Title of Regulation: 4VAC20-450. Pertaining to the Taking of Bluefish (amending 4VAC20-450-15, 4VAC20-450-30).

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

Effective Date: March 1, 2022.

Agency Contact: Alexa Galvan, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2069, or email alexa.galvan@mrc.virginia.gov.

Summary:

The amendments change the way "annual quota" for bluefish is established, moving it from being defined in regulation to being pursuant to the Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan.

4VAC20-450-15. Definitions.

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

"Annual quota" means Virginia's 11.8795% share of the annual coastwide commercial bluefish quota managed by the Atlantic States Marine Fisheries Commission.

"Bluefish" means any fish of the species Pomatomus saltatrix.

"Captain" means the person licensed by the U.S. Coast Guard to carry passengers for hire who operates the charter boat or head boat.

"Charter vessel" or "for-hire vessel" means a vessel operating with a captain who possesses either a Class A Fishing Guide License, Class B Fishing Guide License, or Fishing Guide Reciprocity Permit.

4VAC20-450-30. Commercial landings quota.

A. The commercial landings of bluefish shall be limited to the annual quota pursuant to the joint Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Bluefish Fishery Management Plan, except as specified in subsection B of this section.

B. If a quota transfer occurs between Virginia and another state participating in the Interstate Fishery Management Plan for bluefish, Virginia's annual quota for the current calendar year shall be limited to the annual quota amount as adjusted for transfers.

C. When it is projected that 95% of the commercial landings quota has been realized, a notice will be posted to close commercial harvest and landings from the bluefish fishery within five days of posting.

D. It shall be unlawful for any person to harvest or land bluefish for commercial purposes after the closure date set forth in the notice described in subsection C of this section.

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

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

Effective Dates: March 1, 2022, through March 31, 2022.

Agency Contact: Alexa Galvan, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2069, or email alexa.galvan@mrc.virginia.gov.

Preamble:

The amendment extends the open patent tong season for oyster harvest in the Deep Rock Area to March 15, 2022.

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 this subsection.

1. James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area: October 1, 2021, through April 30, 2022 (hand tong only).

2. Milford Haven: December 1, 2021, through February 28, 2022 (hand tong only).

3. Rappahannock River Area 9: October 1, 2021, through December 31, 2021 (hand tong only).

4. Corrotoman Hand Tong Area: October 1, 2021, through December 31, 2021.

5. Little Wicomico River: October 1, 2021, through December 31, 2021 (hand tong only).

6. Nomini Creek Area: October 1, 2021, through January 31, 2022 (hand tong only).

7. Yeocomico River Area: October 1, 2021, through December 31, 2021 (hand tong only).

8. York River Hand Tong Area: October 1, 2021, through February 28, 2022 (hand tong only).

9. York River Rotation Areas 1 and 2: October 1, 2021, through November 30, 2021 (hand tong only).

10. James River Area 1: October 1, 2021, through November 30, 2021, and February 1, 2022, through February 28, 2022 (hand tong only).

11. James River Areas 2 and 3: October 1, 2021, through October 15, 2021, and February 1, 2022, through February 28, 2022 (hand tong only).

12. Pocomoke Sound Area: December 1, 2021, through February 28, 2022 (hand tong only).

13. Mobjack Bay Area: October 1, 2021, through January 31, 2022 (hand tong only).

14. Rappahannock River Rotation Area 3: November 1, 2021, through November 30, 2021, and January 1, 2022, through January 31, 2022 (hand scrape only).

15. Rappahannock River Area 5: December 1, 2021, through December 31, 2021, and February 1, 2022, through February 28, 2022 (hand scrape only).

16. Great Wicomico River Rotation Area 1: December 1, 2021, through January 31, 2022 (hand scrape only).

17. James River Area 1: December 1, 2021, through January 31, 2022 (hand scrape only).

18. James River Areas 2 and 3: October 18, 2021, through January 31, 2022 (hand scrape only).

19. Upper Chesapeake Bay - Blackberry Hangs Area: February 1, 2022, through February 28, 2022 (hand scrape only).

20. Mobjact Bay Area: February 1, 2022, through February 28, 2022 (hand scrape only).

21. Pocomoke Sound Rotation Area 1: December 1, 2021, through February 28, 2022 (dredge only).

22. Tangier Sound Rotation Area 1: December 1, 2021, through February 28, 2022 (dredge only).

23. Deep Rock Area: December 1, 2021, through February 28 March 15, 2022 (patent tong only).

24. Upper Chesapeake Bay - Blackberry Hangs Area: October 18, 2021, through October 31, 2021 (patent tong only).

25. Rappahannock River Rotation Area 1: October 18, 2021, through February 14, 2022 (patent tong only).

26. Seaside of the Eastern Shore (for clean cull oysters only): November 1, 2021, through March 31, 2022 (by hand and hand tong only).

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 this subsection.

1. James River Seed Area: October 1, 2021, through May 31, 2022 (hand tong only).

2. Deep Water Shoal State Replenishment Seed Area: October 1, 2021, through May 31, 2022 (hand tong only).

Title of Regulation: 4VAC20-1150. Pertaining to Charter Boat and Head Boat Fisheries (repealing 4VAC20-1150-10, 4VAC20-1150-20).

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

Effective Date: March 1, 2022.

Agency Contact: Alexa Galvan, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2069, or email alexa.galvan@mrc.virginia.gov.

Summary:

The amendments repeal the outdated regulation Pertaining to Charter Boat and Head Boat Fisheries (4VAC20-1150) as it has been replaced with updated provisions incorporated into Pertaining to Fishing Guides (4VAC20-1180).

Chapter 1150

Pertaining to Charter Boat and Head Boat Fisheries (Repealed)

4VAC20-1150-10. Purpose. (Repealed.)

The purpose of this chapter is to establish a control date of June 24, 2008, that may be used to determine future eligibility requirements or limits on access to the charter boat and head boat fisheries.

4VAC20-1150-20. Control date. (Repealed.)

The commission hereby establishes June 24, 2008, as the control date for management of access or eligibility requirements for the charter boat and head boat fisheries in Virginia. Participation by any individual in a charter boat or head boat fishery after the control date shall not be considered in the inclusion or distribution of any charter boat or head boat fishing opportunities or licensing opportunities should further entry limitations be established. Any individual entering the charter boat or head boat fishery after the control date shall be ineligible for future participation in the charter boat and head boat fishery should further entry limitations be established.

Title of Regulation: 4VAC20-1180. Pertaining to Fishing Guides (amending 4VAC20-1180-10 through 4VAC20-1180-50; adding 4VAC20-1180-70, 4VAC20-1180-80; repealing 4VAC20-1180-60).

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

Effective Date: March 1, 2022.

Agency Contact: Alexa Galvan, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2069, or email alexa.galvan@mrc.virginia.gov.

Summary:

The amendments (i) define the extent of charter license lines between freshwater and saltwater jurisdictions, (ii) clarify how to obtain required for-hire licenses, (iii) establish penalties for failing to comply with regulatory provisions, and (iv) repeal an outdated provision.

Chapter 1180

Pertaining to Fishing Guides, Charter Boat, and Head Boat Fisheries

4VAC20-1180-10. Purpose.

The purpose of this chapter is to establish conditional or limited sale of fishing guide licenses and permits for fishing guides, charter boats, and head boats for effective fishery management. This chapter establishes the enforcement boundaries for freshwater and saltwater licenses for the for-hire industry.

4VAC20-1180-20. Definitions.

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

"Captain" means the person licensed by the U.S. Coast Guard to carry passengers for hire who operates the charter boat or head boat.

"Charter boat permit" or "head boat permit" means the permit for the charter boat or head boat that allows the charter boat or head boat passengers to fish.

"Class A fishing guide license" means the license for that allows charter boat or head boat operators that is restricted to those individuals who satisfy one of the conditions described in 4VAC20-1180-40 or who obtains the license through a transfer or from the waiting list described in 4VAC20-1180-50 and 4VAC20-1180-60, respectively to fish in Virginia and apply for reciprocity in Maryland.

"Class B fishing guide license" means the license that allows charter boat or head boat operators to fish only in Virginia waters and may be obtained by anyone who is licensed by the U.S. Coast Guard to carry passengers for hire and can provide a copy of his current U.S. Coast Guard license with the application.

"Fishing guide reciprocity permit" means a cost-free permit that is required for any charter boat or head boat operator licensed as a Maryland fishing guide who fishes in Virginia waters under the Chesapeake Bay Saltwater License Reciprocity Agreement.

4VAC20-1180-30. Fishing guide license; fees and charter boat and head boat permit.

A. Either a Class A fishing guide license or Class B fishing guide license or a fishing guide reciprocity permit shall be required for a charter boat or head boat captain operating for hire and fishing in the tidal salt waters of the Commonwealth under the jurisdiction of the commission Marine Resources Commission, pursuant to 4VAC20-1180-70.

B. The annual fee for the Class A fishing guide license or the Class B fishing guide license shall be $100 for a resident and $200 for a nonresident. Fishing

B. A charter boat or head boat permit or a fishing guide reciprocity permit shall be required for any registered or documented charter boat or head boat operating for hire in the waters of the Commonwealth under the jurisdiction of the Marine Resources Commission, pursuant to 4VAC20-1180-70.

C. A fishing guide reciprocity permits permit can be obtained at no cost provided the applicant furnishes copies of his the applicant's Maryland fishing guide license and, U.S. Coast Guard license, and vessel documentation or registration.

C. When the same applicant purchases a Class A or Class B fishing guide license prior to purchasing one charter boat or head boat license as required by § 28.2-302.8 of the Code of Virginia, the fee for that charter boat or head boat license shall be reduced by the cost of the fishing guide license.

4VAC20-1180-40. Limited sale of the Class A fishing guide license and conditional sale of the Class B fishing guide license.

The commissioner has determined that the requirements for the fishing guide license in Maryland are substantially similar and reciprocal with the Class A fishing guide license, and the following provisions and qualifications shall define the administration of the Class A fishing guide license:

1. It shall be unlawful for any person to serve as the captain of a charter boat or head boat without first qualifying for and obtaining a Class A or Class B fishing guide license or a fishing guide reciprocity permit.

2. An applicant shall be considered qualified for the Class A fishing guide license once that applicant satisfies the following conditions:

a. The applicant shall be licensed by the U.S. Coast Guard to carry passengers for hire and shall include a copy of his current U.S. Coast Guard license with the application.

b. The applicant shall have purchased, as the licensee, a 2008 Virginia charter boat or head boat license before June 25, 2008, or shall have purchased, as the licensee, Virginia charter boat or head boat licenses in 2006 and 2007.

A. To obtain a Class A guide license the applicant shall submit to the Marine Resources Commission a For-Hire Application and a copy of the applicant's valid U.S. Coast Guard license.

3. 1. A Class A fishing guide licensee shall be required to purchase a Class A fishing guide license annually to maintain his eligibility to purchase a Class A fishing guide license for the following year. If a Class A fishing guide license is not purchased annually, then the applicant shall reapply using a New Class A Fishing Guide License Applicant Form.

4. 2. The number of Class A fishing guide licenses sold in any one year shall not exceed 240 for residents of Virginia and 38 for nonresidents, which are the numbers of persons meeting the qualifications specified in subdivision 2 b of this section.

3. If the number of applicants exceeds the number of available licenses in any calendar year, those applicants shall be placed on a wait list. If there are any vacant licenses due to loss of eligibility, those licenses shall be filled by persons from the wait list in the order of listing. If the person from the wait list fails to purchase the Class A fishing guide license within 14 days, the applicant forfeits eligibility for the current calendar year, and the next person shall be selected from the wait list.

B. To obtain a Class B guide license the applicant shall submit to the Marine Resources Commission a For-Hire Application and a copy of the applicant's valid U.S. Coast Guard license.

5. An applicant shall be considered qualified for the Class B fishing guide license once he provides documentation that he is licensed by the U.S. Coast Guard to carry passengers for hire and can provide a copy of his current U.S. Coast Guard license with the application.

4VAC20-1180-50. Transfers of a Class A fishing guide license.

A. A Class A fishing guide license may be transferred from the current licensee to another person with the approval of the commissioner. Transfers may be temporary or permanent. A temporary transfer shall authorize the person replacing the original Class A fishing guide licensee to serve as a fishing guide from the date of the transfer to the end of the license year, and following that time period, the original Class A fishing guide licensee shall retain eligibility for a fishing guide license. A permanent transfer authorizes the person replacing the original licensee to serve as a fishing guide for as long as he continues to qualify for the license, and the original licensee shall lose his eligibility for a Class A fishing guide license in future years. Commissioner of Marine Resources as follows:

1. A temporary transfer shall authorize the person replacing the original Class A fishing guide licensee to serve as a fishing guide from the date of the transfer to the end of the calendar year, and following that time period, the original Class A fishing guide licensee shall retain eligibility for a fishing guide license.

2. A permanent transfer authorizes the person replacing the original licensee to serve as a fishing guide for as long as they continue to qualify for the license, and the original licensee shall lose eligibility for a Class A fishing guide license in future years.

B. No transfer of a Class A fishing guide license from a resident to a nonresident or nonresident to resident shall be approved.

4VAC20-1180-60. Waiting list. (Repealed.)

A. Effective January 1, 2009, the commission shall create a list of applicants who have failed to qualify for the Class A fishing guide license. Persons may be placed upon the list in the order of receipt of their application, except that any person who cannot document that he is currently licensed by the U.S. Coast Guard to carry passengers for hire shall not be placed on the waiting list.

B. In the event the number of Class A fishing guide licenses in any year is less than the maximum number of licenses authorized by subdivision 4 of 4VAC20-1180-40, the vacant licenses may be filled by persons from the waiting list in their order of listing.

4VAC20-1180-70. Delineation of enforcement boundaries for freshwater and saltwater licenses.

It shall be unlawful to operate as a captain on a charter or head boat without the corresponding licenses from the Marine Resources Commission in the following waters:

1. Potomac River: the tidal portions of all Virginia tributaries entering downstream of the Route 301 Bridge;

2. Rappahannock River: the mainstem and all tributaries of the Rappahannock River downstream of the Route 360 Bridge;

3. Piankatank River: the mainstem and all tributaries of the Piankatank River downstream of the first set of power lines immediately upriver of Anderson Point;

4. York River (including the Mattaponi and the Pamunkey Rivers): the mainstem and all tributaries of the York River downstream of the abutments of the old Route 33 Bridges; and

5. James River: the mainstem and all tributaries of the James River downstream of a line connecting Hog Point and the downstream shoreline at the mouth of College Creek.

4VAC20-1180-80. Penalty.

As set forth in § 28.2-903 of the Code of Virginia, any individual violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same individual within 12 months of a prior violation is a Class 1 misdemeanor.

FORMS (4VAC20-1180)

For Hire New Applicant or Renewal Form (eff. 1/2022)

New Class A Fishing Guide License Applicant Form (filed 2/22/2022)

Title of Regulation: 4VAC20-1270. Pertaining to Atlantic Menhaden (amending 4VAC20-1270-30, 4VAC20-1270-35, 4VAC20-1270-50).

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

Effective Date: March 1, 2022.

Agency Contact: Alexa Galvan, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2069, or email alexa.galvan@mrc.virginia.gov.

Summary:

The amendments (i) align regulation with the Interstate Fishery Management Plan for Atlantic Menhaden by lowering total allowable commercial landings and non-purse seine menhaden bait sector quota allocation, and (ii) remove an obsolete date.

4VAC20-1270-30. Total allowable landings for menhaden; allocation, accountability, overages, restrictions, closures, and state-to-state transfers.

A. Total allowable commercial landings for menhaden in 2021 2022 shall be equivalent to 335,206,390 334,781,533 pounds (152,047.06 metric tons) or 78.66% of the annual total allowable catch (TAC) set by the Atlantic States Marine Fisheries Commission.

B. Total amount of allowable commercial landings in subsection A of this section shall be allocated as quotas among three sectors of the menhaden fishery in proportion to each sector's share of average landings from 2002 through 2011, as described in subdivisions 1, 2, and 3 of this subsection.

1. The purse seine menhaden reduction sector shall be allocated a quota of 301,819,834 301,437,292 pounds or 90.04% of allowable commercial menhaden landings.

2. The purse seine menhaden bait sector shall be allocated a quota of 28,090,295 28,054,692 pounds or 8.38% of allowable commercial menhaden landings.

3. The non-purse seine menhaden bait sector shall be allocated a quota of 5,296,261 5,289,548 pounds or 1.58% of allowable commercial menhaden landings.

C. If the total allowable commercial landings specified in subsection A of this section are exceeded in any calendar year, the total allowable commercial landings for the subsequent calendar year shall be reduced by the amount of the overage. Such overage shall be deducted from the sector of the menhaden fishery that exceeded the allocation specified in subsection B of this section, with the exception of the non-purse seine menhaden bait sector, which shall move into the incidental catch provision outlined in subdivision F 3 of this section.

D. Any portion of the 1.0% of the coastwide total allowable catch set aside by the Atlantic States Marine Fisheries Commission for episodic events that is unused as of September 1 of any calendar year shall be returned to Virginia and other states according to allocation guidelines established by the Atlantic States Marine Fisheries Commission. Any such return of this portion of the coastwide total allowable catch to Virginia shall increase the total allowable commercial landings for that year.

E. It shall be unlawful for any person to take or catch menhaden using a purse seine net except in accordance with the seasons, areas, and gear restrictions as set forth in §§ 28.2-409 and 28.2-410 of the Code of Virginia.

F. It shall be unlawful to harvest or land in Virginia any menhaden after the commissioner projects and announces that 100% of the total allowable landings for any sector has been taken. The commissioner may reopen a fishery sector if, after all reports as described in 4VAC20-1270-60 have been received, the portion of the total allowable catch has not been harvested by that sector.

1. The commissioner shall announce the date of closure when the total allowable landings for the purse seine menhaden reduction sector is projected to be taken.

2. The commissioner shall announce the date of closure when the total allowable landings for the purse seine menhaden bait sector is projected to be taken.

3. The commissioner shall announce the date of closure when the total allowable commercial landings for the non-purse seine menhaden bait sector is projected to be taken. Once this closure is announced, any person licensed in the non-purse seine menhaden bait sector may possess and land up to 6,000 pounds of menhaden per calendar day as bycatch. Any two persons licensed in the non-purse seine menhaden bait sector may possess and land up to 12,000 pounds of menhaden bycatch when working together from the same vessel using stationary multi-species gear per the Atlantic States Marine Fisheries Commission incidental catch provision.

G. The commissioner may request a transfer of menhaden quota from any other state that is a member of the Atlantic States Marine Fisheries Commission. If Virginia receives a transfer of menhaden quota in any calendar year from another state, the total allowable commercial landings for that calendar year shall increase by the amount of transferred quota. It shall be unlawful for this quota transfer to be applied to the Bay Cap quota as described in 4VAC20-1270-35. The commissioner may transfer menhaden quota to another state only if there is unused menhaden quota at the end of the calendar year.

4VAC20-1270-35. Chesapeake Bay purse seine menhaden reduction fishery.

A. The annual total allowable Bay Cap landings from the Chesapeake Bay by the purse seine menhaden reduction sector in 2021 shall not exceed 51,000 metric tons (112,435,754 pounds) and shall be subject to annual adjustment for any overages as specified in subdivision 3 of this subsection.

1. It shall be unlawful for any transfers of quota from other states to be applied to the Bay Cap to reduce any overages.

2. It shall be unlawful for any amount of unlanded menhaden quota under the Bay Cap each calendar year to be rolled over or applied as credit for any subsequent calendar years.

3. Any annual menhaden landings in excess of the current calendar year Bay Cap shall be deducted from only the subsequent calendar year Bay Cap.

B. When it is projected that the purse seine menhaden reduction sector has met the annual menhaden Bay Cap in the Chesapeake Bay, based on mandatory daily landings reports, the commissioner shall promptly notify the industry announcing the date of closure.

C. It shall be unlawful for any person to harvest menhaden by purse seine for reduction purposes from the Chesapeake Bay for the remainder of that calendar year after the commissioner has announced the date of closure.

4VAC20-1270-50. Non-purse seine menhaden bait sector quota allocation.

The non-purse seine menhaden bait sector's quota allocation shall be in proportion to share for each gear type of average landings from 2002 through 2011 and are as follows:

Title of Regulation: 17VAC5-40. Regulations Governing Contextualization of Monuments or Memorials for Certain War Veterans (adding 17VAC5-40-10 through 17VAC5-40-50).

Statutory Authority: § 10.1-2204 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 13, 2022.

Effective Date: April 29, 2022.

Agency Contact: Stephanie Williams, Deputy Director, Department of Historic Resources, 2801 Kensington Avenue, Richmond, VA 23221, telephone (804) 482-6082, or email stephanie.williams@dhr.virginia.gov.

Basis: The Director of the Department of Historic Resources is granted the authority pursuant to § 10.1-2202 of the Code of Virginia to promulgate regulations. Enactment Clause 4 of Chapters 1100 and 1101 of the 2020 Acts of Assembly require the Board of Historical Resources to promulgate regulations to govern the manner in which any monument or memorial may be contextualized.

Purpose: This action is essential to protect the health, safety, or welfare of citizens in order to provide localities and the leaders and citizens of those localities with rules on interpreting certain war monuments and memorials in relation to contextualizing certain war monuments or memorials if a locality chooses. Currently no rules for localities that choose to contextualize certain war monuments or memorials exist, and this regulation cures that.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial as contextualization is voluntary for local governing bodies, and the General Assembly has required the board to guide those local governing bodies in this process.

Substance: This regulation provides rules to local governing bodies that choose to contextualize certain war monument or memorials within their jurisdiction. These rules includes general provisions regarding the markers, including their appearance, location, and ownership and the application requirements and approval process.

Issues: The primary advantage to the public is that the public will know the process that localities must undergo in order to contextualize certain monuments or memorials. There are no disadvantages to the public. The primary advantage to the Commonwealth is that contextualization of certain monuments or memorials will be done in a uniform fashion. There are no disadvantages to the Commonwealth. The primary advantage to all is that the information on the marker will be vetted by historians at the department and only credible, documented facts will be a part of the contextualization.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. Pursuant to a legislative mandate, the Board of Historic Resources (Board) proposes to create a new regulation governing the contextualization of war monuments and memorials. The proposed chapter, 17VAC5-40, Regulations Governing Contextualization of Monuments or Memorials for Certain War Veterans, would define relevant terms and describe the requirements for localities to obtain Board approval for a contextualizing marker.² The new regulation would include a form for localities to use when submitting an application to the Department of Historic Resources (DHR).

Background. Chapter 1100 and 1101 of the 2020 Acts of Assembly permits localities to remove, relocate, contextualize, or cover publicly owned war-related monuments or memorials on the locality's public property, except for those located in publicly owned cemeteries.³ The legislation specifically directs the Board to "promulgate regulations governing the manner in which any monument or memorial may be contextualized pursuant to the provisions of this act." Accordingly, the new regulation defines "monument" or "memorial" to mean "any object erected on a locality's public property pursuant to § 15.2-1812 of the Code of Virginia, intended to commemorate the veterans of any war or conflict, or any engagement of such war or conflict, to include the following: Algonquin (1622), French and Indian (1754-1763), Revolutionary (1775-1783), War of 1812 (1812-1815), Mexican (1846-1848), Civil War (1861-1865), Spanish-American (1898), World War I (1917-1918), World War II (1941-1945), Korean (1950-1953), Vietnam (1965-1973), Operation Desert Shield-Desert Storm (1990-1991), Global War on Terrorism (2000- ), Operation Enduring Freedom (2001- ), and Operation Iraqi Freedom (2003- ). "Monument" or "memorial" includes both the object and the pedestal on which it is placed. "Monument or Memorial" does not include any monument or memorial located in a publicly owned cemetery."

DHR reports that Virginia has 423 Civil War monuments (both Union and Confederate) and an additional 274 statues or monuments of various types; of the latter, only those that meet this definition would be subject to the legislation as well as the proposed regulation.

The proposed regulation defines "contextualize" as "the use of facts derived from sources that can be cited to explain the circumstances, influences, and conditions that existed at the time a war memorial or monument was erected, and which resulted in its erection." Accordingly, the proposed regulation would require that the text on a marker include (i) a description of the circumstances, influences and conditions that existed at the time the monument or memorial was erected, (ii) an explanation of the documented motivation for the monument's or memorial's creation, (iii) the parties involved in the creation of the monument or memorial and what their motivations were, and (iv) the parties excluded from the process of creating the monument or memorial.⁴ In addition, the design of the marker would have to be distinct from state historical markers and would have to identify the governing body (i.e., the locality) or its agent that funded the production and erection of the marker.

Local governments that elect to contextualize a monument or memorial with a marker would be required to submit an application form to DHR.⁵ The proposed regulation specifies that DHR shall process up to five applications for contextualization per quarter, on a first-come, first-served basis. DHR may review the application for completeness and accuracy before presenting it to the Board. The Board shall evaluate the applications and approve them based on the following considerations: (i) whether the proposed marker contains true and correct text, (ii) whether the proposed text provides a complete and accurate historical context, (iii) the quality and validity of the documented sources and the documented research provided, (iv) whether the proposed design is sufficiently distinct from state historical markers, and (v) the appropriateness of the proposed location of the marker.

In addition to new markers, any changes to an existing marker would also have to be approved by the Board. However, the local government could choose to remove a previously erected marker. The proposed regulation would not allow local governments to apply for more than one marker at a specific site. The local government would bear all the costs relating to the design, production, and installation of the marker.

Estimated Benefits and Costs. Since the proposed regulation does not mandate any action, and allows actions that were not previously permitted, any costs that arise would be solely at the discretion of local governments. Local governments would be responsible for any costs associated with the production and installation of the markers, if they elect to do so. DHR estimates these costs to range from $500 to $1,500 per marker. The new regulation would satisfy the legislative mandate and benefit local governments that seek to contextualize monuments via markers by providing them with a process to do so. In localities where the removal or relocation of certain monuments may be politically untenable for the local government, the option of erecting a marker to contextualize the monument may benefit the government officials and the public by offering a viable compromise. Having a marker that accurately describes the historical context would provide a public education benefit, for residents of the locality as well as visitors.

Businesses and Other Entities Affected. The proposed amendments do not directly impact businesses in general. If a local government receives approval for a marker and contracts with a local business to fabricate and/or install the marker, that business would benefit from the promulgation of this regulation.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted above, the proposed regulation does not create any costs. Thus, an adverse impact is not indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments do not appear to adversely affect small businesses.

Localities⁹ Affected.¹⁰ The proposed amendments would only impact localities where the local government decided to erect a marker to contextualize a monument. In that case, the local government would need to allocate or raise funds to cover the cost of designing, fabricating, and installing the marker. However, the proposed regulation does not create new costs for local governments in general. Therefore, an adverse impact for local governments is not indicated.

Projected Impact on Employment. The proposed regulation would not affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation does not directly affect the use or value of private property. Real estate development costs are also unaffected.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²A marker could be a plaque, signboard, or other form of signage located near the monument.

³See https://lis.virginia.gov/cgi-bin/legp604.exe?ses=201&typ=bil&val=ch1100. Chapter 1101 is identical. Both chapters overturned an 1890 Act of Assembly that made it unlawful to disturb or interfere with such monuments. Under the new law, local governments may remove, relocate, contextualize, or cover a monument, provided they publish a notice of intent in a local newspaper and conduct a public hearing. The legislation contains specific requirements for the publication of the notice and the hearing, as well as requirements for local governments that vote to remove or relocate a monument or memorial. Thus, adding a marker to contextualize the monument is one option among many, and local governments are not legally mandated to exercise any of these options.

⁴See this marker in DeKalb County, Georgia, that contextualizes the 1908 Confederate monument in Decatur Square, for an example provided by DHR: https://www.ajc.com/news/local/marker-supplies-historical-context-for-dekalb-confederate-monument/3mGyZ6ITzCEGVgz785O1zJ/.

⁵See https://ris.dls.virginia.gov/uploads/17VAC5/forms/Application to Propose Contextualization_DRAFT-20210810114954.docx.

⁶Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁷Pursuant to § 2.2-4007.04, 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."

⁸If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to Code § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Historic Resources on behalf of the Board of Historic Resources concurs with the economic impact analysis.

Summary:

Pursuant to Chapters 1100 and 1101 of the 2020 Acts of Assembly, the amendments establish Regulations Governing Contextualization of Monuments of Memorials for Certain War Veterans (17VAC5-40), which provides local governing bodies that choose to contextualize certain war monuments or memorials within their jurisdiction requirements for the markers, including (i) the marker's appearance, location, and ownership, (ii) application requirements, and (iii) the application approval process.

Chapter 40

Regulations Governing Contextualization of Monuments or Memorials for Certain War Veterans

17VAC5-40-10. Definitions.

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

"Application" means an application for approval of a marker, in a form prescribed by the director and containing the basic information required by 17VAC5-40-40,

"Board" means the Virginia Board of Historic Resources.

"Contextualize" means the use of facts derived from sources that can be cited to explain the circumstances, influences, and conditions that existed at the time a war memorial or monument was erected and resulted in its erection.

"Department" means the Virginia Department of Historic Resources.

"Director" means the Director of the Department.

"Locality's public property" means any property owned by a locality, excluding any publicly owned cemetery.

"Marker" means a marker, plaque, or signage of any kind that contextualizes or purports to contextualize a monument or memorial. A marker is not a monument or memorial.

"Monument" or "memorial" means any object erected on a locality's public property pursuant to § 15.2-1812 of the Code of Virginia, intended to commemorate the veterans of any war or conflict, or any engagement of such war or conflict, to include the following: Algonquin (1622), French and Indian (1754-1763), Revolutionary (1775-1783), War of 1812 (1812-1815), Mexican (1846-1848), Civil War (1861-1865), Spanish-American (1898), World War I (1917-1918), World War II (1941-1945), Korean (1950-1953), Vietnam (1965-1973), Operation Desert Shield-Desert Storm (1990-1991), Global War on Terrorism (2000- ), Operation Enduring Freedom (2001- ), and Operation Iraqi Freedom (2003- ). "Monument" or "memorial" includes both the object and the pedestal on which an object is placed. "Monument" or "memorial" does not include any monument or memorial located in a publicly owned cemetery.

17VAC5-40-20. Applicability.

This chapter shall apply to any locality that proposes to contextualize any monument or memorial pursuant to § 15.2-1812 of the Code of Virginia.

17VAC5-40-30. General provisions.

A. After first fulfilling the requirements set forth in § 15.2-1812 B of the Code of Virginia, any locality proposing to contextualize any monument or memorial shall submit an application to the department and obtain approval of the application from the board.

B. No marker shall be erected or placed on or near a monument or memorial without approval from the board.

C. If a marker is erected without having received approval from the board, then such marker must be removed.

D. If the board has approved a marker and a locality subsequently desires to change that marker, then the locality must submit a new application for such change.

E. Markers shall differ in style and appearance from state historical markers and shall display on the face of the marker prominent notice of the governing body or its agent that funded its production and erection. The text of a marker shall adhere to the formatting guidelines as described in the application.

F. Any marker that is erected shall be the property of the locality.

G. The locality shall be responsible for covering all expenses associated with producing and installing the marker.

H. The name of the locality and the year the marker was created shall appear on the marker.

I. Only one marker per monument or memorial will be approved by the board.

17VAC5-40-40. Marker approval application.

A. Subject to the requirements of this chapter, a locality may, at its own expense, erect a marker on or near any monument or memorial located within its boundaries.

B. Prior to erecting such a marker, the locality shall first submit an application to the department and obtain approval from the board of such application.

C. The application shall be in such form as prescribed by the director and shall include the following basic information:

1. Name, address, email address, and phone number of the local government official who will serve as the primary point of contact;

2. Location and description of the monument or memorial for which the marker is proposed;

3. The text of any and all inscriptions that appear on the monument or memorial;

4. A statement indicating when the monument or memorial was erected, who erected it, and who paid for it, if known, accompanied by documents verifying this information;

5. A statement of purpose of the project;

6. The proposed text and location for the marker, which shall include the following information:

a. A description of the circumstances, influences, and conditions that existed at the time the monument or memorial was erected;

b. An explanation of the documented motivation for the monument's or memorial's creation;

c. The parties involved in the process of creating the monument or memorial and what their motivations were; and

d. The parties excluded from the process of creating the monument or memorial;

7. The proposed location for the marker, which location shall (i) be at or close to the monument or memorial being contextualized and (ii) permit the public to safely view the marker;

8. Documentation relevant to the application, including (i) copies of all references and sources used to draft the proposed text of the marker and (ii) photographs of the monument or memorial to be contextualized;

9. The expected timetable for erection or placement of the marker; and

10. The design, appearance, size, and height for the proposed marker.

D. The department shall process up to five applications for contextualization per quarter, on a first-come, first-served basis. Any applications received after the first five will be deferred to the next board cycle. The department shall review the applications for completeness and accuracy. The department, as it deems necessary, may request additional documentation and information from an applicant. The department may deny an application if it is incomplete or otherwise does not include all the documentation or information required by the department. After the department determines that an application is complete and accurate, the department will present the application to the board.

17VAC5-40-50. Issuance of approval.

A. The board shall evaluate applications presented by the department to the board and determine whether to approve such applications. Approval of an application is in the board's sole discretion. In evaluating whether to approve an application, the board may consider, without limitation:

1. Whether the proposed marker contains true and correct text;

2. Whether the proposed text provides a complete and accurate historical context of the monument or memorial;

3. The quality and validity of the documented sources and documented research provided;

4. Whether the proposed design, appearance, size, and height for the marker differs in style and appearance from state historical markers; and

5. The appropriateness of the proposed location of the marker.

B. The actual text, location, design, appearance, size, and height of a marker as erected shall not differ from the text, location, design, appearance, size, and height set forth in the application that has been approved by the board.

C. The board shall not consider any application until the department has determined that such application is complete and accurate and that sufficient documentary evidence has been submitted to establish the authenticity of the proposed text for the project.

FORMS (17VAC5-40)

Monument or Memorial Contextualization Approval Application (eff. 12/2021)

Title of Regulation: 18VAC105-20. Regulations Governing the Practice of Optometry (amending 18VAC105-20-47).

Statutory Authority: §§ 54.1-2400 and 54.1-3223 of the Code of Virginia.

Public Hearing Information:

March 18, 2022 - 9:05 a.m. - Department of Health Professions, Perimeter Center, Suite 200, 9960 Mayland Drive, Henrico, VA

Agency Contact: Leslie L. Knachel, Executive Director, Board of Optometry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 597-4130, FAX (804) 527-4471, or email leslie.knachel@dhp.virginia.gov.

Summary:

The proposed amendment adds cholinergic agonists to the therapeutic pharmaceutical agent formulary in the category of a topically administered Schedule VI medication.

18VAC105-20-47. Therapeutic pharmaceutical agents.

A. A TPA-certified optometrist, acting within the scope of his practice, may procure, administer, and prescribe medically appropriate therapeutic pharmaceutical agents (or any therapeutically appropriate combination thereof) to treat diseases and abnormal conditions of the human eye and its adnexa within the following categories:

1. Oral analgesics - Schedule II controlled substances consisting of hydrocodone in combination with acetaminophen and Schedules III, IV, and VI narcotic and nonnarcotic agents.

2. Topically administered Schedule VI agents:

a. Alpha-adrenergic blocking agents;

b. Alpha-adrenergic agonists;

c. Cholinergic agonists;

d. Anesthetic (including esters and amides);

d. e. Anti-allergy (including antihistamines and mast cell stabilizers);

e. f. Anti-fungal;

f. g. Anti-glaucoma (including carbonic anhydrase inhibitors and hyperosmotics);

g. h. Anti-infective (including antibiotics and antivirals);

h. i. Anti-inflammatory;

i. j. Cycloplegics and mydriatics;

j. k. Decongestants; and

k. l. Immunosuppressive agents.

3. Orally administered Schedule VI agents:

a. Aminocaproic acids (including antifibrinolytic agents);

b. Anti-allergy (including antihistamines and leukotriene inhibitors);

c. Anti-fungal;

d. Anti-glaucoma (including carbonic anhydrase inhibitors and hyperosmotics);

e. Anti-infective (including antibiotics and antivirals);

f. Anti-inflammatory (including steroidal and nonsteroidal);

g. Decongestants; and

h. Immunosuppressive agents.

B. Schedules I, II, and V drugs are excluded from the list of therapeutic pharmaceutical agents with the exception of controlled substances in Schedule II consisting of hydrocodone in combination with acetaminophen and gabapentin in Schedule V.

C. Over-the-counter topical and oral medications for the treatment of the eye and its adnexa may be procured for administration, administered, prescribed, or dispensed.

D. Beginning July 1, 2020, a prescription for a controlled substance that contains an opioid shall be issued as an electronic prescription consistent with § 54.1-3408.02 of the Code of Virginia, unless the prescription qualifies for an exemption as set forth in subsection C of § 54.1-3408.02. Upon written request, the board may grant a one-time waiver of the requirement for electronic prescribing, for a period not to exceed one year, due to demonstrated economic hardship, technological limitations that are not reasonably within the control of the prescriber, or other exceptional circumstances demonstrated by the prescriber.

Title of Regulation: 22VAC30-80. Auxiliary Grants Program (amending 22VAC30-80-35).

Statutory Authority: §§ 51.5-131 and 51.5-160 of the Code of Virginia.

Effective Date: April 13, 2022.

Agency Contact: Charlotte Arbogast, Policy Analyst, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone (804) 662-7063, FAX (804) 662-7663, TDD (800) 464-9950, or email charlotte.arbogast@dars.virginia.gov.

Summary:

The amendment updates a citation to the Virginia Residential Landlord and Tenant Act pursuant to Chapter 712 of the 2019 Acts of Assembly, which recodified Title 55 of the Code of Virginia to Title 55.1.

22VAC30-80-35. Basic services in supportive housing settings.

A. The rate established under the AG for SH, as defined in 22VAC30-80-10, shall cover a residential setting with access to SH services that include:

1. Development of individualized SH service plans;

2. Access to skills training;

3. Assistance with accessing available community-based services and supports;

4. Initial identification and ongoing review of the level of care needs; and

5. Ongoing monitoring of services described in the individual's individualized SH plan.

B. The residential setting covered under the AG for SH, as defined in 22VAC30-80-10, shall be the least restrictive and most integrated setting practicable for the individual and shall:

1. Comply with federal habitability standards;

2. Provide cooking and bathroom facilities in each unit;

3. Afford dignity and privacy to the individual; and

4. Include rights of tenancy pursuant to the Virginia Residential Landlord and Tenant Act (§ 55-248.2 (§ 55.1-1200 et seq. of the Code of Virginia).

Titles of Regulations: 22VAC40-191. Background Checks for Child Welfare Agencies (repealing 22VAC40-191-10 through 22VAC40-191-150).

22VAC40-192. Background Checks for Child Welfare Agencies (adding 22VAC40-192-10 through 22VAC40-192-210).

Statutory Authority: §§ 63.2-217 and 63.2-1734 of the Code of Virginia.

The State Board of Social Services has WITHDRAWN the regulatory action for 22VAC40-191, Background Checks for Child Welfare Agencies, and 22VAC40-192, Background Checks for Child Welfare Agencies, which was published as a Notice of Intended Regulatory Action in 35:14 VA.R. 1840 March 4, 2019. The action addresses standards for, among other entities, child day centers, family day homes, and family day systems. This action is being withdrawn because the State Board of Social Services no longer has authority to promulgate this regulation due to transfer of the regulations and regulatory authority to the State Board of Education pursuant to Chapters 860 and 861 of the 2020 Acts of Assembly. Therefore, this action is withdrawn.

Agency Contact: Deborah Eves, Program Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7506, or email deborah.eves@dss.virginia.gov.

Titles of Regulations: 22VAC40-191. Background Checks for Child Welfare Agencies (repealing 22VAC40-191-10 through 22VAC40-191-150).

22VAC40-192. Background Checks for Child Welfare Agencies (adding 22VAC40-192-10 through 22VAC40-192-210).

Statutory Authority: §§ 63.2-217 and 63.2-1734 of the Code of Virginia.

The State Board of Social Services has WITHDRAWN the regulatory action for 22VAC40-191, Background Checks for Child Welfare Agencies, and 22VAC40-192, Background Checks for Child Welfare Agencies, which was published as a Notice of Intended Regulatory Action in 35:14 VA.R. 1840 March 4, 2019. The action addresses standards for, among other entities, child day centers, family day homes, and family day systems. This action is being withdrawn because the State Board of Social Services no longer has authority to promulgate this regulation due to transfer of the regulations and regulatory authority to the State Board of Education pursuant to Chapters 860 and 861 of the 2020 Acts of Assembly. Therefore, this action is withdrawn.

Agency Contact: Deborah Eves, Program Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7506, or email deborah.eves@dss.virginia.gov.

Title of Regulation: 24VAC35-20. Policy and Procedure Manual (repealing 24VAC35-20-10 through 24VAC35-20-500).

Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 13, 2022.

Agency Contact: Richard Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email richard.foy@vasap.virginia.gov.

Basis: The Commission on the Virginia Alcohol Safety Action Program (VASAP) is empowered by § 18.2-271.2 of the Code of Virginia to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various local alcohol safety action programs and shall be responsible for overseeing the administration of the statewide VASAP system.

Purpose: The Commission on VASAP's mission is to prevent driving under the influence of alcohol and other drugs, thereby contributing to public safety by preventing traffic fatalities, injuries, and property damage. The regulation under consideration was written many years ago to guide local Alcohol Safety Action Programs (ASAPs) in accomplishing this mission. Since that time much has changed. The regulation no longer reflects the correct organizational structure, best practices, or current policy and procedure. Repealing the existing regulation, using guidance documents instead, enables the Commission on VASAP to be flexible in a timely manner when implementing updated policy and procedures as new evidence based practices are recommended and the mandates of the courts change. New guidance documents enable VASAP to be more efficient and effective in guarding the public from the potential dangers presented by impaired motorists.

Substance: The entire regulation is being repealed.

Issues: Using operational guidelines instead of regulations gives VASAP the flexibility to modify policy and procedures in timely response to meet the needs of the public, direction of the courts, and changes to the laws of the Commonwealth. The operational guidelines are mostly internal agency procedures; however, they will be available for public viewing. There are no anticipated disadvantages to the public.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Commission on the Virginia Alcohol Safety Action Program (VASAP) proposes to repeal 24VAC35-20 Policy and Procedure Manual.

Background. The Alcohol Safety Action Program (ASAP) is a criminal justice program that uses community and state services to address the problem of driving under the influence of alcohol and other drugs. The ASAP system is composed of 24 local programs that provide services throughout the Commonwealth.² Local ASAPs receive referrals from local courts or the commission and then deliver intervention services within locally-administered programs to specific municipal jurisdictions within Virginia pursuant to §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

The regulation has not been updated since 1991 and no longer reflects current practice. The 24 local ASAP programs have been following operational guidelines issued by the executive director of the Commission on VASAP for many years. The current policy and procedure can be found as a guidance document on Town Hall, which was last updated in July, 2021.³

Estimated Benefits and Costs. Repealing the regulation would have no practical effect on the local ASAPs since they have already been following operational guidelines issued by the Commission on VASAP. Local ASAPs are established by the Commission and must be recertified every three years. Thus removing the policy and procedures from the Virginia Administrative Code and replacing them with guidance documents would not change the scope of the local programs' legal responsibilities, the incentives they face to provide services as directed by local courts, or the costs and benefits that arise from the performance of these duties.

Businesses and Other Entities Affected. Repealing the regulation would not affect businesses or other entities besides the ASAPs, which are already aware of the action and the current requirements as contained in the guidance document.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, repealing the regulation would not create any costs or benefits. Thus, an adverse impact is not indicated.

Small Businesses⁵ Affected.⁶ The proposed amendment does not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendment would not affect any localities.

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

Effects on the Use and Value of Private Property. The proposed amendment would not affect the value of any private property or real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://vasap.virginia.gov/.

³See https://townhall.virginia.gov/L/GetFile.cfm?File=C:\TownHall\docroot\GuidanceDocs\413\GDoc_VASAP_6761_v5.pdf

⁴Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, 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."

⁶If the proposed regulatory action may have an adverse effect on small businesses, Code § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to Code § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Commission on the Virginia Alcohol Safety Action Program concurs with the content of the Department of Planning and Budget's economic impact analysis.

Summary:

The proposed action repeals Policy and Procedure Manual (24VAC35-20) because the regulation no longer reflects current agency policy and procedures.

Chapter 20

Policy and Procedure Manual

Part I

General Provisions

24VAC35-20-10. Definitions. (Repealed.)

The terms used in this chapter shall have the following meanings unless the context indicates otherwise.

"ASAP" means Alcohol Safety Action Program formed by political subdivisions or by the commission as a criminal justice program that uses community and state services to address the problem of driving under the influence of alcohol and other drugs. ASAPs receive referrals from local courts or the commission. ASAPs deliver intervention services within locally-administered programs to specific municipal jurisdictions within the Commonwealth of Virginia pursuant to §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

"ASAP components" means the separation of actions into specifically defined areas which the VASAP system uses to offset and deter the actions of Driving Under the Influence (DUI) and potential DUI offenders. They comprise a systemic approach to educate the general public, reduce the incidence of impaired driving and to prevent drunk driving. There are five specific components defined and utilized by the VASAP system.

"ASAP Regional Council" means one of the three geographical areas of the Commonwealth of Virginia in which the ASAPs have been organized (Colonial, Blue Ridge, and Battlefield ASAP Councils).

"BAC" means blood alcohol concentration, which is determined by law-enforcement or other licensed personnel in accordance with procedures established in § 18.2-268.

"Budget" means a written financial plan for expenditures of a program or accounting entity for a given period.

"Certification" means the process whereby the commission evaluates an ASAP for its organization, management, fiscal standing, and overall operation. Certification also includes on the ASAP's ability to receive referrals from courts of persons convicted of DUI.

"Classification" means a process involving the assessment of an offender's personal involvement with alcohol or other drugs which results in referral to an appropriate intervention service (education or treatment).

"Commission" means the state agency established as the Commission on the Virginia Alcohol Safety Action Program. It is composed of two members from the House Committee for Courts of Justice, two members from the Senate Committee for Courts of Justice, two sitting or retired district court judges who regularly hear or heard cases involving DUI and who are familiar with local ASAPs, two directors of ASAPs, one representatives from the law-enforcement profession, one citizen at large, one representative from the Department of Motor Vehicles and one representative from the Department of Mental Health, Mental Retardation and Substance Abuse Services.

The commission establishes and certifies ASAPs and requires them to be operated in accordance with commission standards and § 18.2-271.1 of the Code of Virginia.

"Deficit" means that the ASAP, in order to conduct its program, expects to or projects that it will expend more funds than it will receive from offenders or other sources in a fiscal year. Deficit means an excess of expenditures over revenue.

"Director of ASAP" means the person who is in charge of and accountable for the operation of an ASAP. The ASAP director reports to the ASAP policy board.

"DMV" means the Commonwealth of Virginia Department of Motor Vehicles.

"DUI" means operating or driving a motor vehicle or boat under the influence of alcohol or drugs (§§ 18.2-266, 29.1-738 and 46.2-341.24 of the Code of Virginia.)

"Education" means commission-approved classes provided to some offenders following classification. This intervention service may include alcoholic or drug education, young offenders education, and intensive education.

"Enrollment" means the process by which the offender reports to the ASAP, obtains an intake appointment, arranges to pay the ASAP fee, and signs an enrollment agreement as provided in §§ 18.2-266 through 18.2-273 of the Code of Virginia.

"Executive director" means the executive director of the commission. This person is appointed by the commission and carries out the purposes of §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

"Finance committee" means a fiscal review committee composed of the executive director, two committee members, and such other persons as the commission designates.

"Intervention services" means direct service activities to offenders entering a program which provides direct services. Such activities include assessment services, crisis intervention, case management services and exit activities.

"Joint exercise of powers" means the process by which ASAPs can be organized as provided in §§ 15.1-20 and 15.1-21 of the Code of Virginia.

"Policy board" means a group established by the ASAP which controls and gives direction to the ASAP's activities and provides input of local needs. This board may also be established in accordance with §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia by the commission.

"Program fiscal agent" means a unit of local government or a combination of units of local government which possess the legal authority to receive funds and to transact business throughout its jurisdiction, and the administrative capability to perform these services for an ASAP.

"Regular board meeting" means those meetings of the policy board which are held quarterly. These meetings shall be open to the public.

"Treatment" means intervention services provided to offenders subsequent to a recommendation for referral by an ASAP to outpatient, inpatient or residential service treatment and provided by a certified agent or licensed program.

"VASAPDA" means the Virginia Alcohol Safety Action Program Directors' Association, a group composed of the directors of the various ASAPs established and operating in the Commonwealth.

"VASAP" means the Virginia Alcohol Safety Action Program, a probation intervention system providing services to offenders referred to the program by the courts. VASAP consists of the Commission on VASAP, the Advisory Board to the Commission on VASAP, local ASAP policy boards and local Alcohol Safety Action Programs established in §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

"VMIS" means VASAP Management Information System, and automated management information system; a computer network which provides offender profiles to the ASAPs and mechanism for the transfer of cases and information between the ASAPs and the VASAP office.

24VAC35-20-20. Virginia Alcohol Safety Action Program System. (Repealed.)

VASP is a criminal justice program that uses community and state services to reduce the problem of driving under the influence of alcohol or other drugs. VASAP identifies and provides appropriate services to offenders convicted of driving under the influence. Services may consist of driver awareness training (DAT), alcohol and other drug education, and referral to treatment pursuant to a court order or upon leave of the court. Such programs serve a probation, intervention function through offender monitoring and follow-up.

24VAC35-20-30. Purpose of manual. (Repealed.)

This manual, promulgated under the authority of §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia, establishes, records, maintains, and updates policies and procedures for the Virginia Alcohol Safety Action Program (VASAP) and for local Alcohol Safety Action Programs (ASAPs).

24VAC35-20-40. Introduction. (Repealed.)

The Commission on VASAP shall establish and ensure compliance with minimum standards and criteria for ASAP performance and operations, accounting, auditing, public information and administration for the local alcohol safety action programs. The commission shall also oversee ASAP plans, operations and performance and a system for allocating funds to cover any deficits in ASAP budgets.

24VAC35-20-50. VASAP (Virginia Alcohol Safety Action Program) components. (Repealed.)

ASAP responds to the problems of alcohol or other drug-related transportation incidents through five component areas.

1. Case management and offender intervention

2. Enforcement

3. Adjudication

4. Public information

5. Evaluation and certification

Each component is oriented specifically to the problem of driving under the influence and attempts to prevent DUI behavior or reeducate those who are convicted of DUI.

The specific components and their directives are as follows:

1. Enforcement.

a. Deter incidents of impaired driving.

b. Increase the number of arrests and convictions of motorists driving under the influence.

c. Reduce the blood alcohol concentration (BAC).

d. Improve the accuracy of reporting of alcohol and other drug involvement in transportation crashes.

2. Adjudication.

a. Raise the conviction rate of DUI offenders.

b. Maintain a consistent rate of DUI referrals.

c. Decrease recidivism among offenders previously involved in VASAP.

3. Case management and offender intervention.

a. Establish and maintain a standard classification procedure for offenders.

b. Establish standard methods of reporting offender status to referring courts and the Executive Director of the Commission on VASAP.

c. Implement and maintain an offender tracking system (VADD) (see Case Management Manual, 24VAC35-30-10 et seq.).

d. Implement and maintain a standard curriculum to education offenders.

e. Identify resources for offender referral to properly licensed facilities or properly licensed private practitioners.

4. Public information.

a. Prevent and reduce incidents of DUI.

b. Increase public knowledge of VASAP and transportation dangers caused by alcohol or other drugs.

5. Evaluation and certification.

a. Utilize the VASAP Commission certification manual to conduct evaluations of ASAP operations every three years.

b. Develop a system for evaluating the impact of the VASAP system on DUI problems.

24VAC35-20-60. Goal and objectives. (Repealed.)

A. VASAP goal. Improve transportation safety by decreasing the incidence of driving under the influence of alcohol or other drugs and thereby reducing the number of alcohol and other drug-related crashes.

B. VASAP objectives.

1. Deter the motoring public from driving under the influence.

2. Deter those arrested and convicted of DUI from again driving under the influence.

3. Increase awareness to facilitate the identification, apprehension and conviction of offenders driving under the influence of alcohol and other drugs.

4. Raise the conviction rate for offenders and the number of appropriate referrals to Alcohol Safety Action Programs.

5. Ensure appropriate probationary control of offenders.

6. Ensure the delivery of appropriate education or treatment services for offenders.

7. Provide statewide offender tracking services for all ASAPs.

8. Increase public awareness of the civil and legal consequences of DUI arrest; public perception of transportation crash risks; and public activities to reduce DUI incidents.

9. Assess and maintain the effectiveness and self-supporting status of both the commission and local Alcohol Safety Action Programs.

Part II

Organization and Administration

24VAC35-20-70. VASAP (Virginia Alcohol Safety Action Program) organizational structure. (Repealed.)

Professional staff shall include a full-time executive director, who is responsible to the commission and such other staff designated by the commission to carry out the mandates of §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia as well as policies established by the commission. Each employee shall have responsibilities for areas of ASAP operations and components as assigned by the executive director. Each shall be accountable to the executive director.

Part III

Certification

24VAC35-20-80. Certification. (Repealed.)

Certification of Alcohol Safety Action Programs (ASAPs) within the Commonwealth of Virginia was established to ensure administrative consistency within the system and the quality of services provided to DUI offenders, the courts and the community. One-third of the ASAPs shall be certified each year by region. The regions are Battlefield, Blue Ridge and Colonial ASAP Councils.

All ASAPs operating under §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia are required to be certified by the commission in conjunction with standards set out in the Commission Certification Requirements Manual, 24VAC35-40-10 et seq.

All ASAPs operating on the initial effective date of these regulations and holding a current certification shall continue under that certification until scheduled for review. All noncertified ASAPs and new ASAPs established after the initial effective date shall obtain certification. The commission certifies Alcohol Safety Action Programs (ASAPs) in accordance with procedures set forth in the Commission on VASAP Certification Manual, 24VAC35-40-10 et seq. See § 18.2-271.2 B of the Code of Virginia.

24VAC35-20-90. Period of certification. (Repealed.)

All certifications shall be for a period of three years and shall expire on June 30 in the last year of the certification period.

24VAC35-20-100. Action on certification. (Repealed.)

An ASAP (Alcohol Safety Action Program) shall be certified by the Commission on VASAP (Virginia Alcohol Safety Action Program). When an ASAP is found out of compliance in a review area by the certification team, the ASAP will complete a plan of action setting out the procedures to be followed to attain compliance. This submission must be within 10 days of notification by the review team. A follow-up team representing the commission shall then make an additional visit to validate that corrective action has been taken and make a recommendation for certification if the program is found to be compliant, a program may seek a waiver from a certification standard as provided in Category 8 of the Certification Manual, 24VAC35-40-10 et seq.

Certification shall be revoked if an ASAP fails to continue to meet any standard for certification.

24VAC35-20-110. Revocation of certification. (Repealed.)

The commission on its own motion, upon receipt of information that indicates an ASAP (Alcohol Safety Action Program) may no longer meet certification requirements or that other irregularities may exist within the ASAP, may send a certification review team to investigate the ASAP. Notice of the intended investigation by the certification review team shall be given to the ASAP director and the chairperson of the policy board. Upon completion of the investigation, the certification review team shall submit a report to the executive director, who may call a special meeting of the commission to review the report, giving notice to the local ASAP director.

The commission may vote to revoke the certification of the ASAP based on the report. The revocation shall become effective on the date of the vote. If revocation is voted, the executive director shall notify the ASAP director, chairperson of the policy board, political subdivisions, and the courts the ASAP serves within 10 days.

If the ASAP corrects its deficiencies within 30 days, its certification may be reinstated by the commission. If the deficiencies are not corrected, the commission may establish a new ASAP.

24VAC35-20-120. Final certification decision. (Repealed.)

A report shall be filed with the commission 30 days prior to the next regularly scheduled meeting of the commission which details all programs reviewed since the last commission meeting. The commission shall review the document presented and make a certification decision. The executive director shall notify in writing the director of each ASAP (Alcohol Safety Action Program) as well as the chairperson of that ASAP's policy board.

The commission may certify, revoke certification or decline to certify an ASAP.

If the commission fails to certify or revokes an ASAP's certification, the commission may establish a new ASAP.

The commission's certification decision shall be sent to the ASAP director, the ASAP policy board chairperson, political subdivisions, and the courts the ASAP serves or would serve.

In the event of certification disputes with the certification review team, or the denial of a request for waiver of certification requirements by the executive director, the ASAP director may request a hearing before the commission. The request for the hearing must be in written form from the ASAP director and submitted to the commission 30 days prior to the next regularly scheduled meeting of the commission. Upon receipt of a written request, the commission or its designee shall schedule a hearing.

Failure to file such a request or to appear as scheduled shall be deemed a settlement of the certification dispute or acceptance of the executive director's waiver decision.

Part IV

Offender Tracking System

24VAC35-20-130. System. (Repealed.)

The commission, or its designee, shall operate an offender tracking system capable of providing records to the ASAP (Alcohol Safety Action Program) of participation by offenders. This system shall be capable of responding to record checks within five working days of receipt of the request.

The commission, or its designee, shall submit statistical reports to ASAPs on a quarterly basis detailing the volume and characteristics of offenders arrested, classified, referred and disposed of during the reporting quarter. These reports shall be provided within 15 calendar days of the close of the report quarter.

The commission, or its designee, shall submit to each ASAP statistical reports on a monthly basis detailing the specific offenders referred and classified for the reporting month. These reports shall be provided within six working days of the close of the report month.

The commission, or its designee, shall conduct or support research necessary to ensure the operations of the local and state system and ensure that objectives are being met.

ASAPs shall secure written approval of the commission prior to dissemination of research using offender records. Approval shall be based on compliance with current applicable privacy and security regulations.

Part V

Local Administrative Structure

24VAC35-20-140. Local staff. (Repealed.)

ASAPs (Alcohol Safety Action Programs) shall consist of at least a director and such staff deemed necessary by the Commission on VASAP and the local policy board. The staff shall be available to cover administrative, clerical, and component activities of the ASAP.

ASAP staff shall conform to equal opportunity minimum hiring standards established by the Commonwealth of Virginia.

24VAC35-20-150. Local organization. (Repealed.)

Each ASAP (Alcohol Safety Action Program) is organized under the administration of political subdivisions or the Joint Exercise of Powers Statutes §§ 15.1-20 and 15.1-21 of the Code of Virginia.

24VAC35-20-160. Administrative agent. (Repealed.)

Each ASAP (Alcohol Safety Action Program) shall be administered by a policy board that complies with 24VAC35-20-180 to serve as its administrative agent. The administrative agent may also serve as the fiscal agent of the ASAP.

The commission, or any county, city, town or any combination thereof may establish, and if established, shall operate in accordance with the standards and criteria required under § 18.2-271 of the Code of Virginia an Alcohol Safety Action Program.

Each ASAP shall provide direct services to a specific set of political subdivisions as defined in the planning study or designated by the Commission on VASAP. These subdivisions shall be approved by the commission.

Any anticipated changes of political subdivisions falling within the service area of an ASAP shall be reported by that ASAP to the commission through the executive director for review and approval at least 60 days prior to the initiation.

Changes in the included political subdivisions of an ASAP or, in the absence of a planning study, the initial establishment of political subdivisions, shall be made in a written agreement with the ASAP policy board and the commission.

Any changes to the administrative or organizational structure of an ASAP, or any operational component subject to certification review, must be reported to the commission, through the executive director, for review and approval at least 60 days prior to initiation.

24VAC35-20-170. Fiscal agent. (Repealed.)

Each ASAP (Alcohol Safety Action Program) may use a local political subdivision as a fiscal agent unless the commission approves an alternative.

Any anticipated changes in the fiscal agent shall be reported by the ASAP to the commission, through the executive director, for review and approval at least 60 days prior to initiation.

24VAC35-20-180. Policy board. (Repealed.)

A. Each ASAP (Alcohol Safety Action Program) shall have a policy board which will control and give direction to the ASAP's activities and shall develop policies for the operation of the ASAP. These boards shall convey ASAP needs and direction to the ASAP, and board members shall be chosen to serve as set out below. The board of any ASAP operated by the commission under § 18.2-271.1 H of the Code of Virginia may be selected by the commission if the locality cannot agree on the selections. Persons serving on any policy board shall serve without compensation.

B. The policy board shall consist of five to 15 members. The governing bodies of each participating jurisdiction shall appoint one member for a term of three years. The remaining members shall be elected for a term of three years by majority vote of those members selected by each represented locality unless these are the first appointments to the policy board. When a local policy board is first appointed, one third of the members shall be appointed for one year, one third for two years, and one third for three years. In addition to the members so selected, the director of the ASAP shall also be an ex-officio member without voting power. The membership not appointed by the governing bodies of represented jurisdictions, at the discretion of the board, shall be selected or elected from but not limited to, the judiciary, the Bar, law enforcement, education and treatment professionals, and other interested groups such as local transportation safety commissions. The designated terms of office may, with commission approval, be modified. Vacancies which occur on the board shall be filled by majority vote of the remaining board members from nomination of other board members and the participating governing bodies of the jurisdiction.

C. The board shall perform these duties:

1. Oversight of operations of the ASAP within the participating localities, supervise a director.

2. Approval of a fiscal year operational budget prepared by the director.

3. Approval of the director's annual report, which shall include ASAP activities and financial status.

4. Completion of an annual independent audit which shall be conducted at the end of each fiscal year.

5. Adoption of written guidelines and bylaws structured similarly as set out in subsection C of this section.

6. Establishment of operational policies and procedures for the ASAP.

D. Policy board guidelines and bylaws.

1. Officers. The officers of the policy board shall consist of a chairperson, and such subordinate officers as the board may elect or appoint. The secretary-treasurer ( If elected) shall not be the director of the ASAP. Each officer shall serve without compensation. The offices of chairperson and vice-chairperson if elected shall be held by members from different participating jurisdictions.

2. Terms of office. Except for the original officers, (who shall be elected at the second meeting after the formation of the board) each officer shall be elected at the annual meeting of the board to serve a term of three years. Deviation except as provided in subsection B of this section must be approved by the Commission on VASAP. Any vacancy occurring in any office shall be filled by the board for the unexpired term.

3. Election of officers. A majority of the members shall be present and voting in order to constitute an election. Members who are unable to attend may vote in any election by letter directed to the chairman and delivered prior to or at the meeting. At the regular meeting of the policy board immediately preceding the annual meeting, the chairman shall appoint a nominating committee. This committee shall present to the board at its annual meeting a slate of nominees for election as officers and a slate of nominees to fill any vacancies on the board. All board members and officers shall take office on the first day of the month following their election and shall serve until their successors take office. No officer shall serve more than two consecutive terms in the same office.

4. Annual meetings. The annual meeting of the board is that meeting so designated in the bylaws for the purpose of electing officers, filling expired terms of member and shall be open to the public.

Regular meetings. Regular meetings of the board shall be held quarterly and shall be open to the public. The board or its executive committee may, where legally appropriate, go into executive session.

Time and place. The board may change the date and time of any regular meeting at any prior meeting and may adjourn any meeting to another place if notice of the change is provided to interested parties.

5. Each policy board shall adopt Robert's Rule of Order (or similarly acceptable) as operational guidelines for actions not specifically defined in the board's bylaws.

24VAC35-20-190. Personnel policy guidelines. (Repealed.)

Personnel of each ASAP (Alcohol Safety Action Program) are subject to the conflict of interests law (§ 2.1-639.1 et seq. of the Code of Virginia). Each ASAP shall establish personnel policy guidelines no less stringent than those set forth in this section.

ASAP employees may not engage in any activity deemed to be in conflict with the interests of the ASAP as provided in the Code of Virginia.

Conflicts of interests include but are not limited to the following:

1. ASAP employees shall not disclose to any person, not entitled thereto, information gained through their office or employment, or otherwise use such information for their personal gain or benefit.

2. ASAP employees shall not accept any gifts, gratuities, favors or services from clients or any individual or agency who may seek to supply goods or services to the commission or the ASAP. The terms "gifts, gratuities, favors or services" include but are not limited to: moneys, credits, discounts, seasonal or special occasion presents, eatables, drinks, household appliances, furnishings, clothes, loans of goods or money, tickets to sporting or cultural events, transportation, vacations, travel or hotel expenses or any form of entertainment.

3. ASAP employees shall not contract for, or provide supplemental services to an ASAP for which they are employed on a full-time basis.

In the event of a violation of the personnel policy guidelines, the ASAP director or chairperson of the ASAP policy board shall execute a review procedure.

ASAP directors shall initiate, conduct and complete a thorough review of any alleged breach of personnel policy guidelines by an employee of the ASAP they administer. Such review shall be initiated within 10 working days from the date of receipt of the allegation. Upon both initiation and termination of the review the ASAP director shall notify the executive director and the policy board in writing. A complete report of the review shall be filed no later than 30 days after the date of the initiation of the review.

Employees of an ASAP found in violation of these personnel policy guidelines shall be dealt with by the ASAP director in accordance with ASAP personnel policy or state law as applicable.

If an ASAP director is subject to review for a breach of any conflict of interest personnel policy guidelines, the executive director shall execute the review procedure unless such review is undertaken by the policy board. The executive director shall inform the commission of any such review initiated within 30 days of initiation of the review.

When conducting a review the policy board shall adhere to the same time parameters established for reviews conducted by the ASAP director. The policy board shall file a completed report within 30 days of initiation with the executive director of the results of that review. A director found in violation of these personnel policy guidelines shall be dealt with in accordance with ASAP policy or state law where applicable.

24VAC35-20-200. Travel. (Repealed.)

All work-related travel by ASAP (Alcohol Safety Action Program) personnel shall comply with the local policy board's travel regulations. In the absence of local policy regulations, travel must be in accordance with the Commonwealth of Virginia travel policies.

24VAC35-20-210. Training. (Repealed.)

Each ASAP (Alcohol Safety Action Program) shall send appropriate representatives to training sessions conducted or directed by the commission unless prior written exemption is secured from the executive director.

All locally conducted training, other than staff in-service, shall be reported to the executive director. ASAPS are encouraged to implement local in-service staff training. To make such training cost effective, such training may be done on a regional basis.

24VAC35-20-220. Security and confidentiality. (Repealed.)

Each ASAP (Alcohol Safety Action Program) shall have written policy for maintaining the security and confidentiality of offenders' records. Such policies should include, at a minimum, research projects, release of information to the courts and law enforcement and policies for protecting, communicating and acquiring offender information.

Part VI

ASAP (Alcohol Safety Action Program) Fiscal Policy

24VAC35-20-230. ASAP (Alcohol Safety Action Program) finance. (Repealed.)

On or before June 1, all ASAPs shall submit before review, and approval a budget to the commission office through the executive director following approval and review by its policy board and administrative or fiscal agent, where applicable. If deficit funding is sought, the commission shall review and shall approve the budget.

Budgets utilizing federal or state funds shall be submitted to the commission for approval at least 60 days prior to their effective date.

Revisions within appropriated authority establishing new line items require policy board approval and notification shall be submitted to the commission to update budget status.

24VAC35-20-240. Offender fee distribution. (Repealed.)

All ASAPs, on a monthly basis shall forward 10% of each collected offender fee to the Treasurer of Virginia in accordance with § 18.2-271.1 of the Code of Virginia. Money not expended from year to year after deficit funding has been satisfied shall be expended for the direct benefit of the ASAP or be refunded to such ASAPs in accordance with commission directive.

24VAC35-20-250. Deficit funds. (Repealed.)

Twenty percent of the fee paid to the Commonwealth by the ASAP shall be set aside for deficit funding.

The executive director shall submit a quarterly account and report of these funds to the commission finance committee members.

24VAC35-20-260. Deficit eligibility. (Repealed.)

In order to be declared eligible for deficit funding an ASAP (Alcohol Safety Action Program) must meet the following criteria:

1. The ASAP is operating on an approved budget which has been reviewed by the commission and approved by the policy board.

2. The ASAP will expend all available funds, including such funds as savings, certificates of deposit and any other savings program, during the budget year.

3. The ASAP is operating within all standards established by the commission.

4. The ASAP is willing to revise its budget consistent with the recommendations for the commission's finance committee or the commission.

5. The ASAP has filed a request and submitted all data requested by the finance committee and commission within the time frame allotted.

6. The ASAP is in compliance with state fee policy and report requirements.

24VAC35-20-270. Budgetary deficits. (Repealed.)

A. All ASAPs requesting deficit funding shall complete a request for deficit funding and submit it to the executive director.

B. ASAPs must submit current budget and finance reports to the executive director with the request.

C. Budget reviews shall be conducted by the finance committee. The finance committee will meet regarding the ASAP request within 30 days of receipt of request to review information submitted and formulate a plan of action.

D. The ASAP director will meet with the finance committee to present the ASAP's situation and to answer questions. No ASAP director will be allowed to participate in deliberations of the finance committee regarding the ASAP he directs.

E. An on-site review of the ASAP shall be made by the finance committee, commission, or their designee.

F. Upon final review the finance committee shall determine the amount to be funded via commission funds. Funds up to $10,000 may be authorized by the finance committee. Larger amounts shall require a review by the full commission.

G. Not more than 10 working days after the review, the director and board chairperson of the ASAP shall be notified of the ASAP's eligibility. ASAPs that meet the requirements shall receive funding. Those not qualified shall receive recommended changes for eligibility.

H. For the remainder of the fiscal year, the ASAP director shall submit to the commission monthly reports of expenditures with comments on any significant change in the fiscal status of the ASAP.

24VAC35-20-280. Audits and financial reports. (Repealed.)

Each ASAP's financial records and accounts shall be subject to local, state and, when applicable, federal audits.

All financial records shall be maintained in an orderly fashion using generally-accepted accounting procedures. The financial records shall be retained for three years after aduit unless specifically authorized by the commission for a shorter period of time.

Within 60 days after the close of the reporting period, all ASAPs shall submit to the commission an annual income statement outlining the ASAP's expenditures and revenues for the reporting period. The report periods shall run from July 1 to June 30 of each year.

The commission shall retain the authority to review and approve the accounting methods used by ASAPs. Each ASAP shall submit annually to the commission the results of a private audit by a CPA or the results of an audit performed under the unified standards in connection with a local governmental unit. The commission in its discretion may perform audits of local program in addition to or in lieu of this annual audit.

24VAC35-20-290. Grant applications. (Repealed.)

ASAPs with political subdivisions as fiscal agents may apply for state or federal funding for grants and special projects focusing on the commission components to improve transportation safety.

24VAC35-20-300. Offender fee collection. (Repealed.)

All offenders referred to the ASAP, except those the court determines to be indigent, are required to pay the fee as required by § 18.2-271.1 of the Code of Virginia. Collection of offender fees in cash is discouraged.

Fees shall be collected at the initial contact or enrollment unless the offender is declared to be indigent, or extreme hardship indicates that payment must be made over a period of time, or unless otherwise directed by the court.

All fees deposited locally shall be in a local account approved by the fiscal agent, administrative agent, or the policy board and deposited in accordance with board procedures. Fees collected by the ASAP shall be deposited daily. Each ASAP shall strive to maintain a separation of duties, ensuring that persons writing receipts are not solely responsible for making daily deposits or reconciling bank records.

No ASAP shall retain over $300 in cash from offender fees in its office beyond the daily close of business.

Each ASAP shall designate specific staff members to be responsible for collection of offender fees. Those individuals and their designees shall be bonded.

All fees collected by the ASAP shall be documented with prenumbered receipts. All receipts shall be posted in a general ledger that shall be kept in a manner consistent with generally accepted accounting procedures. The receipts, payment cards and receipt books shall be maintained for three years after audit by the ASAP, unless specifically authorized by the commission for a shorter period of time.

Except for those ASAPs whose bookkeeping is provided by their fiscal or administrative agent, each ASAP shall have an appropriate staff member trained to conduct bookkeeping duties. ASAPs are authorized to contract with a recognized bookkeeping service in lieu of having a staff member perform bookkeeping duties. As recognized by the Auditor of Public Accounts and in generally accepted accounting procedures, the person who authorizes disbursements or executes checks shall not be the same person who conducts bookkeeping duties.

24VAC35-20-310. Transfers and fees. (Repealed.)

For those offenders who seek to transfer to an out-of-state facility, each ASAP shall inform the offenders in writing (with a copy to remain in their file) of their responsibility for costs incurred out-of-state, unless otherwise directed by the court.

Fees assessed to offenders being transferred intrastate will be collected by the ASAP receiving the transfer.

When an intrastate transfer decision is made following the collection of fees, the originating ASAP shall forward to the receiving ASAP the full fee collected less the portion sent to the Commonwealth. If partial service has been rendered the full fee shall be forwarded unless otherwise agreed upon by the originating and receiving ASAP.

Part VII

Communications

24VAC35-20-320. Correspondence. (Repealed.)

State level correspondence from the commission to administrative agents, fiscal agents and policy boards of ASAPs (Alcohol Safety Action Programs) concerning ASAP operation shall also be copied to the ASAP director simultaneously with the issuance of the original correspondence.

Correspondence originating in the ASAP office regarding financial and administrative problems shall be directed to the executive director.

24VAC35-20-330. Reports. (Repealed.)

An annual report of ASAP (Alcohol Safety Action Program) activities and financial data shall be completed by the ASAP. Fifteen copies shall be submitted to the executive director within 90 days of the close of the fiscal year, unless prior exception is secured from the executive director. The executive director will disseminate reports to members of the commission, the advisory committee, and other interested persons. These reports shall follow the standard annual report format as established by the commission.

Part VIII

Reviews of ASAPs (Alcohol Safety Action Programs)

24VAC35-20-340. Reviews. (Repealed.)

In addition to certification review, ASAP reviews shall be periodically directed by the commission in response to ASAP requests, upon identification of substantial ASAP problems, or to update information on ASAP operations. The review may be conducted by the executive director, a representative from VASAPDA and any other persons designated by the executive director or commission. The results of this special review shall be reported by the reviewer to the commission within 30 days of the completion of the review. Upon approval of the report, a copy shall be submitted to the ASAP.

An ASAP may challenge any portion of the review report through communication to the commission with 30 days of receipt of the report. This will become a part of the official report by the commission.

An ASAP review shall be conducted within 90 days of any change in the ASAP's administrative agent.

Part IX

Service Agreements

24VAC35-20-350. Service agreements. (Repealed.)

All ASAPs (Alcohol Safety Action Programs), as referral agencies, shall explicitly outline relationships with vendors for education or treatment services for offenders through formal service agreements. All ASAPs shall utilize the standard service agreement format provided by the commission. Local programs may attach an addendum to the standard agreement as negotiated with the service provider (See forms section).

ASAPs shall be responsible for ensuring that all treatment service agreements are awarded to vendors who are licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services or licensed or certified by the Department of Health Professions.

The ASAP shall be responsible for the negotiation and awarding of service agreements within its area. When the ASAP so requests, the commission or its designee shall assist in negotiations and consultations on such agreements.

Service agreements shall not be entered into with any person or agency who is known not to adhere to state and federal equal opportunity regulations, local, state and federal confidentiality and privacy regulations, or any other applicable rules, regulations or laws.

All service agreements entered into by ASAPs shall be consistent with 24VAC35-20-190.

Part X

Records Management

24VAC35-20-360. Offenders file. (Repealed.)

Each ASAP (Alcohol Safety Action Program) shall maintain a file on each offender referred or transferred to it for service. This file shall contain:

1. Court documents indicating referral

2. Final disposition report on those offenders who were noncompliant

3. Consent(s) for release of information signed by the offender

4. Agreement(s) to participate signed by the offender

5. Service provider reports

6. Reports to the court

7. Documentation of offender's absences from class or session

8. Transfer form

9. Record of fee payment showing date of payment, receipt number(s) and amount paid

10. Classification material

11. Record of chronological contact with offender

ASAPs shall not destroy the above offender records or files without a formal records management plan authorized by the Virginia State Archivist.

24VAC35-20-370. Records retention. (Repealed.)

Each ASAP (Alcohol Safety Action Program) shall retain its records in accordance with the following schedule in addition to or as part of the agency's records management plan approved by the Virginia State Archivist:

1. Consent for release of information forms - three years.

2. Final report to the court, if required by the court - three years.

3. Court documents indicating referral - three years.

All financial records of the ASAP shall be retained for three years after audit unless specifically authorized by the commission for a shorter period of time.

Part XI

Transfer Procedures

24VAC35-20-380. Transfer documentation and procedures. (Repealed.)

ASAPs (Alcohol Safety Action Programs) shall not retain offenders who reside outside or are not employed in their service area. In a rare instance an offender may request not to be transferred. Such request from the offender shall be in writing and kept in the offender's case file. In order to be considered for transfer, offenders must have contact with the originating ASAP prior to transfer origination.

24VAC35-20-390. Intrastate transfers. (Repealed.)

Cases shall be transferred if the offender's place of residence changes or may be transferred if employment changes to another ASAP area. The offender may request a transfer to the area of his new residence or employment.

If any ASAP involved fails to transfer a client to the appropriate ASAP, such failure shall be reported to the commission for investigation or action by the commission.

No ASAP shall establish offender services in the geographic service area of another ASAP without written agreement between the ASAPs and notification to the commission.

24VAC35-20-400. Interstate transfers. (Repealed.)

A. Offender cases may be transferred to an out-of-state agency if either of the following conditions exist:

1. An offender lives or is employed in another state and requests a transfer.

2. An offender is ordered, by the court of proper jurisdiction, to participate in a program out of state.

B. Transfers to states which are members of the Southeastern compact shall be accomplished in accordance with that agreement. In other cases, treatment and education services rendered by out-of-state agencies must meet the same program requirements as determined by the ASAP.

24VAC35-20-410. Responsibility of ASAP (Alcohol Safety Action Program) receiving transfer. (Repealed.)

The ASAP receiving a transferred offender shall have the following responsibilities with respect to the originating ASAP:

Within 10 days of receipt of the transfer case, the ASAP shall complete and return Part I of the transfer form (See forms section).

Part XII

Offender Services

24VAC35-20-420. Offender services. (Repealed.)

ASAPs (Alcohol Safety Action Programs) shall provide education, intensive education or referral to treatment for the offenders.

Education shall include the minimum hours of alcohol and other drug education incorporated in the standardized education curriculum.

Treatment shall include referring offenders identified as possibly requiring additional services for evaluation and intervention according to their individual needs.

24VAC35-20-430. Financial services. (Repealed.)

ASAPs (Alcohol Safety Action Programs) may provide financial assistance for a portion of the costs for treatment as negotiated by the provider. The amount of the fee expended for treatment services shall not exceed 15% of the assessed fee. For purposes of this section the assessed fee shall equal the amount ordered by the court, less the 10% submitted to the Commonwealth.

Part XIII

Public Information, Public Education and Prevention

24VAC35-20-440. ASAP (Alcohol Safety Action Program) commitment. (Repealed.)

Each ASAP shall have a commitment to public information, public education and prevention which shall be developed at both the state and local level.

24VAC35-20-450. Presentations and communication. (Repealed.)

ASAPs (Alcohol Safety Action Programs) shall communicate public information activity needs to the commission designee.

The commission or its designee shall develop and implement annual alcohol, other drugs and transportation safety campaigns, and shall provide campaign materials for state and local use.

ASAPs shall communicate plans of intended public information activities to adjacent ASAPs in advance of implementation if the adjacent ASAP will be affected by this activity.

24VAC35-20-460. Surveys. (Repealed.)

The commission, or its designee, shall use current research, evidence, and information in the technical design of alcohol or other drug and transportation safety campaigns.

This survey information shall provide the ASAP (Alcohol Safety Action Program) with technical information on target groups, content areas and proper procedures for ASAP campaigns.

24VAC35-20-470. Materials. (Repealed.)

Following public information campaigns, the commission or its designee will survey all ASAPs (Alcohol Safety Action Programs) for their opinions of the material content, quality and effectiveness of the campaign. This information shall be distributed to all ASAPs.

Part XIV

Evaluations

24VAC35-20-480. Information. (Repealed.)

Evaluation provides for the assessment of VASAP's deterrent effort. This is accomplished through the assessment of DUI recidivism of persons completing VASAP, assessment of the prevalence and incidence of DUI-related transportation crashes and the arrest rate of DUI offenders. ASAPs shall maintain accurate offender information and submit requested information in a timely manner.

24VAC35-20-490. Data flow. (Repealed.)

ASAPs (Alcohol Safety Action Program) shall participate in the commission operated management information system. Data shall be submitted in accordance with standards established by the commission. Any situation which prevents compliance with such standards shall be reported by the ASAP to the commission. The commission may give written approval for exemption if the situation is beyond the control of the ASAP.

Part XV

Privacy and Security

24VAC35-20-500. Privacy and security procedures. (Repealed.)

All ASAPs (Alcohol Safety Action Program) and the commission shall process offender records and any other confidential information in a manner consistent with federal, state and local guidelines and regulations.

ASAPs shall not include individual offender names, social security numbers or addresses in correspondence unless that correspondence is marked confidential and includes a statement for handling the information.

FORMS (24VAC35-20)(Repealed)

Treatment Agency Report, VAS-10 (1/91).

Consent for the Release of Confidential Information, VASAP-34 (Rev. 7/90).

Financial Report.

Request for Deficit Funding.

Proposed Standard Treatment Services Agreement.

Transfer Sheet, VASAP-33 (Rev. 10/89).

VASAP Report Form, VASAP-42 (Rev. 10/89).

Certification Review Instrument/Certification Questionaire Score Sheet.

VASAP Certification Report.

Classification Guidelines.

Title of Regulation: 24VAC35-30. VASAP Case Management Policy and Procedure Manual (repealing 24VAC35-30-10 through 24VAC35-30-160).

Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 13, 2022.

Agency Contact: Richard Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email richard.foy@vasap.virginia.gov.

Basis: The Commission on the Virginia Alcohol Safety Action Program (VASAP) is empowered by § 18.2-271.2 of the Code of Virginia to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various local alcohol safety action programs and shall be responsible for overseeing the administration of the statewide VASAP system.

Purpose: The Commission on VASAP's mission is to prevent driving under the influence of alcohol and other drugs, thereby contributing to public safety by preventing traffic fatalities, injuries, and property damage. The regulation under consideration was written many years ago to guide local Alcohol Safety Action Programs (ASAPs) in accomplishing this mission. Since that time much has changed. The regulation no longer reflects the correct organizational structure, best practices, or current policy and procedure. Repealing the existing regulation, using guidance documents instead, enables the Commission on VASAP to be flexible in a timely manner when implementing updated policy and procedures as new evidence based practices are recommended and the mandates of the courts change. New guidance documents enable VASAP to be more efficient and effective in guarding the public from the potential dangers presented by impaired motorists.

Substance: The entire regulation is being repealed.

Issues: Using operational guidelines instead of regulations gives VASAP the flexibility to modify policy and procedures in timely response to meet the needs of the public, direction of the courts, and changes to the laws of the Commonwealth. The operational guidelines are mostly internal agency procedures; however, they will be available for public viewing. There are no anticipated disadvantages to the public.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Commission on the Virginia Alcohol Safety Action Program (VASAP) proposes to repeal 24VAC35-30 VASAP Case Management Policy and Procedure Manual.

Background. The Alcohol Safety Action Program (ASAP) is a criminal justice program that uses community and state services to address the problem of driving under the influence of alcohol and other drugs. The ASAP system is composed of 24 local programs that provide services throughout the Commonwealth.² Local ASAPs receive referrals from local courts or the commission and then deliver intervention services within locally-administered programs to specific municipal jurisdictions within Virginia pursuant to §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

The regulation has not been updated since 1991 and no longer reflects current practice. The 24 local ASAP programs have been following case management operational guidelines issued by the executive director of the Commission on VASAP for many years. The current case management operational guidelines can be found as a guidance document on Town Hall, which was last updated in January, 2022.³

Estimated Benefits and Costs. Repealing 24VAC35-30 would have no practical effect on the local ASAPs since they have already been following operational guidelines issued by the Commission on VASAP. Local ASAPs are established by the Commission and must be recertified every three years. Thus removing the policy and procedures from the Virginia Administrative Code and replacing them with guidance documents would not change the scope of the local programs' legal responsibilities, the incentives they face to provide services as directed by local courts, or the costs and benefits that arise from the performance of these duties.

Businesses and Other Entities Affected. Repealing the regulation would not affect businesses or other entities besides the ASAPs, who are already aware of the action and the current requirements as contained in the guidance document.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, repealing the regulation would not create any costs or benefits. Thus, an adverse impact is not indicated.

Small Businesses⁵ Affected.⁶ The proposed amendment does not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendment would not affect any localities.

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

Effects on the Use and Value of Private Property. The proposed amendment would not affect the value of any private property or real estate development costs.

______________________________________

¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://vasap.virginia.gov/.

³See https://townhall.virginia.gov/L/GetFile.cfm?File=C:\TownHall\docroot\GuidanceDocs\413\GDoc_VASAP_6762_v4.pdf.

⁴Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, 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."

⁶If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Commission on the Virginia Alcohol Safety Action Program concurs with the content of the Department of Planning and Budget's economic impact analysis.

Summary:

The proposed action repeals VASAP Case Management Policy and Procedure Manual (24VAC35-30) because the regulation no longer reflects current agency policy and procedures.

Chapter 30

Vasap Case Management Policy and Procedure Manual

Part I

Case Management

24VAC35-30-10. Introduction. (Repealed.)

VASAP (Virginia Alcohol Safety Action Program) Case Management is a probationary function of the courts, comprised of referral enrollment, intake, classification, offender intervention, case supervision/monitoring and court reporting. The Case Manager serves the court in coordinating the referral of the offender into appropriate community-based services pursuant to VASAP policy and procedure.

Offenders referred to VASAP by the courts are required to adhere to program guidelines as specified in a signed agreement outlining their VASAP conditions and expectations.

24VAC35-30-20. Administration. (Repealed.)

The ASAP director shall be responsible for the implementation and supervision of the case management component as necessary to ensure that the needs of the court are met pursuant to the Commission on VASAP policy and procedure.

Part II

General Provisions

24VAC35-30-30. Definitions. (Repealed.)

The terms used in this chapter shall have the following meanings unless the context indicates otherwise.

"ASAP" means Alcohol Safety Action Program formed by political subdivisions or by the commission as a criminal justice program that uses community and state services to address the problem of driving under the influence of alcohol and other drugs. ASAPs receive referrals from local courts or the commission. ASAPs deliver intervention services within locally-administered programs to specific municipal jurisdictions within the Commonwealth of Virginia pursuant to §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

"BAC" means blood alcohol concentration which is determined by law-enforcement personnel or other licensed organizations in accordance with procedures established in § 18.2-268.

"CCRE" means central criminal records exchange.

"Classification" means a process involving the assessment of an offender's personal involvement with alcohol or other drugs which results in referral to an appropriate intervention service (educational treatment).

"Commission" means the state agency established as the Commission on the Virginia Alcohol Safety Action Program serving under the auspices of and reporting directly to the Secretary of Transportation. It is composed of two members from the House Committee for Courts of Justice, two members from the Senate Committee for Courts of Justice, two sitting or retired district court judges who regularly hear or heard cases involving DUI and who are familiar with local ASAPs, two directors of ASAPs, one representative from the law-enforcement profession, one citizen at large, one representative from the Department of Motor Vehicles and one representative from the Department of Mental Health, Mental Retardation and Substance Abuse Services.

The commission shall establish and certify ASAPs and require them to be operated in accordance with commission standards pursuant to § 18.2-271.2 of the Code of Virginia.

"DAT" means driver awareness training. Providing information on defensive driving and accident prevention.

"Director of ASAP" means the person who is in charge of and accountable for the operation of an ASAP. The ASAP director reports to the ASAP policy board.

"DMV" means the Commonwealth of Virginia Department of Motor Vehicles.

"DUI" means operating or driving a motor vehicle or boat under the influence of alcohol or drugs (§§ 18.2-266 and 29.1-738 of the Code of Virginia).

"Education" means commission-approved classes provided to some offenders following classification. The intervention services include alcohol or drug education, young offender education, and intensive education.

"Enrollment" means that the offender has to report to the ASAP, obtain an intake appointment, make arrangements to pay the ASAP fee, and sign an agreement to participate as provided in §§ 18.2-266 through 18.2-273 of the Code of Virginia.

"Intake" means the process wherein offenders, either individually or in groups, provide objective and subjective information to case managers for use in their classification.

"Intervention services" means direct service activities to offenders entering through a program which provides direct services. Such activities include assessment services, crisis intervention, case management services and exit activities.

"Policy board" means a group established by the ASAP which controls and gives direction to the ASAP's activities and provides input of local needs. This board may also be established in accordance with §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia by the commission.

"Treatment" means intervention services provided to offenders subsequent to a recommendation for referral by an ASAP to outpatient, in-patient or residential services treatment and provided by a certified agent or licensed program.

"VASAP" means the Virginia Alcohol Safety Action Program, a probation intervention system providing services to offenders referred to the program by the courts. VASAP consists of the Commission on VASAP, the Advisory Board to the Commission on VASAP, local ASAP policy boards and local Alcohol Safety Action Programs as established in §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

"VMIS" means an Automated Management Information System, a computer network which provides offender profiles to the ASAPs and a mechanism for the transfer of cases and information between the ASAPs and the VASAP office.

24VAC35-30-40. Assignment of case manager. (Repealed.)

All offenders referred to an ASAP will be assigned a case manager.

The case manager shall inform the court if an offender is not in full compliance with court orders and ASAP directives.

All case managers shall provide services in accordance with the case management policies contained herein.

24VAC35-30-50. Referral contact. (Repealed.)

Upon receipt of referral, the ASAP shall determine if the case needs to be transferred (refer to Transfer Policy, VASAP Policy and Procedure Manual (24VAC35-20-10 et seq.) for specific requirements).

24VAC35-30-60. Enrollment. (Repealed.)

Persons referred to the VASAP system must enroll with a local ASAP before they can obtain a restricted driver's license. Enrollment as defined includes but is not limited to the following:

1. The offender must report to an ASAP representative. (This contact can be in court or at the place designated by the ASAP director.)

2. The offender must sign the enrollment agreement.

3. The offender must pay the ASAP participation fee or make satisfactory arrangements for payment with the ASAP.

4. The offender must obtain an appointment specifying when intake will be held.

5. The offender must return to the clerk of court with a release from the ASAP which will allow the court to issue a restricted license.

24VAC35-30-70. Intake. (Repealed.)

Intake is to be the initial procedure following enrollment. Information is gathered for classification use and the following documents are completed for the offender's case file:

1. Court order or referral documents.

2. Receipts or payment plan.

3. Consent form for release of information signed by the offender.

4. Participant contact record.

5. Agreement to participate which shall require the offender to:

a. Meet with case manager as required.

b. Pay the ASAP fee.

c. Pay the cost of any treatment program, if applicable.

d. Comply with any necessary education or treatment requirements.

e. Attend all education or treatment sessions free from alcohol and drugs.

f. Submit to a breath test when requested by an ASAP representative.

g. Attend education or treatment sessions and comply with attendance policy.

h. Advise case manager of all changes of address or any other change which might affect ASAP participation.

i. Actively participate in the program.

j. Submit to reclassification or return to court for any additional alcohol or drug related arrests or convictions while in ASAP.

6. Other reports as required.

24VAC35-30-80. Required procedures during intake. (Repealed.)

1. Offenders displaying medical, emotional or behavioral problems shall be screened for interference with ASAP participation. When a determination is made that the offender cannot participate in ASAP because of medical, emotional or behavioral reasons, beyond his control, the case manager shall return the offender to the court of referral with a recommendation for placement.

2. The case manager shall explain the following to offenders and have forms executed:

a. Fee payment or payment plan;

b. Agreement to participate;

c. Overview of ASAP and expected activities for offender; and

d. Consent to release information form.

24VAC35-30-90. File documentation for classification. (Repealed.)

The following documents shall be required for the classification and included in the file of the offender:

1. DMV driving record.

2. Arrest information including blood alcohol concentration at last DUI arrest.

3. Results of approved alcohol or other drug screening instrument.

4. Classification summary sheet.

5. Personal data.

24VAC35-30-100. Required procedures during classification. (Repealed.)

The following required classification procedure shall be used by each case manager:

1. Review all available data pertaining to offender's use of alcohol or other drugs.

2. Administer approved alcohol or other drug screening instrument and review results.

3. Conduct personal interview with offender.

4. Determine classification of offender in accordance with approved criteria as needing education, intensive education, or treatment.

24VAC35-30-110. Classification categories. (Repealed.)

ASAPs use three classification categories: education, intensive education and treatment.

1. Education - offender shall be characterized as having an alcohol or other drug pattern which does not result in tolerance to the substance nor does the offender exhibit any substantial problems with the substance abuse. Probationers in this group are usually assigned to the ASAP education classes.

2. Intensive education - the offender shall be characterized as using quantities of alcohol or drugs resulting in increased tolerance and exhibits substantial problems with alcohol or other drugs without appearing addicted or exhibiting addictive use patterns. Probationers in this group are usually assigned to ASAP intensive education classes.

3. Treatment - the offender shall be characterized as exhibiting serious problems with alcohol or other drugs, significant tolerance and possibly having addiction to alcohol or other drugs, an abusive pattern of use. Probationers in this group are referred to a licensed treatment agency or individual.

24VAC35-30-120. Classification guidelines. (Repealed.)

A. More than one criterion shall be indicated to designate classification to education or intensive education; however, any one of the treatment criteria is sufficient for treatment referral. Referral to a level when any criterion for that level is exceeded requires written explanation placed in the probationer's file with the supervisor's approval:

1. Education.

a. No prior legal consequences as a result of alcohol or other drug use.

b. BAC usually not to exceed 19%.

c. No detrimental social, financial, or health consequences as a result of alcohol or other drug use.

d. A score on a commission approved alcohol or other drug screening test indicating "no problem."

e. Positive correlation between interview data and objective data.

2. Intensive education.

a. No prior DUI offense.

b. No prior alcohol- or other drug-related education or treatment.

c. BAC usually not to exceed 23%.

d. No more than one prior alcohol - or other drug-related offense, not including DUI (for example, drunk or drinking in public).

e. A score on a commission approved alcohol or other drug screening test indicating "potential problem."

f. A family history of alcohol or other drug abuse.

3. Treatment.

a. Self-admission of an alcohol or other drug problem.

b. Prior DUI offense.

c. Prior alcohol- or other drug-related treatment or education.

d. Positive reading from a breath alcohol screening device during any ASAP meeting or group.

e. Subsequent alcohol- or other drug-related offense during the probationary period.

f. A score on a commission approved alcohol or other drug screening test indicating "problem."

B. Identifiable psychological or psychiatric problems may preclude offender involvement in group intervention.

C. The ASAP case manager shall classify the offender using interviews, record checks and screening instruments. Offenders shall be classified in both group and individual formats.

24VAC35-30-130. Offender intervention. (Repealed.)

Case managers are responsible for the referral of the offender to a service provider. Treatment referrals shall be to a service provider licensed or certified by the Department of Mental Health, Mental Retardation and Substance Abuse Services or the Department of Health Professions. Education referral shall be to a service provider that utilizes the commission's education curriculum. Selection of the education service provider shall be at the discretion of the local ASAP.

Referrals shall be based on standardized criteria and the documented classification of the offender and shall be maintained in the offender's case file. After referral to treatment, the assignment to a specific treatment modality shall be based on an independent non-ASAP professional assessment in collaboration with VASAP case managers, e.g., inpatient, outpatient, or residential.

Case managers shall make referrals only to service providers who follow approved reporting guidelines.

Case managers shall furnish service providers with a written notice of referral on each participant and a summary of pertinent information regarding the offender's history with alcohol or other drug abuse.

Case managers shall maintain authority over all offenders referred and receiving services to ensure proper compliance with court directions and ASAP policies. Offenders testing positive for the presence of alcohol or other drugs during education, intensive education, or probation may be referred to the appropriate agency for evaluation of treatment needs.

24VAC35-30-140. Monitoring. (Repealed.)

Case managers monitor offenders during their participation to ensure compliance with court orders and ASAP policies. Each case manager is responsible for a specific number of cases identified as a case load.

A case load is the number of cases assigned at any one time to a specific case manager for the purpose of monitoring compliance. Monitoring begins when the offender is assigned, and ends when the individual has completed the conditions of probation. A case is considered inactive 30 days after completion of education or treatment services pending the end of the probationary period.

Case managers shall review reports daily on attendance, participation and services delivered to verify offender compliance.

Each case manager shall maintain a case load of at least 20 and no more than 300 active cases at one time, unless authorized by the commission.

24VAC35-30-150. Reporting. (Repealed.)

ASAPs shall work with the courts and service providers to establish reports essential to the probationary function of the case manager. Service providers shall utilize the standard report format adopted by the commission and provided by the ASAP.

A. Noncompliance reporting. When the offender has been deemed noncompliant by the case manager, that case manager, within five working days, shall notify in writing the referring court or agency and the offender. In the absence of court direction to the contrary, the offender shall be deemed noncompliant if:

1. The offender does not appear for the initial appointment;

2. The offender receives a subsequent DUI, felony, traffic or any other type of conviction which may be pertinent or relevant to the individual's probationary status;

3. The offender appears at a class, session or appointment while, or immediately after, using alcohol or other drugs;

4. The offender is absent from a class, session or appointment without approval of the case manager;

5. The offender refuses to attend or actively participate in assigned sessions;

6. The offender fails or refuses to pay appropriate fees, unless declared indigent by the court.

B. Absences. Unless otherwise directed by the court, absences from class or sessions shall be excused by the case manager under the following conditions:

1. Death in the immediate family. Immediate family includes spouse, parents (including in-laws), children, guardians and siblings.

2. Medical absence with written statement from a doctor.

3. Any emergency which is either verified or approved by the local case manager, such as a medical absence where there is no written statement from a doctor.

All excused absences shall be approved in advance except where time or circumstances make it impractical. The case manager shall document all offender absences from class or sessions, including specific reasons for the absence. The documentation shall be a part of the offender's case file. ASAPs shall make available a written copy of policies on absences to all contract service providers and offenders.

C. Reports from service providers. ASAPs shall require at least the following reports in the adopted format from service providers:

1. Written notice of receipt of referred offender within five working days of initial contact with offender.

2. A tentative outline of the treatment plan within 15 days of the intake session in those instances where offender was placed in treatment.

3. Written notice within 10 working days of any change in the offender's treatment plan.

4. Verbal notice by the next working day, and written notice within five working days, when the offender is in violation of any section of ASAP's or the service provider's agreement to participate.

5. Upon written request for specific reports to a service provider, the case manager shall receive a written response within 10 days.

6. ASAPs shall require written reports according to the following schedule for each offender:

a. Education - a final report.

b. Intensive education - interim and final report.

c. Treatment - initial treatment plan within 15 days of intake, a progress report within 60 days of intake and every 90 days thereafter, and final report within 15 days of discharge.

These reports shall become a part of the offender's case file; other reports may be included.

D. Reports to service provider. The local ASAP shall submit at least the following reports to service providers:

1. Written notice of referral.

2. Summary of offender's alcohol or other drug history to service provider.

3. Written notice of all terminations for noncompliance, transfer and, when excused, absence prior to next scheduled class.

In the event of a written request for offender information from a service provider, the case manager shall respond in writing within 10 days of request.

E. Progress and final reports. Progress and final reports shall be submitted by the case manager in keeping with the following:

1. As directed by the court or referring agency, a progress report shall be furnished within five working days.

2. Final reports for court shall be due according to court requirements and specifications. Copies of court or final reports submitted on each offender shall be placed in the appropriate offender's case file for retention according to the approved Records Management Plan.

F. Improper service provider activity. Case managers shall make a written report to the ASAP director within two working days of any improper activity regarding the service provider. Improper activity shall include reports which do not conform to the agreed format and required time schedule.

24VAC35-30-160. Transfer procedures and documentation. (Repealed.)

ASAPs shall not retain offenders who reside outside of or not employed in their service area. In a rate instance, an offender may request not to be transferred. Such request shall be in writing and kept in the offender file. When transfers occur prior to enrollment, no fee shall be collected by the originating ASAP unless otherwise directed by the court of referral.

When transfers occur after enrollment, the entire ASAP fee (minus state portion, if paid to the state) shall be transferred. A lesser amount may be agreed upon by the originating and receiving ASAPs.

Interstate or intrastate transfers of offenders shall be accomplished as provided below.

Receipt of Interstate Transfers. Offenders transferred into the VASAP system will be referred through one of three procedures; (i) petitioning the general district court within the jurisdiction where they reside; (ii) direct referral under the authority of the Interstate Compact Agreement; or (iii) other procedures approved by the Commission on VASAP.

1. Petition. Offenders convicted in another state and requiring VASAP to stop revocation of their operator's license in Virginia, must request VASAP probation through the petition process. This is of special importance to those offenders convicted in states which are members of the Interstate Violator Compact.

2. Direct referral. Offenders who have been convicted in another state and whose operator's license is not subject to revocation or suspension action, or whose license status will not be affected by VASAP involvement, may be referred directly into the VASAP system under the Interstate Compact Agreement. Each referral must be supported by formal documents from the sending state verifying the action taken by the sentencing court.

The following case management procedures and documents shall be used in conjunction with the transfer requirements referred to in Transfer Policy, VASAP Policy and Procedure Manual (24VAC35-10-10 et seq.):

1. File Documentation for transfers.

a. Interstate transfer (transfer to agencies outside of Virginia).

(1) Minimum file documentation necessary for transfer of offender prior to ASAP intake shall be as follows:

(a) Transfer form.

(b) Court document ordering or requiring participation.

(c) Case summary information.

(d) Arrest information (if available).

(2) Minimum file documentation necessary for transfer after initial session of when offender is actively involved in ASAP shall be as follows:

(a) Transfer form.

(b) Court document ordering or requiring participation.

(c) Case summary information.

(d) Arrest information (if available).

(e) Classification summary information and results of testing instrument used.

(f) Copy of questionnaire completed by offender revealing alcohol or other drug use or general information.

(g) Progress report on offender (if available).

b. Interstate transfers (transfer from agencies outside of Virginia).

(1) Minimum documentation necessary for transfer from the originating ASAP to other out-of-state agencies shall be as follows:

(a) Letter of transmittal including specific reporting needs of the ASAP.

(b) Interstate DUI Transfer Form.

(c) Properly-completed consent for release of information.

(d) Court document ordering ASAP participation.

(e) Arrest information and other alcohol or drug use information (as available).

(2) Procedures for ASAP receiving transfers. The ASAP receiving a transferred offender shall have the following responsibilities with respect to the originating ASAP and other states or agencies:

(a) Intrastate transfers.

(1) Within 10 days of receipt of transfer case, the ASAP shall complete and return Part I of the transfer form.

(2) Upon classification, the ASAP shall complete and return Part II of the transfer form.

(3) The report form shall be used to forward the report, after return of Parts I and II of the Transfer Form, when such reports are requested by the originating ASAP.

(4) The report form shall be used to notify the originating ASAP within 30 days of the successful completion and within five days of noncompliance by the offender.

(b) Interstate transfers.

(1) After receipt of the transfer case, the ASAP shall return notification of enrollment if requested by the originating state or agency.

(2) Upon classification, the ASAP shall return notification of the education or treatment assignment.

(3) The report form shall be used to forward reports, unless other forms are provided by the out-of-state agency, when such reports are requested by the originating state or agency.

(4) The originating state or agency shall be notified within 30 days of the successful completion by the offender.

FORMS (24VAC35-30)(Repealed)

Treatment Agency Report, VAS-10 (1/91).

Consent for the Release of Confidential Information, VASAP-34 (Rev. 7/90).

Financial Report.

Request for Deficit Funding.

Proposed Standard Treatment Services Agreement.

Transfer Sheet, VASAP-33 (Rev. 10/89).

Report Form, VASAP-42 (Rev. 10/89).

Certification Review Instrument/Certification Questionaire Score Sheet.

Certification Report.

Title of Regulation: 24VAC35-40. Certification Requirements Manual (repealing 24VAC35-40-10 through 24VAC35-40-70).

Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 13, 2022.

Agency Contact: Richard Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email richard.foy@vasap.virginia.gov.

Basis: The Commission on the Virginia Alcohol Safety Action Program (VASAP) is empowered by § 18.2-271.2 of the Code of Virginia to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information, and administrative procedures for the various local alcohol safety action programs and shall be responsible for overseeing the administration of the statewide VASAP system.

Purpose: The Commission on VASAP's mission is to prevent driving under the influence of alcohol and other drugs, thereby contributing to public safety by preventing traffic fatalities, injuries, and property damage. The regulation under consideration was written many years ago to guide local Alcohol Safety Action Programs (ASAPs) in accomplishing this mission. Since that time much has changed. The regulation no longer reflects the correct organizational structure, best practices, or current policy and procedure. Repealing the existing regulation, using guidance documents instead, enables the Commission on VASAP to be flexible in a timely manner when implementing updated policy and procedures as new evidence based practices are recommended and the mandates of the courts change. New guidance documents enable VASAP to be more efficient and effective in guarding the public from the potential dangers presented by impaired motorists.

Substance: The entire regulation is being repealed.

Issues: Using operational guidelines instead of regulations gives VASAP the flexibility to modify policy and procedures in timely response to meet the needs of the public, direction of the courts, and changes to the laws of the Commonwealth. The operational guidelines are mostly internal agency procedures; however, they will be available for public viewing. There are no anticipated disadvantages to the public.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Commission on the Virginia Alcohol Safety Action Program (VASAP) proposes to repeal 24 VAC 35-40 Certification Requirements Manual.

Background. The Alcohol Safety Action Program (ASAP) is a criminal justice program that uses community and state services to address the problem of driving under the influence of alcohol and other drugs. The ASAP system is composed of 24 local programs that provide services throughout the Commonwealth.² Local ASAPs receive referrals from local courts or the commission and then deliver intervention services within locally-administered programs to specific municipal jurisdictions within Virginia pursuant to §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

The regulation has not been updated since 1991 and no longer reflects current practice. Certification of local ASAPs occurs every three years. The 24 local ASAP programs have been following certification requirements issued by the executive director of the Commission on VASAP for many years. The certification manual is currently being rewritten, but is expected to be available as a guidance document on Town Hall by the time this action to repeal the regulation becomes effective.³

Estimated Benefits and Costs. Repealing 24VAC35-40 would have no practical effect on the local ASAPs since they have already been following operational guidelines issued by the Commission on VASAP. Local ASAPs are established by the Commission and must be recertified every three years. Thus removing the policy and procedures from the Virginia Administrative Code and replacing them with guidance documents would not change the scope of the local programs' legal responsibilities, the incentives they face to provide services as directed by local courts, or the costs and benefits that arise from the performance of these duties.

Businesses and Other Entities Affected. Repealing the regulation would not affect businesses or other entities besides the ASAPs, who are already aware of the action and the current requirements as contained in the guidance document.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, repealing the regulation would not create any costs or benefits. Thus, an adverse impact is not indicated.

Small Businesses⁵ Affected.⁶ The proposed amendment does not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendment would not affect any localities.

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

Effects on the Use and Value of Private Property. The proposed amendment would not affect the value of any private property or real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://vasap.virginia.gov/.

³Email from the Commission on VASAP to DPB, February 2, 2022.

⁴Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, 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."

⁶If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Commission on the Virginia Alcohol Safety Action Program concurs with the content of the Department of Planning and Budget's economic impact analysis.

Summary:

The proposed action repeals Certification Requirements Manual (24VAC35-40) because the regulation no longer reflects current agency policy and procedures related to the certification of local alcohol safety action programs.