Title of Regulation: 1VAC20-50. Candidate Qualification (amending 1VAC20-50-20).

Statutory Authority: §§ 24.2-103 and 24.2-506 of the Code of Virginia.

Public Hearing Information:

December 18, 2018 - 11:30 a.m. - Virginia State Capitol Building, 1000 Bank Street, Senate Room 3, Richmond, VA 23219

Public Comment Deadline: December 17, 2018.

Agency Contact: David Nichols, Director of Election Services, Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8952, or email david.nichols@elections.virginia.gov.

Summary:

The proposed amendments (i) make the candidate's petition invalid if the candidate's residence address provided on the petition does not match the candidate's voter registration record at the time of the petition's circulation and (ii) permit the petition or signature to be determined valid even if the signer fails to provide the year when signing the petition. The proposed amendments add to the circumstances in which an omission will be considered nonmaterial and will not render the petition or signature invalid. The general registrar must still be able to independently and reasonably verify the validity of the petition or signature.

1VAC20-50-20. Material omissions from candidate petitions and petition signature qualifications.

A. Pursuant to the requirements of §§ 24.2-506, 24.2-521, and 24.2-543 of the Code of Virginia, a petition or a petition signature should not be rendered invalid if it contains an error or omission not material to its proper processing.

B. The following omissions are always material and any petition containing such omissions shall be rendered invalid if:

1. The petition submitted is not the double-sided document, or a double-sided copy thereof, provided by the State Board of Elections;

2. The petition does not have the name, or some variation of the name, and address of the candidate on the front of the form;

3. The petition fails to identify the office sought on the front of the form;

4. The petition fails to identify the applicable election district in which the candidate is running for office;

5. The candidate's residence address provided on the petition does not match the candidate's voter registration record at the time of the petition's circulation;

6. The circulator has not signed the petition affidavit and provided his current address;

6. 7. The circulator is a minor or a felon whose voting rights have not been restored;

7. 8. The circulator has not signed the petition he circulated in the presence of a notary;

8. 9. The circulator has not had a notary sign the affidavit for each petition submitted;

9. 10. A person other than the circulator signed the petition affidavit;

10. 11. The notary has not affixed a photographically reproducible seal;

11. 12. The notary has not included his registration number and commission expiration date; or

12. 13. Any combination of the scenarios of this subsection exists.

C. The following omissions related to individual petition signatures are always material and any petition signature containing such omission shall be rendered invalid if:

1. The signer is not qualified to cast a ballot for the office for which the petition was circulated;

2. The signer is also the circulator of the petition;

3. The signer provided an accompanying date that is subsequent to the date upon which the notary signed the petition;

4. The signer did not sign the petition; or

5. The signer provided an address that does not match the petition signer's address in the Virginia voter registration system, unless the signer provided an address that is within the same precinct where a voter is currently registered in the Virginia voter registration system, and the signer can be reasonably identified as the same registered voter.

D. The following omissions shall be treated as nonmaterial provided the general registrar can independently and reasonably verify the validity of the petition or signature:

1. An older version of the petition is used (provided that the information presented complies with current laws, regulations, and guidelines);

2. The "election information" including (i) county, city, or town in which the election will be held; (ii) election type; and (iii) date of election are omitted;

3. The name of the candidate and office sought are omitted from the back of the petition;

4. The circulator has not provided the last four digits of his social security number in the affidavit;

5. The signer omits his first name, provided he provides a combination of his first or middle initials or a middle name and last name and address that matches a qualified voter within the Virginia voter registration system;

6. The signer provided a derivative of his legal name as his first or middle name (e.g., "Bob" instead of "Robert");

7. The signer prints his name on the "Print" line and prints his name on the "Sign" line; or

8. The signer fails to provide the date but a period of time that qualifies can affirmatively be established with previous and subsequent dates provided by other signers upon the petition page; or

9. The signer fails to provide the year when signing the petition.

E. A signature upon a petition shall be included in the count toward meeting the petition signature requirements only if:

1. The petition signer is a qualified voter who is maintained on the Virginia voter registration system either (i) with active status or (ii) with inactive status and qualified to vote for the office for which the petition was circulated;

2. The signer provides his name; and

3. The signer provides an address that matches the petition signer's address in the Virginia voter registration system, or the signer provided an address that is within the same precinct where a voter is currently registered in the Virginia voter registration system, and the signer can be reasonably identified as the same registered voter.

Title of Regulation: 1VAC42-30. Fraud and Abuse Whistle Blower Reward Fund (adding 1VAC42-30-10 through 1VAC42-30-100).

Statutory Authority: § 2.2-3014 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 25, 2019.

Agency Contact: Mark Courtney, Regulatory Coordinator, Office of the State Inspector General, 101 North 14th Street, 7th Floor, Richmond, VA 23219, telephone (804) 625-3255, FAX (804) 371-0165, or email mark.courtney@osig.virginia.gov.

Basis: Section 2.2-309 of the Code of Virginia outlines the powers and duties of the State Inspector General, and subsection E of § 2.2-3014 of the Code of Virginia requires the Office of the State Inspector General (OSIG) to promulgate regulations for the administration of the Fraud and Abuse Whistle Blower Reward Fund.

Purpose: The proposed regulations (i) provide direction to state agency employees and citizens for reporting instances of fraud or abuse within executive branch agencies; (ii) encourage state agency employees and citizens of the Commonwealth to report instances of fraud, abuse, or other wrongdoing committed within executive branch agencies and nonstate agencies or by independent contractors of state agencies; (iii) provide resources to pay monetary rewards to state agency employees and citizens who provide relevant information to the OSIG that results in recovery of funds on behalf of the Commonwealth; and (iv) provide statutory protection for state employees and citizens who report instances of abuse or wrongdoing from discrimination or retaliation by state agencies.

Substance: The proposed regulation defines the Fraud and Abuse Whistle Blower Reward Fund and its administration by the Office of the State Inspector General, including fund eligibility requirements, fund amount, fund distribution, process for leftover fund moneys at the end of the fiscal year, and the establishment of the fund on the books of the Comptroller, including:

Providing information on the Whistle Blower Protection Act and Whistle Blower Reward Fund; definitions for technical terms in regulations and how technical terms apply to Whistle Blower Reward Fund; and guidelines for reporting instances of alleged fraud, waste, or other wrongdoing in state government executive branch agencies.

Explaining OSIG's role in administering the Whistle Blower Protection Act (WBPA) Program and the Whistle Blower Reward Fund and how OSIG will communicate information about and advertise the WBPA Program and the Whistle Blower Reward Fund.

Explaining the process OSIG staff follows when a whistle blower allegation under the WBPA Program is received and when investigating a whistle blower allegation.

Explaining the structure of the Whistle Blower Reward Fund and what happens to its moneys; how payments from the Whistle Blower Reward Fund are made to whistle blowers and defining those payments; what legal protections whistle blowers have as a result of the WBPA, including antiretaliation provisions; and the annual report OSIG must provide the General Assembly and the Governor concerning the WBPA Program and the Whistle Blower Reward Fund.

Issues: The advantages of the proposed regulation is that it will provide direction to all citizens of the Commonwealth of Virginia, including state employees, for reporting instances of fraud or abuse within executive branch agencies.

All moneys recovered by the State Inspector General as the result of whistle blower activity and alerts originating with OSIG shall be deposited in the fund (85% of all sums recovered shall be remitted to the institutions or governmental agencies on whose behalf the recovery was secured unless otherwise directed by a court of law). Interest earned on moneys in the fund shall remain in the fund and be credited to it. Any moneys remaining in the fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the fund.

Moneys in the fund shall be used solely to (i) provide monetary rewards to persons who have disclosed information of wrongdoing or abuse and the disclosure results in a recovery of at least $5,000 or (ii) support the administration of the fund, defray fund advertising costs, or subsidize the operation of the Fraud, Waste and Abuse Hotline.

There are no anticipated disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Virginia Code § 2.2-3014, the Office of the State Inspector General (OSIG) proposes to promulgate this regulation in order to set out administrative procedures and rules for the Fraud and Abuse Whistle Blower Reward Fund (Fund).

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

Estimated Economic Impact. The Fraud and Abuse Whistle Blower Protection Act (Act)¹ was enacted in 2009 in order to protect executive branch state employee whistle blowers from discrimination or retaliation by their employing agency, other state agencies, or independent contractors of state agencies. The Act also established the Fund in order to provide monetary rewards to whistle blowers who have disclosed information of wrongdoing or abuse described under the Act. Chapter 403 of the 2014 Acts of Assembly² expanded the protections of the Fraud and Abuse Whistle Blower Protection Act to all Virginia citizens, and made Virginian whistle blowers not employed by the Commonwealth eligible for an award from the Fund. Chapter 316 of the 2015 Acts of Assembly³ added independent state agencies as agencies covered by the Act. Finally, Chapter 292 of the 2016 Acts of Assembly⁴ made the Act applicable to local government and public school divisions as well.

The promulgation of this regulation is beneficial in that it makes procedures and requirements more transparent for potential whistle blowers and employers. The regulation does not introduce new costs. Thus, the proposed regulation will create a net benefit.

If the primary purpose of the Fund is to increase the likelihood that instances of fraud, abuse, or other wrongdoing is reported, then it may be advisable to eliminate the residency requirement. Individuals may be reluctant to report their superiors within an agency while working there but be more willing to report once they leave that job for one perhaps out of state. Additionally, employees of an out-of-state firm that has a contract with a Virginia agency could potentially be encouraged to report fraud if they were eligible for a reward. The 2014 legislation does limit fund awards to Commonwealth residents. Therefore, OSIG does not have discretion to change that in this regulation.

Businesses and Entities Affected. The proposed regulation potentially affects all executive branch and independent state agencies, local governments, public school divisions, and independent contractors of these entities.

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

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

Effects on the Use and Value of Private Property. The proposed regulation is unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The proposed regulation is unlikely to affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation is unlikely to significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed regulation does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed regulation does not adversely affect businesses.

Localities. The proposed regulation does not adversely affect localities.

Other Entities. The proposed regulation does not adversely affect other entities.

_______________________________

¹See http://lis.virginia.gov/cgi-bin/legp604.exe?091+ful+CHAP0340

²See http://leg1.state.va.us/cgi-bin/legp504.exe?141+ful+CHAP0403

³See http://lis.virginia.gov/cgi-bin/legp604.exe?151+ful+CHAP0316

⁴See http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0292

Agency's Response to Economic Impact Analysis: The Office of the State Inspector General concurs with the economic impact analysis.

Summary:

The proposed regulation defines the Fraud and Abuse Whistle Blower Reward Fund and its administration by the Office of the State Inspector General, including (i) eligibility requirements, (ii) amount and distribution, (iii) process for leftover moneys at the end of the fiscal year, and (iv) the fund's establishment on the books of the Comptroller.

CHAPTER 30
FRAUD AND ABUSE WHISTLE BLOWER
REWARD FUND

1VAC42-30-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abuse" means an employer's or employee's conduct or omissions that result in substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government sources.

"Commonwealth" means the Commonwealth of Virginia.

"Disclosure" means a voluntary formal or informal communication or transmission of (i) any violation of any law, rule, or regulation; (ii) gross mismanagement; (iii) a gross waste of funds; (iv) an abuse of authority; or (v) a substantial and specific danger to public health or safety.

"Employee" means any individual who is employed on either a salaried or wage basis, whose tenure is not restricted as to temporary or provisional appointment, in the service of and whose compensation is payable no more often than biweekly in whole or in part by a Virginia governmental agency.

"Employer" means a person supervising one or more employees, including the employee filing a good faith report, a superior of that supervisor, or an agent of the governmental agency.

"Executive branch agency" or "agency" means any agency, institution, board, bureau, commission, council, public institution of higher education, or instrumentality of state government in the executive department listed in the appropriation act.

"Fraud" means the intentional deception perpetrated by an individual or an organization, either internal or external to state government, that could result in a tangible or intangible benefit to themselves, others, or the Commonwealth, including local government, or could cause detriment to others or the Commonwealth. Fraud includes a false representation of the facts, whether by words or by conduct. Fraud also includes false or misleading statements, the concealment of essential information, or information or actions that deceive or are intended to deceive.

"Fraud and Abuse Whistle Blower Protection Act Program" or "WBPA Program" means the policy of the Commonwealth that Commonwealth citizens and employees of state government are freely able to report instances of wrongdoing or abuse committed by their employing agency, other state agencies, or independent contractors of state agencies.

"Fraud and Abuse Whistle Blower Reward Fund" or "fund" means the fund used solely to provide monetary rewards to Commonwealth citizens who have disclosed information of wrongdoing or abuse under the WBPA Program that results in a recovery of at least $5,000.

"Good faith report" means a reported incident of possible wrongdoing or abuse made without malice, for which the person reporting has reasonable cause to believe wrongdoing or abuse occurred.

"Governmental agency" means (i) any agency, institution, board, bureau, commission, council, or instrumentality of state government in the executive branch listed in the appropriation act and any independent agency; (ii) any county, city, town, or local or regional governmental authority; and (iii) any local school division as defined in § 22.1-280.2:2 of the Code of Virginia.

"Hotline coordinator" means a qualified employee, designated by a governmental agency director or chief administrator, responsible for conducting State Fraud, Waste and Abuse Hotline investigations referred to the agency by OSIG.

"Internal audit director" means a director of a governmental agency internal audit program.

"Misconduct" means conduct or behavior by an employee that is inconsistent with state, local, or agency standards for which specific corrective or disciplinary action is warranted.

"Nonstate agency" means any public or private foundation, authority, institute, museum, corporation, or similar organization that is (i) not a unit of state government or a political subdivision of the Commonwealth as established by general law or special act and (ii) wholly or principally supported by state funds. "Nonstate agency" shall not include any such entity that receives state funds (a) as a subgrantee of a state agency; (b) through a state grant-in-aid program authorized by law; (c) as a result of an award of a competitive grant or a public contract for the procurement of goods, services, or construction; or (d) pursuant to a lease of real property as described in subdivision 5 of § 2.2-1149 of the Code of Virginia.

"Office of the State Inspector General" or "OSIG" means the governmental agency that conducts independent investigations, performance audits, and other services designed to provide objective and useful information to the Commonwealth and those charged with its governance and promotes efficiency and effectiveness in state government executive branch agencies in accordance with Article 1 (§ 2.2-307 et seq.) of Chapter 13.2 of the Code of Virginia.

"Public body" means any legislative body; any authority, board, bureau, commission, district, agency, or political subdivision of the Commonwealth, including counties, cities, towns, city councils, boards of supervisors, school boards, planning commissions, and boards of visitors of institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds. "Public body" includes any committee, subcommittee, or other entity however designated of the public body or formed to advise the public body, including those with private sector or citizen members and corporations organized by the Virginia Retirement System. For the purposes of this chapter, the term "public body" does not include the courts of the Commonwealth.

"Reward" means a monetary benefit payable from the fund by OSIG to an eligible whistle blower.

"Screening process" means OSIG's internal review to ensure reports of information or disclosures of wrongdoing fall within the authority of the WBPA Program.

"State Fraud, Waste and Abuse Hotline" or "hotline" means the program (i) that provides Commonwealth citizens with a confidential and anonymous method to report suspected occurrences of fraud, waste, and abuse in state agencies and institutions and (ii) that provides the Commonwealth a way to investigate such occurrences to determine their validity and make appropriate recommendations to address deficiencies.

"Whistle blower" means a Commonwealth employee or citizen who witnesses or has evidence of wrongdoing or abuse and who makes a good faith, open, and public report of the wrongdoing or abuse to one of the employee's superiors, an agent of the employer, or an appropriate authority.

"Wrongdoing" means a violation, which is not of a merely technical or minimal nature, of a federal or state law or regulation or a formally adopted code of conduct or ethics of a professional organization designed to protect the interests of the public or an employee. "Wrongdoing" includes (i) any violation of any law, rule, or regulation; (ii) gross mismanagement; (iii) a gross waste of funds; (iv) an abuse of authority; or (v) a substantial and specific danger to public health or safety.

1VAC42-30-20. Office of the State Inspector General responsibilities.

A. OSIG is responsible for administering the WBPA Program and fund and the following tasks:

1. Notifying annually Commonwealth employees, citizens, and governmental bodies, including state agencies, of the WBPA Program and fund regulations and procedures for submitting information regarding wrongdoing or abuse.

2. Protecting the identity of Commonwealth employees and citizens who make allegations of wrongdoing or abuse through the WBPA Program. OSIG will keep this information confidential to the extent allowed by law.

3. Conducting appropriate investigations and preparing official reports.

4. Receiving and evaluating fund claims.

5. Ensuring payment of approved fund moneys to whistle blowers.

6. Submitting an annual report on WBPA Program activities to the Governor and General Assembly.

7. Notifying individuals making allegations of the possible incentives as a result of moneys recovered and available through the fund.

B. OSIG is responsible for assigning, coordinating, and investigating alleged wrongdoing or abuse reported to OSIG under the WBPA Program. OSIG may work with executive branch agency internal audit directors, executive branch agency hotline coordinators, or representatives of public bodies when performing WBPA Program investigations.

1VAC42-30-30. Fraud and Abuse Whistle Blower Protection Act Program and Reward Fund notification.

A. Annually, the State Inspector General will communicate with all state agency heads. The communication will:

1. Publicize the WBPA Program and fund.

2. Explain the protections afforded to individuals who report instances of wrongdoing or abuse committed within executive branch agencies and nonstate agencies.

3. Notify state agency heads of relevant statutory amendments or program changes.

4. Contain the requirements for reporting allegations to OSIG and the incentives under the WBPA Program.

5. Clarify pertinent differences between the WBPA Program and the hotline regarding the rules governing anonymity and confidentiality.

6. Provide available materials to assist agency heads in promoting the WBPA Program and fund, as well as available training for Commonwealth employees regarding the WBPA Program and fund.

B. Annually, OSIG will publicize the WBPA Program and fund on the OSIG website and to Commonwealth citizens through the distribution of a news release to Virginia media, as well as to state employees through an electronic communication in partnership with the Department of Human Resource Management. The communication will:

1. Contain the requirements for reporting allegations to OSIG and the incentives under the WBPA Program.

2. Clarify pertinent differences between the WBPA Program and the hotline regarding the rules governing anonymity and confidentiality.

1VAC42-30-40. Reporting alleged fraud, abuse, or wrongdoing.

A. A Commonwealth employee or citizen with an allegation of wrongdoing or abuse under the WBPA Program may contact OSIG by phone, email, online complaint form, United States Postal Service, or FAX.

B. OSIG staff is available to advise citizens on what to report that meets the definition of wrongdoing or abuse.

C. If an investigation results in recoverable funds, and the whistle blower seeks to file a fund claim under the WBPA Program, the whistle blower will be required to provide his name and lawful residence.

While not anonymous, OSIG will keep this information confidential to the extent allowed by law.

1VAC42-30-50. Office of the State Inspector General receipt of an allegation.

A. Allegations of wrongdoing or abuse received by OSIG undergo the hotline screening process.

B. Allegations submitted by an individual who is not a Commonwealth employee or citizen will be referred to the appropriate governmental agency or organization.

C. If the agency or organization reported is not an executive branch or independent state agency or entity or a local governmental agency or entity or school division, the information will be forwarded to that entity where possible for informational purposes only.

1VAC42-30-60. Allegation investigative process.

A. OSIG will prepare a detailed written summary that describes the allegation of wrongdoing or abuse submitted through the WBPA Program.

B. The hotline manager or designee will create a confidential tracking number for each case and assign it for formal investigation.

C. OSIG will monitor the progress of each investigation and provide the State Inspector General with regular status updates of the assignment.

D. Upon completion of an investigation, the investigator will prepare and submit a case report for management review and approval. When appropriate, recommendations for corrective action to address procedural deficiencies disclosed during the investigation will be included in the case report.

E. Formal case reports will describe all financial recovery realized on behalf of the Commonwealth as a result of the information received from the whistle blower and the subsequent investigation.

F. Case reports will be forwarded to the State Inspector General for review. Upon authorization by the State Inspector General, the investigator will prepare an executive summary that recaps the findings of the investigation, the recommendations, the recovery of funds, and the status of applicable fund claims. Upon signature approval of the State Inspector General, the executive summary will be forwarded to the subject state executive branch agency head, respective secretariat, and the Chief of Staff of the Governor.

1VAC42-30-70. Nonreverting fund.

A. OSIG will coordinate with the State Comptroller to establish a special nonreverting fund.

B. The fund will be established on the books of the State Comptroller and administered by the State Inspector General.

C. All moneys recovered by an OSIG investigation as a result of whistle blower activity shall be deposited in the fund.

D. Except for the moneys described in subsection F of this section, moneys remaining in the fund at the end of each fiscal year, including interest, shall not revert to the general fund, but shall remain in the fund.

E. Moneys in the fund shall solely be used to:

1. Provide monetary rewards to Commonwealth employees and citizens who have disclosed information of wrongdoing or abuse under the WBPA Program (§ 2.2-3009 et seq. of the Code of Virginia), and the disclosure resulted in a recovery of at least $5,000.

2. Support the administration of the fund, defray fund advertising costs, or subsidize the operation of the hotline.

F. Per the State Inspector General's authorization by the end of each calendar quarter, 85% of all sums recovered by an OSIG investigation will be remitted to the institutions or agencies concerned, unless otherwise directed by a court of law.

1VAC42-30-80. Fund payments to whistle blowers.

A. Within 10 working days, excluding state holidays and weekends, of the closing of a WBPA Program investigation that verifies a final recovery and deposit in the fund of $5,000 or more, the State Inspector General will review and certify the fund claim. Within five working days after the State Inspector General's verification, the whistle blower will be notified of the award amount he is eligible to receive. Upon approval of the fund claim, the State Inspector General will submit a written request to the State Comptroller to make a reward payment from the fund to the whistle blower.

B. The State Treasurer will make reward payments from the fund based on a warrant issued by the State Comptroller and a written request signed by the State Inspector General.

C. Award amounts.

1. The amount of the fund reward shall be up to 10% of the actual sums recovered by the Commonwealth as a result of the disclosure of the wrongdoing or abuse.

2. OSIG will consider many factors in determining the amount of an award based on the unique facts and circumstances of each case. OSIG may increase the award percentage up to the maximum allowed based on the following factors: (i) the significance of the information provided to OSIG to the success of any proceeding brought against wrongdoers; (ii) the extent of the assistance provided to OSIG in its investigation and any resulting findings; (iii) OSIG's law-enforcement interest in deterring violations of the applicable laws by making awards to whistle blowers who provide information that leads to the successful enforcement of these laws; and (iv) whether and the extent to which the whistle blower participated in his agency's internal compliance systems, such as, for example, reporting the possible violations through internal whistle blower, legal, or compliance procedures, before or at the same time the possible violations were reported to OSIG.

3. OSIG may reduce the amount of an award based on the following: (i) if the whistle blower was a participant in or culpable for the violations reported; (ii) if the whistle blower unreasonably delayed reporting the violations to OSIG; and (iii) if the whistle blower interfered with his agency's internal compliance and reporting systems, such as, for example, making false statements to the compliance department that hindered its efforts to investigate possible wrongdoing or abuse.

4. The amount of the reward will not exceed the balance of the fund, regardless of the sums recovered.

5. In the event that multiple whistle blowers have simultaneously reported the same fund-eligible occurrence of wrongdoing or abuse, the fund moneys may be split up to 10% among the whistle blowers at the State Inspector General's discretion. The State Inspector General's decision regarding the allocation of fund moneys is final and binding upon all parties and cannot be appealed.

6. The request for payment will include the name and address of the whistle blower and the payment amount. OSIG will provide documentation supporting the amount of the payment to the State Comptroller.

7. Once approved, the State Comptroller shall forward the request to Finance and Administration of the Department of Accounts (DOA) with a request that Finance and Administration process the payment to the whistle blower.

8. DOA will ensure the amount of the fund reward is properly included in the whistle blower's federal and state tax records (i.e., W-2 for employees; 1099 for Commonwealth citizens).

9. OSIG will confirm that DOA processes the fund request and that the reward payment is made to the whistle blower for the amount approved by the State Inspector General.

D. Five percent of all sums recovered on behalf of the Commonwealth will be retained in the fund to support the administration of the fund, defray advertising costs, and subsidize the operation of the hotline. Expenditures for administrative costs for management of the fund will be approved by the State Inspector General.

1VAC42-30-90. Whistle blower protections.

A. Employee protections.

1. No employer may discharge, threaten, or otherwise discriminate or retaliate against a whistle blower, whether acting individually or under the direction of another individual.

2. No employer may discharge, threaten, or otherwise discriminate or retaliate against a whistle blower who is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry.

3. Nothing in this chapter shall prohibit an employer from disciplining or discharging a whistle blower for misconduct or violation of criminal law.

4. If an employee has, in good faith, exhausted existing internal procedures for reporting and seeking recovery of falsely claimed sums through official channels, and if the Commonwealth failed to act on the information provided in a reasonable period of time, no court shall have jurisdiction over an action brought under § 8.01-216.5 of the Code of Virginia based on information discovered by a present or former employee of the Commonwealth during the course of his employment.

5. Any whistle blower covered by the state grievance procedure may initiate a grievance alleging retaliation for reporting wrongdoing or abuse through the WBPA Program and may request relief throughout that procedure.

B. Commonwealth citizen protections.

1. No governmental agency may threaten or otherwise discriminate or retaliate against a citizen whistle blower because the whistle blower is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry.

2. Except for the provisions of § 2.2-3011 E of the Code of Virginia, the WBPA Program does not limit the remedies provided by the Virginia Fraud Against Taxpayers Act (§ 8.01-216.1 et seq. of the Code of Virginia).

C. Protection against discrimination and retaliation - good faith required.

1. To be protected by the provisions of this chapter, an employee or Commonwealth citizen who discloses information about suspected wrongdoing or abuse shall do so in good faith and upon a reasonable belief information provided is accurate.

2. Reckless disclosures or disclosures the employee or citizen knows or should have known were false, confidential by law, or malicious are not deemed good faith reports and are not protected.

1VAC42-30-100. Whistle Blower Protection Act Program and Reward Fund annual report.

A. OSIG shall submit an annual report to the Governor and the General Assembly of Virginia summarizing the activities of the fund.

B. OSIG will provide a copy of the WBPA Program annual report to the Chief of Staff to the Governor, the Secretary of Finance, and the State Comptroller.

Title of Regulation: 4VAC20-720. Pertaining to Restrictions on Oyster Harvest (amending 4VAC20-720-40, 4VAC20-720-70, 4VAC20-720-80).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: November 12, 2018, through December 11, 2018.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Preamble:

The amendments (i) adjust the open dates of Rappahannock River Rotation Area 3 to close harvest by patent tong on November 11, 2018, and open harvest by hand scrape from November 12, 2018, through January 10, 2019; and (ii) lower the limit in the patent tong areas to eight bushels per licensed harvester per day and 16 bushels per vessel per day.

4VAC20-720-40. Open oyster harvest season and areas.

A. It shall be unlawful for any person to harvest oysters from public and unassigned grounds outside of the seasons and areas set forth in this section.

B. It shall be unlawful to harvest clean cull oysters from the public oyster grounds and unassigned grounds except during the lawful seasons and from the lawful areas as described in the following subdivisions of this subsection.

1. James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area: October 1, 2018, through April 30, 2019.

2. Milford Haven: December 1, 2018, through February 28, 2019.

3. Rappahannock River Area 9: November 1, 2018, through December 31, 2018.

4. Little Wicomico River: October 1, 2018, through December 31, 2018.

5. Coan River Area: October 1, 2018, through December 31, 2018.

6. Yeocomico River Area: October 1, 2018, through December 31, 2018.

7. Nomini Creek Area: October 1, 2018, through December 31, 2018.

8. Mobjack Bay Area: February 1, 2019, through February 28, 2019.

9. Rappahannock River Rotation Area 3: November 1, 2018, through November 30 11, 2018 (patent tong only), and January 1, 2019, through February 28 November 12, 2018, through January 10, 2019 (hand scrape only).

10. Rappahannock River Rotation Area 5: October 1, 2018, through November 30, 2018.

11. Great Wicomico River Rotation Area 2: December 1, 2018, through December 31, 2018, and February 1, 2019, through February 28, 2019.

12. Upper Chesapeake Bay - Blackberry Hangs Area: December 1, 2018, through December 31, 2018, and February 1, 2019, through February 28, 2019.

13. James River Hand Scrape Areas 1 and 3: November 1, 2018, through January 31, 2019.

14. James River Hand Scrape Area 2: October 1, 2018, through December 31, 2018.

15. Pocomoke Sound Rotation Area 2: December 1, 2018, through January 31, 2019.

16. Tangier Sound Rotation Area 2: December 1, 2018, through February 28, 2019.

17. Pocomoke Sound Area: November 1, 2018, through November 30, 2018.

18. Rappahannock River Area 8: October 1, 2018, through October 31, 2018 (patent tong only), and December 1, 2018, through December 31, 2018 (hand scrape only).

19. Deep Rock Area: December 1, 2018, through February 28, 2019.

20. Seaside of the Eastern Shore (for clean cull oysters only): November 1, 2018, through March 31, 2019.

C. It shall be unlawful to harvest seed oysters from the public oyster grounds or unassigned grounds, except during the lawful seasons. The harvest of seed oysters from the lawful areas is described in the following subdivisions of this subsection.

1. James River Seed Area: October 1, 2018, through May 31, 2019.

2. Deep Water Shoal State Replenishment Seed Area: October 1, 2018, through May 31, 2019.

4VAC20-720-70. Gear restrictions.

A. It shall be unlawful for any person to harvest oysters in the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, the Rappahannock River Area 9, Milford Haven, Little Wicomico River, Coan River Area, Nomini Creek Area and Yeocomico River Area, except by hand tong. It shall be unlawful for any person to have a hand scrape on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand tong.

B. It shall be unlawful to harvest oysters by any gear from the seaside of the Eastern Shore except by hand or hand tong. It shall be unlawful to harvest oysters that are not submerged at mean low water by any gear other than by hand.

C. It shall be unlawful to harvest oysters in the following areas by any gear except by hand scrape: Rappahannock River Rotation Area 3, from January 1 November 12, 2018, through February 28 January 10, 2019; Rappahannock River Area 5, from October 1, 2018, through November 30, 2018; James River Hand Scrape Areas 1 and 3, from November 1, 2018, through January 31, 2019; James River Hand Scrape Area 2, from October 1, 2018, through December 31, 2018; Upper Chesapeake Bay - Blackberry Hangs Area, from December 1, 2018, through December 31, 2018, and February 1, 2019, through February 28, 2019; Mobjack Bay Area, from February 1, 2019, through February 28, 2019; Pocomoke Sound Area, from November 1, 2018, through November 30, 2018; and Great Wicomico River Areas, from December 1, 2018, through December 31, 2018 and February 1, 2019, through February 28, 2019.

D. It shall be unlawful to harvest oysters from the following areas by any gear except an oyster patent tong: Rappahannock River Rotation Area 3, from November 1, 2018, through November 30 11, 2018, and Rappahannock River Rotation Area 8, from October 1, 2018, through October 31, 2018.

E. It shall be unlawful for any person to have more than one hand scrape on board his vessel while he is harvesting oysters or attempting to harvest oysters from public grounds. It shall be unlawful for any person to have a hand tong on board his vessel while he is harvesting or attempting to harvest oysters from public grounds by hand scrape.

F. It shall be unlawful to harvest oysters from the Pocomoke and Tangier Sounds Rotation Area 2, except by an oyster dredge.

G. It shall be unlawful to harvest oysters from the Deep Rock Area, except by an oyster patent tong.

4VAC20-720-80. Quotas and harvest limits.

A. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required for any harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses a valid hand scrape or dredge license and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit of 16 bushels clean cull oysters harvested from the areas described in 4VAC20-720-40 B 8 through 18 when the vessel is using the hand scrape or oyster dredge.

B. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required for any harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses a valid hand or hand tong license and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of 12 bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 2 through 7 and 20, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and have paid the oyster resource user fee multiplied by 12.

C. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 1, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by 12. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and hold a valid gear license required for any harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of 12 bushels per day.

D. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required for any harvest area as described in 4VAC20-720-75 and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses a valid patent tong license and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of 10 eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit of 20 16 bushels of clean cull oysters harvested from the areas described in 4VAC20-720-40 B when the vessel is using patent tongs.

E. In the Pocomoke and Tangier Sounds Rotation Area 2, no blue crab bycatch is allowed. It shall be unlawful to possess on board any vessel more than 250 hard clams.

Title of Regulation: 6VAC15-40. Minimum Standards for Jails and Lockups (amending 6VAC15-40-770).

Statutory Authority: §§ 53.1-5, 53.1-68, and 53.1-131 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 26, 2018.

Effective Date: January 10, 2019.

Agency Contact: Emmanuel Fontenot, Compliance and Accreditation Manager, Department of Corrections, 6900 Atmore Drive, Richmond, VA 23225, telephone (804) 887-7923, or email emmanuel.fontenot@vadoc.virginia.gov.

Basis: Sections 53.1-5 and 53.1-68 of the Code of Virginia mandate that the Board of Corrections prescribe regulations to govern the administration and operation of local correctional facilities.

Purpose: The current regulation requires that feminine hygiene items (as defined by facility policy) be provided upon reasonable request to each female inmate assigned to the general population. The proposed change to this regulation will mandate that feminine hygiene items be provided at no charge to female inmates. The purpose of this revision to the regulation is to provide for the public health and welfare of female inmates incarcerated in local and regional jails by providing them tampons and sanitary napkins at no cost to the inmate.

Rationale for Using Fast-Track Rulemaking Process: The amendments are minor, noncontroversial changes to current regulatory requirements mandated by Chapter 815 of the 2018 Acts of Assembly.

Substance: This revision clearly mandates that jails and lockups provide feminine hygiene products to female inmates at no charge.

Issues: The primary advantage of this revision is that it ensures that feminine hygiene items are provided to all female inmates regardless of their financial situation at no cost to the inmate and with minimum financial impact to jails and lockups as this is the current general practice. There is no known disadvantage to the public, individual private citizens, or businesses and no significant disadvantage to the Commonwealth as most local and regional jails are already providing feminine hygiene products.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 815 of the 2018 Acts of Assembly, the Board of Corrections (Board) proposes to specify in regulation that jails and lockups must provide feminine hygiene products to female inmates without charge.

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

Estimated Economic Impact. Chapter 815 of the 2018 Acts of Assembly states that "The State Board of Corrections shall adopt and implement a standard to ensure the provision of feminine hygiene products to female inmates without charge." The Board proposes to specify in this regulation that "Feminine hygiene items (as defined by facility policy) shall be provided upon reasonable request to each female inmate without charge." Since this requirement is already part of the Code of Virginia, adding it to the regulation would have no impact beyond improving clarity for readers of the regulation.

Businesses and Entities Affected. The proposed amendment affects jails and lockups in the Commonwealth.

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

Projected Impact on Employment. The proposed amendment does not affect employment.

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

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The Board of Corrections concurs with the economic impact analysis prepared by the Virginia Department of Planning and Budget.

Summary:

Pursuant to Chapter 815 of the the 2018 Acts of Assembly, the amendment requires that a facility provide feminine hygiene items without charge to each female inmate.

6VAC15-40-770. Provision of hygiene items.

The facility shall provide soap, a toothbrush, and toothpaste or toothpowder to each inmate upon admission to the general population. Feminine hygiene items (as defined by facility policy), including sanitary napkins and tampons, shall be provided upon reasonable request to each female inmate assigned to the general population without charge. Notwithstanding security considerations, shaving equipment, including a mirror, and haircuts shall be made available, and the hygiene needs of all inmates shall be met.

Title of Regulation: 9VAC20-11. Public Participation Guidelines (amending 9VAC20-11-50).

Statutory Authority: § 10.1-1402 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 26, 2018.

Effective Date: January 10, 2019.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 2.2-4007.02 of the Administrative Process Act requires agencies to develop and adopt public participation guidelines to solicit input from interested parties during the development of regulations. The Virginia Waste Management Board previously adopted regulations concerning public participation guidelines during the regulatory development process.

Purpose: State law requires the Virginia Waste Management Board to adopt public participation guidelines to solicit input during the development of regulations. Chapter 795 of the 2012 Acts of Assembly revised § 2.2-4007.02 B of the Code of Virginia to allow interested parties the right to be accompanied by or represented by counsel during the formulation of a regulation. Participation by the public in the regulatory process is essential to assist the board in the promulgation of regulations that will protect the public health and safety.

Rationale for Using Fast-Track Rulemaking Process: The amendments are expected to be noncontroversial and appropriate for using the fast-track rulemaking process. The amendments make the regulations consistent with the Code of Virginia and the model public participation guidelines developed by the Department of Planning and Budget.

Substance: The Code of Virginia allows interested parties the right to be accompanied by or represented by counsel during the formulation of a regulation. This language has been added to the regulation.

Issues: This regulatory change will benefit the public and the agency. The regulatory change amends the regulation to be consistent with the Code of Virginia. The regulatory change does not place any additional requirements on the public or the agency; therefore, there are no disadvantages to the public or the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 795 of the 2012 Acts of Assembly,¹ the Virginia Waste Management Board (Board) proposes to specify in this regulation that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative when submitting data, views, and arguments, either orally or in writing, to the agency.

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

Estimated Economic Impact. The current Public Participation Guidelines state that: "In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency." The Board proposes to append "and (ii) be accompanied by and represented by counsel or other representative."

Chapter 795 of the 2012 Acts of Assembly added to the Code of Virginia § 2.2-4007.02. "Public participation guidelines" that interested persons also be afforded an opportunity to be accompanied by and represented by counsel or other representative. Since the Code of Virginia already specifies that interested persons shall be afforded an opportunity to be accompanied by and represented by counsel or other representative, the Board's proposal to add this language to the regulation will not change the law in effect, but will be beneficial in that it will inform interested parties who read this regulation but not the statute of their legal rights concerning representation.

Businesses and Entities Affected. The proposed amendment potentially affects all individuals who comment on pending regulatory changes.

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

Projected Impact on Employment. The proposed amendment does not significantly affect employment.

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

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment does not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not adversely affect businesses.

Localities. The proposed amendment does not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

_________________________

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

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

Pursuant to § 2.2-4007.02 of the Code of Virginia, the amendment provides that interested persons submitting data, views, and arguments on a regulatory action may be accompanied by and represented by counsel or another representative.

Part III
Public Participation Procedures

9VAC20-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to (i) submit data, views, and arguments, either orally or in writing, to the agency; and (ii) be accompanied by and represented by counsel or other representative. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

Title of Regulation: 9VAC20-200. Mercury Switch Regulations (repealing 9VAC20-200-10 through 9VAC20-200-70).

Statutory Authority: § 10.1-1402 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 26, 2018.

Effective Date: January 10, 2019.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, TTY (804) 698-4021, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 10.1-1402 of the Code of Virginia, the statutory authority that allowed the Virginia Waste Management Board to adopt this regulation, has expired, and this regulation is being repealed.

Purpose: The statutory authority that allowed the board to adopt this regulation has expired, and this regulation is being repealed. Since the statutory authority for the regulation expired in 2015, the requirements in the regulation are no longer applicable. Repealing the regulation is essential to protect the welfare of citizens because it will ensure there is no confusion between the statute and the regulations as to what rules are in effect.

Rationale for Using Fast Track Rulemaking Process: This regulatory action is expected to be noncontroversial. The statutory authority that allowed the board to adopt this regulation has expired, and this regulation is being repealed.

Substance: The regulation is being repealed.

Issues: The statutory authority that allowed the board to adopt this regulation has expired, and this regulation is being repealed. Repealing this regulation will benefit both the public and the department since this action removes regulatory requirements that are no longer applicable. There are no disadvantages to the public of the department.

Collectively, automobile manufacturers have implemented a voluntary national automotive mercury switch removal program managed by End of Life Vehicle Solutions. End of Life Vehicle Solutions collects, transports, retorts, recycles, or disposes of elemental mercury from automotive switches. This national initiative will continue to facilitate the removal of mercury from vehicles prior to vehicles being recycled, and repeal of this regulation will not impact Virginia vehicle recyclers participating in this national program.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Waste Management Board (Board) proposes to repeal the Mercury Switch Regulations.

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

Estimated Economic Impact. The Mercury Switch Regulations were adopted in response to Chapters 16 and 163 of the 2006 Acts of Assembly. The purpose of the regulation was to reduce the quantity of mercury released into the environment by establishing standards and procedures for the removal of mercury switches from end-of-life vehicles demolished in the Commonwealth. The provisions of Chapters 16 and 163 of the 2006 Acts of Assembly were to expire on July 1, 2012. Chapter 793 of the 2011 Acts of Assembly extended the provisions of these Chapters to July 1, 2015. The provisions of these Acts of Assembly have expired and § 10.1-1402 of the Code of Virginia no longer authorizes the Waste Management Board to "adopt regulations concerning the criteria and standards for removal of mercury switches by vehicle demolishers." Consequently, the Board proposes to repeal this regulation.

Since the statutory authority for the regulation expired in 2015, the requirements in the regulation are no longer applicable. Repealing the regulation will create a moderate benefit in that the possibility that members of the public will mistakenly believe that the rules in the regulation are currently in effect will be eliminated.

Businesses and Entities Affected. The proposed repeal of this obsolete regulation will only affect members of the public who may have been misled into believing that the rules of the regulation currently apply.

Localities Particularly Affected. The proposed repeal of the regulation does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repeal of the regulation does not affect employment.

Effects on the Use and Value of Private Property. The proposed repeal of the regulation does not affect the use and value of private property.

Real Estate Development Costs. The proposed repeal of the regulation does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed repeal of the regulation does not significantly affect small business.

Alternative Method that Minimizes Adverse Impact. The proposed repeal of the regulation does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed repeal of the regulation does not adversely affect businesses.

Localities. The proposed repeal of the regulation does not adversely affect localities.

Other Entities. The proposed repeal of the regulation does not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

This action repeals the Mercury Switch Regulations because the provisions of § 10.1-1402 of the Code of Virginia authorizing the Virginia Waste Management Board to adopt regulations concerning the criteria and standards for removal of mercury switches by vehicle demolishers have expired.

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-185).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 26, 2018.

Effective Date: January 10, 2019.

Agency Contact: Tish Robertson, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4309, FAX (804) 698-4116, or email tish.robertson@deq.virginia.gov.

Basis: Section 62.1-44.15 of the Code of Virginia mandates and authorizes the State Water Control Board to establish water quality standards and policies for any state waters consistent with the purpose and general policy of the State Water Control Law and to modify, amend, or cancel any such standards or policies established. Section 303(c) of the federal Clean Water Act mandates the State Water Control Board to review and, as appropriate, modify and adopt water quality standards. The corresponding federal water quality standards regulation at 40 CFR 131.6 describes the minimum requirements for water quality standards. The minimum requirements are use designations, water quality criteria to protect the designated uses, and an antidegradation policy. These are all mandates for water quality standards.

The Environmental Protection Agency (EPA) Water Quality Standards regulation (40 CFR 131. 11) is the regulatory basis for the EPA requiring the states to establish water quality criteria to protect designated uses, and the criteria are used to assess whether or not a waterbody is meeting those uses.

Purpose: The department has concluded that the proposed amendments to the regulation are essential to protecting the health, safety, and welfare of the citizens of the Commonwealth by protecting the water quality and living resources of the Chesapeake Bay and its tidal rivers. EPA has continued to refine the assessment procedures as scientific research and management applications reveal new insights and knowledge about the Chesapeake Bay. The EPA's procedure documents being incorporated into Virginia's regulation by this action replace or otherwise supersede similar criteria assessment procedures published in earlier documents, but not all of them. Therefore, it is necessary for the Virginia water quality standards to refer to each of the addenda published by EPA.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendment to 9VAC25-260-185 B references assessment protocol documents published by EPA. These protocols have been developed by EPA through a collaborative process within the Chesapeake Bay Program. There have been several other similar technical addenda incorporated into Virginia's Water Quality Standards Regulation using the fast-track rulemaking procedure without opposition due to their noncontroversial nature since the Chesapeake Bay water quality criteria were originally adopted by the State Water Control Board in 2005.

Substance: The proposed substantive amendment to 9VAC25-260-185 B of the Water Quality Standards is a reference to the November 2017 Chesapeake Bay Criteria Assessment Protocols Addendum. These recently published protocols direct how Chesapeake Bay dissolved oxygen criteria should be assessed. Therefore, it is necessary for the Virginia Water Quality Standards to refer to this document.

Issues: There are no primary advantages or disadvantages to the public. The primary advantage to the agency and the Commonwealth is having improved methods for assessing attainment of designated uses in the Chesapeake Bay. There is no disadvantage to the agency or the Commonwealth that will result from the adoption of this amendment.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (Board) proposes to incorporate by reference the most recent U.S. Environmental Protection Agency (EPA) assessment methodology for the Chesapeake Bay nutrient criteria.¹

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

Estimated Economic Impact. This regulation incorporates by reference the procedures to be followed when assessing the nutrient criteria in the Chesapeake Bay. These assessment procedures are frequently refined by the EPA as scientific research and management applications reveal new insights and knowledge about the Chesapeake Bay. According to the Department of Environmental Quality, there is no substantive difference between what is currently followed in practice and what is being prescribed in the updated procedures document proposed for incorporation by reference. However, the updated document contains procedures for assessment of short-duration dissolved oxygen criteria, which did not exist before. Currently, due to lack of resources, there is nothing being done in Virginia to assess the short-duration dissolved oxygen criteria. Therefore, the incorporation of the new assessment procedures would not have any immediate impact but would be beneficial when and if Virginia moves forward to assess short-duration dissolved oxygen criteria.

Businesses and Entities Affected. Currently, there are 139 point sources this regulation applies to. All but three are water treatment plants.

Localities Particularly Affected. The proposed amendment does not affect any particular locality more than others.

Projected Impact on Employment. The proposed amendment does not have any effect on employment.

Effects on the Use and Value of Private Property. The proposed amendment does not have any effect on the use and value of private property.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment applies to only three small businesses, but no effect on them is expected.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not have adverse effects on small businesses.

Adverse Impacts:

Businesses. The proposed amendment does not have adverse impacts on businesses.

Localities. The proposed amendment will not adversely affect localities.

Other Entities. The proposed amendment will not adversely affect other entities.

___________________

¹See Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries - 2017 Technical Addendum, EPA 903-R-17-002, CB/TRS 320-17, November 2017, U.S. EPA Region III Chesapeake Bay Office. Accessed online at www.chesapeakebay.net/documents/2017_Nov_ChesBayWQ_Criteria_Addendum_Final.pdf on May 17, 2018.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The amendment incorporates by reference the Chesapeake Bay Criteria Assessment Protocols Addendum published in November 2017 by the U.S. Environmental Protection Agency on behalf of the Chesapeake Bay Program partnership.

9VAC25-260-185. Criteria to protect designated uses from the impacts of nutrients and suspended sediment in the Chesapeake Bay and its tidal tributaries.

A. Dissolved oxygen. The dissolved oxygen criteria in the below following table apply to all Chesapeake Bay waters according to their specified designated use and supersede the dissolved oxygen criteria in 9VAC25-260-50.

B. Submerged aquatic vegetation (SAV) and water clarity. Attainment of the shallow-water submerged aquatic vegetation designated use shall be determined using any one of the following criteria:

C. Chlorophyll a.

D. Implementation.

1. Chesapeake Bay program segmentation scheme as described in Chesapeake Bay Program, 2004 Chesapeake Bay Program Analytical Segmentation Scheme-Revisions, Decisions and Rationales: 1983–2003, CBP/TRS 268/04, EPA 903‑R‑04‑008, Chesapeake Bay Program, Annapolis, Maryland, and the Chesapeake Bay Program published 2005 addendum (CBP/TRS 278‑06; EPA 903‑R‑05‑004) is listed below in the following table and shall be used as the spatial assessment unit to determine attainment of the criteria in this section for each designated use.

2. The assessment period shall be the most recent three consecutive years. When three consecutive years of data are not available, a minimum of three years within the data assessment window shall be used.

3. Attainment of these criteria shall be assessed through comparison of the generated cumulative frequency distribution of the monitoring data to the applicable criteria reference curve for each designated use. If the monitoring data cumulative frequency curve is completely contained inside the reference curve, then the segment is in attainment of the designated use. The reference curves and procedures to be followed are published in the USEPA, Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries, EPA 903‑R‑03‑002, April 2003 and the 2004 (EPA 903‑R‑03‑002 October 2004), 2007 (CBP/TRS 285‑07 285/07, EPA 903‑R‑07‑003), 2007 (CBP/TRS 288/07, EPA 903‑R‑07‑005), 2008 (CBP/TRS 290‑08, EPA 903‑R‑08‑001), and 2010 (CBP/TRS 301‑10, EPA 903‑R‑10‑002), and 2017 (CBP/TRS 320‑17, EPA 903‑R‑17‑002) addenda. An exception to this requirement is in measuring attainment of the SAV and water clarity acres, which are compared directly to the criteria.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC25-260)

Chesapeake Bay Program Analytical Segmentation Scheme - Revisions, Decisions and Rationales 1983‑2003, EPA 903‑R‑04‑008, CBP/TRS 268/04, October 2004, US EPA Region III Chesapeake Bay Office.

Chesapeake Bay Program Analytical Segmentation Scheme - Revisions, Decisions and Rationales 1983‑2003, EPA 903‑R‑05‑004, CBP/TRS 278‑06, 2005 Addendum, December 2005, US EPA Region III Chesapeake Bay Office.

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries, EPA 903‑R‑03‑002, April 2003 and 2004 Addendum, October 2004, US EPA Region III Chesapeake Bay Office

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries, EPA 903‑R‑07‑003, CBP/TRS 285/07 2007 Addendum, July 2007, US EPA Region III Chesapeake Bay Office.

Technical Support Document for Identification of Chesapeake Bay Designated Uses and Attainability, EPA 903‑R‑03‑004, October 2003 and 2004 Addendum, October 2004, US EPA Region III Chesapeake Bay Office.

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries - 2007 Chlorophyll Criteria Addendum, EPA 903‑R‑07‑005, CBP/TRS 288/07, November 2007, U.S. EPA Region III Chesapeake Bay Office.

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries - 2008 Technical Support for Criteria Assessment Protocols Addendum, EPA 903‑R‑08‑001, CBP/TRS 290‑08, September 2008, U.S. EPA Region III Chesapeake Bay Office.

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and its Tidal Tributaries - 2010 Technical Support for Criteria Assessment Protocols Addendum, EPA 903‑R‑10‑002, CBP/TRS 301‑10, May 2010, U.S. EPA Region III Chesapeake Bay Office.

Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries - 2017 Technical Addendum, EPA 903‑R‑17‑002, CBP/TRS 320‑17, November 2017, U.S. EPA Region III Chesapeake Bay Office

Title of Regulation: 18VAC41-70. Esthetics Regulations (amending 18VAC41-70-80, 18VAC41-70-90, 18VAC41-70-280).

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

Effective Date: January 1, 2019.

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

Summary:

The amendments correct technical errors by replacing references to barber-specific or cosmetology-specific terms with appropriate esthetics terminology.

18VAC41-70-80. General requirements for a spa license.

A. Any firm wishing to operate an esthetics spa shall obtain a spa license in compliance with § 54.1-704.1 of the Code of Virginia, and shall meet the following qualifications in order to receive a license:

1. The applicant, and all members of the responsible management, shall be in good standing as a licensed spa in Virginia and all other jurisdictions where licensed. The applicant and all members of the responsible management shall disclose to the board at the time of application for licensure, any disciplinary action taken in Virginia and all other jurisdictions in connection with the applicant's operation of any esthetics spa or practice of the profession. This includes monetary penalties, fines, suspensions, revocations, surrender of a license in connection with a disciplinary action, or voluntary termination of a license. The applicant shall disclose to the board at the time of application for licensure if the applicant or any member of responsible management has been previously licensed in Virginia as an esthetics spa.

Upon review of the applicant's and all members of the responsible management's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in the operation of an esthetics spa. The board will decide each case by taking into account the totality of the circumstances. Any plea of nolo contendere or comparable plea shall be considered a disciplinary action for the purposes of this section. The applicant shall provide a certified copy of a final order, decree, or case decision by a court, regulatory agency, or board with the lawful authority to issue such order, decree, or case decision, and such copy shall be admissible as prima facie evidence of such disciplinary action.

2. The applicant shall disclose his physical address. A post office box is not acceptable.

3. The applicant shall sign, as part of the application, a statement certifying that the applicant has read and understands the Virginia esthetics license laws and this chapter.

4. In accordance with § 54.1-204 of the Code of Virginia, each applicant shall disclose the following information about the firm and all members of the responsible management regarding criminal convictions in Virginia and all other jurisdictions:

a. All misdemeanor convictions involving moral turpitude, sexual offense, drug distribution, or physical injury within two years of the date of the application; and

b. All felony convictions within 20 years of the date of application.

Any plea of nolo contendere shall be considered a conviction for purposes of this subsection. The record of a conviction received from a court shall be accepted as prima facie evidence of a conviction or finding of guilt. The board, in its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia.

5. The applicant shall disclose the firm's responsible management.

B. Shop or salon Spa licenses are issued to firms as defined in this chapter and shall not be transferable and shall bear the same name and address of the business. Any changes in the name or address of the spa shall be reported to the board in writing within 30 days of such changes. The board shall not be responsible for the licensee's, certificate holder's, or permit holder's failure to receive notices, communications, and correspondence caused by the licensee's, certificate holder's, or permit holder's failure to promptly notify the board in writing of any change of name or address or for any other reason beyond the control of the board.

C. Whenever the legal business entity holding the license is dissolved or altered to form a new business entity, the original license becomes void and shall be returned to the board within 30 days of the change. Additionally, the firm shall apply for a new license, within 30 days of the change in the business entity. Such changes include:

1. Death of a sole proprietor;

2. Death or withdrawal of a general partner in a general partnership or the managing partner in a limited partnership; and

3. Conversion, formation, or dissolution of a corporation, a limited liability company, or association, or any other business entity recognized under the laws of the Commonwealth of Virginia.

D. Any change in the officers of a corporation, managers of a limited liability company, or officers or directors of an association shall be reported to the board in writing within 30 days of the change.

E. The board or any of its agents shall be allowed to inspect during reasonable hours any licensed shop or salon spa for compliance with provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or this chapter. For purposes of a board inspection, "reasonable hours" means the hours between 9 a.m. and 5 p.m.; however, if the licensee generally is not open to the public substantially during the same hours, "reasonable hours" shall mean the business hours when the licensee is open to the public.

18VAC41-70-90. General requirements for a school license.

A. Any firm wishing to operate an esthetics school shall submit an application to the board at least 60 days prior to the date for which approval is sought, obtain a school license in compliance with § 54.1-704.2 of the Code of Virginia, and meet the following qualifications in order to receive a license:

1. The applicant and all members of the responsible management shall be in good standing as a licensed school in Virginia and all other jurisdictions where licensed. The applicant and all members of the responsible management shall disclose to the board at the time of application for licensure, any disciplinary action taken in Virginia and all other jurisdictions in connection with the applicant's operation of any esthetics school or practice of the profession. This includes monetary penalties, fines, suspensions, revocations, surrender of a license in connection with a disciplinary action, or voluntary termination of a license. The applicant shall disclose to the board at the time of application for licensure if the applicant or any member of the responsible management has been previously licensed in Virginia as an esthetics school.

Upon review of the applicant's and all members of the responsible management's prior disciplinary action, the board, in its discretion, may deny licensure to any applicant wherein it deems the applicant is unfit or unsuited to engage in the operation of an esthetics school. The board will decide each case by taking into account the totality of the circumstances. Any plea of nolo contendere or comparable plea shall be considered a disciplinary action for the purposes of this section. The applicant shall provide a certified copy of a final order, decree, or case decision by a court, regulatory agency, or board with the lawful authority to issue such order, decree, or case decision, and such copy shall be admissible as prima facie evidence of such disciplinary action.

2. The applicant shall disclose his physical address. A post office box is not acceptable.

3. The applicant shall sign, as part of the application, a statement certifying that the applicant has read and understands the Virginia esthetics license laws and this chapter.

4. In accordance with § 54.1-204 of the Code of Virginia, each applicant shall disclose the following information about the firm and all members of the responsible management regarding criminal convictions in Virginia and all other jurisdictions:

a. All misdemeanor convictions involving moral turpitude, sexual offense, drug distribution, or physical injury within two years of the date of the application; and

b. All felony convictions within 20 years of the date of application.

Any plea of nolo contendere shall be considered a conviction for purposes of this subsection. The record of a conviction received from a court shall be accepted as prima facie evidence of a conviction or finding of guilt. The board, in its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia.

5. The applicant shall disclose the firm's responsible management.

B. Esthetics school licenses are issued to firms as defined in this chapter and shall not be transferable and shall bear the same name and address as the school. Any changes in the name or the address of record or principal place of business of the school shall be reported to the board in writing within 30 days of such change. The board shall not be responsible for the licensee's, certificate holder's, or permit holder's failure to receive notices, communications, and correspondence caused by the licensee's, certificate holder's, or permit holder's failure to promptly notify the board in writing of any change of name or address or for any other reason beyond the control of the board. The name of the school must indicate that it is an educational institution. All signs or other advertisements must reflect the name as indicated on the license issued by the board and contain language indicating it is an educational institution.

C. Whenever the legal business entity holding the license is dissolved or altered to form a new business entity, the original license becomes void and shall be returned to the board within 30 days of the change. Additionally, the firm shall apply for a new license within 30 days of the change in business entity. Such changes include:

1. Death of a sole proprietor;

2. Death or withdrawal of a general partner in a general partnership or the managing partner in a limited partnership; and

3. Conversion, formation, or dissolution of a corporation, a limited liability company, an association, or any other business entity recognized under the laws of the Commonwealth of Virginia.

D. Any change in the officers of a corporation, managers of a limited liability company, or officers or directors of an association shall be reported to the board in writing within 30 days of the change.

E. Barber schools, cosmetology schools, nail schools, or waxing Esthetics schools under the Virginia Department of Education shall be exempted from licensure requirements.

F. The board or any of its agents shall be allowed to inspect during reasonable hours any licensed school for compliance with provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or this chapter. For purposes of a board inspection, "reasonable hours" means the hours between 9 a.m. and 5 p.m.; however, if the licensee generally is not open to the public substantially during the same hours, "reasonable hours" shall mean the business hours when the licensee is open to the public.

18VAC41-70-280. Grounds for license revocation, probation, or suspension; denial of application, renewal or reinstatement; or imposition of a monetary penalty.

The board may, in considering the totality of the circumstances, fine any licensee, certificate holder, or temporary license holder, and; suspend, place on probation, or revoke, or refuse to renew or reinstate any license, certificate, or temporary license,; or deny any application issued under the provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia and this chapter if the board finds that the licensee, certificate holder, permit holder, or applicant:

1. Is incompetent, negligent, or incapable mentally or physically, as those terms are generally understood in the profession, to practice as an esthetician;

2. Is convicted of fraud or deceit in the practice or teaching of esthetics, fails to teach in accordance with the board-approved curriculum, or fails to comply with 18VAC41-70-190 D when making an assessment of credit hours awarded;

3. Attempts to obtain, obtained, renewed, or reinstated a license, certificate, or temporary license by false or fraudulent representation;

4. Violates or, induces others to violate, or cooperates with others in violating, any of the provisions of this chapter or Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or any local ordinance or regulation governing standards of health and sanitation of the establishment in which any esthetician may practice or offer to practice;

5. Offers, gives, or promises anything of value or benefit to any federal, state, or local employee for the purpose of influencing that employee to circumvent, in the performance of his duties, any federal, state, or local law, regulation, or ordinance governing esthetics or master esthetics;

6. Fails to respond to the board or any of its agents or provides false, misleading, or incomplete information to an inquiry by the board or any of its agents;

7. Fails or refuses to allow the board or any of its agents to inspect during reasonable hours any licensed shop, salon, spa or school for compliance with provisions of Chapter 7 (§ 54.1-700 et seq.) of Title 54.1 of the Code of Virginia or this chapter;

8. Fails to produce, upon request or demand of the board or any of its agents, any document, book, record, or copy thereof in a licensee's, certificate holder's, temporary license holder's, applicant's, or owner's possession or maintained in accordance with this chapter;

9. Fails to notify the board of a change of name or address in writing within 30 days of the change for each and every license, certificate, or temporary license;

10. Makes any misrepresentation or publishes or causes to be published any advertisement that is false, deceptive, or misleading;

11. Fails to notify the board in writing within 30 days of the suspension, revocation, or surrender of a license or temporary license in connection with a disciplinary action in any jurisdiction or of any license or temporary license that has been the subject of disciplinary action in any jurisdiction;

12. Has been convicted or found guilty, regardless of the manner of adjudication, in Virginia or any other jurisdiction of the United States of a misdemeanor involving moral turpitude, sexual offense, drug distribution, or physical injury or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Review of convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt;

13. Fails to inform the board in writing within 30 days of pleading guilty or nolo contendere or being convicted or found guilty regardless of adjudication of convictions as stated in subdivision 12 of this section;

14. Allows, as responsible management of a spa or school, a person who has not obtained a license or a temporary permit to practice unless the person is duly enrolled as a registered apprentice;

15. Allows, as responsible management of a school, a person who has not obtained an instructor certificate to practice as an esthetics or a master esthetics instructor;

16. Fails to take sufficient measures to prevent transmission of communicable or infectious diseases or fails to comply with sanitary requirements provided for in this chapter or any local, state, or federal law or regulation governing the standards of health and sanitation for the practices of esthetics or master esthetics, or the operation of esthetics spas; or

17. Fails to comply with all procedures established by the board and the testing service with regard to conduct at any board examination.

Title of Regulation: 18VAC65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 18VAC65-20-510; adding 18VAC65-20-581).

Statutory Authority: §§ 54.1-2400 and 54.1-2803 of the Code of Virginia.

Effective Date: December 26, 2018.

Agency Contact: Corie Tillman Wolf, Executive Director, Board of Funeral Directors and Embalmers, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4479, FAX (804) 527-4471, or email fanbd@dhp.virginia.gov.

Summary:

The amendments clarify requirements for the express permission needed to embalm a body and for the proper refrigeration of a human body.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

Part VII
Standards for Embalming and Refrigeration

18VAC65-20-510. Embalming report.

A. In accordance with the provisions of subdivision 26 of § 54.1-2806 and subsection B of § 54.1-2811.1 of the Code of Virginia, express permission by a next of kin for embalming means written authorization to embalm as a specific and separate statement on a document or contract provided by the funeral establishment. Express permission may include direct, verbal authorization to embalm, provided it is followed as soon as possible by a written document or statement signed by the next of kin confirming the verbal authorization to embalm and including the time, date, and name of the person who gave verbal authorization.

B. Every funeral establishment shall record and maintain a separate, identifiable report for each embalming procedure conducted, which shall at a minimum include the following information:

1. The name of the deceased and the date of death;

2. The date and location of the embalming;

3. The name and signature of the embalmer and the Virginia license number of the embalmer; and

4. If the embalming was performed by a funeral service intern, the name and signature of the supervisor.

18VAC65-20-581. Refrigeration requirements.

A. If a dead human body is to be in the possession of a funeral establishment or crematory for more than 48 hours from the time the funeral establishment or crematory takes physical possession of the body until embalming, cremation, or burial, the body shall be placed and maintained in refrigeration in a mechanical refrigeration unit suitable for storing human remains in accordance with subsection B of § 54.1-2811.1 of the Code of Virginia.

B. The mechanical refrigeration unit may be located in the funeral establishment or crematory, or the funeral establishment or crematory may enter into an agreement or contract with another funeral establishment, crematory, or other licensed entity for refrigeration in a mechanical refrigeration unit.

C. Evidence of compliance with the requirement for refrigeration shall be maintained as a log entry or other documentation indicating times of placement in and removal of a body [ in from ] refrigeration.

Title of Regulation: 22VAC40-201. Permanency Services - Prevention, Foster Care, Adoption and Independent Living (amending 22VAC40-201-10, 22VAC40-201-100, 22VAC40-201-190).

Statutory Authority: §§ 63.2-217 and 63.2-319 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 25, 2019.

Agency Contact: Em Parente, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7895, FAX (804) 726-7538, or email em.parente@dss.virginia.gov.

Basis: Section 63.2-217 of the Code of Virginia requires the State Board of Social Services to adopt such regulations as may be necessary to carry out the purpose of Title 63.2 of the Code of Virginia. This regulatory action is to comply with Chapters 187, 200, and 203 of the 2017 Acts of Assembly

Purpose: The proposed action updates the regulation to incorporate the name change to the Virginia Birth Father Registry throughout Title 63.2 of the Code of Virginia and to include the process of registration for the putative father (Chapter 200 of the 2017 Acts of Assembly). This regulatory action is integral to compliance with current state laws. Changing the name to the Virginia Birth Father Registry will eliminate confusion and better represent the purpose of the registry, which protects the rights of a putative father by providing notification of court proceedings for termination of parental rights and adoption regarding a child that he may have fathered and potentially giving him an opportunity to be in his child's life.

Health insurance is integral in providing for the health, safety, and welfare of youth aging out of foster care. A proposed revision to the regulation will ensure compliance with Chapter 203 of the 2017 Acts of Assembly and direct local departments of social services to enroll youth in foster care into Medicaid when the youth turns 18 years old. Additionally, the feedback from the survey of youth aging out of foster care will be used to strengthen and improve the state's foster care program (Chapter 187 of the 2017 Acts of Assembly).

Substance: This proposed regulatory action incorporates technical corrections to language and processes necessary to ensure consistency with the Code of Virginia and requirements that have become law since the introduction of the current permanency services regulation. The proposed amendments (i) change the name from the Putative Father Registry to the Virginia Birth Father Registry; (ii) require that youth turning 18 years old in foster care shall be enrolled in Medicaid, provided they are eligible and do not object; and (iii) require that youth turning 18 years old in foster care be given the opportunity to participate in a survey to provide feedback on their experiences in foster care.

Issues: The proposed regulatory action protects the rights of birth fathers by clarifying the registration timeline for the Virginia Birth Father Registry. The primary advantage of the action to the public, agency, and Commonwealth is that the regulation will be consistent with statutory and federal requirements that seek to protect the safety and well-being of vulnerable children. This regulatory action poses no disadvantages to the public or the Commonwealth as the amendments provide for the safety of children who turn 18 years old while in foster care by ensuring that they are enrolled in Medicaid and are provided an opportunity to give feedback about their experience in foster care through a survey.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Social Services (Board) proposes to incorporate three recent legislative changes into the regulation: Chapters 187, 200, and 203 of the 2017 Acts of Assembly.

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

Estimated Economic Impact. This permanency regulation provides standards for Local Departments of Social Services (LDSS) for prevention, foster care, adoption, and independent living services. The proposed action incorporates three recent legislative changes as they apply to such services.

Chapter 187 of the 2017 Acts of Assembly¹ mandated that a youth aging out of foster care (e.g. youth turning 18) be given the opportunity to participate in a survey to provide feedback regarding his or her experience while in foster care. In a given year, there are approximately 500 youth in foster care who turn 18. Of the 500, how many may choose to participate in the survey is not known, but the Virginia Department of Social Services (VDSS) considers more than a 30% response rate as unlikely. VDSS plans to have about 30 questions on the survey. The purpose of the survey is to receive feedback from the youth, identify areas for improvement, and improve experiences while in foster care. VDSS estimates that one-half of a full-time position to analyze the survey results on an ongoing basis would be needed. However, the additional staff support needed to analyze the survey data will be absorbed within existing resources.

Additionally, Chapter 200 of the 2017 Acts of Assembly² changed the name of the Putative Father Registry to Virginia Birth Father Registry and added new language on what is considered to be a timely registration. The Board proposes to replace all instances of "Putative Father Registry" with "Virginia Birth Father Registry" in the regulation and add new language to incorporate what is considered a timely registration. The consistency between the regulation and the legislation should be beneficial.

Finally, Chapter 203 of the 2017 Acts of Assembly³ requires youth who turn 18 years old in foster care to be enrolled in Medicaid. When the adolescents in foster care transition to adulthood, they lose Medicaid eligibility as children but continue to be eligible under other categories. The legislation requires the LDSS to ensure that such youth are enrolled in Medicaid, unless they object or are otherwise ineligible for Medicaid services. The main impact of this change is to increase the likelihood of continued Medicaid coverage of such youth in foster care.

Businesses and Entities Affected. There are approximately 500 youth in foster or adoptive care that turn 18 in a given year. There are 2,411 individuals who are currently registered in the Virginia Birth Father Registry.

Localities Particularly Affected. The proposed amendments do not affect any particular locality more than others.

Projected Impact on Employment. The proposed survey requirement is estimated to require one-half of full-time position on an ongoing basis but will be absorbed by the existing employees. The other proposed amendments should not have any significant effect on employment.

Effects on the Use and Value of Private Property. The proposed amendments should not have any significant effect on the use and value of private property.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not affect small businesses.

Alternative Method that Minimizes Adverse Impact

The proposed amendments do not have adverse effects on small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not have adverse impacts on businesses.

Localities. The proposed amendments will not adversely affect localities.

Other Entities. The proposed amendments will not adversely affect other entities.

__________________________

¹http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+CHAP0187

²http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+CHAP0200

³http://lis.virginia.gov/cgi-bin/legp604.exe?171+ful+CHAP0203

Agency's Response to Economic Impact Analysis: The Department of Social Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments conform the permanency regulation to three acts of the 2017 Session of the General Assembly by (i) changing the name of the Putative Father Registry to the Virginia Birth Father Registry (Chapter 200 of the 2017 Acts of Assembly); (ii) requiring that youth turning 18 years old in foster care be enrolled in Medicaid, provided they are eligible and do not object (Chapter 203 of the 2017 Acts of Assembly); and (iii) requiring that youth turning 18 years old in foster care be given the opportunity to participate in a survey to provide feedback on their experience in foster care (Chapter 187 of the 2017 Acts of Assembly).

22VAC40-201-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative panel review" means a review of a child in foster care that the local board conducts on a planned basis pursuant to § 63.2-907 of the Code of Virginia to evaluate the current status and effectiveness of the objectives in the service plan and the services being provided for the immediate care of the child and the plan to achieve a permanent home for the child. The administrative review may be attended by the birth parents or prior custodians and other interested individuals significant to the child and family as appropriate.

"Adoption" means a legal process that entitles the person being adopted to all of the rights and privileges, and subjects the person to all of the obligations of a birth child.

"Adoption assistance" means a money payment provided to adoptive parents or other persons on behalf of a child with special needs who meets federal or state requirements to receive such payments.

"Adoption assistance agreement" means a written agreement between the local board and the adoptive parents of a child with special needs or in cases in which the child is in the custody of a licensed child-placing agency, an agreement between the local board, the licensed child-placing agency, and the adoptive parents that sets out the payment and services that will be provided to benefit the child in accordance with Chapter 13 (§ 63.2-1300 et seq.) of Title 63.2 of the Code of Virginia.

"Adoption Progress Report" means a report filed with the juvenile court on the progress being made to place the child in an adoptive home. Section 16.1-283 of the Code of Virginia requires that an Adoption Progress Report be submitted to the juvenile court every six months following termination of parental rights until the adoption is final.

"Adoptive home" means any family home selected and approved by a parent, local board, or a licensed child-placing agency for the placement of a child with the intent of adoption.

"Adoptive home study" means an assessment of a family completed by a child-placing agency to determine the family's suitability for adoption.

"Adoptive parent" means any provider selected and approved by a parent or a child-placing agency for the placement of a child with the intent of adoption.

"Adoptive placement" means arranging for the care of a child who is in the custody of a child-placing agency in an approved home for the purpose of adoption.

"Adult adoption" means the adoption of any person 18 years of age or older, carried out in accordance with § 63.2-1243 of the Code of Virginia.

"Agency placement adoption" means an adoption in which a child is placed in an adoptive home by a child-placing agency that has custody of the child.

"AREVA" means the Adoption Resource Exchange of Virginia that maintains a registry and photo-listing of children waiting for adoption and families seeking to adopt.

"Assessment" means an evaluation of the situation of the child and family to identify strengths and services needed.

"Birth family" means the child's biological family.

"Birth parent" means the child's biological parent and for purposes of adoptive placement means a parent by previous adoption.

"Birth sibling" means the child's biological sibling.

"Board" means the State Board of Social Services.

"Child" means any natural person under younger than 18 years of age.

"Child-placing agency" means any person who places children in foster homes, adoptive homes, or independent living arrangements pursuant to § 63.2-1819 of the Code of Virginia or a local board that places children in foster homes or adoptive homes pursuant to §§ 63.2-900, 63.2-903, and 63.2-1221 of the Code of Virginia. Officers, employees, or agents of the Commonwealth, or any locality acting within the scope of their authority as such, who serve as or maintain a child-placing agency, shall not be required to be licensed.

"Child with special needs" as it relates to adoption assistance means a child who meets the definition of a child with special needs set forth in §§ § 63.2-1300 or 63.2-1301 B of the Code of Virginia.

"Children's Services Act" or "CSA" means a collaborative system of services and funding that is child centered, family focused, and community based when addressing the strengths and needs of troubled and at-risk youth and their families in the Commonwealth.

"Claim for benefits," as used in § 63.2-915 of the Code of Virginia and 22VAC40-201-115, means (i) foster care maintenance, including enhanced maintenance; (ii) the services set forth in a court approved foster care service plan, the foster care services identified in an individual family service plan developed by a family assessment and planning team or other multi-disciplinary team pursuant to the Children's Services Act (§ 2.2-5200 et seq. of the Code of Virginia), or a transitional living plan for independent living services; (iii) the placement of a child through an agreement with the child's parents or guardians, where legal custody remains with the parents or guardians; (iv) foster care prevention services as set out in a prevention service plan; or (v) placement of a child for adoption when an approved family is outside the locality with the legal custody of the child, in accordance with 42 USC § 671(a)(23).

"Close relative" means a grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt.

"Commissioner" means the commissioner of the department, his designee, or his authorized representative.

"Community Policy and Management Team" or "CPMT" means a team appointed by the local governing body pursuant to Chapter 52 (§ 2.2-5200 et seq.) of Title 2.2 of the Code of Virginia. The powers and duties of the CPMT are set out in § 2.2-5206 of the Code of Virginia.

"Concurrent permanency planning" means utilizing a structured case management approach in which reasonable efforts are made to achieve a permanency goal, usually a reunification with the family, simultaneously with an established alternative permanent plan for the child.

"Department" means the state Department of Social Services.

"Denied," as used in § 63.2-915 of the Code of Virginia and 22VAC40-201-115, means the refusal to provide a claim for benefits.

"Dually approved" means applicants have met the required standards to be approved as a foster and adoptive family home provider.

"Entrustment agreement" means an agreement that the local board enters into with the parent, parents, or guardian to place the child in foster care either to terminate parental rights or for the temporary care and placement of the child. The agreement specifies the conditions for the care of the child.

"Family assessment and planning team" or "FAPT" means the local team created by the CPMT (i) to assess the strengths and needs of troubled youths and families who are approved for referral to the team and (ii) to identify and determine the complement of services required to meet their unique needs. The powers and duties of the FAPT are set out in § 2.2-5208 of the Code of Virginia.

"Foster care" means 24-hour substitute care for children in the custody of the local board or who remain in the custody of their parents, but are placed away from their parents or guardians and for whom the local board has placement and care responsibility through a noncustodial agreement.

"Foster care maintenance payments" means payments to cover those expenses made on behalf of a child in foster care including the cost of, and the cost of providing, food, clothing, shelter, daily supervision, school supplies, a child's incidentals, reasonable travel to the child's home for visitation, and reasonable travel to remain in the school in which the child is enrolled at the time of the placement. The term also includes costs for children in institutional care and costs related to the child of a child in foster care as set out in 42 USC § 675.

"Foster care plan" means a written document filed with the court in accordance with § 16.1-281 of the Code of Virginia that describes the programs, care, services, and other support that will be offered to the child and his parents and other prior custodians. The foster care plan defined in this definition is the case plan referenced in 42 USC § 675.

"Foster care prevention" means the provision of services to a child and family to prevent the need for foster care placement.

"Foster care services" means the provision of a full range of casework, treatment, and community services, including independent living services, for a planned period of time to a child meeting the requirements as set forth in § 63.2-905 of the Code of Virginia.

"Foster child" means a child for whom the local board has assumed placement and care responsibilities through a noncustodial foster care agreement, entrustment, or court commitment before 18 years of age.

"Foster home" means the place of residence of any natural person in which any child, other than a child by birth or adoption of such person, resides as a member of the household.

"Foster parent" means an approved provider who gives 24-hour substitute family care, room and board, and services for children or youth committed or entrusted to a child-placing agency.

"Independent living arrangement" means placement of a child at least 16 years of age who is in the custody of a local board or licensed child-placing agency and has been placed by the local board or licensed child-placing agency in a living arrangement in which he the child does not have daily substitute parental supervision.

"Independent living services" means services and activities provided to a child in foster care 14 years of age or older who was committed or entrusted to a local board of social services, child welfare agency, or private child-placing agency. "Independent living services" may also mean services and activities provided to a person who (i) was in foster care on his 18th birthday and has not yet reached the age of 21 years or (ii) is at least 18 years of age and who, immediately prior to his commitment to the Department of Juvenile Justice, was in the custody of a local department of social services. Such services shall include counseling, education, housing, employment, and money management skills development, access to essential documents, and other appropriate services to help children or persons prepare for self-sufficiency.

"Individual family service plan" or "IFSP" means the plan for services developed by the FAPT in accordance with § 2.2-5208 of the Code of Virginia.

"Intercountry placement" means the arrangement for the care of a child in an adoptive home or foster care placement into or out of the Commonwealth by a licensed child-placing agency, court, or other entity authorized to make such placements in accordance with the laws of the foreign country under which it operates.

"Interstate Compact on the Placement of Children" or "ICPC" means a uniform law that has been enacted by all 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands which that establishes orderly procedures for the interstate placement of children and sets responsibility for those involved in placing those children.

"Interstate placement" means the arrangement for the care of a child in an adoptive home, foster care placement, or in the home of the child's parent or with a relative or nonagency guardian, into or out of the Commonwealth, by a child-placing agency or court when the full legal right of the child's parent or nonagency guardian to plan for the child has been voluntarily terminated or limited or severed by the action of any court.

"Investigation" means the process by which the child-placing agency obtains information required by § 63.2-1208 of the Code of Virginia about the placement and the suitability of the adoption. The findings of the investigation are compiled into a written report for the circuit court containing a recommendation on the action to be taken by the court.

"Local board" means the local board of social services in each county and city in the Commonwealth required by § 63.2-300 of the Code of Virginia.

"Local department" means the local department of social services of any county or city in the Commonwealth.

"Nonagency placement adoption" means an adoption in which the child is not in the custody of a child-placing agency and is placed in the adoptive home directly by the birth parent or legal guardian.

"Noncustodial foster care agreement" means an agreement that the local department enters into with the parent or guardian of a child to place the child in foster care when the parent or guardian retains custody of the child. The agreement specifies the conditions for placement and care of the child.

"Nonrecurring expenses" means expenses of adoptive parents directly related to the adoption of a child with special needs as set out in § 63.2-1301 D of the Code of Virginia.

"Parental placement" means locating or effecting the placement of a child or the placing of a child in a family home by the child's parent or legal guardian for the purpose of foster care or adoption.

"Permanency" means establishing family connections and placement options for a child to provide a lifetime of commitment, continuity of care, a sense of belonging, and a legal and social status that go beyond a child's temporary foster care placements.

"Permanency planning" means a social work practice philosophy that promotes establishing a permanent living situation for every child with an adult with whom the child has a continuous, reciprocal relationship within a minimum amount of time after the child enters the foster care system.

"Prior custodian" means the person who had custody of the child and with whom the child resided, other than the birth parent, before custody was transferred to or placement made with the child-placing agency when that person had custody of the child.

"Putative Father Registry" means a confidential database designed to protect the rights of a putative father who wants to be notified in the event of a proceeding related to termination of parental rights or adoption for a child he may have fathered.

"Residential placement" means a placement in a licensed publicly or privately owned facility, other than a private family home, where 24-hour care is provided to children separated from their families. A residential placement includes placements in children's residential facilities as defined in § 63.2-100 of the Code of Virginia.

"Reunification" means the return of the child to his home after removal for reasons of child abuse and neglect, abandonment, child in need of services, parental request for relief of custody, noncustodial agreement, entrustment, or any other court-ordered removal.

"Service worker" means a worker responsible for case management or service coordination for prevention, foster care, or adoption cases.

"SSI" means Supplemental Security Income.

"State pool funds" means the pooled state and local funds administered by CSA and used to pay for services authorized by the CPMT.

"Step-parent adoption" means the adoption of a child by a spouse or the adoption of a child by a former spouse of the birth or adoptive parent in accordance with § 63.2-1201.1 of the Code of Virginia.

"Title IV-E" means the title of the Social Security Act that authorizes federal funds for foster care and adoption assistance.

"Virginia Birth Father Registry" means the established confidential database designed to protect the rights of a putative father who wants to be notified in the event of a proceeding related to termination of parental rights or adoption for a child he may have fathered.

"Visitation and report" means the visits conducted pursuant to § 63.2-1212 of the Code of Virginia and the written report of the findings made in the course of the visitation. The report is filed in the circuit court in accordance with § 63.2-1212 of the Code of Virginia.

"Wrap around services" means an individually designed set of services and supports provided to a child and his family that includes treatment services, personal support services or any other supports necessary to achieve the desired outcome. Wrap around services are developed through a team approach.

"Youth" means any child in foster care between 16 and 18 years of age or any person 18 to 21 years of age transitioning out of foster care and receiving independent living services pursuant to § 63.2-905.1 of the Code of Virginia. "Youth" may also mean an individual older than the age of 16 years who is the subject of an adoption assistance agreement.

22VAC40-201-100. Providing independent living services.

A. Independent living services shall be identified by the youth; foster or adoptive family; local department; service providers; legal community; and other interested individuals and shall be included in the service plan. Input from the youth in assembling these individuals and developing the services is required.

B. Independent living services shall be provided to all youth ages 14 to 18 years and shall be offered to any person between 18 and 21 years of age who is in the process of transitioning from foster care to self-sufficiency.

C. Independent living services include education, vocational training, employment, mental and physical health services, transportation, housing, financial support, daily living skills, counseling, and development of permanent connections with adults.

D. Local departments shall assess the youth's independent living skills and needs and incorporate the assessment results into the youth's service plan.

E. A youth placed in foster care before the age of 18 years may continue to receive independent living services from the local department between the ages of 18 and 21 years if:

1. The youth is making progress in an educational or vocational program, has employment, or is in a treatment or training program; and

2. The youth agrees to participate with the local department in (i) in developing a service agreement and (ii) by signing the service agreement. The service agreement shall require, at a minimum, that the youth's living arrangement shall be approved by the local department and that the youth shall cooperate with all services; or

3. The youth is in permanent foster care and is making progress in an educational or vocational program, has employment, or is in a treatment or training program.

F. A youth age 16 years and older is eligible to live in an independent living arrangement provided the local department utilizes the independent living arrangement placement criteria developed by the department to determine that such an arrangement is in the youth's best interest. An eligible youth may receive an independent living stipend to assist him with the costs of maintenance. The eligibility criteria for receiving an independent living stipend will be developed by the department.

G. Any person who was committed or entrusted to a local department and chooses to discontinue receiving independent living services after age 18 years may request a resumption of independent living services provided that (i) the person has not yet reached 21 years of age and (ii) the person has entered into a written agreement, less than 60 days after independent living services have been discontinued, with the local board regarding the terms and conditions of his receipt of independent living services. Local departments shall provide any person who chooses to leave foster care or terminate independent living services before his 21st birthday written notice of his right to request restoration of independent living services in accordance with § 63.2-905.1 of the Code of Virginia by including such written notice in the person's transition plan.

H. Local departments shall assist eligible youth in applying for educational and vocational financial assistance. Educational and vocational specific funding sources shall be used prior to using other sources.

I. Local departments shall provide independent living services to any person between 18 and 21 years of age who:

1. Was in the custody of the local board immediately prior to his commitment to the Department of Juvenile Justice;

2. Is in the process of transitioning from a commitment to the Department of Juvenile Justice to self-sufficiency; and

3. Provides written notice of his intent to receive independent living services and enters into a written agreement which that sets forth the terms and conditions for the provision of independent living services with the local board within 60 days of his release from commitment.

J. Every six months a supervisory review of service plans for youth receiving independent living services after age 18 shall be conducted to assure the effectiveness of service provision.

K. The local department shall ensure that any youth in foster care on the youth's 18th birthday is enrolled in Medicaid, unless the youth objects or is otherwise ineligible.

L. The local department shall ensure that any youth who turns 18 years of age while in foster care is given the opportunity to complete a survey to provide feedback regarding the youth's experience in foster care.

22VAC40-201-190. Virginia Putative Birth Father Registry.

A. The department shall establish and maintain a putative father registry which that is a confidential database.

B. A search of the Virginia Putative Birth Father Registry shall be conducted for all adoptions except when the child has been adopted according to the laws of a foreign country or when the child was placed in Virginia from a foreign country for the purpose of adoption in accordance with § 63.2-1104 of the Code of Virginia.

C. Any petitioner who files a petition for termination of parental rights or for an adoption proceeding shall request a search of the Virginia Putative Birth Father Registry. The certificate of search and finding must be filed with the court before an adoption or termination of parental rights proceeding can be concluded.

D. Any man who desires to be notified of an adoption proceeding or termination of parental rights regarding a child that he may have fathered shall register with the Virginia Birth Father Registry.

E. A registration is timely when it is received by the department within:

1. 10 days of the child's birth;

2. 10 days of the date of personal service of the written notice required under subsection F of § 63.2-1250 or within 13 days of the certified mailing date of such written notice; or

3. 10 days upon the registrant's discovery of misrepresentation by the birth mother that led him to believe that (i) the pregnancy was terminated or the mother miscarried when in fact the baby was born or (ii) the child died when in fact the child is alive.

D. F. The department may require additional information to determine that the individual requesting information from the Putative Virginia Birth Father Registry is eligible to receive information in accordance with § 63.2-1251 of the Code of Virginia.

Title of Regulation: 23VAC10-390. Virginia Soft Drink Excise Tax Regulations (amending 23VAC10-390-40).

Statutory Authority: §§ 58.1-203 and 58.1-1703 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 25, 2019.

Effective Date: February 11, 2019.

Agency Contact: Joe Mayer, Lead Policy Analyst, Department of Taxation, P.O. Box 27185, Richmond, VA 23261-7185, telephone (804) 371-2299, FAX (804) 371-2355, or email joseph.mayer@tax.virginia.gov.

Basis: Section 58.1-203 of the Code of Virginia authorizes the Tax Commissioner to issue regulations relating to the interpretation and enforcement of the laws governing taxes administered by the Department of Taxation. The authority for the current regulatory action is discretionary.

Purpose: As a result of a periodic review of the Virginia Soft Drink Excise Tax Regulations initiated by the department on June 27, 2016, and completed July 18, 2016, the department has determined that 23VAC10-390-40, relating to collection of the soft drink excise tax, should be amended. This regulatory action is necessary to reflect legislative changes and administrative procedures affecting the collection of the soft drink excise tax. In addition, some existing regulatory language is unnecessary because it provides no additional guidance regarding clear and unambiguous statutes. Therefore, this regulatory action will update the regulation to conform to legislative changes and administrative procedures. It will also repeal language that is duplicative or outdated. The amendment of this regulation does not reflect a change in existing tax policy and will have no impact on the administration of the tax.

As this regulatory action does not reflect a change in existing departmental policy, it will have no effect on the health, safety, and welfare of citizens.

Rationale for Using Fast-Track Rulemaking Process: The fast-track rulemaking process is intended for regulations that are expected to be noncontroversial. As the regulation is being amended to reflect current law and will not make any changes to the department's current policy regarding the soft drink excise tax, this action is not expected to be controversial.

Substance: The amendments relate to collection of the soft drink excise tax. Virginia imposes an annual excise tax on wholesalers and distributors of carbonated soft drinks. The tax is based on the gross receipts of each wholesaler and distributor from the sale of such soft drinks during the year. The Code of Virginia requires that this tax be collected by the department in the same manner as the income tax is collected.

This regulatory action will amend 23VAC10-390-40 of the Virginia Soft Drink Excise Tax Regulations to conform to current law and existing administrative procedures regarding the collection of the tax and to strike provisions that are no longer accurate due to changes in the law. The affected provisions deal with the collection of the soft drink excise tax; return due dates; and extensions, penalties, and interest that may apply for failure to timely file or pay the amount of tax due.

During the 2005, 1999, 1991, and 1989 Sessions of the General Assembly, several modifications were made to the way the Virginia income tax is collected:

• Chapter 100 of the 2005 Acts of Assembly eliminated the requirement for income taxpayers to file an extension form with the department before they could elect to file their income tax return on extension.

• Chapters 146 and 180 of the 1999 Acts of Assembly modified § 58.1-15 of the Code of Virginia by equalizing the rate of interest charged on assessments and the rate of interest paid on refunds.

• Chapter 316 of the 1991 Acts of Assembly modified § 58.1-15 of the Code of Virginia relating to the rate of interest charged on assessments or paid on refunds. This legislation also increased the penalty for late-filed income tax returns and the penalty for late payment of the income tax from 5.0% to 6.0%.

• Chapter 629 of the 1989 Acts of Assembly modified the penalty for late-filed income tax returns from 10% to 5.0% per month for up to five months for individuals and from $100 to the greater of $100 or 5.0% per month for up to five months for corporations. This legislation also modified the penalty for late paying an income tax liability from 5.0% to 5.0% per month for up to five months.

Because this regulation was promulgated prior to the enactment of this legislation, it is inconsistent with these legislative changes. Other amendments in this action include removing language that is unnecessary because it provides no additional guidance to clear and unambiguous statutes. Therefore, this regulatory action will update language to conform to statute and current administrative procedures, and it will repeal other language that is duplicative or outdated. Amending this section does not reflect any change in existing tax policy and will have no impact on the administration of tax. Because of this, the amendment of this section is not expected to be controversial.

Issues: This regulatory action will ease voluntary taxpayer compliance and the department's administration of the state tax laws by amending a regulation section that currently does not conform to statute and current administrative procedures and by striking obsolete language. Therefore, the amendments will result in no disadvantage to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a result of a periodic review,¹ the Department of Taxation proposes to repeal provisions that are no longer accurate due to statutory changes or are duplicative of the statutory language.

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

Estimated Economic Impact. This regulation contains general provisions applicable to the Soft Drink Excise Tax. Numerous statutory changes in the 1989, 1991, 1999, and 2005 Virginia General Assembly Sessions amended the Soft Drink Excise Tax and rendered the current regulatory language inaccurate.² In addition, some of the current regulatory provisions are unnecessary because they are duplicative of information provided in the statute. The proposed changes will update the regulation so that it is consistent with the statute. Since this regulatory action does not reflect any change in current tax policy or on the administration of the soft drink excise tax, no economic effect is expected other than potentially reducing confusion by eliminating conflicting information between the Code of Virginia and the regulation.

Businesses and Entities Affected. This regulation applies to approximately 70 taxpayers who file a Soft Drink Excise Tax return.

Localities Particularly Affected. The proposed changes do not disproportionately affect particular localities.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Of the 70 taxpayers that file Soft Drink Excise Tax returns, approximately 22 are estimated to be small businesses. The proposed regulation does not impose costs on small businesses, but is expected to benefit them by eliminating potentially confusing language between the regulation and the statute.

Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Adverse Impacts:

Businesses. No adverse effects are expected on small businesses.

Localities. The proposed amendments will not adversely affect localities.

Other Entities. The proposed amendments will not adversely affect other entities.

__________________________

¹See http://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1510.

²See 1989 Acts of Assembly, Chapter 629,

1991 Acts of Assembly, Chapter 316,

http://lis.virginia.gov/cgi-bin/legp604.exe?991+ful+CHAP0180,

http://lis.virginia.gov/cgi-bin/legp604.exe?051+ful+CHAP0100.

Agency's Response to Economic Impact Analysis: The Department of Taxation agrees with the Department of Planning and Budget's economic impact analysis.

Summary:

The amendments conform the Virginia Soft Drink Excise Tax Regulations to current law and existing administrative procedures regarding the collection of the tax and strike provisions that are no longer accurate due to changes in law and procedures, including affecting provisions for (i) collection of the soft drink excise tax; (ii) return due dates; and (iii) extensions, penalties, and interest charged for failure to timely file or pay the amount of tax due. This regulatory action does not reflect any change in current tax policy.

23VAC10-390-40. Collection.

A. The soft drink excise tax is collected annually by the Department of Taxation. A check payment for the amount of tax, and if applicable, penalty and interest, should shall be made payable to the Department of Taxation and submitted with the properly filed return no later than the due date prescribed in subsection B of this section.

B. Returns are required to shall be filed with the Department of Taxation, P.O. Box 1880, Richmond, Virginia 23282-1880, on or before the statutory original due date (without extension) for filing Virginia individual income tax returns under § 58.1-341 of the Code of Virginia, or if the taxpayer is a corporation, for filing Virginia corporate income tax returns under § 58.1-441 of the Code of Virginia.

1. If taxpayer has an extension of time for filing his income tax return from the Internal Revenue Service, the filing date for the soft drink excise tax may be extended to the same as the federal date plus 30 days. In order to receive an extension of time for filing the return, a request for extension must be made to the Department of Taxation prior to the original due date of the return.

2. If an extension of filing time is granted, interest at the rate established pursuant to Section 6621 of the Internal Revenue Code of 1954, as amended, accrues from the date the return was originally due to be filed to the date of payment.

C. A taxpayer may elect an extension of time within which to file the soft drink excise tax return to the extended due date set forth and in the manner prescribed for filing Virginia individual income tax returns on extension under § 58.1-344 of the Code of Virginia, or if the taxpayer is a corporation, for filing Virginia corporate income tax returns on extension under § 58.1-453 of the Code of Virginia.

1. If the full amount is not paid on or before the original due date, the penalty imposed by subsection D of this section for failure to pay when due the full amount shall apply regardless of whether the taxpayer properly elected to utilize an extension. Interest at the rate established pursuant to § 58.1-15 of the Code of Virginia accrues from the date the return was originally due to be filed to the date of payment.

2. If the return is not filed or the full amount of the tax due is not paid on or before the extended due date elected pursuant to this subsection, the penalty imposed by subsection D of this section for failure to file a return and for late filing shall apply as if no extension had been elected.

D. Subject to the provisions of subdivisions B 1 and 2 subsection C of this section, penalties and interest are imposed for failure to file a return, for late filing, for filing a false or fraudulent return, and for failure to pay when due the full amount of tax as shown on the face of the return and are assessed in the same manner as the income tax penalties imposed under Chapter 3 of Title 58.1 of the Code of Virginia make full payment of the taxpayer's actual tax liability on or before the original return due date.

1. Penalty for failure to pay when due shall be 5.0% of the amount of unpaid tax and assessed in accordance with §§ 58.1-351 and 58.1-455.

2. Penalty for failure to file the return when due is $100 for corporations and 10% of the amount of tax assessable on the return for all others. The penalties shall be assessed in accordance with Sections 58.1-347 and 58.1-450.

3. Penalty for fraud is assessed in accordance with §§ 58.1-348, 58.1-451 and 58.1-452.

4. 1. If the taxpayer is not a corporation, the nature and amount of the penalties imposed by this subsection shall be determined as if the comparable individual income tax penalties under §§ 58.1-347, 58.1-348, and 58.1-351 of the Code of Virginia apply to the soft drink excise tax rather than the individual income tax.

2. If the taxpayer is a corporation, the nature and amount of the penalties imposed by this subsection shall be determined as if the comparable corporate income tax penalties under §§ 58.1-450, 58.1-451, 58.1-452, and 58.1-455 of the Code of Virginia apply to the soft drink excise tax rather than the corporate income tax.

3. Interest is assessed on tax and applicable penalties in accordance with § 58.1-15 of the Code of Virginia.