GOVERNORVol. 26 Iss. 11 - February 01, 2010
GOVERNOR
EXECUTIVE ORDER NUMBER 106 (2009)
ADDITIONAL AUTHORIZATION DUE TO A SEVERE WEATHER EVENT THROUGHOUT THE COMMONWEALTH
On November 11, 2009 I verbally declared a state of emergency to exist for the Commonwealth of Virginia based on severe weather from prolonged periods of wet and windy weather from the remnants of Tropical Storm Ida and a coastal Nor'easter causing widespread power outages, flooding and transportation difficulties throughout the State.
The health and general welfare of the citizens of the Commonwealth require that state action be taken to help alleviate the conditions caused by this situation. The effects of this storm constitute a natural disaster wherein human life and public and private property are imperiled, as described in § 44-146.16 of the Code of Virginia.
In addition to the measures I took pursuant to Executive Order 101, I authorize the following actions to be taken by the Commissioner of the Virginia Marine Resources Commission:
The Marine Resources Commissioner is authorized to act on behalf of the Commission in issuing permits pursuant to Chapter 12 of Title 28.2 of the Code of Virginia when, in the judgment of the Commissioner, it is necessary to address immediate health and safety needs and the Commissioner would be unable to convene a meeting of the full Commission in a timely manner. In an effort to address the impacts attributable to this Storm damage on the health, safety and general welfare of the citizens of the Commonwealth, and in an attempt to expedite the return of impacted areas and structures to pre-event conditions insofar as is possible, no permits for encroachments over State-owned submerged lands shall be required to replace previously permitted structures that conform with the following criteria:
1. The pre-existing structure must have been previously authorized and in a serviceable condition prior to the onset of the Storm.
2. The replacement structure must be reconstructed in the same location and in identical or smaller dimensions as the previously permitted structure.
3. Reconstruction activities must be initiated prior to June 30, 2010 and completed prior to December 31, 2010.
4. Any property owner(s) seeking to replace a previously permitted structure pursuant to this Executive Order must submit to the Virginia Marine Resources Commission a letter attesting to the foregoing and containing suitable drawings of the proposed replacement structure(s) for comparison purposes.
5. No person may proceed with replacement of a previously permitted structure under the provisions of this Executive Order without written approval from the Commissioner of the Virginia Marine Resources Commission.
This Executive Order shall be effective upon signing and shall remain in full force and effect until June 30, 2010 unless sooner amended or rescinded by further executive order. Termination of the Executive Order is not intended to terminate any federal-type benefits granted or to be granted due to injury or death as a result of service under this Executive Order.
Given under my hand and under the Seal of the Commonwealth of Virginia, this 23rd Day of December, 2009.
/s/ Timothy M. Kaine
Governor
EXECUTIVE ORDER NUMBER 107 (2009)
DEVELOPMENT AND REVIEW OF REGULATIONS PROPOSED BY STATE AGENCIES
By virtue of the authority vested in me as Governor under Article V of the Constitution of the Commonwealth of Virginia and under the laws of the Commonwealth, including but not limited to Sections 2.2-4013 and 2.2-4017 of the Code of Virginia, and subject to my continuing and ultimate authority and responsibility to act in such matters, I hereby establish policies and procedures for review of all new, revised, and existing regulations proposed by state agencies, which shall include for purposes of this executive order all agencies, boards, commissions and other entities of the Commonwealth within the Executive Branch which issue regulations. Nothing in this Executive Order shall be construed to limit my authority under Section 2.2-4013 to require an additional 30-day final adoption period, or to exercise any other rights and prerogatives existing under Virginia law.
General Policy
The Executive Branch agencies of the Commonwealth must consider, review, and promulgate many regulations each year. This Executive Order sets out procedures and requirements to ensure the efficiency and quality of Virginia's regulatory process.
All state employees who draft, provide policy analysis for, or review regulations shall carefully consider and apply the principles outlined below during the regulatory development and review process. All regulatory activity should be undertaken with the least possible intrusion in the lives of the citizens of the Commonwealth consistent with public health, safety, and welfare. Where applicable and to the extent permitted by law, it shall be the policy of the Commonwealth that, unless otherwise mandated by law, only regulations that are necessary to interpret the law or to protect the public health, safety, or welfare shall be promulgated.
A. Agencies shall identify the nature and significance of the problem a regulation is intended to address, including, where applicable, the failure of private markets and institutions to adequately address the problem.
B. Agencies shall identify and assess reasonably available alternatives in lieu of regulation for achieving the goals of a regulation, including where feasible and consistent with public health, safety, and welfare:
a. The use of economic incentives to encourage the desired outcomes (such as user fees or marketable permits);
b. The use of information disclosure requirements, rather than regulatory mandates, so that the public can make more informed choices; and
c. The use of performance standards in place of mandating specific techniques or behavior.
C. Regulatory development shall be based on the best reasonably available scientific, economic, and other information concerning the need for, and consequences of, the intended regulation. Agencies shall specifically cite the best reasonably available scientific, economic, and other information in support of regulatory proposals.
D. Regulations shall be designed to achieve their intended objective in the most efficient, cost-effective manner.
E. Regulations shall be clearly written and easily understandable by the individuals and entities affected.
F. All legal requirements related to public participation and all public participation guidelines shall be strictly followed to ensure that citizens have reasonable access and opportunity to present their comments and concerns. Agencies shall establish procedures that provide for a timely written response to all comments and the inclusion of suggested changes that would improve the quality of the regulation.
G. In addition to requirements set out in the Virginia Administrative Process Act, agencies shall post all rulemaking actions on the Virginia Regulatory Town Hall to ensure that the public is adequately informed of rulemaking activity.
H. Agencies, as well as reviewing entities, shall endeavor to perform their tasks in the regulatory process as expeditiously as the regulatory subject matter will allow and shall adhere to the time frames set out in this Executive Order.
I. Each agency head will be held accountable for ensuring that the policies and objectives specified in this Executive Order are put into effect. Agency heads shall ensure that information requested by the Department of Planning and Budget (DPB) or the Office of the Governor in connection with this Executive Order is provided on a timely basis.
J. Regulations shall not be considered perpetual and will be subject to periodic evaluation and review and modification, as appropriate, in accordance with the Administrative Process Act.
K. Public comment will be encouraged for all regulations. The Department of Planning and Budget shall work with state agencies to promote use of the Town Hall to facilitate public comment.
L. Regulatory development shall be conducted in accordance with statutory provisions related to impact on small businesses. The Department of Planning and Budget shall work with state agencies to address these requirements during the regulatory review process.
Applicability
The review process in this Executive Order applies to rulemaking initiated by agencies of the Commonwealth of Virginia in accordance with Article 2 of the Administrative Process Act (APA) (Section 2.2-4006 et seq. of the Code of Virginia).
With the exception of the requirements governing the periodic review of existing regulations, the posting of meeting agenda and minutes, and the posting of guidance documents, the requirements of this Executive Order may not apply to regulations exempt from Article 2 of the APA. A Cabinet Secretary or the Governor may request in writing that an agency comply with all or part of the requirements of this Executive Order for regulations exempt from Article 2 of the APA. Copies of such requests shall be forwarded to the Governor's Policy Office and DPB. In addition, a Cabinet Secretary may request in writing that certain Article 2 exempt regulations be further exempted from all or part of the requirements of this Executive Order.
These procedures shall apply in addition to those already specified in the APA, the agencies' public participation guidelines, and the agencies' basic authorizing statutes.
Any failure to comply with the requirements set forth herein shall in no way affect the validity of a regulation, create any cause of action or provide standing for any person under Article 5 of the APA (Section 2.2-4025 et seq. of the Code of Virginia), or otherwise challenge the actions of a government entity responsible for adopting or reviewing regulations.
Regulatory Review Process
Regulations shall be subject to Executive Branch review as specified herein. For each stage of the regulatory development process, DPB shall develop an appropriate background form describing the regulatory action. Agencies shall use the form to inform the public about the substance and reasons for the rulemaking. All agency regulatory packages shall be submitted on the Virginia Regulatory Town Hall and shall include the completed form for that stage of the regulatory process and the text of the regulation where applicable.
Agencies shall submit regulatory packages to the Registrar on the Virginia Regulatory Town Hall within 14 days of being authorized to do so. The Counselor to the Governor may grant exceptions to this requirement for good cause.
A. Notice of Intended Regulatory Action (NOIRA)
DPB shall conduct an initial review of the submission of a Notice of Intended Regulatory Action to determine whether it complies with all requirements of this Executive Order and applicable statutes and whether the contemplated regulatory action comports with the policy of the Commonwealth as set forth herein. The NOIRA shall include the nature of the regulatory changes being considered and the relevant sections of the Virginia Administrative Code. The Director of DPB shall develop an appropriate review form for NOIRAs to ensure the most efficient use of DPB staff resources. DPB shall advise the appropriate Secretary and the Governor of DPB's determination. The agency shall be authorized to submit the NOIRA to the Registrar for publication when the Governor approves the NOIRA for publication. Public comments received following publication of the NOIRA should be encouraged and carefully considered in development of the proposed stage of a regulation.
If the Director of DPB advises the appropriate Secretary and the Governor that the NOIRA presents issues requiring further review, the NOIRA shall be forwarded to the Secretary. The Secretary shall review the NOIRA within seven days and forward a recommendation to the Governor. The Chief of Staff is hereby authorized to approve NOIRAs on behalf of the Governor.
B. Proposed Regulation and Fast-Track Regulations
Following the initial public comment period required by Section 2.2-4007 B of the Code of Virginia and taking into account the comments received, the agency shall prepare a regulatory review package. Agencies should complete the proposed regulation after the close of the NOIRA comment period as expeditiously as the subject matter will allow.
If a regulatory package is submitted to DPB, and DPB determines that the package is not substantially complete, then DPB shall notify the agency within 10 calendar days. At that time, the agency must withdraw the package from the Town Hall and resubmit the package only after all important missing elements identified by DPB have been completed.
A proposed regulatory action shall be in as close to final form as possible, including completed review by all appropriate technical advisory committees. A proposed regulation shall not address new issues that were not disclosed to the public when the NOIRA was published. If an agency can demonstrate a compelling reason to include new issues, an exception to this policy may be granted by the Chief of Staff during the proposed regulation review process.
The Attorney General's Office will also be requested to provide any appropriate comments for consideration by the Governor with respect to the proposed regulation. It is my intent that this process for feedback be managed in a manner similar to the process that has traditionally been used for soliciting the Attorney General's advice and recommendations on enrolled legislation.
DPB shall review the proposed regulation package to determine whether it complies with all requirements of this Executive Order and applicable statutes and whether the contemplated regulatory action comports with the policy of the Commonwealth as set forth herein. Within 45 days of receiving a complete proposed regulation package from the agency, the Director of DPB shall advise the Secretary of DPB's determination. The Secretary shall review the proposed regulation package within 14 days and forward a recommendation to the Governor. The Chief of Staff is hereby authorized to approve proposed regulations on behalf of the Governor. Within 14 days of receiving notification that the Governor has approved the proposed regulation package, the agency shall submit the proposed regulation package to the Registrar for publication, unless an exception to this requirement is granted for good cause by the Counselor to the Governor.
With respect to fast-track regulations, the Department of Planning and Budget shall review the fast-track regulation to determine whether the regulatory change is appropriately within the intended scope of fast-track regulatory authority. Agencies shall report to DPB and the Governor's Policy Office all comments and or objections received with respect to a fast-track rulemaking.
If the Governor does not approve the regulatory package, the appropriate agency or board shall revisit the regulation as appropriate.
C. Final Regulation
After the agency has reviewed the comments received during the public comment period following publication of the proposed regulation and has revised the proposed regulation, as the agency deems necessary and proper, the agency shall prepare the final regulation package for submission to the Department of Planning and Budget.
The agency shall submit the final regulation to DPB after the close of the proposed regulation comment period as expeditiously as the subject matter will allow.
DPB shall review the final regulation package to determine whether it complies with all requirements of this Executive Order and applicable statutes and whether the regulatory action comports with the policy of the Commonwealth as set forth herein. In particular, DPB shall assess the effect of any substantive changes made since the publication of the proposed regulation and the responsiveness of the agency to public comment. Within 14 days of receiving a complete final regulation package from the agency, the Director of DPB shall advise the Secretary and the Governor of DPB's determination.
The Attorney General's Office will also be requested to provide any appropriate comments for consideration by the Governor with respect to the final regulation. It is my intent that this process for feedback be managed in a manner similar to the process that has traditionally been used for soliciting the Attorney General's advice and recommendations on enrolled legislation.
After DPB's review, the final regulation shall be forwarded to the appropriate Secretary and the Governor. The Secretary shall make a recommendation to the Governor within seven days. The agency shall be authorized to submit the final regulation to the Registrar for publication if and when the Governor approves the final regulatory package for publication.
If the Governor does not approve the regulatory package, the appropriate agency or board shall revisit the regulation as appropriate.
D. Emergency Regulation
In addition to the information required on the background form, the agency shall also include in the regulatory package for any emergency regulation a memorandum from the Office of the Attorney General certifying that the agency has legal authority to promulgate the emergency regulation.
DPB shall review the emergency regulation package to determine whether it complies with all requirements of this Executive Order and applicable statutes and whether the contemplated regulatory action comports with the policy of the Commonwealth as set forth herein. Within 14 days of receiving a complete emergency regulation package from the agency, the Director of DPB shall advise the Secretary of DPB's determination. The Secretary shall review the emergency regulation package within 14 days and forward a recommendation to the Governor. Upon receiving notification that the Governor has approved the emergency regulation package, the agency may then submit the emergency regulation package to the Registrar for publication.
If the Governor does not approve the regulatory package, the appropriate agency or board shall revisit the regulation as appropriate.
Periodic Review of Existing Regulations
Each existing regulation in the state shall be reviewed at least once every four years by the promulgating agency unless specifically exempted from periodic review by the Governor. The review shall ensure that each regulation complies with the principles set out in this Executive Order. In addition, each periodic review shall include an examination by the Office of the Attorney General to ensure statutory authority for the regulation and that the regulation does not exceed the authority to regulate granted in the enabling legislation. The periodic review of a regulation shall be reported on a form established by DPB. Such form shall minimally provide an opportunity for the agency to demonstrate the regulation's compliance with the policies set out in this Executive Order.
Agencies shall cooperate with reviews of regulations by the Office of the Attorney General, including but not limited to, reasonable requests for data and other supporting information as may be necessary to conduct the review.
Prior to the commencement date of the periodic review for a regulation, an agency shall post on the Town Hall a notice of the periodic review. The agency shall provide for a minimum of 21 days of public comment commencing on the posted date for the review. No later than 90 days after the close of the public comment period, the agency shall post a completed periodic review report on the Virginia Regulatory Town Hall.
When a regulation has undergone a comprehensive review as part of a regulatory action and when the agency has solicited public comment on the regulation, a periodic review shall not be required until four years after the effective date of this regulatory action.
The Governor may request a periodic review of a regulation at any time deemed appropriate. Such a request may outline specific areas to be addressed in the review. In the case of such a request, the agency shall follow the procedures for periodic review as established herein or such other procedures as may be stipulated by the Governor.
Petitions for Rulemaking
Agencies shall post petitions for rulemaking and written decisions to grant or deny the petitioner's request on the Virginia Regulatory Town Hall in accordance with the time frames established in Section 2.2-4007 of the Code of Virginia.
Waivers from Process Deadlines
Agencies shall file all regulatory actions in a timely manner. Agencies shall file all actions in as timely a manner as possible, and in all instances within 90 days of approval by the Governor unless a waiver of this requirement is granted. The Chief of Staff may waive the deadlines an agency must meet when submitting NOIRAs, proposed, and final regulatory packages. A waiver shall only be granted when an agency has demonstrated a compelling need for extending the deadlines set out herein. An agency shall submit a waiver request as soon as possible prior to the expiration of a deadline. Such requests shall be submitted on forms prepared by DPB.
Electronic Availability of Meeting Agenda and Minutes
Executive Branch agencies that promulgate regulations and keep minutes of regulatory meetings shall post such minutes of their public meetings on the Virginia Regulatory Town Hall in accordance with the time frames established in Section 2.2-3707.1 of the Code of Virginia. In addition, wherever feasible, agencies shall post the agenda for a public meeting on the Virginia Regulatory Town Hall at least seven days prior to the date of the meeting.
Electronic Availability of Guidance Documents
To the extent feasible, agencies shall make all guidance documents, as defined by Section 2.2-4001 of the Code of Virginia, available to the public on the Virginia Regulatory Town Hall. Any guidance document currently available in electronic format shall be posted on the Virginia Regulatory Town Hall. Any changes to a guidance document shall be reflected on the Virginia Regulatory Town Hall within 10 days of the change. The Counselor to the Governor may waive these requirements or extend these deadlines in cases where agencies have demonstrated a compelling need. An agency shall submit a waiver request as soon as possible prior to the expiration of the deadline. Such requests shall be submitted on forms prepared by DPB.
This Executive Order rescinds Executive Order Number Thirty-Six (2006). This Executive Order shall become effective upon its signing and shall remain in full force and effect until June 30, 2010, unless amended or rescinded by further Executive Order.
Given under my hand and under the Seal of the Commonwealth of Virginia on this 30th day of December, 2009.
/s/ Timothy M. Kaine
Governor
EXECUTIVE ORDER NUMBER 108 (2010)
DESIGNATION OF STRENGTHENING COMMUNITIES FUND GRANT RECIPIENT
The American Recovery and Reinvestment Act of 2009 (ARRA) provided an opportunity for eligible applicants to seek grants from the Strengthening Communities Fund-State, Local, and Tribal Government Capacity Building Program (SCF) administered by the U.S. Department of Health and Human Services (HHS), Office of Community Services (OCF). Grantees use program funds to provide capacity building services to community- and faith-based nonprofit organizations that will help them better serve those in need and facilitate the participation of such organizations in the economic recovery.
The SCF funding announcement required that a state-level applicant for the grant funds must be designated by the State as an Authorized Entity through a statute, resolution or executive order. If such a document had not been signed or approved prior to the application due date, a letter from the executive officer could be submitted with the application and the requisite resolution, statute or executive order submitted before the start of the grant.
Virginia Community Capital (VCC), an innovative Community Development Financial Institution (CDFI) that the State established specifically to provide technical assistance and financial services to housing and community development ventures within the Commonwealth, requested designation as an Authorized Entity as part of its SCF grant application. Accordingly, in June 2009, I provided a letter to the Secretary of Health and Human Services designating VCC as the Authorized Entity for the purpose of applying for and administering SCF grant funds made available through ARRA. VCC recently received notice of the award of $250,000 in SCF program funds. To remain in compliance with the terms of the program and assure continued access to program funds, it is necessary to affirm the Authorized Entity designation through an Executive Order.
Designation of the Authorized Entity
Under the terms of the grant, VCC will be responsible for: 1) conducting programmatic and financial oversight of the SCF State, Local, and Tribal Government Capacity Building program grant award; 2) implementing the approved work plan; 3) participating in national evaluation studies; and 4) sending key staff to an annual grantee conference in Washington, D.C. Grant funding will enable VCC to accomplish program objectives through the provision of training and technical assistance services to secular and faith-based organizations. Training will focus on providing in-depth information to nonprofit organizations interested in becoming more active in the economic recovery by pursuing community economic development activities. Technical assistance will help nonprofits and localities build their internal capacity to participate in innovative community and economic development initiatives through one-on-one technical assistance and the creation of a peer-to-peer technical assistance network. Finally, the SCF grant will enable VCC to improve its internal capacity to assist faith- and community-based nonprofit organizations in those economically distressed areas of the Commonwealth where VCC has concentrated its resources and efforts.
Through its role in providing an infusion of $17 million in equity capital to VCC in 2005, the State was instrumental in transforming the organization into a community development corporation able to operate throughout the Commonwealth. VCC's activities have complemented and are expected to continue to complement State efforts addressing the needs of economically distressed communities. The Department of Housing and Community Development and other state agencies will continue to work with VCC in meeting the obligations of the HHS grant. Continuation of this close and collaborative working relationship is further established through the participation of the Director of the Department of Housing and Community Development as a member of the VCC Board of Directors.
Therefore, in response to these circumstances and by virtue of the authority vested in me as Governor under Article V of the Constitution of Virginia and Section 2.2-103 of the Code of Virginia, and subject to my continuing and ultimate authority and responsibility to act in such matters, I hereby designate Virginia Community Capital as the Authorized Entity for the purpose of applying for and administering grant funds received from the American Recovery and Reinvestment Act (ARRA) of 2009, Strengthening Communities Fund–State, Local, and Tribal Government Capacity Building Program, administered by the U.S. Department of Health and Human Services (HHS), Office of Community Services.
This Executive Order shall be effective upon its signing and shall remain in full force and effect during the term of the grant unless sooner amended or rescinded by further executive order.
Given under my hand and under the Seal of the Commonwealth of Virginia on this 8th day of January, 2010.
/s/ Timothy M. Kaine
Governor
EXECUTIVE ORDER NUMBER 109 (2010)
WORKPLACE SAFETY AND EMPLOYEE HEALTH
By virtue of the authority vested in me as Governor under Article V of the Constitution of Virginia and the laws of the Commonwealth, including but not limited to Title 2.2 of the Code of Virginia, and subject to my continuing and ultimate authority and responsibility to act in such matters, I hereby reestablish and revise the Workplace Safety and Employee Health Initiative established under Executive Order Number Fifty-two (1999) and Executive Order Number Ninety-four (2005). This initiative will ensure a safe and healthy workplace for state employees, reduce the incidence of work-related accidents and illnesses occurring in state agencies, and assist employees in returning to work from both work-related and non-work related illnesses and injuries.
Injuries and illnesses cause considerable pain and hardship for employees and their families and hinder the effective operation of state agencies. Human resource, risk management and safety professionals report that many of these injuries and illnesses can be reduced or prevented. In addition, lost productivity for the employee and employer can be lessened by transitional employment and/or job modification.
Keeping our government workers safe, whole, healthy and, whenever possible, employed is the duty of every state agency. This can only be accomplished with the full commitment of agency management working in partnership with all employees. All state agencies have an important role to play not only in reducing work-related injuries but also in improving return-to-work services for all injured or ill employees.
All executive branch departments, agencies, and institutions of higher education shall:
• Cooperate with the Department of Human Resource Management State Employee Workers' Compensation Services (DHRM) by implementing initiatives to reduce work-related injuries and improve services to injured employees;
• Cooperate with DHRM and the Virginia Retirement System Virginia Sickness and Disability Program to establish return-to-work opportunities appropriate for the individual employee and agency;
• Ensure that job expectations are clearly defined in the employee work profile to include physical requirements;
• Submit the First Report of Injury to the State Employee Workers' Compensation Services within 10 days of the injury;
• Identify trends and the impact on the agency;
• Include in managers' performance expectations, when appropriate, goals to encourage a safer work environment and reduction in work-related and non-work related employee lost time;
• Evaluate and maintain the agency's return-to-work policy for both work-related and non-work related periods of disability;
• Evaluate the work-related injuries and illnesses that occurred in FY 2010 and each subsequent fiscal year in order to reestablish goals and strategies to reduce them, to enhance workplace safety, and for transitional duty;
• Evaluate the work-related and non-work related injuries and illnesses that occurred in FY 2010 and each subsequent fiscal year where employees were unable to return to work in a transitional and/or permanent capacity;
• Establish strategies and practices to reduce lost time and to support the safe resumption of work for state employees;
• Report by October 1st of each year to the Department of Human Resource Management on the agency's compliance with the provisions of this Executive Order.
In order to support agency Workplace Safety and Health initiatives and goals, the Virginia Retirement System and Department of Human Resource Management shall:
• Review agency annual reports;
• Provide training, consultation, and support for agency initiatives; and
• Report non-compliance with the provisions of this Executive Order, and report annually to the Governor on progress made in improving workplace safety and returning employees to work;
• Consult with the Virginia Retirement System as administrator for the Virginia Sickness and Disability Program with regard to the compliance outcomes and work collaboratively to support agency initiatives in safely returning employees to work.
This Executive Order rescinds and replaces Executive Order Number Ninety-four (2005), Workplace Safety and Employee Health, issued by Governor Mark R. Warner, on July 14, 2005.
This Executive Order shall be effective upon signing and shall remain in full force and effect until superseded or rescinded by further executive action.
Given under my hand and under the Seal of the Commonwealth of Virginia on this 8th day of January, 2010.
/s/ Timothy M. Kaine
Governor
EXECUTIVE ORDER NUMBER 110 (2010)
ALLOCATION OF A PORTION OF THE COMMONWEALTH'S SHARE OF THE CALENDAR YEAR 2009 NATIONAL LIMITATION FOR QUALIFIED SCHOOL CONSTRUCTION BONDS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009
The American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111-5, 123 Stat. 355) was enacted on February 17, 2009 ("ARRA"). Section 3(a) of ARRA sets forth the purposes of ARRA, which include (i) preserving and creating jobs and promoting economic recovery, (ii) assisting those most impacted by the recession, (iii) investing in infrastructure that will provide long-term economic benefits, and (iv) stabilizing State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive State and local tax increases.
Section 1521(a), Title I, Division B of ARRA added Section 54F to the Internal Revenue Code of 1986, as amended (the "Tax Code"). Section 54F provides for the issuance of qualified school construction bonds ("QSCBs"). QSCBs are tax credit bonds that are designed to bear no interest and may be issued to finance the construction, rehabilitation, or repair of a public school facility or for qualifying public school facility land acquisitions. Among the conditions for the valid issuance of QSCBs is the receipt of an award of the national limitation for the calendar year in which the QSCBs are to be issued.
Section 54F(c) creates a national limitation of $11 billion for each of calendar years 2009 and 2010. Section 54F(d)(1) requires the U.S. Secretary of the Treasury to make allocations to the States in proportion to the respective amounts each State is eligible to receive under Section 1124 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6333) for the most recent federal fiscal year ending before the calendar year. Pursuant to Notice 2009-35 of the Internal Revenue Service (IRB 2009-17, dated April 27, 2009) (the "Notice"), the share of the calendar year 2009 national limitation allocated to the Commonwealth of Virginia (the "Commonwealth" or "Virginia") is $191,077,000 (the "2009 Commonwealth Share").
Section 54F(d)(1) also provides that the national limitation amount allocated to a state for any calendar year shall be allocated by the state to issuers within the state. The Notice provides that eligible issuers of QSCBs include states, political subdivisions as defined for purposes of Section 103 of the Tax Code, large local educational agencies that are state or local governmental entities, certain "on-behalf-of" issuers and certain conduit financing issuers. Neither Virginia nor federal law provides any process for making allocations of the 2009 Commonwealth Share to eligible issuers.
Of the $191,077,000 2009 Commonwealth Share, Executive Order 90 (2009) allocated an amount to certain qualifying projects in certain localities that were on the First Priority Waiting List approved by the Virginia Board of Education. Since that time, additional net qualifying cost of $1,500,000 for the Lylburn Downing Middle School in the city of Lexington have been identified and additional projects totaling $37,489,989 have been added by the Board of Education to the First Priority Waiting List.
On October 14, 2009, I announced the availability of the remaining portion of the 2009 Commonwealth Share to local school divisions through a competitive evaluation process to finance energy efficiency improvements and renovations, as well as renewable energy projects for public school buildings. Working cooperatively, the Department of Education and Department of Mines, Minerals and Energy supervised an application process that concluded on November 12, 2009. Subsequently, each application and project has been evaluated against criteria including annual energy savings, project payback period, shovel readiness, and composite index.
Accordingly, by virtue of the powers invested in me by Article V of the Constitution of Virginia and Section 2.2-103 of the Code of Virginia of 1950, as amended, as Governor of the Commonwealth of Virginia, I hereby allocate to VPSA pursuant to Section 54F(d)(1) of the Tax Code a portion of the 2009 Commonwealth Share sufficient for VPSA to issue a face amount of QSCBs at one time or from time to time to produce for each of the below-listed projects an amount of net sale proceeds up to the maximum amount of the qualifying costs specified below:
From the First Priority Waiting List:
| Locality | Project | Maximum Net Sale |
| Virginia Beach City | Great Neck Middle School | $7,500,000 |
| Washington County | John Battle High School | $489,126 |
|
| Abingdon High School | $489,126 |
|
| Patrick Henry High School | $1,177,236 |
|
| Holston High School | $602,186 |
|
| Meadowview Elementary School | $1,491,288 |
|
| Wallace Middle School | $1,165,073 |
|
| Glade Spring Middle School | $1,596,000 |
|
| William N. Neff Center | $3,100,000 |
| Hopewell City | Hopewell City High School | $7,500,000 |
| Virginia Beach City | College Park Elementary School | $4,879,954 |
| Lexington City | Lylburn Downing Middle School | $1,500,000 |
| Montgomery County | New Price's Fork Elementary School | $7,500,000 |
From the Competitive Process:
| Locality | Project | Maximum Sale Proceeds |
| Amelia County | Amelia County Public Schools | $1,205,379 |
| Arlington County | Arlington Career Center | $3,331,022 |
| Buena Vista | Parry McCluer | $510,000 |
| Greene County | Greene County Technical Education Center | $212,275 |
|
| Nathanael Greene Elementary School | $354,739 |
|
| Ruckersville Elementary School | $348,318 |
|
| William Monroe High School | $1,223,377 |
|
| William Monroe Middle School | $287,170 |
| Greensville County | Belfield Elementary School | $52,942 |
|
| Greensville County High School | $471,841 |
|
| Wyatt Middle School | $12,036 |
|
| Greensville Elementary School | $209,285 |
| Hampton City | Division Wide Lighting Upgrade Initiative | $2,500,000 |
| King William County | Acquinton Elementary School | $85,000 |
|
| Hamilton Holmes Middle School | $65,800 |
|
| King William High School | $62,500 |
|
| Cool Spring Primary School | $47,650 |
| Lancaster County | Lancaster Middle School | $211,983 |
|
| Lancaster High School | $179,146 |
| Lunenburg County | Central High School | $1,172,948 |
| Martinsville City | Martinsville Middle School | $577,208 |
|
| Albert Harris Elementary School | $327,410 |
|
| Patrick Henry Elementary School | $146,131 |
| Montgomery County | MCPS Energy Performance Contract | $9,389,331 |
| Prince William County | Hylton High School | $1,918,591 |
|
| Benton Middle School | $476,836 |
|
| Sudley Elementary School | $131,856 |
|
| Marumsco Hills Elementary School | $189,422 |
|
| West Gate Elementary School | $33,000 |
|
| Vaughan Elementary School | $30,000 |
|
| Swans Creek Elementary School | $57,000 |
|
| Sinclair Elementary School | $24,000 |
|
| Signal Hill Elementary School | $60,000 |
|
| Potomac View Elementary School | $45,000 |
|
| Parkside Middle School | $117,750 |
|
| Occoquan Elementary School | $30,000 |
|
| Neabsco Elementary School | $42,750 |
|
| Minnieville Elementary School | $39,750 |
| Prince William County | Kerrydale Elementary School | $35,625 |
|
| Samuel L. Gravely, Jr. Elementary School | $70,500 |
|
| Glenkirk Elementary School | $61,875 |
|
| Gar-Field Senior High School | $279,000 |
|
| Fannie W. Fitzgerald Elementary School | $78,750 |
|
| Cedar Point Elementary School | $36,750 |
|
| Brentsville District High School | $84,000 |
|
| Bennett Elementary School | $62,250 |
|
| Belmont Elementary School | $33,750 |
|
| Bel Air Elementary School | $39,750 |
|
| Ashland Elementary School | $72,750 |
|
| Alvey Elementary school | $61,500 |
|
| Parkside Middle School | $895,949 |
|
| Tyler Elementary School | $30,000 |
|
| Yorkshire Elementary School | $79,500 |
|
| Gainesville Middle School | $100,500 |
|
| Woodbridge Senior High School | $279,000 |
|
| Woodbridge Middle School | $93,750 |
|
| Mary Williams Elementary School | $62,250 |
|
| Victory Elementary School | $67,500 |
|
| Sudley Elementary School | $39,750 |
|
| Stonewall Jackson High School | $232,500 |
|
| Rosa Parks Elementary School | $60,750 |
|
| Rockledge Elementary School | $36,000 |
|
| Osbourn Park High School | $232,500 |
|
| Marumsco Hills Elementary School | $35,250 |
|
| Marsteller Middle School | $100,500 |
|
| Leesylvania Elementary School | $60,000 |
|
| Godwin Middle School | $92,250 |
|
| Forest Park High School | $206,250 |
|
| Ellis Elementary School | $26,250 |
|
| Coles Elementary School | $36,000 |
|
| Bull Run Middle School | $100,500 |
|
| Buckland Mills Elementary School | $66,750 |
|
| Bristow Run Elementary School | $62,250 |
|
| Beville Middle School | $100,500 |
|
| Benton Middle School | $100,500 |
|
| Battlefield Middle School | $206,250 |
|
| Potomac Middle School | $101,250 |
|
| Freedom High School | $207,000 |
| Prince William County | Hylton High School | $554,000 |
|
| Stonewall Jackson High School | $394,000 |
|
| Osbourn Park High School | $373,000 |
|
| Gar-Field High School | $371,000 |
| Roanoke City | Preston Park Elementary School | $152,182 |
|
| Morningside Elementary School | $337,758 |
|
| Westside Elementary School | $383,842 |
|
| Monterey Elementary School | $236,757 |
| Shenandoah County | North Fork Middle School | $595,951 |
|
| Peter Muhlenberg Middle School | $664,321 |
|
| Central High School | $909,540 |
|
| Signal Knob Middle School | $601,543 |
|
| Sandy Hook Elementary School | $965,526 |
|
| Ashby Lee Elementary School | $930,664 |
|
| W. W. Robinson Elementary School | $1,120,575 |
|
| Triplett Business and Technical Institute | $574,639 |
|
| Strasburg High School | $429,379 |
|
| Stonewall Jackson High School | $510,858 |
| Spotsylvania County | Courtland Elementary School | $680,000 |
|
| Chancellor Elementary School | $200,000 |
|
| Lee Hill Elementary School | $45,305 |
|
| Salem Elementary School | $45,035 |
|
| Battlefield Middle School | $650,000 |
|
| Career and Technical Center | $68,587 |
|
| Courtland High School | $92,445 |
|
| Spotsylvania High School | $126,110 |
|
| Massaponax High School | $126,110 |
|
| Battlefield Elementary School | $35,919 |
|
| Brock Road Elementary School | $46,616 |
|
| Courthouse Road Elementary School | $46,616 |
|
| Robert E. Lee Elementary School | $34,241 |
|
| Smith Station Elementary School | $47,088 |
|
| Courtland Elementary School | $40,795 |
|
| Battlefield Middle School | $56,998 |
|
| Chancellor Middle and High School | $172,729 |
|
| Thornburg Middle School | $66,699 |
| Stafford County | Stafford County Public Schools | $1,100,000 |
|
| Rockhill Elementary School | $180,000 |
| Virginia Beach City | College Park Elementary School | $4,879,954 |
| Washington County | Abingdon, Holston, Patrick Henry & John S. Battle High Schools | $400,000 |
| Westmoreland County | Washington & Lee High School | $1,975,369 |
| York County | Grafton-Bethel Elementary School HVAC Project | $1,100,000 |
The Secretary/Treasurer of VPSA shall notify the Chief of Staff in writing of how much of the 2009 Commonwealth Share VPSA has used pursuant to this Executive Order within five business days following each VPSA issuance of the QSCBs contemplated hereby. I hereby authorize the Chief of Staff to provide certificates of compliance with Section 54F(c) of the Tax Code as may be requested by the VPSA.
This Executive Order shall be effective as of January 14, 2010, without any further act or filing and shall remain in force and effect so long as Section 54F shall remain in effect, unless sooner rescinded or amended by further executive order.
Given under my hand and under the Seal of the Commonwealth of Virginia this 13th day of January, 2010.
/s/ Timothy M. Kaine
Governor
