Title of Regulation: 12VAC5-550. Board of Health Regulations Governing Vital Records (amending 12VAC5-550-320).

Statutory Authority: §§ 32.1-12 and 32.1-250 of the Code of Virginia.

Notice is hereby given that the State Board of Health has WITHDRAWN the proposed regulatory action for 12VAC5-550, Board of Health Regulations Governing Vital Records, which was published in 35:25 VA.R. 3027-3028 August 15, 2019. On November 10, 2020, the board withdrew its proposed action to provide for changing of gender on a birth certificate. Chapters 465 and 466 of the 2020 Acts of Assembly amended §§ 32.1-261 and 32.1-269 of the Code of Virginia to allow a change to the gender of an individual on a birth certificate by administrative process. Therefore, this regulatory action is no longer necessary and withdrawn.

Agency Contact: Janet Rainey, State Registrar, Virginia Department of Health, 2001 Maywill Street, Richmond, VA 23230, telephone (804) 662-6200, FAX (804) 662-6256, or email janet.rainey@vdh.virginia.gov.

Title of Regulation: 14VAC7-10. Rules Governing the Certified Application Counselor Program (adding 14VAC7-10-10 through 14VAC7-10-80).

Statutory Authority: §§ 12.1-13, 38.2-223, and 38.2-6515 of the Code of Virginia.

Effective Date: January 1, 2021.

Agency Contact: Richard Tozer, Bureau of Insurance Manager, State Corporation Commission, Tyler Building, 1300 East Main Street, P.O. Box 1157, Richmond, VA 23218, telephone (804) 786-9525, FAX (804) 371-9290, or email richard.tozer@scc.virginia.gov.

AT RICHMOND, NOVEMBER 5, 2020

COMMONWEALTH OF VIRGINIA, ex rel.
STATE CORPORATION COMMISSION

CASE NO. HBE-2020-00002

Ex Parte: In the matter of Adopting
New Rules Governing the Certified
Application Counselor Program

ORDER ADOPTING RULES

By Order to Take Notice ("Order") entered September 4, 2020, all interested persons were ordered to take notice that subsequent to October 16, 2020, the State Corporation Commission ("Commission") would consider the entry of an order adopting new rules in Chapter 10 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Certified Application Counselor Program," (hereinafter referred to as "Rules") recommended to be set out at 14 VAC 7-10-10 through 14 VAC 7-10-80, unless on or before October 16, 2020 any person objecting to the adoption of said Rules filed a request for hearing with the Clerk of the Commission ("Clerk").

The Order also required all interested persons to file their comments in support of or in opposition to the proposed Rules with the Clerk on or before October 16, 2020.

The proposed Rules are necessary in light of the enactment of § 38.2-6514 of Chapter 65 of Title 38.2 of the Code of Virginia. This Code section requires the Health Benefit Exchange ("Exchange") to establish a Certified Application Counselor program pursuant to 45 C.F.R. § 155.225. Certified application counselors are individuals who are trained and able to help consumers seeking health insurance coverage options in the Exchange marketplace. The Exchange may designate certain organizations to certify and oversee certified application counselors. The Rules establish processes and criteria for the designation of organizations, the certification of application counselors, and the duties and obligations of both.

Following entry of the Order to Take Notice, the Exchange received comments from one stakeholder, the Virginia Health Care Foundation. No requests for a hearing were filed with the Clerk. The Exchange carefully considered the comments and responded to those comments via letter, which was filed in the case file on October 29, 2020. As a result of those comments, no revisions to the proposed Rules are recommended. It is noted that the Exchange has added two newly developed forms to the Rules.

NOW THE COMMISSION, having considered the proposal to adopt new Rules, the comments filed, the Exchange's Response and the Exchange's recommendation that no amendments are necessary to the Rules as proposed, is of the opinion that the attached new Rules and appurtenant forms should be adopted, effective January 1, 2021.

Accordingly, IT IS ORDERED THAT:

(1) Chapter 10 of the new Rules entitled "Rules Governing the Certified Application Counselor Program," set out at 14 VAC 7-10-10 through 14 VAC 7-10-80 which are attached hereto and made a part hereof, are hereby ADOPTED effective January 1, 2021.

(2) The Exchange shall provide notice of the adoption of the new Rules to all carriers licensed in Virginia to write accident and sickness insurance and to all Life & Health interested persons.

(3) The Commission's Division of Information Resources shall cause a copy of this Order, together with the new Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(4) The Commission's Division of Information Resources shall make available this Order and the attached new Rules on the Commission's website: scc.virginia.gov/pages/Case-Information.

(5) The Exchange shall file with the Clerk of the Commission a certificate of compliance with the notice requirements of Ordering Paragraph (2) above.

(6) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

A COPY hereof shall be sent electronically by the Clerk of the Commission to C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, at mbrowder@oag.state.va.us, 202 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Health Benefit Exchange in care of Director Victoria Savoy.

Summary:

Chapters 916 and 917 of the 2020 Acts of Assembly add Chapter 65 (§ 38.2-6500 et seq.) of Title 38.2 of the Code of Virginia and establish the Virginia Health Benefit Exchange. Section 38.2-6514 of the Code of Virginia requires the exchange to establish a certified application counselor program pursuant to 45 CFR 155.225. Certified application counselors are individuals who are trained to be able to help consumers seeking health insurance coverage options in the exchange marketplace. The exchange may designate certain organizations to certify and oversee certified application counselors. The new regulation establishes processes and criteria for the designation of organizations, the certification of application counselors, and the duties and obligations of both.

Chapter 10

RULES GOVERNING THE CERTIFIED APPLICATION COUNSELOR PROGRAM

14VAC7-10-10. Scope and purpose.

The purpose of this chapter is to establish standards for a certified application counselor program by the Health Benefit Exchange in accordance with § 38.2-6514 of the Code of Virginia.

14VAC7-10-20. Definitions.

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

"Certified application counselor" means an individual certified by a CDO to perform the duties described in in this chapter and 45 CFR 155.225(c).

"Certified application counselor designated organization" or "CDO" means an organization designated by the exchange to certify its staff members or volunteers to act as certified application counselors who perform the duties and meet the standards and requirements for certified application counselors set forth in this chapter and 45 CFR 155.225.

"CHIP" means the Children's Health Insurance Program under Title XXI (42 USC 7) of the Social Security Act, including FAMIS.

"Exchange" means the Virginia Health Benefit Exchange established pursuant to the provisions of Chapter 65 (§ 38.2-6500 et seq.) of Title 38.2 of the Code of Virginia.

"FAMIS" means the Family Access to Medical Insurance Security Plan, including the FAMIS Plus program, established pursuant to Chapter 13 (§ 32.1-351 et seq.) of Title 32.1 of the Code of Virginia.

"Navigator" means an individual or entity that is registered pursuant to § 38.2-3457 of the Code of Virginia.

"Personal information" has the same meaning assigned to the term in § 38.2-602 of the Code of Virginia.

"Qualified dental plan" means a limited scope dental plan that has been certified in accordance with § 38.2-6506 of the Code of Virginia.

"Qualified health plan" means a health benefit plan that meets the criteria for certification described in § 1311(c) of the Patient Protection and Affordable Care Act, P.L. 111-148, and has been certified in accordance with § 38.2-6506 of the Code of Virginia.

14VAC7-10-30. Designation of organizations.

A. The exchange may designate an organization to certify its staff members or volunteers as certified application counselors. An organization seeking designation as a CDO shall:

1. Register with the exchange and provide any information required for registration purposes in the form and manner prescribed by the exchange;

2. Submit a compliance agreement with the exchange that outlines the standards and requirements in accordance with 45 CFR 155.225, including subdivisions (d)3 through (d)5; and

3. Attest to the organization's ability to carry out the required duties as set forth in 14VAC7-10-40, and if requested by the exchange, provide documentation or other information evidencing compliance with these duties.

B. If the exchange finds that the applicant meets the requirements of this chapter, it may designate the applicant as a CDO.

C. A designation issued under this chapter shall expire two years from the date it was issued. Each applicant for renewal of designation as a CDO shall submit an application to the exchange in the form and manner prescribed by the exchange. A designation issued under this chapter is required to maintain application counselor certification.

D. The exchange may withdraw a designation or refuse to designate or renew a designation of an organization for any one or more of the following causes:

1. Providing materially incorrect, misleading, incomplete, or untrue information in the CDO application or any other document filed with the exchange;

2. Obtaining or attempting to obtain a designation through misrepresentation or fraud;

3. Failing to comply with the requirements to certify application counselors; or

4. Failing to comply with requirements in this chapter, § 38.2-6514 of the Code of Virginia, or any other applicable provision of the Code of Virginia.

14VAC7-10-40. Duties of a certified application counselor designated organization.

A CDO shall perform the duties and meet the standards and requirements to certify application counselors. The CDO shall:

1. Meet the terms of the compliance agreement executed with the exchange pursuant to 14VAC7-10-30 A 2;

2. Maintain a registration process and method to track the performance of certified application counselors;

3. Provide data and information to the exchange regarding (i) the identity, number, and performance of its certified application counselors; and (ii) the consumer assistance provided by its certified application counselors in the form and manner specified by the exchange. Beginning in the first quarter of calendar year 2021, each CDO shall submit quarterly reports that include, at a minimum, data regarding the number and identifying information of individuals who have been certified by the organization; the total number of consumers who received application and enrollment assistance from the organization; and of that number, the number of consumers who received assistance in applying for and selecting a qualified health plan or qualified dental plan, enrolling in a qualified health plan or qualified dental plan, or applying for Medicaid or CHIP;

4. Establish procedures to withdraw certification from or refuse to recertify any individual certified application counselor upon a finding of noncompliance with the requirements for certification or a failure to perform duties as required by this chapter; and

5. Establish consumer protection procedures to ensure that:

a. Consumers are informed prior to receiving assistance of the functions and responsibilities of a certified application counselor, including that a certified application counselor may not act as a tax adviser or attorney and cannot provide tax or legal advice when providing assistance in their capacity as a certified application counselor;

b. Consumers provide the CDO with a signed authorization on a form prescribed and furnished by the exchange prior to a certified application counselor obtaining access to a consumer's personal information. The CDO shall maintain a record of the authorization for a period of at least six years; and

c. Consumers understand that they may revoke at any time the authorization provided to the certified application counselor.

14VAC7-10-50. Certification of application counselors.

A. A CDO may certify an individual staff member or volunteer to perform the duties of a certified application counselor only if the individual staff member or volunteer:

1. Completes exchange-approved training regarding qualified health plan and qualified dental plan options, insurance affordability programs, eligibility, and benefits rules and regulations governing all insurance affordability programs operated in Virginia, as implemented in Virginia, and completes and achieves a passing score on all exchange-approved certification examinations, prior to functioning as a certified application counselor;

2. Discloses to the CDO and potential applicants any relationships the certified application counselor or sponsoring agency has with any qualified health plan, qualified dental plan, insurance affordability program, or other potential conflicts of interest;

3. Complies with the exchange's privacy and security standards adopted consistent with 45 CFR 155.260 and applicable authentication and data security standards;

4. Agrees to act in the best interest of the applicants assisted;

5. Provides, either directly or through an appropriate referral to a navigator or non-navigator assistance personnel authorized under 45 CFR 155.205(d) and (e) or 45 CFR 155.210 or to the exchange call center, information in a manner that is accessible to individuals with disabilities, as defined by the Americans with Disabilities Act (42 USC § 12101 et seq.) and § 504 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act (29 USC § 794); and

6. Enters into an agreement with the CDO regarding compliance with the standards specified in 45 CFR 155.225(d), (f), and (g).

B. The CDO may recertify a certified application counselor on at least an annual basis after the certified application counselor has successfully completed recertification training as required by the exchange.

C. A CDO shall withdraw certification from or refuse to recertify an individual certified application counselor upon a finding of noncompliance with the requirements for certification or any failure to perform required duties in accordance with this chapter.

D. A CDO that does not renew or is no longer designated by the exchange shall result in all application counselors certified by that CDO to become decertified.

14VAC7-10-60. Duties of certified application counselors.

A certified application counselor certified by a CDO shall:

1. Provide information to individuals and employees about the full range of qualified health plan or qualified dental plan options and insurance affordability programs for which they are eligible, including providing fair, impartial, and accurate information that assists consumers with submitting the eligibility application; clarify the distinctions among health coverage options, including qualified health plans or qualified dental plans; and help consumers make informed decisions during the health coverage selection process;

2. Assist individuals and employees to apply for coverage in a qualified health plan or qualified dental plan through the exchange and for insurance affordability programs;

3. Help to facilitate enrollment of eligible individuals in a qualified health plan or qualified dental plan and any insurance affordability programs; and

4. Adhere to all the requirements and responsibilities set forth by the CDO or the exchange in the performance of the certified application counselor's duties under this chapter.

14VAC7-10-70. Prohibitions on fees, consideration, solicitation, and marketing.

A CDO or a certified application counselor may not:

1. Impose any charge on a consumer, an applicant, or an enrollee for application or other assistance related to the exchange;

2. Act as an insurance agent or broker;

3. Receive any consideration directly or indirectly from any health insurance issuer or other insurance issuer in connection with the enrollment of any individual in a qualified health plan or qualified dental plan or a nonqualified health plan or nonqualified dental plan;

4. Provide compensation to any individual certified application counselor on a per-application, per-individual-assisted, or per-enrollment basis;

5. Provide to an applicant or potential enrollee a gift of any value as an inducement for enrollment. The value of a gift provided to an applicant and potential enrollee for purposes other than as an inducement for enrollment shall not exceed nominal value, either individually or in the aggregate, when provided to that individual during a single encounter. For purposes of this subdivision the term "gift" includes gift items, gift cards, cash cards, cash, or promotional items that market or promote the products or services of a third party but does not include the reimbursement of legitimate expenses incurred by a consumer in an effort to receive exchange application assistance, such as travel or postage expenses;

6. Solicit any consumer for application or enrollment assistance by going door-to-door or through other unsolicited means of direct contact with a consumer to provide application or enrollment assistance without the consumer initiating the contact, unless the individual has a preexisting relationship with the individual certified application counselor or CDO and other applicable state and federal laws are otherwise complied with; or

7. Initiate any telephone call to a consumer using an automatic telephone dialing system or an artificial or prerecorded voice, except in cases where the individual certified application counselor or CDO has a relationship with the consumer and so long as other applicable state and federal laws are otherwise complied with.

14VAC7-10-80. Severability.

If any provision of this chapter or its application to any person or circumstance is for any reason held to be invalid by a court, the remainder of this chapter and the application of the provisions to other persons or circumstances shall not be affected.

FORMS (14VAC7-10)

[ CDO Compliance Agreement Agreement Between the Virginia Health Benefit Exchange and Certified Counselor Designated Organization, Form 10-A (eff. 1/2021) ]

REGISTRAR'S NOTICE: The following regulatory action is exempt from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. The Safety and Health Codes Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 16VAC25-90. Federal Identical General Industry Standards.

Statutory Authority: § 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Agency Contact: Holly Trice, Senior Staff Attorney; Regulatory Coordinator, Department of Labor and Industry, 600 East Main Street, Suite 207, Richmond, VA 23219, telephone (804) 786-2641, FAX (804) 371-6524, or email holly.trice@doli.virginia.gov.

Effective Date: January 7, 2021

Summary:

In a final rule, federal Occupational Safety and Health Administration (OSHA) is amending its existing general industry standard for occupational exposure to beryllium and beryllium compounds to clarify certain provisions and simplify or improve compliance and maintain or enhance worker protections. In this regulatory action, the Safety and Health Codes Board is adopting this final rule.

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR Part 1910 (Occupational Safety and Health Standards) is declared a document generally available to the public and appropriate for incorporation by reference. For this reason, this document will not be printed in the Virginia Register of Regulations. A copy of this document is available for inspection at the Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

Statement of Final Agency Action: On November 12, 2020, the Safety and Health Codes Board adopted federal OSHA's Occupational Exposure to Beryllium in General Industry, Final Rule, published in 85 FR 42582 through 85 FR 42628 on July 14, 2020, with an effective date of September 14, 2020.

Federal Terms and State Equivalents: When the regulations as set forth in the final rule for Occupational Safety and Health Standards are applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read as follows:

Chapter 90

Federal Identical General Industry Standards

Titles of Regulations: 16VAC25-100. Federal Identical Shipyard Employment Standards.

16VAC25-175. Federal Identical Construction Industry Standards.

Statutory Authority: § 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Agency Contact: Holly Trice, Senior Staff Attorney; Regulatory Coordinator, Department of Labor and Industry, 600 East Main Street, Suite 207, Richmond, VA 23219, telephone (804) 786-2641, FAX (804) 371-6524, or email holly.trice@doli.virginia.gov.

Effective Date: January 7, 2021.

Summary:

In a final rule, federal Occupational Safety and Health Administration (OSHA) amending its existing construction and shipyard standards for occupational exposure to beryllium and beryllium compounds to clarify certain provisions and simplify or improve compliance (i) to more appropriately tailor the requirements of the construction and shipyards standards to the particular exposures in these industries in light of partial overlap between the requirements of the beryllium standards and other OSHA standards; (ii) to aid compliance and enforcement across the beryllium standards by avoiding inconsistency between the shipyards and construction standards and recent revisions to the general industry standard; and (iii) to clarify certain requirements with respect to materials containing only trace amounts of beryllium. In this regulatory action, the Safety and Health Codes Board is adopting this final rule.

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR 1915 (Shipyard Employment Standards) and 29 CFR Part 1926 (Construction Industry Standards) are declared documents generally available to the public and appropriate for incorporation by reference. For this reason, these documents will not be printed in the Virginia Register of Regulations. A copy of each document is available for inspection at the Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, General Assembly Building, 9th and Broad Streets, Richmond, Virginia 23219.

Statement of Final Agency Action: On November 12, 2020, the Safety and Health Codes Board adopted federal OSHA's Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors Final Rule, as published in 85 FR 53910 through 85 FR 539998 on August 31, 2020, with an effective date of January 7, 2021.

Federal Terms and State Equivalents: When the regulations as set forth in federal OSHA's Final Rule for the Occupational Exposure to Beryllium for Shipyard Employment Standards and Construction Industry Standards are applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read:

Chapter 100

Federal Identical Shipyard Employment Standards

Chapter 175

Federal Identical Construction Industry Standards

Title of Regulation: 16VAC25-175. Federal Identical Construction Industry Standards.

Statutory Authority: § 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Agency Contact: Holly Trice, Senior Staff Attorney; Regulatory Coordinator, Department of Labor and Industry, 600 East Main Street, Suite 207, Richmond, VA 23219, telephone (804) 786-2641, FAX (804) 371-6524, or email holly.trice@doli.virginia.gov.

Effective Date: January 7, 2021.

Summary:

In the final rule the federal Occupational Health and Safety Administration (OSHA) is revising the standard for cranes and derricks in construction to provide specific exemptions and clarifications with regard to the application of the standard to cranes and derricks used for railroad roadway work. These exemptions and clarifications recognize the unique equipment and circumstances in railroad roadway work and reflect the preemption of some OSHA requirements by regulations promulgated by the Federal Railroad Administration, clarifying which regulatory requirements are applicable. In this regulatory action, the Safety and Health Codes Board is adopting this final rule.

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR Part 1926 (Construction Industry Standards) is declared a document generally available to the public and appropriate for incorporation by reference. For this reason this document will not be printed in the Virginia Register of Regulations. A copy of this document is available for inspection at the Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, General Assembly Building, 9th and Broad Streets, Richmond, Virginia 23219.

Statement of Final Agency Action: On November 12, 2020, the Safety and Health Codes Board adopted federal OSHA's Final Rule for Cranes and Derricks in Construction: Railroad Roadway Work, as published in 85 FR 57109 through 85 FR 57122 on September 15, 2020, with an effective date of November 16, 2020.

Federal Terms and State Equivalents: When the regulations as set forth in the final rule for Cranes and Derricks in Construction: Railroad Roadway Work is applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read as follows:

Chapter 175

Federal Identical Construction Industry Standards

Titles of Regulations: 16VAC25-100. Federal Identical Shipyard Employment Standards.

16VAC25-175. Federal Identical Construction Industry Standards.

Statutory Authority: § 40.1-22 of the Code of Virginia; Occupational Safety and Health Act of 1970 (P.L. 91-596).

Agency Contact: Holly Trice, Senior Staff Attorney; Regulatory Coordinator, Department of Labor and Industry, 600 East Main Street, Suite 207, Richmond, VA 23219, telephone (804) 786-2641, FAX (804) 371-6524, or email holly.trice@doli.virginia.gov.

Effective Date: January 7, 2021.

Summary:

In a final rule, federal Occupational Safety and Health Administration (OSHA) amending its existing construction and shipyard standards for occupational exposure to beryllium and beryllium compounds to clarify certain provisions and simplify or improve compliance (i) to more appropriately tailor the requirements of the construction and shipyards standards to the particular exposures in these industries in light of partial overlap between the requirements of the beryllium standards and other OSHA standards; (ii) to aid compliance and enforcement across the beryllium standards by avoiding inconsistency between the shipyards and construction standards and recent revisions to the general industry standard; and (iii) to clarify certain requirements with respect to materials containing only trace amounts of beryllium. In this regulatory action, the Safety and Health Codes Board is adopting this final rule.

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR 1915 (Shipyard Employment Standards) and 29 CFR Part 1926 (Construction Industry Standards) are declared documents generally available to the public and appropriate for incorporation by reference. For this reason, these documents will not be printed in the Virginia Register of Regulations. A copy of each document is available for inspection at the Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, General Assembly Building, 9th and Broad Streets, Richmond, Virginia 23219.

Statement of Final Agency Action: On November 12, 2020, the Safety and Health Codes Board adopted federal OSHA's Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors Final Rule, as published in 85 FR 53910 through 85 FR 539998 on August 31, 2020, with an effective date of January 7, 2021.

Federal Terms and State Equivalents: When the regulations as set forth in federal OSHA's Final Rule for the Occupational Exposure to Beryllium for Shipyard Employment Standards and Construction Industry Standards are applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read:

Chapter 100

Federal Identical Shipyard Employment Standards

Chapter 175

Federal Identical Construction Industry Standards

Titles of Regulations: 20VAC5-355. Rules Governing Operator's Responsibilities to Redistribute Topsoil (adding 20VAC5-355-10, 20VAC5-355-20, 20VAC5-355-30)

20VAC5-355. Rules Governing Operator's Responsibility to Redistribute Topsoil (adding 20VAC5-355-10, 20VAC5-355-20, 20VAC5-355-30).

Statutory Authority: §§ 12.1-13 and 56-257.5 of the Code of Virginia.

Public Hearing Information: A public hearing will be held upon request.

Public Comment Deadline: December 21, 2020.

Agency Contact: Lauren Govoni, Deputy Director, Division of Utility and Railroad Safety, State Corporation Commission, Tyler Building, 1300 East Main Street, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9590, FAX (804) 371-9734, or email lauren.govoni@scc.virginia.gov.

AT RICHMOND, JUNE 11, 2021

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. URS-2020-00378

Ex Parte: In the matter of adopting new

rules of the State Corporation Commission

governing operator's responsibilities to

redistribute topsoil under § 56-257.5

of the Code of Virginia

ORDER FOR NOTICE AND COMMENT

During its 2020 Session, the Virginia General Assembly enacted Chapter 666 (HB 723) of the 2020 Virginia Acts of Assembly ("Act"), which became effective on July 1, 2020. The Act, inter alia, amended the Code of Virginia by adding a section, § 56-257.5 (the "Statute"), to require the State Corporation Commission ("Commission") to establish rules by which operators are required to remove topsoil from certain planned construction sites and either redistribute it or store it for later redistribution on the disturbed area. Under the Statute, topsoil is defined as at least 12 inches of the surface soil layer or a six-inch layer of soil that includes the surface soil and the unconsolidated subsoil immediately below it. Additionally, operator is defined as any person who owns, furnishes or transports materials or services by means of a utility line. Further, underground utility line is defined as underground pipeline or conduit of an inside diameter greater than 12 inches or an underground electrical transmission or distribution line of a capacity greater than 115 kilovolts.

The Statute requires the Commission to adopt regulations applicable to any operator having the right to install an underground utility line. The Statute further requires the regulations to require that if such operator, in the course of installing the underground utility line, disturbs an area of land that measures 10,000 square feet or more and constitutes one or more agricultural operations, as defined in § 3.2-300, the operator shall, if desired by the landowner or land management agency, either redistribute the topsoil removed from the disturbed area to graded areas elsewhere on the land of the affected property owner or if insufficient graded areas are available as sites for such redistribution, stockpile the topsoil removed from the disturbed area until it can be redistributed on the area initially disturbed. The Statute mandates that redistributed topsoil be placed on scarified land and that stockpiled topsoil be protected from erosion and compaction or, if the property owner does not agree, then the topsoil shall be disposed of in accordance with applicable law.

NOW THE COMMISSION, upon consideration of the foregoing, is of the opinion and finds that a proceeding should be established to promulgate rules governing operator's responsibilities to redistribute topsoil. To initiate this proceeding, the Commission's Staff ("Staff") has prepared proposed rules which are appended to this Order ("Proposed Rules"). We will direct that notice of the Proposed Rules be given to the public and that interested persons be provided an opportunity to file written comments on, propose modifications or supplements to, or request a hearing on the Proposed Rules. We further find that a copy of the Proposed Rules should be sent to the Registrar of Regulations for publication in the Virginia Register of Regulations.

The Commission further takes judicial notice of the ongoing public health emergency related to the spread of the coronavirus, or COVID-19, and the declarations of emergency issued at both the state and federal levels.¹ The Commission has taken certain actions, and may take additional actions going forward, which could impact the procedures in this proceeding.² Consistent with these actions, in regard to the terms of the procedural framework established below, the Commission will, among other things, direct the electronic filing of comments.

Accordingly, IT IS ORDERED THAT:

(1) This matter is docketed as Case No. URS-2020-00378.

(2) All filings in this matter shall be submitted electronically to the extent authorized by Rule 5 VAC 5-20-150, Copies and Format, of the Commission's Rules of Practice and Procedure.³ For the duration of the COVID-19 emergency, any person seeking to hand deliver and physically file or submit any pleading or other document shall contact the Clerk's Office Document Control Center at (804) 371-9838 to arrange the delivery.⁴

(3) The Commission's Division of Information Resources shall forward a copy of this Order for Notice and Comment ("Order"), including a copy of the Proposed Rules, to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(4) Within five (5) business days of the date of this Order, the Commission's Division of Utility and Railroad Safety shall transmit electronically copies of this Order to those persons and entities identified by Staff as potentially having an interest in this matter.

(5) An electronic copy of these rules may be obtained by submitting a request to Lauren C. Govoni, Deputy Director of the Division of Utility and Railroad Safety, Lauren.Govoni@scc.virginia.gov. An electronic copy of the Proposed Rules can also be found at the Division of Public Utility Regulation's website: scc.virginia.gov/pages/Rulemaking. Additionally, interested persons may download unofficial copies of the Order and the Proposed Rules from the Commission's website: scc.virginia.gov/pages/Case-Information.

(6) On or before December 21, 2020, any interested person may file comments on the Proposed Rules by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. Such comments may also include proposed modifications and hearing requests. All filings shall refer to Case No. URS-2020- 00378. Any request for hearing shall state with specificity why the issues raised in the request for hearing cannot be addressed adequately in written comments. If a sufficient request for hearing is not received, the Commission may consider the matter and enter an order based upon the papers filed herein.

(7) On or before January 18, 2021, the Staff may file with the Clerk of the Commission a report on or a response to any comments, proposals, or requests for hearing submitted to the Commission on the Proposed Rules.

(8) This matter is continued.

A COPY hereof shall be sent electronically by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the Commission. A copy hereof also shall be sent to the Commission's Office of General Counsel and Divisions of Public Utility Regulation and Utility Accounting and Finance.

____________________________
¹See, e.g., Executive Order No. 51, Declaration of a State of Emergency Due to Novel Coronavirus, COVID-19, issued March 12, 2020, by Gov. Ralph S. Northam. See also Executive Order No. 53, Temporary Restrictions on Restaurants, Recreational, Entertainment, Gatherings, Non-Essential Retail Businesses, and Closure of K-12 Schools Due to Novel Coronavirus (COVID19), issued March 23, 2020, by Governor Ralph S. Northam, and Executive Order No. 55, Temporary Stay at Home Order Due to Novel Coronavirus (COVID-19), issued March 30, 2020, by Governor Ralph S. Northam. These and subsequent Executive Orders related to COVID-19 may be found at: https://www.governor.virginia.gov/executive-actions/.
²See, e.g., Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic Service of Commission Orders, Case No. CLK-2020- 00004, Doc. Con. Cen. No. 200330035, Order Concerning Electronic Service of Commission Orders (Mar. 19, 2020), extended by Doc. Con. Cen. No. 200520105, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel., State Corporation Commission, Ex Parte: Revised Operating Procedures During COVID-19 Emergency, Case No. CLK2020-00005, Doc. Con. Cen. No. 200330042, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (Mar. 19, 2020) ("Revised Operating Procedures Order"), extended by Doc. Con. Cen. No. 200520105, Order Regarding the State Corporation Commission’s Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic service among parties during COVID-19 emergency, Case No. CLK-2020-00007, Doc. Con. Cen. No. 200410009, Order Requiring Electronic Service (Apr. 1, 2020).
³5 VAC 5-20-10 et seq.
⁴As noted in the Revised Operating Procedures Order, submissions to the Commission’s Clerk’s Office via U.S. mail or commercial mail equivalents may not be processed for an indefinite period of time due to the COVID-19 emergency.

Summary:

Pursuant to Chapter 666 of the 2020 Acts of Assembly, the proposed regulation requires a utility company installing an underground pipeline or conduit with an inside diameter greater than 12 inches or an underground electric transmission or distribution line of greater than 115 kilovolts in capacity to mitigate the effects of the project if the project disturbs 10,000 square feet or more of agricultural land by removing topsoil from the planned construction site and either redistributing it to graded areas elsewhere on the land of the affected property owner or storing it nearby protected from erosion and compaction for later redistribution on the disturbed area.

Chapter 355

Rules Governing Operator's Responsibility to Redistribute Topsoil

20VAC5-355-10. Applicability.

This chapter sets forth requirements for operators installing underground pipeline or conduit, with an inside diameter greater than 12 inches or an underground electric transmission or distribution line of greater than 115 kilovolts in capacity, to mitigate the effects of the project if the project disturbs 10,000 square feet or more of agricultural land. Such operators shall remove topsoil from the planned construction site and either redistribute the topsoil to graded areas elsewhere on the land of the affected property owner or store it nearby protected from erosion and compaction for later redistribution on the disturbed area.

20VAC5-355-20. Definitions.

The following terms shall have the following meanings, unless the context clearly indicates otherwise:

"Operator" means any person who owns, furnishes, or transports materials or services by means of a utility line.

"Topsoil" means at least 12 inches of the surface soil layer or a six-inch layer of soil that includes the surface soil and the unconsolidated subsoil immediately below it.

"Underground utility line" means an underground pipeline or conduit of an inside diameter greater than 12 inches or an underground electrical transmission or distribution line of a capacity greater than 115 kilovolts.

20VAC5-355-30. Operator's responsibilities to redistribute topsoil; waiver.

A. If any operator, in the course of installing an underground utility line, disturbs an area of land that measures 10,000 square feet or more and constitutes one or more agricultural operations, as defined in § 3.2-300 of the Code of Virginia, the operator shall, if desired by the landowner or land management agency, take the following actions:

1. Redistribute the topsoil removed from the disturbed area to graded areas elsewhere on the land of the affected property owner; or

2. If insufficient graded areas are available as sites for such redistribution, stockpile the topsoil removed from the disturbed area until it can be redistributed on the area initially disturbed.

B. Operators redistributing topsoil pursuant to this section shall place the topsoil on scarified land and shall protect the topsoil from erosion and compaction.

C. If the property owner does not agree to the redistribution of topsoil pursuant to this section, the topsoil shall be disposed of in accordance with other applicable law.

D. A request or waiver of any of the provisions in this chapter shall be considered by the State Corporation Commission on a case-by-case basis and may be granted upon such terms and conditions as the State Corporation Commission may impose.