Regulatory Alert

Proposed Regulations Open to Public Comment:

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

25-580. Rules and Regulations Pertaining to the Sanitary and Operating Requirements in Retail Food Stores (repealing 25-580-10 through 25-580-310).

25-585. Retail Food Establishment Regulations (adding 25-585-10 through 25-585-4070).

A public hearing will be held August 29, 2006, at 9 a.m., Department of Agriculture and Consumer Services, Richmond, VA. Written public comment may be submitted until September 11, 2006.

The proposed new regulation replaces the existing regulation (2 VAC 5-580) in order to (i) be consistent with regulations enforced by the Virginia Department of Health in restaurants and food service operations, by adopting appropriate portions of the 2001 edition and 2003 supplement of the U.S. Food and Drug Administration’s Food Code; (ii) provide practical, science-based guidance and manageable, enforceable provisions for mitigating risk factors known to cause foodborne disease; (iii) significantly expand the definitions section, providing much greater clarification; (iv) require the demonstration of knowledge by the food establishment operator for foodborne disease prevention, application of Hazard Analysis Critical Control Point principles, and the requirements of the regulation; (v) require minimal bare-hand contact with ready-to-eat foods; (vi) allow greater flexibility with respect to properly cooling hot foods; (vii) require colder holding temperatures for refrigerated foods (41°F as opposed to 45°F) but allow a five year phase-in period for existing equipment that cannot currently meet the 41°F requirement; (viii) allow a lesser temperature for foods required to be held hot (135°F as opposed to 140°F); (ix) permit the use of time as a public health control, as appropriate, in place of the typical time in conjunction with temperature; (x) require that food establishments obtain a variance from the agency if performing certain high-risk processing operations not typically performed at the retail level; (xi) require the use of a disclosure statement indicating that the consumption of raw or undercooked animal foods significantly increase the risk of foodborne disease to the consumer; (xii) identify requirements that are necessary to properly protect highly susceptible populations from foodborne disease; and (xiii) lessen the restrictions contained in the existing regulation by allowing all service animals controlled by disabled persons.

Due to the extensive amendments to the existing regulation, 2 VAC 5-580 (Rules and Regulations Pertaining to the Sanitary and Operating Requirements in Retail Food Stores) is being repealed and 2 VAC 5-585 (Retail Food Establishment Regulations) is being adopted concurrently.

For additional information contact: Richard D. Saunders, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, Richmond, VA, (804) 786-8899, or e-mail doug.saunders@vdacs.virginia.gov.

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

BOARD OF CORRECTIONS

615-20. Regulations Governing Certification and Inspection (amending 615-20-10 through 615-20-230).

Written public comment may be submitted until 5 p.m. on September 8, 2006.

The proposed amendments account for changes in the internal structure of the department's auditing unit. The amendments require that correctional facilities and programs provide documentation for any waivers that the board has obtained and eliminate the requirement that the auditing unit send enumerated compliance forms to correctional facilities each time they are audited.

For more information please contact: Donna Lawrence, Department of Corrections, Richmond, VA, (804) 674-3499, or e-mail donna.lawrence@vadoc.virginia.gov.

CRIMINAL JUSTICE SERVICES BOARD

6VAC 20-30. Rules Relating to Compulsory In-Service Training Standards for Law-Enforcement Officers, Jailors or Custodial Officers, Courtroom Security Officers, Process Service Officers and Officers of the Department of Corrections, Division of Operations (amending 620-30-10 through 620-30-60, 620-30-80).

A public hearing will be held September 13, 2006, at 1 p.m., Department of Criminal Justice Services, Richmond, Virginia. Written public comment may be submitted until September 11, 2006.

The proposed amendments (i) allow academy directors to approve all in-service training; (ii) reduce the minimum length of a training session to two hours; (iii) require that two hours of the in-service training for law-enforcement officers, jailors, custodial officers, courtroom security officers, process service officers, and officers of the Department of Corrections be on cultural diversity; (iv) eliminate certain current limitations on extensions of the time limit for completion of in-service training; (v) eliminate the time limit on when the chief of police, sheriff or agency administrator may request authorization for attendance and successful completion by an employee of job-related courses to count for partial in-service credit; (vi) eliminate the requirement that the local agency maintain records of in-service training attendance; (vii) eliminate the limit on the number of credits that can be earned via electronic training; (viii) permit that up to 16 credit hours per two-year in-service period may be earned via being an instructor; and (ix) update the annual firearms requirement to be consistent with the options available for entry-level training.

For additional information contact: John Byrd, Assistant Section Chief, Department of Criminal Justice Services Richmond, VA, (804) 786-6375, or e-mail john.byrd @dcjs.virginia.gov.

620-50. Rules Relating to Compulsory Minimum Training Standards for Jailors or Custodial Officers, Courthouse and Courtroom Security Officers and Process Service Officers (amending 620-50-10 through 620-50-90; adding 620-50-21 and 6 VAC 20-50-110; repealing 6 VAC 20-50-100).

A public hearing will be held September 13, 2006, at 1 p.m., Department of Criminal Justice Services, Richmond, VA. Written public comment may be submitted until September 11, 2006.

The proposed amendments provide that individuals who are jailors or custodial officers, courthouse and courtroom security officers, and process service officers need not be trained in skills that have no bearing on their job performance. The proposed amendments also set up a standing Curriculum Review Committee that will review and recommend changes to the training objectives, criteria for testing, and lesson plan guides for such persons. The proposed amendments specify the process that will be used to change the plan guides.

For more information contact: Judith Kirkendall, Department of Criminal Justice Services, Richmond,
VA, (804) 786-8003, or e-mail judith.kirkendall @dcjs.virginia.gov.

TITLE 8. EDUCATION

STATE BOARD OF EDUCATION

8VAC 20-700. Regulations for Conducting Division-Level Academic Reviews (adding 820-700-10 through 8 VAC 20-700-50).

A public hearing will be held on September 27, 2006, at 9 a.m., Department of Education, Richmond, VA.. Written public comment may be submitted until September 11, 2006.

The regulations give the Board of Education the authority to require division-level academic reviews in school divisions where findings of school-level academic reviews show that the failure of the schools to reach full accreditation is related to the local school board’s failure to meet its responsibilities under the Standards of Quality.

For additional information contact: Dr. Margaret N. Roberts, Department of Education, Richmond, VA, (804) 225-2540, or e-mail margaret.roberts@doe.virginia.gov.

8 VAC 20-710. Regulations Governing the Process for Submitting Proposals to Consolidate School Divisions (adding 8 VAC 20-710-10 through 8 VAC 20-710-30).

A public hearing will be held on September 27, 2006, at 9 a.m., Department of Education, Richmond, VA. Written public comment may be submitted until September 11, 2006.

This regulation provides for a process by which school divisions may submit proposals for consolidation. The new regulation stipulates the information and data to be submitted by school divisions in their proposals for consolidation, the criteria that must be considered by the Board of Education in reviewing the proposals, and a process for public participation in the process.

For additional information contact: Dr. Margaret N. Roberts, Department of Education, Richmond, VA, (804) 225-2540, or e-mail margaret.roberts@doe.virginia.gov.

TITLE 9. ENVIRONMENT

STATE AIR POLLUTION CONTROL BOARD

95-140. Regulation for Emissions Trading (adding Part II: Article 1 (95-140-1010 through 95-140-1080), Article 2 (95-140-1100 through 95-140-1140), Article 3 (95-140-1200 through 95-140-1240), Article 4 (95-140-1300), Article 5 (95-140-1400 through 95-140-1430), Article 6 (95-140-1500 through 95-140-1570), Article 7 (9VAC 5-140-1600), Article 8 (95-140-1700 through
95-140-1760), Article 9 (95-140-1800 through 9VAC 5-140-1880); Part III: Article 1 (95-140-2010 through 95-140-2080), Article 2 (95-140-2100 through 95-140-2140), Article 3 (95-140-2200 through 95-140-2240), Article 4 (95-140-2300), Article 5 (95-140-2400 through 95-140-2430), Article 6 (95-140-2500 through 95-140-2570), Article 7 (9VAC 5-140-2600 through 95-140-2620), Article 8 (95-140-2700 through 95-140-2760), Article 9 (9VAC 5-140-2800 through 95-140-2880); Part IV: Article 1 (95-140-3010 through 95-140-3080), Article 2 (9VAC 5-140-3100 through 95-140-3140), Article 3 (95-140-3200 through 95-140-3240), Article 4 (9VAC 5-140-3300), Article 5 (95-140-3400), Article 6 (95-140-3500 through 95-140-3570), Article 7 (9VAC 5-140-3600 through 95-140-3620), Article 8 (95-140-3700 through 95-140-3760), Article 9 (9VAC 5-140-3800 through 95-140-3880).

A public hearing will be held August 24, 2006, at 10 a.m., Department of Environmental Quality, Richmond, VA. Written public comment may be submitted until 5 p.m. on September 8, 2006.

The State Air Pollution Control Board (board) proposes to add three new parts to the Regulation for Emissions Trading (9 VAC 5-140), as per request of the federal Clean Air Interstate Rule (CAIR). Major changes include:

1. A new nitrogen oxides (NOx Annual Trading program (Part II) will be established.

2. A NOx Ozone Season Trading program (Part III) will replace the current NOx Budget Trading Program (SIP Call).

3. A Sulfur dioxide (SO2) Annual Trading Program (Part IV) will replace the current federal-administered Acid Rain Program.

(Part II): NOx Annual Trading Program. This part establishes a NOx Annual Trading Program, which addresses the following substantive provisions: permitting, allowance methodology, monitoring, banking, compliance supplement pool, compliance determination, and opt-in provisions for sources not covered by the regulation. Virginia's NOx annual budgets are 36,074 tons in 2009 through 2014 and 30,062 tons in 2015 and thereafter.

Beginning January 1, 2009, electric generating units with a nameplate capacity greater than 25 MWe will be subject to the provisions of this part. To accommodate the NOx emissions from the affected units, the units are allocated from the budget a specific limited number of allowances (measured in tons per year) during the months of January 1 through December 31, otherwise know as the control period. The NOx allocations are determined through a methodology based upon heat input for existing units and electrical output for new units. January 1, 2006, is the cutoff for determining whether a unit is new or existing. If a unit does not use all of its allowances for a specific control period, those extra tons may be banked for future use or sold. If a unit exceeds the allocated allowances, additional allowances may be purchased or the source may use banked allowances to offset the amount of NOx generated above the allocated allowances. Smaller sources within the affected source categories are allowed to opt-in to the program.

Sources found to be out of compliance will be forced to surrender allowances for the next year on a ratio of 3:1, i.e. for every ton over its allocations, three tons will be forfeited from the next year’s allocation.

Emissions will need to be monitored according to 40 CFR Part 75 for all sources subject to the regulation and for any sources wishing to opt-in to the program.

A compliance supplement pool (5,134 tons) is provided for sources that generate early reduction credits or to avoid an “undue risk to the reliability of electricity." The allowances from the pool are valid for only one year (2009) and cannot be banked after that one-year period.

(Part III): NOx Ozone Season Trading Program. This part establishes a NOx Ozone Season Trading Program that addresses the following substantive provisions: permitting, allowance methodology, monitoring, banking, compliance determination, and opt-in provisions for sources not covered by the regulation. Virginia's NOx ozone season budgets for electric generating units are 15,994 tons in 2009 through 2014 and 13,328 tons in 2015 and thereafter. Virginia's NOx ozone season budget for nonelectric generating units is 3,840 tons in 2009 and thereafter.

Beginning May 1, 2009, electric generating units with a nameplate capacity greater than 25 MWe and nonelectric generating units above 250 mmBtu will be subject to the provisions of this part. To accommodate the NOx emissions from the affected units, the units are allocated from the budget a specific limited number of allowances (measured in tons per season) during the summer months of May 1 through September 30, otherwise know as the control period. The NOx allocations are determined through a methodology based upon heat input for existing units and electrical output for new units. January 1, 2006, is the cutoff for determining whether a unit is new or existing. If a unit does not use all of its allowances for a specific control period, those extra tons may be banked for future use or sold. If a unit exceeds the allocated allowances, additional allowances may be purchased or the source may use banked allowances to offset the amount of NOx generated above the allocated allowances. Smaller sources within the affected source categories are allowed to opt-in to the program.

Sources found to be out of compliance will be forced to surrender allowances for the next year on a ratio of 3:1, i.e. for every ton over its allocations, three tons will be forfeited from the next year’s allocation.

Emissions will need to be monitored according to 40 CFR Part 75 of the Code of Federal Regulations for all sources subject to the regulation and for any sources wishing to opt-in to the program.

(Part IV): SO2 Annual Trading Program. This part establishes a SO2 Annual Trading Program that addresses the following substantive provisions: permitting, monitoring, banking, compliance determination, and opt-in provisions for sources not covered by the regulation. Virginia's SO2 annual budgets are 63,478 tons in 2010 through 2014 and 44,435 tons in 2015 and thereafter.

Beginning January 1, 2010, electric generating units with a nameplate capacity greater than 25 MWe will be subject to the provisions of this part. To accommodate the SO2 emissions from the affected units, the units have been allocated from the budget a specific limited number of allowances (measured in tons per year) during the months of January 1 through December 31, otherwise know as the control period. The SO2 allocations are carried over from the Acid Rain Program and are valid indefinitely, except the value of the allowances is reduced over time. If a unit does not use all of its allowances for a specific control period, those extra tons may be banked for future use or sold. If a unit exceeds the allocated allowances, additional allowances may be purchased or the source may use banked allowances to offset the amount of SO2 generated above the allocated allowances. Smaller sources within the affected source categories are allowed to opt-in to the program.

Sources found to be out of compliance will be forced to surrender allowances for the next year on a ratio of 3:1, i.e. for every ton over its allocations, three tons will be forfeited from the next year’s allocation.

Emissions will need to be monitored according to 40 CFR Part 75 for all sources subject to the regulation and for any sources wishing to opt-in to the program.

For more information please contact: Mary E. Major, Department of Environmental Quality, Richmond, VA, (804) 698-4423, or e-mail memajor@deq.virginia.gov.

TITLE 14. INSURANCE

STATE CORPORATION COMMISSION

145-260. Rules Governing Insurance Holding Companies (amending 145-260-10, 145-260-30 through 145-260-60, 145-260-80, 145-260-90; adding 14VAC 5-260-110; repealing 145-260-20).

A public hearing will be held upon request. Written public comment may be submitted until August 25, 2006.

The proposed revisions amend the Code of Virginia citation references and add language requiring notification to the Bureau of Insurance regarding (i) investments in any one corporation under certain circumstances and (ii) declaration or payment of dividends or other distributions. These proposed revisions are necessary as a result of the passage of Chapter 577 of the 2006 Acts of Assembly effective July 1, 2006, which amends §§.2-1329 and 38.2-1330, and adds §.2-1330.1 to the Code of Virginia.

The proposed revisions also relocate the section entitled "Severability clause" and provide nonsubstantive and housekeeping revisions to various sections.

For more information contact: Raquel C. Pino-Moreno, Bureau of Insurance, Richmond, VA, (804) 371-9499, toll free (800) 552-7945, or e-mail raquel.pino-moreno@scc.virginia.gov.

145-30. Rules Governing Life Insurance and Annuity Replacements (amending 145-30-10 through 145-30-40, and 145-30-60 through 14 VAC 5-30-90; adding 145-30-51 and 145-30-55; repealing 145-30-50, 145-30-100 and Exhibit A).

Written public comment may be submitted to the State Corporation Commission until September 1, 2006.

The proposed amendments add annuities to the products under the rules governing replacement, and for consistency with the most recent National Association of Insurance Commissioners (NAIC) "Life Insurance and Annuities Replacement Model Regulation." The procedural requirements for insurers and agents have been amended so that they are consistent with the NAIC Model. New forms are also attached to the revised rules.

For additional information contact: Jacqueline K. Cunningham, Deputy Director, State Corporation Commission, Life and Health Division, Bureau of Insurance, Richmond, VA, (804) 371-9074, or
e-mail chaps30_45comments@scc.virginia.gov.

145-45. Rules Governing Suitability in Annuity Transactions (adding 145-45-10 through 145-45-50).

A public hearing will be scheduled upon request. Written public comments may be submitted to the State Corporation Commission until September 1, 2006.

The proposed regulations follow the National Association of Insurance Commissioners "Suitability in Annuity Transactions Model Regulation." The proposed regulations set forth standards and procedures for recommendations to consumers that result in a transaction involving annuity products, so that the insurance needs and financial objectives of consumers at the time of the transaction are appropriately addressed. The proposed regulations apply to any recommendation to purchase or exchange an annuity made to a consumer by an insurance agent, or an insurer where no agent is involved, that results in the purchase or exchange recommended. The proposed regulations are as a result of increasing reports of inappropriate sales of annuities to consumers of all ages.

For additional information contact: Jacqueline K. Cunningham, Deputy Director, State Corporation Commission, Life and Health Division, Bureau of Insurance, Richmond, VA, (804) 371-9074, or e-mail chaps30_45comments @scc.virginia.gov.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

18VAC 65-20. Regulations of the Board of Funeral Directors and Embalmers (amending 1865-20-70, 1865-20-130, 1865-20-140 and 1865-20-154).

Written public comment may be submitted to the Department of Health Professions until August 25, 2006.

The proposed amendments increase certain fees for the regulants of the board as necessary to provide sufficient funding for its licensing and disciplinary functions. An annual renewal fee for a funeral service licensee increases from $150 to $175 and for a funeral establishment from $225 to $300. Other fees, such as application and late fees that are tied to the renewal fee, are increased correspondingly.

For more information contact: Elizabeth Young, Executive Director, Department of Health Professions, Richmond, VA, (804) 662-9907, or e-mail elizabeth.young@dhp.virginia.gov.

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