Administrative Code

Virginia Administrative Code
Title 4. Conservation and Natural Resources
Agency 20. Marine Resources Commission
4/2/2020

Chapter 340. Public Participation Guidelines

4VAC20-340-10. Definitions.

A. 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 1.1:1 (§ 9-6.14:1 et seq.) of Title 9 of the Code of Virginia.

"Commission" means the Marine Resources Commission.

"Commissioner" means the commissioner of Marine Resources or his designee.

"Division" means the Habitat Management Division of the commission.

"Formal hearing" means agency processes other than those informational or factual inquiries of an informal nature provided in § 9-6.14:7.1 of the Administrative Process Act and includes only opportunity for private parties to submit factual proofs in evidential hearings as provided in § 9-6.14:8 of the Administrative Process Act.

"Locality particularly affected" means any locality which bears any identified disproportionate material impact which would not be experienced by other localities.

"Participatory approach" means a method for the use of (i) standing advisory committees, (ii) ad hoc advisory groups or panels, (iii) consultation with groups or individuals registering interest in working with the division, or (iv) any combination of them in the formation and development of chapters for agency consideration. When an ad hoc advisory group is formed, the group shall include representatives of the regulated community and the general public. The decision as to the membership of the group shall be at the discretion of the commissioner.

"Person" means an individual, a corporation, a partnership, an association, a governmental body, a municipal corporation, or any other legal entity.

"Public hearing" means an informal proceeding, similar to that provided for in § 9-6.14:7.1 of the Administrative Process Act, held in conjunction with the Notice of Public Comment to afford persons an opportunity to submit views and data relative to chapters on which a decision of the commission is pending.

"Public meeting" means an informal proceeding conducted by the agency in conjunction with the Notice of Intended Regulatory Action to afford persons an opportunity to submit comments relative to intended regulatory actions.

B. Unless specifically defined in this chapter, terms used shall have the meanings commonly ascribed to them.

Statutory Authority

§§ 2.2-4007 and 28.2-103 of the Code of Virginia.

Historical Notes

Derived from VR450-01-0045 § 1, eff. June 2, 1987; amended, Virginia Register Volume 9, Issue 5, eff. January 1, 1993; Volume 10, Issue 15, eff. May 18, 1994.

4VAC20-340-20. General.

A. The procedures in 4VAC20-340-30 of this chapter shall be used by the division for soliciting the input of interested persons in the initial formation and development, amendment, or repeal of chapters in accordance with the Administrative Process Act. This chapter does not apply to chapters exempt from the provisions of the Administrative Process Act (§ 9-6.14:4.1 A and B of the Code of Virginia) or excluded from the operation of Article 2 of the Administrative Process Act (§ 9-6.14:4.1 C of the Code of Virginia).

B. The failure of any person to receive any notice or copies of any documents provided under this chapter shall not affect the validity of any chapter.

C. Any person may petition the commission for the adoption, amendment or repeal of a chapter. The petition, at a minimum, shall contain the following information:

1. Name of petitioner;

2. Petitioner's mailing address and telephone number;

3. Petitioner's interest in the proposed action;

4. Recommended chapter or addition, deletion or amendment to a specific chapter;

5. Statement of need and justification for the proposed action;

6. Statement of impact on the petitioner and other affected persons; and

7. Supporting documents, as applicable.

The commission shall provide a written response to such petition within 180 days from the date the petition was received.

Statutory Authority

§§ 2.2-4007 and 28.2-103 of the Code of Virginia.

Historical Notes

Derived from VR450-01-0045 § 2, eff. June 2, 1987; amended, Virginia Register Volume 9, Issue 5, eff. January 1, 1993; Volume 10, Issue 15, eff. May 18, 1994.

4VAC20-340-30. Public participation procedures.

A. The division shall establish and maintain a list or lists consisting of persons expressing an interest in the adoption, amendment, or repeal of chapters. Any person wishing to be placed on any list may do so by writing the agency. In addition, the agency, at its discretion, may add to any list any person, organization or publication it believes will be interested in participating in the promulgation of chapters. Individuals and organizations may be periodically requested to indicate their desire to continue to receive documents or be deleted from a list. Individuals and organizations may be deleted from any list at the request of the individual or organization, or at the discretion of the agency when mail is returned as undeliverable.

B. Whenever the commission so directs or upon its own initiative, the division may commence the chapter adoption process and proceed to draft a proposal according to these procedures.

C. The division shall use the participatory approach to assist in the development of the proposal or use one of the following alternatives:

1. Proceed without using the participatory approach if the commission specifically authorizes the division to proceed without using the participatory approach.

2. Include in the Notice of Intended Regulatory Action (NOIRA) a statement inviting comment on whether the division should use the participatory approach to assist the division in the development of the proposal. If the division receives written responses from at least five persons during the associated comment period indicating that the division should use the participatory approach, the division will use the participatory approach requested. Should different approaches be requested, the commissioner shall determine the specific approach to be utilized.

D. The division shall issue a NOIRA whenever it considers the adoption, amendment or repeal of any chapter.

1. The NOIRA shall include at least the following:

a. A description of the subject matter of the planned chapter;

b. A description of the intent of the planned chapter;

c. A brief statement as to the need for regulatory action;

d. A brief description of alternatives available, if any, to meet the need;

e. A request for comments on the intended regulatory action, to include any ideas to assist the division in development of any proposal;

f. A request for comments on the costs and benefits of the stated alternatives or other alternatives;

g. A statement of the division's intent to hold at least one public hearing on the proposed chapter after it is published in The Virginia Register of Regulations; and

h. A statement inviting comment on whether the division should use the participatory approach to assist the division in the development of any proposal. Including this statement shall only be required when the division makes a decision to pursue the alternative provided in subdivision C 2 of this section.

2. The division shall hold at least one public meeting whenever it considers the adoption, amendment or repeal of any chapter unless the commission specifically authorizes the division to proceed without holding a public meeting.

In those cases where public meeting will be held, the NOIRA shall also include the date, not to be less than 30 days after publication in The Virginia Register of Regulations, time and place of the public meeting.

3. The public comment period for NOIRA's under this section shall be no less than 30 days after publication of the NOIRA in The Virginia Register of Regulations.

E. The division shall disseminate the NOIRA to the public via the following:

1. Distribution to the Registrar of Regulations for publication in The Virginia Register of Regulations.

2. Distribution by mail to persons on the list established under subsection A of this section.

F. After consideration of public input, the division may complete the draft proposed chapter and any supporting documentation required for review. If the participatory approach is being used, the draft chapter shall be developed in consultation with the participants. A summary or copies of the comments received in response to the NOIRA shall be distributed to the participants during the development of the draft chapter. This summary or copies of the comments received in response to the NOIRA shall also be distributed to the commission.

G. Upon approval of the draft proposed chapter by the commission, the division shall publish a Notice of Public Comment (NOPC) and the proposal for public comment.

H. The NOPC shall include at least the following:

1. The notice of the opportunity to comment on the proposed chapter, location where copies of the draft may be obtained, and name, address and telephone number of the individual to contact for further information about the proposed chapter.

2. A request for comments on the costs and benefits of the proposal.

3. The identity of any locality particularly affected by the proposed chapter.

4. A statement that an analysis of the following has been conducted by the division and is available to the public upon request:

a. Statement of purpose: the rationale or justification for the new provisions of the chapter, from the standpoint of the public's health, safety or welfare.

b. Estimated impact.

(1) Projected number and types of regulated entities or persons affected;

(2) Projected cost, expressed as a dollar figure or range, to regulated entities (and to the public, if applicable) for implementation and compliance. In those instances where the division is unable to quantify projected costs, it shall offer qualitative data, if possible, to help define the impact of the chapter. Such qualitative data shall include, if possible, an example or examples of the impact of the proposed chapter on typical member of the regulated community.

(3) Projected cost to the agency for implementation and enforcement.

(4) The beneficial impact the chapter is designed to produce.

c. An explanation of need for the proposed chapter and potential consequences that may result in the absence of the chapter.

d. An estimate of the impact of the proposed chapter upon small businesses, as defined in § 9-199 of the Code of Virginia, or organizations in Virginia.

e. A description of provisions of the proposed chapter which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed.

f. A discussion of alternative approaches that were considered to meet the need the proposed chapter addresses, and a statement as to whether the agency believes that the proposed chapter is the least burdensome alternative to the regulated community that fully meets the stated purpose of the proposed chapter.

g. A schedule setting forth when, within two years after the effective date of the chapter, the agency will evaluate it for effectiveness and continued need.

5. The time, date and location of at least one public hearing held in conformance with § 9-6.14:7.1 of the Code of Virginia to receive comments on the proposed chapter. The public hearing may be held at any time during the public comment period and, whenever practicable, no less than 15 days prior to the close of the public comment period. In those cases in which the commission elects to conduct a formal hearing, the notice shall indicate that the formal hearing will be held in accordance with § 9-6.14:8 of the Code of Virginia. The public hearing may be held in such location as the commission determines will best facilitate input from interested persons.

I. The public comment period shall close no less than 60 days after publication of the NOPC in The Virginia Register of Regulations.

J. The division shall disseminate the NOPC to the public via the following:

1. Distribution to the Registrar of Regulations for:

a. Publication in The Virginia Register of Regulations.

b. Publication in a newspaper of general circulation published at the state capital and such other newspapers as the agency may deem appropriate.

2. Distribution by mail to persons on the list established under subsection A of this section.

K. The division shall prepare a summary of comments received in response to the NOPC and the division's response to the comments received. The division shall send a draft of the summary of comments to all public commenters on the proposed chapter at least five days before final adoption of the chapter. The division shall submit the summary and agency response and, if requested, submit the full comments to the commission. The summary, the agency response, and the comments shall become a part of the agency file and after final action on the chapter by the commission, made available upon request, to interested persons.

L. If the division determines that the process to adopt, amend or repeal any chapter should be terminated after the approval of the draft chapter by the commission, the division shall present to the commission for their consideration a recommendation and rationale for the withdrawal of the proposed chapter.

M. Completion of the remaining steps in the adoption process shall be carried out in accordance with the Administrative Process Act.

Statutory Authority

§§ 2.2-4007 and 28.2-103 of the Code of Virginia.

Historical Notes

Derived from VR450-01-0045 § 3, eff. June 2, 1987; amended, Virginia Register Volume 9, Issue 5, eff. January 1, 1993; Volume 10, Issue 15, eff. May 18, 1994.

4VAC20-340-40. Transition.

A. All regulatory actions for which a NOIRA has been published in The Virginia Register of Regulations prior to May 18, 1994 shall be processed in accordance with the emergency amendments to 4VAC20-340-10 et seq., Public Participation Guidelines, which are effective from June 29, 1993, until June 28, 1994, unless sooner modified or vacated or superseded by permanent chapters.

B. This chapter shall supersede and repeal emergency amendments to 4VAC20-340-10 et seq. Public Participation Guidelines which became effective on June 29, 1993. All regulatory actions for which a NOIRA has not been published in The Virginia Register of Regulations prior to May 18, 1994 shall be processed in accordance with this chapter.

Statutory Authority

§§ 2.2-4007 and 28.2-103 of the Code of Virginia.

Historical Notes

Derived from VR450-01-0045 § 4, eff. June 2, 1987; amended, Virginia Register Volume 9, Issue 5, eff. January 1, 1993; Volume 10, Issue 15, eff. May 18, 1994.



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