16VAC5-5 Public Participation Guidelines

REGULATIONS

Vol. 27 Iss. 9 - January 03, 2011

TITLE 16. LABOR AND EMPLOYMENT

VIRGINIA EMPLOYMENT COMMISSION

Chapter 5

Fast-Track Regulation

Titles of Regulations: 16VAC5-5. Public Participation Guidelines (adding 16VAC5-5-10 through 16VAC5-5-110).

16VAC5-10. Definitions and General Provisions (repealing 16VAC5-10-20, 16VAC5-10-21, 16VAC5-10-22, 16VAC5-10-30).

Statutory Authority: §§ 2.2-4007.02 and 60.2-111 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 2, 2011.

Effective Date: February 17, 2011.

Agency Contact: Coleman Walsh, Chief Administrative Law Judge, Virginia Employment Commission, 703 E. Main St., Room 126, Richmond, VA 23219, telephone [phone], FAX [phone], or email [e-mail].

Basis: Chapter 321 of the 2008 Acts of Assembly (effective July 1, 2008) mandated that agencies adopt model public participation guidelines issued by the Department of Planning and Budget by December 1, 2008.

Purpose: Public participation guidelines (PPGs) exist to promote public involvement in the development, amendment, or repeal of an agency's regulations. This action is being taken pursuant to § 2.2-4007.02 of the Code of Virginia which requires every rulemaking body in the Commonwealth to adopt PPGs and to use those guidelines in the development of its regulations.

Rationale for Using Fast-Track Process: This action is not expected to be controversial.

Substance: This action repeals Virginia Employment Commission's existing regulations on regulation development and public participation and creates a new chapter with text from the model PPGs developed by the Department of Planning and Budget.

Issues: The model PPGs will provide advantages to the public in the form of more consistent public participation requirements for agencies in the rulemaking process. No disadvantages are anticipated for the public, the agency, or the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Employment Commission (VEC) proposes to adopt model public participation guidelines as mandated in Chapter 321 of the 2008 Acts of Assembly.

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

Estimated Economic Impact. Pursuant to Chapter 321 of the 2008 Acts of Assembly, the Department of Planning and Budget, in consultation with the Office of the Attorney General, (i) developed model public participation guidelines (PPGs) and (ii) provided these model PPGs to each agency that has the authority to promulgate regulations. Chapter 321 required that, by December 1, 2008, state agencies either (a) adopt these model public participation guidelines as an exempt action or (b) if significant additions or changes are proposed, promulgate the model public participation guidelines with the proposed changes as fast-track regulations pursuant to Code of Virginia Section 2.2-4012.1. Pursuant to Chapter 321, Model PPGs promulgated by agencies after January 1, 2009, are subject to the normal requirements of the Administrative Process Act. Because of this mandate, the VEC now proposes to promulgate the model PPGs as a fast track action.

The purposes of the model PPG legislation are threefold: first, to ensure that each agency or board has a current set of PPGs in place.¹ Second, to ensure that each agency's or board's PPGs incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists. Last, but perhaps most importantly, to have uniform guidelines in place to facilitate citizen participation in rulemaking and to make those guidelines consistent, to the extent possible, among all executive branch boards and agencies. For all of these reasons, citizens who are interested in participating in the VEC's rulemaking process will benefit from the promulgation of these PPGs.

Businesses and Entities Affected. These proposed amendments to the VEC's public participation guidelines potentially affect all citizens and entities in the Commonwealth.

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

Projected Impact on Employment. The proposal amendments do not directly affect employment.

Effects on the Use and Value of Private Property. The proposal amendments do not directly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not directly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments do not directly affect real estate development costs.

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 DPBs best estimate of these economic impacts.

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¹ Some agencies and boards have not updated their PPGs since the mid-late 1980s.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The responsible Virginia Employment Commission agency representatives have reviewed the Department of Planning and Budget's (DPB) Economic Impact Analysis of 16VAC5-5. The agency feels the analysis is thorough and appropriately covers any and all predictable circumstances involving this proposed change in regulation. The agency is in agreement with DPB's analysis.

Summary:

The regulations repeal existing regulations on regulation development and public participation and incorporate the model public participation guidelines developed by the Department of Planning and Budget pursuant to Chapter 321 of the 2008 Acts of Assembly. Highlights of the model public participation guidelines include the addition of negotiated rulemaking panels and regulatory advisory panels and instructions for notification.

CHAPTER 5
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

16VAC5-5-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment, or repeal of the regulations of the Virginia Employment Commission. 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).

16VAC5-5-20. 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 Employment Commission, 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 that 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, that 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

16VAC5-5-30. 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.

16VAC5-5-40. 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 16VAC5-5-30, 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

16VAC5-5-50. 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.

16VAC5-5-60. 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.

16VAC5-5-70. 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 at 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.

16VAC5-5-80. 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.

16VAC5-5-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the 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.

16VAC5-5-100. 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.

16VAC5-5-110. 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.

16VAC5-10-20. Development of regulations. (Repealed.)

A. Pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia), the commission shall solicit the input of interested parties in the formulation and the development of its rules and regulations. The commission shall receive petitions from any party proposing new regulations or amendment of existing regulations. All such proposals shall be reviewed by the commission and receive response within 180 days. Formulation and development of all new or amended regulations shall be subject to the following public participation guidelines.

B. Interested parties for the purpose of this chapter shall be:

1. The Governor's Cabinet Secretaries.

2. Members of the Senate Committee on Commerce and Labor.

3. Members of the House Committee on Labor and Commerce.

4. Special interest groups known to the Virginia Employment Commission.

5. Any individual or entity submitting a written request to be included as an interested party.

6. Those parties who have expressed an interest in VEC regulations through oral or written comments in the past.

C. An ad hoc advisory committee will be established to develop regulatory changes upon petition of five or more people during the Notice of Intended Regulatory Action public comment period established pursuant to § 2.2-4008 B of the Code of Virginia. Such ad hoc advisory committee shall be chosen from individuals registering with the agency as interested parties and shall include representatives of business, labor, the bar, and public interest associations.

D. Prior to the formulation of a proposed regulation, notice of an intended regulatory action may appear in any newspaper circulated in localities particularly affected by the proposed regulation and on the commission's web page. Other media may also be utilized where appropriate, including but not limited to, trade or professional publications. Notice of an intended regulatory action shall also be mailed to all interested parties and shall be posted in all VEC offices across the Commonwealth and on the Virginia Regulatory Town Hall. These individuals, groups and the general public shall be invited to submit written data, views, and arguments on the formulation of the proposed regulation to the commission at its administrative office in Richmond, Virginia.

E. Publication of the intent to draft a regulation, as well as the proposed regulation, shall also appear in the Virginia Register of Regulations and on the Virginia Regulatory Town Hall.

F. Failure of any interested party to receive notice to submit data, views, or oral or written arguments to the commission shall not affect the implementation of any regulation if such regulation was formulated, developed and adopted in compliance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

G. The public participation guidelines of this chapter shall not apply to emergency regulations or those regulations excluded or exempted by any section of the Administrative Process Act.

H. During the formal procedures required by the Administrative Process Act and these public participation guidelines, written input will be solicited from interested parties and the general public. At the discretion of the commission, and in accordance with applicable law, one or more public hearings may be held in Richmond or at any other location deemed appropriate to ensure adequate public participation.

16VAC5-10-21. Notification lists. (Repealed.)

A. The commission shall maintain lists of persons who have requested to be notified of the formation and promulgation of regulations.

B. Any person may request to be placed on a notification list by indicating so electronically or in writing to the commission. The commission may also add to a list any person it believes will serve the purpose of enhancing the regulatory process.

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

D. The board shall periodically request those persons on the notification lists to indicate their desire to either continue to receive documents by regular mail, be notified electronically or be deleted from the lists. Persons who elected to be included on an electronic mailing list may also request that all notices and mailings be sent in hard copy. When either regular or electronic mail is returned as undeliverable or there has been no response to the request from the commission, such persons shall be deleted from the list.

16VAC5-10-22. Documents to be sent to persons on notification lists. (Repealed.)

Persons on the notification lists described in 16VAC5-10-21 shall be mailed or have electronically transmitted the following documents related to the promulgation of regulations:

1. Notice of intended regulatory action;

2. Notice of the comment period for a proposed regulation and instructions as to how to obtain a copy of the regulation and any supporting documents, either electronically or from the commission office.

3. Notification of the adoption of a final regulation and instructions as to how to obtain a copy of the regulation and any supporting documents, either electronically or from the commission office.

4. Notice soliciting comment on a final regulation when the regulatory process has been extended.

16VAC5-10-30. Review of regulations. (Repealed.)

At least every three years, or more often as may be mandated by statute or Executive Order, a regulatory review committee consisting of commission staff shall meet to review these regulations and general rules. The committee shall recommend deletion and amendment of the existing rules and regulations, and additions thereto, as needed, in light of their impact upon the general public and employers.

VA.R. Doc. No. R11-1455; Filed December 10, 2010, 3:24 p.m.