TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Fast-Track Regulation

Title of Regulation: 2VAC5-675. Regulations Governing Pesticide Fees Charged by the Department of Agriculture and Consumer Services (amending 2VAC5-675-30, 2VAC5-675-40, 2VAC5-675-50).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: December 18, 2024.

Effective Date: January 2, 2025.

Agency Contact: Nicole Wilkins, 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 nicole.wilkins@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 3.2-3906 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 department has determined that current fees provide more than adequate funding for implementation of the Department of Agriculture and Consumer Services (VDACS) pesticide program. The fees prescribed in 2VAC5-675 are utilized to operate VDACS 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. VDACS is able to ensure compliance with all applicable laws and regulations related to the use of pesticides, thereby protecting human health, while lowering the fees for commercial applicator certifications, pesticide business licenses, and registered technician certifications, which will support the economic welfare of the businesses currently responsible for paying these fees.

Rationale for Using Fast-Track Rulemaking Process: The proposed amendments lower the fees for commercial applicator certifications, pesticide business licenses, and registered technician certifications and, as such, are expected to be noncontroversial and appropriate for the fast-track rulemaking process.

Substance: The proposed amendments will lower the fees for (i) commercial applicator certifications from $100 to $25, (ii) commercial applicator certification reexaminations from $100 to $25, (iii) additional categories or subcategories for commercial applicator certifications from $35 to $25, (iv) registered technician certifications from $50 to $25, (v) registered technician certification reexaminations from $50 to $25, and (vi) annual pesticide business licenses from $150 to $75.

Issues: The proposed regulatory action is advantageous to the public and to the regulated industry because the proposed action will reduce the costs to pesticide applicators and pesticide businesses while allowing the VDACS pesticide program to continue protecting public health and the environment. Lowering the pesticide applicator fees and business license fees does not add any additional regulatory requirements for pesticide applicators or pesticide businesses. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget 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 the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (board) proposes to reduce fees for commercial applicators,² registered technicians,³ and pesticide businesses.

Background. According to the Virginia Department of Agriculture and Consumer Services (VDACS), the proposed amendments would align the pesticide-related fees that VDACS collects with its costs to administer the pesticide program. The current fees and the board's proposed fees are in the following table:

Estimated Benefits and Costs. Pesticide businesses, commercial applicators, and registered technicians would benefit from the lower fees. VDACS estimates that the lower fees would result in an annual reduction of $450,750 in revenue.

Businesses and Other Entities Affected. The proposed amendments would affect the 3,000 licensed pesticide businesses and 22,600 certified pesticide applicators, including both commercial applicators and registered technicians, in the Commonwealth.⁴ VDACS estimates that the vast majority of the licensed businesses are small businesses. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁶ As the proposal neither increases net costs nor reduces net benefit, no adverse impact is indicated.

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

Localities⁹ Affected.¹⁰ The proposed amendments may disproportionately affect agriculturally oriented localities. The proposal does not increase costs for local governments.

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 lower fees would very moderately increase the value of pesticide businesses. The proposed amendments do not affect real estate development costs.

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¹ Section 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.

² Section 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."

³ Section 3.2-3900 of the Code of Virginia 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."

⁴ Data source: VDACS.

⁵ Pursuant 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.

⁶ 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁷ Pursuant 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."

⁸ If 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 Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Department of Agriculture and Consumer Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments lower the fees for commercial applicator certifications, pesticide business licenses, and registered technician 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 $25. All certificates shall expire 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 an application for renewal submitted by June 30. 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 $25 and shall be nonrefundable. Any person applying to add a category or subcategory to his a certificate shall pay to the department a nonrefundable fee of $35 $25. 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 $25. All certificates shall expire 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 an application for renewal submitted by June 30. 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 $25 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 $150 $75 for each location or outlet that it operates. All business licenses will expire at midnight on March 31 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 that 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 Registration and Additional Information and Instructions, VDACS-07208 (rev. 7/2019)

Application for Virginia Pesticide Business License to sell, distribute, store, apply, or recommend pesticides for use, VDACS-07209 (rev. 7/2019)

Application for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator Categories, VDACS-07210 (rev. 7/2019)

Commercial Pesticide Applicator Certification Application/Eligibility Requirements for Commercial Applicator Certification, VDACS-07211 (rev. 7/2019)

Pesticide Registered Technician Application/General Training Requirements for Registered Technicians, VDACS-07212A (rev. 7/2019)

Pesticide Registered Technician Request for Authorization to Take Pesticide Applicator Examination, VDACS-07212B (rev. 7/2019)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination/Commercial Pesticide Applicator Categories, VDACS-07218 (rev. 7/2019)

Application for Reciprocal Pesticide Applicator Certificate and Commercial Pesticide Applicator Categories, VDACS-07210 (eff. 1/2025)

Application for Renewal of Pesticide Business License, VDACS-07209-B (eff. 1/2025)

Application for Virginia Pesticide Business License to Sell, Distribute, Store, Apply, or Recommend Pesticides for Use, VDACS-07209-A (eff. 1/2025)

Applicator Change of Information (eff. 1/2025)

Commercial Pesticide Applicator Certification Application and Eligibility Requirements for Commercial Applicator Certification, VDACS-07211 (eff. 1/2025)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination and Commercial Pesticide Applicator Categories, VDACS-07218 (eff. 1/2025)

Instructions for Completing the Application for Commercial Pesticide Applicator Certification (eff. 1/2025)

Instructions for Completing the Application for Registered Technician Certification (eff. 1/2025)

Pesticide Registered Technician Application and General Training Requirements for Registered Technicians, VDACS-07212A (eff. 1/2025)

Pesticide Registered Technician Request for Authorization to Take Pesticide Applicator Examination, VDACS-07212B (eff. 1/2025)

Request to Take the Virginia Pesticide Business License Examination (eff. 1/2025)