Title of Regulation: 2VAC5-336. Regulations for Enforcement of the Virginia Tree and Crop Pests Law - Spotted Lanternfly Quarantine (adding 2VAC5-336-10 through 2VAC5-336-130).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: December 2, 2019.

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, or email david.gianino@vdacs.virginia.gov.

Background: The Spotted Lanternfly is an invasive pest that feeds on more than 70 plant species, including grapes, pome and stone fruits, hops, and Ailanthus altissima (Tree of Heaven). The Spotted Lanternfly is a threat to Virginia's grape, apple, hops, and forestry industries and can be spread long distances by people who move articles containing Spotted Lanternfly egg masses, nymphs, or adults. If allowed to spread, this pest could impact Virginia's agricultural and forestry industries. The Spotted Lanternfly was initially detected in Winchester in January 2018 and has subsequently spread into Frederick County. The purpose of this new regulation is to help prevent the movement of Spotted Lanternfly to areas of the Commonwealth that are not infested. The Spotted Lanternfly Quarantine restricts the movement of those articles that have the ability to spread the Spotted Lanternfly from quarantined areas to nonquarantined areas of the Commonwealth.

Summary:

The new regulation (i) establishes regulated articles, which are articles that pose a risk for spreading the Spotted Lanternfly, and are subject to the provisions of the regulation; (ii) requires any person conducting business to obtain a permit from the Commissioner of Agriculture and Consumer Services prior to moving regulated articles out of a quarantined area; (iii) establishes that a person must complete agency-approved training to secure a permit and that a business must maintain applicable training records and ensure that regulated articles are inspected and free of Spotted Lanternfly prior to moving such articles from a regulated (quarantined) area to a nonquarantined area; and (iv) establishes the quarantined areas as the City of Winchester and the County of Frederick.

CHAPTER 336
REGULATIONS FOR ENFORCEMENT OF THE VIRGINIA TREE AND CROP PESTS LAW - SPOTTED LANTERNFLY QUARANTINE

2VAC5-336-10. Declaration of quarantine.

A quarantine is hereby established to restrict the movement of certain articles capable of transporting Spotted Lanternfly, Lycorma delicatula, unless such articles comply with the conditions specified in this chapter.

2VAC5-336-20. Purpose of quarantine.

The purpose of this quarantine is to help prevent the artificial spread of Spotted Lanternfly to uninfested areas of the Commonwealth by regulating the movement of articles that are capable of transporting the Spotted Lanternfly. The Spotted Lanternfly is a new pest to the United States and has become established in the Commonwealth. The Spotted Lanternfly has the potential to spread to uninfested areas by natural means or through the movement of infested articles.

The Spotted Lanternfly is not native to the Commonwealth or the United States and is a threat to forests, ornamental trees, orchards, and grapes. It is not yet widely prevalent or distributed within or throughout the Commonwealth. The Board of Agriculture and Consumer Services has determined that the Spotted Lanternfly is dangerous and destructive to the agriculture, horticulture, and forests of this Commonwealth.

2VAC5-336-30. Definitions.

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

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

"Commonwealth" means the Commonwealth of Virginia.

"Compliance agreement" means a written agreement between a person engaged in growing, handling, receiving, or moving regulated articles and the department, wherein the former agrees to comply with the requirements of the compliance agreement and comply with the provisions of this chapter.

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

"Infestation" means the presence of the Spotted Lanternfly or the existence of circumstances that make it reasonable to suspect that the Spotted Lanternfly is present.

"Inspection statement" means an official document provided by the department that must be completed and accompany regulated articles moving out of the regulated area.

"Inspector" means an employee of the department or other person authorized by the commissioner to enforce the provisions of this chapter.

"Moved," "move," or "movement" means shipped; offered for shipment; received for transportation; transported; carried; or allowed to be moved, shipped, transported, or carried.

"Permit" means a document issued by the commissioner to a person to allow the movement of regulated articles out of the regulated area under conditions specified within the permit.

"Person" means the term as defined in § 1-230 of the Code of Virginia, which includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Regulated area" means the localities listed in 2VAC5-336-50.

"Spotted Lanternfly" means the live insect, Lycorma delicatula, in any life stage.

"Training credentials" means documentation verifying successful completion of department-approved Spotted Lanternfly training.

"Virginia Tree and Crop Pests Law" means Chapter 7 (§ 3.2-700 et seq.) of Title 3.2 of the Code of Virginia.

2VAC5-336-40. Regulated articles.

A. Any life stage of the Spotted Lanternfly, Lycorma delicatula, is regulated under the provisions of this chapter.

B. The following articles, when such articles have been stored, packed, or handled in a manner that poses a risk of Spotted Lanternfly infestation, are regulated under the provisions of this chapter:

1. All plants or plant parts, including the following: live or dead trees; nursery stock; green lumber; firewood; logs; perennial plants; garden plants or produce; stumps; branches; mulch; or composted or uncomposted chips, bark, or yard waste.

2. Outdoor industrial or construction materials or equipment; concrete barriers or structures; stone, quarry material, ornamental stone, or concrete; or construction, landscaping, or remodeling waste.

3. Shipping containers, such as wood crates or boxes.

4. Outdoor household articles, including the following: recreational vehicles; lawn tractors or mowers; grills; grill or furniture covers; tarps; mobile homes; tile; stone; deck boards; or any equipment, trucks, or vehicles not stored indoors.

5. Any means of conveyance utilized for movement of an article listed in subdivisions 1 through 4 of this subsection; any vehicle; or any trailer, wagon, or other equipment attached thereto.

C. Any other article or means of conveyance that an inspector determines presents a risk of spreading Spotted Lanternfly is regulated under the provisions of this chapter.

2VAC5-336-50. Regulated areas.

The following areas in Virginia are quarantined for Spotted Lanternfly:

1. The entire County of Frederick.

2. The entire City of Winchester.

2VAC5-336-60. Conditions governing the intrastate movement of regulated articles by a person conducting business.

A. A person conducting business may move a regulated article from a regulated area to an unregulated area under the following conditions:

1. The person moving the regulated article has been issued a permit in accordance with 2VAC5-336-80;

2. The person has inspected the regulated article and found the regulated article to be free of all life stages of Spotted Lanternfly; and

3. The shipment of the regulated article is accompanied by a Spotted Lanternfly permit and completed inspection statement.

B. A person conducting business may move a regulated article solely within a regulated area after the person has inspected the regulated article and found it to be free of all life stages of the Spotted Lanternfly. A Spotted Lanternfly permit and completed inspection statement are not required for the movement of a regulated article within a regulated area.

C. From April 1 through December 31, a person conducting business may move a regulated article that originates in an unregulated area through a regulated area under the following conditions:

1. The shipment of the regulated article is accompanied by a waybill that indicates the point of origin of the regulated article;

2. The shipment of the regulated article moves directly through the regulated area without stopping, except for refueling or due to traffic conditions, or the regulated article has been stored, packed, or handled in a manner so as to not pose a risk of infestation; and

3. The regulated article has not been combined or commingled with other articles so as to lose its individual identity.

D. During January through March, a person conducting business may move a regulated article that originates in an unregulated area through a regulated area without restriction.

E. The commissioner may issue a permit to a person moving a regulated article from a regulated area to an unregulated area or from an unregulated area through a regulated area who does not meet the requirements of this chapter when the commissioner determines the movement poses no risk of spreading Spotted Lanternfly.

F. The department may enter into a compliance agreement with a person to allow the movement of regulated articles to states or countries that have additional shipping requirements and where the compliance agreement is needed to comply with such requirements.

2VAC5-336-70. Conditions governing the intrastate movement of regulated articles by a person not conducting business.

A. A person who is not conducting business may move the regulated article from a regulated area to an unregulated area under the following conditions:

1. The person has inspected the regulated article and found it to be free of all life stages of Spotted Lanternfly; and

2. The regulated article is accompanied by a completed inspection statement.

B. A person who is not conducting business may move the regulated article within a regulated area after the person has inspected the regulated article and found it to be free of all life stages of Spotted Lanternfly. A permit and completed inspection statement are not required for the movement of a regulated article within a regulated area.

2VAC5-336-80. Issuance and cancellation of permits.

A. A person conducting business that requires the movement of a regulated article from a regulated area must obtain a permit from the commissioner.

B. To obtain a permit, a person conducting business that requires the movement of a regulated article from a regulated area shall:

1. Successfully complete department-approved training regarding identification of Spotted Lanternfly and compliance with this quarantine;

2. Submit to the department:

a. A completed Spotted Lanternfly permit application on a form provided by the department; and

b. Training credentials indicating successful completion of department-approved training;

3. Agree to train employees who move a regulated article out of a regulated area regarding identification of Spotted Lanternfly and compliance with this chapter;

4. Agree that before a regulated article is transported out of a regulated area, the person will require the regulated article to be inspected by a person who has completed Spotted Lanternfly training to ensure such article is free of Spotted Lanternfly;

5. Ensure the regulated article is moved in compliance with any additional condition deemed necessary under the Virginia Tree and Crop Pests Law to prevent the artificial spread of Spotted Lanternfly; and

6. Ensure the regulated article is eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated article.

C. An inspector may withdraw a permit orally or in writing if the inspector determines that the holder of the permit has not complied with all conditions for the use of the permit. If the withdrawal is oral, the inspector shall confirm the withdrawal and the reasons for the withdrawal in writing and communicate such to the permit holder as promptly as circumstances allow.

2VAC5-336-90. Training requirements.

A. Any person responsible for moving a regulated article under a Spotted Lanternfly permit issued by the commissioner pursuant to 2VAC5-336-80 must successfully complete department-approved training.

B. The person training employees regarding the identification of Spotted Lanternfly and compliance with this quarantine shall have successfully completed department-approved training regarding the identification of Spotted Lanternfly and compliance with this chapter.

C. All training must be documented and training records made available to the department upon request. Training records must be maintained for all current employees and include employee name, date of training, and name of person conducting the training.

2VAC5-336-100. Inspection, treatment, and disposal of regulated articles and pests.

Upon presentation of official credentials, an inspector is authorized to stop and inspect and to seize, destroy, or otherwise dispose of or require treatment or disposal of a regulated article as provided in the Virginia Tree and Crop Pests Law.

2VAC5-336-110. Prohibited entry into Virginia.

A. The movement into Virginia of a regulated article from any area outside of the Commonwealth where a federal or state plant regulatory official has determined Spotted Lanternfly to be present is prohibited unless:

1. Prior written approval is issued by the commissioner; or

2. The regulated article is being moved under a Spotted Lanternfly permit issued by the state plant regulatory official of a state where Spotted Lanternfly is known to occur.

B. The movement into Virginia of a regulated article for research purposes is permissible with the commissioner's prior written approval.

2VAC5-336-120. Nonliability of the department.

The department shall not be liable for any costs incurred by third parties whose costs result from or are incidental to inspections required under the provisions of this chapter.

2VAC5-336-130. Repeal of this quarantine.

This quarantine may be repealed by the commissioner when the commissioner is satisfied that the need for this quarantine no longer exists. Such repeal shall take place upon the date specified by the commissioner in the order that repeals this chapter.

FORMS (2VAC5-336)

Inspection Statement for Businesses, OPIS-SLF-2 (eff. 5/2019)

Spotted Lanternfly Permit Application Form, OPIS-SLF-1 (eff. 5/2019)