VOL. 36 ISS. 22 PUBLISHED EVERY OTHER WEEK BY THE VIRGINIA CODE COMMISSION JUNE 22, 2020

VOL. 36 ISS. 22 PUBLISHED EVERY OTHER WEEK BY THE VIRGINIA CODE COMMISSION JUNE 22, 2020

TABLE OF CONTENTS

Register Information Page 2329

Publication Schedule and Deadlines 2330

Periodic Reviews and Small Business Impact Reviews 2331

Notices of Intended Regulatory Action 2332

Regulations 2333

2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (Final) 2333

3VAC5-50. Retail Operations (Fast-Track) 2334

3VAC5-50. Retail Operations (Final) 2337

3VAC5-70. Other Provisions (Fast-Track) 2338

9VAC25-260. Water Quality Standards (Final) 2341

9VAC25-210. Virginia Water Protection Permit Program Regulation (Withdrawal of Forms Action) 2358

9VAC25-660. Virginia Water Protection General Permit for Impacts Less Than One-Half Acre

(Withdrawal of Forms Action) 2358

9VAC25-670. Virginia Water Protection General Permit for Facilities and Activities of Utility and Public Service Companies Regulated by the Federal Energy Regulatory Commission or the

State Corporation Commission and Other Utility Line Activities (Withdrawal of Forms Action) 2358

9VAC25-680. Virginia Water Protection General Permit for Linear Transportation Projects

(Withdrawal of Forms Action) 2358

9VAC25-690. Virginia Water Protection General Permit for Impacts from Development and

Certain Mining Activities (Withdrawal of Forms Action) 2358

12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and

Developmental Services (Final) 2358

14VAC5-200. Rules Governing Long-Term Care Insurance (Final) 2384

18VAC5-22. Board of Accountancy Regulations (Proposed) 2384

18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners (Final) 2391

18VAC90-40. Regulations for Prescriptive Authority for Nurse Practitioners (Final) 2391

Governor 2396

Guidance Documents 2406

General Notices/Errata 2407

Virginia Code Commission http://register.dls.virginia.gov

THE VIRGINIA REGISTER OF REGULATIONS (USPS 001-831) is published biweekly for $263.00 per year by Matthew Bender & Company, Inc., 3 Lear Jet Lane, Suite 102, P.O. Box 1710, Latham, NY 12110. Periodical postage is paid at Easton, MD and at additional mailing offices. POSTMASTER: Send address changes to The Virginia Register of Regulations, 4810 Williamsburg Road, Unit 2, Hurlock, MD 21643.

THE VIRGINIA REGISTER OF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, and notices of public hearings on regulations.

ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS

Unless exempted by law, an agency wishing to adopt, amend, or repeal regulations must follow the procedures in the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Typically, this includes first publishing in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency’s response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.

Following publication of the proposed regulation in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety, and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar of Regulations no later than 15 days following the completion of the 60-day public comment period. The Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.

The Joint Commission on Administrative Rules or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor’s objection or suspension of the regulation, or both, will be published in the Virginia Register.

If the Governor finds that the final regulation contains changes made after publication of the proposed regulation that have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register. Pursuant to § 2.2-4007.06 of the Code of Virginia, any person may request that the agency solicit additional public comment on certain changes made after publication of the proposed regulation. The agency shall suspend the regulatory process for 30 days upon such request from 25 or more individuals, unless the agency determines that the changes have minor or inconsequential impact.

A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating

agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.

A regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.

FAST-TRACK RULEMAKING PROCESS

Section 2.2-4012.1 of the Code of Virginia provides an alternative to the standard process set forth in the Administrative Process Act for regulations deemed by the Governor to be noncontroversial. To use this process, the Governor's concurrence is required and advance notice must be provided to certain legislative committees. Fast-track regulations become effective on the date noted in the regulatory action if fewer than 10 persons object to using the process in accordance with § 2.2-4012.1.

EMERGENCY REGULATIONS

Pursuant to § 2.2-4011 of the Code of Virginia, an agency may adopt emergency regulations if necessitated by an emergency situation or when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or fewer from its enactment. In either situation, approval of the Governor is required. The emergency regulation is effective upon its filing with the Registrar of Regulations, unless a later date is specified per § 2.2-4012 of the Code of Virginia. Emergency regulations are limited to no more than 18 months in duration; however, may be extended for six months under the circumstances noted in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Virginia Register and are on the Register of Regulations website at register.dls.virgina.gov.

During the time the emergency regulation is in effect, the agency may proceed with the adoption of permanent regulations in accordance with the Administrative Process Act. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.

STATEMENT

The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.

CITATION TO THE VIRGINIA REGISTER

The Virginia Register is cited by volume, issue, page number, and date. 34:8 VA.R. 763-832 December 11, 2017, refers to Volume 34, Issue 8, pages 763 through 832 of the Virginia Register issued on December 11, 2017.

The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.

Members of the Virginia Code Commission: John S. Edwards, Chair; Ryan T. McDougle; Nicole Cheuk; Rita Davis; Leslie L. Lilley; Thomas M. Moncure, Jr.; Christopher R. Nolen; Don L. Scott, Jr.; Charles S. Sharp; Marcus B. Simon; Samuel T. Towell; Malfourd

W. Trumbo.

Staff of the Virginia Register: Karen Perrine, Registrar of Regulations; Anne Bloomsburg, Assistant Registrar; Nikki Clemons, Regulations Analyst; Rhonda Dyer, Publications Assistant; Terri Edwards, Senior Operations Staff Assistant.

This schedule is available on the Virginia Register of Regulations website (http://register.dls.virginia.gov).

July 2020 through August 2021

*Filing deadlines are Wednesdays unless otherwise specified.

TITLE 9. ENVIRONMENT

STATE AIR POLLUTION CONTROL BOARD

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulations are undergoing a periodic review and a small business impact review: 9VAC5-85, Permits for Stationary Sources of Pollutants Subject to Regulation and 9VAC5-510, Nonmetallic Mineral Processing General Permit. The review of these regulations will be guided by the principles in Executive Order 14 (as amended July 16, 2018).

The purpose of this review is to determine whether these regulations should be repealed, amended, or retained in their current forms. Public comment is sought on the review of any issue relating to these regulations, including whether each regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Public comment period begins June 22, 2020, and ends July 13, 2020.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency.

Following the close of the public comment period, a report of findings of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.

Contact Information: Gary E. Graham, Department of Environmental Quality, 1111 East Main Street, Suite 1400,

P.O. Box 1105, Richmond, VA 23218, telephone (804) 689- 4103, FAX (804) 698-4178, or email gary.graham@deq.virginia.gov.

STATE WATER CONTROL BOARD

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the following regulation is undergoing a periodic review and a small business impact review: 9VAC25-415, Policy for the Potomac River Embayments. The review of this regulation will be guided by the principles in Executive Order 14 (as amended July 16, 2018).

The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any

issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Public comment period begins June 22, 2020, and ends July 13, 2020.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency.

Following the close of the public comment period, a report of both reviews will be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations.

Contact Information: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400,

P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- 4238, FAX (804) 698-4178, or email melissa.porterfield@deq.virginia.gov.

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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF ACCOUNTANCY

Report of Findings

Pursuant to §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the Virginia Board of Accountancy conducted a periodic review and a small business impact review of 18VAC5-22, Board of Accountancy Regulations, and determined that this regulation should be amended to achieve consistency with new federal requirements.

The proposed regulatory action to amend 18VAC5-22, which is published in this issue of the Virginia Register, serves as the report of findings.

Contact Information: Nancy Glynn, Executive Director, Board of Accountancy, 9960 Mayland Drive, Suite 402, Richmond, VA 23233, telephone (804) 367-8540, FAX (804)

527-4409, TTY (804) 367-9753, or email

nancy.glynn@boa.virginia.gov.

TITLE 12. HEALTH

STATE BOARD OF HEALTH

Withdrawal of Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Board of Health has WITHDRAWN the Notice of Intended Regulatory Action for 12VAC5-412, Regulations for Licensure of Abortion Facilities, which was published in 35:21 VA.R. 2444 June 10, 2019. That NOIRA stated "The purpose of the proposed action is to assess all current regulation content and determine whether it should be amended or retained in its current form." Subsequently, Chapters 898 and 899 of the 2020 Acts of Assembly repealed the statutory provision classifying a facility that performs five or more first-trimester abortions per month as a category of hospital, thereby removing such a facility from the State Board of Health's regulatory authority. Therefore, this action is withdrawn. A separate regulatory action repealing 12VAC5-412 was published in the Virginia Register of Regulations on June 8, 2020 (36:21 VA.R. 2299

June 8, 2020).

Statutory Authority: §§ 32.1-12 and 32.1-127 of the Code of Virginia.

Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102,

FAX (804) 527-4502, or email

regulatorycomment@vdh.virginia.gov.

VA.R. Doc. No. R19-5664; Filed June 2, 2020, 10:35 a.m.

For information concerning the different types of regulations, see the Information Page.

Symbol Key

Roman type indicates existing text of regulations. Underscored language indicates proposed new text.

Language that has been stricken indicates proposed text for deletion. Brackets are used in final regulations to indicate changes from the proposed regulation.

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Final Regulation

Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (amending 2VAC5-317-10, 2VAC5-317-20).

Statutory Authority: § 3.2-802 of the Code of Virginia. Effective Date: July 23, 2020.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, TTY (800)

828-1120, or email david.gianino@vdacs.virginia.gov. Summary:

The amendments add six plant species to the current noxious weed list and amend the definition of "Tier 3 noxious weed" to be "any noxious weed (i) that is present in the Commonwealth, (ii) whose spread may be slowed by restrictions on its movement, and (iii) for which successful eradication or suppression is not feasible."

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

2VAC5-317-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Business day" means a day that is not a Saturday, Sunday, or legal holiday, or a day on which state government offices are closed.

"Certificate" means a document issued or authorized by the commissioner indicating that a regulated article is not contaminated with a noxious weed.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

"Committee" means the Noxious Weeds Advisory Committee established pursuant to 2VAC5-317-100.

"Compliance agreement" means a written agreement between a person engaged in handling, receiving, or moving regulated articles and the Virginia Department of Agriculture and Consumer Services or the U.S. Department of Agriculture, or both, wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this chapter.

"Consignee" means any person to whom any regulated article is shipped for handling, sale, resale, or any other purpose.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Infested" or "infestation" means the presence of a listed noxious weed or the existence of circumstances that make it reasonable to believe that life stages of a listed noxious weed are present.

"Inspector" means an employee of the Virginia Department of Agriculture and Consumer Services or other person authorized by the Commissioner of the Virginia Department of Agriculture and Consumer Services to enforce the provisions of this chapter.

"Listed noxious weed" means any plant listed in this chapter as either a Tier 1, Tier 2, or Tier 3 noxious weed.

"Move" means to ship, offer for shipment, receive for transportation, carry, or otherwise transport, move, or allow to be moved.

"Noxious weed" means the term as defined in § 3.2-800 of the Code of Virginia.

"Noxious Weeds Law" means the statute set forth in Chapter 8 (§ 3.2-800 et seq.) of Title 3.2 of the Code of Virginia.

"Permit" means a document issued by the commissioner to provide for movement of regulated articles to restricted destinations for limited handling, utilization, processing, or scientific purposes.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated article" means any listed noxious weed or any article carrying or capable of carrying a listed noxious weed.

"Tier 1 noxious weed" means any noxious weed that is not known to be present in the Commonwealth.

"Tier 2 noxious weed" means any noxious weed that is present in the Commonwealth and for which successful eradication or suppression is feasible.

"Tier 3 noxious weed" means any noxious weed (i) that is present in the Commonwealth and not listed as a Tier 1 or Tier 2 noxious weed, (ii) whose spread may be slowed by restrictions on its movement, and (iii) for which successful eradication or suppression is not feasible.

"Waybill" means a document containing the details of a shipment of goods.

2VAC5-317-20. Tier 1, Tier 2, and Tier 3 noxious weeds.

A. The following plants are hereby declared Tier 1 noxious weeds:

1. Salvinia molesta, Giant salvinia.

2. Solanum viarum, Tropical soda apple.

3. Heracleum mantegazzianum, Giant hogweed.

B. The following plants are hereby declared Tier 2 noxious weeds:

1. Imperata cylindrica, Cogon grass.

2. Lythrum salicaria, Purple loosestrife.

3. Ipomoea aquatica, Water spinach.

4. Vitex rotundifolia, Beach vitex.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

6. Corydalis incisa, Incised fumewort.

C. No plant is hereby declared a Tier 3 noxious weed. The following plants are hereby declared Tier 3 noxious weeds:

1. Ailanthus altissima, Tree of heaven.

2. Ampelopsis brevipedunculata, Porcelain berry. 3. Celastrus orbiculatus, Oriental bittersweet.

4. Hydrilla verticillata, Hydrilla.

NOTICE: Forms used in administering the regulation have been filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

5. Persicaria perfoliata, Mile-a-minute weed.

FORMS (2VAC5-317)

Noxious Weed Permit Application (eff. 6/2018)

VA.R. Doc. No. R18-5605; Filed May 27, 2020, 9:43 a.m.

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TITLE 3. ALCOHOLIC BEVERAGES

ALCOHOLIC BEVERAGE CONTROL AUTHORITY

Fast-Track Regulation

Title of Regulation: 3VAC5-50. Retail Operations (amending 3VAC5-50-110).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 23, 2020.

Effective Date: August 8, 2020.

Agency Contact: LaTonya D. Hucks-Watkins, Legal Liaison, Virginia Alcoholic Beverage Control Authority, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4698, FAX (804) 213-4574, or email

latonya.hucks-watkins@abc.virginia.gov.

Basis: Section 4.1-103 of the Code of Virginia authorizes the Board of Directors of the Alcoholic Beverage Control Authority to adopt regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and § 4.1-111 of the Code of Virginia. Section 4.1- 111 provides the board with the authority to adopt reasonable regulations to carry out the provisions of the Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia), including the authority to promulgate regulations that require mixed beverage licensees to have food, cooked or prepared on the licensed premises, available for on-premises consumption until at least 30 minutes prior to an establishment's closing and that such food shall be available in all areas of the licensed premises in which spirits are sold or served.

Purpose: The purpose of this amendment is to be in compliance with the Code of Virginia as well as provide mixed beverage licensees with guidance as to the food availability requirements associated with their license. The amendment is essential to protect public health, safety, or welfare because it corresponds to the provisions of the Code of Virginia and reinforces the correlation between consumption of food and mitigating the intoxicating effects of alcohol as well as helping to ensure that mixed beverage licensees are meeting minimum food sales requirements.

Rationale for Using Fast-Track Rulemaking Process: The action is expected to be noncontroversial because it aligns exactly with § 4.1-111 B 22 of the Code of Virginia, which has been in force since 2018. Licensees have been complying with this standard now for some time already and therefore promulgating this regulation should not be controversial.

Substance: Subdivision D 4 is added to 3VAC5-50-110 and states that mixed beverage licensees shall have food, cooked

or prepared on the licensed premises, available for on- premises consumption until at least 30 minutes prior to an establishment's closing and that such food shall be available in all areas of the licensed premises in which spirits are sold or served.

Issues: The primary advantage to the public and to the agency of this regulation change is that it will fulfill the requirements of the legislative mandate and ensure that the regulations are consistent with statute. There are no disadvantages to the public or the Commonwealth by promulgating this regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Alcoholic Beverage Control Authority Board of Directors (Board) proposes to require that mixed beverage restaurant licensees have food, cooked or prepared on the licensed premises, available for on-premises consumption until at least 30 minutes prior to an establishment's closing. Such food would have to be available in all areas of the licensed premises in which spirits are sold or served.

Background. Mixed beverage restaurant licensees must already serve food that is prepared on the premises. The proposed amendment defines when the food must be available. The proposed text is essentially identical to Chapter 744 of the 2017 Acts of Assembly, which required the Board to promulgate this regulation.1

Estimated Benefits and Costs. Of the 5,347 restaurants in the Commonwealth that have a mixed beverage restaurant license, it is not known how many already regularly serve food cooked or prepared on the premises until at least 30 minutes prior to closing. To the degree that costs or benefits result from this regulation, they are largely attributable to the 2017 legislative mandate.

Costs. Restaurants that have a mixed beverage restaurant license and do not already serve food cooked or prepared on the premises until at least 30 minutes prior to closing would have to either pay for food preparers or cooks to work longer, or close (and stop selling alcohol) earlier. Employing food preparers or cooks longer would increase costs for the restaurants, while closing earlier would reduce revenue.

Benefits. Food consumed in close proximity to drinking can

Businesses and Other Entities Affected. The proposed amendment affects the share of the 5,347 restaurants in the Commonwealth that have a mixed beverage restaurant license and do not already regularly serve food cooked or prepared on the premises until at least 30 minutes prior to closing. These restaurants would have to either pay for food preparers or cooks to work longer, or close (and stop selling alcohol) earlier. Since adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits of the proposal exceed the costs for all entities combined, adverse impact is indicated for this action.

Small Businesses3 Affected: Types and Estimated Number of Small Businesses Affected. As stated above, the proposed amendment affects the share of the 5,347 restaurants in the Commonwealth that have a mixed beverage restaurant license and do not already regularly serve food cooked or prepared on the premises until at least 30 minutes prior to closing. Data are not available to determine how many meet the statutory definition of a small business.4

Costs and Other Effects. The affected small restaurants would have to either pay for food preparers or cooks to work longer, or close (and stop selling alcohol) earlier.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities5 Affected.6 The proposed amendment does not disproportionately affect any particular localities or introduce costs for local governments.

Projected Impact on Employment. The proposed amendment may moderately increase work hours for food preparers and cooks at restaurants that have a mixed beverage restaurant license and do not already serve food cooked or prepared on the premises until at least 30 minutes prior to closing.

Effects on the Use and Value of Private Property. The proposal would require affected restaurants to either pay for food preparers or cooks to work longer, or close (and stop selling alcohol) earlier. Employing food preparers or cooks longer would increase costs for the restaurants, while closing earlier would reduce revenue. Consequently, the value of these businesses may be moderately reduced. The proposed amendment does not affect real estate development costs.

lower the peak blood alcohol concentration.2 To the extent

that there are licensees that do not meet the current requirement and would meet it once the rule is in effect, and to the extent that patrons choose to take advantage of the availability of food when or near when they are drinking, the proposed amendment could lead to some patrons leaving the premises and driving with a lower blood alcohol concentration than they otherwise would have. Decreasing the degree of driver impairment would be beneficial.

1See http://leg1.state.va.us/cgi-bin/legp504.exe?171+sum+SB1216

2See https://www.bgsu.edu/recwell/wellness-connection/alcohol-education/ factors-that-affect-intoxication.html

3Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

4Ibid

5"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

6§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Alcoholic Beverage Control Authority concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

Pursuant to Chapter 744 of the 2017 Acts of Assembly, the amendment adds a provision requiring a mixed beverage licensee to have food available for on-premises consumption until at least 30 minutes prior to the establishment closing.

3VAC5-50-110. Definitions and qualifications for retail on-premises and on-premises and off-premises licenses generally; mixed beverage licensee requirements; exceptions; temporary licenses.

A. The following definitions shall apply to retail licensees with on-premises consumption privileges and mixed beverage licensees where appropriate:

1. "Bona fide, full-service restaurant" means an established place of business where meals are regularly sold to persons and that has adequate facilities and sufficient employees for cooking, preparing, and serving such meals for consumption at tables in dining areas on the premises.

2. "Counter" means a long, narrow surface with stools or chairs along one side for the patrons, behind which refreshments or meals are prepared and served.

3. "Designated area" means a room or an area in which a licensee may exercise the privilege of his license, the location, equipment and facilities of which room or area have been approved by the board. The facilities shall be such that patrons may purchase food prepared on the premises for consumption on the premises at substantially all times that alcoholic beverages are offered for sale therein.

4. "Dining area" means a public room or area in which meals are regularly sold at substantially all hours that alcoholic beverages are offered for sale therein.

5. "Meal" means a selection of foods for one individual, served and eaten especially at one of the customary, regular occasions for taking food during the day, such as breakfast, lunch, or dinner, that consists of at least one main dish of meat, fish, poultry, legumes, nuts, seeds, eggs, or other protein sources, accompanied by vegetable, fruit, grain, or starch products.

6. "Table" means an article of furniture supported by one or more vertical legs or similar supports and having a flat

horizontal surface suitable for the service of meals, not immediately adjacent to the area where refreshments or meals are prepared.

B. Wine and beer. Retail on-premises or on-premises and off-premises licenses may be granted to persons operating the following types of establishments provided that meals or other foods are regularly sold at substantially all hours that wine and beer are offered for sale and the total monthly food sales for consumption in dining areas and other designated areas on the premises are not less than those shown:

1. "Boat" (on premises only). A common carrier of passengers for which a certificate as a sight-seeing carrier by boat, or a special or charter party by boat has been issued by the State Corporation Commission, habitually serving food on the boat:

Monthly sales $2,000

2. "Restaurant." A bona fide dining establishment regularly selling meals with entrees and other foods prepared on the premises:

Monthly sales $2,000

3. "Hotel." Any duly licensed establishment, provided with special space and accommodation, where, in consideration of payment, meals and other food prepared on the premises and lodging are habitually furnished to persons and which has four or more bedrooms:

Monthly sales $2,000

In regard to both restaurants and hotels, at least $1,000 of the required monthly sales must be in the form of meals.

4. "Gourmet Oyster House." Any duly licensed establishment, located on the premises of a commercial marina and permitted by the Department of Health to serve oysters and other fresh seafood for consumption on the premises, where the licensee also offers to the public events for the purpose of featuring oysters and other seafood products:

Monthly sales of oysters and other seafood… $1,000

C. Beer. Retail on-premises or on-premises and off-premises licenses may be granted to persons operating the following types of establishments provided that food is regularly sold at substantially all hours that beer is offered for sale and the total monthly food sales for consumption in dining areas and other designated areas on the premises are not less than those shown:

1. "Boat" (on-premises only). See subdivision B 1 of this section:

Monthly sales $2,000

2. "Restaurant." An establishment regularly selling food prepared on the premises:

Volume 36, Issue 22 Virginia Register of Regulations June 22, 2020

Monthly sales $2,000

3. "Hotel." See subdivision B 3 of this section;

Monthly sales $2,000

D. Mixed beverage licenses. Mixed beverage restaurant licenses may be granted to persons operating bona fide, full- service restaurants.

1. Service of food in a bona fide, full-service restaurant shall consist of serving the food to the table on plates or appropriate dinnerware, accompanied by appropriate tableware. The board may approve the issuance of a mixed beverage restaurant license to a buffet restaurant if (i) both alcoholic and nonalcoholic beverage service is provided at the table and (ii) actual sales show that the requirements of subdivision D 2 of this section are met.

2. Monthly sales of food prepared on the premises of a mixed beverage restaurant licensee shall not be less than

$4,000, of which at least $2,000 shall be in the form of meals.

3. A mixed beverage restaurant licensee must have at least as many seats at tables as at counters.

4. A mixed beverage restaurant licensee shall have food, cooked or prepared on the licensed premises, available for on-premises consumption until at least 30 minutes prior to an establishment's closing. Such food shall be available in all areas of the licensed premises in which spirits are sold or served.

E. The board may grant a license to an establishment not meeting the qualifying figures in this section, provided the establishment otherwise is qualified under the applicable provisions of the Code of Virginia and this section, if it affirmatively appears that there is a substantial public demand for such an establishment and that the public convenience will be promoted by the issuance of the license.

F. Notwithstanding the above subsections A through E of this section, the board may issue a temporary license for any of the above retail operations in subsections A through E of this section. Such licenses may be issued only after application has been filed in accordance with § 4.1-230 of the Code of Virginia, and in cases where the sole objection to issuance of a license is that the establishment will not be qualified in terms of the sale of food or edible items. If a temporary license is issued, the board shall conduct an audit of the business after a reasonable period of operation not to exceed 180 days. Should the business be qualified, the license applied for may be issued. If the business is not qualified, the application will become the subject of a hearing if the applicant so desires. No further temporary license shall be issued to the applicant or to any other person with respect to the establishment for a period of one year from expiration and, once the application becomes the subject of a hearing, no temporary license may be issued.

G. An outside terrace or patio, the location, equipment, and facilities of which have been approved by the board, may be approved as a "dining area" or as a "designated area" in the discretion of the board.

H. Limited mixed beverage licenses may be granted to persons operating restaurants as defined in § 4.1-100 of the Code of Virginia, provided that food is regularly sold at substantially all hours that alcoholic beverages are offered for sale, and the total monthly food sales of food cooked or prepared on the premises for consumption in dining areas and other designated areas on the premises are not less than

$2,000.

VA.R. Doc. No. R20-6256; Filed May 22, 2020, 4:01 p.m.

Final Regulation

Title of Regulation: 3VAC5-50. Retail Operations (adding 3VAC5-50-250).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: July 23, 2020.

Agency Contact: LaTonya D. Hucks-Watkins, Legal Liaison, Virginia Alcoholic Beverage Control Authority, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-

4698, FAX (804) 213-4574, or email latonya.hucks- watkins@abc.virginia.gov.

Summary:

The action implements the confectionery license created by Chapters 173 and 334 of the 2018 Acts of Assembly, which authorizes the licensee to prepare and sell confectionery on the licensed premises for off-premises consumption. The provisions require that the confectionery contain 5.0% or less alcohol by volume and that any alcohol contained in such confectionery shall not be in liquid form at the time such confectionery is sold. The regulation defines the term "confectionery" and includes labeling requirements for such confectionery.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

3VAC5-50-250. Confectionery; definition; restrictions; labeling.

A. "Confectionery" means baked goods and candies having an alcohol content not more than 5.0% by volume.

B. Any alcohol contained in such confectionery shall not be in liquid form at the time such confectionery is sold. Such alcohol shall be fully integrated or blended into the confectionery product.

C. Any such confectionery shall only be sold to those individuals who can lawfully consume alcohol.

D. Any establishment licensed to sell confectioneries for off-premises consumption shall properly label the product with such label including:

1. Notice that the product contains alcohol;

2. Notice that the product can only be consumed off premises; and

3. Warning that the product should not be consumed by anyone younger than 21 years of age.

VA.R. Doc. No. R18-5486; Filed May 22, 2020, 4:07 p.m.

Fast-Track Regulation

Title of Regulation: 3VAC5-70. Other Provisions (amending 3VAC5-70-220).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 23, 2020.

Effective Date: August 8, 2020.

Agency Contact: LaTonya D. Hucks-Watkins, Legal Liaison, Alcoholic Beverage Control Authority, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4698, FAX

(804) 213-4574, or email latonya.hucks- watkins@abc.virginia.gov.

Basis: Section 4.1-103 of the Code of Virginia authorizes the Board of Directors of the Alcoholic Beverage Control Authority to adopt regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and § 4.1-111 of the Code of Virginia. Section 4.1- 111 provides the board with the authority to adopt reasonable regulations to carry out the provisions of the Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia).

Purpose: The Alcoholic Beverage Control Authority has undertaken this action as a measure to establish regulations that will allow persons located within or outside the Commonwealth to sell and ship beer in closed containers to persons in the Commonwealth to whom beer may be lawfully sold for off-premises consumption. The amendment is essential to protect the public health, safety, or welfare because without it, there is nothing regulating Internet beer retailers as required by the Code of Virginia.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking change should be noncontroversial because it is in line with established code and incorporates requirements that have already been in effect.

Substance: The substantive changes include changing the language throughout the existing regulation such that "Internet beer retailer," or a variation thereof, is added to the

text in any instance where a variation of "Internet wine retailer" appears.

Issues: The primary advantage to the public and the agency of this regulation change is that it will provide guidance for Internet beer retailer licensees. There are no disadvantages to the public or the Commonwealth by promulgating this regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Alcoholic Beverage Control Board (ABC) seeks to create a new Internet beer retailer license to authorize sales and shipments of beer to consumers in Virginia. Hence, ABC proposes to amend 3VAC5-70-220 Wine or Beer Shipper's Licenses and Internet Wine Retailer Licenses; Application Process; Common Carriers; Records and Reports to insert Internet Beer Retail Licenses to the section title as well as the text of the section. As such, all provisions that currently apply to wine or beer shipper's licenses and Internet wine retail licenses would be extended to Internet beer retail licenses.

Background. The 2018 Acts of Assembly (Chapter 337) created and defined an Internet beer retail license.1 Accordingly, § 4.1-208(A)(10) of the Code of Virginia authorizes persons licensed as Internet beer retailers and located within or outside the Commonwealth to sell and ship beer in accordance with Virginia Code § 4.1-209.1 and board regulations.2 The language of § 4.1-208(A)(10) mirrors that of § 4.1-207(6) regarding the Internet wine retail license.3 In 2008, ABC amended 3 VAC 5-70-220 to incorporate Internet wine retail licenses and now proposes to incorporate Internet beer retail licenses in an identical manner.4

Estimated Benefits and Costs. Allowing Internet beer retailers to sell, and ship, directly to individual consumers is likely to benefit businesses engaged in beer retail as well as beer consumers by providing the flexibility to conduct their transactions online. Internet beer retailers would likely be able to earn greater revenue, and likely greater profits, from selling directly to individuals who want their product. Consumers would benefit from the convenience of purchasing beer online. Expanding the market for beer in this way would likely increase competition among beer retailers, which would in turn benefit consumers to the extent that it leads to lower prices, better quality, greater variety, or any combination thereof. On the other hand, to the extent that individual consumers substitute Internet purchases for local retail purchases, brick-and-mortar stores that have been, until now, the only source of beer for off-site consumption would likely experience decreases in revenue.

Those applying for an Internet beer license would have to pay a (statutorily set) $150 annual licensure fee (in addition to a nonrefundable application fee of $195) and would have to meet the same recordkeeping requirements that currently

Volume 36, Issue 22 Virginia Register of Regulations June 22, 2020

apply to beer and wine shippers and Internet wine retail licensees. As per current regulation, these licensees "shall maintain for two years complete and accurate records of all shipments made under the privileges of such licenses, including for each shipment:

1. Number of containers shipped;

2. Volume of each container shipped;

3. Brand of each container shipped;

4. Names and addresses of recipients; and

5. Price charged."

Further, on or before the 15th of each month, licensees are also required to file a report with the Tax Management Section of ABC indicating whether any shipments were made

convenience of immediate access to a wide variety of domestic and imported beers without additional shipping costs, so any adverse impact is unlikely to be substantive in nature at least in the short run.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities7 Affected.8 The proposed amendments do not disproportionately affect particular localities or introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry.

Effects on the Use and Value of Private Property. Real estate development costs do not appear to be affected.

during the month, and if so, provide all the information listed for each shipment.

Businesses and Other Entities Affected. ABC reported that since the statute came into effect in 2018, they have already granted two Internet beer licenses, although they could not clarify if these licensees had previously held a shipper's license or a retail license. The proposed amendments would benefit current and future Internet beer retail licensees.

Grocery stores, convenience stores, and other brick-and- mortar locations selling beer would likely be adversely affected if their consumers opt to make purchases on the Internet instead of buying from the stores, unless they engage in online retail and choose to obtain an Internet beer retail license.

Small Businesses5 Affected. Types and Estimated Number of Small Businesses Affected. Although ABC does not track its small businesses, they report that the majority of their licensees are likely to be small businesses. Virginia has 151 breweries, 71 beer and ale wholesalers, 1,308 supermarkets and grocery stores, 1,055 convenience stores, and 99 beer and wine stores that are considered small businesses.6 However, the effect of the proposed amendments on any particular small business would depend on their own decision, as well as the decisions made by their competitors, about the extent to which they engage in Internet beer retail. Grocery stores and convenience stores that do not currently engage in any beer retail may not be affected at all.

Costs and Other Effects. The proposed amendments would likely benefit small independent breweries and beer, wine and liquor stores by allowing them to advertise online and expand their sales in parts of the state where they do not currently ship their product. However, this benefit could be limited depending on the competitiveness of Internet beer retail. Conversely, small supermarkets, grocery stores and convenience stores that sell beer may see decreased revenues from beer sales in brick-and-mortar locations. However, brick-and-mortar locations provide consumers with the

1See http://lis.virginia.gov/cgi-bin/legp604.exe?181+ful+CHAP0337

2See https://law.lis.virginia.gov/vacode/title4.1/chapter2/section4.1-208/ (Beer License) and https://law.lis.virginia.gov/vacode/title4.1/chapter2/section4.1-209.1/ (Direct shipment of wine and beer; shipper's license.)

3See https://law.lis.virginia.gov/vacode/title4.1/chapter2/section4.1-207/ (Wine License)

4See https://townhall.virginia.gov/L/ViewAction.cfm?actionid=2517, which became effective May 1, 2008.

5Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

6Data source: Virginia Employment Commission

7"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

8§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Alcoholic Beverage Control Authority concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

Chapter 337 of the 2018 Acts of Assembly creates an Internet beer retailer license and sets the fee for such license. This regulatory action implements Chapter 337 and establishes license requirements, including application, shipping, record keeping, and reporting.

3VAC5-70-220. Wine or beer shipper's licenses, and Internet wine retailer licenses, and Internet beer retailer licenses; application process; common carriers; records and reports.

A. Any person or entity qualified for a wine shipper's license or beer shipper's license pursuant to § 4.1-209.1 of the Code

Volume 36, Issue 22 Virginia Register of Regulations June 22, 2020

of Virginia, or an Internet wine retailer license pursuant to subdivision 6 of § 4.1-207 of the Code of Virginia, or an Internet beer retailer license pursuant to subdivision A 10 of

§ 4.1-208 of the Code of Virginia, must apply for such license by submitting form 805-52, Application for License. In addition to the application, each applicant shall submit as attachments a list of all brands of wine or beer sought to be shipped by the applicant, along with the board-assigned code numbers for each brand or a copy of the label approval by the appropriate federal agency for any brand not previously approved for sale in Virginia pursuant to 3VAC5-40-20 or 3VAC5-40-50 that will be sold only through direct shipment to consumers.

If the applicant is not also the brand owner of the brands listed in the application, the applicant shall obtain and submit with the application a dated letter identifying each brand, from the brand owner or any wholesale distributor authorized to distribute the brand, addressed to the Supervisor, Tax Management Section, Virginia Department of Alcoholic Beverage Control Authority, indicating the brand owner's or wholesale distributor's consent to the applicant's shipping the brand to Virginia consumers.

The applicant shall attach (i) a photocopy of its current license as a winery, farm winery, brewery, or alcoholic beverage retailer issued by the appropriate authority for the location from which shipments will be made and (ii) evidence of the applicant's registration with the Virginia Department of Taxation for the collection of Virginia retail sales tax.

B. Any brewery, winery, or farm winery that applies for a shipper's license or consents to the application by any other person, other than a retail off-premises licensee, for a license to ship such brewery's, winery's, or farm winery's brands of wine or beer shall notify all wholesale licensees that have been authorized to distribute such brands in Virginia that an application for a shipper's license has been filed. Such notification shall be by a dated letter to each such wholesale licensee, setting forth the brands that wholesaler has been authorized to distribute in Virginia for which a shipper's license has been applied. A copy of each such letter shall be forwarded to the Supervisor, Tax Management Section, by the brewery, winery, or farm winery.

C. Any holder of a wine or beer shipper's license or, Internet wine retailer's license, or Internet beer retailer's license may add or delete brands to be shipped by letter to the Supervisor, Tax Management Section, designating the brands to be added or deleted. Any letter adding brands shall be accompanied by any appropriate brand-owner consents or notices to wholesalers as required with an original application.

D. Any brand owner that consents to a holder of a wine shipper's license, beer shipper's license, or Internet wine retailer's license, or Internet beer retailer's license shipping its brands to Virginia consumers may withdraw such consent by a dated letter to the affected wine or beer shipper's licensee

or, Internet wine retailer's licensee, or Internet beer retailer's licensee. Copies of all such withdrawals shall be forwarded by the brand owner, by certified mail, return receipt requested, to the Supervisor, Tax Management Section. Withdrawals shall become effective upon receipt of the copy by the Tax Management Section, as evidenced by the postmark on the return receipt.

E. Wine shipper's licensees, beer shipper's licensees, and Internet wine retailer's licensees, and Internet beer retailer's licensees shall maintain for two years complete and accurate records of all shipments made under the privileges of such licenses, including for each shipment:

1. Number of containers shipped;

2. Volume of each container shipped;

3. Brand of each container shipped;

4. Names and addresses of recipients; and

5. Price charged.

The records required by this subsection shall be made available for inspection and copying by any member of the board or its special agents upon request.

F. On or before the 15th day of each month, each wine shipper's licensee, beer shipper's licensee, or Internet wine retailer's licensee, or Internet beer retailer's licensee shall file with the Supervisor, Tax Management Section, either in paper form or electronically as directed by the department, a report of activity for the previous calendar month. Such report shall include:

1. Whether any shipments were made during the month; and

2. If shipments were made, the following information for each shipment:

a. Number of containers shipped;

b. Volume of each container shipped;

c. Brand of each container shipped;

d. Names and addresses of recipients; and

e. Price charged.

Unless otherwise paid, payment of the appropriate beer or wine tax shall accompany each report.

G. All shipments by holders of wine shipper's licenses, beer shipper's licenses, or Internet wine retailer's licenses, or Internet beer retailer's licenses shall be by approved common carrier only. Common carriers possessing all necessary licenses or permits to operate as common carriers in Virginia may apply for approval to provide common carriage of wine or beer, or both, shipped by holders of wine shipper's licenses, beer shipper's licenses, or Internet wine retailer's licenses, or Internet beer retailer's licenses by dated letter to the Supervisor, Tax Management Section, requesting such

approval and agreeing to perform deliveries of beer or wine shipped, maintain records, and submit reports in accordance with the requirements of this section. The board may refuse, suspend, or revoke approval if it shall have reasonable cause to believe that a carrier does not possess all necessary licenses or permits, that a carrier has failed to comply with the regulations of the board, or that a cause exists with respect to the carrier that would authorize the board to refuse, suspend, or revoke a license pursuant to Title 4.1 of the Code of Virginia. Before refusing, suspending, or revoking such approval, the board shall follow the same administrative procedures accorded an applicant or licensee under Title 4.1 of the Code of Virginia and regulations of the board.

H. When attempting to deliver wine or beer shipped by a wine shipper's licensee, beer shipper's licensee, or Internet wine retailer's licensee, or Internet beer retailer's licensee, an approved common carrier shall require:

1. The recipient to demonstrate, upon delivery, that he the recipient is at least 21 years of age; and

2. The recipient to sign an electronic or paper form or other acknowledgement acknowledgment of receipt that allows the maintenance of the records required by this section.

The approved common carrier shall refuse delivery when the proposed recipient appears to be under the age of younger than 21 years of age and refuses to present valid identification. All licensees shipping wine or beer pursuant to this section shall affix a conspicuous notice in 16-point type or larger to the outside of each package of wine or beer shipped within or into the Commonwealth, in a conspicuous location stating: "CONTAINS ALCOHOLIC BEVERAGES; SIGNATURE OF PERSON AGED 21 YEARS OR OLDER

REQUIRED FOR DELIVERY." Such notice shall also contain the wine shipper's, beer shipper's, or Internet wine retailer's license, or Internet beer retailer's license number of the shipping licensee. No approved common carrier shall accept for shipment any wine or beer to be shipped to anyone other than a licensee of the board unless the package bears the information required by this subsection.

I. Approved common carriers shall maintain for two years complete and accurate records of all shipments of wine or beer received from and delivered for wine or beer shipper's licensees, or Internet wine retailer's licensees, or Internet beer retailer's licensees, including for each shipment:

1. Date of shipment and delivery;

2. Number of items shipped and delivered;

3. Weight of items shipped and delivered;

4. Acknowledgement signed by recipient; and

5. Names and addresses of shippers and recipients.

The records required by this subsection shall be made available for inspection and copying by any member of the board or its special agents upon request.

J. On or before the 15th day of each January, April, July, and October, each approved common carrier shall file with the Supervisor, Tax Management Section, a report of activity for the previous calendar quarter. Such report shall include:

1. Whether any shipments were delivered during the quarter; and

2. If shipments were made, the following information for each shipment:

a. Dates of each delivery; and

b. Names and address of shippers and recipients for each delivery.

VA.R. Doc. No. R20-6257; Filed May 22, 2020, 3:59 p.m.

 –––––––––––––––––– 

TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Final Regulation

EDITOR'S NOTE: This final action makes effective changes proposed in 31:22 VA.R. 1949-2045 June 29, 2015, and in

34:2 VA.R. 193-236 September 18, 2017.

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-155).

Statutory Authority: § 62.1-44.15 the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR 131.

Effective Date: Effective upon the filing of notice of approval by the U.S. Environmental Protection Agency with the Registrar of Regulations.

Agency Contact: David Whitehurst, Department of Environmental Quality, 1111 East Main Street, Suite 1400,

P.O. Box 1105, Richmond, VA 23218, telephone (804) 698- 4121, FAX (804) 698-4032, or email david.whitehurst@deq.virginia.gov.

Summary:

The amendments, which originally were part of the Triennial Review of the water quality standards, update the freshwater ammonia water quality criteria for the protection of freshwater aquatic life to the latest recommendations of the U.S. Environmental Protection Agency and provide for implementation of the new criteria by regulated dischargers.

Changes to the proposed regulation include (i) prohibiting the four-day average ammonia concentration in freshwater to exceed 2.5 times the chronic criterion within a 30-day period more than once every three years on the average; and (ii) adding a phased implementation plan for regulated dischargers that meets the funding and timing

requirements consistent with the federal Clean Water Act pursuant to Chapters 510 and 511 of the 2018 Acts of Assembly.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

9VAC25-260-155. Ammonia surface water quality criteria.

A. The Department of Environmental Quality, after consultation with the Virginia Department of [ Game and Inland Fisheries Wildlife Resources ] and the U.S. Fish and Wildlife Service, has determined that the majority of Virginia freshwaters are likely to contain, or have contained in the past, freshwater mussel species in the family Unionidae and contain early life stages of fish during most times of the year. Therefore, the ammonia criteria presented in subsections B and C of this section are designed to provide protection to these species and life stages. In an instance where it can be adequately demonstrated that either freshwater mussels or early life stages of fish are not present in a specific waterbody, potential options for alternate, site-specific criteria are presented in subsection D of this section. Acute criteria are a one-hour average concentration not to be exceeded more than once every three years1 on the average, and chronic criteria are 30-day average concentrations not to be exceeded more than once every three years on the average.2 [ In addition, the four-day average concentration of total ammonia nitrogen (in mg N/L) shall not exceed 2.5 times the chronic criterion within a 30-day period more than once every three years on the average. ]

[ 1The default design flow for calculating steady state wasteload allocations for the acute ammonia criterion for freshwater is the 1Q10 (see 9VAC25-260-140 B footnote 6) unless statistically valid methods are employed that demonstrate compliance with the duration and return frequency of the water quality criteria.

2The default design flow for calculating steady state wasteload allocations for the chronic ammonia criterion for freshwater is the 30Q10 (see 9VAC25-260-140 B footnote 6) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria. ]

B. The one-hour average concentration of total ammonia nitrogen (in mg N/L) in freshwater shall not exceed, more than once every three years on the average1, the acute criteria

for total ammonia (in mg N/L) for freshwaters with trout absent or present are [ below in the following tables ]:

Acute Ammonia Freshwater Criteria Total Ammonia Nitrogen (mg N/L)

The acute criteria for trout present shall apply to all Class V-Stockable Trout Waters and Class VI-Natural Trout Waters as listed in 9VAC25-260-390 through 9VAC25-260-540. The acute criteria for trout absent apply to all other fresh waters.

To calculate total ammonia nitrogen acute criteria values in freshwater at different pH values than those listed in this subsection, use the following formulas equations and round the result to two significant digits:

Where trout are present absent:

Acute Criterion Concentration (mg N/L) =

0.7249 X (

0.0114

1.6181

+

) X MIN

1 + 107.204-pH 1 + 10pH-7.204

Where MIN = 51.93 or 23.12 X 100.036 X (20 – T), whichever is less T = Temperature in oC

Or where trout are absent present, whichever of the [ below following ] calculation results is less: Acute Criterion Concentration (mg N/L) =

0.411

58.4

+

(1 + 107.204-pH) (1 + 10pH-7.204)

1The default design flow for calculating steady state waste load allocations for the acute ammonia criterion is the 1Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

0.275

(

39.0

+ )

1 + 107.204-pH 1 + 10pH-7.204

or

0.0114

1.6181

0.7249 X (

T = Temperature in oC

+

1 + 107.204-pH 1 + 10pH-7.204

) X (23.12 X 100.036X(20 – T))

B. C. The 30-day average concentration of chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels and early life stages of fish are present in freshwater shall not exceed, more than once every three years on the average2, the chronic criteria are [ below in the following table ]:

Chronic Ammonia Freshwater Criteria Early Life Stages of Fish Present Total Ammonia Nitrogen (mg N/L)

To calculate total ammonia nitrogen chronic criteria values in freshwater when fish freshwater mussels and early life stages of fish are present at different pH and temperature values than those listed in this subsection, use the following formulas equation and round the result to two significant digits:

Chronic Criteria Concentration =

0.0577 ( +

2.487

) x MIN

(1 + 107.688-pH) (1 + 10pH-7.688)

Where MIN = 2.85 or 1.45 x 100.028(25-T), whichever is less.

0.8876 X (

0.0278

1.1994

+

) X (2.126 X 100.028 X (20 - MAX(T,7)))

1 + 107.688-pH 1 + 10pH-7.688

Where MAX = 7 or temperature in degrees Celsius, whichever is greater T = temperature in °C

2The default design flow for calculating steady state waste load allocations for the chronic ammonia criterion where early life stages of fish are present is the 30Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

D. Site-specific considerations and alternate criteria. If it can be adequately demonstrated that freshwater mussels or early life stages of fish are not present at a site, then alternate site-specific criteria can be considered using the information provided in this subsection. Recalculated site-specific criteria shall provide for the attainment and maintenance of the water quality standards of downstream waters.

1. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of freshwater mussels or early life stages of fish shall be conducted in accordance with the procedures contained in this subdivision. Because the department presumes that most state waterbodies have freshwater mussels and early life stages of fish present during most times of the year, the criteria shall be calculated assuming freshwater mussels and early life stages of fish are present using subsections B and C of this section unless the following demonstration that freshwater mussels or early life stages of fish are absent is successfully completed. Determination of the absence of freshwater mussels requires special field survey methods. This determination must be made after an adequate survey of the waterbody is conducted by an individual certified by the Virginia Department of [ Game and Inland Fisheries (DGIF) Wildlife Resources ] for freshwater mussel identification and surveys. Determination of absence of freshwater mussels will be done in consultation with the [ DGIF Department of Wildlife Resources ]. Early life stages of fish are defined in subdivision 2 of this subsection. Modifications to the ambient water quality criteria for ammonia based on the presence or absence of early life stages of fish shall only apply at temperatures below 15°C.

a. During the review of any new or existing activity that has a potential to discharge ammonia in amounts that may cause or contribute to a violation of the ammonia criteria contained in subsection B of this section, the department may examine data from the following approved sources in subdivisions 1 a (1) through (5) of this subsection or may require the gathering of data in accordance with subdivisions 1 a (1) through (5) on the presence or absence of early life stages of fish in the affected waterbody.

(1) Species and distribution data contained in the Virginia Department of [ Game and Inland Fisheries Wildlife Resources ] Wildlife Information System database.

(2) Species and distribution data contained in Freshwater Fishes of Virginia, 1994.

(3) Data and fish species distribution maps contained in Handbook for Fishery Biology, Volume 3, 1997.

(4) Field data collected in accordance with U.S. EPA's Rapid Bioassessment Protocols for Use in Streams and Wadeable Rivers, Second Edition, EPA 841-B-99-002. Field data must comply with all quality assurance and quality control criteria.

(5) The American Society for Testing and Materials (ASTM) Standard E-1241-88, Standard Guide for Conducting Early Life-Stage Toxicity Tests with Fishes.

b. If data or information from sources other than subdivisions 1 a (1) through (5) of this subsection are considered, then any resulting site-specific criteria modifications shall be reviewed and adopted in accordance with the site-specific criteria provisions in 9VAC25-260-140 D and submitted to EPA for review and approval.

c. If the department determines that the data and information obtained from subdivisions 1 a (1) through (5) of this subsection demonstrate that there are periods of each year when no early life stages are expected to be present for any species of fish that occur at the site, the department shall issue a notice to the public and make available for public comment the supporting data and analysis along with the department's preliminary decision to authorize the site-specific modification to the ammonia criteria. Such information shall include, at a minimum:

(1) Sources of data and information.

(2) List of fish species that occur at the site as defined in subdivision 3 of this subsection.

(3) Definition of the site. Definition of a "site" can vary in geographic size from a stream segment to a watershed to an entire eco-region.

(4) Duration of early life stage for each species in subdivision 1 c (2) of this subsection.

(5) Dates when early life stages of fish are expected to be present for each species in subdivision 1 c (2) of this subsection.

(6) Based on subdivision 1 c (5) of this subsection, identify the dates (beginning date, ending date), if any, where no early life stages are expected to be present for any of the species identified in subdivision 1 c (2) of this subsection.

d. If, after reviewing the public comments received in subdivision 1 c of this subsection and supporting data and information, the department determines that there are times of the year [ where when ] no early life stages are expected to be present for any fish species that occur at the site, then the applicable ambient water quality criteria for ammonia for those time periods shall be calculated using the table in this subsection, or the formula for calculating the chronic criterion concentration for ammonia when early life stages of fish are absent.

e. The department shall maintain a comprehensive list of all sites where the department has determined that early life stages of fish are absent. For each site the list will identify the waterbodies affected and the corresponding times of the year that early life stages of fish are absent. This list is available either upon request from the Office of Water Quality Programs at [ 629 1111 ] East Main Street, [ Suite 1400 ] Richmond, VA 23219, or from the department website at http://www.deq.virginia.gov/programs/water/waterqualityinformationtmdls/waterqualitystandards.aspx.

2. The duration of the "early life stages" extends from the beginning of spawning through the end of the early life stages. The early life stages include the prehatch embryonic period, the post-hatch free embryo or yolk-sac fry, and the larval period, during which the organism feeds. Juvenile fish, which are anatomically similar to adults, are not considered an early life stage. The duration of early life stages can vary according to fish species. The department considers the sources of information in subdivisions 1 a (1) through (5) of this subsection to be the only acceptable sources of information for determining the duration of early life stages of fish under this procedure.

3. "Occur at the site" includes the species, genera, families, orders, classes, and phyla that are usually present at the site; are present at the site only seasonally due to migration; are present intermittently because they periodically return to or extend their ranges into the site; or were present at the site in the past or are present in nearby bodies of water, but are not currently present at the site due to degraded conditions, and are expected to return to the site when conditions improve. "Occur at the site" does not include taxa that were once present at the site but cannot exist at the site now due to permanent physical alteration of the habitat at the site.

4. Any modifications to ambient water quality criteria for ammonia in subdivision 1 of this subsection shall not likely jeopardize the continued existence of any federal or state listed, threatened, or endangered species or result in the destruction or adverse modification of such species' critical habitats.

5. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of freshwater mussels shall be conducted in accordance with the procedures contained in this [ subdivision subsection ]. Because the department presumes that most state waterbodies have freshwater mussel species, the criteria shall be calculated assuming mussels are present using subsections B and C of this section unless the demonstration that freshwater mussels are absent is successfully completed and accepted by DEQ and [ DGIF the Department of Wildlife Resources ].

6. Equations for calculating ammonia criteria for four different site-specific scenarios are provided [ below in subdivisions 6 a through d of this subsection ] as follows: (i) acute criteria when mussels are absent but trout are present, (ii) acute criteria when mussels and trout are absent, (iii) chronic criteria when mussels are absent and early life stages of fish are present, and (iv) chronic criteria when mussels and early life stages of fish are absent. Additional information regarding site-specific criteria can be reviewed in appendix N (pages 225-242) of the EPA Aquatic Life Ambient Water Quality Criteria to Ammonia--Freshwater 2013 (EPA 822-R-13-001).

a. Acute criteria: freshwater mussels absent and trout present. To calculate total ammonia nitrogen acute criteria values (in mg N/L) in freshwater with freshwater mussels absent (procedures for making this determination are in subdivisions 1 through 5 of this subsection) and trout present, use the [ following ] equations [ below ]. The acute criterion is the lesser of the [ following ] calculation results [ below ]. Round the result to two significant digits.

0.275 39

( + )

1 + 107.204-pH 1 + 10pH-7.204

or

0.0114

0.7249 X ( +

1.6181

) X (62.15 X 100.036X(20 – T))

1 + 107.204-pH 1 + 10pH-7.204

b. Acute criteria: freshwater mussels absent and trout absent. To calculate total ammonia nitrogen acute criteria values (in mg N/L) in freshwater where freshwater mussels are absent and trout are absent, use the following equation. Round the result to two significant digits.

0.7249 X (

0.0114

1.6181

+

) X MIN

1 + 107.204-pH 1 + 10pH-7.204

Where MIN = 51.93 or 62.15 X 100.036 X (20 – T), whichever is less T = Temperature in oC

C. The 30-day average concentration of c. Chronic criteria: freshwater mussels absent and early life stages of fish present. The chronic criteria for total ammonia nitrogen (in mg N/L) where early life stages of fish freshwater mussels are absent (procedures for making this determination are in subdivisions 1 through 4 5 of this subsection) in freshwater shall not exceed, more than once every three years on the average3, the chronic criteria [ below: ] concentration values calculated using the [ following ] equation. Round the result to two significant digits.

Chronic Ammonia Freshwater Criteria Early Life Stages of Fish Absent Total Ammonia Nitrogen (mg N/L)

At 15°C and above, the criterion for fish early life stages absent is the same as the criterion for fish early life stages present.

To calculate total ammonia nitrogen chronic criteria values in freshwater when fish early life stages are absent at different pH and temperature values than those listed in this subsection, use the following formulas:

Chronic Criteria Concentration =

0.0577 ( +

2.487

) x 1.45(100.028(25-MAX))

(1 + 107.688-pH) (1 + 10pH-7.688)

MAX = temperature in °C or 7, whichever is greater.

3The default design flow for calculating steady state waste load allocations for the chronic ammonia criterion where early life stages of fish are absent is the 30Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed that demonstrate compliance with the duration and return frequency of the water quality criteria.

1. Site-specific modifications to the ambient water quality criteria for ammonia to account for the absence of early life stages of fish shall be conducted in accordance with the procedures contained in this subdivision. Because the department presumes that most state waterbodies have early life stages of fish present during most times of the year, the criteria shall be calculated assuming early life stages of fish are present using subsection B of this section unless the following demonstration that early life stages are absent is successfully completed. Early life stages of fish are defined in subdivision 2 of this subsection. Modifications to the ambient water quality criteria for ammonia based on the presence or absence of early life stages of fish shall only apply at temperatures below 15°C.

a. During the review of any new or existing activity that has a potential to discharge ammonia in amounts that may cause or contribute to a violation of the ammonia criteria contained in subsection B of this section, the department may examine data from the following approved sources in subdivisions 1 a (1) through (5) of this subsection or may require the gathering of data in accordance with subdivisions 1 a (1) through (5) on the presence or absence of early life stages of fish in the affected waterbody.

(1) Species and distribution data contained in the Virginia Department of Game and Inland Fisheries Wildlife Information System database.

(2) Species and distribution data contained in Freshwater Fishes of Virginia, 1994.

(3) Data and fish species distribution maps contained in Handbook for Fishery Biology, Volume 3, 1997.

(4) Field data collected in accordance with U.S. EPA's Rapid Bioassessment Protocols for Use in Streams and Wadeable Rivers, Second Edition, EPA 841-B-99-002. Field data must comply with all quality assurance/quality control criteria.

(5) The American Society for Testing and Materials (ASTM) Standard E-1241-88, Standard Guide for Conducting Early Life-Stage Toxicity Tests with Fishes.

b. If data or information from sources other than subdivisions 1 a (1) through (5) of this subsection are considered, then any resulting site-specific criteria modifications shall be reviewed and adopted in accordance with the site-specific criteria provisions in 9VAC25-260-140 D, and submitted to EPA for review and approval.

c. If the department determines that the data and information obtained from subdivisions 1 a (1) through (5) of this subsection demonstrate that there are periods of each year when no early life stages are expected to be present for any species of fish that occur at the site, the department shall issue a notice to the public and make available for public comment the supporting data and analysis along with the department's preliminary decision to authorize the site-specific modification to the ammonia criteria. Such information shall include, at a minimum:

(1) Sources of data and information.

(2) List of fish species that occur at the site as defined by subdivision 3 of this subsection.

(3) Definition of the site. Definition of a "site" can vary in geographic size from a stream segment to a watershed to an entire eco-region.

(4) Duration of early life stage for each species in subdivision 1 c (2) of this subsection.

(5) Dates when early life stages of fish are expected to be present for each species in subdivision 1 c (2) of this subsection.

(6) Based on subdivision 1 c (5) of this subsection, identify the dates (beginning date, ending date), if any, where no early life stages are expected to be present for any of the species identified in subdivision 1 c (2) of this subsection.

d. If, after reviewing the public comments received in subdivision 1 c of this subsection and supporting data and information, the department determines that there are times of the year where no early life stages are expected to be present for any fish species that occur at the site, then the applicable ambient water quality criteria for ammonia for those time periods shall be calculated using the table in this subsection, or the formula for calculating the chronic criterion concentration for ammonia when fish early life stages are absent.

e. The department shall maintain a comprehensive list of all sites where the department has determined that early life stages of fish are absent. For each site the list will identify the waterbodies affected and the corresponding times of the year that early life stages are absent. This list is available either upon request from the Office of Water Quality Programs at P.O. Box 1105, Richmond, Virginia 23218 or from the department website http://www.deq.virginia.gov/wqs.

2. The duration of the "early life stages" extends from the beginning of spawning through the end of the early life stages. The early life stages include the prehatch embryonic period, the post-hatch free embryo or yolk-sac fry, and the larval period, during which the organism feeds. Juvenile fish, which are anatomically similar to adults, are not considered an early life stage. The duration of early life stages can vary according to fish species. The department considers the sources of information in subdivisions 1 a (1) through (5) of this subsection to be the only acceptable sources of information for determining the duration of early life stages of fish under this procedure.

3. "Occur at the site" includes the species, genera, families, orders, classes, and phyla that: are usually present at the site; are present at the site only seasonally due to migration; are present intermittently because they periodically return to or extend their ranges into the site; were present at the site in the past or are present in nearby bodies of water, but are not currently present at the site due to degraded conditions, and are expected to return to the site when conditions improve. "Occur at the site" does not include taxa that were once present at the site but cannot exist at the site now due to permanent physical alteration of the habitat at the site.

4. Any modifications to ambient water quality criteria for ammonia in subdivision 1 of this subsection shall not likely jeopardize the continued existence of any federal or state listed, threatened or endangered species or result in the destruction or adverse modification of such species' critical habitat.

0.9405 X (

0.0278

1.1994

+

) X MIN

1 + 107.688-pH 1 + 10pH-7.688

Where MIN = 6.920 or 7.547 X 100.028 x (20 – T) whichever is less T = temperature in °C

d. Chronic criteria: freshwater mussels absent and early life stages of fish absent. The chronic criteria for total ammonia nitrogen (in mg N/L) where freshwater mussels are absent and early life stages of fish are absent (procedures for making

this determination are in subdivisions 1 through 5 of this subsection) in freshwater shall not exceed concentration values calculated using the [ following ] equation [ below ]. Round the result to two significant digits.

0.9405 X (

0.0278

1.1994

+

) X(7.547 X 100.028 X (20 - MAX(T,7)))

1 + 107.688-pH 1 + 10pH-7.688

Where MAX = 7 or temperature in degrees Celsius, whichever is greater T = temperature in °C

D. E. The one-hour average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the acute criteria [ below in the following table ]:

To calculate total ammonia nitrogen acute criteria values in saltwater at different pH and temperature values than those listed in this subsection, use the following formulas:

Where I = molal ionic strength of water S = Salinity ppt (g/kg)

The regression model used to relate I to pKa (negative log of the ionization constant) is pKa = 9.245 + 0.138(I)

pKa as defined by these equations is at 298 degrees Kelvin (25°C). T °Kelvin = °C + 273

To correct for other temperatures:

T

pKaS

= pKaS

+ 0.0324(298 - T °Kelvin)

298

The unionized ammonia fraction (UIA) is given by:

The acute ammonia criterion in saltwater is given by:

Multiply the acute value by 0.822 to get the ammonia-N acute criterion.

E. F. The 30-day average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the chronic criteria [ below in the following table ]:

To calculate total ammonia nitrogen chronic criteria values in saltwater at different pH and temperature values than those listed in this subsection, use the following formulas:

Where I = molal ionic strength of water S = Salinity ppt (g/kg)

The regression model used to relate I to pKa (negative log of the ionization constant) is pKa = 9.245 + 0.138(I)

pKa as defined by these equations is at 298 degrees Kelvin (25°C). T °Kelvin = °C + 273

To correct for other temperatures:

T

pKaS

= pKaS

+ 0.0324(298 - T °Kelvin)

298

The unionized ammonia fraction (UIA) is given by:

The chronic ammonia criterion in saltwater is given by:

Multiply the chronic value by 0.822 to get the ammonia-N chronic criterion.

[ 1The default design flow for calculating steady state wasteload allocations for the acute ammonia criterion for freshwater is the 1Q10 (see 9VAC25-260-140 B footnote 10 unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

2The default design flow for calculating steady state wasteload allocations for the chronic ammonia criterion for freshwater is the 30Q10 (see 9VAC25-260-140 B footnote 10 unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria. ]

G. [ Implementation of ammonia criteria through Virginia Pollutant Discharge Elimination System (VPDES) Permits. The ammonia criteria in subsections A, B, and C of this section shall be addressed during individual VPDES permit reissuance for existing dischargers subject to new or more restrictive water quality-based ammonia effluent limits in accordance with the department's standard permitting practices except as follows:

1. Notwithstanding any other regulatory requirement, a compliance schedule may be established that exceeds the term of the permit, subject to a demonstration by the permittee that a longer period is necessary to allow a reasonable opportunity to attain compliance with the new or more restrictive ammonia discharge requirements. The department's consideration for such

a demonstration shall be made on a case-by-case basis and shall require compliance as soon as possible, but not later than the applicable statutory deadline under the Clean Water Act.

2. Information to be provided under subdivision 1 of this subsection may include such factors as (i) opportunities to minimize costs to the public or facility owners by phasing in the implementation of multiple projects, (ii) time needed for freshwater mussel habitat determinations, and (iii) other relevant factors.

3. If a permit establishes a schedule of compliance that exceeds the term of the permit, the compliance schedule shall set forth interim requirements and the dates for their achievement.

a. The time between interim dates shall not exceed one year.

b. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

c. The permit shall be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the department in writing of its compliance or noncompliance with the interim or final requirements, or submit progress reports if subdivision 3 b of this subsection is applicable.

d. Any change to an interim compliance date in the schedule of compliance will be deemed to be a minor modification of the permit, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement.

Implementation of freshwater ammonia water quality criteria in subsections B and C of this section through VPDES permits issued pursuant to Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31).

1. The criteria in subsections B and C of this section shall be implemented in VPDES permits that are being reissued to facilities in accordance with the following schedule:

a. Major municipal facilities with design flows greater than or equal to five million gallons per day and major industrial facilities - 12 months following the Water Quality Standards effective date.

b. Municipal facilities with design flows greater than or equal to 500,000 gallons per day and less than five million gallons per day and all minor industrial facilities - 24 months following the Water Quality Standards effective date.

c. Minor municipal facilities with design flows that are less than 500,000 gallons per day - 36 months following the Water Quality Standards effective date.

2. VPDES permits shall not be revoked and reissued to avoid or delay being subject to the freshwater ammonia water quality criteria in subsections B and C of this section in accordance with the schedule in subdivision G 1 of this section.

3. The provisions of 9VAC25-31-250 A 3 notwithstanding, a permittee may request and the board may authorize, as appropriate, an extended schedule of compliance, which exceeds the term of the VPDES permit and may include multiple permit cycles to achieve effluent limits based on the freshwater ammonia water quality criteria in subsections B and C of this section.

a. Any extended schedule of compliance necessary for the implementation of the freshwater ammonia water quality criteria shall require compliance as soon as possible in accordance with 9VAC25-31-250 A 1. The board may consider the following factors on a case-by-case basis, relying on information provided by the permittee, in making a determination of the timeframe that meets the standard of "as soon as possible":

(1) The relative priority of freshwater ammonia water quality criteria and other water quality and water infrastructure needs of the local community or permittee;

(2) Availability of grant funding pursuant to § 10.1-2131 of the Code of Virginia and other treatment facility expansion and upgrade plans;

(3) Whether an extended schedule of compliance is appropriate for facilities or classes of facilities; and

(4) Appropriate mechanisms to address affordability limitations and financial hardship situations remaining notwithstanding subdivisions G 1 a, G 1 b, and G 1 c of this section.

b. Any request by the permittee for an extended schedule of compliance shall include at the time of permit application at a minimum the following information:

(1) Documentation of other water quality and water infrastructure projects that are in the planning, design, or construction process and the relative priority of the projects in relation to compliance with the freshwater ammonia water quality criteria.

(2) A preliminary engineering analysis of treatment facility upgrade or source reduction alternatives necessary to meet the freshwater ammonia criteria. The analysis may include any additional upgrade or expansion plans currently under consideration. The analysis shall be prepared by a professional engineer registered in Virginia and shall include an estimation of the capital and operations and maintenance costs.

(3) An assessment of project affordability and identification of all potential sources of funding for enhanced ammonia treatment. In the case of publicly owned treatment works, include an evaluation of the required sewer use fees versus median household income.

(4) Documentation that demonstrates the minimum estimated time required and schedule to design, fund, and construct the selected treatment or source reduction alternative.

(5) An evaluation prepared by a professional engineer registered in Virginia of the highest achievable condition (HAC) regarding nitrification capabilities of the existing treatment facility under the influent loading conditions expected during the term of the VPDES permit as well as under design loading conditions.

c. Any VPDES permit that authorizes an extended schedule of compliance for meeting the freshwater ammonia water quality criteria that exceeds the permit term shall include interim effluent limitations based on the HAC attainable during the term of the permit, final effluent limitations, and a final compliance date.

d. New dischargers defined in 9VAC25-31 are not eligible for extended schedules of compliance under this section; however, they remain eligible for schedules of compliance consistent with 9VAC25-31-250.

A permittee may seek a site-specific modification or variance to the freshwater ammonia water quality criteria under 9VAC25-260-140 D or E as applicable. ]

VA.R. Doc. No. R20-5530; Filed June 2, 2020, 8:30 a.m.

Withdrawal of Forms Action

Titles of Regulations: 9VAC25-210. Virginia Water Protection Permit Program Regulation.

9VAC25-660. Virginia Water Protection General Permit for Impacts Less Than One-Half Acre.

9VAC25-670. Virginia Water Protection General Permit for Facilities and Activities of Utility and Public Service Companies Regulated by the Federal Energy Regulatory Commission or the State Corporation Commission and Other Utility Line Activities.

9VAC25-680. Virginia Water Protection General Permit for Linear Transportation Projects.

9VAC25-690. Virginia Water Protection General Permit for Impacts from Development and Certain Mining Activities.

The State Water Control Board has WITHDRAWN the Forms revision action that was published in 36:21 VA.R. 2298 June 8, 2020. This action would have amended two forms. The action is being withdrawn because the State Water Control Board will be updating additional forms for these chapters and incorporating the updated forms from this action into that future consolidated Forms revision action.

Contact Information: Gary Graham, Regulatory Analyst, Department of Environmental Quality, 1111 East Main

Street, Suite 1400, Richmond, VA 23219, telephone (804) 698-4103, or email gary.graham@deq.virginia.gov.

VA.R. Doc. No. R20-6373; Filed June 3, 2020, 11:05 a.m.

 –––––––––––––––––– 

TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Final Regulation

Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services (amending 12VAC35- 105-20, 12VAC35-105-30, 12VAC35-105-50, 12VAC35-

105-120, 12VAC35-105-150, 12VAC35-105-155,

12VAC35-105-160, 12VAC35-105-170, 12VAC35-105-320,

12VAC35-105-330, 12VAC35-105-400, 12VAC35-105-440,

12VAC35-105-450, 12VAC35-105-460, 12VAC35-105-500,

12VAC35-105-520, 12VAC35-105-530, 12VAC35-105-580,

12VAC35-105-590, 12VAC35-105-620, 12VAC35-105-650,

12VAC35-105-660, 12VAC35-105-665, 12VAC35-105-675,

12VAC35-105-691, 12VAC35-105-800, 12VAC35-105-830,

12VAC35-105-1140, 12VAC35-105-1250, 12VAC35-105-

1360; adding 12VAC35-105-1245).

Statutory Authority: §§ 37.2-302 and 37.2-400 of the Code of Virginia.

Effective Date: August 1, 2020.

Agency Contact: Emily Bowles, Legal Coordinator, Office of Licensing, Department of Behavioral Health and Developmental Services, 1220 Bank Street, P.O. Box 1797, Richmond, VA 23218, telephone (804) 225-3281, FAX (804)

692-0066, TTY (804) 371-8977, or email

emily.bowles@dbhds.virginia.gov. Summary:

This regulatory action addresses several items necessary for compliance with the U.S. Department of Justice's Settlement Agreement with Virginia, including facilitating the submission of necessary information by providers after a serious incident occurs, establishing the required quality and risk management processes, and strengthening case management services.

The amendments to provider provisions include requiring

(i) the person leading risk management activities to have certain training and experience in investigations, root cause analysis, and data analysis; (ii) annual risk assessments, to include review of the environment, staff competence, seclusion and restraint, serious incidents, and risk triggers and thresholds; (iii) policies and procedures for a quality improvement program that includes a quality improvement plan reviewed and updated at least annually;

(iv) a root cause analysis of serious incidents that occur during the provision of a service or on the provider's premises; and (v) case management direct assessments. The amendments also establish three levels of patient incidents to improve reporting of serious incidents.

Changes to the proposed regulation were made for consistency, clarification purposes, and for improved organization.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

Article 2 Definitions

12VAC35-105-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abuse" (§ 37.2-100 of the Code of Virginia) means any act or failure to act by an employee or other person responsible for the care of an individual in a facility or program operated, licensed, or funded by the department, excluding those operated by the Virginia Department of Corrections, that was performed or was failed to be performed knowingly,

recklessly, or intentionally, and that caused or might have caused physical or psychological harm, injury, or death to a person an individual receiving care or treatment for mental illness, mental retardation (intellectual disability) developmental disabilities, or substance abuse (substance use disorders). Examples of abuse include acts such as:

1. Rape, sexual assault, or other criminal sexual behavior;

2. Assault or battery;

3. Use of language that demeans, threatens, intimidates, or humiliates the person individual;

4. Misuse or misappropriation of the person's individual's assets, goods, or property;

5. Use of excessive force when placing a person an individual in physical or mechanical restraint;

6. Use of physical or mechanical restraints on a person an individual that is not in compliance with federal and state laws, regulations, and policies, professional accepted standards of practice, or the person's his individualized services plan; or

7. Use of more restrictive or intensive services or denial of services to punish the person an individual or that is not consistent with the person's his individualized services plan.

"Activities of daily living" or "ADLs" means personal care activities and includes bathing, dressing, transferring, toileting, grooming, hygiene, feeding, and eating. An individual's degree of independence in performing these activities is part of determining the appropriate level of care and services.

"Admission" means the process of acceptance into a service as defined by the provider's policies.

"Authorized representative" means a person permitted by law or 12VAC35-115 to authorize the disclosure of information or consent to treatment and services or participation in human research.

"Behavior intervention" means those principles and methods employed by a provider to help an individual receiving services to achieve a positive outcome and to address challenging behavior in a constructive and safe manner. Behavior intervention principles and methods must shall be employed in accordance with the individualized services plan and written policies and procedures governing service expectations, treatment goals, safety, and security.

"Behavioral treatment plan," "functional plan," or "behavioral support plan" means any set of documented procedures that are an integral part of the individualized services plan and are developed on the basis of a systematic data collection, such as a functional assessment, for the purpose of assisting individuals to achieve the following:

Volume 36, Issue 22 Virginia Register of Regulations June 22, 2020

1. Improved behavioral functioning and effectiveness;

2. Alleviation of symptoms of psychopathology; or

3. Reduction of challenging behaviors.

"Brain injury" means any injury to the brain that occurs after birth, but before age 65, that is acquired through traumatic or nontraumatic insults. Nontraumatic insults may include anoxia, hypoxia, aneurysm, toxic exposure, encephalopathy, surgical interventions, tumor, and stroke. Brain injury does not include hereditary, congenital, or degenerative brain disorders or injuries induced by birth trauma.

"Care" or "treatment" "Care," "treatment," or "support" means the individually planned therapeutic interventions that conform to current acceptable professional practice and that are intended to improve or maintain functioning of an individual receiving services delivered by a provider.

"Case management service" or "support coordination service" means services that can include assistance to individuals and their family members in assessing accessing needed services that are responsive to the person's individual individual's needs. Case management services include identifying potential users of the service; assessing needs and planning services; linking the individual to services and supports; assisting the individual directly to locate, develop, or obtain needed services and resources; coordinating services with other providers; enhancing community integration; making collateral contacts; monitoring service delivery; discharge planning; and advocating for individuals in response to their changing needs. "Case management service" does not include assistance in which the only function is maintaining service waiting lists or periodically contacting or tracking individuals to determine potential service needs.

"Clinical experience" means providing direct services to individuals with mental illness or the provision of direct geriatric services or special education services. Experience may include supervised internships, practicums, and field experience.

"Commissioner" means the Commissioner of the Department of Behavioral Health and Developmental Services.

"Community gero-psychiatric residential services" means 24-hour care provided to individuals with mental illness, behavioral problems, and concomitant health problems who are usually age 65 or older in a geriatric setting that is less intensive than a psychiatric hospital but more intensive than a nursing home or group home. Services include assessment and individualized services planning by an interdisciplinary services team, intense supervision, psychiatric care, behavioral treatment planning and behavior interventions, nursing, and other health related services.

"Community intermediate care facility/mental retardation" or "ICF/MR" means a residential facility in which care is

provided to individuals who have mental retardation (intellectual disability) or a developmental disability who need more intensive training and supervision than may be available in an assisted living facility or group home. Such facilities shall comply with Title XIX of the Social Security Act standards and federal certification requirements, provide health or rehabilitative services, and provide active treatment to individuals receiving services toward the achievement of a more independent level of functioning or an improved quality of life.

"Complaint" means an allegation of a violation of this chapter or a provider's policies and procedures related to this chapter.

"Co-occurring disorders" means the presence of more than one and often several of the following disorders that are identified independently of one another and are not simply a cluster of symptoms resulting from a single disorder: mental illness, mental retardation (intellectual disability) a developmental disability, or substance abuse (substance use disorders);, or brain injury; or developmental disability.

"Co-occurring services" means individually planned therapeutic treatment that addresses in an integrated concurrent manner the service needs of individuals who have co-occurring disorders.

"Corrective action plan" means the provider's pledged corrective action in response to cited areas of noncompliance documented by the regulatory authority. A corrective action plan must be completed within a specified time.

"Correctional facility" means a facility operated under the management and control of the Virginia Department of Corrections.

"Crisis" means a deteriorating or unstable situation often developing suddenly or rapidly that produces acute, heightened, emotional, mental, physical, medical, or behavioral distress or any situation or circumstance in which the individual perceives or experiences a sudden loss of the individual's ability to use effective problem-solving and coping skills.

"Crisis stabilization" means direct, intensive nonresidential or residential direct care and treatment to nonhospitalized individuals experiencing an acute crisis that may jeopardize their current community living situation. Crisis stabilization is intended to avert hospitalization or rehospitalization; provide normative environments with a high assurance of safety and security for crisis intervention; stabilize individuals in crisis; and mobilize the resources of the community support system, family members, and others for ongoing rehabilitation and recovery.

"Day support service" means structured programs of activity or training services training, assistance, and specialized supervision in the acquisition, retention, or improvement of

self-help, socialization, and adaptive skills for adults with an intellectual disability or a developmental disability, generally in clusters of two or more continuous hours per day provided to groups or individuals in nonresidential community-based settings. Day support services may provide opportunities for peer interaction and community integration and are designed to enhance the following: self-care and hygiene, eating, toileting, task learning, community resource utilization, environmental and behavioral skills, social skills, medication management, prevocational skills, and transportation skills. The term "day support service" does not include services in which the primary function is to provide employment-related services, general educational services, or general recreational services.

"Department" means the Virginia Department of Behavioral Health and Developmental Services.

"Developmental disabilities" disability" means autism or a severe, chronic disability that meets all of the following conditions identified in 42 CFR 435.1009: 1. Attributable to cerebral palsy, epilepsy, or any other condition, other than mental illness, that is found to be closely related to mental retardation (intellectual disability) because this condition results in impairment of general intellectual functioning or adaptive behavior similar to behavior of individuals with mental retardation (intellectual disability) and requires treatment or services similar to those required for these individuals; 2. Manifested before the individual reaches age 18; 3. Likely to continue indefinitely; and 4. Results in substantial functional limitations in three or more of the following areas of major life activity: a. Self-care; b. Understanding and use of language; c. Learning; d. Mobility; e. Self-direction; or f. Capacity for independent living of an individual that (i) is attributable to a mental or physical impairment or a combination of mental and physical impairments other than a sole diagnosis of mental illness; (ii) is manifested before the individual reaches 22 years of age; (iii) is likely to continue indefinitely; (iv) results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency; and (v) reflects the individual's need for a combination and sequence of special interdisciplinary or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. An individual from birth to nine years of age, inclusive, who has a substantial developmental delay or specific congenital or acquired condition may be considered to have a developmental disability without meeting three or more of the criteria described in clauses (i) through (v) if the individual without services and supports has a high probability of meeting those criteria later in life.

"Developmental services" means planned, individualized, and person-centered services and supports provided to

individuals with developmental disabilities for the purpose of enabling these individuals to increase their self-determination and independence, obtain employment, participate fully in all aspects of community life, advocate for themselves, and achieve their fullest potential to the greatest extent possible.

"Direct care position" means any position that includes responsibility for (i) treatment, case management, health, safety, development, or well-being of an individual receiving services or (ii) immediately supervising a person in a position with this responsibility.

"Discharge" means the process by which the individual's active involvement with a service is terminated by the provider, individual, or authorized representative.

"Discharge plan" means the written plan that establishes the criteria for an individual's discharge from a service and identifies and coordinates delivery of any services needed after discharge.

"Dispense" means to deliver a drug to an ultimate user by or pursuant to the lawful order of a practitioner, including the prescribing and administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery (§ 54.1-3400 et seq. of the Code of Virginia).

"Emergency service" means unscheduled and sometimes scheduled crisis intervention, stabilization, and referral assistance provided over the telephone or face-to-face, if indicated, available 24 hours a day and seven days per week. Emergency services also may include walk-ins, home visits, jail interventions, and preadmission screening activities associated with the judicial process.

"Group home or community residential service" means a congregate service providing 24-hour supervision in a community-based home having eight or fewer residents. Services include supervision, supports, counseling, and training in activities of daily living for individuals whose individualized services plan identifies the need for the specific types of services available in this setting.

"HCBS Waiver" means a Medicaid Home and Community Based Services Waiver.

"Home and noncenter based" means that a service is provided in the individual's home or other noncenter-based setting. This includes noncenter-based day support, supportive in-home, and intensive in-home services.

"IFDDS Waiver" means the Individual and Family Developmental Disabilities Support Waiver.

"Individual" or "individual receiving services" means a person receiving services that are licensed under this chapter whether that person is referred to as a patient, consumer, client, resident, student, individual, recipient, family member, relative, or other term current direct recipient of public or private mental health, developmental, or substance abuse

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treatment, rehabilitation, or habilitation services and includes the terms "consumer," "patient," "resident," "recipient," or "client". When the term is used in this chapter, the requirement applies to every individual receiving licensed services from the provider.

"Individualized services plan" or "ISP" means a comprehensive and regularly updated written plan that describes the individual's needs, the measurable goals and objectives to address those needs, and strategies to reach the individual's goals. An ISP is person-centered, empowers the individual, and is designed to meet the needs and preferences of the individual. The ISP is developed through a partnership between the individual and the provider and includes an individual's treatment plan, habilitation plan, person-centered plan, or plan of care, which are all considered individualized service plans.

"Informed choice" means a decision made after considering options based on adequate and accurate information and knowledge. These options are developed through collaboration with the individual and his authorized representative, as applicable, and the provider with the intent of empowering the individual and his authorized representative to make decisions that will lead to positive service outcomes.

"Informed consent" means the voluntary written agreement of an individual, or that individual's authorized representative, to surgery, electroconvulsive treatment, use of psychotropic medications, or any other treatment or service that poses a risk of harm greater than that ordinarily encountered in daily life or for participation in human research. To be voluntary, informed consent must be given freely and without undue inducement; any element of force, fraud, deceit, or duress; or any form of constraint or coercion.

"Initial assessment" means an assessment conducted prior to or at admission to determine whether the individual meets the service's admission criteria; what the individual's immediate service, health, and safety needs are; and whether the provider has the capability and staffing to provide the needed services.

"Inpatient psychiatric service" means intensive 24-hour medical, nursing, and treatment services provided to individuals with mental illness or substance abuse (substance use disorders) in a hospital as defined in § 32.1-123 of the Code of Virginia or in a special unit of such a hospital.

"Instrumental activities of daily living" or "IADLs" means meal preparation, housekeeping, laundry, and managing money. A person's degree of independence in performing these activities is part of determining appropriate level of care and services.

"Intellectual disability" means a disability originating before 18 years of age, characterized concurrently by (i) significant subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual

functioning administered in conformity with accepted professional practice that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.

"Intensive community treatment service" or "ICT" means a self-contained interdisciplinary team of at least five full-time equivalent clinical staff, a program assistant, and a full-time psychiatrist that:

1. Assumes responsibility for directly providing needed treatment, rehabilitation, and support services to identified individuals with severe and persistent mental illness, especially those who have severe symptoms that are not effectively remedied by available treatments or who because of reasons related to their mental illness resist or avoid involvement with mental health services;

2. Minimally refers individuals to outside service providers;

3. Provides services on a long-term care basis with continuity of caregivers over time;

4. Delivers 75% or more of the services outside program offices; and

5. Emphasizes outreach, relationship building, and individualization of services.

"Intensive in-home service" means family preservation interventions for children and adolescents who have or are at- risk of serious emotional disturbance, including individuals who also have a diagnosis of mental retardation (intellectual disability) developmental disability. Intensive in-home service is usually time-limited and is provided typically in the residence of an individual who is at risk of being moved to out-of-home placement or who is being transitioned back home from an out-of-home placement. The service includes 24-hour per day emergency response; crisis treatment; individual and family counseling; life, parenting, and communication skills; and case management and coordination with other services.

"Intermediate care facility/individuals with intellectual disability" or "ICF/IID" means a facility or distinct part of a facility certified by the Virginia Department of Health as meeting the federal certification regulations for an intermediate care facility for individuals with intellectual disability and persons with related conditions and that addresses the total needs of the residents, which include physical, intellectual, social, emotional, and habilitation, providing active treatment as defined in 42 CFR 435.1010 and 42 CFR 483.440.

"Investigation" means a detailed inquiry or systematic examination of the operations of a provider or its services regarding an alleged violation of regulations or law. An investigation may be undertaken as a result of a complaint, an

incident report, or other information that comes to the attention of the department.

"Licensed mental health professional" or "LMHP" means a physician, licensed clinical psychologist, licensed professional counselor, licensed clinical social worker, licensed substance abuse treatment practitioner, licensed marriage and family therapist, certified psychiatric clinical nurse specialist, licensed behavior analyst, or licensed psychiatric/mental health nurse practitioner.

"Location" means a place where services are or could be provided.

"Medically managed withdrawal services" means detoxification services to eliminate or reduce the effects of alcohol or other drugs in the individual's body.

"Mandatory outpatient treatment order" means an order issued by a court pursuant to § 37.2-817 of the Code of Virginia.

"Medical detoxification" means a service provided in a hospital or other 24-hour care facility under the supervision of medical personnel using medication to systematically eliminate or reduce effects of alcohol or other drugs in the individual's body.

"Medical evaluation" means the process of assessing an individual's health status that includes a medical history and a physical examination of an individual conducted by a licensed medical practitioner operating within the scope of his license.

"Medication" means prescribed or over-the-counter drugs or both.

"Medication administration" means the direct application of medications by injection, inhalation, ingestion, or any other means to an individual receiving services by (i) persons legally permitted to administer medications or (ii) the individual at the direction and in the presence of persons legally permitted to administer medications.

"Medication assisted treatment (Opioid treatment service)" means an intervention strategy that combines outpatient treatment with the administering or dispensing of synthetic narcotics, such as methadone or buprenorphine (suboxone), approved by the federal Food and Drug Administration for the purpose of replacing the use of and reducing the craving for opioid substances, such as heroin or other narcotic drugs.

"Medication error" means an error in administering a medication to an individual and includes when any of the following occur: (i) the wrong medication is given to an individual, (ii) the wrong individual is given the medication,

(iii) the wrong dosage is given to an individual, (iv) medication is given to an individual at the wrong time or not at all, or (v) the wrong method is used to give the medication to the individual.

"Medication storage" means any area where medications are maintained by the provider, including a locked cabinet, locked room, or locked box.

"Mental Health Community Support Service (MHCSS)" or "MCHSS" means the provision of recovery-oriented services to individuals with long-term, severe mental illness. MHCSS includes skills training and assistance in accessing and effectively utilizing services and supports that are essential to meeting the needs identified in the individualized services plan and development of environmental supports necessary to sustain active community living as independently as possible. MHCSS may be provided in any setting in which the individual's needs can be addressed, skills training applied, and recovery experienced.

"Mental illness" means a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.

"Mental retardation (intellectual disability)" means a disability originating before the age of 18 years characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice that is at least two standard deviations below the mean; and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills (§ 37.2-100 of the Code of Virginia).

"Missing" means a circumstance in which an individual is not physically present when and where he should be and his absence cannot be accounted for or explained by his supervision needs or pattern of behavior.

"Neglect" means the failure by an individual a person, or a program or facility operated, licensed, or funded by the department, excluding those operated by the Department of Corrections, responsible for providing services to do so, including nourishment, treatment, care, goods, or services necessary to the health, safety, or welfare of a person an individual receiving care or treatment for mental illness, mental retardation (intellectual disability) developmental disabilities, or substance abuse (substance use disorders).

"Neurobehavioral services" means the assessment, evaluation, and treatment of cognitive, perceptual, behavioral, and other impairments caused by brain injury that affect an individual's ability to function successfully in the community.

"Outpatient service" means treatment provided to individuals on an hourly schedule, on an individual, group, or family basis, and usually in a clinic or similar facility or in another location. Outpatient services may include diagnosis and evaluation, screening and intake, counseling,

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psychotherapy, behavior management, psychological testing and assessment, laboratory and other ancillary services, medical services, and medication services. "Outpatient service" specifically includes:

1. Services operated by a community services board or a behavioral health authority established pursuant to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia;

2. Services contracted by a community services board or a behavioral health authority established pursuant to Chapter 5 (§ 37.2-500 et seq.) or Chapter 6 (§ 37.2-600 et seq.) of Title 37.2 of the Code of Virginia; or

3. Services that are owned, operated, or controlled by a corporation organized pursuant to the provisions of either Chapter 9 (§ 13.1-601 et seq.) or Chapter 10 (§ 13.1-801 et seq.) of Title 13.1 of the Code of Virginia.

"Partial hospitalization service" means time-limited active treatment interventions that are more intensive than outpatient services, designed to stabilize and ameliorate acute symptoms, and serve as an alternative to inpatient hospitalization or to reduce the length of a hospital stay. Partial hospitalization is focused on individuals with serious mental illness, substance abuse (substance use disorders), or co-occurring disorders at risk of hospitalization or who have been recently discharged from an inpatient setting.

"Person-centered" means focusing on the needs and preferences of the individual; empowering and supporting the individual in defining the direction for his life; and promoting self-determination, community involvement, and recovery.

"Program of assertive community treatment service" or "PACT" means a self-contained interdisciplinary team of at least 10 full-time equivalent clinical staff, a program assistant, and a full- full-time or part-time psychiatrist that:

1. Assumes responsibility for directly providing needed treatment, rehabilitation, and support services to identified individuals with severe and persistent mental illnesses, including those who have severe symptoms that are not effectively remedied by available treatments or who because of reasons related to their mental illness resist or avoid involvement with mental health services;

2. Minimally refers individuals to outside service providers;

3. Provides services on a long-term care basis with continuity of caregivers over time;

4. Delivers 75% or more of the services outside program offices; and

5. Emphasizes outreach, relationship building, and individualization of services.

"Provider" means any person, entity, or organization, excluding an agency of the federal government by whatever name or designation, that delivers (i) services to individuals with mental illness, mental retardation (intellectual disability) developmental disabilities