REGULATIONS OF THE VIRGINIA CODE COMMISSION FOR IMPLEMENTING THE VIRGINIA REGISTER ACT
Statutory Authority: § 9-6.20 of the Code of Virginia.
Effective Date: January 24, 1994.
PART I.
GENERAL PROVISIONS.§ 1.1. Purpose.
A. The purpose of this regulation is to assist and guide administrative agencies in complying with the Virginia Register Act. The regulation defines more particularly the scope of certain terms and provisions of the Act as interpreted and modified by the Code Commission. In order to render them more readably complete and usable, the following text includes statements copying or paraphrasing the Act.
B. The purpose of the Act is to satisfy the need for public availability of information respecting administrative regulations, and to encourage agencies in developing informative regulations. To that end, it provides for the compilation, publication, and supplementation of the Virginia Administrative Code and the Administrative Law Appendix. The Appendix serves as a finding guide to the existing regulations of administrative agencies of the Commonwealth and the Virginia Administrative Code is a complete, full text, official compilation of all regulations of state agencies. The Act provides for general supervision, application of policies, and determination of guidelines by the Virginia Code Commission, and day-to-day operation under a Registrar of Regulations.
§ 1.2. Definitions.
The following words and terms, when used in these regulations, shall have the following meaning, unless the context clearly indicates otherwise:
"Act" means the Virginia Register Act (§ 9-6.15 et seq. of the Code of Virginia).
"Administrative Law Appendix" means the published listing of agency regulations with supplemental information as provided by §§ 9-6.18 and 9-6.19 of the Code of Virginia, and referred to in these regulations as the "Appendix."
"Adoption by reference" or "incorporated by reference" means the inclusion in regulations of provisions making applicable in whole or in part any requirements, prohibitions, policies, standards, forms, instructions, or procedures prescribed or established in other documents, except statutes, whether issued by governmental agencies or by private organizations and whether such documents are in express terms "adopted" or "incorporated" in the regulations.
"Agency" means any authority, instrumentality, officer, board or other unit of the government of the Commonwealth with express or implied authority to issue regulations other than the General Assembly, courts, municipal corporations, counties, other local or regional governmental authorities including sanitary or other districts and joint state-federal, interstate or intermunicipal authorities, the Virginia Resources Authority, the Virginia Code Commission with respect to minor changes made under the provisions of § 9-77.10:1 of the Code of Virginia, and educational institutions operated by the Commonwealth with respect to regulations which pertain to (i) their academic affairs; (ii) the selection, tenure, promotion and disciplining of faculty and employees; (iii) the selection of students; and (iv) rules of conduct and disciplining of students.
"Commission" means the Virginia Code Commission.
"Registrar" means the Registrar of Regulations as provided in § 9-6.17 of the Code of Virginia.
"Regulation" or "operative regulation" means any statement of general application, having the force of law, affecting the rights or conduct of any person, promulgated by an agency in accordance with the authority conferred on it by applicable basic laws.
"Style Manual" means the Virginia Register Form, Style, and Procedure Manual issued by the Virginia Code Commission.
"To file" means to deliver the entire text of the regulatory document to the Registrar or, upon a determination by the Registrar in accordance with the criteria established in § 2.3, to deliver a description of the regulatory document to the Registrar.
"Virginia Administrative Code" means the codified publication of regulations under the provisions of Chapter 8.1 (§ 9-77.4 et seq.) of Title 9 of the Code of Virginia.
"Virginia Register of Regulations" means the publication issued under the provisions of the Administrative Process Act in Article 7 (§ 9-6.14.22 et seq.) of Chapter 1.1:1 of Title 9 of the Code of Virginia.
§ 1.3. Form and style of regulations.
Every regulation shall be drafted in conformance with the Virginia Register Form, Style and Procedure Manual, which has been prepared under the authority of the Virginia Code Commission, and which may be amended from time to time. Every regulation shall also be identified with a number as provided in that publication. A sufficient number of copies of the publication are furnished to all agency regulatory coordinators. Additional copies are available from the office of the Registrar for $7.50.
§ 1.4. Agency services to the public.
The following requirements apply to all agencies adopting regulations subject to the Act, except that the requirements do not apply to materials adopted by reference to the Code of Federal Regulations or The Federal Register, or by reference to regulations of other Virginia agencies:
1. Each agency shall maintain for public consultation a complete list of all of its currently operative regulations, including, an itemization of materials adopted by reference.2. Each agency shall make available for public inspection a complete file of the full text of all currently operative regulations, as well as all textual material adopted by reference, and allow public copying or make copies available either without charge, at cost, or on payment of a reasonable fee.
3. Each agency shall maintain as a public record a complete file of its regulations which have been superseded on and after June 1, 1975.
§ 1.5. Place of filings; consultations; inquiries.
Filing shall be made either in person or by mail at the office of the Registrar of Regulations, Second Floor, General Assembly Building, Capitol Square, Richmond, Virginia 23219.
A currently updated copy of the Appendix is available for public consultation at the above address. Upon request, the Registrar will furnish any person with both the date on which a regulation was filed and the date on which the regulation became effective. As stated more fully in § 9-6.18, however, it is the responsibility of each agency to make its regulations, including textual materials adopted by reference, available to the public and to make available for public consultation its own list of regulations.
PART II.
REGULATIONS REQUIRED TO BE FILED.§ 2.1. Registration of regulations.
All operative regulations, including textual materials adopted by reference, shall be registered with the Registrar, either by filing in full or by filing a description of those regulations as specified in § 2.3.
§ 2.2. Registration by filing in full.
All currently operative materials falling within the term "regulation" as defined in § 1.2, and not exempted from filing in full as set out in § 2.3, are required to be on file in full text with the Registrar together with notations of the dates of their adoption, revision, publication, or amendment. All new regulations and amendments, repeals, or additions to previously filed regulations shall be similarly filed as adopted.
No regulation or amendment or repeal thereof is effective until filed with the Registrar. (See also the filing requirements in the Administrative Process Act § 9-6.14:9 of the Code of Virginia.)
All regulations subject to filing in full shall be filed in duplicate with the Registrar. A signed statement or certification, that they are full, true, and correctly dated shall accompany the regulation. The statement shall be filed in triplicate. One copy will be stamped and returned as a receipt to the agency. The signed statement or certification may be in the form of a cover letter.
Regulations that are required to be filed under the Virginia Register Act and the Administrative Process Act shall comply with the Virginia Register Form, Style, and Procedure Manual.
§ 2.3. Registration by filing description.
The Registrar may authorize the filing of a document by description in lieu of filing the entire text of any regulatory document in accordance with the following criteria:
1. Regulations which are expressly addressed to named individuals or organizations;2. Regulations which are concerned only with any of the following:
a. Public officers and employees;3. The size of the document's pages differs significantly from the standard page size of the Virginia Register of Regulations or the Virginia Administrative Code;b. Elections;
c. Students;
d. Persons in state mental, penal and other institutions;
e. State property or funds;
f. Public contracts;
g. Defense functions;
h. Police operations of an enforcement, prosecutorial or investigatory character; or
i. Money grants, benefits, loans, or subsistence or welfare payments;
4. The material is not available in document form; for example, if the material is only available in electronic form or on computer tape or discs; or
5. Regulations which are both of a temporary nature and operative only in limited localities.
Any request for exemption shall be made to the Registrar by the agency in writing.
Any approval granted by the Registrar shall also be made in writing.
In every instance in which the Registrar authorizes an agency to file a regulatory document by description, a current document shall be maintained and, upon request, be made available to the public by the agency. This current document shall be deemed to be filed in its entirety with the Registrar and shall, at any time during business hours, be made available to the Registrar upon request.
All such regulations are otherwise subject to all requirements in these regulations applicable to agency regulations covered by the Act.
§ 2.4. Supplemental information required to be supplied.
The Commission, through the Registrar, from time to time, may make general or special calls for additional information. The Act requires prompt response to all such requests. Unless specifically requested, no particular form is required for statements furnishing such supplemental information except that they must be signed, and filed in duplicate if the agency desires one copy stamped and returned as a receipt. The following additional information is regularly and generally hereby required to be on file respecting all regulations subject to the Act, whether the regulations are required to be registered by filing in full or by filing by description:
1. Source or sources in the agency and elsewhere from which official copies may be obtained, and any fee or other requirement therefor. Information shall be filed detailing where and how private persons may obtain official (not certified), copies of all regulations. Unless otherwise stated, it is assumed that there is no charge for such copies.2. Place of custody of original regulations, and place or places where regulations may be inspected or copied. Unless the agency otherwise informs the Registrar, it will be assumed that its original regulations are maintained, and copies of the regulations may be reviewed or copied, in the same office or offices of the agency as those listed under subdivision 1 of this section. As stated in the preface to the Administrative Law Appendix, the statement "Regulations are available at .....," unless otherwise indicated, applies to both availability for inspection and availability of copies, as well as to the place of custody of the original regulations. If some or all of the agency's regulations are regularly distributed to, or posted for public inspection at, places other than agency offices, information to that effect should also be furnished.
3. Existing official publication of regulations. When an agency's regulations are regularly published in official publications (e.g., annual reports, etc.), or if the agency regularly makes newspaper publication of regulations, the agency shall coordinate with the Registrar, the publication, of published regulations as they appeared in The Virginia Register of Regulations. If, due to the length of the regulation, only a summary of the regulation was published in the Register, the agency shall advise the Registrar of its need to proceed with publication in other sources, in order that the Registrar can process the document in a timely manner.
4. Subsequent information or corrections. Agencies shall promptly file new or additional statements as necessary to correct or bring up to date previously filed public availability information of the foregoing nature.
§ 2.5. Data required to be included in filed regulations.
The date of adoption, revision, or effective date, and terminal date, if any, shall appear on the face of all new regulations, not merely on the certification filed with the Registrar. New forms shall indicate date of issuance or revision.
Regulations shall indicate statutory authority. Statutory authority shall be cited by referring to the appropriate title and sections or chapters of the Code of Virginia or, for uncodified statutes, the appropriate chapter of the designated Act of Assembly.
PART III.
ADOPTION BY REFERENCE.§ 3.1. Filing requirements for material adopted by reference.
A. Where regulations, which are filed in full, adopt textual matter by reference to other publications as defined in § 1.2, such incorporated publications, in their entirety, shall also be filed with the Registrar. Whether the referenced material is required to be filed in full or by descriptive statement, the agency shall make copies of all referenced publications available for public inspection and copying along with its other regulations.
B. Whenever a regulation incorporates other textual material by reference, it should specify the date of adoption, revision, or publication, or the effective date, of the adopted material.
In addition, regulations so adopting other materials are required to have the following information on the cover of the incorporated material and the places where copies of the referenced publications may be procured:
1. Reference to the specific regulation adopting the outside material;2. The filing date and effective date of the regulation; and
3. A notation containing the name of the agency.
§ 3.2. Statement of availability.
Where numerous adoptions by reference are made in a regulation, notations of sources and places of availability may be set forth in a separate section of the regulation.
§ 3.3. Exemptions to filing of documents adopted or incorporated by reference.
A. The requirements established in § § 3.1 and 3.2 do not apply to incorporation of textual matter by reference to the Federal Register or the Code of Federal Regulations, or by reference to regulations of other Virginia agencies. Where such references are made, however, the citation shall be sufficient for accurate identification of the referenced material. Where the material has been published in the Code of Federal Regulations, the title, part of sections, and the date of publication shall be given. Example: 1 C.F.R. Part 1 (rev. Jan. 1, 1975) or 1 C.F.R. §§ 1.1 to 1.30 (rev. Jan. 1, 1975). Where the referenced material has not been published in the Code of Federal Regulations but appears in the Federal Register, the volume, page, and date of that publication shall be given and, if the material is in codified form, the C.F.R. citation should be given. Example: 16 C.F.R. § 19.1, 39 F.R. 23605 (Nov. 4, 1974). Some agency regulations previously filed with the Registrar adopt materials issued by federal agencies without reference to the Code of Federal Regulations or the Federal Register; to the extent that such materials appear in either of those publications, filing may be avoided and public access made easier by use of the appropriate citations.
B. In certain limited instances, on a case-by-case basis, the Registrar may exempt an agency from the requirements of filing in full textual material adopted by reference where such filing would be impractical due to:
1. The document exceeds 500 pages and is generally available to the public;2. The size of the document's pages differs significantly from the standard page size of the Virginia Register of Regulations or the Virginia Administrative Code;
3. The material is not available in document form; for example, if the material is only available in electronic form or on computer tape or discs;
4. The material is updated more than twice yearly; or
5. The material is copyrighted or is otherwise the property of an individual or an organization other than the state government.
C. Any request for exemption to these filing requirements shall be made by the agency in writing, to the Registrar. Any approval granted by the Registrar shall also be made in writing.
D. The granting of an exemption under this section does not relieve an agency from the requirement of maintaining on file, and making available to the public, the full text of all materials adopted by reference.
PART IV.
ADMINISTRATIVE LAW APPENDIX.§ 4.1. Contents of Appendix; supplementation.
A. The Appendix contains, for each agency subject to the Act, (i) a summary statement of its regulatory powers with citation to the Virginia Code or other authority; (ii) information as to where its regulations may be inspected or copied; (iii) where and how copies may be obtained; (iv) the place of custody of the originals if not at the same location; (v) references to any official publications of the regulations; (vi) a list of the agency's currently effective regulations, including forms, delegations of authority, and textual material adopted by reference, subject to filing in full under the Act and filed with the Registrar; and (vii) the notation of its regulations exempt from filing in full but otherwise covered by the Act, and which the agency has submitted descriptive statements as required by § 3.3.
B. The Appendix will be published at least annually, and a currently updated copy maintained in the office of the Registrar.
§ 4.2. Omissions and errors.
Agencies should promptly call to the attention of the Registrar any omissions or errors they discover in the Appendix.
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