VA.R. Doc. No. R09-1567; Filed October 21, 2008, 2:55 p.m.
TITLE 13. HOUSING
VIRGINIA HOUSING DEVELOPMENT AUTHORITY
Proposed Regulation
REGISTRAR'S NOTICE: The Virginia Housing Development Authority is exempt from the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) pursuant to § 2.2-4002 A 4; however, under the provisions of § 2.2-4031, it is required to publish all proposed and final regulations.
Title of Regulation: 13VAC10-20. Rules and Regulations for Multi-Family Housing Developments (amending 13VAC10-20-40).
Statutory Authority: § 36-55.30:3 of the Code of Virginia.
Public Hearing Information:
November 25, 2008 - 10 a.m. - Virginia Housing Development Authority, 601 S. Belvidere Street, Richmond, VA
Public Comments: Public comments may be submitted until 5 p.m. on November 26, 2008.
Agency Contact: J. Judson McKellar, Jr., General Counsel, Virginia Housing Development Authority, 601 S. Belvidere Street, Richmond, VA 23220, telephone (804) 343-5540 or email judson.mckellar@vhda.com.
Summary:
The proposed amendments permit the authority’s board to authorize by resolution the executive director to approve and to authorize the issuance of commitments for multifamily mortgage loans without further approval or authorization by resolution of the board, subject to compliance with any procedures and requirements that may be provided in such resolution. Current regulations authorize the board by resolution to adopt procedures that provide for its prior review and consideration of the recommendations of the executive director before the executive director may approve the mortgage loan and authorize the issuance of a commitment. This technical amendment gives the board broader authority to delegate authorization to the executive director to approve multifamily mortgage loans and authorize the issuance of commitments for such loans, subject to such procedures and requirements as the board may impose.
13VAC10-20-40. Application and acceptance for processing.
Application for a mortgage loan shall be commenced by filing with the authority an application, on such form or forms as the executive director may from time to time prescribe, together with such documents and additional information as may be requested by the authority. The applicant shall complete a previous participation certificate, in such form as the executive director shall require, which shall provide information about rental housing projects in which the principal participants (or their affiliates) in the proposed development have previously had any interest or participation, all as more fully specified by the executive director.
The authority's staff shall review each application and any additional information submitted by the applicant or obtained from other sources by the authority in its review of each proposed development. Such review shall be performed in accordance with subdivision 2 of subsection D of § 36-55.33:1 of the Code of Virginia and shall include, but not be limited to, the following:
1. An analysis of the site characteristics, surrounding land uses, available utilities, transportation, employment opportunities, recreational opportunities, shopping facilities and other factors affecting the site;
2. An evaluation of the ability, experience, financial capacity and predisposition to regulatory compliance of the applicant;
3. A preliminary evaluation of the estimated construction costs and the proposed design and structure of the proposed development;
4. A preliminary review of the estimated operating expenses and proposed rents and a preliminary evaluation of the adequacy of the proposed rents to sustain the proposed development based upon the assumed occupancy rate and estimated construction and financing costs; and
5. A preliminary evaluation of the need for such housing at rentals or prices which persons and families of low and moderate income can afford within the general housing market area to be served by the proposed development.
Based on the authority's review of the applications, previous participation certificates, documents, and any additional information submitted by the applicants or obtained from other sources by the authority in its review of the proposed developments, the executive director shall accept for processing those applications which he determines satisfy the following criteria:
1. The applicant either owns or leases the site of the proposed development or has the legal right to acquire or lease the site in such manner, at such time and subject to such terms as will permit the applicant to process the application and consummate the initial closing.
2. Subject to further review and evaluation by the authority's staff under 13VAC10-20-50, the estimated construction costs and operating expenses appear to be complete, reasonable and comparable to those of similar developments.
3. Subject to further review and evaluation by the authority's staff under 13VAC10-20-50, the proposed rents appear to be at levels which will: (i) be affordable by the persons and families intended to be assisted by the authority; (ii) permit the successful marketing of the units to such persons and families; and (iii) sustain the operation of the proposed development.
4. The applicant and other principal participants in the proposed development have the experience, ability, financial capacity and predisposition to regulatory compliance necessary to carry out their respective responsibilities for the acquisition, construction, ownership, operation, marketing, maintenance and management of the proposed development and will fully and properly perform all of their respective duties and obligations relating to the proposed development under law, regulation and the applicable mortgage loan documents of the authority.
5. The proposed development will contribute to the implementation of the policies and programs of the authority in providing decent, safe and sanitary rental housing for low and moderate income persons and families who cannot otherwise afford such housing and will assist in meeting the need for such housing in the market area of the proposed development.
6. It appears that the proposed development and applicant will be able to meet the requirements for feasibility and commitment set forth in 13VAC10-20-50 and that the proposed development will otherwise continue to be processed through initial closing and will be completed and operated, all in compliance with the Act, the documents and contracts executed at initial closing, applicable federal laws, rules and regulations, and the provisions of this chapter and without unreasonable delay, interruptions or expense.
The executive director's determinations with respect to the
above criteria shall be based on the documents and information received or
obtained by him at that time from any source and are subject to modification or
reversal upon his receipt of additional documents or information at a later
time. If the executive director determines that the above criteria are
satisfied, he will recommend to the board that the application be approved for
further processing. If the executive director determines that one or more of
the above criteria are not satisfied, he may nevertheless, in his discretion,
recommend to the board that the application be approved for further processing
and that the mortgage loan and issuance of the commitment therefor be approved
and authorized subject to satisfaction of such criteria in such manner and
within such time period as he shall deem appropriate. The board shall review
and consider the recommendation of the executive director, and if it concurs
with such recommendation, it may by resolution approve the application and
authorize the mortgage loan and the issuance of a commitment therefor, subject
to the further review in 13VAC10-20-50 and such terms and conditions as the
board shall require in such resolution. However, the board may by resolution adopt
procedures that provide for its review and consideration of the recommendations
of the executive director and that, upon compliance with such procedures,
authorize the executive director to approve, and to authorize the
issuance of commitments for, mortgage loans without further approval or
authorization by resolution of the board. If such procedures are then in
effect and if the requirements therein for the authorization of the executive
director to approve the mortgage loan and authorize the issuance of a
commitment therefor have been satisfied, subject to compliance with any
procedures and requirements that may be provided in such resolution; and
pursuant to and in accordance with such resolution, the executive director
may approve and authorize the mortgage loan and the issuance of a commitment
therefor without further approval or authorization by the board, subject to the
further review in 13VAC10-20-50 and such terms and conditions as the executive
director may require.
A resolution authorizing, or a commitment for, a mortgage loan to a for-profit housing sponsor may prescribe the maximum annual rate, if any, at which distributions may be made by such for-profit housing sponsor with respect to the development, expressed as a percentage of such for-profit housing sponsor's equity in such development (such equity being established in accordance with 13VAC10-20-80), which rate, if any, shall not be inconsistent with the provisions of the Act. In connection with the establishment of any such rates, the board or the executive director shall not prescribe differing or discriminatory rates with respect to substantially similar developments. The resolution or commitment shall specify whether any such maximum annual rate of distributions shall be cumulative or noncumulative and shall establish the manner, if any, for adjusting the equity in accordance with 13VAC10-20-80.
The executive director may impose such terms and conditions with respect to acceptance for processing as he shall deem necessary or appropriate. If any proposed development is so accepted for processing, the executive director shall notify the sponsor of such acceptance and of any terms and conditions imposed with respect thereto. If the executive director determines not to recommend approval of the application, he shall so notify the applicant.
VA.R. Doc. No. R09-1661; Filed October 17, 2008, 9:52 a.m.
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TITLE 17. LIBRARIES AND CULTURAL RESOURCES
LIBRARY OF VIRGINIA (LIBRARY BOARD)
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Title of Regulation: 17VAC15-10. Guidelines Governing
Public Participation (repealing 17VAC15-10-10).
17VAC15-11. Public Participation Guidelines (adding 17VAC15-11-10 through 17VAC15-11-110).
Statutory Authority: §§ 2.2-4007.02 and 42.1-8 of the Code of Virginia.
Effective Date: December 10, 2008.
Agency Contact: Janice M. Hathcock, Public Relations Coordinator, The Library of Virginia, 800 E. Broad St., Richmond, VA 23219-8000, telephone (804) 692-3592, FAX (804) 692-3594, TTY (804) 692-3976, or email jan.hathcock@lva.virginia.gov.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
17VAC15-11-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Library of Virginia (Library Board). This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
17VAC15-11-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Library of Virginia (Library Board), which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
17VAC15-11-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.
17VAC15-11-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 17VAC15-11-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
17VAC15-11-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
17VAC15-11-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
17VAC15-11-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
17VAC15-11-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
17VAC15-11-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
17VAC15-11-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
17VAC15-11-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1462; Filed October 21, 2008, 3:21 p.m.
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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD FOR ARCHITECTS, PROFESSIONAL ENGINEERS, LAND SURVEYORS, CERTIFIED INTERIOR DESIGNERS AND LANDSCAPE ARCHITECTS
Final Regulation
Title of Regulation: 18VAC10-20. Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects Regulations (amending 18VAC10-20-120, 18VAC10-20-140).
Statutory Authority: §§54.1-201, 54.1-404, and 54.1-416 of the Code of Virginia.
Effective Date: January 1, 2009.
Agency Contact: Mark N. Courtney, Executive Director, Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (804) 527-4294, or email apelscidla@dpor.virginia.gov.
Summary:
The amendments permit architect license applicants who are applying via examination to begin taking divisions of the Architect Registration Examination (ARE) prior to completing the National Council of Architectural Registration Boards (NCARB) Intern Development Program (IDP). Currently, the board’s regulation requires an architect examination applicant to complete the NCARB IDP prior to becoming eligible to take the ARE.
Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.
18VAC10-20-120. Experience.
A. The successful completion of the National Council of
Architectural Registration Boards (NCARB) Intern Development Program (IDP)
shall be required of all applicants for original licensure. IDP training
requirements shall be in accordance with NCARB's Handbook for Interns and
Architects, [ 2006-2007 2008-2009 ] Edition.
B. All applicants must have a minimum of 36 months
experience/training prior to submitting an application for examination.
Any experience/training of less than eight consecutive weeks will not be
considered in satisfying this requirement.
C. All applicants must have a minimum of 12 months
experience/training in architecture as an employee in the office of a licensed
architect prior to submitting an application for examination. An
organization will be considered to be an office of a licensed architect if:
1. The architectural practice of the organization in which the applicant works is under the charge of a person practicing as a principal, where a principal is a licensed architect in charge of an organization's architectural practice either alone or with other licensed architects, and the applicant works under the direct supervision of a licensed architect; and
2. The practice of the organization encompasses the comprehensive practice of architecture, including the categories set forth in the NCARB IDP requirements.
18VAC10-20-140. Examination.
A. All applicants for original licensure in Virginia are
required to pass an NCARB-prepared examination after meeting the education
and experience/training requirements as provided in this chapter. Provided
all other requirements are met, a license as an architect will be issued upon
passing the NCARB examination.
An applicant shall be admitted to the NCARB-prepared examination prior to completing the experience requirements contained in 18VAC10-20-120 if the applicant is otherwise qualified and provided the applicant is enrolled in the NCARB IDP.
B. The Virginia board is a member board of NCARB and as such is authorized to make available the NCARB-prepared examination.
C. Grading of the examination shall be in accordance with the national grading procedure administered by NCARB. The board shall utilize the scoring procedures recommended by NCARB. Grades for each division of the examination passed on or after January 1, 2006, shall be valid in accordance with the procedure established by NCARB.
D. The NCARB-prepared examination will be offered at least once a year at a time designated by the board.
E. The board may approve transfer credits for parts of the NCARB-prepared examination taken and passed in accordance with national standards.
F. Unless otherwise stated, applicants approved to sit for an examination shall register and submit the required examination fee. Applicants not properly registered will not be allowed into the examination site.
G. Applicants approved to sit for the examination shall follow NCARB procedures.
H. Examinees will be notified by the board of passing or failing the examination.
I. Should an applicant fail to pass the NCARB-prepared examination within three years after being approved to sit for the examination, the applicant must reapply. If the applicant has not been taking the examination on a continuous basis during the three-year eligibility period, or fails to reapply within six months after the end of the three-year eligibility period, or both, then the applicant shall meet the entry requirements current at the time of reapplication.
NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.
[ FORMS (18VAC10-20)
Architect License Application, (Architect Information
Sheet) 0401LIC 0401LIC (rev. 5/16/0710/10/08).
Verification of Architect Examination and Licensure Form, 0401ELVF
0401EXVER v.1.0 (rev. 3/1/02 9/5/08).
Architect Experience Verification Form, 0401 EXP 0401EXP
v1.0 (rev. 3/26/02 9/5/08).
Architect Client Experience Verification Form, 0401CEXP
0401CEXP v1.0 (rev. 3/1/02 9/5/08).
Architect Degree Verification Form, 0401DEG 0401DEG
v1.0 (rev. 3/1/02 9/5/08).
Architect Reference Form, 0401REF v1.0 (rev. 2/23/05
9/5/08).
Architect License Reinstatement Application, 0401REI 0401REI
v.1.0 (rev. 12/1/04 9/5/08).
Architect License Renewal Form, 0401REN, 0401REN
v1.0 (eff. 4/11/05 9/5/08)
Professional Engineer License Application, (Professional
Engineer Information Sheet) 0402LIC (rev. 2/1/07 9/22/08).
Professional Engineer Reference Form, 0402REF 0402REF
v.1.0 (rev. 3/1/02 9/5/08).
Professional Engineer License Reinstatement Application, 0402REI
0402REI v1.1 (rev. 12/1/04 9/15/08).
Professional Engineer and Engineer-in-Training Degree
Verification Form, 04EDEG 0402_20DEG v1.0 (rev. 3/1/02 9/5/08).
Professional Engineer and Engineer-in-Training Experience
Verification Form, 04EEXP 0402_20EXP v1.0 (rev. 2/19/04 9/5/08).
Engineer Verification of Examination and Licensure Form, 04EELVF
0402_20EXVER v1.0 (rev. 3/1/02 9/5/08).
Engineer-in-Training Designation Application, (Engineer-in-Training
Information Sheet) 0420DES 0420DES v1.0 (rev. 2/1/07 9/5/08).
Engineer-in-Training Reference Form, 0420REF 0402REF
v1.0 (rev. 3/1/02 9/5/08).
Course Requirements for Engineering Technology Program, 0402CREQ
0402_20CREQ v1.0 (eff. 2/19/03 9/5/08).
Professional Engineer License Renewal Form, 0402REN, 0402REN
v1.0 (eff. 4/11/05 9/5/08).
Land Surveyor License Application, (Land Surveyor Information
Sheet) 0403LIC (rev. 2/1/07 9/17/08).
Land Surveyor License Reinstatement Application, 0403REI
(rev. 12/1/04 9/17/08).
Land Surveyor B License Application, (Land Surveyor B
Information Sheet) 0404LIC (rev. 2/1/07 9/17/08).
Land Surveyor B License Reinstatement Application, 0404REI
(rev. 12/1/04 9/17/08).
Land Surveyor and Surveyor-in-Training Degree Verification
Form, 04LSDEG 0403_30DEG (rev. 2/1/07 9/17/08).
Land Surveyor Verification of Examination and Licensure Form,
04LSELVF 0403_30ELV (rev. 2/1/07 9/17/08).
Land Surveyor & Surveyor-in-Training Experience
Verification Form, 04LSEXP 0403_30EXP (rev. 2/1/07 9/17/08).
Surveyor Photogrammetrist License Application (Surveyor Photogrammetrist Information Sheet), 0408LIC (eff. 9/19/08).
Surveyor Photogrammetrist License Renewal Form, 0408REN (eff. 9/19/08).
"Grandfather" Surveyor Photogrammetrist Reference Form, 0408REF (eff. 9/19/08).
Surveyor Photogrammetrist Experience Verification Form, 0408EXP (eff. 9/19/08).
"Grandfather" Surveyor Photogrammetrist Experience Verification Form, 0408GXP (eff. 9/19/08).
Surveyor Photogrammetrist License Reinstatement Application, 0408REI (eff. 9/19/08).
Surveyor Photogrammetrist Degree Verification Form, 0408DEG (eff. 9/19/08).
Surveyor Photogrammetrist Verification of Examination and Licensure Form, 0408ELVF (eff. 9/19/08).
Surveyor-In-Training Designation Application, (Surveyor-in-Training
Information Sheet) 0430DES (rev. 2/1/07 9/17/08).
Land Surveyor License Renewal Form, 04LSREN, 0403_04REN
(eff. 4/11/05 9/17/08).
Landscape Architect Certificate Application, (Landscape
Architect Information Sheet) 0406CERT (rev. 2/1/0710/6/08).
Verification of Landscape Architect Examination and Certification
Licensure Form, 0406ELVF 0406ELV (rev. 3/1/02 9/17/08).
Landscape Architect Experience Verification Form for
Examination and Comity Applicants, 0406EXP (rev. 6/23/05 9/17/08).
Landscape Architect Degree Verification Form, 0406DEG (rev. 3/1/02
9/17/08).
Landscape Architect Certificate Reinstatement Application,
0406REI (rev. 12/1/04 9/17/08).
Landscape Architect Certificate Renewal Form, 0406REN,
(eff. 4/11/05 9/17/08).
Interior Design Designer Certificate
Application, (Interior Designer Information Sheet) 0412CERT (rev. 2/1/07
9/17/08).
Verification of Interior Designer Examination and
Certification Form, 0412ELVF 0412ELV (rev. 3/1/02 9/17/08).
Interior Designer Degree Verification Form, 0412DEG 0412DEG
v1.0 (rev. 3/1/02 9/11/08).
Interior Designer Experience Verification Form, 0412EXP
0412EXP v1.0 (rev. 8/11/05 9/11/08).
Interior Designer Certificate Reinstatement Application, 0412REI
0412REI v1.0 (rev. 3/1/02 9/11/08).
Interior Design Designer Certificate Renewal
Form, 0412REN, 0412REN v1.0 (eff. 4/11/05 9/11/08).
Professional Corporation Registration Application , (Professional
Corporation Information Sheet), 04PCREG (rev. 6/2/06 9/25/08).
Professional Corporation Branch Office Registration
Application, 04BRPC 04BRPCREG (eff. 6/7/06 9/25/08).
Business Entity Registration Application , (Business
Entity Information Sheet) 04BUSREG, (rev. 6/2/06 9/25/08).
Business Entity Branch Office Registration Application, 04BRBUS
04BRBUSREG (rev. 1/3/07 9/25/08).
Professional Limited Liability Company Registration
Application Form, (Professional Limited Liability Company Information
Sheet) 04PLCREG (rev. 6/2/06 9/25/08).
Professional Limited Liability Company Branch Office
Registration Application, 04BRPLC 04BRPLCREG (rev. 6/7/06 9/25/08). ]
[ DOCUMENTS INCORPORATED BY REFERENCE (18VAC10-20)
Handbook for Interns and Architects, 2006-2007 2008-2009
Edition, National Council of Architectural Registration Boards, 1801 K Street,
NW, Suite 1100-K, Washington, DC 20006, www.ncarb.org. ]
VA.R. Doc. No. R07-136; Filed October 10, 2008, 2:24 p.m.
BOARD OF AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Titles of Regulations: 18VAC30-10. Public
Participation Guidelines (repealing 18VAC30-10-10 through
18VAC30-10-120).
18VAC30-11. Public Participation Guidelines (adding 18VAC30-11-10 through 18VAC30-11-110).
Statutory Authority: §§ 2.2-4007.02 and 54.1-2400 of the Code of Virginia.
Effective Date: December 10, 2008.
Agency Contact: Lisa R. Hahn, Executive Director, Board of Audiology and Speech-Language Pathology, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4424, FAX (804) 527-4413, or email lisa.hahn@dhp.virginia.gov.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
18VAC30-11-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Board of Audiology and Speech-Language Pathology. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
18VAC30-11-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Board of Audiology and Speech-Language Pathology, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
18VAC30-11-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.
18VAC30-11-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 18VAC30-11-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
18VAC30-11-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
18VAC30-11-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
18VAC30-11-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
18VAC30-11-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
18VAC30-11-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
18VAC30-11-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
18VAC30-11-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1467; Filed October 22, 2008, 9:23 a.m.
COMMON INTEREST COMMUNITY BOARD
Emergency Regulation
Title of Regulation: 18VAC48-20. Condominium Regulations (adding 18VAC48-20-10 through 18VAC48-20-730, 18VAC48-20-810).
Statutory Authority: §§ 54.1-201, 54.1-2349 and 55-79.98 of the Code of Virginia.
Effective Dates: November 13, 2008, through November 12, 2009.
Agency Contact: Trisha Henshaw, Executive Director, Common Interest Community Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-0362, FAX (804) 367-4297, or email cic@dpor.virginia.gov.
Preamble
This is an emergency situation pursuant to § 2.2-4011 of the Code of Virginia. Chapters 851 and 871 of the Acts of the 2008 General Assembly, which were the result of HB 516 and SB 301 respectively, require regulations to be effective within 280 days of enactment.
The new regulation establishes the requirements for registration of condominium projects by the Common Interest Community Board. The condominium regulations were previously under the purview of the Real Estate Board and this regulatory action transfers the regulations to the Common Interest Community Board. The only substantial change is that references to the Horizontal Property Act have been removed because § 55-79.2 of the Code of Virginia defines "Board" as the Real Estate Board. Therefore, horizontal property regimes will continue under the purview of the Real Estate Board until such time as this Act is amended.
CHAPTER 20
CONDOMINIUM REGULATIONS
Part I
General
18VAC48-20-10. Purpose.
This chapter governs the exercise of powers granted to and the performance of duties imposed upon the Common Interest Community Board by the Condominium Act (§ 55-79.39 et seq. of the Code of Virginia).
18VAC48-20-20. Definitions.
The definitions provided in § 55-79.41 of the Code of Virginia, as they may be supplemented herein, shall apply to this chapter. The corresponding meanings assigned to certain terms by § 55-79.41 of the Code of Virginia shall be applicable in this chapter.
18VAC48-20-30. Explanation of terms.
Each reference in this chapter to a "declarant," "purchaser" and "unit owner" or to the plural of those terms shall be deemed to refer, as appropriate, to the masculine and the feminine, to the singular and the plural and to natural persons and organizations. The term "declarant" shall refer to any successors to the persons referred to in § 55-79.41 who come to stand in the same relation to the condominium as their predecessors in that they assumed rights reserved for the benefit of a declarant that (i) offers to dispose of his or its interest in a condominium unit not previously disposed of, (ii) reserves or succeeds to any special declarant right, or (iii) applies for registration of the condominium.
18VAC48-20-40. Condominiums located outside of Virginia.
A. In any case involving a condominium located outside of Virginia in which the laws or practices of the jurisdiction in which such condominium is located prevent compliance with a provision of these condominium regulations, the board or its subordinate shall prescribe, by order, a substitute provision to be applicable in such case which is as nearly equivalent to the original provision as is reasonable under the circumstances.
B. The words "declaration," "bylaws," "plats" and "plans," when used in these condominium regulations with reference to a condominium located outside of Virginia, shall refer to documents, portions of documents or combinations thereof, by whatever name denominated, which have a content and function identical or substantially equivalent to the content and function of their Virginia counterparts.
C. The words "recording" or "recordation," when used with reference to condominium instruments of a condominium located outside of Virginia, shall refer to a procedure which, in the jurisdiction in which such condominium is located, causes the condominium instruments to become legally effective.
D. This chapter shall apply to a contract for the disposition of a condominium unit located outside of Virginia only to the extent permissible under the provisions of § 55-79.40 B of the Code of Virginia.
18VAC48-20-50. Condominium advisory committee.
A condominium advisory committee, appointed by the board, may advise the board in the exercise of its powers and the performance of its duties under the Condominium Act (§ 55-79.39 et seq. of the Code of Virginia).
18VAC48-20-60. Property registration administrator.
A property registration administrator, employed and designated as such by the Director of the Department of Professional and Occupational Regulation, shall function as a subordinate of the board within the meaning of § 2.2-4001 of the Code of Virginia for the purpose of carrying out the routine daily operations of the board with respect to condominium regulations, including, without limitation, the entry of any orders provided for in these condominium regulations, the issuance of public reports and the administration of oaths and affirmations in connection with investigations or other proceedings. The administrator shall act as secretary of the condominium advisory committee.
Part II
Application for Registration
18VAC48-20-70. Application for registration.
Application for registration of condominium units shall be filed at the offices of the board. The application shall contain all of the documents and information required by the standard application form.
18VAC48-20-80. Applications not in proper form.
Upon receipt of an application for registration not in proper form, the board shall return the application to the declarant with a statement specifying the deficiencies in its form however, if the board has reason to believe that the application may readily be put into proper form it may retain the application and notify the declarant of the steps that must be taken to put the application in proper form.
18VAC48-20-90. Form of the application; submission of documents.
The board may establish specific guidelines which establish the form for preparation of the application for registration. These guidelines shall set forth reasonable requirements for paper size, binding and organization which assure uniformity in the manner disclosures are made to prospective purchasers.
18VAC48-20-100. Procedure upon receipt of application for registration.
A. Upon receipt of an application for registration and the fee required by § 55-79.89(d) of the Code of Virginia, the board shall issue the notice of filing required by § 55-79.92(a) of the Code of Virginia and shall conduct an inquiry and investigation to determine whether the prerequisites for registration set out in § 55-79.91 of the Code of Virginia and 18VAC48-20-130 of this chapter have been met. In conducting such inquiry and investigation, the board shall take cognizance of any reliable information concerning the declarant or the condominium coming to the board's attention.
B. If any of the prerequisites for registration appear to the board not to have been met, the board may informally advise the declarant of such fact and indicate in detail the nature of the failure to meet the prerequisites.
C. If the document review conducted by the administrator reveals that the prerequisites for registration have not been met, the board shall issue the correction notification required by § 55-79.92(c) of the Code of Virginia.
D. A request for an extension of the 60-day application period shall be in writing and shall be delivered to the board prior to the expiration of the period being extended. The request shall be for an extension of definite duration. The board may grant in writing a request for an extension of the application period and it may limit the extension to a period not longer than is reasonably necessary to permit correction of the application. An additional extension of the application period may be obtained, subject to the conditions applicable to the initial request. A request for an extension of the application period shall be deemed a consent to delay within the meaning of § 55-79.92(a) of the Code of Virginia.
E. If the prerequisites for registration are not met within the application period or a valid extension thereof, the board shall, upon the expiration of such period, enter an order rejecting registration as required by § 55-79.92(c) of the Code of Virginia.
F. The board shall receive and act upon corrections to the application for registration at any time prior to the effective date of an order rejecting registration.
G. At such time as the board affirmatively determines that the prerequisites for registration have been met, the board shall enter an order registering the condominium. The order shall designate the form and content of the public offering statement, substituted disclosure document or prospectus to be used and, in the case of application for registration made pursuant to 18VAC48-20-680 D of this chapter shall provide that previous orders designating the form and content of the public offering statement, substituted disclosure document or prospectus to be used are superseded.
18VAC48-20-110. Application for registration of expandable condominium.
In accordance with the practice contemplated by § 55-79.74(a) of the Code of Virginia, the declarant may register all units for which development rights have been reserved.
18VAC48-20-120. Filing fee.
Each application shall be accompanied by a fee in an amount equal to $35 per unit, except that the initial application fee shall be not less than $1,750 nor more than $3,500, and the fee for any application for registration of additional units shall be not less than $875 nor more than $3,500.
Part III
Registration
18VAC48-20-130. Prerequisites for registration.
The following provisions are prerequisites for registration and are supplementary to the provisions of § 55-79.91 of the Code of Virginia.
1. The declarant shall own or have the right to acquire an estate in the land constituting or to constitute the condominium which is of at least as great a degree and duration as the estate to be conveyed in the condominium units.
2. The condominium instruments must be adequate to bring a condominium into existence upon recordation except that the certification requirements of § 55-79.58 of the Code of Virginia need not be complied with as a prerequisite for registration. This subsection does not apply to condominium instruments that may be recorded after the condominium has been created.
3. The declarant shall have filed with the board evidence of its ability to complete all proposed improvements on the condominium. Such evidence shall consist of the commitment of an institutional lender to advance construction funds to the declarant and, to the extent that any such commitments will not furnish all the necessary funds, other evidence, satisfactory to the board, of the availability to the declarant of necessary funds. A lender's commitment may be subject to such conditions, including registration of the condominium units and presale requirements as are normal for loans of the type and as to which nothing appears to indicate that the conditions will not be complied with or fulfilled. In the case of a condominium located in Virginia, proposed improvements are uncompleted improvements which the declarant is affirmatively and unconditionally obligated to complete under §§ 55-79.58 and 55-79.67(al) of the Code of Virginia and applicable provisions of the condominium instruments or which the declarant would be so obligated to complete, if plats and plans filed with the board in accordance with 18VAC48-20-140 A of this chapter were recorded. In the case of a condominium located outside of Virginia, "proposed improvements" are all uncompleted improvements which the declarant intends, without condition or limitation, to build or place on the condominium.
4. The current and planned condominium marketing activities of the declarant shall comply with § 18.2-216 of the Code of Virginia, and 18VAC48-20-160, 18VAC48-20-180 and 18VAC48-20-190 of this chapter.
5. The declarant shall have filed with the board: (i) a proposed public offering statement which complies with § 55-79.90(a) of the Code of Virginia and 18VAC48-20-210 through 18VAC48-20-440 and 18VAC48-20-540 through 18VAC48-20-650 of this chapter and, if applicable, § 55-79.94(a) of the Code of Virginia and 18VAC48-20-470 through 18VAC48-20-520 of this chapter (ii) a substituted disclosure document which complies with 18VAC48-20-450 of this chapter; or (iii) a prospectus which complies with 18VAC48-20-460 of this chapter.
18VAC48-20-140. Requirements for plats and plans.
A. Except as provided in subsection C hereof, improvements shall be depicted on plats filed with the application for registration exactly as the declarant has depicted or intends to depict them on the recorded plats and "(NOT YET BEGUN)" and "(NOT YET COMPLETED)" labels shall be used with respect to such improvements exactly as the declarant has used or intends to use them on the recorded plats. Copies of plats and plans as recorded by the declarant shall be filed with the board if such plats and plans are different from those filed with the application for registration.
B. The requirement of § 55-79.58(b) of the Code of Virginia that plans shall show the location and dimensions of the boundaries of each unit shall be deemed satisfied, in the case of units which are identical (within normal constructions tolerances), by depiction of the location and dimensions of the vertical boundaries and horizontal boundaries, if any, of one such unit. The identifying numbers of all units represented by such depiction shall be indicated. Each structure within which any such units are located shall be depicted so as to indicate the exact location of each such unit within the structure.
C. In the case of a condominium located outside Virginia, certain materials may be filed with the application for registration in lieu of plats and plans complying with the provisions of § 55-79.58 of the Code of Virginia. Such materials shall contain, as a minimum, (i) a plat of survey depicting all existing improvements and all improvements which the declarant intends, without condition or limitation to build or place on the condominium and (ii) legally sufficient descriptions of each unit. Any improvements whose completion is subject to conditions or limitations shall be appropriately labeled to indicate that such improvements may not be completed. Unit descriptions may be written or graphic, shall demarcate each unit vertically and, if appropriate, horizontally, and shall indicate each unit's location relative to established points or datum.
D. The plats and plans must bear the form of the certification statement required by § 55-79.58(a) and (b) of the Code of Virginia. However, such certification may appear in a separate document to be recorded with the plats and plans. As stated in 18VAC48-20-130 2 of this chapter, the statement need not be executed prior to recordation.
18VAC48-20-150. Exemption from registration of nonresidential condominiums.
The exemption from registration of condominiums in which all units are restricted to nonresidential use provided in § 55-79.87(a) shall not be deemed to apply to any condominium as to which there is a substantial possibility that a unit therein other than a unit owned by the declarant or the unit owners' association will be used as permanent or temporary living quarters or as a site upon which vehicular or other portable living quarters will be placed and occupied. Residential use for the purposes of these regulations includes transient occupancy.
Part IV
Marketing
18VAC48-20-160. Preregistration offers prohibited.
A. No declarant or individual or entity acting on behalf of the declarant shall offer a condominium unit prior to its registration.
B. No condominium marketing activity shall be deemed an offer unless, by its express terms, it induces, solicits or encourages a prospective purchaser to execute a contract of sale of the condominium unit or lease of a leasehold condominium unit or perform some other act which would create or purport to create a legal or equitable interest in the condominium unit other than a security interest in or a nonbinding reservation of the condominium unit.
18VAC48-20-170. Condominium marketing activities.
Condominium marketing activities shall include every contact for the purpose of promoting disposition of a condominium unit. Such contacts may be personal, by telephone, by mail or by advertisement. A promise, assertion, representation or statement of fact or opinion made in connection with a condominium marketing activity may be oral, written or graphic. With respect to condominiums located outside of Virginia, the application of these regulations is limited to those condominiums for which contracts are executed in Virginia as required by § 55-79.40 B of the Code of Virginia.
18VAC48-20-180. Condominium marketing standards.
A. No promise, assertion, representation or statement of fact or opinion in connection with a condominium marketing activity shall be made which is false, inaccurate or misleading by reason of inclusion of an untrue statement of a material fact or omission of a statement of a material fact relative to the actual or intended characteristics, circumstances or features of the condominium or a condominium unit.
B. No promise, assertion, representation or statement of fact or opinion made in connection with a condominium marketing activity shall indicate that an improvement will be built or placed on the condominium unless the improvement is a proposed improvement within the meaning of 18VAC48-20-130 3 of this chapter; except that, if the condominium is one for which no application for registration has been filed, there shall be no indication that an improvement will be built or placed on the condominium unless the declarant has sufficient financial assets and a bona fide intention to complete the improvement as represented.
C. No promise, assertion, representation or statement of fact or opinion made in connection with a condominium marketing activity and relating to a condominium unit not registered shall, by its express terms, induce, solicit or encourage a prospective purchaser to leave Virginia for the purpose of executing a contract for sale or lease of the condominium unit or performing some other act which would create or purport to create a legal or equitable interest in the condominium unit other than a security interest in or a nonbinding reservation of the condominium unit.
18VAC48-20-190. Offering literature.
A. Offering literature is any written promise, assertion, representation or statement of fact or opinion made in connection with a condominium marketing activity mailed or delivered directly to a specific prospective purchaser, except that information printed in a publication shall not be deemed offering literature solely by virtue of the fact that the publication is mailed or delivered directly to a prospective purchaser.
B. Offering literature mailed or delivered prior to the registration of the condominium which is the subject of the offering literature shall bear a conspicuous legend containing the substance of the following language:
Identification of the condominium has not been registered by the Common Interest Community Board. A condominium unit may be reserved on a nonbinding reservation agreement, but no contract of sale or lease may be entered into prior to registration.
C. Prior to registration a copy of every item of offering literature other than a personal communication shall be filed with the board prior to its use. A personal communication is a communication directed to a particular prospective purchaser which has not been and is not intended to be directed to any other prospective purchaser.
D. The declarant of a condominium shall provide with the application for registration a narrative description of the promotional plan for the condominium.
E. Offering literature or marketing activities violative of the Virginia Fair Housing Law, § 36-96.1 et seq. of the Code of Virginia, and the Virginia Condominium Act, § 55-79.52(c) of the Code of Virginia is prohibited.
F. Offering literature shall indicate that the property being offered is under the condominium form of ownership. The requirement of this subsection is satisfied by including the full name of the condominium in all offering literature.
18VAC48-20-200. Exemption from marketing regulations.
Nothing in 18VAC48-20-160, 18VAC48-20-180 A, B and C, and 18VAC48-20-190 shall apply in the case of a condominium exempted from registration by § 55-79.87 of the Code of Virginia, or condominiums located outside of Virginia for which no contracts are to be signed in Virginia.
Part V
Public Offering Statement
18VAC48-20-210. Scope of public offering statement.
A public offering statement shall make disclosure relative to a single offering and to the entire condominium in which the condominium units being offered are located. Not more than one version of a public offering statement shall be authorized for use or used at any given time with respect to a particular condominium.
18VAC48-20-220. Offering defined.
As used in these condominium regulations, the word "offering" shall refer to the continuing act of the declarant in making condominium units owned by the declarant within a particular condominium available for acquisition by purchasers or, where appropriate, to the aggregate of the condominium units thus made available.
18VAC48-20-230. Preparation of public offering statement.
The public offering statement shall be clear and legible with pages numbered sequentially. A blank cover or a cover bearing identification information only may be used. Except as elsewhere provided, no portion of the public offering statement may be printed in larger, heavier or different color type than the remainder of the public offering statement. The first page of the public offering statement shall be prepared to conform as closely as possible to the specimen appended as Appendix A to this chapter and made a part hereof.
18VAC48-20-240. Nature of information to be included.
A. The provisions of §§ 55-79.90(a) and 55-79.94(a) of the Code of Virginia, and 18VAC48-20-210 through 18VAC48-20-720 of this chapter shall be strictly construed to promote full and accurate disclosure in the public offering statement and, thereby, to protect the interests of purchasers.
B. The requirements for disclosure are not exclusive. In addition to expressly required information, the declarant shall disclose all other available information which may reasonably be expected to affect the decision of the ordinarily prudent purchaser to accept or reject the offer of a condominium unit. The declarant shall disclose any additional information necessary to make the required information not misleading. No information may be presented in such a fashion as to obscure the facts, to encourage a misinterpretation of the facts or otherwise to mislead a purchaser.
C. No information shall be incorporated by reference to an extrinsic source which is not readily available to an ordinary purchaser. Whenever required information is not known or not reasonably available, such fact shall be stated in the public offering statement with a brief explanation. Whenever special circumstances exist which would render required disclosure inaccurate or misleading, the required disclosure shall be modified to accomplish the purpose of the requirement or the disclosure shall be omitted, provided that such modification or omission promotes full and accurate disclosure.
D. Disclosure shall be made of pertinent facts, events, conditions or other states of affairs which the declarant has reason to believe will occur or exist in the future or which the declarant intends to cause to occur or exist in the future. Disclosure relating to future facts, events, conditions or states of affairs shall be limited by the provisions of subsection F hereof.
E. The public offering statement shall be as brief as is consistent with full and accurate disclosure. In no event shall the public offering statement be made so lengthy or detailed as to discourage close examination.
F. Expressions of opinion in the public offering statement shall be deemed inconsistent with full and accurate disclosure unless there is ample foundation in fact for the opinion; provided, however, that this sentence shall not affect in any way the declarant's duty to set forth a projected budget for the condominium's operation.
G. Except for brief excerpts therefrom, the public offering statement shall not incorporate verbatim portions of the condominium instruments or other documents. The purchaser's attention may be directed to pertinent portions of the declaration, bylaws or other documents attached to the public offering statement which are too lengthy to incorporate verbatim.
H. Maps, photographs and drawings may be utilized in the public offering statement, provided that such utilization promotes full and accurate disclosure.
18VAC48-20-250. Readability.
The public offering statement shall be clear and understandable. Determinations as to compliance with the standards of this paragraph are within the exclusive discretion of the board.
18VAC48-20-260. Summary of important considerations.
A. Immediately following the first page and before the table of contents, the public offering statement shall include a summary of important considerations consisting of particularly noteworthy items of disclosure. Certain summary statements are required by subsection D hereof. Other summary statements may be proposed by the declarant or included by order of the board for the purpose of reinforcing the disclosure of significant information not otherwise included in the summary of important considerations. No summary statement shall be included for the sole purpose of enhancing the sales appeal of condominium units.
B. The summary shall be titled as such and shall be introduced by the following statement: "Following are important matters to be considered in acquiring a condominium unit. They are highlights only. The narrative sections should be examined to obtain detailed information." Each summary statement shall include a reference to pertinent portions, if any, of the public offering statement for details respecting the information summarized. Each summary statement, exclusive of any reference to other portions of the public offering statement, shall be limited to not more than three sentences except that the board may, by order, permit or require additional sentences.
C. Whenever the board finds that the significance to purchasers of certain information requires that it be disclosed more conspicuously than by regular presentation in the summary of important considerations, it may provide, by order, that a summary statement of the information shall be underscored, italicized or printed in a larger or heavier or different color type than the remainder of the public offering statement.
D. Summary statements shall be made of the substance of the following facts and circumstances, to the extent that each is applicable. Specific information shall be substituted for the general information indicated by brackets. Appropriate modifications shall be made to reflect facts and circumstances varying from those indicated herein:
1. The condominium will be governed by a unit owners' association. Each unit owner will have a vote on certain decisions of the association and will be bound by all decisions of the association including those with which he disagrees.
2. Certain decisions of the unit owners' association will be made by an executive organ.
3. The expenses of operating the unit owners' association will be paid by the unit owners on the basis of a periodic budget. Each unit owner will pay a periodic assessment. A unit owner cannot reduce the amount of his assessment by refraining from use of the common elements.
4. If a unit owner fails to pay an assessment when due, the unit owners' association will have a lien against his condominium unit. Certain other penalties may be applied.
5. The declarant must pay assessments on unsold condominium units.
6. The declarant, its predecessors or principal officer has undergone a debtor's relief proceeding.
7. The declarant will retain control of the unit owners' association for an initial period.
8. A managing agent will perform the routine operations of the unit owners' association. The managing agent is related to the declarant, director or officer of the unit owners' association.
9. The declarant may rent unsold condominium units. The right of any unit owner to rent his unit is subject to restrictions.
10. The declarant may expand or contract the condominium or convert convertible land or space without the consent of any unit owner.
11. The right of the unit owner to resell his condominium unit is subject to restrictions.
12. The units are restricted to residential use.
13. The unit owner may not alter the structure of his unit or modify the exterior of his unit without the approval of the declarant or unit owners' association.
14. The unit owners' association will obtain certain insurance benefiting the unit owner, but the unit owner should obtain other insurance on his own.
15. The unit owner will pay real estate taxes on his condominium unit.
16. The unit owner's right to bring legal action against the declarant is limited by certain provisions of the purchase contract; specifically the contract requires the unit owner or the association to pay the attorney's fee of the declarant; requires the unit owner to waive trial by jury in any civil action against the declarant.
17. The condominium is (is not) subject to development as a time-share.
18. Marketing and sale of condominium units will be conducted in accordance with the Virginia Fair Housing Law (Code of Virginia § 36-96.1 et seq.) and the Virginia Condominium Act (Code of Virginia § 55-79.52(c)).
18VAC48-20-270. Narrative sections.
The information to be presented in the public offering statement shall be broken down into sections in order to facilitate reading and comprehension. Certain sections are required by 18VAC48-20-280 through 18VAC48-20-430 of this chapter. Supplementary sections may be included whenever necessary to incorporate information which cannot properly be placed within one of the required sections. Supplementary section captions which indicate the nature of the material presented thereunder shall be utilized. The sections may be set out in any order which lends itself to the organized presentation of information. Section captions may be underscored, italicized or printed in larger or heavier or different color type than the remainder of the public offering statement. A table of contents shall be utilized.
18VAC48-20-280. Narrative sections; condominium concept.
The public offering statement shall contain a section captioned "The Condominium Concept." The section shall consist of a brief discussion of the condominium form of ownership. The section shall discuss the distinction among units, common elements and limited common elements, if any, and shall explain ownership of an undivided interest in the common elements. Attention shall be directed to any features of ownership of the condominium units being offered which are different from typical condominium unit ownership.
18VAC48-20-290. Narrative sections; creation of condominium.
The public offering statement shall contain a section captioned "Creation of the Condominium." The section shall briefly explain the manner in which the condominium was or will be created and shall briefly describe each of the condominium instruments, their functions, and the procedure for their amendment. The section shall indicate where each of the condominium instruments or copies thereof may be found. In the case of a condominium located in Virginia or in a jurisdiction having a law similar to § 55-79.96 of the Code of Virginia, the section shall indicate the purchaser will receive copies of the recorded declaration and bylaws, or amendments, as appropriate, within the time provided for in the applicable statute.
18VAC48-20-300. Narrative sections; description of condominium.
A. The public offering statement shall contain a section captioned "Description of the Condominium." The section shall contain a narrative description of the condominium. The description shall include statements of (i) the land area of the condominium; (ii) the number of units in the condominium; (iii) the number of units in the offering; (iv) the number of units in the condominium planned to be rented; and (v) whether at the time of registration the declarant intends to sell more than 20% of the units to persons who do not intend to occupy the units as their primary residence.
B. If the condominium is contractable, expandable or includes convertible land or space, the section shall contain a brief description of each such feature including the land area and the maximum number of units or maximum number of units per acre which may be added, withdrawn or converted, as the case may be, together with a statement of the declarant's plans for the implementation of each such feature. In the case of a contractable or expandable condominium, the section shall contain the substance of the following statement: "The construction and development of the condominium may be abandoned or altered, at the declarant's option, short of completion and land or buildings originally intended for condominium development may be put to other uses or sold." In the case of a condominium including convertible land, the section shall contain the substance of the following statements: "Until such time as the declarant converts the convertible land into units or limited common elements, the declarant is required by the Virginia Condominium Act to pay for the upkeep of the convertible land. Once the convertible land has been converted, maintenance and other financial responsibilities associated with the land so designated become the responsibility of the unit owners and, therefore, may be reflected in the periodic assessment for the condominium." If the common expense assessments are expected to increase should convertible land be converted, this section shall also disclose an estimate of the approximate percentage by which such assessments are expected to increase by reason of any such conversion.
C. The section shall state whether or not the units are restricted solely to residential use and shall state where this and other use and occupancy restrictions are to be found in the condominium instruments.
18VAC48-20-310. Narrative section; individual units.
The public offering statement shall contain a section captioned "Individual Units." The section shall contain a general description of the various type units being offered, together with the dates on which substantial completion of unfinished units is anticipated. The section shall discuss what restrictions, if any, exist as to changes unit owners may make to the structure or exterior of their units, whether or not said exterior is a portion of the common elements.
18VAC48-20-320. Narrative sections; common elements.
A. The public offering statement shall contain a section captioned "Common Elements." The section shall contain a general description of the common elements.
B. A statement of the anticipated completion dates of unfinished common elements shall be included except that no such statement shall be necessary with respect to common elements which are completed or expected to be substantially complete when the units are completed.
C. With respect to common elements which the declarant intends to build or place on the condominium but which are not expected to be substantially complete when the units are completed, the section shall state: (i) In the case of a condominium located in Virginia, the nature, source and extent of the obligation to complete such common elements which the declarant has incurred or intends to incur upon recordation of the condominium instruments pursuant to §§ 55-79.58(a) and 55-79.67(a)(1) of the Code of Virginia and applicable provisions of the condominium instruments and pursuant to § 55-79.58:1 of the Code of Virginia, the declarant has filed with the Common Interest Community Board a bond to insure completion of improvements to the common elements which the declarant has incurred or intends to incur upon recordation of the condominium instruments; and (ii) in the case of a condominium located outside of Virginia, the nature, source and extent of the obligation to complete such common elements which the declarant has incurred or intends to incur under the law of the jurisdiction in which the condominium is located.
D. The section shall describe any limited common elements which are assigned or which may be assigned and shall indicate the reservation of exclusive use. In the case of limited common elements which may be assigned, the section shall state the manner of such assignment or reassignment.
E. The section shall indicate the availability of vehicular parking spaces including the number of spaces available per unit and restrictions on or charges for the use of spaces.
18VAC48-20-330. Narrative sections; declarant.
A. The public offering statement shall contain a section captioned "The Declarant." The section shall contain a brief history of the declarant with emphasis on its experience in condominium development.
B. The following information shall be stated with regard to persons immediately responsible for the development of the condominium: (i) name; (ii) length of time associated with the declarant; (iii) role in the development of the condominium; and (iv) experience in real estate development. If different from the persons immediately responsible for the development of the condominium, the principal officers of the declarant shall be identified.
C. If the declarant or its parent or predecessor organization has, during the preceding 10 years, been adjudicated a bankrupt or has undergone any proceeding for the relief of debtors, such fact or facts shall be stated. If any of the persons identified pursuant to subsection B hereof has, during the preceding three years, been adjudicated a bankrupt or undergone any proceeding for the relief of debtors, such fact or facts shall be stated.
D. The section shall indicate any final action taken by an administrative agency or civil or criminal court which reflects adversely upon the performance of the declarant as a developer of real estate projects. The section shall also indicate any current or past proceedings brought against the declarant by any condominium unit owners' association or by its executive organ or any managing agent on behalf of such association or which has been certified as a class action on behalf of some or all of the unit owners. For the purposes of the previous sentence with respect to past proceedings, if the ultimate disposition of those proceedings is one which reflects adversely upon the performance of the declarant, that disposition shall be disclosed. The board has the sole discretion to require additional disclosure of any legal proceedings where it finds such disclosure necessary to assure full and accurate disclosure.
18VAC48-20-340. Narrative sections; terms of offering.
A. The public offering statement shall contain a section captioned "Terms of the Offering." The section shall discuss the expenses to be borne by a purchaser in acquiring a condominium unit and present information regarding the settlement of purchase agreements as provided in subsections B through G hereof.
B. The section shall indicate the offering prices for condominium units or a price range for condominium units, if either is established.
C. The section shall set forth the significant terms of any financing offered by or through the declarant to purchasers. Such discussion shall include the substance of the following statement: "Financing is subject to additional terms and conditions stated in the loan commitment or instruments."
D. The section shall discuss in detail any settlement costs which are not normal for residential real estate transactions including, without limitation, any contribution to the initial or working capital of the unit owners' association to be paid by a purchaser at settlement.
E. The section shall discuss any penalties or forfeitures to be incurred by a purchaser upon default in performance of a purchase agreement which are not normal for residential real estate transactions. Penalties or forfeitures to be discussed include, without limitation, the declarant's right to retain sums deposited in connection with a purchase agreement in the event of a refusal by a lending institution to provide financing to a purchaser who has made proper application for same.
F. The section shall discuss the right of the declarant to cancel a purchase agreement upon failure of the declarant to obtain purchase agreements on a given number or percentage of condominium units being offered or upon failure of the declarant to meet other conditions precedent to obtaining necessary financing.
G. The section shall set forth any provisions in the contract which require the unit owner or the association to pay the attorney's fee of the declarant or require the unit owner to waive trial by jury in any civil action against the declarant and the section shall set forth the paragraph or section and page number of the contract where such provision is located.
18VAC48-20-350. Narrative sections; encumbrances.
A. The public offering statement shall contain a section captioned "Encumbrances." The section shall include the significant terms of any encumbrances, easements, liens and matters of title affecting the condominium as provided in subsections B through I hereof.
B. Except to the extent that such encumbrances are required to be satisfied or released by § 55-79.46(a) of the Code of Virginia, or a similar law, the section shall describe every mortgage, deed of trust, other perfected lien or choate mechanics or materialmen's lien affecting all or any portion of the condominium other than those placed on condominium units by their purchasers or owners. Such description shall identify the lender secured or the lienholder shall state the nature and original amount of the obligation secured, shall identify the party having primary responsibility for performance of the obligation secured and shall indicate the practical effect upon unit owners of failure of said party to perform the obligation.
C. Normal easements for utilities, municipal rights-of-way and emergency access shall be described only as such, without reference to ownership, location or other details.
D. Easements reserved to the declarant to facilitate conversion, expansion or sales shall be briefly described.
E. Easements reserved to the declarant or to the unit owners' association or its representatives or agents for access to units shall be briefly described. In the event that access to a unit may be had without notice to the unit owner, such fact shall be stated.
F. Easements across the condominium reserved to the owners or occupants of land located in the vicinity of the condominium including, without limitation, easements for the use of recreational areas shall be briefly described.
G. Covenants, servitudes or other devices which create an actual or potential restriction on the right of any unit owner to use and enjoy his unit or any portion of the common elements other than limited common elements shall be briefly described.
H. Any matter of title which is not otherwise required to be disclosed by the provisions of this section and which has or may have a substantial adverse impact upon units owners' interests in the condominium shall be described. Under normal circumstances, an easement for encroachments and an easement running in favor of unit owners for ingress and egress across the common elements shall be deemed not to have a substantial adverse impact upon unit owners' interest in the condominium.
I. The section need not include any information required to be disclosed by 18VAC48-20-300 C, 18VAC48-20-310, or 18VAC48-20-360 of this chapter.
18VAC48-20-360. Narrative sections; restrictions on transfer.
The public offering statement shall include a section captioned "Restrictions on Transfer." The section shall describe and explain any rights of first refusal, preemptive rights, limitations on leasing or other restraints on free alienability created by the condominium instruments or the rules and regulations of the unit owners' association and which affect the unit owners' right to resell, lease or otherwise transfer an interest in his condominium unit.
18VAC48-20-370. Narrative sections; unit owners' association.
A. The public offering statement shall contain a section captioned "Unit Owners' Association." The section shall discuss the manner in which the condominium is governed and administered and shall include the information required by subsections B through J hereof.
B. The section shall state in summary fashion the functions of the unit owners' association.
C. The section shall describe the organizational structure of the unit owners' association. Such description shall indicate (i) the existence of or provision for an executive organ, officers and managing agent, if any; (ii) the relationships between such persons or bodies; (iii) the manner of their election or appointment; and (iv) the assignment or delegation of responsibility for the performance of the functions of the unit owners' association.
D. The section shall describe the allocation of voting power among the unit owners.
E. The section shall discuss any retention by the declarant of control over the unit owners' association.
F. The managing agent, if any, shall be identified. If a managing agent is to be employed in the future, the criteria, if any, for selection of the managing agent shall be briefly stated. The section shall indicate any relationship between the managing agent and the declarant or a member of the executive organ or an officer of the unit owners' association. The duration of any management agreement shall be stated.
G. Except to the extent otherwise disclosed in connection with discussion of a management agreement, the significant terms of any lease of recreational areas or similar contract or agreement affecting the use, maintenance or access of all or any part of the condominium shall be stated. The section shall include a brief narrative statement of the effect of each such agreement upon a purchaser.
H. Rules and regulations of the unit owners' association and the authority to promulgate rules and regulations shall be discussed. Particular provisions of the rules and regulations shall not be discussed except as required by other provisions of these condominium regulations. The purchaser's attention shall be directed to the copy of rules and regulations, if any, attached to the public offering statement.
I. Any standing committees established or to be established to perform functions of the unit owners' association shall be discussed. Such committees include, without limitation, architectural control committees and committees having the authority to interpret condominium instruments, rules and regulations or other operative provisions.
J. Unless required to be disclosed by 18VAC48-20-350 E of this chapter any power of the declarant or of the unit owners' association or its representatives or agents to enter units shall be discussed. To the extent each is applicable, the following facts shall be stated: (i) a unit may be entered without notice to the unit owner; (ii) the declarant or the unit owners' association or its representatives or agents are empowered to take actions or perform work in a unit without the consent of the unit owner; and (iii) the unit owner may be required to bear the costs of actions so taken or work so performed.
18VAC48-20-380. Narrative sections; surrounding area.
The public offering statement shall contain a section captioned "Surrounding Area." The section shall briefly describe the zoning of the immediate neighborhood of the condominium. The section may indicate the existence and proximity of community facilities available to unit owners.
18VAC48-20-390. Narrative sections; financial matters.
A. The public offering statement shall contain a section captioned "Financial Matters." The section shall discuss the expenses incident to the ownership of a condominium unit, excluding certain taxes, in the manner provided in subsections B through I hereof.
B. The section shall distinguish, in general terms, the following categories of costs of operation, maintenance, repair and replacement of various portions of the condominium: (i) common expenses apportioned among and assessed to all of the condominium units pursuant to § 55-79.83(c) of the Code of Virginia or similar law or condominium instrument provision (referred to elsewhere in these regulations as "regular common expenses"); (ii) common expenses, if any, apportioned among and assessed to less than all of the condominium units pursuant to § 55-79.83(a) and (b) of the Code of Virginia or similar law or condominium instrument provisions; and (iii) costs borne directly by individual unit owners. The section need not discuss taxes assessed against individual condominium units and payable directly by their owners.
C. A projected budget shall be prepared showing regular common expenses to be assessed for the first year of the condominium's operation or, if different, the latest year for which projections are available; provided, however, that in no event shall the year for which the budget is projected have commenced more than six months prior to the date application for registration is filed. The projected budget shall be attached to the public offering statement as an exhibit and the section shall direct the purchaser's attention thereto. The section shall describe the manner in which the projected budget is established.
D. The section shall describe the manner in which regular common expenses are apportioned among and assessed to the condominium units. The section shall include the substance of the following statement, if applicable: "A unit owner cannot obtain a reduction of the regular common expenses assessed against his unit by refraining from use of any of the common elements."
E. The section shall describe budget provisions for reserves for capital expenditures and for contingencies, if any.
F. The section shall describe provisions for special assessments to be levied in the event that budgeted assessments provide insufficient funds for operation of the unit owners' association.
G. The section shall discuss any common expenses actually planned to be specially assessed pursuant to § 55-79.83(a) and (b) of the Code of Virginia or similar law or condominium instrument provisions.
H. The section shall indicate any fee, rental or other charge to be payable by unit owners other than through common expense assessments to any party for use of the common elements or for use of recreational or parking facilities in the vicinity of the condominium. As an exception to the provisions of this subsection, the section need not discuss any fees provided for in §§ 55-79.84(h) and 55-79.85 of the Code of Virginia, or similar laws or condominium instrument provisions or any costs for certificates for resale.
I. The section shall discuss the effect of failure of a unit owner to pay when due assessments levied against his condominium unit. Such discussion shall indicate provisions for penalties to be applied in the case of overdue assessments and for acceleration of unpaid assessments. The section shall indicate the existence of a lien for unpaid assessments and where applicable the bond conditioned on the payment of assessments filed with the board in accordance with § 55-79.84:1 of the Code of Virginia. The section shall include, to the extent applicable, the substance of the following statement: "The unit owners' association may obtain payment of overdue assessments by foreclosure of the lien resulting in a forced sale of the condominium unit or by suing the unit owner."
18VAC48-20-400. Narrative sections; insurance.
The public offering statement shall contain a section captioned "Insurance." The section shall describe generally the insurance on the condominium to be maintained by the unit owners' association. The section shall state, with respect to such insurance, each of the following circumstances, to the extent applicable: (i) property damage coverage will not insure personal property belonging to unit owners; (ii) property damage coverage will not insure improvements to a unit which increase its value beyond the limits of coverage provided in the unit owners' association's policy, and (iii) liability coverage will not insure against liability arising from an accident or injury occurring within a unit or as a result of the act or negligence of a unit owner. The section shall indicate any conditions imposed by the condominium instruments or rules and regulations to which insurance obtained directly by unit owners will be subject. Such indication may be made by reference to pertinent provisions of the condominium instruments or rules and regulations.
18VAC48-20-410. Narrative sections; taxes.
A. The public offering statement shall contain a section captioned "Taxes." The section shall describe all existing or proposed taxes to be levied against condominium units individually including, without limitation, real property taxes, sewer connection charges and other special assessments.
B. With respect to real property taxes, the section shall state the tax rate currently in effect. The section shall also state a procedure or formula by means of which the taxes may be estimated.
C. With respect to other taxes, the section shall describe each tax in sufficient detail as to indicate the time at which the tax will be levied and the actual or estimated amount to be levied.
18VAC48-20-420. Narrative sections; governmental approval.
The public offering statement shall contain a section captioned "Governmental Approval." The section shall discuss approval of a site plan and issuance of a building permit by appropriate governmental authorities. The section shall also discuss compliance with all zoning ordinances, building codes, housing codes and similar laws affecting the condominium.
18VAC48-20-430. Narrative sections; warranties.
The public offering statement shall contain a section captioned "Warranties." The section shall describe any warranties provided by or through the declarant on the units or the common elements. If any such warranty is different from the warranty provided by § 55-79.79(b) of the Code of Virginia or a similar applicable law, the section shall include the substance of the following statement: "Nothing contained in the warranty provided by the declarant shall limit the protection afforded by the statutory warranty."
18VAC48-20-440. Documents to be included.
Copies of the following documents shall be attached as exhibits to the public offering statement: (i) the declaration; (ii) the bylaws; (iii) the projected budget; (iv) rules and regulations of the unit owners' association; (v) any management contract; (vi) any lease of recreational areas; and (vii) any similar contract or agreement affecting the use, maintenance or access of all or any part of the condominium. Other pertinent documents may be attached to the public offering statement including, without limitation, a purchase agreement, a certificate of warranty, a warranty limitation agreement and a depiction of unit layouts.
18VAC48-20-450. Documents from other jurisdictions.
A. A substituted disclosure document is a document originally prepared in compliance with the laws of another jurisdiction and modified in accordance with the provisions of this paragraph in order to fulfill the disclosure requirements established for public offering statements by § 55-79.90(a) and, if applicable, § 55-79.94(a) of the Code of Virginia. A substituted disclosure document shall not be employed in the case of a condominium located in Virginia.
B. The substituted disclosure document shall be prepared by deleting from the original disclosure document: (i) references to any governmental agency of another jurisdiction to which application has been made or will be made for registration or related action; (ii) references to the action of such governmental agency relative to the condominium; (iii) statements of the legal effect in another jurisdiction of delivery, failure to deliver, acknowledgement of receipt or related events involving the disclosure document; (iv) the effective date or dates in another jurisdiction of the disclosure document; and (v) all other information which is untrue, inaccurate or misleading with respect to marketing, offers or disposition of condominium units in Virginia.
C. The substituted disclosure document shall incorporate all information not otherwise included which is necessary to effect fully and accurately the disclosures required by §§ 55-79.90(a) and, if applicable, 55-79.94(a) of the Code of Virginia. The substituted disclosure document shall clearly explain any nomenclature which is different from the definitions provided in § 55-79.41of the Code of Virginia or which, for any other reason, may confuse purchasers in Virginia. Any information not required by §§ 55-79.90(a) and 55-79.94(a) of the Code of Virginia may be deleted, provided that such deletion does not render the required information misleading.
D. The first page of the substituted disclosure document shall be prepared to conform as closely as possible to the specimen appended as Appendix A to these regulations and made a part hereof. The three blanks in the first sentence of the third paragraph of the specimen shall be completed by insertion of the following information: (i) the designation by which the original disclosure document is identified in the jurisdiction pursuant to whose laws it was prepared; (ii) the governmental agency of such other jurisdiction with which the original disclosure document is or will be filed; and (iii) the jurisdiction of such filing.
E. No portion of the substituted disclosure document may be underscored, italicized or printed in larger, heavier or different color type than the remainder of the substituted disclosure document, except: (i) as required by subsection D hereof; (ii) as required or permitted in the original disclosure document by the laws of the jurisdiction pursuant to which it was prepared; and (iii) as provided by order of the board in cases in which it finds that the significance to purchasers of certain information requires that such information be disclosed more conspicuously than by regular presentation in the substituted disclosure document.
F. The provisions of §§ 55-79.88(c), 55-79.90, and 55-79.94(a) of the Code of Virginia and 18VAC48-20-210, 18VAC48-20-230, 18VAC48-20-240, 18VAC48-20-250, 18VAC48-20-440 and 18VAC48-20-450 of this chapter shall apply to substituted disclosure documents in the same manner and to the same extent that they apply to public offering statements.
18VAC48-20-460. Condominium securities.
A prospectus used in lieu of a public offering statement shall contain or have attached thereto copies of documents, other than the projected budget required to be attached to a public offering statement by 18VAC48-20-440 of this chapter. Such prospectus shall be deemed to satisfy all of the disclosure requirements of 18VAC48-20-260 through 18VAC48-20-440 and Part VII of this chapter. In the case of a conversion condominium, the prospectus shall have attached thereto, in suitable form, the information required by 18VAC48-20-500, subsections C and D of 18VAC48-20-510 and 18VAC48-20-520 of this chapter to be disclosed in public offering statements for conversion condominiums. The provisions of § 55-79.88(c) of the Code of Virginia shall apply to the delivery of the prospectus in the same manner and to the same extent that they apply to the delivery of a public offering statement.
Part VI
Conversion Condominiums
18VAC48-20-470. Public offering statement for conversion condominium; general instructions.
The public offering statement for a conversion condominium shall conform in all respects to the requirements of 18VAC48-20-210 through 18VAC48-20-460 and Part VII of this chapter. In addition, the public offering statement for a conversion condominium shall (i) contain special disclosures in the narrative sections captioned "Description of the Condominium," "Terms of the Offering" and "Financial Matters"; and (ii) incorporate narrative sections captioned "Present Condition of the Condominium" and "Replacement Requirements." Provisions for such additional disclosure are set forth in 18VAC48-20-490 through 18VAC48-20-520 of this chapter.
18VAC48-20-480. Public offering statement for conversion condominium; special definitions.
As used in this paragraph and in 18VAC48-20-490 through 18VAC48-20-520 of this chapter:
"Class of physical assets" means two or more physical assets which are substantially alike in function, manufacture, date of construction or installation and history of use and maintenance.
"Expected useful life" means the estimated number of years from the date on which such estimate is made until the date when, because of the effects of time, weather, stress or wear, a physical asset will become incapable of performing its intended function and will have to be replaced.
"Major utility installation" means a utility installation or portion thereof which is a common element or serves more than one unit.
"Physical asset" is a generic term and means either a structural component or a major utility installation.
"Present condition" means condition as of the date of the inspection by means of which condition is determined.
"Replacement cost" means the expenditure which would be necessary to replace a physical asset with an identical or substantially equivalent physical asset as of the date on which replacement cost is determined and includes all costs of removing the physical asset to be replaced, of obtaining its replacement and of erecting or installing the replacement.
"Structural component" means a component constituting any portion of the structure of a unit or common element and in which a defect would reduce the stability or safety of all or a part of the structure below accepted standards or restrict the normal intended use of all or a part of the structure.
"Structural defect" shall have the meaning given in § 55-79.79(b) of the Code of Virginia.
18VAC48-20-490. Description of conversion condominium.
In addition to the information required by 18VAC48-20-300 of this chapter, the section captioned "Description of the Condominium" shall indicate that the condominium is a conversion condominium. The term conversion condominium shall be defined and the particular circumstances which bring the condominium within the definition shall be stated. The nature and inception date of prior occupancy of the property being converted shall be stated.
18VAC48-20-500. Financial matters, conversion condominium.
A. The provisions for capital reserves described in the section captioned "Financial Matters" shall be supplemented by the information set forth in subsections B and C hereof.
B. The section shall state the aggregate replacement cost of all physical assets whose replacement costs will constitute regular common expenses and whose expected useful lives are 10 years or less. For the purposes of this subsection, an expected useful life which is stated as being within a range of years pursuant to 18VAC48-20-520 E of this chapter shall be deemed to be 10 years or less, if the lower limit of such range is 10 years or less. The total common expense assessments per unit which would be necessary in order to accumulate an amount of capital reserves equal to such aggregate replacement cost shall be stated.
C. The section shall state the amount of capital reserves which will be accumulated by the unit owners' association during the period of declarant's control together with any provisions of the condominium instruments specifying the rate at which reserves are to be accumulated thereafter. If any part of the capital reserves will or may be obtained other than through regular common expense assessments, such fact shall be stated.
D. The actual expenditures made over a three-year period on operation, maintenance, repair or other upkeep of the property prior to its conversion to condominium shall be set forth in tabular form as an exhibit immediately preceding or following the budget attached to the public offering statement pursuant to 18VAC48-20-390 C of this chapter. Distinction shall be made between expenditures which would have constituted regular common expenses and expenditures which would have been borne by unit owners individually if the property had been converted to condominium prior to the commencement of the three-year period. To the extent that it is impossible or impracticable to so distinguish the expenditures it shall be assumed that they would have constituted regular common expenses.
Both types of expenditures shall be cumulatively broken down on a per unit basis in the same proportion that common expenses are or will actually be assessed against the condominium units. The three-year period to which this subsection refers shall be the most recent three-year period prior to application for registration during which the property was occupied and for which expenditure information is available. The expenditure information shall indicate the years for which expenditures are stated. If any portion of the property being converted to condominium was not occupied for the full three-year period, expenditure information shall be set forth for the maximum period the property was occupied. The "Financial Matters" section shall direct the purchaser's attention to the expenditure information.
18VAC48-20-510. Present condition of conversion condominium.
A. The section captioned "Present Condition of the Condominium" shall contain a statement of the approximate dates of original construction or installation of all physical assets in the condominium. A single construction or installation date may be stated for all of the physical assets: (i) in the condominium; (ii) within a distinctly identifiable portion of the condominium; or (iii) within a distinctly identifiable category of physical assets. A statement made pursuant to the preceding sentence shall include a separate reference to the construction or installation date of any physical asset within a stated group of physical assets which was constructed or installed significantly earlier than the construction or installation date indicated for the group generally. No statement shall be made that a physical asset or portion thereof has been repaired, altered, improved or replaced subsequent to its construction or installation unless the approximate date, nature and extent of such repair, alteration, improvement or replacement is also stated.
B. Subject to the exceptions provided in subsections D, E and F hereof, the section captioned "Present Condition of the Condominium" shall contain a description of the present condition of all physical assets within the condominium. The description of present condition shall disclose all structural defects and incapacities of major utility installations to perform their intended functions as would be observable, detectable or deducible by means of standard inspection and investigative techniques employed by architects or professional engineers, as the case may be.
C. The section shall indicate the dates of inspection by means of which the described present condition was determined; provided, however, that such inspections shall have been conducted not more than one year prior to the date of filing the application for registration. The section shall identify the party or parties by whom present condition was ascertained and shall indicate the relationship of such party or parties to the declarant.
D. A single statement of the present condition of a class of physical assets shall suffice to disclose the present condition of each physical asset within the class; provided, however, that, unless subsection F hereof applies, such statement shall include a separate reference to the present condition of any physical asset within the class which is significantly different from the present condition indicated for the class generally.
E. The description of present condition may include a statement that all structural components in the condominium or in a distinctly identifiable portion thereof are in sound condition except those for which structural defects are noted.
F. In a case in which there are numerous physical assets within a class of physical assets and inspection of each such physical asset is impracticable, the description of present condition of all the physical assets within the class may be based upon an inspection of a number of them selected at random, provided that the number selected is large enough to yield a reasonably reliable sample and that the total number of physical assets within the class and the number selected are disclosed.
18VAC48-20-520. Replacement requirements in conversion condominium.
A. Subject to the exceptions provided in subsections B and H hereof, the section captioned "Replacement Requirements" shall state the expected useful lives of all physical assets in the condominium. The section shall state that expected useful lives run from the date of the inspection by means of which the expected useful lives were determined. Such inspection date shall be stated.
B. A single statement of the expected useful life of a class of physical assets shall suffice to disclose the expected useful life of each physical asset within the class; provided, however, that such statement shall include a separate reference to the expected useful life of any physical asset within such class which is significantly shorter than the expected useful life indicated for the class generally.
C. An expected useful life may be qualified. A qualified expected useful life is an expected useful life expressly conditioned upon a given use or level of maintenance or other factor affecting longevity. No use, level of maintenance or other factor affecting longevity shall be stated as a qualification unless such use, level of maintenance or factor affecting longevity is normal or reasonably anticipated for the physical asset involved. If appropriate, an expected useful life may be stated as being indefinite, subject to the stated qualification that the physical asset involved must be properly used and maintained. An expected useful life may be stated as being within a range of years, provided that the range is not so broad as to render the statement meaningless. In no event shall the number of years constituting the lower limit of such range be less than two-thirds of the number of years constituting the upper limit.
D. Subject to the exceptions provided in subsections E and H hereof, the section captioned "Replacement Requirements" shall state the replacement costs of all physical assets in the condominium including those whose expected useful lives are stated as being indefinite.
E. A statement of the replacement cost of a representative member of a class of physical assets shall suffice to disclose the replacement cost of each physical asset within the class; provided, however, that such statement shall include a separate reference to the replacement cost of any physical asset within the class which is significantly greater than the replacement cost indicated for the representative member of the class.
F. Distinction shall be made between replacement costs which will be common expenses and replacement costs which will be borne by unit owners individually. The latter type of replacement costs shall be broken down on a per unit basis. The purchaser's attention shall be directed to the "Financial Matters" section for an indication of the amount of the former type or replacement costs.
G. In any case in which the replacement cost of a physical asset may vary depending upon the circumstances surrounding its replacement, the stated replacement cost shall reflect the circumstances under which replacement will most probably be undertaken.
H. A single expected useful life and an aggregate replacement cost may be stated for all of the structural components of a building or structure which have both (i) the same expected useful lives and (ii) replacement costs which will constitute regular common expenses. A statement made pursuant to the preceding sentence shall be accompanied by statements of the expected useful lives and replacement costs, stated on a per unit basis, of all of the structural components of the building or structure whose expected useful lives differ from the general expected useful life or whose replacement costs will be borne by unit owners individually.
18VAC48-20-530. Notice to tenants.
No notice to terminate a tenancy provided for by § 55-79.94(b) of the Code of Virginia shall be given prior to the registration of the condominium unit as to which the tenancy is to be terminated.
Part VII
Time-Share Condominiums
18VAC48-20-540. Public offering statement for time-share condominiums; general instructions.
This Part VII of the Condominium Regulations applies to those property developments in which purchasers are offered both condominium and time-share interests. The developer of a time-share condominium shall prepare one public offering statement which complies with the requirements of this Part VII even though the developer may be required to register under both the Condominium Act (§ 55-79.39 et seq. of the Code of Virginia) and Real Estate Time-Share Act (§ 55-360 et seq. of the Code of Virginia).
The public offering statement for a time-share condominium shall conform in all respects to the requirements of 18VAC48-20-210 and 18VAC48-20-230 through 18VAC48-20-460 of this chapter. In addition, the public offering statement for a time-share condominium shall (i) contain special disclosures in the narrative sections captioned "Condominium Concept," "Description of Condominium," "Declarant," "Terms of Offering," "Encumbrances," "Unit Owners' Association," "Financial Matters," "Insurance," and "Taxes," and (ii) contain a narrative section entitled "Exchange Program."
18VAC48-20-550. Summary of important considerations.
In addition to the information required by 18VAC48-20-260 of this chapter in the case of a time-share program, summary statements shall be made of the substance of the following facts and circumstances. Specific information shall be substituted for the general information indicated by brackets. Appropriate modifications shall be made to reflect facts and circumstances varying from those indicated herein:
1. The time-share program will [will not] be governed by a time-share owners' association.
2. Decisions affecting the time-share project will be made by the developer.
3. Each time-share owner cannot reduce the amount of his assessment by refraining from use of his time-share or the projects' facilities.
4. If a time-share owner fails to pay an assessment when due, the developer may impose certain sanctions or penalties, including the forfeiture of the time-share.
5. The developer, its principals, officers, directors, partners, or trustees have undergone [a debtor's relief proceeding].
6. A managing agent may perform routine operations for the operation, maintenance and upkeep of the time-share project, as determined by the developer. The managing agent is [affiliated with] the [developer, or a director or officer thereof].
7. The developer may rent on a transient basis, unsold time-shares. The right of a time-share use owner to rent his time-share is subject to [restrictions].
8. The right of a time-share owner to resell his time-share is subject to [restrictions].
9. The time-shares are restricted to residential use.
10. The time-share owner may not alter the structure or exterior of the unit in which his time-share is located.
11. The developer will obtain certain insurance benefiting the time-share use owner, but the time-share use owner should obtain additional insurance on his own.
12. The time-share owner may be required to pay applicable taxes imposed on the project similar in scope and design to taxes applicable to hotels, motels or other transient type accommodations.
13. Marketing and sale of time-shares will be conducted in accordance with Virginia Fair Housing Law (§ 36-96.1 et seq. of the Code of Virginia).
14. A time-share purchaser is required to make certain disclosures to purchasers in the resale of his time-share.
18VAC48-20-560. Condominium concept, time-share condominium.
In addition to the information required by 18VAC48-20-280 of this chapter, this section shall consist of discussion of the time-share form of ownership and shall include a detailed explanation of the type of time-share arrangement employed in the project.
18VAC48-20-570. Description of condominium, time share condominium.
In addition to the information required by 18VAC48-20-300 of this chapter, this section shall consist of a general description of the time-share program, the units, amenities and type of time-shares being made available to purchasers. The section shall include, without limitation, statements indicating:
1. The land area of the time-share project;
2. The number of units in the project;
3. The number of units in the project to be organized on a time-share basis;
4. An identification of units that are subject to time-sharing and the type of time-shares being offered;
5. The duration of the time-shares;
6. The different types of units available;
7. Provisions, if any, that have been made for public utilities in the time-share project, including water, electricity, telephone, and sewerage facilities;
8. Restrictions, if any, as to what changes a time-share owner may make to his unit in which his time-share is located; and
9. Whether or not the units are restricted solely to residential use.
18VAC48-20-580. Declarant/developer, time-share condominium.
In addition to the information required by 18VAC48-20-330 of this chapter, the following information shall be stated with regard to every director, partner or trustee of the declarant/developer: (i) name and address; and (ii) principal occupation. The name and address of each person owning or controlling an interest of 20% or more in the time-share project shall also be indicated.
18VAC48-20-590. Terms of offering, time-share condominium.
In addition to the information required by 18VAC48-20-340 A of this chapter, this section shall set forth provisions with respect to the purchaser's right to cancel his purchase contract. Such disclosure shall be consistent with the applicable statutory provision, § 55-79.88(c) or § 55-376 of the Code of Virginia. Special escrow requirements of § 55-375 of the Code of Virginia shall be likewise described in this section.
18VAC48-20-600. Encumbrances, time-share condominium.
In addition to the information required by 18VAC48-20-350 of this chapter, regardless of the form of time-share project, the section shall describe the extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other owners of the same unit. The section shall discuss the consequences that the filing of federal tax liens would have on the project.
18VAC48-20-610. Unit owners' association, time-share condominium.
A. In addition to the information required by 18VAC48-20-370 of this chapter, this section shall contain either a section captioned "Administration of Time-Share Estate Program" or a section captioned "Administration of Time-Share Use Program," depending upon the form of time-shares being offered by the developer. The section shall discuss the manner in which the time-share program will be governed and administered.
B. "Administration of time-share estate program."
1. The section shall describe the functions and the organization's structure of the time-share estate owners' association formed pursuant to the Virginia Nonstock Corporation Act. The description shall indicate:
a. The existence or provisions for a board of directors and officers;
b. The manner of their election or appointment;
c. The assignment or delegation of responsibility for performance of the functions of the unit owners' association; and
d. Those items outlined in § 55-368, numbered 2 through 10, of the Code of Virginia.
2. The section shall describe the allocation of voting power among the time-share estate owners and will explain how votes will be cast. Any provision in the time-share instruments for regular meetings of the estate owners shall be mentioned.
3. The significant terms of any lease of recreational areas or similar contract or agreement affecting the use, maintenance or access of all or any part of the time-share shall be stated. A brief narrative statement of the effect of each of any such agreement shall be included.
4. Rules and regulations for the use, enjoyment, and occupancy of units, and the authority to promulgate and amend such rules shall be discussed. Included shall be a description of the method, if any, to be employed to assign or reserve occupancy periods for the time-share owners. Methods for providing alternate use periods or monetary compensation to a time-share owner if his contracted-for unit cannot be made available for the period to which the owner is entitled by schedule or by confirmed reservation shall be discussed.
5. Any standing committees established or to be established to perform functions of the time-share estate owners' association shall be discussed. Such committees include, without limitation, executive committees, architectural control committees and committees having the authority to interpret time-share instruments or rules and regulations.
6. Any power of the developer or of the time-share estate owners' association to enter units shall be discussed. To the extent each is applicable, the following facts shall be stated:
a. A unit may be entered without notice to the time-share owners;
b. The developer or representatives of the time-share estate owners' association are empowered to take actions or perform work in a unit without the consent of the units owners; and
c. The time-share owners may be required to bear the costs of actions so taken or work so performed.
7. The section shall describe any routine janitorial procedures that are to occur between occupancy periods of time-share owners, as well as any maintenance program that is to take place on an annual or semi-annual basis.
8. The managing agent, if any, shall be identified. If a managing agent is to be employed in the future, the criteria, if any, for selection of the managing agent shall be briefly stated. The section shall indicate any relationship between the managing agent and the developer or a member of the board of directors or an officer of the time-share estate owners' association. The duration of any management agreement shall be stated.
9. The section shall discuss any retention by the developer of control over the time-share estate owners' association. The association's power to pass special assessments against and raise the annual assessments of the time-share owners upon the termination of the developer control shall also be discussed.
C. "Administration of time-share use program." The section shall provide the information required by § 55-371 of the Code of Virginia.
18VAC48-20-620. Financial matters, time-share condominium.
A. In addition to the information required by 18VAC48-20-390 of this chapter, this section shall contain either a section captioned "Finances of Time Share Estate Ownership" or a section captioned "Finances of Time-Share Use Ownership," depending upon the form of time-share development used in the projects. The section shall discuss the expenses incident to the ownership of a time-share in the manner provided in subsections B through H hereof.
B. The section shall describe the nature of the costs and expenses of operating the time-share program and shall distinguish between those to be paid by the developer and those to be paid by the time-share owners. The section shall explain how the responsibilities for payment of operating costs will be apportioned among the time-share owners. In the case of a time-share estate program, this section shall describe and distinguish between developer expenses and time-share estate occupancy expenses as well as the meaning of the "Developer Control Period" as outlined in § 55-369 of the Code of Virginia, and when it commences and ends. Mention shall be made of the developer's right to collect a periodic fee from the time-share estate owner for the payment of the latter expenses; the method of apportionment between time-share estate owners shall be explained.
C. The section shall contain a statement describing any current or expected fees or charges to be paid by time-share owners for the use and enjoyment of any facilities related to the project. This shall include, without limitation, any fee attributable to the use of recreational facilities mentioned in any of the time-share documents or during the marketing activities.
D. The section shall contain a statement describing the extent to which financial arrangements, if any, have been provided for completion of any time-share unit offered for sale.
E. The section shall describe any services which the developer provides or expenses it pays which may become at any subsequent time a time-share expense of the time-shares, and the projected time-share expense liability attributable to each of those services or expenses for each time-share.
F. The section shall contain the latest annual balance sheet and a projected budget for the program for one year after the date of the first transfer to a purchaser. After that one-year period, a current budget shall be included in lieu of the projected budget and annual balance sheet mentioned above. All budgets shall be accompanied by a statement indicating the name of the preparer of the budget, and a statement explaining all budgetary assumptions concerning occupancy and inflation. All budgets must include, without limitation: (i) a statement of the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacements; and (ii) a statement of any other reserves. If the project is a time-share estate project and if the developer control period has not ended, the budget shall also include: (i) the projected common expense liability for all time-share owners; (ii) the projected common expense liability by category of expenditures; and (iii) a statement of the amount included in the budget reserved for repairs to and refurbishing of the project and the replacement of the personalty situated therein.
G. The "Finances of Time-Share Use Ownership" section shall, where the developer's equity in the project is less than $250,000, include a current audited financial statement disclosing the developer's net worth. Such statement shall specifically state the amount of equity in the project.
H. The section shall discuss the effect of failure of a time-share owner to pay when due the assessments, fees or charges levied against his time-share. Such discussion shall indicate provisions for penalties to be applied in the case of overdue assessments including the lien authorized by § 55-370 B of the Code of Virginia, and for the acceleration of unpaid assessments.
18VAC48-20-630. Insurance, time-share condominium.
In addition to the information required by 18VAC48-20-400 of this chapter, this section shall describe the insurance coverage provided for the benefit of time-share owners. Included shall be a discussion of the comprehensive general liability insurance for death, bodily injury, and property damage arising out of, or in connection with, the use and enjoyment of units by time-share estate owners or time-share use owners or their guests. It shall be made clear that in the case of a time-share estate project the costs associated with this liability insurance will be borne by the developer during the developer control period, and thereafter, the costs will be assumed by the time-share estate owners' association; and that in the case of a time-share use project, the costs associated with securing and maintaining such insurance shall be borne by the developer.
Depending on the time-share organization employed by the developer, §§ 55-368(7) or 55-371(7) of the Code of Virginia shall be included in this discussion.
18VAC48-20-640. Taxes, time-share condominium.
In addition to the information required by 18VAC48-20-410 of this chapter, this section shall describe all existing or proposed taxes to be levied against time-shares individually including, without limitation, real property taxes, transient taxes and other special assessments.
18VAC48-20-650. Exchange program, time-share condominium.
The public offering statement shall contain a section captioned "Exchange Program." if, at the time of purchase of a time-share, the purchaser is permitted or required to become a member of or a participant in an exchange program. An "exchange program" is a program offered by the developer or an independent exchange agent for the exchange of occupancy rights with the owners of time-shares of other time-share projects. This section shall contain the information required by § 55-374 B of the Code of Virginia.
Part VIII
Post-Registration Provisions
18VAC48-20-660. Material change defined.
As used in 18VAC48-20-670 through 18VAC48-20-700 of this chapter, "material change" means a change which renders inaccurate, incomplete or misleading, any information or document disclosed in or attached to a public offering statement whose form and content are designated for use pursuant to 18VAC48-20-100 G or 18VAC48-20-680 B of this chapter. Without limiting the generality of the preceding sentence, a material change shall be whenever (i) information or a document required to be disclosed in or attached to a public offering statement but not so disclosed or attached by reason of its previous unavailability or nonexistence becomes available or comes into existence and (ii) a new budget is adopted.
18VAC48-20-670. Amendment of public offering statement.
A. Prior to or upon the occurrence of a material change, the declarant shall amend the public offering statement to disclose the modified or additional information or to include the modified or additional document, as the case may be. The declarant may amend the public offering statement other than in connection with a material change.
B. Amendment of the public offering statement may be accomplished in any intelligible manner and, to the extent that strict compliance with any of the provisions of these regulations governing the form of presentation of information in the public offering statement would be unduly burdensome, the declarant may deviate therefrom in amending the public offering statement, provided that (i) no such deviation shall be more extensive than is necessary and appropriate under the circumstances; (ii) the requirements of 18VAC48-20-230 and 18VAC48-20-280 of this chapter are strictly observed and (iii) the presentation of information in the amended public offering statement is organized so as to facilitate reading and comprehension. Nothing contained herein shall authorize a deviation from strict compliance with a provision of these regulations governing the substance of disclosure in the public offering statement. If any information has become inaccurate or misleading by reason of the material change and is not deleted from the public offering statement in connection with its amendment, such fact shall be clearly noted.
C. Correction of spelling, grammar, omission or other similar errors not affecting the substance of a public offering statement shall not be deemed an amendment of the public offering statement for the purposes of these regulations; provided, however, that the declarant shall file with the board a copy of a public offering statement so corrected.
18VAC48-20-680. Filing of amended public offering statement.
A. The declarant shall promptly file with the board a copy of an amended public offering statement. Unless subsection D hereof applies, the declarant shall, as part of such filing, update the application for registration on file with the board either by filing a new application or by advising the board of changes in the information contained in a previously filed application or file new or substitute documents. In the case of a public offering statement (i) amended other than in connection with a material change or (ii) presumed current pursuant to 18VAC48-20-700 of this chapter, the filing shall indicate the date of amendment.
B. Unless subsection D hereof applies, the board shall issue a notice of filing within five business days following receipt in proper form of the materials required by subsection A hereof. The board shall review the amended public offering statement and supporting materials to determine whether the amendment complies with 18VAC48-20-670 of this chapter. At such time as the board affirmatively determines that the amendment complies with 18VAC48-20-670 of this chapter, but not later than the 30th day following issuance of the notice of filing, it shall enter an order designating the amended form and content of the public offering statement to be used. Such order shall provide that previous orders designating the form and content of the public offering statement for use are superseded.
C. If the board determines, pursuant to subsection B hereof, that an amendment to the public offering statement does not comply with 18VAC48-20-670 of this chapter, it shall immediately, but in no event later than the 30th day following issuance of the notice of filing enter an order declaring the amendment not in compliance with 18VAC48-20-670 of this chapter and specifying the particulars of such noncompliance. In the case of a public offering statement amended other than in connection with a material change, the order shall relate back to the date of amendment. If neither of the orders provided for by this subsection and subsection B hereof are entered within the time allotted, the amendment shall be deemed to comply with 18VAC48-20-670 of this chapter, except that the 30-day period may be extended in the manner provided for extension of the correction period by 18VAC48-20-100, subsection D of this chapter. The declarant may, at any time correct and refile an amended public offering statement; provided, however, that if an order of noncompliance has been entered with respect to the amendment, all of the provisions of subsections A and B hereof and this subsection shall apply to such refiling.
D. If the material change which resulted in amendment of the public offering statement was an expansion of the condominium or the formation of units out of convertible land or convertible space, the declarant shall file a complete application for registration of the additional units, provided, that no such application need be filed for units previously registered. Such application for registration shall be subject to all of the provisions of 18VAC48-20-70 through 18VAC48-20-150 of this chapter and the board shall observe the procedures of 18VAC48-20-100 of this chapter in regard to the application. Documents then on file with the board and not changed in connection with the creation of additional units need not be refiled, provided that the application indicates that such documents are unchanged.
E. In each case in which an amended document is filed pursuant to this paragraph and the manner of its amendment is not apparent on the face of the document, the declarant shall provide an indication of the manner and extent of amendment.
18VAC48-20-690. Current public offering statement.
A. A public offering statement is current if its form and content are designated for use pursuant to 18VAC48-20-100G or 18VAC48-20-680 B of this chapter and remains current so long as no material change occurs and any amendment of the public offering statement other than in connection with a material change is made in compliance with 18VAC48-20-670 of this chapter.
B. A public offering statement ceases to be current upon the occurrence of a material change and, subject to the exception provided in 18VAC48-20-700 of this chapter, does not thereafter become current unless and until (i) it is amended pursuant to 18VAC48-20-670 of this chapter and (ii) the board, with respect to such amendment, enters an order pursuant to 18VAC48-20-100 G or 18VAC48-20-680 B or fails to enter, within the times allotted therefor, any of the orders provided for by 18VAC48-20-100 E and G or 18VAC48-20-680 B and C.
C. If the board determines that the public offering statement amended other than in connection with a material change fails to comply with 18VAC48-20-670 of this chapter that public offering statement ceases to be current as of the date of amendment. Such cessation shall be affected retroactively by the board's entry of an order of noncompliance and nothing contained herein shall limit the declarant's right to use the public offering statement as current prior to the entry of an order of noncompliance. The public offering statement does not thereafter become current unless and until it is corrected and refiled and the board, with respect to such amendment, enters an order pursuant to 18VAC48-20-680 B of this chapter or fails to enter either of the orders provided for by 18VAC48-20-680 B or C of this chapter.
D. Upon issuance of a public offering statement amended because of the occurrence of a change that materially and adversely affects the purchaser's bargain, that was caused by the declarant or any agent or affiliate of the declarant, and of the possibility of which the purchaser was not forewarned in the public offering statement given him pursuant to § 55-79.88(c) of the Code of Virginia, then the purchaser's 10-day rescission right afforded by § 55-79.88(c) of the Code of Virginia is renewed. The declarant shall deliver the public offering statement so amended and give the purchaser notice of his renewed rescission right as required by 18VAC48-20-710 of this chapter.
18VAC48-20-700. Certain amended public offering statements presumed current.
A. A public offering statement amended by the declarant to disclose any material change which is an aspect or result of the orderly development of the condominium or the normal functioning of the unit owners' association shall be presumed current immediately upon its amendment, subject, however, to the condition that the board shall subsequently determine that the amendment was made in compliance with 18VAC48-20-670 of this chapter. An amended public offering statement presumed current pursuant to this subsection shall be referred to elsewhere in these regulations as a presumptively current public offering statement.
B. The declarant shall file with the board a copy of a presumptively current public offering statement and all of the provisions of 18VAC48-20-680 of this chapter shall apply to such filing except that, in addition: (i) filing shall be made not later than 10 business days following the occurrence of the material change which necessitated the amendment, and (ii) the filing shall indicate the declarant's plans, if any, to deliver the presumptively current public offering statement to purchasers pursuant to § 55-79.88(c) of the Code of Virginia.
C. A board order declaring that an amendment which resulted in a presumptively current public offering statement is not in compliance with 18VAC48-20-670 of this chapter shall render ineffective the presumption that the public offering statement is current. In that event, the public offering statement shall be deemed to have ceased being current upon the occurrence of the material change which necessitated the amendment. Nothing contained herein shall limit the declarant's right to use a presumptively current public offering statement prior to entry of the order of noncompliance. A presumptively current public offering statement also ceases being current upon the declarant's failure to file within the time provided in subsection B hereof, but such cessation shall have no retroactive effect. A presumptively current public offering statement which ceases to be current pursuant to this subsection does not thereafter become current unless and until it is filed or refiled with the board pursuant to 18VAC48-20-680 of this chapter and the board, with respect to such public offering statement, enters an order pursuant to 18VAC48-20-100G or 18VAC48-20-680B of this chapter or fails to enter, within the times allotted therefor, any of the orders provided for in 18VAC48-20-100 E and G or 18VAC48-20-680 B and C of this chapter.
18VAC48-20-710. Public offering statement not current; notification of purchasers.
The declarant shall notify every purchaser to whom has been delivered a public offering statement which was subsequently determined not to have been current at the time of its delivery. Such notification shall indicate that any contract for disposition of a condominium unit may be cancelled unless and until the declarant complies with the provisions of § 55-79.88(c) of the Code of Virginia. The declarant shall file a copy of the notification with the board and provide proof that such notification has been delivered to all purchasers under contract.
18VAC48-20-720. Annual report by declarant.
Prior to filing the annual report required by § 55-79.93 of the Code of Virginia, the declarant shall review the public offering statement then being delivered to purchasers. If such public offering statement is current, the declarant shall so certify in the annual report and include a copy thereof in the report. If such public offering statement is not current, the declarant shall amend the public offering statement and the annual report shall, in that event, consist of a filing complying with the requirements of 18VAC48-20-680 of this chapter. In addition, the annual report shall indicate the number of condominium units (i) conveyed, (ii) under contract for disposition, (iii) being rented by the declarant and (iv) still being offered. The annual report shall indicate the status of declarant's control retained pursuant to § 55-79.74 of the Code of Virginia. The annual report may be in any form suitable for compliance with the provisions of this section and § 55-79.93 of the Code of Virginia.
18VAC48-20-730. Provisions applicable to substituted disclosure document, prospectus.
A. The provisions of 18VAC48-20-660 through 18VAC48-20-720 of this chapter shall apply to a substituted disclosure document in the same manner and to the same extent that they apply to public offering statements.
B. The provisions of 18VAC48-20-660 through 18VAC48-20-700 of this chapter shall apply to a prospectus only to the extent that amendment of the information or documents attached to the prospectus pursuant to 18VAC48-20-460 of this chapter is required or permitted. The body of the prospectus shall be amended only as provided in applicable securities law. The declarant shall immediately file with the board any amendments to the body of the prospectus and, upon receipt thereof, the board shall enter an order designating the form and content of the prospectus to be used and providing that previous orders designating the form and content of the prospectus for use are superseded. A prospectus is current so long as it is effective under applicable securities law and the information and documents attached thereto are current under the provisions of 18VAC48-20-690 and 18VAC48-20-700 of this chapter. The declarant shall immediately notify the board if the prospectus ceases being effective. If no prospectus is effective and the declarant proposes to continue offering condominium units, the declarant shall file a public offering statement with the board pursuant to 18VAC48-20-680 of this chapter.
C. The provisions of 18VAC48-20-710 of this chapter shall apply to a prospectus in the same manner and to the same extent that they apply to a public offering statement.
D. In an annual report involving a prospectus the declarant shall comply with all of the provisions of 18VAC48-20-720 of this chapter applicable to public offering statements and, in addition, shall certify that an effective prospectus is available for delivery to purchasers and shall indicate the declarant's plans or expectations regarding the continuing effectiveness of the prospectus.
FORMS
Appendix A Public Offering Statement.
VA.R. Doc. No. R09-1567; Filed October 21, 2008, 2:55 p.m.
Emergency Regulation
Title of Regulation: 18VAC48-50. Common Interest Community Manager Regulations (adding 18VAC48-50-10 through 18VAC48-50-200).
Statutory Authority: § 54.1-2349 of the Code of Virginia.
Effective Date: November 13, 2008, through November 12, 2009.
Agency Contact: Trisha Henshaw, Executive Director, Common Interest Community Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8510, FAX (804) 527-4298, or email cic@dpor.virginia.gov.
Preamble:
The new regulation establishes the qualifications and standards of practice and conduct for common interest community managers. In addition, the regulation establishes the qualifications for provisional licensure, which is required pursuant to § 54.1-2346 F of the Code of Virginia. In accordance with this section, provisional licenses must be issued to those entities that make application prior to January 1, 2009.
Chapters 851 and 871 (HB 516 and SB 301) of the 2008 Acts of Assembly require these regulations to be effective within 280 days of enactment. Therefore, there is an "emergency situation" as defined in § 2.2-4011 of the Administrative Process Act.
CHAPTER 50
COMMON INTEREST COMMUNITY MANAGER REGULATIONS
Part I
General
18VAC48-50-10. Definitions.
Section 54.1-2345 of the Code of Virginia provides definitions of the following terms and phrases as used in this chapter:
"Association"
"Board"
"Common interest community"
"Common interest community manager"
"Declaration"
"Governing board"
"Lot"
"Management services"
The following words, terms, and phrases, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.
"Address of record" means the mailing address designated by the regulant to receive notices and correspondence from the board. Notice mailed to the address of record by certified mail, return receipt requested, shall be deemed valid notice.
"Applicant" means a common interest community manager that has submitted an application for licensure.
"Application" means a completed, board-prescribed form submitted with the appropriate fee and other required documentation.
"Department" means the Virginia Department of Professional and Occupational Regulation.
"Firm" means a sole proprietorship, association, partnership, corporation, limited liability company, limited liability partnership, or any other form of business organization recognized under the laws of the Commonwealth of Virginia and properly registered, as may be required, with the Virginia State Corporation Commission.
"Full-time employee" means an employee who spends a minimum of 30 hours a week carrying out the work of the licensed common interest community manager.
"Gross receipts" means all revenue for management services excluding pass-through expenses or reimbursement of expenditures by the regulant on behalf of an association.
"Regulant" means a common interest community manager as defined in § 54.1-2345 of the Code of Virginia who holds a license issued by the Board.
"Reinstatement" means the process and requirements through which an expired license can be made valid without the regulant having to apply as a new applicant.
"Renewal" means the process and requirements for periodically approving the continuance of a license for another period of time.
"Responsible person" means the individual who shall be designated by each firm to ensure compliance with Chapter 23.3 (§ 54.1-2345 et seq.) of Title 54.1 of the Code of Virginia, and all regulations of the board, and to receive communications and notices from the board that may affect the firm. In the case of a sole proprietorship, the sole proprietor shall have the responsibilities of the responsible person.
"Sole proprietor" means any individual, not a corporation, who is trading under his own name, or under an assumed or fictitious name pursuant to the provisions of §§ 59.1-69 through 59.1-76 of the Code of Virginia.
Part II
Entry
18VAC48-50-20. Application procedures.
All applicants seeking licensure shall submit an application with the appropriate fee specified in 18VAC48-50-70. Application shall be made on forms provided by the department.
By submitting the application to the department, the applicant certifies that the applicant has read and understands the applicable statutes and the board's regulations.
The receipt of an application and the deposit of fees by the board does not indicate approval by the board.
The board may make further inquiries and investigations with respect to the applicant's qualifications to confirm or amplify information supplied. All applications shall be completed in accordance with the instructions contained herein and on the application. Applications will not be considered complete until all required documents are received by the board.
A firm will be notified within 30 days of the board's receipt of an initial application if the application is incomplete. Firms that fail to complete the process within 12 months of receipt of the application in the board's office must submit a new application and fee.
18VAC48-50-30. Qualifications for licensure.
Firms that provide common interest community management services shall submit an application on a form prescribed by the board and shall meet the requirements set forth in § 54.1-2346 of the Code of Virginia, as well as the additional qualifications of this section.
A. Any firm offering management services as defined in § 54.1-2345 of the Code of Virginia shall hold a license as a common interest community manager. All names under which the common interest community manager conducts business shall be disclosed on the application. The name under which the firm conducts business and holds itself out to the public (i.e., the trade or fictitious name) shall also be disclosed on the application. Firms shall register any trade or fictitious names with the State Corporation Commission or the clerk of court in the county or jurisdiction where the business is to be conducted in accordance with §§ 59.1-69 through 59.1-76 of the Code of Virginia before submitting an application to the board.
B. The applicant shall disclose the firm's mailing address, the firm's physical address, and the address of the office from which the firm provides management services to Virginia common interest communities. A post office box is only acceptable as a mailing address when a physical address is also provided.
C. In accordance with § 54.1-204 of the Code of Virginia, each applicant shall disclose the following information about the firm, the responsible person, and any of the principals of the firm:
1. All felony convictions.
2. All misdemeanor convictions, in any jurisdiction, within three years of the date of application.
3. Any plea of nolo contendere or finding of guilt regardless of adjudication or deferred adjudication shall be considered a conviction for the purposes of this section. The record of conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such guilt.
D. The applicant shall submit evidence of a blanket fidelity bond or employee dishonesty insurance policy in accordance with § 54.1-2346(D) of the Code of Virginia. Proof of current bond or insurance policy must be submitted in order to obtain or renew the license The bond or insurance policy must be in force no later than the effective date of the license and shall remain in effect through date of expiration of the license.
E. The applicant shall be in compliance with the standards of conduct and practice set forth in Part V (18VAC48-50-140 et. seq.) of this chapter at the time of application, while the application is under review by the board, and at all times when the license is in effect.
F. The applicant, the responsible person, and any principals of the firm shall be in good standing in every jurisdiction and with every board or administrative body where licensed, certified, or registered and the board, at its discretion, may deny licensure to any applicant who has been subject to, or whose principals have been subject to, any form of disciplinary action, including but not limited to, reprimand, revocation, suspension or denial, imposition of a monetary penalty, required to complete remedial education, or any other corrective action, in any jurisdiction or by any board or administrative body or surrendered a license, certificate, or registration in connection with any disciplinary action in any jurisdiction prior to applying for licensure in Virginia.
G. The applicant shall provide all relevant information about the firm, the responsible person, and any of the principals of the firm for the seven (7) years prior to application on any outstanding, past-due debts and judgments; outstanding tax obligations; defaults on bonds; or pending or past bankruptcies, and specifically shall provide all relevant financial information related to providing management services as defined in § 54.1-2345 of the Code of Virginia.
H. Applicants for licensure shall hold an active designation as an Accredited Association Management Company by the Community Associations Institute.
I. In lieu of the provisions of subsection H, applicants who are unable to meet the requirements for designation as an Accredited Association Management Company by the Community Associations Institute may be licensed provided the applicant submits proof to the board that the applicant has at least one full-time supervisory employee or officer involved in all aspects of the management services offered and provided by the firm, and a majority of persons in a supervisory capacity meets one of the following:
1. Holds an active designation as a Professional Community Association Manager and provides proof of having been actively engaged in providing management services for a period of 12 months immediately preceding application; or
2. Holds an active designation as a Certified Manager of Community Associations by the National Board of Certification for Community Association Managers and provides proof of five years of experience in providing management services. Of the required five years experience, a minimum of 12 months of experience must have been gained immediately preceding application; or
3. Holds an active designation as an Association Management Specialist and provides proof of five years of experience in providing management services. Of the required five years experience, a minimum of 12 months of experience must have been gained immediately preceding application; or
4. Has completed a training program and certifying examination approved by the board.
J. The firm shall designate a responsible person who is an employee of the firm.
18VAC48-50-40. Provisional licenses.
Provisional licenses shall be issued in accordance with § 54.1-2346(F) of the Code of Virginia to those applicants who meet the provisions of this chapter excluding subsections H and I of 18 VAC 48-50-30.
18VAC48-50-50. Application denial.
The board may refuse initial licensure due to an applicant's failure to comply with entry requirements or for any of the reasons for which the board may discipline a regulant. The board, at its discretion, may deny licensure to any applicant in accordance with § 54.1-204 of the Code of Virginia. The denial is considered to be a case decision and is subject to appeal under Chapter 40 of Title 2.2 of the Code of Virginia.
Part III
Fees
18VAC48-50-60. General fee requirements.
All fees are nonrefundable and shall not be prorated. The date on which the fee is received by the department or its agent will determine whether the fee is on time. Checks or money orders shall be made payable to the Treasurer of Virginia.
18VAC48-50-70. Fee schedule.
|
Fee Type |
Fee Amount |
When Due |
|
Initial Application* |
$125.00 |
With initial application filed on or after January 1, 2009 |
|
Provisional License Application* |
$275.00 |
With initial application filed on or before December 31, 2008 |
|
Renewal** |
$100.00 |
With renewal application |
|
Reinstatement (includes a $200 reinstatement fee in addition to the regular $100 renewal fee) |
$300.00 |
With renewal application |
*Includes a $25.00 recovery fund assessment in accordance with § 55-530.1 of the Code of Virginia.
**The first renewal after the effective date of these regulations shall include a $25.00 recovery fund assessment in accordance with § 55-530.1 of the Code of Virginia.
18VAC48-50-80. Annual assessment.
In addition to the fees listed above, each common interest community manager must submit an annual assessment in accordance with § 54.1-2349(A)(1) of the Code of Virginia. The annual assessment shall be submitted with the initial application and with each renewal application. Common interest community managers shall submit documentation of gross receipts for the preceding calendar year with each annual assessment.
Provisional licenses will be subject to the annual assessment for each year that the provisional license is in effect. Provisional licensees shall submit documentation of gross receipts for the preceding calendar year with each annual assessment. Failure to submit the annual assessment within 30 days of the request by the board shall result in the automatic suspension of the license.
Part IV
Renewal and Reinstatement
18VAC48-50-90. Renewal required.
A license issued under this chapter shall expire one year from the last day of the month in which it was issued. A fee shall be required for renewal. In accordance with § 54.1-2346(F) of the Code of Virginia, provisional licenses shall expire on June 30, 2011, and shall not be renewed.
18VAC48-50-100. Expiration and renewal.
A. Prior to the expiration date shown on the license, licenses shall be renewed upon completion of the renewal application, submittal of proof of current bond or insurance policy as detailed in 18VAC48-50-30 D, and payment of the fees specified in 18VAC48-50-70 and 18VAC48-50-80. The board will mail a renewal notice to the regulant at the last known mailing address of record. Failure to receive this notice shall not relieve the regulant of the obligation to renew. If the regulant fails to receive the renewal notice, a copy of the license may be submitted with the required fees as an application for renewal. By submitting an application for renewal, the regulant is certifying continued compliance with the Standards of Conduct and Practice in Part V (18VAC48-50-140 et. seq.) of this chapter.
B. Applicants for renewal shall continue to meet all of the qualifications for licensure set forth in 18VAC48-50-30.
18VAC48-50-110. Reinstatement required.
A. If the requirements for renewal of a license, including receipt of the fees by the board and submittal of proof of current bond or insurance policy as detailed in 18VAC48-50-30 D, are not completed within 30 days of the license expiration date, the regulant shall be required to reinstate the license by meeting all renewal requirements and by paying the reinstatement fee specified in 18VAC48-50-70.
B. A license may be reinstated for up to six months following the expiration date. After six months, the license may not be reinstated under any circumstances and the regulant must meet all current entry requirements and apply as a new applicant.
C. Any regulated activity conducted subsequent to the license expiration date may constitute unlicensed activity and be subject to prosecution under Chapter 1 (§ 54.1-100 et seq.) of Title 54.1 of the Code of Virginia.
18VAC48-50-120. Status of license during the period prior to reinstatement.
A regulant who applies for reinstatement of a license shall be subject to all laws and regulations as if the regulant had been continuously licensed. The regulant shall remain under and be subject to the disciplinary authority of the board during this entire period.
18VAC48-50-130. Board discretion to deny renewal or reinstatement.
The board may deny renewal or reinstatement of a license for the same reasons as it may refuse initial licensure or discipline a current regulant.
The board may deny renewal or reinstatement of a license if the regulant has been subject to a disciplinary proceeding and has not met the terms of an agreement for licensure, has not satisfied all sanctions, or has not fully paid any monetary penalties and costs imposed by the board.
Part V
Standards of Conduct and Practice
18VAC48-50-140. Grounds for disciplinary action.
The board may place a regulant on probation, impose a monetary penalty in accordance with § 54.1-2351.H of the Code of Virginia, or revoke, suspend or refuse to renew any license when the regulant has been found to have violated or cooperated with others in violating any provisions of the regulations of the board or Chapter 23.3 (§ 54.1-2345 et seq.) of Title 54.1 of the Code of Virginia.
18VAC48-50-150. Maintenance of license.
A. No license issued by the board shall be assigned or otherwise transferred.
B. A regulant shall report, in writing, all changes of address to the board within 30 days of the change and shall return the license to the board. In addition to the address of record, a physical address is required for each license. If the regulant holds more than one license, certificate, or registration, the regulant shall inform the board of all licenses, certificates, and registrations affected by the address change.
C. Any change in any of the qualifications for licensure found in 18VAC48-50-30 shall be reported to the board within 30 days of the change.
D. Notwithstanding the provisions of 18VAC48-50-150 C, a regulant shall report the cancellation, amendment, expiration, or any other change of any bond or insurance policy submitted in accordance with 18VAC48-50-30 D within five days of the change.
18VAC48-50-160. Maintenance and management of accounts.
Regulants shall maintain all funds from associations in accordance with § 54.1-2353 A of the Code of Virginia. Funds that belong to others that are held as a result of the fiduciary relationship shall be labeled as such to clearly distinguish funds that belong to others from those of the common interest community manager's funds.
18VAC48-50-170. Change of business entity requires a new license.
A. Licenses are issued to firms as defined in this chapter and are not transferable. Whenever the legal business entity holding the license is dissolved or altered to form a new business entity, the license becomes void and shall be returned to the board within 30 days of the change. Such changes include but are not limited to:
1. Cessation of the business or the voluntary termination of a sole proprietorship or general partnership;
2. Death of a sole proprietor;
3. Formation, reformation, or dissolution of a general partnership, limited partnership, corporation, limited liability company, association, or any other business entity recognized under the laws of the Commonwealth of Virginia; or
4. The suspension or termination of the corporation's existence by the State Corporation Commission.
B. When a new firm is formed, the new firm shall apply for a new license, on a form provided by the board, before engaging in any activity regulated by Chapter 23.3 (§ 54.1-2345 et seq.) of Title 54.1 of the Code of Virginia or the regulations of the board.
18VAC48-50-180. Notice of adverse action.
Regulants shall notify the board of the following actions:
A. Any disciplinary action taken by another jurisdiction, board, or administrative body of competent jurisdiction, including but not limited to any reprimand, license revocation, suspension or denial, monetary penalty, or requirement for remedial education or other corrective action.
B. Any voluntary surrendering of a license, certificate, or registration done in connection with a disciplinary action in another jurisdiction.
C. Any conviction, finding of guilt, or plea of guilty, regardless of adjudication or deferred adjudication, of any felony or of any misdemeanor in any jurisdiction. Any plea of nolo contendere shall be considered a conviction for the purpose of this section.
The notice must be made to the board in writing within 30 days of the action. A copy of the order or other supporting documentation must accompany the notice. The record of conviction, finding, or case decision shall be considered prima facie evidence of a conviction or finding of guilt.
18VAC48-50-190. Prohibited acts.
The following acts are prohibited and any violation may result in disciplinary action by the board:
A. Violating, inducing another to violate, or cooperating with others in violating any of the provisions of any of the regulations of the board or Chapter 23.3 (§ 54.1-2345 et seq.) of Title 54.1 of the Code of Virginia, Chapter 4.2 (§ 55-79.39 et seq.) of Title 55 of the Code of Virginia, Chapter 24 (§ 55-424 et seq.) of Title 55 of the Code of Virginia, Chapter 26 (§ 55-508 et seq.) of Title 55 of the Code of Virginia, or Chapter 29 (§ 55-528 et seq.) of Title 55 of the Code of Virginia, or engaging in any acts enumerated in §§ 54.1-102 and 54.1-111 of the Code of Virginia.
B. Allowing the common interest community manager license to be used by another.
C. The firm or any principals of the firm having been convicted, found guilty, or disciplined in any jurisdiction of any offense or violation enumerated in 18VAC48-50-180 of this section.
D. Failing to inform the board in writing within 30 days that the firm or any principals of the firm was convicted, found guilty, or disciplined in any jurisdiction of any offense or violation enumerated in 18VAC48-50-180 of this section.
E. Failing to report a change as required by 18VAC48-50-150, 18VAC48-50-160, or 18VAC48-50-170.
F. The intentional and unjustified failure to complete work contracted for or agreed upon.
G. The intentional and unjustified failure to comply with the terms of the contract, operating agreement, or governing documents.
H. Obtaining or attempting to obtain a license by false or fraudulent representation, or maintaining, renewing, or reinstating a license by false or fraudulent representation.
I. Engaging in improper, dishonest, or fraudulent conduct in providing management services.
J. Failing to satisfy any judgments or restitution orders entered by a court or arbiter of competent jurisdiction.
K. Negligence or incompetence in the practice of the profession or occupation.
L. The retention or misapplication of funds paid for which work is either not performed or performed only in part.
M. Failing to handle association funds in accordance with the provisions of § 54.1-2353(A) or 18VAC48-50-160.
N. Failing to account in a timely manner for all money and property received by the regulant in which the association has or may have an interest.
O. Failing to disclose to the association material facts related to the association's property or concerning management services of which the regulant has actual knowledge.
P. Failing to provide complete records related to the association's management services to the association within 30 days of any request by the association or within 30 days of the termination of the contract.
Q. Commingling the funds of any association by a principal, his employees, or his associates with the principal's own funds, or those of his firm.
R. Failing to act in a manner that safeguards the interests of the public.
S. Failing to make use of a legible written contract clearly specifying the terms and conditions of the management services to be performed by the common interest community manager. The contract shall include, but not be limited to, the following:
a. Beginning and ending dates of the contract;
b. Cancellation rights of the parties;
c. Records retention and distribution policy;
d. A general description of the records to be kept and the bookkeeping system to be used; and
e. The common interest community manager's license number.
Prior to commencement of the terms of the contract or acceptance of payments, the contract shall be signed by the regulant and the client or the client's authorized agent.
18VAC48-50-200. Response to inquiry and provision of records.
A. A regulant must respond within 10 days to the board or any of its agents regarding any complaint filed with the department.
B. Unless otherwise specified by the board, a regulant of the board shall produce to the board or any of its agents within 10 days of the request any document, book, or record concerning any transaction in which the regulant was involved, or for which the regulant is required to maintain records for inspection and copying by the board or its agents. The board may extend such time frame upon a showing of extenuating circumstances prohibiting delivery within such 10-day period.
C. A regulant shall not provide a false, misleading, or incomplete response to the board or any of its agents seeking information in the investigation of a complaint filed with the board.
D. A regulant must respond to an inquiry by the board or its agents, other than requested under 18VAC48-50-200 A or 18VAC48-50-200 B, within 21 days.
VA.R. Doc. No. R09-1641; Filed October 21, 2008, 2:54 p.m.
BOARD FOR GEOLOGY
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Titles of Regulations: 18VAC70-10. Public
Participation Guidelines (repealing 18VAC70-10-10 through
18VAC70-10-90).
18VAC70-11. Public Participation Guidelines (adding 18VAC70-11-10 through 18VAC70-11-110).
Statutory Authority: §§ 2.2-4007.02 and 54.1-201 of the Code of Virginia.
Effective Date: December 10, 2008.
Agency Contact: David Dick, Executive Director, Board for Geology, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8588, FAX (804) 527-4297, or email geology@dpor.virginia.gov.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
18VAC70-11-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Board for Geology. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
18VAC70-11-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Board for Geology, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
18VAC70-11-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.
18VAC70-11-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 18VAC70-11-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
18VAC70-11-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
18VAC70-11-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
18VAC70-11-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
18VAC70-11-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
18VAC70-11-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
18VAC70-11-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
18VAC70-11-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1476; Filed October 20, 2008, 2:47 p.m.
BOARD OF MEDICINE
Emergency Regulation
Title of Regulation: 18VAC85-80. Regulations Governing the Licensure of Occupational Therapists (amending 18VAC85-80-10, 18VAC85-80-26, 18VAC85-80-40, 18VAC85-80-45, 18VAC85-80-50, 18VAC85-80-65, 18VAC85-80-70, 18VAC85-80-72, 18VAC85-80-73, 18VAC85-80-80, 18VAC85-80-90, 18VAC85-80-100, 18VAC85-80-110; adding 18VAC85-80-111; repealing 18VAC85-80-61).
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Effective Dates: November 1, 2008, through October 31, 2009.
Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4621, FAX (804) 527-4429, or email william.harp@dhp.virginia.gov.
Preamble:
Chapters 64 and 89 (HB383 and SB134) of the 2008 Acts of Assembly require the Board of Medicine to establish requirements for the licensure of occupational therapy assistants. The second enactment in the legislation requires that the board promulgate regulations to implement the provisions of the act to be effective within 280 days of its enactment. Therefore, there is an "emergency situation" as defined in § 2.2-4011 of the Administrative Process Act.
The key provisions of the regulations are the national credential specified for licensure, the requirements for continuing competency and renewal, the provisions for supervision of occupational therapy assistants (OTA), and the perimeters for practice. In order to be licensed, an applicant must pass the certification examination for an occupational therapy assistant from the National Board for Certification in Occupational Therapy (NBCOT). Practice by an OTA must be supervised by an occupational therapist (OT) and includes services that do not require the clinical decision or specific knowledge, skills and judgment of a licensed OT nor the discretionary aspects of the initial assessment, evaluation or development of a treatment plan.
Part I
General Provisions
18VAC85-80-10. Definitions.
A. The following words and terms when used in this chapter shall have the meanings ascribed to them in § 54.1-2900 of the Code of Virginia:
"Board"
"Occupational therapy assistant"
"Practice of occupational therapy"
B. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
"ACOTE" means the Accreditation Council for Occupational Therapy Education.
"Active practice" means a minimum of 160 hours of professional practice as an occupational therapist or an occupational therapy assistant within the 24-month period immediately preceding renewal or application for licensure, if previously licensed or certified in another jurisdiction. The active practice of occupational therapy may include supervisory, administrative, educational or consultative activities or responsibilities for the delivery of such services.
"Advisory board" means the Advisory Board of Occupational Therapy.
"Board" means the Virginia Board of Medicine.
"Contact hour" means 60 minutes of time spent in continued learning activity.
"NBCOT" means the National Board for Certification in Occupational Therapy, under which the national examination for certification is developed and implemented.
"National examination" means the examination prescribed by NBCOT for certification as an occupational therapist or an occupational therapy assistant and approved for licensure in Virginia.
"Occupational therapy personnel" means appropriately trained individuals who provide occupational therapy services under the supervision of a licensed occupational therapist.
18VAC85-80-26. Fees.
A. The following fees have been established by the board:
1. The initial fee for the occupational therapist license shall be $130; for the occupational therapy assistant, it shall be $70.
2. The fee for reinstatement of the occupational therapist license that has been lapsed for two years or more shall be $180; for the occupational therapy assistant, it shall be $90.
3. The fee for active license renewal for an occupational
therapist shall be $135 and; for inactive license renewal
shall be $70 and an occupational therapy assistant, it shall be $70. The
fees for inactive license renewal shall be $70 for an occupational therapist
and $35 for an occupational therapy assistant. Renewals shall be due
in the birth month of the licensed therapist licensee in each
even-numbered year.
4. The additional fee for processing a late renewal application within one renewal cycle shall be $50 for an occupational therapist and $30 for an occupational therapy assistant.
5. The fee for a letter of good standing or verification to another state for a license shall be $10.
6. The fee for reinstatement of licensure pursuant to § 54.1-2408.2 of the Code of Virginia shall be $2,000.
7. The fee for a returned check shall be $35.
8. The fee for a duplicate license shall be $5, and the fee for a duplicate wall certificate shall be $15.
9. The fee for an application or for the biennial renewal of a restricted volunteer license shall be $35, due in the licensee's birth month. An additional fee for late renewal of licensure shall be $15 for each renewal cycle.
B. Unless otherwise provided, fees established by the board shall not be refundable.
18VAC85-80-40. Educational requirements.
A. An applicant who has received his professional education in the United States, its possessions or territories, shall successfully complete all academic and fieldwork requirements of an accredited educational program as verified by the ACOTE.
B. An applicant who has received his professional education outside the United States, its possessions or territories, shall successfully complete all academic and clinical fieldwork requirements of a program approved by a member association of the World Federation of Occupational Therapists as verified by the candidate's occupational therapy program director and as required by the NBCOT and submit proof of proficiency in the English language by passing the Test of English as a Foreign Language (TOEFL) with a score acceptable to the board. TOEFL may be waived upon evidence of English proficiency.
C. An applicant who does not meet the educational requirements as prescribed in subsection A or B of this section but who has received certification by the NBCOT as an occupational therapist or an occupational therapy assistant shall be eligible for licensure in Virginia and shall provide the board verification of his education, training and work experience acceptable to the board.
18VAC85-80-45. Practice by a graduate awaiting examination results.
A. A graduate of an accredited occupational therapy
educational program may practice with the designated title of
"Occupational Therapist, License Applicant" or
"O.T.L.-Applicant" until he has taken and received the results of the
licensure examination from NBCOT or for one year six months from
the date of graduation, whichever occurs sooner. The graduate shall use one of
the designated titles on any identification or signature in the course of his
practice.
B. A graduate of an accredited occupational therapy assistant educational program may practice with the designated title of "Occupational Therapy Assistant -License Applicant" or "O.T.A.-Applicant" until he has taken and received the results of the licensure examination from NBCOT or for six months from the date of graduation, whichever occurs sooner. The graduate shall use one of the designated titles on any identification or signature in the course of his practice.
18VAC85-80-50. Examination requirements.
A. An applicant for licensure to practice as an occupational therapist shall submit evidence to the board that he has passed the certification examination for an occupational therapist and any other examination required for initial certification from the NBCOT.
B. An applicant for licensure to practice as an occupational therapy assistant shall submit evidence to the board that he has passed the certification examination for an occupational therapy assistant and any other examination required for initial certification from the NBCOT.
18VAC85-80-61. Certification of occupational therapy
assistants. (Repealed.)
Effective July 26, 2005, a person who holds himself out to
be or advertises that he is an occupational therapy assistant or uses the
designation "O.T.A." or any variation thereof shall have obtained
initial certification by the National Board for Certification in Occupational
Therapy (NBCOT) as a certified occupational therapy assistant.
18VAC85-80-65. Registration for voluntary practice by
out-of-state licenses licensees.
Any occupational therapist or an occupational therapy assistant who does not hold a license to practice in Virginia and who seeks registration to practice under subdivision 27 of § 54.1-2901 of the Code of Virginia on a voluntary basis under the auspices of a publicly supported, all volunteer, nonprofit organization that sponsors the provision of health care to populations of underserved people shall:
1. File a complete application for registration on a form provided by the board at least five business days prior to engaging in such practice. An incomplete application will not be considered;
2. Provide a complete record of professional licensure in each state in which he has held a license and a copy of any current license;
3. Provide the name of the nonprofit organization, the dates and location of the voluntary provision of services;
4. Pay a registration fee of $10; and
5. Provide a notarized statement from a representative of the nonprofit organization attesting to its compliance with provisions of subdivision 27 of § 54.1-2901 of the Code of Virginia.
Part III
Renewal of Licensure; Reinstatement
18VAC85-80-70. Biennial renewal of licensure.
A. An occupational therapist or an occupational therapy assistant shall renew his license biennially during his birth month in each even-numbered year by:
1. Paying to the board the renewal fee prescribed in 18VAC85-80-26;
2. Indicating that he has been engaged in the active practice of occupational therapy as defined in 18VAC85-80-10; and
3. Attesting to completion of continued competency requirements as prescribed in 18VAC85-80-71.
B. An occupational therapist or an occupational therapy assistant whose license has not been renewed by the first day of the month following the month in which renewal is required shall pay an additional fee as prescribed in 18VAC85-80-26.
18VAC85-80-72. Inactive licensure.
A. A licensed occupational therapist or an occupational therapy assistant who holds a current, unrestricted license in Virginia shall, upon a request on the renewal application and submission of the required fee, be issued an inactive license. The holder of an inactive license shall not be required to maintain hours of active practice or meet the continued competency requirements of 18VAC85-80-71 and shall not be entitled to perform any act requiring a license to practice occupational therapy in Virginia.
B. An inactive licensee may reactivate his license upon submission of the following:
1. An application as required by the board;
2. A payment of the difference between the current renewal fee for inactive licensure and the renewal fee for active licensure;
3. If the license has been inactive for two to six years, documentation of having engaged in the active practice of occupational therapy or having completed a board-approved practice of 160 hours within 60 consecutive days under the supervision of a licensed occupational therapist; and
4. Documentation of completed continued competency hours equal to the requirement for the number of years, not to exceed four years, in which the license has been inactive.
C. An occupational therapist or occupational therapy assistant who has had an inactive license for six years or more and who has not engaged in active practice, as defined in 18VAC85-80-10, shall serve a board-approved practice of 320 hours to be completed in four consecutive months under the supervision of a licensed occupational therapist.
D. The board reserves the right to deny a request for reactivation to any licensee who has been determined to have committed an act in violation of § 54.1-2915 of the Code of Virginia or any provisions of this chapter.
18VAC85-80-73. Restricted volunteer license.
A. An occupational therapist or an occupational therapy assistant who held an unrestricted license issued by the Virginia Board of Medicine or by a board in another state as a licensee in good standing at the time the license expired or became inactive may be issued a restricted volunteer license to practice without compensation in a clinic that is organized in whole or in part for the delivery of health care services without charge in accordance with § 54.1-106 of the Code of Virginia.
B. To be issued a restricted volunteer license, an occupational therapist or occupational therapy assistant shall submit an application to the board that documents compliance with requirements of § 54.1-2928.1 of the Code of Virginia and the application fee prescribed in 18VAC85-80-26.
C. The licensee who intends to continue practicing with a restricted volunteer license shall renew biennially during his birth month, meet the continued competency requirements prescribed in subsection D of this section, and pay to the board the renewal fee prescribed in 18VAC85-80-26.
D. The holder of a restricted volunteer license shall not be required to attest to hours of continuing education for the first renewal of such a license. For each renewal thereafter, the licensee shall attest to obtaining 10 hours of continuing education during the biennial renewal period with at least five hours of Type 1 and no more than five hours of Type 2 as specified in 18VAC85-80-71.
18VAC85-80-80. Reinstatement.
A. An occupational therapist or an occupational therapy assistant who allows his license to lapse for a period of two years or more and chooses to resume his practice shall submit a reinstatement application to the board and information on any practice and licensure or certification in other jurisdictions during the period in which the license was lapsed, and shall pay the fee for reinstatement of his licensure as prescribed in 18VAC85-80-26.
B. An occupational therapist or occupational therapy assistant who has allowed his license to lapse for two years but less than six years, and who has not engaged in active practice as defined in 18VAC85-80-10, shall serve a board-approved practice of 160 hours to be completed in two consecutive months under the supervision of a licensed occupational therapist.
C. An occupational therapist or an occupational therapy assistant who has allowed his license to lapse for six years or more, and who has not engaged in active practice, shall serve a board-approved practice of 320 hours to be completed in four consecutive months under the supervision of a licensed occupational therapist.
D. An applicant for reinstatement shall meet the continuing competency requirements of 18VAC85-80-71 for the number of years the license has been lapsed, not to exceed four years.
E. An occupational therapist or an occupational therapy assistant whose license has been revoked by the board and who wishes to be reinstated shall make a new application to the board and payment of the fee for reinstatement of his license as prescribed in 18VAC85-80-26 pursuant to § 54.1-2408.2 of the Code of Virginia.
Part IV
Practice of Occupational Therapy
18VAC85-80-90. General responsibilities.
A. An occupational therapist renders services of assessment, program planning, and therapeutic treatment upon request for such service. The practice of occupational therapy may include supervisory, administrative, educational or consultative activities or responsibilities for the delivery of such services.
B. An occupational therapy assistant renders services under the supervision of an occupational therapist that do not require the clinical decision or specific knowledge, skills and judgment of a licensed occupational therapist and do not include the discretionary aspects of the initial assessment, evaluation or development of a treatment plan for a patient.
18VAC85-80-100. Individual responsibilities.
A. An occupational therapist provides assessment by determining the need for, the appropriate areas of, and the estimated extent and time of treatment. His responsibilities include an initial screening of the patient to determine need for services and the collection, evaluation and interpretation of data necessary for treatment.
B. An occupational therapist provides program planning by identifying treatment goals and the methods necessary to achieve those goals for the patient. The therapist analyzes the tasks and activities of the program, documents the progress, and coordinates the plan with other health, community or educational services, the family and the patient. The services may include but are not limited to education and training in activities of daily living (ADL); the design, fabrication, and application of orthoses (splints); guidance in the selection and use of adaptive equipment; therapeutic activities to enhance functional performance; prevocational evaluation and training; and consultation concerning the adaptation of physical environments for individuals who have disabilities.
C. An occupational therapist provides the specific activities or therapeutic methods to improve or restore optimum functioning, to compensate for dysfunction, or to minimize disability of patients impaired by physical illness or injury, emotional, congenital or developmental disorders, or by the aging process.
D. An occupational therapy assistant is responsible for the safe and effective delivery of those services or tasks delegated by and under the direction of the occupational therapist. Individual responsibilities of an occupational therapy assistant may include:
1. Participation in the evaluation or assessment of a patient by gathering data, administering tests and reporting observations and client capacities to the occupational therapist;
2. Participation in intervention planning, implementation and review;
3. Implementation of interventions as determined and assigned by the occupational therapist;
4. Documentation of patient responses to interventions and consultation with the occupational therapist about patient functionality;
5. Assistance in the formulation of the discharge summary and follow-up plans; and
6. Implementation of outcome measurements and provision of needed patient discharge resources.
18VAC85-80-110. Supervisory responsibilities of an occupational therapist.
A. Delegation to unlicensed occupational therapy personnel
an occupational therapy assistant.
1. An occupational therapist shall be responsible for
supervision of occupational therapy personnel who work under his direction ultimately
responsible and accountable for patient care and occupational therapy outcomes
under his clinical supervision.
2. An occupational therapist shall not delegate the
discretionary aspects of the initial assessment, evaluation or development of a
treatment plan for a patient to unlicensed occupational therapy personnel
nor shall he delegate any task requiring a clinical decision or the knowledge,
skills, and judgment of a licensed occupational therapist.
3. Delegation shall only be made if, in the judgment of the
occupational therapist, the task or procedures do not require the exercise of
professional judgment, can be properly and safely performed by an
appropriately trained unlicensed occupational therapy personnel occupational
therapy assistant, and the delegation does not jeopardize the health or safety
of the patient.
4. Delegated tasks or procedures shall be communicated to an occupational therapy assistant on a patient-specific basis with clear, specific instructions for performance of activities, potential complications, and expected results.
B. The frequency, methods, and content of supervision are
dependent on the complexity of patient needs, number and diversity of patients,
demonstrated competency and experience of the assistant, and the type and
requirements of the practice setting. The occupational therapist providing
clinical supervision shall meet with the occupational therapy personnel to
review and evaluate treatment and progress of the individual patients at least
once every fifth tenth treatment session or 21 30
calendar days, whichever occurs first. For the purposes of this subsection,
group treatment sessions shall be counted the same as individual treatment
sessions.
C. An occupational therapist shall not may
provide clinical supervision for more than up to six occupational
therapy personnel, to include no more than three occupational therapy
assistants at any one time.
D. An occupational therapist shall be responsible and
accountable for the services provided by occupational therapy personnel under
his clinical supervision. The occupational therapy assistant shall
document in the patient record any aspects of the initial evaluation, treatment
plan, discharge summary or other notes on patient care performed by the
assistant, and the supervising occupational therapist shall review and countersign
within 10 days of such information being recorded.
18VAC85-80-111. Supervision of unlicensed occupational therapy personnel.
A. Unlicensed occupational therapy personnel may be supervised by an occupational therapist or an occupational therapy assistant.
B. Unlicensed occupational therapy personnel may be utilized to perform:
1. Non-client-related tasks, including but not limited to, clerical and maintenance activities and the preparation of the work area and equipment; and
2. Certain routine patient-related tasks that, in the opinion of and under the supervision of an occupational therapist, have no potential to adversely impact the patient or the patient's treatment plan.
NOTICE: The forms used in administering the above regulation are not being published; however, the name of each form is listed below. The forms are available for public inspection by contacting the agency contact for this regulation, or at the office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia.
FORMS (18VAC85-80)
Instructions for Completing an Occupational Therapist Licensure Application (rev. 12/07).
Application for a License to Practice as an Occupational Therapist (rev. 12/07).
Instructions for Completing an Occupational Therapy Assistant Licensure Application (eff. 11/08).
Application for a License to Practice as an Occupational Therapy Assistant (eff. 11/08).
Form A, Claims History Sheet (rev. 8/07).
Form A, Occupational Therapy Assistant, Claims History Sheet (eff. 11/08).
Form B, Activity Questionnaire (rev. 8/07).
Form B, Occupational Therapy Assistant, Activity Questionnaire (eff. 11/08).
Form C, Clearance from Other State Boards (rev. 10/07).
Form C, Occupational Therapy Assistant, Clearance from Other State Boards (eff. 11/08).
Form L, Certificate of Professional Education (rev. 8/07).
Form L, Occupational Therapy Assistant, Certificate of Professional Education (eff. 11/08).
Board Approved Practice, Occupational Therapist Traineeship (rev. 8/07).
Instructions for Completing Reinstatement of Occupational Therapy Licensure (rev. 8/07).
Reinstatement Application Instructions for Occupational Therapy Practitioner Licensure after Mandatory Suspension, Suspension or Surrender (rev. 10/07).
Application for Reinstatement of Licensure to Practice Occupational Therapy (rev. 8/07).
Instructions for Supervised Practice, Occupational Therapy Reinstatement (rev. 8/07).
Supervised Practice Application, Occupational Therapy Reinstatement (rev. 8/07).
Continued Competency Activity and Assessment Form (rev. 4/00).
Application for Registration for Volunteer Practice (rev. 8/07).
Sponsor Certification for Volunteer Registration (rev. 8/08).
VA.R. Doc. No. R09-1387; Filed October 22, 2008, 9:25 a.m.
JOINT BOARDS OF NURSING AND MEDICINE
Fast-Track Regulation
Titles of Regulations: 18VAC90-30. Regulations
Governing the Licensure of Nurse Practitioners (amending 18VAC90-30-10, 18VAC90-30-20,
18VAC90-30-30, 18VAC90-30-80, 18VAC90-30-85, 18VAC90-30-100, 18VAC90-30-105,
18VAC90-30-110, 18VAC90-30-120, 18VAC90-30-121, 18VAC90-30-220,
18VAC90-30-230).
18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (amending 18VAC90-40-10, 18VAC90-40-20, 18VAC90-40-40, 18VAC90-40-50, 18VAC90-40-55, 18VAC90-40-60, 18VAC90-40-90, 18VAC90-40-100, 18VAC90-40-130, 18VAC90-40-140; adding 18VAC90-40-121).
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comments: Public comments may be submitted until 5 p.m. on December 10, 2008.
Effective Date: December 25, 2008.
Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.
Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards including the responsibility to promulgate regulations. Section 54.1-2957.01 of the Code of Virginia authorizes the Boards of Nursing and Medicine to jointly prescribe regulations governing the prescriptive authority of nurse practitioners.
Purpose: The purpose of the action is to clarify and update requirements pursuant to a periodic review of regulations and to reflect the collaborative nature of the practice arrangement between licensed nurse practitioners (LNP) and supervising physicians. Amendments to more clearly specify the evidence of educational qualification in a specialty category, to accept continuing medical education and to allow continuing education hours as evidence of competency to resume practice after the license has lapsed are all intended to ensure that a nurse practitioner has the appropriate knowledge and skills to practice safely. The amendments also make the requirements for maintaining a written protocol setting out the scope of the LNP’s practice and for submitting a current practice agreement whenever there are significant changes in prescriptive authority. Such changes are intended to encourage compliance with law and regulation to make nurse practitioners more competent and safer in their practice.
Rationale for Using Fast-Track Process: The boards have determined that a fast-track process is appropriate because the action is primarily clarifying rather than substantive. Amendments have been drafted by a committee of nurse practitioners and physicians, approved by the Committee of the Joint Boards, the Board of Nursing and the Board of Medicine and are not expected to be controversial.
Substance: The changes to 18VAC90-30 (i) clarify certain provisions and requirements; (ii) specify the evidence of coursework leading to specialty licensure that must be submitted with an initial application; (iii) include category 1 continuing medical education in the approved courses for continuing competency requirements; (iv) allow submission of continuing education as evidence of competency for reinstatement; and (v) clarify that a copy of the written protocol must be maintained.
The changes to 18VAC90-40 (i) provide a definition of a "nonprofit health care clinic" and modify the definition of "supervision" to reflect that both the LNP and the supervising physician are responsible for the patient and for collaboration on his course of treatment; (ii) allow for "regular" rather than "monthly" chart reviews; and (iii) clarify rules for prescribing for self and family.
Issues: There is an advantage to the public of clarifying the requirements for initial licensure, renewal and reinstatement to ensure competency to practice in a specialty category of licensure. Rules that reinforce the need to maintain a written protocol and a current practice agreement for prescriptive authority also ensure collaboration with supervising physicians on patient care. There are no disadvantages to the public.
The primary advantage to the agency and the Commonwealth is greater clarity of the regulations and consistency with the Code to reduce the confusion and misinterpretation.
The only pertinent matter of interest to the regulated community is the desire to eliminate or modify the supervisory relationship of nurse practitioners and physicians to allow nurse practitioners to practice more independently. The committee that reviewed the regulations considered that issue and modified the regulation within the context of the statute. The regulated community understands that any significant changes necessitate amendments to the Code of Virginia.
The Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. As a part of the periodic review process, the Joint Boards of Nursing and Medicine (Joint Boards) propose to amend their Regulations Governing Licensure of Nurse Practitioners and Regulations Governing Prescriptive Authority for Nurse Practitioners to make several clarifying and substantive changes. The Joint Boards propose to:
1. clarify and update regulations with current terminology and other DHP board practices,1
2. specify the evidence of coursework leading to specialty licensure that must be submitted with an initial application,
3. clarify that a copy of the written protocol agreement between nurse practitioners and the doctors that supervise them must be maintained, 2
4. modify the definition of supervision to clarify that both the licensed nurse practitioner and the supervising physician are responsible for the patient and for collaboration on the patient’s course of treatment,
5. provide a definition of a "nonprofit health care clinic",
6. add rules for prescribing for self and family by nurse practitioners with prescriptive authority,
7. require that one member of the Joint Boards of Nursing and Medicine (one representative from the Board of Nursing) be a nurse practitioner,
8. allow category 1 continuing medical education to be used to meet continuing competency requirements for nurse practitioners,
9. allow submission of continuing education as evidence of competency for reinstatement and
10. allow for "regular" rather than "monthly" chart reviews.
Result of Analysis. The benefits likely exceed the costs for all proposed changes.
Estimated Economic Impact. Several of the changes that the Joint Boards propose to make as a part of the periodic review process (specifically, those encompassed by bullet points one through five on the list above) aim to bring greater clarity to these regulations. These changes are either standing Board policy being moved to regulation or other clarifications; for example, the Joint Boards propose to add language that explicitly states that licensees may not practice with a lapsed (or otherwise invalid) license, as required by the Code of Virginia, rather than assuming that this rule is understood and does not need to be in the text of the regulations. These changes ought not represent a change in practice for regulated entities of the Joint Boards and, so, regulated entities will likely not incur any costs on account of these changes. Having these rules more clearly spelled out ought to, however, provide a benefit for individuals who are either affected by these regulations or are interested in knowing the rules under which nurse practitioners must operate.
Current regulations do not have explicit rules that nurse practitioners must follow when prescribing medication for themselves or for family members. Doctors who supervise nurse practitioners, however, do have explicit rules for such prescriptions. Currently, doctors may not prescribe any drugs, other than schedule VI drugs, unless 1) the prescribing occurs in an emergency situation or in isolated settings where there is no other qualified practitioner available to the patient, or 2) it is for a single episode of an acute illness through one prescribed course of medication. Whether prescribing schedule VI drug or prescribing other drugs in exceptional circumstances, doctors must maintain statutorily required patient records. The Joint Boards propose to amend current regulations so that rules identical to those that apply to doctors when prescribing for themselves or family members are also explicitly laid out for nurse practitioners. Current prescribing practice of nurse practitioners should already be consistent with that of supervising doctors. The Department of Health Professions (DHP) reports that, to the extent that practices between nurse practitioners and doctors now diverge, nurse practitioners may not be prescribing for themselves or family members even to the extent allowed because they erroneously believe that it is against the rules to write such prescriptions at all. To the extent that nurse practitioners are ignorant of current (Board of Medicine) rules for prescribing for self and family, this regulatory change will provide the benefit of clarity.
Current regulations direct the president of the Board of Nursing and the president of the Board of Medicine to each appoint three members to the Joint Boards of Nursing and Medicine which administers regulations for nurse practitioners. Current regulations are silent on the professional licensure of those appointed. During the last legislative session, the General Assembly mandated that at least one member of the Board of Nursing be a nurse practitioner. The Boards propose to amend these regulations to also require that one of the Board of Nursing’s representatives to the Joint Boards be a nurse practitioner. This proposed change will not require a change to the current composition of the Joint Boards as two members are already nurse practitioners. There is likely a benefit in having at least one nurse practitioner on the Joint Boards as this individual (these individuals) will likely be better able to speak to how any new rulemaking activity will impact the practice of other nurse practitioners.
Current regulations require nurse practitioners to complete 40 hours of continuing education biennially and have a list of allowable sources for that continuing education. The Joint Boards propose to add American Medical Association (AMA) approved Category 1 continuing medical education to the list of approved continuing education options from which nurse practitioners may choose. No regulated entity is likely to incur any costs on account of this regulatory change. Nurse practitioners will likely benefit from this change as it will allow them a wider array of educational opportunities to choose from. This may also allow licensees to obtain required continuing education at reduced cost if additional continuing education options include some that cost less than those that are currently approved.
Current regulations require nurse practitioners who are seeking license reinstatement to submit, among other things, "evidence of current certification" (acceptable for Virginia licensure) or licensure or certification from another jurisdiction. The Joint Boards propose to add the option of providing proof of "continuing education hours taken during the period in which the license was lapsed, equal to the number required for licensure renewal during that period, not to exceed 120 hours". This proposed change will benefit nurse practitioners as it will allow greater flexibility in choosing the least costly and/or most convenient path to reinstatement should their licenses lapse.
Current regulations require that supervising physicians conduct monthly, random reviews of patient charts on which nurse practitioners (that they supervise) have entered prescriptions for approved drugs or devices. DHP notes that doctors and nurse practitioners likely engage in "on-going collaboration and consultation on patient care" that is likely as frequent as it needs to be for individual patients (at each visit for patient they see frequently or every couple of months for patients who are on maintenance medication and only see their doctors quarterly). Under those circumstances, requiring monthly records reviews likely add unnecessarily to doctors’ workload and record keeping burden. The Joint Boards propose to only require random patient record review on a regular, rather than monthly, basis. This change will benefit doctors and nurse practitioners by allowing them greater freedom to agree on a schedule of random record checks that takes into account their specific patients’ needs.
Businesses and Entities Affected. The Department of Health Professions (DHP) reports that the Joint Boards currently license 5,504 nurse practitioners; 3,184 of these licensees also have prescriptive authority.
Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.
Projected Impact on Employment. To the extent that changes to the requirements for reinstatement of licensure encourages more nurse practitioners to hold current Virginia licenses, this regulatory action may slightly increase the number of licensed nurse practitioners in the Commonwealth. Since nurse practitioners can not practice independently, this regulatory action will likely only increase employment in this field if there are currently doctors who want to have nurse practitioners in their practices but do not currently because none are available for hire.
Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.
Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.
Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.
Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.
Legal Mandate. 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 Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.
____________________________
1 For
example, this includes such changes as allowing hearings to be conducted by
agency subordinates, and eliminating extensions "for good cause
shown" due to the inherent difficulty of enforcing such language.
2 This provision is being inserted due to a 2007 audit
in which the board found that some nurse practitioners were unaware that they
were required to maintain a protocol with a supervising physician.
Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Boards of Nursing and Medicine concur with the analysis of the Department of Planning and Budget for the proposed amendments to 18VAC90-30, Regulations Governing the Practice of Nurse Practitioners and 18VAC90-40, Regulations Governing Prescriptive Authority for Nurse Practitioners.
Summary:
The proposed amendments (i) clarify and update regulations with current terminology and other Department of Health Professions board practices, (ii) specify the evidence of coursework leading to specialty licensure that must be submitted with an initial application, (iii) clarify that a copy of the written protocol agreement between nurse practitioners and the doctors that supervise them must be maintained, (iv) modify the definition of supervision to clarify that both the licensed nurse practitioner and the supervising physician are responsible for the patient and for collaboration on the patient’s course of treatment, (v) define "nonprofit health care clinics," (vi) establish provisions for prescribing for self and family by nurse practitioners with prescriptive authority, (vii) require that one member of the Joint Boards of Nursing and Medicine (one representative from the Board of Nursing) be a nurse practitioner, (viii) allow Category 1 continuing medical education to be used to meet continuing competency requirements for nurse practitioners, (ix) allow submission of continuing education as evidence of competency for reinstatement, and (x) allow for "regular" rather than "monthly" chart reviews.
Part I
General Provisions
18VAC90-30-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Approved program" means a nurse practitioner education program that is accredited by the Council on Accreditation of Nurse Anesthesia Educational Programs/Schools, American College of Nurse Midwives, Commission on Collegiate Nursing Education or the National League for Nursing Accrediting Commission or is offered by a school of nursing or jointly offered by a school of medicine and a school of nursing which grant a graduate degree in nursing and which hold a national accreditation acceptable to the boards.
"Boards" means the Virginia Board of Nursing and the Virginia Board of Medicine.
"Committee" means the Committee of the Joint Boards of Nursing and Medicine.
"Controlling institution" means the college or university offering a nurse practitioner education program.
"Licensed nurse practitioner" means a registered nurse who has met the requirements for licensure as stated in Part II (18VAC90-30-60 et seq.) of this chapter.
"Licensed physician" means a person licensed by the
Board of Medicine to practice medicine or osteopathy osteopathic
medicine.
"National certifying body" means a national organization that is accredited by an accrediting agency recognized by the U. S. Department of Education or deemed acceptable by the National Council of State Boards of Nursing and has as one of its purposes the certification of nurse anesthetists, nurse midwives or nurse practitioners, referred to in this chapter as professional certification, and whose certification of such persons by examination is accepted by the committee.
"Preceptor" means a physician or a licensed nurse practitioner who supervises and evaluates the nurse practitioner student.
"Protocol" means a written statement, jointly developed by the collaborating physician(s) and the licensed nurse practitioner(s), that directs and describes the procedures to be followed and the delegated medical acts appropriate to the specialty practice area to be performed by the licensed nurse practitioner(s) in the care and management of patients.
18VAC90-30-20. Delegation of authority.
A. The boards hereby delegate to the executive director of the Virginia Board of Nursing the authority to issue the initial licensure and the biennial renewal of such licensure to those persons who meet the requirements set forth in this chapter and to grant extensions or exemptions for compliance with continuing competency requirements as set forth in subsection E of 18VAC90-30-105. Questions of eligibility shall be referred to the Committee of the Joint Boards of Nursing and Medicine.
B. All records and files related to the licensure of nurse practitioners shall be maintained in the office of the Virginia Board of Nursing.
18VAC90-30-30. Committee of the Joint Boards of Nursing and Medicine.
A. The presidents of the Boards of Nursing and Medicine respectively shall each appoint three members from their boards to the Committee of the Joint Boards of Nursing and Medicine; at least one of the appointees from the Board of Nursing shall be a licensed nurse practitioner. The purpose of this committee shall be to administer the Regulations Governing the Licensure of Nurse Practitioners, 18VAC90-30-10 et seq.
B. The committee, in its discretion, may appoint an advisory committee. Such an advisory committee shall be comprised of four licensed physicians and four licensed nurse practitioners, of whom one shall be a certified nurse midwife, one shall be a certified registered nurse anesthetist and two shall be nurse practitioners from other categories. Appointment to the advisory committee shall be for four years; members may be appointed for one additional four-year period.
18VAC90-30-80. Qualifications for initial licensure.
A. An applicant for initial licensure as a nurse practitioner shall:
1. Hold a current, active license as a registered nurse in Virginia or hold a current multistate licensure privilege as a registered nurse;
2. Submit evidence of a graduate degree in nursing or in the appropriate nurse practitioner specialty from an educational program designed to prepare nurse practitioners that is an approved program as defined in 18VAC90-30-10. Evidence shall include a transcript that shows that the applicant has successfully completed core coursework that prepares the applicant for licensure in the appropriate specialty;
3. Submit evidence of professional certification that is consistent with the specialty area of the applicant's educational preparation issued by an agency accepted by the boards as identified in 18VAC90-30-90;
4. File the required application; and
5. Pay the application fee prescribed in 18VAC90-30-50.
B. Provisional licensure may be granted to an applicant who satisfies all requirements of this section with the exception of subdivision A 3 of this section, provided the board has received evidence of the applicant's eligibility to sit for the certifying examination directly from the national certifying body. An applicant may practice with a provisional license for either six months from the date of issuance or until issuance of a permanent license or until he receives notice that he has failed the certifying examination, whichever occurs first.
18VAC90-30-85. Qualifications for licensure by endorsement.
A. An applicant for licensure by endorsement as a nurse practitioner shall:
1. Provide verification of licensure as a nurse practitioner or advanced practice nurse in another U.S. jurisdiction with a license in good standing, or, if lapsed, eligible for reinstatement;
2. Submit evidence of professional certification that is consistent with the specialty area of the applicant's educational preparation issued by an agency accepted by the boards as identified in 18VAC90-30-90; and
3. Submit the required application and fee as prescribed in 18VAC90-30-50.
B. An applicant shall provide evidence that includes a transcript that shows successful completion of core coursework that prepares the applicant for licensure in the appropriate specialty.
18VAC90-30-100. Renewal of licensure.
A. Licensure of a nurse practitioner shall be renewed:
1. Biennially at the same time the license to practice as a registered nurse in Virginia is renewed; or
2. If licensed as a nurse practitioner with a multistate licensure privilege to practice in Virginia as a registered nurse, a licensee born in even-numbered years shall renew his license by the last day of the birth month in even-numbered years and a licensee born in odd-numbered years shall renew his license by the last day of the birth month in odd-numbered years.
B. The application for renewal notice of the
license shall be mailed by the committee to the last known address of
each nurse practitioner. Failure to receive the renewal notice shall not
relieve the licensee of the responsibility for renewing the license by the
expiration date.
C. The licensed nurse practitioner shall complete the
application and return it with his signature attesting attest to
compliance with continuing competency requirements of current professional
certification or continuing education as prescribed in 18VAC90-30-105 and
the license renewal fee prescribed in 18VAC90-30-50.
D. The license shall automatically lapse if the licensee fails to renew by the expiration date. Any person practicing as a nurse practitioner during the time a license has lapsed shall be subject to disciplinary actions by the boards.
18VAC90-30-105. Continuing competency requirements.
A. In order to renew a license biennially, a nurse practitioner initially licensed on or after May 8, 2002, shall hold current professional certification in the area of specialty practice from one of the certifying agencies designated in 18VAC90-30-90.
B. In order to renew a license biennially on or after January 1, 2004, nurse practitioners licensed prior to May 8, 2002, shall meet one of the following requirements:
1. Hold current professional certification in the area of specialty practice from one of the certifying agencies designated in 18VAC90-30-90; or
2. Complete at least 40 hours of continuing education in the area of specialty practice approved by one of the certifying agencies designated in 18VAC90-30-90 or approved by Accreditation Council for Continuing Medical Education (ACCME) of the American Medical Association as a Category I Continuing Medical Education (CME) course.
C. The nurse practitioner shall retain evidence of compliance and all supporting documentation for a period of four years following the renewal period for which the records apply.
D. The boards shall periodically conduct a random audit of
at least 1.0% of its licensees to determine compliance. The nurse
practitioners selected for the audit shall provide the evidence of compliance
and supporting documentation within 30 days of receiving notification of the
audit.
E. The boards may grant an extension of the deadline for
continuing competency requirements for up to one year for good cause shown upon
a written request from the licensee prior to the renewal date.
F. E. The boards may delegate to the
committee the authority to grant an extension or exemption for all
or part of the requirements for circumstances beyond the control of the
licensee, such as temporary disability, mandatory military service, or
officially declared disasters.
18VAC90-30-110. Reinstatement of license.
A. A licensed nurse practitioner whose license has lapsed may be reinstated within one renewal period by payment of the current renewal fee and the late renewal fee.
B. An applicant for reinstatement of license lapsed for more than one renewal period shall:
1. File the required application and reinstatement fee;
2. Be currently licensed as a registered nurse in Virginia or hold a current multistate licensure privilege as a registered nurse; and
3. Provide evidence of current professional competency consisting of:
a. Current professional certification by the appropriate certifying agency identified in 18VAC90-30-90;
b. Continuing education hours taken during the period in
which the license was lapsed, equal to the number required for licensure
renewal during that period, not to exceed 120 hours; or, if
c. If applicable, current, unrestricted licensure or certification in another jurisdiction.
C. An applicant for reinstatement of license following suspension or revocation shall:
1. Petition for a reinstatement and pay the
reinstatement fee;
2. Present evidence that he is currently licensed as a Registered
Nurse registered nurse in Virginia or hold a current multistate
licensure privilege as a registered nurse; and
3. Present evidence that he is competent to resume practice as
a licensed nurse practitioner in Virginia. to include:
a. Current professional certification by the appropriate certifying agency identified in 18VAC90-30-90; or
b. Continuing education hours taken during the period in which the license was suspended or revoked, equal to the number required for licensure renewal during that period, not to exceed 120 hours.
The committee shall act on the petition pursuant to the Administrative Process Act, § 2.2-4000 et seq. of the Code of Virginia.
Part III
Practice of Licensed Nurse Practitioners
18VAC90-30-120. Practice of licensed nurse practitioners other than certified nurse midwives.
A. A nurse practitioner licensed in a category other than certified nurse midwife shall be authorized to engage in practices constituting the practice of medicine in collaboration with and under the medical direction and supervision of a licensed physician.
B. The practice of licensed nurse practitioners shall be based on specialty education preparation as a nurse practitioner in accordance with standards of the applicable certifying organization and written protocols as defined in 18VAC90-30-10.
C. The licensed nurse practitioner shall maintain a copy of the written protocol and shall make it available to the boards upon request. The written protocol shall include the nurse practitioner's authority for signatures, certifications, stamps, verifications, affidavits, referral to physical therapy, and endorsements provided it is:
1. In accordance with the specialty license of the nurse practitioner and with the scope of practice of the supervising physician;
2. Permitted by § 54.1-2957.02 or applicable sections of the Code of Virginia; and
3. Not in conflict with federal law or regulation.
D. A certified registered nurse anesthetist shall practice in
accordance with the functions and standards defined by the American Association
of Nurse Anesthetists (Scope and Standards for Nurse Anesthesia Practice,
Revised 2005) and under the medical direction and supervision of a doctor of
medicine or a doctor of osteopathy osteopathic medicine or the
medical direction and supervision of a dentist in accordance with rules and
regulations promulgated by the Board of Dentistry.
E. For purposes of this section, the following definitions shall apply:
"Collaboration" means the process by which a nurse practitioner, in association with a physician, delivers health care services within the scope of practice of the nurse practitioner's professional education and experience and with medical direction and supervision, consistent with this chapter.
"Medical direction and supervision" means participation in the development of a written protocol including provision for periodic review and revision; development of guidelines for availability and ongoing communications that provide for and define consultation among the collaborating parties and the patient; and periodic joint evaluation of services provided, e.g., chart review, and review of patient care outcomes. Guidelines for availability shall address at a minimum the availability of the collaborating physician proportionate to such factors as practice setting, acuity, and geography.
18VAC90-30-121. Practice of nurse practitioners licensed as certified nurse midwives.
A. A nurse practitioner licensed as a certified nurse midwife shall be authorized to engage in practices constituting the practice of medicine in collaboration and consultation with a licensed physician.
B. The practice of certified nurse midwives shall be based on specialty education preparation as a nurse practitioner and in accordance with standards of the applicable certifying organization and written protocols as defined in 18VAC90-30-10.
C. The licensed nurse practitioner shall maintain a copy of the written protocol and shall make it available to the boards upon request. The written protocol shall include the nurse practitioner's authority for signatures, certifications, stamps, verifications, affidavits, referral to physical therapy, and endorsements provided it is:
1. In accordance with the specialty license of the nurse practitioner and within the scope of practice of the supervising physician;
2. Permitted by § 54.1-2957.02 of the Code of Virginia or applicable sections of the Code of Virginia; and
3. Not in conflict with federal law or regulation.
D. A certified nurse midwife, in collaboration and consultation with a duly licensed physician, shall practice in accordance with the Standards for the Practice of Nurse-Midwifery (Revised 2003) defined by the American College of Nurse-Midwives.
E. For purposes of this section, the following definition shall apply:
"Collaboration and consultation" means practice in accordance with the Standards for the Practice of Midwifery (Revised 2003) defined by the American College of Nurse-Midwives to include participation in the development of a written protocol including provision for periodic review and revision; development of guidelines for availability and ongoing communications that provide for and define consultation among the collaborating parties and the patient; periodic joint evaluation of services provided; and review of patient care outcomes. Guidelines for availability shall address at a minimum the availability of the collaborating physician proportionate to such factors as practice setting, acuity, and geography.
Part IV
Disciplinary Provisions
18VAC90-30-220. Grounds for disciplinary action against the license of a licensed nurse practitioner.
The boards may deny licensure or relicensure, revoke or
suspend the license, or place on probation, censure or reprimand a nurse
practitioner take other disciplinary action upon proof that the
nurse practitioner:
1. Has had his a license or multistate
privilege to practice nursing in this Commonwealth or in another
jurisdiction revoked or suspended or otherwise disciplined;
2. Has directly or indirectly held himself out or
represented himself to the public that he the nurse
practitioner is a physician, or is able to, or will practice independently
of a physician;
3. Has exceeded his the authority as a licensed
nurse practitioner;
4. Has violated or cooperated in the violation of the laws or regulations governing the practice of medicine, nursing or nurse practitioners;
5. Has become unable to practice with reasonable skill and safety to patients as the result of a physical or mental illness or the excessive use of alcohol, drugs, narcotics, chemicals or any other type of material;
6. Has violated or cooperated with others in violating or attempting to violate any law or regulation, state or federal, relating to the possession, use, dispensing, administration or distribution of drugs; or
7. Has failed to comply with continuing competency requirements as set forth in 18VAC90-30-105.
18VAC90-30-230. Hearings Administrative proceedings.
A. The provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall govern proceedings on questions of violation of 18VAC90-30-220.
B. The Except as provided in 18VAC90-30-240, the
Committee of the Joint Boards of Nursing and Medicine shall conduct all
proceedings prescribed herein and shall take action on behalf of the boards.
C. When a person's license to practice nursing has been suspended or revoked by the Board of Nursing, the nurse practitioner license shall be suspended pending a hearing simultaneously with the institution of proceedings for a hearing.
D. Sanctions or other terms and conditions imposed by consent orders entered by the Board of Nursing on the license to practice nursing may apply to the nurse practitioner license, provided the consent order has been accepted by the Committee of the Joint Boards of Nursing and Medicine.
Part I
General Provisions
18VAC90-40-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
"Boards" means the Virginia Board of Medicine and the Virginia Board of Nursing.
"Committee" means the Committee of the Joint Boards of Nursing and Medicine.
"Nonprofit health care clinics or programs" means a clinic organized in whole or in part for the delivery of health care services without charge or when a reasonable minimum fee is charged only to cover administrative costs.
"Nurse practitioner" means a registered nurse who
has met the additional requirements of education and examination for
licensure as a nurse practitioner in the Commonwealth for licensure as a
nurse practitioner as stated in 18VAC90-30.
"Practice agreement" means a written agreement jointly developed by the supervising physician and the nurse practitioner that describes and directs the prescriptive authority of the nurse practitioner.
"Supervision" means that the physician documents
being readily available for medical consultation by with the
licensed nurse practitioner or the patient, with the physician maintaining
ultimate responsibility collaborating with the nurse practitioner
for the agreed-upon course of treatment and medications prescribed.
18VAC90-40-20. Authority and administration of regulations.
A. The statutory authority for this chapter is found in §§ 54.1-2957.01, 54.1-3303, 54.1-3401, and 54.1-3408 of the Code of Virginia.
B. Joint boards of nursing and medicine.
1. The Committee of the Joint Boards of Nursing and Medicine shall be appointed to administer this chapter governing prescriptive authority.
2. The boards hereby delegate to the Executive Director of the Virginia Board of Nursing the authority to issue the initial authorization and biennial renewal to those persons who meet the requirements set forth in this chapter and to grant extensions or exemptions for compliance with continuing competency requirements as set forth in subsection E of 18VAC90-40-55. Questions of eligibility shall be referred to the committee.
3. All records and files related to prescriptive authority for nurse practitioners shall be maintained in the office of the Board of Nursing.
18VAC90-40-40. Qualifications for initial approval of prescriptive authority.
An applicant for prescriptive authority shall meet the following requirements:
1. Hold a current, unrestricted license as a nurse practitioner in the Commonwealth of Virginia; and
2. Provide evidence of one of the following:
a. Continued professional certification as required for initial licensure as a nurse practitioner; or
b. Satisfactory completion of a graduate level course in pharmacology or pharmacotherapeutics obtained as part of the nurse practitioner education program within the five years prior to submission of the application; or
c. Practice as a nurse practitioner for no less than 1000 hours and 15 continuing education units related to the area of practice for each of the two years immediately prior to submission of the application; or
d. Thirty contact hours of education in pharmacology or pharmacotherapeutics acceptable to the boards taken within five years prior to submission of the application. The 30 contact hours may be obtained in a formal academic setting as a discrete offering or as noncredit continuing education offerings and shall include the following course content:
(1) Applicable federal and state laws;
(2) Prescription writing;
(3) Drug selection, dosage, and route;
(4) Drug interactions;
(5) Information resources; and
(6) Clinical application of pharmacology related to specific scope of practice.
3. Submit a practice agreement between the nurse practitioner
and the supervising physician as required in 18VAC90-40-90 of this chapter.
The practice agreement must be approved by the boards prior to issuance of
prescriptive authority; and
4. File a completed application and pay the fees as required
in 18VAC90-40-70 of this chapter.
18VAC90-40-50. Renewal of prescriptive authority.
An applicant for renewal of prescriptive authority shall:
1. Renew biennially at the same time as the renewal of licensure to practice as a nurse practitioner in Virginia.
2. Submit a completed renewal application along with his
signature form attesting to compliance with continuing competency
requirements set forth in 18VAC90-40-55 and the renewal fee as prescribed in
18VAC90-40-70.
3. Submit a new practice agreement which meets the
requirements of 18VAC90-40-90 with the renewal application if there has been a
change since the last practice agreement was filed.
18VAC90-40-55. Continuing competency requirements.
A. In order to renew prescriptive authority, a licensee shall meet continuing competency requirements for biennial renewal as a licensed nurse practitioner. Such requirements shall address issues such as ethical practice, an appropriate standard of care, patient safety, and appropriate communication with patients.
B. In addition to the minimal requirements for compliance
with subsection B of 18VAC90-30-105, a A nurse practitioner with
prescriptive authority shall obtain a total of eight hours of continuing
education in pharmacology or pharmacotherapeutics for each biennium in
addition to the minimal requirements for compliance with subsection B of
18VAC90-30-105.
C. The nurse practitioner with prescriptive authority shall retain evidence of compliance and all supporting documentation for a period of four years following the renewal period for which the records apply.
D. The boards shall periodically conduct a random audit of at
least 1.0% of its licensees to determine compliance. The nurse
practitioners selected for the audit shall provide the evidence of compliance
and supporting documentation within 30 days of receiving notification of the
audit.
E. The boards may grant an extension of the deadline for
continuing competency requirements for up to one year for good cause shown upon
a written request from the licensee prior to the renewal date.
F. E. The boards may delegate to the committee
the authority to grant an extension or an exemption for all or part of
the requirements for circumstances beyond the control of the licensee, such as
temporary disability, mandatory military service, or officially declared
disasters.
18VAC90-40-60. Reinstatement of prescriptive authority.
A. A nurse practitioner whose prescriptive authority has lapsed may reinstate within one renewal period by payment of the current renewal fee and the late renewal fee.
B. A nurse practitioner who is applying for reinstatement of lapsed prescriptive authority after one renewal period shall:
1. File the required application and a new practice
agreement as required for renewal in 18VAC90-40-50;
2. Provide evidence of a current, unrestricted license to practice as a nurse practitioner in Virginia;
3. Pay the fee required for reinstatement of a lapsed authorization as prescribed in 18VAC90-40-70; and
4. If the authorization has lapsed for a period of two or more years, the applicant shall provide proof of:
a. Continued practice as a licensed nurse practitioner with prescriptive authority in another state; or
b. Continuing education, in addition to the minimal requirements for current professional certification, consisting of four contact hours in pharmacology or pharmacotherapeutics for each year in which the prescriptive authority has been lapsed in the Commonwealth, not to exceed a total of 16 hours.
C. An applicant for reinstatement of suspended or revoked authorization shall:
1. Request a hearing pursuant to the provisions of the Virginia
Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) to be
held before the committee Petition for reinstatement and pay the fee for
reinstatement of a suspended or revoked authorization as prescribed in
18VAC90-40-70;
2. Present evidence of competence to resume practice as a nurse practitioner with prescriptive authority; and
3. Pay the fee for reinstatement of a suspended or revoked
authorization as prescribed in 18VAC90-40-70; and
4. 3. Meet the qualifications and resubmit the
application required for initial authorization in 18VAC90-40-40.
Part III
Practice Requirements
18VAC90-40-90. Practice agreement.
A. A nurse practitioner with prescriptive authority may prescribe only within the scope of a written practice agreement with a supervising physician to be submitted with the initial application for prescriptive authority.
B. A new practice agreement shall be submitted: 1. With
the initial application for prescriptive authority; or 2. With the application for
each biennial renewal, if At any time there have been any are
changes in supervision the primary supervising physician,
authorization to prescribe, or scope of practice; or 3. At any time a
change in the primary supervising physician shall occur, the nurse
practitioner shall submit a revised practice agreement to the board.
C. The practice agreement shall contain the following:
1. A description of the prescriptive authority of the nurse practitioner within the scope allowed by law and the practice of the nurse practitioner.
2. An authorization for categories of drugs and devices within the requirements of § 54.1-2957.01 of the Code of Virginia.
3. The signatures of the primary supervising physician and any secondary physician who may be regularly called upon in the event of the absence of the primary physician.
18VAC90-40-100. Supervision and site visits.
A. In accordance with § 54.1-2957.01 of the Code of Virginia, physicians who enter into a practice agreement with a nurse practitioner for prescriptive authority shall supervise and direct, at any one time, no more than four nurse practitioners with prescriptive authority.
B. Except as provided in subsection C of this section, physicians shall regularly practice in any location in which the licensed nurse practitioner exercises prescriptive authority.
1. A separate practice setting may not be established for the nurse practitioner.
2. A supervising physician shall conduct a monthly regular,
random review of patient charts on which the nurse practitioner has entered a
prescription for an approved drug or device.
C. Physicians who practice with a certified nurse midwife or with a nurse practitioner employed by or under contract with local health departments, federally funded comprehensive primary care clinics, or nonprofit health care clinics or programs shall:
1. Either regularly practice at the same location with the nurse practitioner or provide supervisory services to such separate practices by making regular site visits for consultation and direction for appropriate patient management. The site visits shall occur in accordance with the protocol, but no less frequently than once a quarter.
2. Conduct a monthly regular, random review of
patient charts on which the nurse practitioner has entered a prescription for
an approved drug or device.
18VAC90-40-121. Prescribing for self or family.
A. Treating or prescribing shall be based on a bona fide practitioner-patient relationship, and prescribing shall meet the criteria set forth in § 54.1-3303 of the Code of Virginia.
B. A nurse practitioner shall not prescribe a controlled substance to himself or a family member, other than Schedule VI as defined in § 54.1-3455 of the Code of Virginia, unless the prescribing occurs in an emergency situation or in isolated settings where there is no other qualified practitioner available to the patient, or it is for a single episode of an acute illness through one prescribed course of medication.
C. When treating or prescribing for self or family, the nurse practitioner shall maintain a patient record documenting compliance with statutory criteria for a bona fide practitioner-patient relationship.
Part IV
Discipline
18VAC90-40-130. Grounds for disciplinary action.
The boards may deny approval of prescriptive authority, revoke or suspend authorization, or take other disciplinary actions against a nurse practitioner who:
1. Exceeds his authority to prescribe or prescribes outside of the written practice agreement with the supervising physician;
2. Has had his license as a nurse practitioner suspended,
revoked or otherwise disciplined by the boards pursuant to 18VAC90-30-220 and
18VAC85-70-220;
3. Fails to comply with requirements for continuing competency as set forth in 18VAC90-40-55.
18VAC90-40-140. Hearings Administrative proceedings.
A. The Except as provided for delegation of
proceedings to an agency subordinate in 18VAC90-30-240, the Committee of
the Joint Boards of Nursing and Medicine shall conduct all hearings prescribed
herein and shall take action on behalf of the boards.
B. The provisions of the Administrative Process Act (§
2.2-4000 et seq. of the Code of Virginia) shall govern proceedings on questions
of violation of 18VAC90-40-130 nurse practitioner with prescriptive
authority shall be subjective to the grounds for disciplinary action set forth
in 18VAC90-30-220.
C. When the license of a nurse practitioner has been suspended or revoked by the joint boards, prescriptive authority shall be suspended pending a hearing simultaneously with the institution of proceedings for a hearing.
D. Any violation of law or of this chapter may result in disciplinary action including the revocation or suspension of prescriptive authority and may also result in additional sanctions imposed on the license of the nurse practitioner by the joint boards or upon the license of the registered nurse by the Board of Nursing.
VA.R. Doc. No. R09-1299; Filed October 22, 2008, 9:25 a.m.
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TITLE 19. PUBLIC SAFETY
VIRGINIA FIRE SERVICES BOARD
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Titles of Regulations: 19VAC15-10. Guidelines for
Public Participation in Regulation Development and Promulgation (repealing 19VAC15-10-10 through 19VAC15-10-50).
19VAC15-11. Public Participation Guidelines (adding 19VAC15-11-10 through 19VAC15-11-110).
Statutory Authority: §§ 2.2-4007.02 and 9.1-203 of the Code of Virginia.
Effective Date: December 10, 2008.
Agency Contact: Brook M. Pittinger, Policy, Planning and Legislative Manager, Department of Fire Programs, 1005 Technology Park Drive, Glen Allen, VA 23509, telephone (804) 371-0220, FAX (804) 371-3444, or email brook.pittinger@vdfp.virginia.gov.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
19VAC15-11-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Virginia Fire Services Board. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
19VAC15-11-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Virginia Fire Services Board, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
19VAC15-11-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.
19VAC15-11-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 19VAC15-11-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
19VAC15-11-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
19VAC15-11-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
19VAC15-11-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
19VAC15-11-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
19VAC15-11-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
19VAC15-11-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
19VAC15-11-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1498; Filed October 22, 2008, 8:09 a.m.
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TITLE 22. SOCIAL SERVICES
DEPARTMENT FOR THE AGING
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Titles of Regulations: 22VAC5-10. Public
Participation Guidelines (repealing 22VAC5-10-10 through
22VAC5-10-110).
22VAC5-11. Public Participation Guidelines (adding 22VAC5-11-10 through 22VAC5-11-110).
Statutory Authority: §§ 2.2-4007.02 and 2.2-700 of the Code of Virginia.
Effective Date: January 1, 2009.
Agency Contact: Janet James, Esquire, Legal Services Developer, Department for the Aging, 1610 Forest Ave., Suite 100, Richmond, VA 23229, telephone (804) 662-7049, FAX (804) 662-9354, or email janet.james@vda.virginia.gov.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
22VAC5-11-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department for the Aging. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
22VAC5-11-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Department for the Aging, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
22VAC5-11-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.
22VAC5-11-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 22VAC5-11-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
22VAC5-11-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
22VAC5-11-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
22VAC5-11-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
22VAC5-11-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
22VAC5-11-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
22VAC5-11-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
22VAC5-11-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1500; Filed October 21, 2008, 8:39 a.m.
DEPARTMENT FOR THE BLIND AND VISION IMPAIRED
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Titles of Regulations: 22VAC45-11. Public
Participation Guidelines (repealing 22VAC45-11-10 through
22VAC45-11-90).
22VAC45-12. Public Participation Guidelines (adding 22VAC45-12-10 through 22VAC45-12-110).
Statutory Authority: §§ 2.2-4007.02 and 51.5-65 of the Code of Virginia.
Effective Date: December 1, 2008.
Agency Contact: Eva F. Ampey, Special Assistant to the Commissioner, Department for the Blind and Vision Impaired, 397 Azalea Avenue, Richmond, VA 23227, telephone (804) 371-3110, FAX (804) 371-3157, TTY (804) 371-3140, or email eva.ampey@dbvi.virginia.gov.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 12
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
22VAC45-12-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department for the Blind and Vision Impaired. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
22VAC45-12-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Department for the Blind and Vision Impaired, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
22VAC45-12-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.(REPEALED)
22VAC45-12-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 22VAC45-12-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
22VAC45-12-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
22VAC45-12-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
22VAC45-12-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
22VAC45-12-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
22VAC45-12-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
22VAC45-12-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
22VAC45-12-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1506; Filed October 22, 2008, 12:02 p.m.
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TITLE 23. TAXATION
DEPARTMENT OF TAXATION
Forms
NOTICE: The following forms have been filed by the Department of Taxation. The forms are available for public inspection at the Department of Taxation, 3610 West Broad Street, Richmond, VA 23230, or at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219. Copies of the forms may be obtained from Jennifer Lewis, Policy Analyst, Department of Taxation, P. O. Box 27185, Richmond, VA 23261-7185, telephone 804, 371-2341 or email jennifer.lewis@tax.virginia.gov.
Titles of Regulations: 23VAC10-20. General Provisions
Applicable to All Taxes Administered by the Department of Taxation.
23VAC10-55. Virginia Corn Excise Tax.
23VAC10-60. Virginia Egg Excise Tax.
23VAC10-65. Virginia Peanut Excise Tax.
23VAC10-75. Virginia Soybean Excise Tax Regulations.
23VAC10-220. Aircraft Sales and Use Tax.
23VAC10-230. Watercraft Sales and Use Tax.
23VAC10-310. Tax on Wills and Administration.
23VAC10-330. Bank Franchise Tax.
23VAC10-350. Forest Products Tax Regulations.
23VAC10-370. Cigarette Tax Regulations.
23VAC10-390. Virginia Soft Drink Excise Tax Regulations.
FORMS (23VAC10-20)
Power of Attorney and Declaration of Representation, PAR 101 (rev. 6/06).
Offer in Compromise Business Request for Settlement, OIC-Bus (eff. 11/08).
Offer in Compromise Individual Request for Settlement, Form 21 OIC-Ind (eff. 11/08).
FORMS (23VAC10-55)
Virginia Corn Assessment
Return Instructions, Form CT-1 (eff. 7/91) CO-AR W (rev. 5/06).
Business Registration Application, Form R-2 R-1
(rev. 3/08).
FORMS (23VAC10-60)
Virginia Egg Excise Assessment Tax Return, Form
EG-1 (eff. 6/94) (rev. 5/06).
Worksheet for Virginia Egg Board and Conversion
Calculations for Egg Products, Form EG-2 (eff. 6/94) (rev. 5/05).
Business Registration Application, Form R-1 R-2
(rev. 3/08).
FORMS (23VAC10-65)
Virginia Peanut Excise Tax Return, Form PN-1 (rev. 5/06).
Business Registration Application, Form R-1 (rev. 3/08).
FORMS (23VAC10-75)
Federal Soybean Promotion, Research and Consumer
Assessment Report.
Business Registration Application, Form R-1 R-2
(rev. 3/08).
FORMS (23VAC10-220)
Application for Dealer Exclusion Under the Virginia
Aircraft Sales and Use Tax Act, Form AST-1 (eff. 1/92).
Dealer's Aircraft Sales and Use Tax Return, Form AST-2 (eff.
5/91) (rev. 5/06).
Virginia Aircraft Sales and Use Tax Return, Form AST-3 (eff.
6/84) (rev. 12/06).
Sales and Use Tax Certificate of Exemption (For dealers who purchase tangible personal property for resale, lease or rental), Form ST-10 (rev. 10/99).
Business Registration Application, Form R-1 (rev. 3/08).
FORMS (23VAC10-230)
Dealer's Application for Certificate of Registration, Form
WCT-1.
Virginia Watercraft Sales and Use Tax Return, Form WCT-2 (eff.
10/90) (rev. 7/05).
Dealer's Work Sheet for Computing Virginia Watercraft
Sales and/or and Use Tax Work Sheet, Form WCT-2A (eff.
10/92) (rev. 10/04).
Virginia Watercraft Sales Tax Receipt, Form WCT-3.
Individual Watercraft Tax Worksheet, Form WCT-3A (eff.
5/91) (rev. 9/97).
Consumer's Application for Refund, Form WCT-REFUND.
Sales and Use Tax Certificate of Exemption (For dealers who purchase tangible personal property for resale, lease or rental), Form ST-10 (rev. 10/99).
Business Registration Application, Form R-1 (rev. 3/08).
FORMS (23VAC10-300)
Virginia Estate Tax Return, Form EST-80 (eff. 4/94) (rev.
3/07).
FORMS (23VAC10-310)
Probate Tax Return, Form PT-1 (eff. 6/94) (rev.
6/03).
FORMS (23VAC10-330)
Virginia Bank Franchise Tax 2008, Form 64, Schedules and Instructions (rev. 12/07).
Enterprise Zone Credit, State Bank Franchise Tax, Form 301 (rev. 10/06).
FORMS (23VAC10-350)
Virginia Forest Products Tax Return, Form 1034 (rev. 8/05).
Forest Products Tax Return (Small Manufacturers and
Certain Small Severers), Small Manufacturers and Certain Small Severers,
Form 1035 (rev. 3/05).
Registration Application, Form R-2.
Business Registration Application, Form R-1 (rev. 3/08).
FORMS (23VAC10-370)
Application to Purchase and Affix Virginia Tobacco Revenue
Stamps.
Permit to Purchase and Affix Virginia Tobacco Revenue
Stamps Application for Cigarette Stamping Permit and Tobacco Products
Tax Distributor's License, Form TT-1 (eff. 2/80) (rev. 9/07).
Order for Virginia Cigarette Tax Stamps and Meter Setting,
Form TT-2 (eff. 1/93) (rev. 8/06).
Statement of Virginia Cigarette Tax Stamps Sold and Meter
Setting, Form TT-3 (eff. 10/93).
Report of Virginia Tobacco Tax Meter Setting Virginia
Consumer Cigarette Tax Return, Form TT-7 (rev. 9/06).
Cigarette Tax Credit, Form TT-9 (eff. 3/91).
Statement of Basis for Tobacco Tax Credit Certificate,
Form TT-10 (eff. 5/81).
Virginia Application for Tobacco Tax Credit
Certificate, Form TT-12 (eff. 6/92) (rev. 8/06).
Monthly Report of Resident Cigarette Wholesaler Cigarette
Stamping Agent, Form TT-13 (eff. 8/85) (rev. 2/07).
Monthly Report of Non-Resident Cigarette Wholesaler Stamping
Agent, Form TT-14 (eff. 3/94) (rev. 2/07).
Monthly Report of Cigarette Manufacturer, TT-18 (rev. 11/05).
FORMS (23VAC10-390)
Soft Drink Excise Tax Return, Form 404 (eff. 5/91) (rev.
9/05).
VA.R. Doc. No. R09-1560; Filed October 8, 2008, 12:38 p.m.
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TITLE 24. TRANSPORTATION AND MOTOR VEHICLES
COMMONWEALTH TRANSPORTATION BOARD
Final Regulation
REGISTRAR'S NOTICE: The following regulation filed by the Commonwealth Transportation Board is exempt from the Administrative Process Act in accordance with § 2.2-4002 B 3 of the Code of Virginia, which exempts regulations relating to the location, design, specifications or construction of public buildings or other facilities.
Title of Regulation: 24VAC30-380. Public Hearings for Location and Design of Highway Construction Projects (amending 24VAC30-380-10).
Statutory Authority: §§ 33.1-12 and 33.1-18 of the Code of Virginia.
Effective Date: October 22, 2008.
Agency Contact: Mohammad Mirshahi, P.E., State Location and Design Engineer, Department of Transportation, Location & Design Division, 1401 East Broad Street, 7th Floor Annex, Richmond, VA 23219, telephone (804) 786-2507, FAX (804) 786-5157, or email m.mirshahi.@vdot.virginia.gov.
Summary:
This regulation establishes the general provisions VDOT will follow when presenting its project-related plans, studies, and technical data for public comment, such as rules for implementing the regulation, types of hearings required for different road systems, and exceptions to public hearing requirements. Generally, the amendments have been made to improve the clarity of the regulation, to update statutory references, and to bring the regulation into line with VDOT public hearing policies.
An existing statutory requirement concerning the holding of public hearings when unpaved secondary roads need emergency paving has been added. A provision concerning the types of public hearings that can be held for projects with insignificant public interest or environmental impacts has been amended to eliminate discretion as to what action can be taken. New text explicitly mentioning notices and conditions satisfying public hearing requirements have been added to 24VAC30-380-10 B 4. VDOT has also added new text explicitly stating the agency’s commitment to hold a design public hearing in response to a request related to a notice of willingness, should issues raised in connection with the request be unresolvable through other means.
24VAC30-380-10. Policy, rules, and exclusions from the
public hearing process General provisions.
A. In the development of highway construction projects,
VDOT shall consider a wide range of factors and opportunity shall be allowed
for consideration and participation by public and private interests before
final approval of highway locations or designs, or both. A public hearing held
pursuant to § 33.1-18 of the Code of Virginia is a well-publicized
opportunity for VDOT to present its studies and policies projects
while receiving and documenting comments from affected or interested
citizens. Such hearings will be held in compliance with § 51.5-40 of the
Code of Virginia relating to participation by the disabled in state programs or
activities.
B. In the development of any project, VDOT shall consider
a wide range of factors, and shall allow full opportunity for consideration and
participation by public and private interests before final approval of highway
locations and designs.
C. B. These are the rules that apply to the
implementation of the policy. this regulation:
1. A notice to hold a public hearing or the willingness to hold a public hearing must be stated in public advertisement.
2. All public hearings should be scheduled approximately 60 days in advance. Advertisements must appear 30 days prior to the hearing.
3. The public involvement process must be held in accordance
with applicable federal and state statutes and regulations, including §§ 33.1-18,
33.1-70.2 and 51.5-40 of the Code of Virginia, 23 USC § 128, 23 CFR
Part 771, and 40 CFR Parts 1500-1508, and the provisions of the VDOT Public
Involvement Policy and Procedure Manual, issued 1999.
4. The publication of a notice of willingness to hold a
location public hearing, design public hearing, or a combined public
hearing with no public request for such a hearing by the established
expiration date in the notice, or conducting a public hearing pursuant to
subsection C of this section will satisfy any public hearing requirements.
D. C. If the system is interstate, primary,
urban, or secondary, the following types of hearings will be held for the
following project categories:
1. Projects on proposed roadway corridors, which are predominantly
or completely on new location, require a location public hearing followed
by a design public hearing.
2. Projects with work within the existing roadway
corridor, but with a predominant portion of the work on new
location, require a combined location and design public hearing.
3. Projects within the existing roadway corridor, but
that have a significant social, economic or environmental impact,
require a design public hearing.
4. Projects within the existing roadway corridor where
insignificant public interest or environmental impacts, or both, are
anticipated require a combined location and design public hearing or a
posting publication of a notice of willingness to hold a combined
location and design public hearing. VDOT will hold a design public
hearing if a request for such a hearing is made, and the issues raised in
relation to the request cannot be resolved through any other means.
E. Exclusions D. Exceptions from the public
hearing process. 1. Hearing processes are not required for emergency
projects, as well as those that are solely for highway maintenance or
operational improvements, or both, except when they:
1. Involve emergency paving of unpaved secondary roads pursuant to § 33.1-70.2 of the Code of Virginia;
a. 2. Require the acquisition of additional
right of way;
b. 3. Would have an unfavorable effect upon
abutting real property; or
c. 4. Would change the layout or function of
connecting roads roadways or streets of the facility being
improved.
2. Concurrence by the Federal Highway Administration (FHWA)
must be secured on projects receiving federal participation for any phase,
except emergency situations.
E. The Commonwealth Transportation Commissioner or his designee shall establish administrative procedures to assure the adherence to and compliance with the provisions of this regulation.
DOCUMENTS INCORPORATED BY REFERENCE (24VAC30-380) (Repealed.)
Policy Manual for Public Participation in Transportation
Projects, 1999, Virginia Department of Transportation.
VA.R. Doc. No. R09-1644; Filed October 22, 2008, 9:26 a.m.
COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM
Final Regulation
REGISTRAR'S NOTICE: The following model public participation guidelines are exempt from Article 2 (§2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia pursuant to Chapter 321 of the 2008 Acts of Assembly.
Titles of Regulations:
24VAC35-10. Public Participation Guidelines (repealing 24VAC35-10-10 through
24VAC35-10-70).
24VAC35-11. Public Participation Guidelines (adding 24VAC35-11-10 through 24VAC35-11-110).
Statutory Authority: §§2.2-4007.02 and 18.2-271.2 of the Code of Virginia.
Effective Date: December 10, 2008.
Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, FAX (804) 786-6286, or email rfoy.vasap@state.va.us.
Summary:
The regulations comply with the legislative mandate (Chapter 321, 2008 Acts of Assembly) that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008. Public participation guidelines exist to promote public involvement in the development, amendment, or repeal of an agency's regulations.
This regulatory action repeals the current public participation guidelines and promulgates new public participation guidelines as required by Chapter 321 of the 2008 Acts of Assembly. Highlights of the public participation guidelines include (i) providing for the establishment and maintenance of notification lists of interested persons and specifying the information to be sent to such persons; (ii) providing for public comments on regulatory actions; (iii) establishing the time period during which public comments shall be accepted; (iv) providing that the plan to hold a public meeting shall be indicated in any notice of intended regulatory action; (v) providing for the appointment, when necessary, of regulatory advisory panels to provide professional specialization or technical assistance and negotiated rulemaking panels if a regulatory action is expected to be controversial; and (vi) providing for the periodic review of regulations.
CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES
Part I
Purpose and Definitions
24VAC35-11-10. Purpose.
The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Commission on the Virginia Alcohol Safety Action Program. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).
24VAC35-11-20. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.
"Agency" means the Commission on the Virginia Alcohol Safety Action Program, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.
"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.
"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.
''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.
"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.
"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.
"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.
"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.
"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.
"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.
"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.
"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
Part II
Notification of Interested Persons
24VAC35-11-30. Notification list.
A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.
B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.
C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.
D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.
E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.
F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.
24VAC35-11-40. Information to be sent to persons on the notification list.
A. To persons electing to receive electronic notification or notification through a postal carrier as described in 24VAC35-11-30, the agency shall send the following information:
1. A notice of intended regulatory action (NOIRA).
2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.
3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.
B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.
Part III
Public Participation Procedures
24VAC35-11-50. Public comment.
A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.
1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.
2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.
B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:
1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).
2. For a minimum of 60 calendar days following the publication of a proposed regulation.
3. For a minimum of 30 calendar days following the publication of a reproposed regulation.
4. For a minimum of 30 calendar days following the publication of a final adopted regulation.
5. For a minimum of 30 calendar days following the publication of a fast-track regulation.
6. For a minimum of 21 calendar days following the publication of a notice of periodic review.
7. Not later than 21 calendar days following the publication of a petition for rulemaking.
C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.
D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.
E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.
24VAC35-11-60. Petition for rulemaking.
A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.
B. A petition shall include but is not limited to the following information:
1. The petitioner's name and contact information;
2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and
3. Reference to the legal authority of the agency to take the action requested.
C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.
D. The petition shall be posted on the Town Hall and published in the Virginia Register.
E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.
24VAC35-11-70. Appointment of regulatory advisory panel.
A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.
B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.
C. A RAP may be dissolved by the agency if:
1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.
24VAC35-11-80. Appointment of negotiated rulemaking panel.
A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.
B. An NRP that has been appointed by the agency may be dissolved by the agency when:
1. There is no longer controversy associated with the development of the regulation;
2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or
3. The agency determines that resolution of a controversy is unlikely.
24VAC35-11-90. Meetings.
Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.
24VAC35-11-100. Public hearings on regulations.
A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.
B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.
C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:
1. The agency's basic law requires the agency to hold a public hearing;
2. The Governor directs the agency to hold a public hearing; or
3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.
D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.
24VAC35-11-110. Periodic review of regulations.
A. The agency shall conduct a periodic review of its regulations consistent with:
1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and
2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.
B. A periodic review may be conducted separately or in conjunction with other regulatory actions.
C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.
VA.R. Doc. No. R09-1513; Filed October 14, 2008, 10:39 a.m.