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REGULATIONS
Vol. 32 Iss. 9 - December 28, 2015TITLE 1. ADMINISTRATIONVIRGINIA CODE COMMISSIONChapter 10Final RegulationREGISTRAR'S NOTICE: The Virginia Code Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4104 of the Code of Virginia, which exempts the actions of the commission relating to the adoption of regulations respecting the nature and content of the Virginia Administrative Code, making exceptions thereto, supplementing or limiting the duties of agencies thereunder, and otherwise carrying out the purposes of Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia.
Title of Regulation: 1VAC7-10. Regulations for Filing and Publishing Agency Regulations (adding 1VAC7-10-10 through 1VAC7-10-220).
Statutory Authority: § 2.2-4104 of the Code of Virginia.
Effective Date: January 1, 2016.
Agency Contact: Karen W. Perrine, Assistant Registrar of Regulations, 201 North Ninth Street, Richmond, VA 23219, telephone (804) 786-3591 ext. 261, or email varegs@dls.virginia.gov.
Summary:
This regulatory action replaces existing regulations applicable to state agencies when filing and publishing state agency regulations and updates or establishes requirements to include (i) eliminating the filing of an entire regulation by description in lieu of filing any text; (ii) establishing a process when only a form associated with a regulation is being updated; (iii) addressing when an agency may incorporate one of its own documents by reference; (iv) adding several general rules of construction based on similar provisions for the Code of Virginia; (v) establishing a method for computation of time periods based on publication in the Virginia Register; (vi) clarifying that the PDF version of the Virginia Register is the official version; and (vii) making other updates to reflect statutory changes, current terminology, and current practices and technology.
CHAPTER 10
REGULATIONS FOR FILING AND PUBLISHING AGENCY REGULATIONSPart I
General Provisions1VAC7-10-10. 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.
"Adopt textual matter by reference" means to include text from a document or publication in the regulation as a requirement or provision of the regulation.
"Agency" means any authority, instrumentality, officer, board, or other unit of the government of the Commonwealth empowered by the basic laws to adopt regulations or decide cases, except as exempted by the Virginia Register Act.
"Commission" means the Virginia Code Commission.
"File" means to submit to the registrar so that the registrar receives the regulation submission package, or required or requested information.
"Registrar" means the Registrar of Regulations, or his designee, as provided in § 2.2-4102 of the Code of Virginia.
"Regulation" means any statement of general application, having the force of law and affecting the rights or conduct of any person, promulgated by an agency in accordance with the authority conferred on it by applicable basic laws.
"Regulation submission package" means the regulation text and other information required to be submitted by the Administrative Process Act or the Virginia Register Act.
"Regulatory Information System" means the web-enabled application of the Office of the Registrar of Regulations that is used by an agency to file regulations, regulation submission packages, and related information and used by the Office of the Registrar to publish the Virginia Register of Regulations and update the Virginia Administrative Code.
"Virginia Administrative Code" or "VAC" means the codified publication of regulations under the provisions of Chapter 15 (§ 30-145 et seq.) of Title 30 of the Code of Virginia.
"Virginia Register Act" means Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia.
"Virginia Register of Regulations" or "Register" means the publication issued under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.
1VAC7-10-20. Computation of time.
When Article 2 (§ 2.2-4006 et seq.) or 6 (§ 2.2-4031 et seq.) of the Administrative Process Act or the Virginia Register Act prescribes a time period that is contingent upon publication in the Register, whether before, after, or upon publication, the day of publication shall not be counted as part of the required time period. This section shall not apply to the comment period designated in § 2.2-4007.06 of the Code of Virginia to begin on the date of publication of the notice in the Register.
1VAC7-10-30. General rules of construction.
This section shall be used in the construction of the Virginia Administrative Code.
1. Catchlines of sections. The catchline or title of a section following the section number is intended as a description to indicate the content of the section and does not constitute part of the regulation.
2. Gender. A word used in the masculine includes the feminine and neuter.
3. Number. A word used in the singular includes the plural, and a word used in the plural includes the singular unless the context clearly indicates otherwise.
4. The word "includes" means includes, but not limited to.
5. The word "or" means any one or all of the items listed or any combination thereof.
1VAC7-10-40. Form and style of regulations.
A. The registrar shall develop a manual to advise agencies regarding the form and style of regulations and the codification of regulations.
B. The registrar shall provide procedures stipulating how agencies shall prepare and file with the registrar's office (i) regulations, (ii) regulation submission packages and other information concerning regulatory actions, or (iii) other information requested by the registrar for publication in the Virginia Register of Regulations or the Virginia Administrative Code.
C. Pursuant to § 30-150 of the Code of Virginia, the registrar may omit from publication in the Virginia Register of Regulations or inclusion in the Virginia Administrative Code (i) effective date clauses, (ii) severability clauses, (iii) purpose statements, and (iv) provisions that are nonregulatory in nature, such as a defined word, term, or phrase that is not used in the regulatory text.
D. The registrar may accept any of the items or provisions listed in subsection C of this section if the agency establishes a need to the satisfaction of the registrar.
1VAC7-10-50. Method of filing.
An agency shall file regulations, regulation submissions packages, and requested information electronically through the Regulatory Information System, commonly known as "RIS," unless specifically approved by the registrar to file through other means.
1VAC7-10-60. Internet address; contact information; consequential changes.
A. If an agency includes an Internet address in the text of a regulation, the agency is responsible for maintaining the accuracy and currency of the Internet address.
B. If an agency includes contact information in the text of a regulation, the agency is responsible for maintaining the accuracy and currency of the contact information. Contact information includes a title, mailing address, telephone number, email address, or similar information.
C. The agency must (i) promptly notify the registrar's office when an Internet address or contact information changes and (ii) provide the correct Internet address or contact information. The agency shall file a request for amendment as directed by the registrar and provide the revised text of the regulation.
D. The registrar may correct an Internet address or contact information upon request by an agency. In addition, the registrar may, in his discretion, make other consequential corrections pursuant to §§ 2.2-4102 and 30-150 of the Code of Virginia.
E. The registrar will publish notice of the correction.
1VAC7-10-70. Waiver by registrar.
The registrar may waive a provision of this chapter, provided that the waiver is consistent with applicable state law.
1VAC7-10-80. Agency regulatory coordinator.
The head of each agency, or his designee, shall appoint or designate an individual as the agency regulatory coordinator who shall coordinate the regulatory activities of the agency with the Office of the Registrar of Regulations.
Part II
Filing Regulations and Regulation Submission Packages with the Registrar1VAC7-10-90. Filing regulations.
A. An agency must file all regulations, including materials incorporated by reference and forms used in administering the regulation, with the registrar. The regulations shall be filed through the Regulatory Information System or as directed by the registrar.
B. The agency shall file the full text of a regulation with the registrar, except text that is incorporated by reference pursuant to § 2.2-4103 of the Code of Virginia shall be filed in accordance with Part III (1VAC7-10-140 et seq.) of this chapter.
C. No regulation, or amendment or repeal thereof, is effective until filed with the registrar pursuant to § 2.2-4103 of the Code of Virginia. If the regulation, or amendment or repeal thereof, is incomplete, the registrar may decline to publish the regulation.
1VAC7-10-100. Final agency action date; effective date; statutory authority.
A. An agency shall provide the date of final agency action and the effective date of a regulation when filing a regulation submission package for a fast-track or final regulatory action, or other equivalent action.
B. When Virginia law allows a regulation to be effective upon the filing of the regulation with the registrar, the agency ordinarily should select an effective date at least three business days after filing. This subsection does not apply to emergency regulations adopted pursuant to § 2.2-4011 of the Code of Virginia.
C. An agency shall provide the effective date and expiration date of an emergency regulation when filing the emergency regulation and accompanying regulation submission package. If the expiration date of the emergency regulation is extended, the agency shall notify the registrar within three business days of the Governor's approval of the extension.
D. Pursuant to § 2.2-4012 D of the Code of Virginia, a regulation shall contain the statutory authority for the regulation. An agency shall include in the regulatory submission package the complete citation for each statute or regulation that serves as the statutory authority, as follows:
1. For a codified Virginia statute, the citation shall be to the applicable section of the Code of Virginia.
2. For an uncodified Virginia statute, the citation shall be to the applicable chapter of the designated Act of Assembly.
3. When a regulation is required to conform with federal law or regulation, the agency shall provide a citation to the specific federal law or regulation to which conformity is required.
1VAC7-10-110. Supplemental information; exemption from Administrative Process Act.
A. Pursuant to § 2.2-4103 of the Code of Virginia, the registrar may request information in addition to the full text of a regulation for the purpose of publishing the Register and VAC.
B. An agency shall respond to a request from the registrar within three business days of the request, unless a different response time is approved by the registrar.
C. When claiming an exemption from the Administrative Process Act, an agency shall provide the specific statutory citation for the claimed exemption. Upon request of the registrar, an agency should provide confirmation from the Office of the Attorney General of the specific statute upon which the exemption is based.
1VAC7-10-120. Withdrawal of a final regulation; publication.
A. When an agency withdraws a final regulation pursuant to § 2.2-4016 of the Code of Virginia, the agency shall file a written notice of withdrawal with the registrar prior to the effective date of the regulation being withdrawn. The notice shall include:
1. The reason for the withdrawal of the regulation;
2. Agency contact information;
3. The publication information; and
4. The date of agency action.
B. The notice of withdrawal will be published in the Register.
1VAC7-10-130. Omissions and errors.
A. An agency shall notify the registrar of all omissions or errors that the agency becomes aware of in any of the information (i) submitted for publication or (ii) published in the Register or the Virginia Administrative Code.
B. The notification shall be filed with the registrar within seven business days of the date that the agency becomes aware of the omission or error.
Part III
Adoption of Textual Matter by Incorporation by Reference1VAC7-10-140. Incorporation by reference permitted.
A. A regulation may adopt textual matter by reference to all or any part of a publication or document. For the purposes of this part, a publication and a document are interchangeable. The material in the document becomes the text of the regulation and an enforceable part of the regulation.
B. The agency must comply with the provisions of 1VAC7-10-150 and 1VAC7-10-160 when incorporating a document by reference except as provided in 1VAC7-10-170.
C. Effective January 1, 2016, an agency may not adopt prospective changes to an incorporated document by referring to a future edition or revision of the document or by using "as updated," "as may be amended," "future editions," or similar language. When a document that an agency has incorporated by reference subsequently is modified by the publisher, the agency may adopt the modification but shall do so through a regulatory action. However, when an agency incorporates by reference provisions of the Code of Virginia, the Virginia Acts of Assembly, or the Virginia Administrative Code into a regulation, future amendments to the incorporated provisions are included unless other intent is specifically stated in the regulation.
D. Effective January 1, 2016, an agency may not incorporate one of its own documents by reference unless the agency establishes that the documents or circumstances are unique and highly unusual.
1VAC7-10-150. Filing requirements.
A. When an agency adopts textual matter in a regulation by reference to a document, the agency shall file a copy of the referenced document with the regulation submission package. The document shall be filed in its entirety, unless the registrar has approved a request for the document to be filed by descriptive statement as provided in 1VAC7-10-170. The agency shall also provide information as to where copies of the incorporated publications may be procured.
B. When an agency adopts textual matter by reference to Internet content, the agency shall file the Internet content with the registrar. The agency shall file a read-only electronic copy or a printed copy of the Internet content.
1VAC7-10-160. Regulation text.
When incorporating material by reference, an agency shall include in the regulatory text (i) a statement that the document is incorporated by reference; (ii) the complete name of the document; (iii) the effective, issue, revision, or publication date; (iv) the version or edition, if any; and (v) the publisher or entity that produced the document.
1VAC7-10-170. Exemptions from filing of documents adopted or incorporated by reference; requirements.
A. The requirements established in 1VAC7-10-150 and 1VAC7-10-160 do not apply to incorporation of textual matter by reference to material published in the Federal Register or the Code of Federal Regulations, or by reference to regulations of other Virginia agencies. Where such references are made, the regulatory text must contain a citation sufficient for accurate identification of the referenced material.
1. Where the material has been published in the Code of Federal Regulations, the agency must:
a. Include in the regulatory text the title, part or section, and the date of publication. Example: 40 CFR Part 260 (July 1, 2014 update) or 40 CFR §§ 260.1 through 260.11 (July 1, 2014 update); or
b. Include a section listing the applicability of the cited CFR text and stating that when a federal regulation is incorporated in the chapter, that regulation shall be as it exists and has been published on a certain date.
2. Where the referenced material has not been published in the Code of Federal Regulations but appears in the Federal Register, the agency must include in the regulatory text the volume, page, and date of the Federal Register. Example: 79 FR 264, January 2, 2014.
B. The registrar may exempt an agency from the requirement of filing the incorporated document in its entirety if such filing would be impractical or cause an undue hardship on the agency. The document shall be filed as directed by the registrar.
C. The agency shall request an exemption from this filing requirement by submitting a request to the registrar. The registrar will notify the agency whether the exemption is approved.
D. Even if exempted under subsections A and B of this section, an agency must maintain on file and make available to the public the full text of all materials adopted by reference.
Part IV
Forms1VAC7-10-180. Filing requirements.
A. An agency shall file any form that the agency intends to incorporate into or use in administering the regulation with the proposed or final, including fast-track, regulation submission package for publication in the Register pursuant to § 2.2-4031 A of the Code of Virginia. The agency shall include on the face of the form (i) the date of issuance or revision and (ii) a form number.
B. A form is not a substitute for regulation text and may not contain requirements that are not in the Code of Virginia or VAC.
1VAC7-10-190. Exemption from filing a form.
A. An agency may request an exemption from filing a form if the form (i) may be completed only online or electronically or (ii) is not in a printable format.
B. The agency shall make a request for an exemption from filing by submitting a request to the registrar. The registrar will notify the agency whether the exemption is approved.
C. If an exemption is approved, the Internet address for the form will be included in VAC.
D. The agency shall notify the registrar in writing if an Internet address for the form changes. Under the authority of § 30-150 of the Code of Virginia, the registrar may correct the Internet address in the Virginia Administrative Code.
E. The granting of an exemption under this section does not relieve an agency from maintaining the forms on file and making the forms available to the public.
1VAC7-10-200. Modification of forms in the Virginia Administrative Code.
A. The provisions of this section apply when a form for a regulation is added, amended, or removed, provided that (i) the regulatory text is not changing and (ii) the change to the form is not making a substantive change to the regulation.
B. An agency shall file form changes as directed by the registrar.
C. Notice of revised forms will be published in the Register, and forms will be updated in the Virginia Administrative Code online on the date of publication of the volume and issue of the Register in which it appears.
1VAC7-10-210. Publication.
A. For the purposes of § 2.2-4031 of the Code of Virginia, a form shall be considered to be published in the Virginia Register of Regulations if (i) the form is published in full, (ii) a hyperlink to the form is published, or (iii) a notice identifying where the form may be obtained is published.
B. The registrar shall determine how a form will be published.
Part V
Virginia Register of Regulations1VAC7-10-220. Availability and official version.
As provided in § 2.2-4031 of the Code of Virginia, the Virginia Register of Regulations is published by posting the Register on the Virginia Code Commission's website. The portable document format (PDF) file is the official version of the Register.
VA.R. Doc. No. R16-4592; Filed December 9, 2015, 10:34 a.m.
