.
Contact Information: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848.
Report of Findings
Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Department of Forensic Science conducted a periodic review and a small business impact review of 6VAC40-60, DNA Data Bank Regulations, and determined that this regulation should be retained in its current form. The department is publishing its report of findings dated May 24, 2021, to support this decision.
The regulation is necessary for the protection of public health, safety, and welfare. As required by the Code of Virginia, the regulation specifies the methods for obtaining information from the Data Bank. The regulation is clearly written. No stakeholders have indicated difficulty in understanding the requirements of the regulation. The department provides education for law-enforcement entities on an ongoing basis on the required DNA sampling for convicted offenders.
Having reviewed 6VAC40-60 and having received no public comment objecting to the regulation, the regulation will be retained as is without making any changes.
This regulation has no significant economic impact on small businesses. Because it is mandated by statute, there is a continued need for the regulation. No comments or complaints have been received concerning this regulation. The regulation provides necessary guidance regarding the DNA Data Bank, and no stakeholders have indicated difficulty in understanding the regulation. The regulation meets Code of Virginia requirements and the needs of agencies that use it. The regulation does not overlap, duplicate, or conflict with federal or state law or regulation. The regulation was last evaluated in 2017, and there have been no changes in technology, economic conditions, or other factors in the area affected by the regulation.
Contact Information: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848.
TITLE 9. ENVIRONMENT
STATE AIR POLLUTION CONTROL BOARD
Agency Notice
Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 9VAC5-5, Public Participation Guidelines. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins June 21, 2021, and ends July 12, 2021.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238.
DEPARTMENT OF ENVIRONMENTAL QUALITY
Agency Notice
Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 9VAC15-11, Public Participation Guidelines. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins June 21, 2021, and ends July 12, 2021.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238.
VIRGINIA WASTE MANAGEMENT BOARD
Agency Notice
Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 9VAC20-11, Public Participation Guidelines. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins June 21, 2021, and ends July 12, 2021.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238.
STATE WATER CONTROL BOARD
Agency Notice
Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 9VAC25-11, Public Participation Guidelines. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins June 21, 2021, and ends July 12, 2021.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Agency Notice
Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 12VAC5-80, Regulations for Administration of the Virginia Hearing Impairment Identification and Monitoring System. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins June 21, 2021, and ends July 12, 2021.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Robin Buskey, Policy Analyst, Office of Family Health Services, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 863-7253.
TITLE 22. SOCIAL SERVICES
STATE BOARD OF SOCIAL SERVICES
Agency Notice
Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 22VAC40-705, Child Protective Services. The review will be guided by the principles in Executive Order 14 (as amended July 16, 2018). The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.
Public comment period begins June 21, 2021, and ends July 12, 2021.
Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.
Contact Information: Shannon Hartung, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7554, FAX (804) 726-7499.