Title of Regulation: 2VAC15-20. Regulations for the Control and Supervision of Virginia's Milk Industry (amending 2VAC15-20-90, 2VAC15-20-110, 2VAC15-20-120).

Statutory Authority: § 3.2-3204 of the Code of Virginia.

Effective Date: February 18, 2009.

Agency Contact: Rodney L. Phillips, Administrator, Department of Agriculture and Consumer Services, Oliver Hill Building, 102 Governor Street, Room 205, Richmond, VA 23218, telephone (804) 786-2013, FAX (804) 786-3779, or email rodney.phillips@vdacs.virginia.gov.

Summary:

The amendments update citations to reflect the recodification of Title 3.1 to Title 3.2 of the Code of Virginia. In addition, a Virginia Administrative Code citation is updated.

2VAC15-20-90. Records and reports.

A. Each distributor shall accurately prepare and maintain all records necessary to enable the agency or its representative to determine:

1. The amount, source, grade, butterfat test and price paid for all milk and cream received from all sources. These records must show daily transactions, summarized into monthly totals.

2. The use or disposition of all milk and cream received from all sources. These records must show retail, wholesale and other sales by units and the value received for each group of units shown as daily transactions, summarized into monthly totals.

3. The butterfat tests of each producer's milk made according to this chapter, the date such tests were made and the butterfat test of each commodity sold.

B. Not later than the seventh day of each month all licensees, except retail distributors, shall furnish the agency with information which specifies all receipts and utilization of milk, along with other information as may be required by the agency. This information may be filed with the agency in any of the following approved formats:

1. Agency forms;

2. Federal reports;

3. Licensee generated printouts or reports; and

4. Computer media (only if the data furnished is compatible with agency hardware and software configurations).

Additionally, this information must be transmitted to the agency in an agency approved manner in order to meet established deadlines. This information must be compiled from records of a permanent nature and these records shall be subject to audit and inspection by any authorized representative of the approving authority. Not later than the 12th day of each month the agency shall inform each processing general distributor of the classified sales allocated to each producer or cooperative association for the previous month.

C. Each processing general distributor, producer general distributor and distributor shall document in detail each wholesale transaction either in written or electronic form. This documentation shall be maintained for at least six calendar months, or until audited, and be subject to inspection by any authorized representative of the agency.

D. All books and records, defined under Article 2 (§ 3.1-425 et seq.) of Chapter 21 of Title 3.1 Chapter 32 (§ 3.2-3200 et seq.) of Title 3.2 of the Code of Virginia, of all licensed distributors, except retail, producers and cooperative associations of producers shall be subject to audit by any authorized representative of the agency.

E. Information relating to individual distributors, producers or cooperative associations of producers shall be confidential.

F. Cooperative associations shall file with the agency a monthly statement. This statement, to be filed not later than the eighth of the subsequent month, shall list the name, base allotment, and production of each of the cooperative associations baseholding producer members.

G. Cooperative associations shall file with the agency by the seventh of the month a statement which indicates total daily deliveries by day made to licensed processing general distributors for deliveries made in the preceding month.

H. Cooperative associations shall furnish the agency not later than the last day of each month a copy of all billings for milk deliveries to licensed processing general distributors made in the prior month.

2VAC15-20-110. Assessments.

A. All expenses necessary for the operation of the agency shall be met by assessments as provided for in Article 2 (§ 3.1-425 et seq.) of Chapter 21 of Title 3.1 Chapter 32 (§ 3.2-3200 et seq.) of Title 3.2 of the Code of Virginia. Assessments shall be collected by the agency and deposited immediately in a designated state depository to the Treasurer of Virginia.

B. Assessments shall be made in the following manner:

1. Assessments shall be collected from all licensed general processing distributors, producer general distributors, and distributors in an amount as directed by the approving authority. Assessments shall not exceed five cents per hundredweight on all milk or cream (converted to terms of milk) handled by distributors and/or sold by producers and cooperative associations of producers. These assessments shall be the same per hundredweight on producers and distributors.

2. Within 15 days after the close of a delivery period, all licensed general processing distributors, producer general distributors, and distributors shall remit to the agency an amount equal to the total assessments levied for the delivery period, including both the assessment levied on distributors and producers and/or cooperative associations of producers. The amount of production assessment paid to the credit of producers or cooperative associations of producers by a distributor shall be credited against the amount payable to producers and/or cooperative associations of producers by said distributor.

2VAC15-20-120. Hearing notice.

A. Notice of proceedings under § 3.1-437 3.2-3208 of the Code of Virginia shall be provided as set out in this subsection. The approving authority may publish in a newspaper of general circulation a notice which shall inform the public of the proceeding and the time, date, and place of the public hearing. The administrator is directed to give other notice as he deems appropriate, including notice to persons on the distribution list who would be affected by the approving authority's order.

B. If the approving authority establishes minimum retail prices for milk without a public hearing, it shall hold a public hearing on the emergency order not less than 15 nor more than 60 days after its issuance. Such notice will take the form as provided in subsection A of this section.

C. Notice of proceedings under §§ 3.1-432 and 3.1-433 § 3.2-3206 of the Code of Virginia shall be provided as set out in this subsection. The approving authority shall issue a notice of hearing in accordance with the provisions of 2VAC15-11-80 2VAC15-12-90.

Title of Regulation: 4VAC15-450. Watercraft: Commercial Parasail Operations (adding 4VAC15-450-10 through 4VAC15-450-40).

Statutory Authority: §§ 29.1-501, 29.1-502, 29.1-701, and 29.1-735.3 of the Code of Virginia.

Effective Date: January 1, 2009.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4016 W. Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The new boating regulation applies to commercial parasail operations; it does not have any effect on general boating activities by the recreational boating public, but applies only to the commercial operations of parasail operators on the waters of the Commonwealth. The regulation defines "commercial parasail operation" and "parasailing"; and establishes provisions to which commercial parasailing operators must comply for lawful operation, including a requirement that all commercial parasail operators shall have a valid Coast Guard license for carrying passengers for hire, and other provisions addressing the safety of persons taking part in the parasailing activity.

CHAPTER 450
WATERCRAFT: COMMERCIAL PARASAIL OPERATIONS

4VAC15-450-10. Application.

This chapter applies to all commercial parasail operations on waters of the Commonwealth.

4VAC15-450-20. Definitions.

As used in this chapter unless the context clearly requires a different meaning the following words and terms shall have the following meanings:

"Commercial parasail operation" means all parasail activities engaged in or caused to be engaged in by any person or legal entity with the object of making a profit or obtaining an economic benefit either directly or indirectly.

"Operate" means to navigate or otherwise control the movement of a vessel.

"Parasailing" means the activity in which an individual is transported or carried aloft by a parachute, sail, or other material attached to a towline that is towed by a vessel where the rider ascends into the air by the towline being extended from the vessel and remains suspended in the air as the vessel runs its course.

"Vessel" means every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water.

"Waters of the Commonwealth" means any public waters within the territorial limits of the Commonwealth, the adjacent marginal sea and the high seas when navigated as a part of a journey or ride to or from the Virginia shore.

4VAC15-450-30. Commercial parasailing activities.

Commercial parasailing operators shall comply with the following provisions:

1. All commercial parasail operators shall have a valid Coast Guard License for carrying passengers for hire.

2. Vessels engaged in parasailing operations must be equipped with a rear launchplatform and direct launch and recovery hydraulic winch system used to pay out and reel in the towline.

3. Prior to leaving the dock, all passengers and parasail participants shall be required to view a parasail safety briefing video and/or be given a written parasail safety briefing handout. Briefing materials shall be consistent with information approved or provided by the Professional Association of Parasail Operators (PAPO).

4. Parasailing shall only be conducted from one-half hour before sunrise to one-half hour after sunset.

5. All parasail riders, when attached to the harness of a parasail canopy, shall wear a United States Coast Guard approved Type I, II, or III inherently buoyant noninflatable personal flotation device that is in serviceable condition and of the proper size. The rider must be secured in a seat harness attached to an ascending type of parachute that is connected to the towline.

6. All parasailing operations shall include, in addition to the operator of the vessel, an observer 18 years or older at all times to monitor the progress of an airborne parasail rider and parachute.

7. All parasailing towing vessels when operating more than 1,000 feet from shore shall be equipped with a VHF radio that is in working order and tuned to Channel 16.

8. Parasailing shall be prohibited when there are sustained winds in excess of 20 mph/17.5 knots and/or seas in excess of six feet in the area of operation.

9. Parasail operation towlines shall not exceed 1,200 feet in total length on the vessel's winch drum or exceed 1,000 feet of towline from boat to canopy yoke while conducting parasail flight operations. All commercial towlines must have a minimum diameter of 3/8 inches, be a maximum length of 1,200 feet, and have a minimum tensile strength of 4,800 lbs. An in-service date shall be logged whenever new line is installed.

10. Parasail operators shall inspect the towline in its entirety daily for damage and/or wear and, if necessary, shall immediately replace the line. A minimum of two feet shall be trimmed from the towline bitter end within a maximum period of seven days or every 400 flights or as may become necessary. The towline shall be kept clean and well maintained in accordance with manufacturers' specifications, requirements, and/or recommendations. A written log of such inspections and maintenance shall be kept at all times.

11. Parasail vessel operators shall at all times maintain a safe parasail chute distance from any surf-zone, shoreline, or fixed object when engaged in actual parasail operations. This includes all of the following: (i) the canopy shall not be allowed to pass within three times the length of the towline from shore or any structure, (ii) when the wind has an onshore component, the canopy's minimum distance from shore is a function of wind speed as follows: either 1,000 feet or a sliding distance based on wind speed (0-5 mph – 600 feet, 6-10 mph – 1,000 feet, 11-15 mph – 1,800 feet, 16-20 mph – 2,400 feet).

12. Parasail operators shall only launch and land riders from the flight deck of the vessel. Spectators shall not be permitted on the launch/landing deck area while the vessel is engaged in actual parasail operations. At no time shall there be more than three passengers in any canopy. Multipassenger flights shall only be conducted after the vessel operator has made reasonable judgment regarding the flight safety prior to each flight and then only under the following conditions: (i) wind conditions must be adequate, stable and persistent, (ii) sea conditions must be conducive to such activities, (iii) commercial equipment specifically designed and professionally manufactured for multipassenger flight operations must be utilized, (iv) all equipment manufacturers' specifications, requirements and/or recommendations must be adhered to, and (v) the vessel's winch system must be equipped with a functional level-winder during all multipassenger flights.

13. A person may not operate or manipulate any vessel by which the direction or location of a parasail may be affected or controlled in such a way as to cause the parasail or any person thereon to collide or strike against or be likely to collide or strike against any vessel, bridge, wharf, pier, dock, buoy, platform, piling, channel marker, or other object.

14. The deliberate lowering of any person attached to the parasail to be in contact with the water's surface (toe dipping) shall only be conducted after the vessel operator has made reasonable judgment regarding the safety of the activity and his ability to control such an activity and then only when wind and sea conditions are conducive to such activity. Deliberate dipping above the ankles or allowing a participant to touch the water during his flight within 200 feet of another vessel or object or within 50 feet of the stern of the tow vessel is prohibited.

15. Commercial parasail operators shall notify the department's law-enforcement division dispatch office at least 14 days in advance of the commencement of annual operations.

4VAC15-450-40. Penalties.

Except as otherwise provided by statute, any person who violates any provision of this chapter shall be guilty of a Class 4 misdemeanor for each such violation as provided by § 29.1-746 of the Code of Virginia.

Titles of Regulations: 6VAC20-10. Guidelines for Public Participation in Regulation Development and Promulgation (repealing 6VAC20-10-10 through 6VAC20-10-50).

6VAC20-11. Public Participation Guidelines (adding 6VAC20-11-10 through 6VAC20-11-110).

Statutory Authority: §§ 2.2-4007.02 and 9.1-102 of the Code of Virginia.

Effective Date: February 20, 2009.

Agency Contact: Judith Kirkendall, Regulatory Coordinator, Department of Criminal Justice Services, 202 North 9th St., 10th Floor, Richmond, VA 23219, telephone (804) 225-4086, FAX (804) 786-0588, or email judith.kirkendall@dcjs.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

6VAC20-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Criminal Justice Services. 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).

6VAC20-11-20. 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 Department of Criminal Justice Services, 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" 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 II
Notification of Interested Persons

6VAC20-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

6VAC20-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 6VAC20-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

6VAC20-11-50. Public comment.

A. 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. 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.

6VAC20-11-60. 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.

6VAC20-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

6VAC20-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

6VAC20-11-90. Meetings.

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

6VAC20-11-100. 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 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.

6VAC20-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

Titles of Regulations: 6VAC20-10. Guidelines for Public Participation in Regulation Development and Promulgation (repealing 6VAC20-10-10 through 6VAC20-10-50).

6VAC20-11. Public Participation Guidelines (adding 6VAC20-11-10 through 6VAC20-11-110).

Statutory Authority: §§ 2.2-4007.02 and 9.1-102 of the Code of Virginia.

Effective Date: February 20, 2009.

Agency Contact: Judith Kirkendall, Regulatory Coordinator, Department of Criminal Justice Services, 202 North 9th St., 10th Floor, Richmond, VA 23219, telephone (804) 225-4086, FAX (804) 786-0588, or email judith.kirkendall@dcjs.virginia.gov.

Summary:

The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.

This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

6VAC20-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Criminal Justice Services. 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).

6VAC20-11-20. 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 Department of Criminal Justice Services, 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" 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 II
Notification of Interested Persons

6VAC20-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

6VAC20-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 6VAC20-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

6VAC20-11-50. Public comment.

A. 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. 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.

6VAC20-11-60. 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.

6VAC20-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

6VAC20-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

6VAC20-11-90. Meetings.

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

6VAC20-11-100. 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 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.

6VAC20-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

Title of Regulation: 12VAC30-141. Family Access to Medical Insurance Security Plan (amending 12VAC30-141-660).

Statutory Authority: §§ 32.1-324, 32.1-325 and 32.1-351 of the Code of Virginia.

Effective Dates: December 22, 2008, through December 21, 2009.

Agency Contact: Molly Carpenter, Division of Maternal and Child Health, Department of Medical Assistance Services, 600 East Broad Street, Richmond, VA 23219, telephone (804) 786-1493, FAX (804) 786-1680, or email molly.carpenter@dmas.virginia.gov.

Preamble:

Item 305(E) of Chapter 879 of the 2008 Acts of Assembly states, “The Department of Medical Assistance Services shall have the authority to provide eligibility in the Family Access to Medical Insurance Security (FAMIS) Plan to infants born to mothers enrolled in FAMIS, for the month of birth plus two additional months, even if eligibility is not yet established for the newborn. If federal funds are not available for those months of eligibility, the department shall use state funding. The department shall promulgate emergency regulations to implement this amendment within 280 days or less from the enactment of this act.” This action fulfills Item 305(E) of Chapter 879.

This regulatory action is needed to help ensure that infants born to Family Access to Medical Insurance Security (FAMIS) recipients receive health care coverage immediately following birth. This is a critical period for early treatment of medical conditions and for establishing a medical home for preventive health care and management of special health care needs. The regulations will enable DMAS to provide uninterrupted comprehensive coverage for newborns of FAMIS enrollees through the mother’s health care plan.

Federal Medicaid rules (Title XIX of the Social Security Act) permit Medicaid coverage for infants born to Medicaid enrollees for up to one year without an application. However, there is currently no such rule for FAMIS (Title XXI of the Social Security Act). There is no automatic eligibility for the newborn of a Title XXI mother under federal rules, not even for the newborn’s hospital charges (the mother’s charges are covered). An application must be submitted to determine eligibility. Most children born to FAMIS recipients eventually have eligibility established for Medicaid or FAMIS retroactive to the date of birth, but some do not.

Approximately 85% of FAMIS enrollees receive services through a managed health care plan. The contract under which MCOs provide services to FAMIS enrollees requires the plans to provide coverage for the month of birth plus two additional months for infants born to FAMIS enrolled mothers. The majority of these newborns are subsequently enrolled in Medicaid or FAMIS. However, a small number do not become enrolled in either program. If eligibility is never established the children are disenrolled from the FAMIS managed care plan after the second full month following the birth month.

The new policy authorizes the use of state general funds to cover MCO services to FAMIS newborns for the birth month plus two additional months if federal funds are not available. Most newborns of FAMIS enrollees are subsequently enrolled in either Medicaid or FAMIS and receive retroactive coverage for the first three months. For these newborns, any general funds used to provide coverage upon birth will continue to be replaced by Medicaid or FAMIS funds with a federal match.

12VAC30-141-660. Assignment to managed care.

A. Except for children enrolled in the Virginia Birth-Related Neurological Injury Compensation Program established pursuant to Chapter 50 (§ 38.2-5000 et seq.) of Title 38.2 of the Code of Virginia, all eligible enrollees shall be assigned in managed care through the department or the central processing unit (CPU) under contract to DMAS. FAMIS recipients, during the pre-assignment period to a PCP or MCHIP, shall receive Title XXI benefits via fee-for-service utilizing a FAMIS card issued by DMAS. After assignment to a PCP or MCHIP, benefits and the delivery of benefits shall be administered specific to the type of managed care program in which the recipient is enrolled. DMAS shall contract with MCHIPs to deliver health care services for infants born to mothers enrolled in FAMIS, for the month of birth plus two additional months, regardless of the status of the newborn’s application for FAMIS. If federal funds are not available for those months of coverage, DMAS shall use state funding only.

1. MCHIPs shall be offered to enrollees in certain areas.

2. In areas with one contracted MCHIP, all enrollees shall be assigned to that contracted MCHIP.

3. In areas with multiple contracted MCHIPs or in PCCM areas without contracted MCHIPs, enrollees shall be assigned through a random system algorithm; provided however, all children within the same family shall be assigned to the same MCHIP or primary care provider (PCP), as is applicable.

4. In areas without contracted MCHIPs, enrollees shall be assigned to the primary care case management program (PCCM) or into the fee-for-service component. All children enrolled in the Virginia Birth-Related Neurological Injury Compensation Program shall be assigned to the fee-for-service component.

5. Enrolled individuals residing in PCCM areas without contracted MCHIPs or in areas with multiple MCHIPs, will receive a letter indicating that they may select one of the contracted MCHIPs or primary care provider (PCP) in the PCCM program, in each case, which serve such area. Enrollees who do not select an MCHIP/PCP as described above, shall be assigned to an MCHIP/PCP as described in subdivision 3 of this section.

6. Individuals assigned to an MCHIP or a PCCM who lose and then regain eligibility for FAMIS within 60 days will be re-assigned to their previous MCHIP or PCP.

B. Following their initial assignment to a MCHIP/PCP, those enrollees shall be restricted to that MCHIP/PCP until their next annual eligibility redetermination, unless appropriately disenrolled by the department.

1. During the first 90 calendar days of managed care assignment, an enrollee may request re-assignment for any reason from that MCHIP/PCP to another MCHIP/PCP serving that geographic area. Such re-assignment shall be effective no later than the first day of the second month after the month in which the enrollee requests re-assignment.

2. Re-assignment is available only in areas with the PCCM program or where multiple MCHIPs exist. If multiple MCHIPs exist, enrollees may only request re-assignment to another MCHIP serving that geographic area. In PCCM areas, an enrollee may only request re-assignment to another PCP serving that geographic area.

3. After the first 90 calendar days of the assignment period, the enrollee may only be re-assigned from one MCHIP/PCP to another MCHIP/PCP upon determination by DMAS that good cause exists pursuant to subsection C of this section.

C. Disenrollment for good cause may be requested at any time.

1. After the first 90 days of assignment in managed care, enrollees may request disenrollment from DMAS based on good cause. The request must be made in writing to DMAS and cite the reasons why the enrollee wishes to be re-assigned. The department shall establish procedures for good cause re-assignment through written policy directives.

2. DMAS shall determine whether good cause exists for re-assignment.

Title of Regulation: 20VAC5-302. Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility (amending 20VAC5-302-10 through 20VAC5-302-35).

Statutory Authority: §§ 12.1-13, 56-234.3, 56-265.2 and 56-580 of the Code of Virginia.

Effective Date: January 15, 2009.

Agency Contact: Cody Walker, Assistant Director, Division of Energy Regulation, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9611, FAX (804) 371-9350, or email cody.walker@scc.virginia.gov.

Summary:

The State Corporation Commission has revised its rules governing applications to construct and operate electric generating facilities (generation rules or rules). Legislation enacted by the 2007 and 2008 Sessions of the Virginia General Assembly largely prompted the commission's decision to propose and ultimately adopt changes in its rules. The rules are set forth in 20VAC5-302 within the Virginia Administrative Code. The revised rules will become effective on January 15, 2009.

The adopted revisions to the generation rules include filing requirements that Virginia's incumbent electric utilities must satisfy in establishing the need for proposed, new generation facilities to be constructed in Virginia. The information required includes an analysis of load and generating capacity reserve forecast information that demonstrates the need for the plant in the in-service year proposed for rate regulated electric utilities.

The amended generation rules further provide that the construction in Virginia of electric generating facilities with rated capacities of 5 MW or less may be undertaken without complying with the full filing requirements currently set forth in the generation rules for larger facilities. Instead, persons desiring to construct such facilities must (i) submit a letter to the Director of the Division of Energy Regulation stating the location, size and fuel type of the facility and (ii) comply with all other requirements of federal, state and local law.

Modifications to the initial, proposed rules now included in the adopted, revised generation rules include new language in 20VAC5-302-20 and 20VAC5-302-25 enabling persons desiring to construct renewable energy electric generating facilities larger than 5 MW but smaller than 100 MW to utilize the abbreviated application format contained in 20VAC5-302-25. An additional change of significance includes new language in 20VAC5-302-10 permitting applications containing confidential information to be filed under seal, simultaneous with applicants filing motions for protective orders or other confidential treatment.

Other changes from the proposed version to the adopted generation rules include technical and clarifying changes that include, for example, an amendment to 20VAC5-302-35 clarifying that providing "justification of need" for proposed generation facilities is a requirement applicable to only those incumbent electric utilities whose rates are regulated pursuant to § 56-585.1 of the Code of Virginia.

AT RICHMOND, DECEMBER 23, 2008

COMMONWEALTH OF VIRGINIA

At the relation of the

STATE CORPORATION COMMISSION

CASE NO. PUE-2008-00066

Ex Parte: In the matter of revising
the rules of the State Corporation Commission
governing applications to construct and
operate electric generating facilities

ORDER ADOPTING REGULATIONS

On July 25, 2008, the State Corporation Commission ("Commission") entered an Order for Notice and Comment in this docket ("Order") establishing a proceeding to revise the Commission's rules governing applications to construct and operate electric generating facilities, ("Generation Rules" or "Rules").¹ Proposed revisions to the Generation Rules ("Proposed Amendments") prepared by the Commission Staff ("Staff") were appended to the Order.

The Order permitted interested persons to submit, on or before September 26, 2008, (i) comments concerning the Proposed Rules, and (ii) a request for hearing on the Proposed Amendments. The Order further permitted the Staff to file on or before November 5, 2008, a report with the Clerk of the Commission concerning the comments submitted to the Commission ("Staff Report").

Comments concerning the Proposed Amendments were timely received from (i) Virginia Electric and Power Company d/b/a Dominion Virginia Power ("DVP" or "Virginia Power"); (ii) Appalachian Power Company ("Appalachian" or "APCo"); (iii) Columbia Gas of Virginia ("Columbia Gas"); (iv) the Office of the Attorney General, Division of Consumer Counsel ("Consumer Counsel"); (v) the Old Dominion Electric Cooperative ("ODEC"); and (vi) L.S. Power Associates, L.P. ("L.S. Power"). None of the commenting parties requested a hearing, although several of them reserved the right to participate in any hearing scheduled by the Commission in this docket. The Staff Report was timely filed on November 5, 2008.

NOW UPON CONSIDERATION of the comments and the Staff Report filed herein, we find that we should adopt the rules appended hereto as Attachment A, effective January 15, 2009.

The regulations we adopt herein contain a number of modifications to those that were first proposed by the Commission Staff and published in the Virginia Register on August 18, 2008. These modifications (shown in brackets) follow our consideration of changes suggested by the parties in their written comments, changes proposed in the Staff Report, and our analysis of the entire record in this proceeding. We will not comment on each rule in detail, but we will comment on several of them.

First, Consumer Counsel has recommended amending 20 VAC 5-302-10 (Applicability and Scope) to add language expediting the availability of confidential information associated with applications filed under these rules. In particular, Consumer Counsel has suggested that information claimed by an applicant to be confidential be filed under seal, and that the applicant simultaneously file a motion for a protective order or other confidential treatment.² We will adopt this approach in these rules. As Consumer Counsel notes, this treatment of confidential information is similar to the one adopted in the Commission's rate case rules docket (Case No. PUE‑2008‑00001), and the rules we adopt pursuant to this Order will substantially replicate the language proposed in that docket concerning applications containing confidential information. We find it unnecessary, however, to adopt DVP's suggestion that we identify in these rules "extraordinarily sensitive" information as an application-related category of information that can be filed under seal pursuant Rule 170 of the Commission's Rules of Practice and Procedure (5 VAC 5-20-170). DVP comments, Exhibit A at 1. Rule 170 addresses the treatment of "trade secrets, privileged, or confidential commercial or financial information." DVP has not established that the "extraordinarily sensitive" information it refers to does not fall into one of these broad categories.

Second, Columbia Gas proposes that the Commission modify 20 VAC 5-302-20 (General Information, etc.), to make more explicit the obligation of an applicant seeking to construct a natural gas-fired electric generation facility to serve a copy of its application (contemporaneous with its filing with the Commission) upon all natural gas local distribution companies in whose certificated service territories the proposed facility (or interconnected natural gas facilities) will be constructed or operated. Columbia Gas states in its comments that the enhanced notice requirement it proposed would "ensure that the regulated LDC has sufficient notice of the pendency and content of the application to permit the LDC to analyze issues of importance to the LDC and its customers and to participate, as appropriate, in such proceedings." Columbia Gas comments at 5-6. We find the Columbia Gas proposal reasonable and have incorporated it into the rules we adopt herein.

Third, ODEC expressed concern in its comments that the Proposed Amendments retain references in 20 VAC 5-302-35 (Information Required from Incumbent Utilities) to "incumbent electric utilities" as defined in § 56-576 of the Code. As noted by ODEC, inasmuch as 20 VAC 5-302-35 requires incumbent utilities to provide an analysis of need for a proposed facility, the scope of this provision is significant. We agree with ODEC that the General Assembly's 2007 amendments to § 56-580 D of the Code make a demonstration of "public convenience and necessity" applicable only to those "regulated utilities whose rates are regulated pursuant to § 56-585.1" of the Code, i.e., investor-owned utilities.³ ODEC comments at 7. Accordingly, we have clarified both the catch-line and content of 20 VAC 5-302-35 to make clear that its provisions are applicable only to those incumbent utilities (as defined in § 56-576) whose rates are regulated by the Commission pursuant to § 56-585.1.

Fourth, additional amendments were proposed to 20 VAC 5-302-35 (Information Required from Incumbent Utilities) by Consumer Counsel, DVP, and L.S. Power. Consumer Counsel suggested that Subdivision 1 of this provision be modified to require incumbent utilities to submit "front end" engineering and design studies supporting specific "plant design" as well as plant type and site selected. Consumer Counsel advises that this additional language describes more precisely terminology commonly used for the required studies. Consumer Counsel comments at 2. We find the Consumer Counsel's suggested amendments reasonable and have incorporated them into the rules we adopt herein.

DVP's proposed amendments to 20 VAC 5-302-35 included suggestions that the itemized information to be furnished by incumbent utilities under this provision be provided "where available." Additionally, DVP proposed that only "initial" feasibility and engineering-design studies, and "initial" fuel supply studies be furnished pursuant to this provision. DVP states in its comments that the "availability" issue is related to the Company's concern that where applications are associated with "new technologies like future carbon capture compatible technology or improved designs on nuclear reactors[,]" portions of the information required, such as historical information for similar units, may not be available in all situations. DVP comments at 6-7. The Commission Staff, however, in assessing DVP's concern, has suggested resolving the concern directly by modifying Subdivision 3 of 20 VAC 5-302-35 to require incumbents to furnish support for planning assumptions regarding plant performance and operating costs (including historical information for similar units), "where available." Staff Report at 5. We believe the Staff's suggestion is reasonable, and we adopt it in our rules herein.

With respect to DVP's suggestions that incumbents provide only "initial" feasibility and engineering-design studies, and "initial" fuel supply studies, we agree with the utility's assessment that updates to these studies may be provided during the case proceeding, and also obtained through discovery. DVP comments at 7. Accordingly, we have included DVP's suggested changes to Subdivisions 1 and 3 of 20 VAC 5-302-35 in our final rules.

DVP's final proposed amendment to 20 VAC 5-302-35 concerns that rule's Subdivision 5, under which incumbent electric utilities are required to furnish load and generating capacity reserve forecast information demonstrating need. DVP proposes that in the case of renewable energy facilities, such forecast information be associated with demonstrating "need for the plant in meeting the incumbent electric utility's RPS Goals as set forth in § 56-585.2 of the Code of Virginia." DVP comments at 7, 8; Exhibit A to DVP comments at 15. The Staff Report suggests that the proposed language would incorporate a "lesser standard" for demonstrating need associated with a renewable generating facility. Staff Report at 5. We conclude that the proposed language is inconsistent with the provisions of § 56-580 D (ii), which require that the certification of generation facilities proposed by utilities regulated under § 56-585.1 (such as DVP) proceed upon a finding that such facilities are required by the "public convenience and necessity." We find that this statutory requirement is satisfied by ensuring that utilities provide traditional load and generating capacity reserve information demonstrating the need for the plant in the in-service year proposed, irrespective of the type of facility proposed. In short, DVP has not identified a statutory basis for establishing a different standard of need based on the type of facility proposed for construction and operation. Therefore, we will not adopt the language proposed to that effect by DVP. In a similar vein and for the same reasons, we will not adopt APCo's proposal to exempt both renewable facilities and emerging technology facilities from the justification of need. APCo comments at 3.

Fifth, as we noted in our initial Order for Notice and Comment in this docket, the Commission seeks to streamline generation project applications, consistent with the Commission's statutory authority and the public interest. Accordingly, for example, we adopt in these rules provisions in 20 VAC 5-302-10 that permit facilities with rated capacities of 5 MW or less to be undertaken without complying with the filing requirements otherwise set forth in the rules. DVP has proposed further streamlining the filing requirements for facilities of 100 MW or less that utilize renewable energy. Stated simply, DVP suggests that proposed renewable facilities with capacities in excess of 100 MW be subject to the full requirements prescribed under 20 VAC 5-302-20 (filing requirements for generating facilities larger than 50 MW), while renewable facilities with capacities in excess of 5 MW but less than 100 MW would be subject to the streamlined filing requirements contained in 20 VAC 5-302-25. DVP comments at 3-6. We find no legal impediment to this proposal, and that it is reasonable. Accordingly, we will adopt the substance of this recommendation in our final rules herein.

Sixth, Appalachian has recommended that applications proposing the construction of new renewable facilities state the "firm capability" of such facilities rather than the conventional nameplate capacity. Appalachian comments at 4. Appalachian notes in its comments that a generating facility powered by wind energy, for example, is treated by PJM as a firm capacity resource at only 13 percent of its nameplate capacity. Id. Additionally, Appalachian states that such an approach would "allow more renewable sources to qualify for the expedited filing procedures for facilities 50 MW or less, which would promote the development of renewable energy within the Commonwealth." Id. Thus, Appalachian recommends that the rated capacity for renewable generating facilities be defined as the "firm capability" of the facility. The Commission Staff, commenting on this proposal in its Staff Report notes that facilities' nameplate capacity rating may be "more indicative of the 'footprint' of renewable facilities," thus best representing the environmental or aesthetic implications of such facilities. Staff Report at 7. Thus, Staff did not endorse Appalachian's recommendation or believe that further clarification is needed. We would also note that inasmuch as the applicability of the rules we adopt herein are driven, in large part, by the capacity of proposed facilities, departing from nameplate capacity in favor of "firm capability" could result in both inconsistency and irregularity in determining the rule under which a generation project must be filed. Consequently, we conclude that the better approach is to continue to use nameplate capacity as the determinant of filing requirements. Accordingly, we will not adopt Appalachian's proposal.

Seventh, we note ODEC's recommendations concerning 20 VAC 5-302-10, and the streamlined procedures for approving generating facilities of less than 5 MW provided therein. Specifically, the amendments to that rule permit applicants for such facilities to submit a letter to the Director of the Commission's Division of Energy Regulation providing the location, size the fuel type of the facility. The amendment further provides that the applicant must comply with all other requirements of federal, state and local law. ODEC stated that its member distribution cooperatives have an interest in obtaining information about small generation facilities that may be interconnected with such cooperatives' systems. Accordingly, ODEC has recommended that the notification letter procedure be modified so that the letter would be filed with the Clerk of the Commission and that the Clerk make a list of such filings publicly available. ODEC comments at 13. We have considered the substance of ODEC's suggested modifications to this rule, and while we will not incorporate them into this rule, we will direct the Director of the Division of Energy Regulation to establish and maintain on the Commission's website, a listing of all such filings received by the Director, and to provide electronic access to the documents comprising such filings.

Finally, we will address a significant issue raised in this docket by L.S. Power. In particular, L.S. Power has requested that 20 VAC 5-302-35 (Information required from incumbent electric utilities) be modified to require incumbent electric utilities to consider options for procuring power from non-affiliated generators through a Request for Proposal ("RFP") or similar competitive solicitation. L.S. Power has further recommended that the economic studies required in Subdivision 4 of 20 VAC 5-302-35 include comparisons between the proposed facility and any offers received in response to any such solicitation. L.S. Power comments at 3‑5. L.S. Power states that the modifications it proposes are necessary to ensure that utilities "purchase power at the lowest rates available through a transparent, competitive process." Id. at 4. More specifically, L.S. Power suggests that an RFP process would reveal whether a proposed facility is in fact better than all alternative sources of supply, "as the offers received in an RFP represent the price at which suppliers are willing to contract to sell power." Id.

The Staff Report discusses the L.S. Power recommendations and notes that while L.S. Power's comments may have merit, the proposed modifications to the rules effectively integrate a "competitive bidding" requirement into an incumbent electric utility's application to build a new generation facility. According to the Staff, this represents a "significant departure from the proposed rules as disseminated in this docket for comment." Staff Report at 8.

We will not rule on L.S. Power's request as part of this rulemaking proceeding. This Commission has never mandated competitive bidding as part of the filing requirements for new generating facilities, and the consideration of such a significant departure from Commission rules was not included in the proposed rules in this case. Indeed, DVP is the only investor-owned utility in Virginia that has a competitive bidding program, which was implemented on a voluntary basis by DVP. Furthermore, there are pending cases before this Commission addressing DVP's continued application, if at all, of such bidding program,⁴ which will address many, if not all, of the issues raised by L.S. Power. In addition, we recently issued an order addressing the potential supply and construction plans of another investor-owned utility, Allegheny Power Company,⁵ which also discussed the potential relationship of such plans and the statutorily-required integrated resource planning process.⁶ Accordingly, we find that such matters regarding mandatory competitive bidding should be addressed in one or more separate proceedings — either on a case-by-case basis for Virginia's investor-owned utilities or in a generic rulemaking case.

Accordingly, IT IS ORDERED THAT:

(1) We hereby adopt amendments to our Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility, Chapter 302 (20 VAC 5-302-10, et seq.) of the Virginia Administrative Code, all as set forth in Attachment A appended hereto; such amendments shall become effective on January 15, 2009.

(2) A copy of this Order and the rules adopted herein shall be forwarded promptly for publication in the Virginia Register of Regulations.

(3) We hereby direct the Director of the Division of Energy Regulation to establish and maintain on the Commission's website, a listing of all filings made pursuant to 5 VAC 5‑302‑10 received by the Director, and to provide electronic access to the documents comprising such filings.

(4) This case is dismissed and the papers herein shall be placed in the filed for ended causes.

Commissioner Dimitri did not participate in this matter.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the State Corporation Commission, c/o Document Control Center, 1300 East Main Street, First Floor, Tyler Building, Richmond, Virginia 23219.

¹The rules sought to be revised in this proceeding are set forth in Chapter 302 (20 VAC 5-302-10, et seq.) of the Virginia Administrative Code; they are titled "Filing Requirements in Support of Applications for Authority to Construct and Operate an Electric Generating Facility."

²Consumer Counsel states in its comments that timely access to confidential information is important since "generation certificate applications will likely be filed along with a request for a rate adjustment clause and will require the Commission to render a decision within nine months. Va. Code § 56-585.1 A (7)." Consumer Counsel comments at 2.

³§ 56-580 D (ii).

⁴Application of Virginia Electric and Power Company, For a certificate to construct and operate a generating facility; for certificates of public convenience and necessity for a transmission line: Bear Garden Generating Station and Bear Garden-Bremo 230 kV Transmission Interconnection Line, Case No. PUE‑2008‑00014; Application of Virginia Electric and Power Company, Notification to the Commission of election to abandon the Company's bidding program and application to revise its cogeneration tariff pursuant to PURPA Section 210, Case No. PUE‑2008-00078.

⁵Application of The Potomac Edison Company d/b/a Allegheny Power, For an increase in its electric rates pursuant to Va. Code §§ 56-249.6 and 56-582 and, alternatively, request to modify Memorandum of Understanding and Order in Case No. PUE‑2000-00280, Case No. PUE-2008-00033, Final Order dated November 26, 2008.

⁶Section 56-599 of the Code of Virginia.

20VAC5-302-10. Applicability and scope.

Any application, except as noted herein, filed by a person planning to construct electric generating facilities and incidental or associated facilities in the Commonwealth of Virginia and who must apply for approval from the State Corporation Commission ("commission"), pursuant to §§ 56-46.1, and 56-580 D of the Code of Virginia must comply with the provisions of this chapter. Distributed generation facilities as they may be defined by the commission and net energy metering facilities as defined in § 56-594 of the Code of Virginia are not subject to this chapter. Applications filed pursuant to this chapter must shall set forth (i) the nature of the proposed facility, (ii) the applicant's technical and financial fitness to construct, operate and maintain the proposed facility, (iii) the effects of the facility on the environment and economic development, (iv) the effects of the facility upon reliability of electric service provided by any regulated public utility, and (v) why construction and operation of the proposed facility is not contrary to the public interest.

Construction of electric generating facilities with [ a ] rated [ capacity capacities ] of 5 MW or less may be undertaken without complying with the filing requirements established by this chapter. Persons desiring to construct such facilities shall (i) submit a letter to the Director of the Division of Energy Regulation stating the location, size and fuel type of the facility, and (ii) comply with all other requirements of federal, state and local law.

[ The filing of confidential information will be treated in accordance with ] 20VAC5-20-170 [ 5VAC5-20-170 of the] Commission's [ State Corporation Commission Rules of Practice and Procedure (5VAC5-20-10 et seq.). Where any application filed under these rules, including any supporting documents or prefiled testimony, contains information that the applicant asserts is confidential, the filing may be made under seal in accordance with 5VAC5-20-170 of the commission’s Rules of Practice and Procedure, 5VAC5-20. Any such filing shall be simultaneously accompanied by both a motion for a protective order or other confidential treatment, and an additional five copies of a redacted version of the filing to be available for public disclosure. Unredacted filings containing the confidential information shall, however, be immediately available to the commission staff for internal use at the commission. ]

20VAC5-302-20. General information, electric generating facility information and documents to be included in [ the application applications ] for [ (i) ] electric generating facilities greater than 50 MW [ and (ii) renewable energy electric generating facilities with rated capacities greater than 100 MW ].

The following information shall be provided for all proposed [ (i) ] electric generating facilities with [ a ] rated [ capacity capacities ] in excess of 50 MW [ and (ii) renewable energy electric generating facilities with rated capacities greater than 100 MW. As used in this rule, "renewable energy" shall have the same meaning as set forth in § 56-576 of the Code of Virginia ]. In addition, an applicant [ requiring the construction of natural gas facilities in conjunction with proposing ] the construction, ownership or operation of [ an a natural gas-fired ] electric generating facility shall serve [ notice a copy ] of its application for construction of the electric generating facility upon all natural gas local distribution companies in whose certificated service territories [ the such electric generating facility or interconnected ] natural gas facilities will be constructed or operated [ , contemporaneously with the filing of such application ].

1. Legal name of the applicant as well as any trade name.

2. A description of the applicant's authorized business structure, identifying the state authorizing such structure and the date thereof, e.g., if incorporated, the state and date of incorporation; if a limited liability company, the state issuing the certificate of organization and the date thereof.

3. Name and business addresses of all principal corporate officers and directors, partners, and LLC members, as appropriate.

4. Financial information for the applicant, or principal participant or participants in the project. If the applicant or principal participant or participants is a private entity, financial information should include an analysis of the entity's financial condition and audited financial statements for the two most recent fiscal years. If the applicant or principal participant or participants is a public company, financial information should include the entity's most recent stockholder report and most recent Securities and Exchange Commission Form 10-K.

5. Prefiled testimony in support of the application.

6. A discussion of the applicant's qualifications, including:

a. A summary of other projects developed and managed by the applicant. Include location, status, and operational history.

b. A detailed description of the organizational structure of the applicant. Include the division of ownership, if applicable.

c. A description of any affiliation or affiliations with an incumbent electric utility as defined in § 56-576 of the Code of Virginia.

7. Specific information about the site for the proposed facility, including:

a. A written description of the location including identification of the city or county in which the facility will be constructed. Such description should be suitable for newspaper publication and be sufficient for identification of affected areas.

b. A description of the site, and a depiction on topographic maps of the proposed site.

c. The status of site acquisition (i.e., purchase option, ownership, etc.).

d. A description of any applicable local zoning or land use approvals required and the status of such approvals.

8. Specific information about the proposed facility, including:

a. Description of all major systems, facility configuration and expected suppliers of major components.

b. Nameplate capacity, gross dependable capacity, net dependable capacity and expected seasonal heat rates.

c. Estimated costs, and schedule for construction, testing and commercialization.

9. A description of the fuel supply arrangement for the proposed facility. The description should detail:

a. Fuel type, quality and source or sources.

b. Transportation and fuel storage arrangements for fuel delivery.

c. Identification of all new pipeline facilities, if any, needed to serve the proposed facility.

d. Ownership of any such facilities.

e. Plans for constructing such facilities.

f. The location and routing of any such facilities.

g. The size of such facilities.

h. Whether such facilities will be utilized to provide or enhance fuel supplies to other entities.

i. Identification of the pipeline or gas distribution company and the rate schedule the applicant intends to utilize in order to serve the proposed generating facility. Identification of whether the service is firm or interruptible.

j. If the applicant is to be served by firm capacity from an interstate pipeline, identification of whether the capacity is to be acquired through the construction of new facilities, via capacity that is currently unsubscribed or through capacity purchased on the secondary market.

k. If pipeline capacity is to be constructed, identification of the FERC Federal Energy Regulatory Commission docket number or any open season that has been held by the interstate pipeline.

l. If capacity is to be purchased on the secondary market, identification of the availability of secondary market capacity in the plant's market area during days that the plant intends to operate.

m. Identification of the proposed in-service date of any facilities to be constructed.

n. In general terms, description of the availability of fuel supplies required to serve the proposed facility.

10. A discussion of economic impacts (both positive and negative), of the project. The discussion should address the tax and employment implications of the project.

11. A list of other local, state or federal government agencies whose requirements must be met in connection with the construction or operation of the project and a statement of the status of the approval procedures for each of these agencies.

12. An analysis of the environmental impact of the project shall be provided sufficient to enable the commission to make the determinations required by §§ 56-46.1 and 56-580 D of the Code of Virginia. This analysis shall include, but is not limited to, the impacts on the environment and natural resources, analysis of alternatives considered, unavoidable adverse impacts, mitigation measures proposed to minimize unavoidable impacts, and any irreversible environmental changes. The information required by this subdivision shall be submitted to the Department of Environmental Quality, simultaneously with its filing with the commission, for coordination and review by state agencies responsible for environmental and natural resource protection. Such The information shall include at a minimum, the following identify:

a. Air quality. Discussion should identify required Required air permits, expected restrictions, expected emissions, rates of emissions, and any needed emissions offsets or allowances.

b. Water source. Discussion should include required Required permits for water withdrawals, expected restrictions, the amount of water estimated to be used, the source of such water, identification of a backup source of water, if any, and identification of any facilities that need to be constructed to provide such water.

c. Discharge of cooling water. Discussion should include an identification of required Required permits for water discharge and potential impacts on regional water flows.

d. Tidal and nontidal wetlands. Discussion should include an identification of any required Required permits related to the wetlands and an identification of any tidal and nontidal wetlands located near the proposed site and how such wetlands will be impacted by applicant's proposed facility.

e. Solid and hazardous wastes. Discussion should address impact Impact of solid and hazardous wastes on local water resources.

f. Natural Impact on natural heritage resources, and on threatened and endangered species.

g. Erosion and sediment control measures.

h. Archaeological, historic, scenic, cultural, or architectural resources in the area.

i. Chesapeake Bay Preservation Areas designated by the locality.

j. Wildlife resources.

k. Recreation, agricultural and forest resources. Discussion should identify Agricultural and forest resources and federal, local, state or private parks and recreation areas.

l. The use Use of pesticides and herbicides.

m. Geology and mineral resources, caves, and sinkholes.

n. Transportation infrastructure.

13. A general discussion of reliability impacts including:

a. A description of transmission interconnection requirements and needed interconnection facilities.

b. A description of the potential impact of the proposed facility on the interconnected transmission system. Discussion should identify and summarize any system impact studies or proposed studies.

c. A description of anticipated services (ancillary services, re-dispatch, energy imbalance, etc.) that may be provided to any transmission service provider.

d. A discussion of existing and expected generation reserves in the region and the impact of the proposed facility on such reserves.

14. A discussion of whether the proposed facility is not contrary to the public interest. Such The discussion shall include, but is not limited to, an analysis of any reasonably known impacts the proposed facility may have upon reliability of service to, and rates paid by, customers of any regulated public utility for service in the Commonwealth, including water service, gas distribution service, electric distribution service, and electric transmission service.

15. A discussion of whether and, if so, how the project will further the goals of advancement of electric competition in Virginia.

20VAC5-302-25. General information, electric generating facility information and documents to be included in [ the application applications ] for [ (i) ] electric generating facilities equal to 50 MW or less but greater than 5 MW [ , and (ii) renewable energy electric generating facilities with rated capacities equal to 100 MW or less but greater than 5 MW ].

The following information shall be provided for all proposed [ (i) ] electric generating facilities with [ a ] rated [ capacity capacities ] of 50 MW or less but greater than 5 MW [ , and (ii) renewable energy electric generating facilities with rated capacities equal to 100 MW or less but greater than 5 MW. As used in this rule, "renewable energy" shall have the same meaning as set forth in § 56-576 of the Code of Virginia ].

1. Legal The legal name of the applicant as well as any trade name.

2. A description of the applicant's authorized business structure, identifying the state authorizing such structure and the date thereof, e.g., if incorporated, the state and date of incorporation; if a limited liability company, the state issuing the certificate of organization and the date thereof.

3. Name The name and business addresses of all principal corporate officers and directors, partners, and LLC members, as appropriate.

4. Financial information for the applicant, or principal participant or participants in the project. If the applicant or principal participant or participants is a private entity, financial information should include an analysis of the entity's financial condition and audited financial statements for the two most recent fiscal years, if available. If the applicant or principal participant or participants is a public company, financial information should include the entity's most recent stockholder report and most recent Securities and Exchange Commission Form 10-K. If such information is unavailable, provide evidence that applicant has the financial resources, or access to capital, necessary to complete the proposed project.

5. A discussion of the applicant's qualifications, including:

a. A summary of other projects developed and managed by the applicant. Include location, status, and operational history.

b. A description of any affiliation or affiliations with an incumbent electric utility as defined in § 56-576 of the Code of Virginia.

6. Specific information about the site for the proposed facility, including:

a. A written description of the location including identification of the city or county in which the facility will be constructed. Such The description should be suitable for newspaper publication and be sufficient for identification of affected areas.

b. A description of the site, and a depiction on topographic maps of the proposed site.

c. The status of site acquisition (i.e., purchase option, ownership, etc.).

7. A general description of the proposed facility, type of facility, size and fuel type.

8. A general description of the fuel supply arrangement for the proposed facility.

9. A general discussion of the economic developments impacts of the project.

10. A list of other local, state or federal government agencies whose requirements must be met in connection with the construction or operation of the project and a statement of the status of the approval procedures for each of these agencies.

11. An analysis of the environmental impact of the project shall be provided sufficient to enable the commission to make the determinations required by §§ 56-46.1 and 56-580 D of the Code of Virginia. This analysis shall include, but is not limited to, the impacts on the environment and natural resources, analysis of alternatives considered, unavoidable adverse impacts, mitigation measures proposed to minimize unavoidable impacts, and any irreversible environmental changes. The information required by this subdivision shall be submitted to the Department of Environmental Quality, simultaneously with its filing with the commission, for coordination and review by state agencies responsible for environmental and natural resource protection. Such The information shall include at a minimum, the following identify:

a. Air quality. Discussion should identify required Required air permits, expected restrictions, expected emissions, rates of emissions, and any needed emissions offsets or allowances.

b. Water source. Discussion should include required Required permits for water withdrawals, expected restrictions, the amount of water estimated to be used, the source of such water, identification of a backup source of water, if any, and identification of any facilities that need to be constructed to provide such water.

c. Discharge of cooling water. Discussion should include an identification of required Required permits for water discharge and potential impacts on regional water flows.

d. Tidal and nontidal wetlands. Discussion should include an identification of any required Required permits related to the wetlands and an identification of any tidal and nontidal wetlands located near the proposed site and how such wetlands will be impacted by applicant's proposed facility.

e. Solid and hazardous wastes. Discussion should address impact Impact of solid and hazardous waste on local water resources.

f. Natural Impact on natural heritage resources, and on threatened and endangered species.

g. Erosion and sediment control measures.

h. Archaeological, historic, scenic, cultural, or architectural resources in the area.

i. Chesapeake Bay Preservation Areas designated by the locality.

j. Wildlife resources.

k. Recreation, agricultural and forest resources. Discussion should identify Agricultural and forest resources and federal, local, state or private parks and recreation areas.

l. The use Use of pesticides and herbicides.

m. Geology and mineral resources, caves, and sinkholes.

n. Transportation infrastructure.

12. A general discussion of reliability impacts including:

a. A description of transmission interconnection requirements and needed interconnection facilities.

b. A description of the potential impact of the proposed facility on the interconnected transmission system. Discussion should identify and summarize any system impact studies or proposed studies.

c. A description of anticipated services (ancillary services, redispatch, energy imbalance, etc.) that may be provided to any transmission service provider.

d. A discussion of existing and expected generation reserves in the region and the impact of the proposed facility on such reserves.

13. Any other information the applicant wishes to include that will demonstrate that the project is not contrary to the public interest.

14. A discussion of whether and, if so, how the project will further the goals of advancement of electric competition in Virginia.

20VAC5-302-35. Information required from [ incumbent ] electric utilities and affiliates of incumbent electric utilities [ subject to § 56-585.1 of the Code of Virginia ].

Any incumbent electric utility as defined in § 56-576 of the Code of Virginia and any affiliate of an incumbent electric utility proposing to construct an electric generating facility within its control area in the Commonwealth of Virginia [ should and subject to the commission's ratemaking authority pursuant to § 56-585.1 of the Code of Virginia shall ] provide a discussion of how justification of the need for the proposed facility will impact its ability to exert market power within its control area. In addition, the following information should shall be included:

1. Total capacity controlled by, or under contract to, the applicant and its affiliates located within the control area and reasonably accessible to the control area through transmission interconnections, with and without the proposed facility.

2. Total capacity located within the control area and reasonably accessible to the control area through transmission interconnections, with and without the proposed facility.

3. A calculation showing the percentage of capacity within and accessible to the control area through transmission interconnections owned by the applicant and its affiliates, with and without the proposed facility. 1. [ Feasibility Initial feasibility ] and [ front end ] engineering design studies that support the specific [ plant design, ] plant type and site selected.

2. [ Fuel Initial fuel ] supply studies that demonstrate the availability and adequacy of selected fuels.

3. Detailed support for planning assumptions regarding plant performance and operating costs, including historical information for similar units [ , where available ].

4. Economic studies that compare the selected alternative with other options considered, including sensitivity analyses and production costing simulations of the applicant's overall generating resources that demonstrate that the selected option is the best alternative.

5. Load and generating capacity reserve forecast information that demonstrates the need for the plant in the in-service year proposed.

6. Detailed cost estimate for the facility, [ included including ] projected costs of construction, transmission interconnections, fuel supply related infrastructure improvements and project financing.

Title of Regulation: 24VAC30-15. Delegation of Duties (repealing 24VAC30-15-10).

Statutory Authority: § 33.1-8 of the Code of Virginia.

Effective Date: February 18, 2009.

Agency Contact: Keith M. Martin, Regulatory Coordinator, Department of Transportation, Policy Division, 11th Floor, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786-1830, FAX (804) 225-4700, or email keithm.martin@vdot.virginia.gov.

Summary:

This regulation lists the signatory authority and responsibilities of key members of the agency's senior management. Since this regulation was initially filed as part of the Virginia Administrative Code, the Department of Transportation has developed a formal process for documenting and tracking the commissioner’s delegation of duties and appointments, and the scope and number of positions covered are greater than those listed in the original regulation.

This determination was based on the finding that the duties are delegated pursuant to a specific grant of authority in §§ 2.2-604 and 33.1-8 of the Code of Virginia. This regulation is, therefore, unnecessary and is repealed.

Notice is hereby given that the Commission on the Virginia Alcohol Safety Action Program has WITHDRAWN the Notice of Intended Regulatory Action for 24VAC35-10, Public Participation Guidelines; 24VAC35-20, Policy and Procedure Manual; 24VAC35-30, Case Management Policy and Procedure Manual; 24VAC35-40, Certification Requirements; and 24VAC35-50, Training and Credentialing Manual, which were published in 15:19 VA.R. 2443 June 7, 1999:

Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email rfoy.vasap@state.va.us.

Notice is hereby given that the Commission on the Virginia Alcohol Safety Action Program has WITHDRAWN the Notice of Intended Regulatory Action for 24VAC35-10, Public Participation Guidelines; 24VAC35-20, Policy and Procedure Manual; 24VAC35-30, Case Management Policy and Procedure Manual; 24VAC35-40, Certification Requirements; and 24VAC35-50, Training and Credentialing Manual, which were published in 15:19 VA.R. 2443 June 7, 1999:

Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email rfoy.vasap@state.va.us.

Notice is hereby given that the Commission on the Virginia Alcohol Safety Action Program has WITHDRAWN the Notice of Intended Regulatory Action for 24VAC35-10, Public Participation Guidelines; 24VAC35-20, Policy and Procedure Manual; 24VAC35-30, Case Management Policy and Procedure Manual; 24VAC35-40, Certification Requirements; and 24VAC35-50, Training and Credentialing Manual, which were published in 15:19 VA.R. 2443 June 7, 1999:

Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email rfoy.vasap@state.va.us.

Notice is hereby given that the Commission on the Virginia Alcohol Safety Action Program has WITHDRAWN the Notice of Intended Regulatory Action for 24VAC35-10, Public Participation Guidelines; 24VAC35-20, Policy and Procedure Manual; 24VAC35-30, Case Management Policy and Procedure Manual; 24VAC35-40, Certification Requirements; and 24VAC35-50, Training and Credentialing Manual, which were published in 15:19 VA.R. 2443 June 7, 1999:

Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email rfoy.vasap@state.va.us.

Notice is hereby given that the Commission on the Virginia Alcohol Safety Action Program has WITHDRAWN the Notice of Intended Regulatory Action for 24VAC35-10, Public Participation Guidelines; 24VAC35-20, Policy and Procedure Manual; 24VAC35-30, Case Management Policy and Procedure Manual; 24VAC35-40, Certification Requirements; and 24VAC35-50, Training and Credentialing Manual, which were published in 15:19 VA.R. 2443 June 7, 1999:

Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email rfoy.vasap@state.va.us.