Virginia Code Commission
September 27 and 28, 2000, Charlottesville
At the last meeting, Lexis Publishing presented a request for an increase in the cost of the Code of Virginia replacement volumes, supplements, and indexes to be purchased by the Commonwealth in 2001. The proposal is as follows:
Code Pricing Proposal
Staff of the Division of Legislative Services presented an analysis of Code prices, focusing on the years 1994-2001. It was noted that the cost increase between 1994 and 2001 was 27.3 percent for an annual set of replacement volumes, supplements, indexes, and the rules volume with supplement; however, the Book Publishing Price Index for that time period increased by 31.4 percent. The Book Publishing Price Index increased 3.6 percent in the last year and Lexis Publishing is requesting a 2.7 percent increase.
The commission voted to accept Lexis Publishing's proposal for replacing four volumes of the Code as shown in the above table. The four volumes chosen for replacement are: Volume 1, contingent on the passage of the revision of Title 2.1, and Volumes 2A, 5A and 9. If legislation recodifying Title 2.1 does not pass, Volume 7A would be the alternate replacement.
Administrative Code Contract
A representative from West Group explained methods used to market the Virginia Administrative Code, which includes sending out informational flyers, attending bar meetings, contacting legal research libraries, and printing advertisements in various Virginia publications. The marketing focus has shifted from individual product marketing to marketing a library of products.
The commission revisited the issue of whether to allow for annual price adjustments to the Virginia Administrative Code based on the Book Publishing Price Index cap instead of the Book Printing Price Index cap. After discussion, the commission approved changing the pricing formula in the contract to allow for an increase based on the Book Publishing Price Index.
Staff presented a draft resolution establishing procedures that the Division of Legislative Services will use when drafting (i) definitions of terms in legislation and (ii) interstate compacts. Regarding the former, the proposed resolution provides that drafters will place general definitions in either Title 1 or in the title, chapter or article where the new legislation will appear and will not repeat the definitions elsewhere in the Code of Virginia. The commission adopted the resolution, which reads:
Resolved by the Virginia Code Commission, That the drafting staff of the Division of Legislative Services shall take every precaution when drafting new legislation not to replicate definitions of terms that are already defined in either Title 1 of the Code of Virginia (General Provisions) or in the title, chapter or article wherein such new legislation is to be located.
The commission deferred action on the second resolution, which provides that interstate compacts shall be codified when the compact has an unlimited duration of existence and more than local or regional application or significance. This policy is consistent with the policy on codification of authorities. In addition, the resolution provides that such compacts will be placed in Title 2.1 (or Title 2.2 upon passage of the recodification) of the Code. There was concern expressed with placing all compacts in Title 2.1 and it was suggested that the compacts should be placed in the appropriate subject matter area of the Code.
Revision of Title 63.1
Chapters 1 and 2 of the recodification of Title 63.1 were presented by legislative staff. The newly created Chapter 1 will deal with "General Provisions Relating to Social Services." The proposed first section will be a definitional section for the entire title. Other provisions in this chapter will be laws governing the exchange of information amongst agencies and the confidentiality provisions. The Code Commission requested that the confusing provisions concerning confidentiality be rewritten by staff and introduced as a bill in the 2001 General Assembly session.
Proposed Chapter 2 deals with social services at the state level. Article 1 concerns the Department and Commissioner of Social Services. The current sections in the Code referencing the terms Department, Board or Commissioner of Welfare are deleted as anachronistic. The commission agreed that staff should eliminate all such anachronistic references throughout the Code. In addition, questions were raised concerning the need for bonding of the Commissioner and State Board of Social Services members. It was later determined that such bonds were not necessary. However, provisions concerning the bonding of agents and employees who handle funds remain.
Superfluous language was deleted in proposed §§ 63.2-219 and 63.2-220. Current sections related to benefit and grant programs will be moved to other proposed subtitles of the Code. Because the State Board of Social Services has a general authority to administer oaths and to compel witnesses and documents in proposed § 63.2-222, redundant language in proposed § 63.2-223 was eliminated.
Finally, staff reported that the Statewide Human Services Information and Referral Program, which is the proposed Article 3 of Chapter 2, is currently being reviewed by the Secretary of Health and Human Resources pursuant to HJR 18 (2000). While the provisions have been carried into the recodification, it is more than likely the provisions relating to the program will be revised.
Revision of Title 56
Washington Metropolitan Area Transit Regulation Compact
In light of the earlier discussion on revisiting the issue of the codification of compacts, staff began by asking the members whether further discussion of the codification of the Washington Metropolitan Area Transit Regulation Compact should be deferred until the Secretary of the Commonwealth issues the revised Compact Book. At the last meeting, the compact was presented by assigning section numbers to the various provisions in the compact, the benefit being that the individual sections could be amended without setting out the entire compact. However, setting out the compact in this manner would make Virginia's version inconsistent with the versions adopted by other jurisdictions, and the revisions would need to be approved by the other states and Congress. The version of the compact before the commission today sets out the full texts of the Metropolitan Area Transit Commission and the Washington Metropolitan Area Transit Authority as two sections as the law is currently in effect, and, at the end, identifying the five areas that the Virginia General Assembly has changed, but other signatories have not yet agreed to. The commission decided to defer the matter until issuance of the Secretary of the Commonwealth's Compact Book. There was discussion about changing the statute to authorize the Secretary of the Commonwealth to certify copies of compacts to avoid the necessity of adding them into the Code. A commission member agreed to discuss the matter with the Secretary of the Commonwealth.
Subtitle I: Definitions and General Provisions
Staff explained that there is some objection by the State Corporation Commission to defining several terms used throughout Title 56. Specifically, several elemental terms, such as "public service company," "railroad company," and "electric company," are not specifically defined. For example, § 56-1 states that public service company "shall include gas, pipeline, electric light, heat, power and water companies ." The use of the words "shall include" leaves open the flexibility to include other types of companies than those listed. In addition, the absence of definitions for gas companies, electric companies, and the other terms underscores the point that the current Title 56 leaves questions concerning the breadth of the SCC's jurisdictional powers to be answered by the SCC and the courts.
The absence of definitions that establish boundaries on the SCC's jurisdiction may be intentional. The current approach leaves the SCC a degree of flexibility. SCC staff has reported to Code Commission staff that adding definitions to such terms as "electric company" and "telecommunication service" that are not now defined may reduce the flexibility the SCC currently enjoys in responding to changes in technology within these industries and in defining what activities constitute electric, gas, and telecommunications service. They have also noted that the SCC has not determined that competitive service providers or energy service providers are public service companies and are therefore subject to the SCC's regulation. The SCC is constitutionally empowered to exercise regulatory authority unless the General Assembly by general law authorizes otherwise. The decision of whether to continue the current approach of providing the SCC with flexibility in determining whether certain activities are subject to regulation is a substantive issue. As a general rule, the Code Commission attempts to avoid making substantive changes in the course of proposing title recodifications.
Staff reminded the members that Senator Mims had previously raised a question about how the revision of Title 56 would mesh with the joint subcommittee established under SJR 173, which will be studying the issue of the SCC's regulatory responsibilities. Staff had originally responded that the joint subcommittee study should not have a great impact on the recodification. Now, however, if there is a desire to examine the limits of SCC jurisdiction, staff asked the members whether the commission would prefer to bring to the attention of the joint subcommittee the issue of whether the General Assembly should, by general law, enact statutes that define the parameters of the SCC's regulatory powers vis-à-vis public service companies, and defer action on the recodification until the SJR 173 joint subcommittee issues its report in 2002. The consensus of the commission was to defer further action on its proposed recodification of Title 56 until the SJR 173 joint subcommittee has submitted its final recommendations to the General Assembly. Staff was asked to draft a letter addressing this issue for the Code Commission Chairman to send to the Chairman of the SJR 173 joint subcommittee.
Administrative Process Act Issues
The Registrar of Regulations brought before the Code Commission an Administrative Process Act issue concerning questions that have arisen involving the suspension of the regulatory process as provided in § 9-6.14:7.1 K of the Administrative Process Act.
The registrar advised the commission that the usual sequence of events involved in the suspension of the regulatory process is as follows: First, a notice of suspension is published in the Virginia Register. This notice alerts the public that the effective date of the regulation will be delayed and that additional public comment will be solicited; announces the new public comment deadline; identifies an agency contact person; and, if applicable, sets forth public hearing information. Second, after the conclusion of the comment period, the agency files another final regulatory package with the registrar for final notice in the Virginia Register.
Recently, an agency suspended the regulatory process for a regulation and in the notice of suspension stated that the regulation "may not become effective on November 1, 2000." In the meantime, the registrar was unofficially informed that the Attorney General's office had advised the agency that the regulation would go into effect on November 1, 2000, without any further notice to the public being published in the Register. The registrar explained to the agency and to an assistant attorney general that the process as outlined in the Virginia Register Form, Style and Procedure Manual provides that the final regulatory package must be filed again after the conclusion of the comment period, even if the agency decides to make no further changes. In addition to providing notice to the public concerning the status of the regulation, this is part of a process that is in place for the purpose of releasing the regulation to the publisher for inclusion in the Virginia Administrative Code.
Similar issues were referred to the Administrative Law Advisory Committee two years ago to be addressed in the study on the regulatory process. However, that report is still pending and the issues have resurfaced.
The commission agreed to refer this issue, as well as related questions asked by the Registrar of Regulations, to the Administrative Law Advisory Committee. In the meantime, the commission directed the registrar to waive the style manual requirement and publish a notice in the Virginia Register alerting the public that the regulation would take effect on November 1, 2000, unless further action was taken by the promulgating agency. Staff was asked to draft a letter from the Code Commission Chairman to the Administrative Law Advisory Committee Chairman requesting that these issues be addressed.
The Chairman indicated that he had been approached about the Code Commission moving forward with a recodification of Title 18.2. It was noted that revision of this title has been discussed on and off over the last four years. The State Police have been particularly interested and VASAP is now expressing an interest in the revision. It was determined in the past that both Titles 18.2 and 19.2 need to be revised at the same time. Another, more immediate, option might be to revise a portion of the title; for example, revise the VASAP part of the title instead of the entire title. After discussion, staff was asked to bring back before the commission more specific recommendations about revising the drunk driving laws.