Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (amending 2VAC5-317-10 through 2VAC5-317-60, 2VAC5-317-80, 2VAC5-317-100).

Statutory Authority: § 3.2-802 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 15, 2017.

Effective Date: November 30, 2017.

Agency Contact: Debra Martin, 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 debra.martin@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. Section 3.2-802 of the Code of Virginia authorizes the board to establish regulations under which certain plants can be listed as noxious weeds. Moreover, the board may adopt regulations pertaining to regulated articles and conditions for their movement, under which the Commissioner of the Department of Agriculture and Consumer Services may proceed to conduct eradication or suppression activities to prevent the dissemination of noxious weeds in the Commonwealth. The board may also adopt regulations governing the movement of regulated articles entering the Commonwealth from other locations.

Purpose: The proposed amendments to 2VAC5-317 are necessary in order to align the language of the regulation with changes enacted in the 2016 Session of the General Assembly and to clarify some of the existing regulatory language. This regulation assists in protecting the Commonwealth's agricultural and natural resources from the detrimental impact of noxious weeds. As the establishment of a noxious weed can lead to significant economic losses due to associated eradication and control costs, this regulation also assists in protecting the economic welfare of citizens.

Rationale for Using Fast-Track Rulemaking Process: The proposed changes to the regulation are intended to align the regulation with changes enacted in the 2016 Session of the General Assembly and to clarify some of the existing regulatory language. The Noxious Weeds Advisory Committee, which the existing regulation establishes, has discussed and reached consensus on the proposed changes to the regulation.

Substance: Prior to the 2016 Session of the General Assembly, the Noxious Weeds Law defined "noxious weed" as "any living plant, not widely disseminated, or part thereof, declared by the Board through regulations under this chapter, to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health." Chapter 171 of the 2016 Acts of Assembly amended the definition of "noxious weed" by removing the "not widely disseminated" condition and excluding from eligibility for declaration as a noxious weed those living plants or parts thereof for which in-state production is commercially viable or that are commercially propagated in Virginia. In response to the new statutory definition for "noxious weed," the agency proposes to amend the definitions for "Tier 1 noxious weed" and "Tier 2 noxious weed" in the regulation. The proposed amendments also move two weeds from Tier 1 to Tier 2 as a result of the change in definitions. Tier 1 noxious weeds are those noxious weeds not known to be present in the Commonwealth; therefore, the agency proposes to move Beach vitex and Wavyleaf basketgrass from Tier 1 to Tier 2, which is defined as any noxious weed that is present in the Commonwealth and for which successful eradication or suppression is feasible. Additionally, the proposed amendments establish a definition for "Tier 3 noxious weed," but the agency is not prepared to declare any Tier 3 noxious weeds in this regulatory action.

To address the concerns that nurseries and landscapers expressed regarding their ability to continue selling commercially viable plants already in the trade, the General Assembly, in 2016, also added the following requirement to § 3.2-802 of the Code of Virginia, which establishes the board's authority to declare a weed noxious: "Prior to designating a living plant or part thereof as a noxious weed, the board shall review the recommendations of an advisory committee established by the commissioner to conduct a scientific risk assessment of the proposed plant. The assessment shall include the degree to which the plant is detrimental to crops; surface water, including lakes; other desirable plants; livestock; land or other property; public health; the environment; and the economy. The advisory committee shall also include in its recommendations to the Board an analysis of the current and potential in-state commercial viability of the specific plant species and the economic impact on industries affected by the designation of the plant as a noxious weed." The proposed amendments to the regulation will add the items that the law requires the advisory committee to assess to the regulation. The advisory committee is currently working on completing the scientific risk assessment process for plants to be proposed for listing as noxious weeds.

Issues: Aligning the language of the regulation with the Code of Virginia and clarifying existing provisions make the regulation easier to understand and interpret. Additionally, the proposed changes allow for more flexibility in enforcement, which will benefit the agency and the public. 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 to amend this regulation to conform to Chapter 171 of the 2016 Acts of Assembly (Chapter 171)¹ concerning the designation of plants as noxious weeds.

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

Estimated Economic Impact. Prior to the 2016 Session of the General Assembly, the Noxious Weeds Law² defined "noxious weed" as "any living plant, not widely disseminated, or part thereof, declared by the Board through regulations under this chapter, to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health." Chapter 171 of the 2016 Acts of Assembly (Chapter 171) amended the definition of "noxious weed" by removing the "not widely disseminated" condition and excluding from eligibility for declaration as a noxious weed those living plants or parts thereof for which in-state production is commercially viable or that are commercially propagated in Virginia. In response to the new statutory definition for "noxious weed," the Board proposes to amend the definitions for "Tier 1 noxious weed" and "Tier 2 noxious weed" in the regulation. The Board also proposes to move two weeds from Tier 1 to Tier 2 as a result of the change in definitions. Under the new definition, Tier 1 noxious weeds are those noxious weeds not known to be present in the Commonwealth; therefore, the Board proposes to move beach vitex and wavyleaf basketgrass, which are in Virginia, from Tier 1 to Tier 2, which is defined as any noxious weed that is present in the Commonwealth and for which successful eradication or suppression is feasible.

Section 80 of the current regulation³ states that "The commissioner may conduct eradication or suppression activities to prevent the dissemination of a Tier 1⁴ noxious weed. Eradication or suppression activities may include, but are not limited to, the following: destruction, seizure, stop sale, stop delivery, treatment, or ordering the regulated article to be returned to its point of origin." The Board proposes to amend "Tier 1" to "Tier 1 or Tier 2." Thus, this proposed amendment would keep beach vitex and wavyleaf basketgrass among the plants that could be subject to eradication or suppression activities. Effectively, this would also newly allow eradication or suppression activities of the plants that are currently in Tier 2 and would remain in Tier 2 under the proposed regulation. Those plants are cogon grass, purple loosestrife, and water spinach. The Department of Agriculture and Consumer Services (Department) does not anticipate that this change will affect eradication or suppression activities for those three plants in practice, as these activities are dependent on funding. The Department believes that if funding is made available it is likely that the funds would only be used to eradicate Tier 1 noxious weeds.

To address the concerns that nurseries and landscapers expressed regarding their ability to continue selling commercially viable plants already in the trade, Chapter 171 also added the following requirement to Code of Virginia section § 3.2-802 of the Noxious Weeds Law, which establishes the Board's authority to declare a weed noxious: "Prior to designating a living plant or part thereof as a noxious weed, the Board shall review the recommendations of an advisory committee established by the Commissioner to conduct a scientific risk assessment of the proposed plant. The assessment shall include the degree to which the plant is detrimental to crops; surface water, including lakes; other desirable plants; livestock; land or other property; public health; the environment; and the economy. The advisory committee shall also include in its recommendations to the Board an analysis of the current and potential in-state commercial viability of the specific plant species and the economic impact on industries affected by the designation of the plant as a noxious weed." There already exists a Noxious Weeds Advisory Committee for the purpose of assisting the Department in the evaluation and risk-assessment of plants that may be declared noxious weeds. The Board proposes to add the items described above in the legislation to what should be considered by the committee.

Thus the proposals to: 1) amend the definitions of "Tier 1 noxious weed" and "Tier 2 noxious weed", 2) move beach vitex and wavyleaf basketgrass from Tier 1 to Tier 2, 3) add Tier 2 to those noxious weeds upon which the commissioner may conduct eradication or suppression activities, and 4) add items to be considered when deciding whether a plant is to be designated a noxious weed, will clarify what is effectively required by statute and effectively newly allow eradication or suppression of cogon grass, purple loosestrife, and water spinach. The clarification and avoiding inconsistency with the Code of Virginia is beneficial in that it reduces potential confusion and unintentional actions that may violate the law. As discussed above, the effectively newly allowing eradication or suppression of cogon grass, purple loosestrife, and water spinach will likely have no impact, but does add flexibility.

Businesses and Entities Affected. The proposed amendments will not likely have a large impact on any businesses or other entities. The subject matter concerns nurseries, landscapers, farmers, agribusinesses, various landowners including local governments, conservation organizations, soil and water conservation districts, and weed management businesses and cooperatives.

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 do not significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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¹ See http://leg1.state.va.us/cgi-bin/legp504.exe?161+ful+CHAP0171

² See https://law.lis.virginia.gov/vacode/title3.2/chapter8/

³ See https://law.lis.virginia.gov/admincode/title2/agency5
/chapter317/section80/

⁴ The bold is for emphasis and is not part of the regulatory text.

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

Summary:

The amendments align the regulation with Chapter 171 of the 2016 Acts of Assembly regarding the designation of plants as noxious weeds and clarify existing regulatory language.

2VAC5-317-10. Definitions.

The following words and terms 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 by an inspector or by a person operating in accordance with a compliance agreement to allow the movement of regulated articles to any destination 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 United States 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.

"Limited permit" means a document issued by an inspector to allow the movement of regulated articles to a specific destination.

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

"Move," "moved," or "movement" means shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried 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 or means of conveyance known to be infested or determined by an inspector to present a risk of spreading a listed noxious weed carrying or capable of carrying a listed noxious weed.

"Tier 1 noxious weed" means any noxious weed that is not native to known to be present in the Commonwealth that (i) has no known populations present in the Commonwealth or (ii) is not widely disseminated in the Commonwealth and for which successful eradication or suppression is likely.

"Tier 2 noxious weed" means any noxious weed that (i) is not native to is present in the Commonwealth, (ii) is not widely disseminated in the Commonwealth, and (iii) and for which successful eradication or suppression is feasible but eradication is unlikely.

"Tier 3 noxious weed" means any noxious weed that is present in the Commonwealth and not listed as a Tier 1 or Tier 2 noxious weed.

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

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

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

1. Vitex rotundifolia, Beach vitex.

2. Salvinia molesta, Giant salvinia.

3. 2. Solanum viarum, Tropical soda apple.

4. 3. Heracleum mantegazzianum, Giant hogweed.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

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.

C. No plant is hereby declared a Tier 3 noxious weed.

2VAC5-317-30. Conditions governing the intrastate movement of regulated articles.

The movement of a regulated article is prohibited unless accompanied by a valid certificate or limited permit.

2VAC5-317-40. Issuance and cancellation of certificates and limited permits.

A. A certificate or a limited permit may be issued by an inspector the commissioner for the movement of a regulated article into, within, or out of the Commonwealth when the regulated article meets the following three conditions:

1. The regulated article is to be moved:

a. Intrastate to To a specified destination under conditions that specify the limited handling, utilization, processing, or treatment of the article when the inspector commissioner determines that such movement will not result in the spread of the noxious weed; or

b. By a state or federal agency, or person authorized by the department, for experimental or scientific purposes;

2. The regulated article is to be moved in compliance with all additional conditions deemed necessary under the Noxious Weeds Law to prevent the spread of the noxious weed; and

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

B. Any certificate or limited permit that has been issued or authorized may be withdrawn by the inspector commissioner orally or in writing if the inspector commissioner determines that the holder of the certificate or limited permit has not complied with all conditions for the use of the certificate or limited permit, or with any applicable compliance agreement. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal shall be confirmed in writing and communicated to the certificate or limited permit holder as promptly as circumstances allow.

2VAC5-317-50. Assembly and inspection of regulated articles.

A. Any person who desires to move a regulated article and who is required to have a limited permit for such movement shall apply for a limited permit as far in advance as practical but no fewer than five business days before the regulated article is to be moved.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and shall be safeguarded to prevent infestation.

2VAC5-317-60. Attachment and disposition of certificates and limited permits.

A. A certificate or limited permit required for the movement of a regulated article into, within, or out of the Commonwealth must be attached at all times during the intrastate movement to the outside of the container that contains the regulated article or to the regulated article itself. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to facilitate the identification of the regulated article.

B. The certificate or limited permit for the intrastate movement of a regulated article must be furnished by the carrier to the consignee at the destination of the regulated article. A copy of the certificate or the limited permit must be retained by the sender of the regulated article at the place of shipment.

2VAC5-317-80. Eradication and suppression activities for Tier 1 or Tier 2 noxious weeds.

The commissioner may conduct eradication or suppression activities to prevent the dissemination of a Tier 1 or Tier 2 noxious weed. Eradication or suppression activities may include, but are not limited to, the following: destruction, seizure, stop sale, stop delivery, treatment, or ordering the regulated article to be returned to its point of origin.

2VAC5-317-100. Noxious Weeds Advisory Committee.

A. The commissioner shall establish a Noxious Weeds Advisory Committee for the purpose of assisting the department in the evaluation and risk-assessment of plants that may be declared noxious weeds in 2VAC5-317-20. The committee may also consider the delisting of plants that were previously declared noxious weeds.

B. The committee shall present recommendations to the commissioner regarding the listing or delisting of plants as noxious weeds. The committee shall consider the protection of Virginia's natural resources and the environment, as well as the economic impact on nurseries, landscapers, agricultural producers, and other affected industries in the formulation of its recommendations degree to which the plant is detrimental to crops; surface waters, including lakes; other desirable plants; livestock; land or other property; public health; the environment; and the economy. The committee's recommendation shall include an analysis of the current and potential in-state commercial viability of the specific plant species and the economic impact on industries affected by the designation of the plant as a noxious weed.

C. The commissioner shall convene a meeting of the committee at least once annually, and may convene additional meetings at his discretion. Department staff will coordinate the scheduling and logistics of the meetings, including the posting of meeting notices on the Virginia Regulatory Town Hall and the Commonwealth Calendar.

D. Committee members shall serve at the invitation of the commissioner. For every meeting of the committee, the commissioner shall invite representatives of Virginia's agricultural, horticultural, and environmental industries as well as representatives of Virginia's land grant universities and relevant executive branch agencies, to include but not be limited to:

1. A conservation representative or organization,;

2. An agribusiness representative or organization,;

3. A local government representative or organization,;

4. Virginia Cooperative Extension,;

5. Virginia Department of Conservation and Recreation,;

6. Virginia Department of Forestry,;

7. Virginia Department of Game and Inland Fisheries,;

8. Virginia Department of Transportation,;

9. A farming representative or organization,;

10. A forage-based agriculture representative or organization,;

11. A native plant conservation representative or organization,;

12. A nursery and landscaping representative or organization,;

13. Virginia Polytechnic Institute and State University, and;

14. Virginia State University;

15. A cooperative weed management area representative or organization; and

16. Virginia soil and water conservation districts.

E. The commissioner may invite representatives of local government agencies from localities where a plant of concern has been found or from localities that could be impacted by the declaration of a plant as a noxious weed. The commissioner may invite representatives of other organizations not listed in subsection D of this section that may have a direct interest in the declaration of a plant as a noxious weed.

F. Prior to each meeting of the committee, the commissioner or his designee shall make timely notification to committee members of any plant that the department is considering for possible listing or delisting as a noxious weed. The notification will include the scientific data and rationale for such listing or delisting. The commissioner or his designee shall survey committee members to determine if any member has identified a plant that should be considered for possible listing or delisting as a noxious weed. Any committee member who has identified a plant that should be considered for possible listing or delisting as a noxious weed shall provide department staff with relevant scientific data and the rationale to support the listing or delisting of the plant. The commissioner or his designee will distribute the scientific data and rationale to other committee members for their review and consideration prior to the meeting of the committee.

G. The committee, by majority vote of members, may develop and present to the commissioner a list of plants recommended for listing or delisting as noxious weeds.

H. The commissioner shall consider the recommendations of the committee in his preparation of the list of plants that he presents to the board for listing or delisting as noxious weeds.

I. If a regulatory action to list or delist a noxious weed is under way, the commissioner may delay the pursuit of a new regulatory action to list or delist a new noxious weed until the current action is completed.