Title of Regulation: 2VAC5-675. Regulations Governing Pesticide Fees Charged by the Department of Agriculture and Consumer Services (amending 2VAC5-675-20 through 2VAC5-675-50).

Statutory Authority: § 3.2-3906 of the Code Virginia.

Public Hearing Information:

July 24, 2018 - 3 p.m. - Rural Retreat Depot, 105 West Railroad Avenue, Rural Retreat, VA 24368

Public Comment Deadline: September 21, 2018.

Agency Contact: Liza Fleeson Trossbach, Program Manager, Office of Pesticide Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, FAX (804) 371-2283, TTY (800) 828-1120, or email liza.fleeson@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia.

Subdivision 7 of § 3.2-3906 of the Code of Virginia authorizes the board to adopt regulations establishing a fee structure for licensure, registration, and certification to defray the costs of implementing the Virginia Pesticide Control Act.

Purpose: The format and a large portion of the content of 2VAC5-675, Regulations Governing the Pesticide Fees Charged by the Department of Agriculture and Consumer Services, were first implemented in July 1990. The regulations were amended in September 1994 and March 2009 and renumbered in October 2012 following the merger of the former Pesticide Control Board with the Board of Agriculture and Consumer Services. The current certification fees for pesticide applicators and licensing fees for pesticide businesses have been in place since 1990. The current pesticide product registration fee has been in place since 1999.

The agency has determined that current fees do not provide adequate funding for pesticide-related services. The fees prescribed in 2VAC5-675 are utilized to operate the agency's pesticide programs, which protect human health and the environment by ensuring the proper use of pesticides used to control pests that adversely affect crops, structures, health, and domestic animals. Program activities include the certification of approximately 21,000 pesticide applicators, licensing of approximately 3,000 pesticide businesses, registration of approximately 15,000 pesticide products, and the conduct of routine inspections and investigations.  In order to ensure compliance with all applicable laws and regulations related to the use of pesticides, it is imperative that fees provide adequate funding for these services.

Substance: The substantive changes include an increase to certification fees for commercial pesticide applicators and registered technicians, an increase to licensure fees for pesticide businesses, and an increase in registration fees for pesticide products. The proposed amendments to the regulation will:

Increase the annual product registration fee from $160 per year to $225 per year;

Increase the certification fee for commercial applicators from $70 every two years to $100 every two years;

Increase the certification fee for registered technicians from $30 every two years to $50 every two years; and

Increase the annual pesticide business license fee from $50 per year to $150 per year.

Issues: The proposed regulatory action is advantageous to the public and the regulated industry, as the amended fee structure will ensure the continuation of program services, which protect human health and the environment by ensuring the proper use of pesticides used to control pests that adversely affect crops, structures, health, and domestic animals. While increasing fees, these actions do not add any additional regulatory requirements to pesticide applicators, pesticide businesses, or registrants of pesticide products. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (Board) proposes fee increases for commercial pesticide applicator certification, registered technician certification, pesticide business licensure, and pesticide product registration to reflect actual costs of program implementation.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact.

Background: Pesticides are used for the control of pests that adversely affect crops, structures, human health, and domestic animals. Given the risk associated with the application of pesticides to both human health and the environment, the use of pesticides is highly regulated at the federal and state level. The Virginia Department of Agriculture and Consumer Services' (VDACS) pesticide programs protect human health and the environment by ensuring the proper use of pesticides. These programs include the certification of pesticide applicators, the licensing of pesticide businesses, the registration of pesticide products, and inspections and investigations to ensure compliance with all applicable laws and regulations.

Proposed Fee Increases: VDACS collects fees to fund its activities. The current certification fees for pesticide applicators and licensing fees for pesticide businesses have not been updated since 1990. The current pesticide product registration fee has not been updated since 1999. Given inflation, particularly for personal services and information technology, current fees do not provide adequate funding for the pesticide programs. Consequently, the Board proposes to raise registration, certification, and licensing fees as described in the following table.

	Current Fee	Proposed Fee
Pesticide product registration fee	$160	$225
Commercial applicator certificate fee (initial)	$70	$100
Commercial applicator certificate fee (biennial renewal)	$70	$100
Commercial applicator reexamination fee	$70	$100
Registered technician certificate fee (initial)	$30	$50
Registered technician certificate fee (biennial renewal)	$30	$50
Registered technician reexamination fee	$30	$50
Pesticide business licensing fee (annual)	$50	$150

The fee increases for the affected firms and individuals are relatively moderate. Given the likely benefit of protection of human health and the environment through the continuance of the pesticide programs, the benefit of the proposed amendments likely exceeds the cost.

Businesses and Entities Affected. The proposed amendments affect the approximate 3,000 licensed pesticide businesses, 18,000 certified applicators, including commercial applicators and registered technicians, and 1,550 registrants of pesticide products. The vast majority of the licensed pesticide businesses and employers of certified applicators are likely small businesses.¹

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not significantly affect real estate development costs.

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposed amendments moderately increase costs for small firms that distribute, store, sell, recommend for use, mix, or apply pesticides.

Alternative Method that Minimizes Adverse Impact. Not raising fees could potentially put the pesticide programs in jeopardy. There are no clear alternatives that minimize the adverse impact on small firms while maintaining the pesticide programs.

Adverse Impacts: 

Businesses. The proposed amendments moderately increase costs for firms that distribute, store, sell, recommend for use, mix, or apply pesticides.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendment does not adversely affect other entities.

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¹Data sources: Virginia Department of Agriculture and Consumer Services

Agency's Response to Economic Impact Analysis: The agency concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed amendments adjust the current fee structure for licensure, registration, and certification to reflect actual costs of program implementation and include a fee increase for commercial pesticide applicator certification, registered technician certification, pesticide business licensure, and pesticide product registration.

Part II
Fees

2VAC5-675-20. Pesticide product registration fee; registration of new pesticide products; renewal of pesticide product registration.

A. Every pesticide product which is to be manufactured, distributed, sold, offered for sale, used, or offered for use within the Commonwealth shall be registered with the commissioner. The fee for registering each brand shall be $160 $225. If a brand has more than one grade, each grade shall be registered, not the brand at the registration fee then in effect. The registration for a new pesticide product shall be effective upon receipt by the Department of Agriculture and Consumer Services of the application form accompanied by the required registration fee.

B. All pesticide product registrations shall expire on December 31 of each year unless canceled or otherwise terminated for cause. A registration not canceled or otherwise terminated for cause will be renewed upon receipt of the annual registration fee as set forth in subsection A of this section accompanied by the application renewal form. A registration that has been canceled or otherwise terminated for cause prior to December 31 may be resubmitted as a new registration when the conditions resulting in the cancellation or termination have been resolved. The registration of each brand or grade shall be renewed with the commissioner prior to December 31 of each year. If the registration is not renewed prior to December 31 of each year, the commissioner shall assess a late fee of 20% that shall be added to the registration fee. The late fee shall apply to all renewal registrations submitted to the department any time during the 12-month period following the expiration of the registration. Registrants who permit a registration to lapse for more than one year shall thereafter register the product as a new product. The applicant shall pay the total fee prior to the issuance of the registration by the commissioner.

2VAC5-675-30. Commercial applicator certificate fee.

Any person applying for a certificate as a commercial applicator shall pay to the department an initial nonrefundable certificate fee of $70 $100 and a biennial nonrefundable renewal fee of $70 $100 thereafter. All certificates shall expire at midnight on June 30 in the second year after issuance unless suspended or revoked for cause. All certificates not suspended or revoked for cause will be renewed upon receipt of the biennial renewal fee. If the applicator does not file an application for renewal of his certificate prior to COB June 30, the commissioner shall assess a late filing fee of 20% that shall be added to the renewal fee. The applicant shall pay the total fee prior to the commissioner's issuance of the renewal. However, if the certificate is not renewed within 60 days following the expiration of the certificate, then such certificate holder shall be required to take another examination. The fee for this reexamination or for any commercial applicator reexamination pursuant to subsection C of § 3.2-3930 of the Code of Virginia shall be $70 $100 and shall be nonrefundable. Any person applying to add a category or subcategory to his certificate shall pay to the department a nonrefundable fee of $35. Federal, state, and local government employees certified to use, or supervise the use of, pesticides in government programs shall be exempt from any certification fees.

2VAC5-675-40. Registered technician certificate fee.

Any person applying for a certificate as a registered technician shall pay to the department an initial nonrefundable certificate fee of $30 $50 and a biennial nonrefundable renewal fee of $30 $50 thereafter. All certificates shall expire at midnight on June 30 in the second year after issuance unless suspended or revoked for cause. A certificate not suspended or revoked for cause will be renewed upon receipt of the biennial renewal fee. If the application for renewal of any certificate is not filed prior to COB June 30, a late filing fee of 20% shall be assessed and added to the renewal fee and shall be paid by the applicant before the renewal shall be issued. If the certificate is not renewed within 60 days following the expiration of the certificate, then such certificate holder shall be required to take another examination. The fee for this reexamination pursuant to subsection C of § 3.2-3930 of the Code of Virginia shall be $30 $50 and shall be nonrefundable. Federal, state, and local government employees certified to use pesticides in government programs shall be exempt from any certification fees.

2VAC5-675-50. Business license fee.

Any pesticide business that distributes, stores, sells, recommends for use, mixes, or applies pesticides shall pay a nonrefundable annual pesticide business licensing fee of $50 $150 for each location or outlet that he or it operates. All business licenses will expire at midnight on March 3l of each year unless suspended or revoked for cause. If a business license is not suspended or revoked for cause, it will be renewed upon payment of the annual fee. If any person operating as a pesticide business fails to apply for renewal of a pesticide business license by COB March 31 the applicant, as a condition of renewal, shall pay a late license fee of 20% of the licensing fee in addition to that fee. Merchants of limited quantities of nonrestricted use pesticides including grocery stores, convenience stores, drug stores, veterinarians, and other businesses who sell pesticides primarily for limited household use shall be exempt from the business license requirement.

FORMS (2VAC5-675)

Application for New Pesticide Product Registration/Additional Information and Instructions, VDACS—07208 (rev. 7/12).

Application for Virginia Pesticide Business License to sell, distribute, store, apply, or recommend pesticides for use, VDACS—07209 (eff. 9/06).

Application for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator Categories, VDACS—07210 (eff. 5/09).

Commercial Pesticide Applicator Certification Application/Eligibility Requirements for Commercial Applicator Certification, VDACS—07211 (rev. 7/12).

Pesticide Registered Technician Application/General Training Requirements for Registered Technicians, VDACS—07212 (eff. 1/09).

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination/Commercial Pesticide Applicator Categories, VDACS—07218 (eff. 1/09).

Application for New Pesticide Product Registration/Additional Information and Instructions, VDACS-07208 (rev. 7/2017)

Application for Virginia Pesticide Business License to sell, distribute, store, apply, or recommend pesticides for use, VDACS-07209 (rev. 7/2017)

Application for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator Categories, VDACS-07210 (rev. 7/2017)

Commercial Pesticide Applicator Certification Application/Eligibility Requirements for Commercial Applicator Certification, VDACS-07211 (rev. 7/2017)

Pesticide Registered Technician Application/General Training Requirements for Registered Technicians, VDACS-07212 (rev. 7/2017)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination/Commercial Pesticide Applicator Categories, VDACS-07218 (rev. 7/2017)