Title of Regulation: 6VAC40-50. Regulations for the Approval of Marijuana Field Tests for Detection of Marijuana Plant Material (amending 6VAC40-50-10 through 6VAC40-50-50, 6VAC40-50-70, 6VAC40-50-80).

Statutory Authority: §§ 9.1-1110 and 19.2-188.1 of the Code of Virginia.

Public Hearing Information:

April 10, 2023 - 9:30 a.m. - Department of Forensic Science Central Laboratory, 700 North 5th Street, Richmond, Virginia 23219

Public Comment Deadline: May 12, 2023.

Agency Contact: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848, FAX (804) 786-6857, or email amy.jenkins@dfs.virginia.gov.

Basis: Section 19.2-188.1 of the Code of Virginia provides that, for violations of § 4.1-1105.1 of the Code of Virginia, any law-enforcement officer shall be permitted to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science, regarding whether or not any plant material is marijuana. Section 9.1-1110 of the Code of Virginia grants the Forensic Science Board the power and duty to adopt the regulation required pursuant to § 19.2-188.1 of the Code of the Virginia.

Purpose: In 2019, changes were made in federal and state law regarding marijuana and industrial hemp that impacted the use of marijuana field tests. Marijuana and industrial hemp are different strains of the Cannabis sativa plant. The only mechanism to distinguish hemp plant material from marijuana plant material is to conduct a quantitative analysis to determine the tetrahydrocannabinol (THC) concentration of the plant material. As a result, the department notified its customers and stakeholders on May 23, 2019, that the Duquenois-Levine field tests approved by the department under 6VAC40-50 could only presumptively identify Cannabis sativa plant material. These tests could not distinguish marijuana from industrial hemp. The department subsequently validated and purchased 4-AP (Cannabis Typification) Field Tests for use by law-enforcement agencies. The 4-AP test could not be approved because (i) it was not a Duquenois-Levine field test, and (ii) when used alone, it cannot presumptively identify Cannabis sativa plant material accurately and reliably as is required by the statute. Law-enforcement agencies were instructed to utilize the Duquenois-Levine and 4-AP tests in tandem. The Duquenois-Levine field test was used to determine whether plant material was cannabis, and the 4-AP test determined whether the plant material was more likely to be marijuana and, therefore, should be submitted to the laboratory for analysis. Simple possession of marijuana was then decriminalized by the 2020 General Assembly. In 2021, the General Assembly enacted legislation legalizing the simple possession of marijuana and creating a new statutory framework for offenses related to the possession of over a pound of marijuana and possession by persons younger than 21 years of age. As a result of these changes, and because the Duquenois-Levine field test cannot distinguish between marijuana and hemp, the regulation needs to be amended. While the department is still required under the new law to approve marijuana field tests for use at trial by law-enforcement officers for the prosecution of some marijuana offenses, there are currently no marijuana field tests that are able to independently distinguish industrial hemp from marijuana. Accordingly, the department will need to amend the regulation to allow for the approval of field tests other than Duquenois-Levine field tests and for the possibility of presumptive mobile instruments or other technology that may become available with the ability to identify Cannabis sativa plant material and also distinguish marijuana from industrial hemp. The regulation is still necessary for the protection of public health, safety, and welfare, as the department is still required to approve field tests for the identification of marijuana under § 19.2-188.1 of the Code of Virginia. It provides necessary guidelines for the approval of marijuana field tests.

Substance: The proposed amendments are as follows:

(i) In 6VAC40-50-10, definitions are added for "cannabis plant material" and "industrial hemp"; revisions are made to the definitions of "list of approved marijuana field tests" and "marijuana field test"; and the definition for "marijuana field test kit" is stricken.

(ii) In 6VAC40-50-20, a Code of Virginia citation for underage possession of marijuana is updated.

(iii) In 6VAC40-50-30, amendments establish separate sets of instructions, criteria, and procedures for the approval of chemical tests and mobile instruments that closely parallel the requirements for approval of presumptive mobile instruments in 6VAC40-30-30; both type of field tests must be able to distinguish marijuana from industrial hemp.

(iv) In 6VAC40-50-40, amendments clarify text.

(v) In 6VAC40-50-50, amendments correct a grammatical error and include firmware and software modifications to the list of changes to a marijuana field test that could require reevaluation by the department for continued approval under § 19.2-188.1 of the Code of Virginia.

(vi) In 6VAC40-50-70, marijuana field test kits is stricken.

(vii) In 6VAC40-50-80, the fee for chemical tests is increased due to the need for additional testing to determine if the chemical tests can distinguish between marijuana and industrial hemp and the fee for mobile instruments that are submitted for evaluation is established, which considers the same required testing, in addition to the review of instructions and training materials for the instrument.

Issues: The advantage to the public of this proposed regulatory change is that the department will be able to consider for approval alternative chemical tests or mobile instruments that may become available on the market that are able to distinguish industrial hemp from marijuana. This would allow law enforcement the ability to make such determinations in the field. If suspected plant material tests positive with an approved test, law-enforcement officers would be permitted to testify to this result under § 19.2-188.1 of the Code of Virginia. An accused individual would still have the ability to request laboratory testing under § 19.2-188.1 as well. This supports the goal of public safety. There are no disadvantages for the public.

An advantage for the department of this action is that if the officer were able to testify that the suspected plant material was marijuana at trial for certain civil and misdemeanor offenses (underage possession currently), these cases could go to trial without laboratory analysis unless the accused moved for such analysis. This could potentially reduce cases submitted to the laboratory. There are no disadvantages to the department.

Advantages of the regulatory action for the Commonwealth are providing assistance for law-enforcement officers as they would have the ability to distinguish marijuana from industrial hemp in the field and that § 19.2-188.1 would permit law-enforcement officers to testify to those results in the trial of certain civil and misdemeanor cases (currently underage possession). An accused who wished to have laboratory confirmation of the field test result could move for analysis in front of the trial court.

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 and Executive Order 19. The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Board of Forensic Science (Board) proposes to amend the regulation so that alternative field tests and mobile instruments to detect marijuana may be approved by the Board. Once alternative field tests are approved under the proposed regulation, law-enforcement officials will be legally permitted to testify in court using the test results.

Background. Section 19.2-188.1 B of the Code of Virginia allows law-enforcement officers to testify as to the results of any marijuana field test approved as accurate and reliable by the Department of Forensic Science (DFS) in any trial for a violation of § 4.1-1105 of the Code of Virginia, which prohibits simple possession of marijuana by a person younger than 21 years of age.² The field test would be performed at the time of the arrest to permit law-enforcement officers to determine whether the plant material in the individual's possession exceeds the statutory concentration of tetrahydrocannabinol (THC) and thus meets the statutory definition of marijuana, as defined in § 4.1-600 of the Code of Virginia. This allows for the expeditious handling of these types of violations by the court without the need to wait for the analysis of the plant material by DFS, unless the defendant requests a full chemical analysis.

The regulation currently allows for the approval of Duquenois-Levine field tests to detect Cannabis sativa plant material. However, Duquenois-Levine tests cannot independently distinguish between marijuana and industrial hemp, which are both varieties of the Cannabis sativa plant.³ Thus, although these tests were adequate when the regulation was first written, the legalization of industrial hemp at the federal level in 2018 and subsequent legislation in Virginia made Duquenois-Levine tests obsolete.⁴ DFS notified law-enforcement agencies, prosecutors, defense attorneys, and judges about the legal changes and implications for approved field tests in May 2019. DFS also tested one field test (the 4-AP) that could distinguish marijuana from industrial hemp if used in conjunction with a Duquenois-Levine test.⁵ Currently, according to the agency, there are no individual tests, combination kits, or mobile instruments in wide distribution that can identify Cannabis sativa plant material and determine if it is marijuana or industrial hemp.

DFS also approves field tests for several different substances under § 19.2-188.1 A of the Code of Virginia for preliminary hearing purposes. Some marijuana field tests are approved under that section, but the plant material would be submitted to the laboratory for analysis for purposes of trial.⁶ DFS has indicated that any test approved under this regulation (with the proposed changes) must be able to identify cannabis and distinguish marijuana from hemp.

The most substantive proposed amendments are summarized as follows:

· Definitions (6VAC40-50-10). New definitions would be added for "cannabis plant material" and "industrial hemp," and the definition of "marijuana" would be updated to reflect changes in federal and state law pertaining to cannabis, hemp, and marijuana. Definitions of "list of approved marijuana field tests" and "marijuana field test" would be revised to remove the words "Duquenois-Levine test." The definition of "marijuana field test" would instead specify "chemical test, combination of chemical tests, or mobile instrument," thereby expanding the scope of tests that could be approved. Lastly, the definition of "marijuana field test kit" would be eliminated because it would be made redundant by the changes to "marijuana field test."

· Authority for approval of field tests (6VAC40-50-20). An amendment would be made to reflect the new Code of Virginia provision for underage possession of marijuana as § 4.1-1105.1 of the Code of Virginia.

· Request for evaluation (6VAC40-50-30). Amendments would establish separate sets of instructions, criteria, and procedures for the approval of chemical tests and mobile instruments. (The requirements for mobile instruments closely parallel those for approval of presumptive mobile instruments set out in 6VAC40-30-30.⁷) Another requirement for both type of field tests that would be added is that they must be able to distinguish marijuana from industrial hemp.

For chemical tests, manufacturers would have to supply materials sufficient for at least 20 marijuana field tests (rather than the 10 currently required) so that 10 samples each of marijuana and industrial hemp can be evaluated. Other new requirements include submitting any foundational validation studies, exact specifications as to the chemical composition of all chemicals or reagents, their volume or weight, and the nature of their packaging. For mobile instruments, manufacturers would have to supply two nonsequentially manufactured instruments and supporting materials, including foundational validation studies and training materials, for each model for which the manufacturer requests evaluation. The instruments would be returned to the manufacturers upon completion of the evaluation.

· Maintenance of approved status (6VAC40-50-50). Proposed amendments would include firmware and software modifications to the list of changes to a marijuana field test that could require reevaluation by DFS for continued approval under § 19.2-188.1 of the Code of Virginia.

· Fees (6VAC40-50-80). The fee for chemical testing would be increased from $50 to $100. The proposed amendments would also establish a new fee of $500 payable by manufacturers of mobile instruments to recover the costs involved in evaluating each model of the mobile instrument that DFS considers for approval. As with the doubling of the chemical samples in 6VAC40-50-30, the doubling of the chemical testing fee reflects the fact that DFS will have to separately test 10 samples of marijuana and ten samples of industrial hemp, as opposed to just 10 samples of Cannabis sativa plant material.

DFS reports that the new $500 fee for evaluating mobile instruments was based on the $2,500 fee in 6VAC40-30, which became effective on October 1, 2020, and reflects the amount of time for an evaluator to review all of the materials, including instructions, training, and foundational validation studies, for a mobile instrument. For that regulation, the mobile instruments would have to be tested on multiple street drugs to see if the instrument can effectively identify those drugs. With the marijuana instruments under this regulation, DFS reports that although the examiner would still need to become familiar with the instrument's instructions and use, the testing would only need to be done for marijuana and hemp samples. Thus, DFS scientists and the Board felt that $500 was more appropriate for approval of those instruments for that limited testing. DFS further reported that these fees are not revenue generating for the agency, and only recoup the evaluation costs with staff time invested.

Estimated Benefits and Costs. The proposed amendments would allow DFS to evaluate and authorize field tests that detect marijuana at a sufficient level of accuracy and reliability for the results to be included in legal testimony in a trial. DFS reports that allowing law enforcement the ability to accurately detect marijuana in the field and testify to this result in a trial would support the goal of public safety. Persons accused of marijuana-related offenses who are awaiting trial would still be allowed to request laboratory testing, and law enforcement would still be legally required to inform the accused of their right to do so.

Businesses engaged in developing, producing, and supplying drug tests would be incentivized to develop accurate and reliable tests for marijuana, and would not be limited to Duquenois-Levine tests. Although they would have to pay chemical testing fees and/or mobile instrument testing fees, and supply twice the current quantity of chemical samples for testing, they would stand to generate significant revenues if their products were approved by DFS because approved tests would likely be purchased by law enforcement agencies throughout the state.

DFS also reports that if law-enforcement officers were able to testify that the suspected plant material was marijuana at trial for underage possession, this would allow cases to go to trial more expeditiously than if laboratory analysis were used, unless the accused moved for such analysis. This could potentially reduce the number of cases submitted to the DFS laboratory and the time taken for such cases to go to trial, which may lead to further cost reductions for local jails to the extent that accused individuals spend fewer days in custody awaiting trial. DFS has indicated that a reduction in the cases submitted for laboratory analysis would not disadvantage the agency.

Businesses and Other Entities Affected. As mentioned previously, private businesses that may be working to develop, manufacture, and supply field tests for marijuana would benefit from allowing a broader scope of field tests to be considered for DFS approval. The number of businesses engaged in this area of research and development is currently unknown, but more businesses may enter the market since the scope of allowable tests would be expanded by the proposed changes. The proposed amendments would not impose any costs on these businesses unless they applied for approval. As mentioned previously, any fees and other costs associated with applying for approval would likely be fully recovered if the field test or mobile instrument was approved by DFS because law-enforcement agencies throughout the state would likely purchase them. Other entities that seek to conduct marijuana tests on found samples of cannabis plant material may also purchase these tests if they are widely considered to be more accurate and reliable than the tests currently available on the market.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁸ 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. Even though the proposed amendments increase fees and create a new fee, no business or other entity would be required to pay it unless they chose to apply for DFS approval of a marijuana field test. As discussed, the choice to do so would significantly benefit the applicant if their test was approved.

Small Businesses⁹ Affected:¹⁰

Types and Estimated Number of Small Businesses Affected. Some of the businesses developing these tests may be small businesses. However, the number of businesses, including the number of small businesses, is unknown.

Costs and Other Effects. The proposed amendments would not impose any costs on small businesses unless they sought DFS approval for a field test or mobile instrument.

Alternative Method that Minimizes Adverse Impact. There are no alternatives that would minimize adverse impact and meet the objectives of the regulation.

Localities¹¹ Affected.¹² The proposed amendments do not disproportionally affect particular localities and do not introduce costs for local governments. Consequently, an adverse economic impact¹³ is not indicated for any localities.

Projected Impact on Employment. The proposed amendments are unlikely to impact employment either by DFS or by businesses that make field tests.

Effects on the Use and Value of Private Property. The proposed amendments could increase the value of businesses that develop marijuana field tests and mobile instruments by establishing a legal pathway for them to obtain DFS approval for use in trial testimony. In particular, if a business were to develop such a test and obtain DFS approval, their products would likely be purchased by law-enforcement agencies throughout Virginia, which could yield large profits, depending on whether they faced any competition. The proposed amendments do not affect real estate development costs.

__________________________

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.

²See § 19.2-188.1 B of the Code of Virginia (https://law.lis.virginia.gov/vacode/title19.2/chapter12/section19.2-188.1/) and § 4.1-1105.1 of the Code of Virginia (https://law.lis.virginia.gov/vacode/title4.1/chapter11/section4.1-1105.1/)

³Agency Background Document (ABD), page 2.

⁴See https://www.congress.gov/115/plaws/publ334/PLAW-115publ334.pdf for the federal legalization of industrial hemp. See Chapters 653 and 654 of the 2019 Acts of Assembly for the legalization of industrial hemp and hemp products in Virginia: https://lis.virginia.gov/cgi-bin/legp604.exe?ses=191&typ=bil&val=ch653 and https://lis.virginia.gov/cgi-bin/legp604.exe?ses=191&typ=bil&val=ch654

⁵The ABD (p.3) states that the 4-AP test cannot currently be approved because it is not a Duquenois-Levine test and because, when used alone, it cannot presumptively identify Cannabis sativa plant material accurately and reliably, as required by statute. DFS has clarified that even under the proposed changes, the 4-AP would only be approved for use in conjunction with a Duquenois-Levine test.

⁶The corresponding regulations are in 6VAC40-30 Regulations for the Approval of Field Tests for Detection of Drugs https://law.lis.virginia.gov/admincode/title6/agency40/chapter30/

⁷See footnote 7.

⁸Pursuant 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.

⁹Pursuant 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."

¹⁰If 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.

¹¹"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.

¹²Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹³Adverse 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.

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

Summary:

The proposed amendments broaden the definition of marijuana field test that may be considered by the Department of Forensic Science (DFS) to include a combination of chemical tests or a mobile instrument and to establish the criteria and process by which DFS would approve mobile instruments for the identification of marijuana and include (i) adding and amending definitions; (ii) updating a citation to the Code of Virginia and clarifying regulatory text; (iii) establishing sets of instructions, criteria, and procedures for approving chemical tests and mobile instruments; and (iv) increasing the fee for chemical tests and adding a fee for mobile instruments that are submitted for evaluation.

6VAC40-50-10. Definitions.

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

"Agency" means any federal, state, or local government law-enforcement organization in the Commonwealth.

"Approval authority" means the Director of the Department of Forensic Science or his the director's designee.

"Cannabis plant material" means any part of the plant Cannabis sativa.

"Department" means the Department of Forensic Science.

"Industrial hemp" means industrial hemp as defined in § 3.2-4112 of the Code of Virginia.

"List of approved marijuana field tests" means a list of Duquenois-Levine field tests approved by the department for use by law-enforcement agencies in the Commonwealth and periodically published by the department in the Virginia Register of Regulations in accordance with § 19.2-188.1 of the Code of Virginia.

"Manufacturer" means any entity that makes or assembles marijuana field tests or marijuana field test kits to be used by any law-enforcement officer or agency in the Commonwealth for the purpose of detecting marijuana plant material.

"Manufacturer's instructions and claims" means those testing procedures, requirements, instructions, precautions, and proposed conclusions that are published by the manufacturer and supplied with the marijuana field tests or marijuana field test kits.

"Marijuana" means marijuana as defined in § 18.2-247 § 4.1-600 of the Code of Virginia.

"Marijuana field test" means any Duquenois-Levine chemical test unit, combination of chemical tests, or mobile instrument used outside of a chemical forensic laboratory environment to detect the presence of marijuana plant material.

"Marijuana field test kit" means a combination of individual marijuana field test units.

6VAC40-50-20. Authority for approval.

Section 19.2-188.1 of the Code of Virginia provides that the Department of Forensic Science shall approve marijuana field tests for use by law-enforcement officers to enable them to testify to the results obtained in any trial for a violation of § 18.2-250.1 § 4.1-1105.1 of the Code of Virginia regarding whether or not any plant material, the identity of which is at issue, is marijuana.

6VAC40-50-30. Request for evaluation.

A. Any manufacturer who wishes to submit marijuana field tests or marijuana field test kits for evaluation pursuant to this chapter shall submit a written request for evaluation to the department director at the following address:

B. Materials For chemical tests, materials sufficient for at least 10 20 marijuana field tests shall be supplied by each manufacturer. The materials shall include any foundational validation studies and all instructions, precautions, color charts, flow charts, and the like which that are provided with the marijuana field test or marijuana field test kit and that describe the use and interpretation of the tests. C. The manufacturer shall also include exact specifications as to the chemical composition of all chemicals or reagents, if any, used in the marijuana field tests. These shall include the volume or weight of the chemicals and the nature of their packaging. Material safety Safety data sheets for each chemical or reagent shall be sufficient for this purpose.

C. For mobile instruments, two nonsequentially manufactured instruments and supporting materials shall be supplied for each model for which the manufacturer requests evaluation. These materials shall include all instructions, all training materials regarding the use of the instruments by law enforcement, the instrument specifications, and any foundational validation studies. If the manufacturer provides training for users of the instruments beyond the written instructional materials, such training shall be made available for the evaluation. The instruments shall be returned to the manufacturer upon completion of the evaluation.

D. The department's evaluation process may require up to 90 days from the receipt of the written request and all needed materials from the manufacturer.

E. The department will use marijuana Cannabis plant material, including both marijuana and industrial hemp, to assess those marijuana field tests submitted for evaluation. In order to be approved, the marijuana field test must correctly and consistently react in a clearly observable fashion to the naked eye, and distinguish marijuana from industrial hemp. The field test must perform in accordance with manufacturer's instructions and claims and offer convenience and efficiency in operation as determined by the department.

6VAC40-50-40. Notice of decision.

The department will notify each manufacturer in writing of the approval or disapproval of each marijuana field test for which evaluation was requested. Should any marijuana field test not be approved, the manufacturer may resubmit their its request for evaluation of that marijuana field test according to the previously outlined procedures along with a detailed explanation of all alterations or changes to the test or related instructions or claims since the department's disapproval of the previously submitted test most recent evaluation of the marijuana field test.

6VAC40-50-50. Maintenance of approved status.

The department may require that this evaluation be done as often as annually for routine purposes. If any modifications are made to an approved marijuana field test by the manufacturer, the department shall be notified in writing of the changes. If unreported modifications are discovered by the department, the department may require that evaluations be repeated for the particular manufacturers' manufacturer's approved marijuana field tests. The department shall notify the manufacturer in writing of this requirement. Any modified marijuana field test must be approved before it can be used in accordance with § 19.2-188.1 of the Code of Virginia. These changes shall include, but are not limited to, any chemical, procedural or, instructional, firmware, or software modifications made to the marijuana field test.

6VAC40-50-70. Liability.

A. The department assumes no liability as to the safety of these marijuana field tests or marijuana field test kits, any chemicals contained therein, or the procedures and instructions by which they are used.

B. The department further assumes no responsibility for any misuse or incorrect interpretation of results.

6VAC40-50-80. Fees.

Manufacturers For chemical tests, manufacturers will be charged a fee of $50 $100 for each marijuana field test for which individual evaluation is requested. For mobile instruments, manufacturers will be charged a fee of $500 for each model of the mobile instrument for which evaluation is requested. Manufacturers will also be charged the cost to the department, if any, of obtaining marijuana and industrial hemp samples for the evaluation. The department will review the manufacturer's request and notify the manufacturer in writing of the amount due before evaluation begins. Manufacturers who wish to withdraw a request for evaluation shall immediately notify the department in writing. The department's assessment of the amount of payment required will be based upon a detailed review of the manufacturer's request and that amount will be final. The evaluation process will not be initiated before full payment is made to the Treasurer of Virginia.