Titles of Regulations: 2VAC5-675. Regulations Governing Pesticide Fees Charged by the Department of Agriculture and Consumer Services (amending 2VAC5-675-30, 2VAC5-675-40).

2VAC5-685. Regulations Governing Pesticide Applicator Certification under Authority of Virginia Pesticide Control Act (amending 2VAC5-685-130).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 2, 2022.

Effective Date: March 17, 2022.

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, TDD (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. Section 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 act.

Purpose: The agency has determined that current fees provide more than adequate funding for the Department of Agriculture and Consumer Services (VDACS) pesticide program. The fees prescribed in 2VAC5-675 and 2VAC5-685 are utilized to operate VDACS'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. Pesticide program activities include the certification of approximately 24,000 pesticide applicators, licensing of approximately 3,000 pesticide businesses, registration of approximately 16,000 pesticide products, and conducting routine inspections and investigations. VDACS is able to ensure compliance with all applicable laws and regulations related to the use of pesticides, thereby protecting human health, while eliminating the fee for pesticide applicator renewals, which will support the economic welfare of the businesses currently responsible for paying these renewal fees.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments eliminate certification renewal fees charged to industry and, as such, are expected to be noncontroversial and appropriate for the fast-track rulemaking process.

Substance: The proposed amendments eliminate the certification renewal fee for (i) commercial applicators, which is currently $100 every two years; and (ii) registered technicians, which is currently $50 every two years.

Issues: The proposed regulatory action is advantageous to the public, the regulated industry, and the agency as the amended fee structure eliminates fees assessed on the regulated industry, thereby reducing the costs to pesticide applicators and pesticide businesses while allowing for the continuation of VDACS's pesticide 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. Eliminating the pesticide applicator renewal fees does not add any additional regulatory requirements to pesticide applicators or pesticide businesses. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (Board) proposes to remove the biennial renewal fees for commercial pesticide applicator² certifications ($100) and registered pesticide technician³ certifications ($50).

Background. The Virginia Department of Agriculture and Consumer Services' (VDACS) pesticide programs 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. Pesticide program activities include the certification of approximately 24,000 pesticide applicators, licensing of approximately 3,000 pesticide businesses, registration of approximately 16,000 pesticide products, and conducting routine inspections and investigations.⁴

VDACS has determined that current fees provide more than adequate funding for its pesticide programs. The agency states that it is able to ensure compliance with all applicable laws and regulations related to the use of pesticides, while eliminating the fees for the specified certification renewals.

Estimated Benefits and Costs. VDACS estimates that the proposed removal of renewal fees would result in an annual revenue loss of approximately $600,000; however, their long-term projection is that the remaining revenue is sufficient to carry out the program's mission. Commercial pesticide applicators and registered pesticide technicians would benefit by saving $100 and $50 biennially, respectively.

Businesses and Other Entities Affected. The proposed amendments would affect the approximate 3,000 licensed pesticide businesses and 17,000 certified pesticide applicators, including commercial applicators and registered technicians, in Virginia.⁵

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ With one exception, an adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. The exception is when agencies choose to reduce their fees since revenues are projected to exceed their needs. Thus, no adverse impact is indicated.

Small Businesses⁷ Affected.⁸ The proposed amendments do not adversely affect small businesses.

Localities⁹ Affected.¹⁰The proposed amendments potentially affect all localities, but may particularly affect those that are agriculturally oriented. Since § 3.2-3931 of the Code provides an exemption from certification fees for government entities, the proposal would not directly affect local governments and their costs.

Projected Impact on Employment. The proposed amendments are unlikely to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments modestly reduce costs for pesticide applicators, which may commensurately increase the value of their businesses. The proposed amendments do not affect real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²Section 3.2-3900 of the Code of Virginia defines "commercial applicator" as "any person who has completed the requirements for certification to use or supervise the use of any pesticide for any purpose or on any property other than as provided in the definition of private applicator."

³Section 3.2-3900 defines "registered technician" as "an individual who has satisfactorily completed the Board requirements for certification to apply general use pesticides, and to apply restricted use pesticides while under the direct supervision of a certified commercial applicator. Registered technicians render services similar to those of a certified commercial applicator, but have not completed all the requirements to be eligible for certification as a commercial applicator."

⁴Source: VDACS

⁵Data source: VDACS

⁶Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁷Pursuant to § 2.2-4007.04, 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."

⁸If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹"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.

¹⁰§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments remove the renewal fee for commercial applicator renewal certifications and registered technician renewal certifications.

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 $100 and a biennial nonrefundable renewal fee of $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 A certificate 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 submitted by 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 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 $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 $50 and a biennial nonrefundable renewal fee of $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 an application for renewal of any certificate is not filed prior to COB submitted by 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 $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.

2VAC5-685-130. Renewal of certification.

A. Any certified private or commercial applicator or registered technician who desires to renew his certification shall do so biennially for the category or subcategory for which he is certified. A certified private or commercial applicator or registered technician must first attend board-approved recertification courses and submit proof of attendance at such courses, or be reexamined in basic pesticide safety and the categories desired for recertification. In addition to the requirement in this subsection, commercial applicators and registered technicians shall also pay the biennial certificate fee and submit an application for renewal before the commissioner will renew their certification.

B. A certified commercial applicator or registered technician must complete a board-approved recertification course that, at a minimum, addresses the following topics:

1. Legal aspects including:

a. A reminder to follow label directions including those on use, storage, disposal, and transportation;

b. A review of possible consequences of violating the law;

c. A reminder that restricted use pesticides purchased under an applicator's certificate number must be for use by certified commercial applicators only;

d. A review of a certified commercial applicator's responsibilities in supervising the use of restricted use pesticides by noncertified applicators; and

e. A review of recordkeeping responsibilities of certified commercial applicators for restricted use pesticide applications; and

2. Category-related training including:

a. A review of general safety for the applicator, coworkers, and the public;

b. A review of the environmental aspects of pesticide use, including impact on nontarget organisms, wildlife, domestic animals, groundwater, etc.;

c. A review of application techniques, including equipment, calibration, and maintenance;

d. A review of hazards, both personal safety and environmental, unique to that specific category;

e. A review of pertinent information regarding new chemistry or new formulations available that would be of use to applicators certified in the category;

f. A review of integrated pest management programs applicable to the category; and

g. A review of pests specific to category, including in-depth training on identification and control of selected specific pests. This section may be tailored to local needs.

C. A certified private applicator must complete a board-approved recertification course that, at a minimum, addresses the following topics:

1. General safety;

2. Legal update; and

3. Pest management and application technology, including:

a. A review of category-specific pest management and pesticide use patterns; and

b. A review of category-specific pesticide application and handling technology.

D. A certified private or commercial applicator or registered technician may accumulate up to four years of credit by attending board-approved recertification courses.

E. Upon expiration of certification, the certificate of a private applicator, commercial applicator, or registered technician shall become invalid. Any private applicator, commercial applicator, or registered technician who desires to renew his certification, but fails to do so within 60 days after its expiration, shall be reexamined.