TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Proposed Regulation

Title of Regulation: 2VAC5-455. Regulations for Tradespersons Installing Invasive Plant Species (adding 2VAC5-455-10, 2VAC5-455-20, 2VAC5-455-30).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 11, 2025.

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.

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 3.2-802 of the Code of Virginia directs the board to develop and adopt regulations requiring tradespersons involved with proposing or installing plants to provide written notification to property owners for all plants proposed for installation that are included on the list of invasive plants established pursuant to § 10.1-104.6:2 of the Code of Virginia.

Purpose: The proposed regulation addresses the concern that homeowners may be unaware that plants being installed on their property could have invasive characteristics. Several commonly used landscape plants are included on the Department of Conservation and Recreation list and, when not properly managed, can be challenging and costly to control. Such plants may impact the property owner or adjacent properties if the plants escape containment or respective planting. Invasive plants also have the potential to negatively impact native ecosystems, and property owners may be less inclined to install such plants if made aware of the invasive characteristics of the plants. Notification enables consumers to make an informed decision regarding invasive plants proposed for installation on consumer property and assists in protecting consumer economic welfare.

Substance: The proposed regulation requires that (i) a tradesperson notify a property owner in writing at the time of a proposal to install an invasive plant species or prior to the installation of an invasive plant species on the property; (ii) specific information be included on the notification; and (iii) a tradesperson maintain documentation of notifications for at least two years from the date a proposal is accepted or from the date of installation. The regulation also establishes definitions for the terms "tradesperson," "notification," and "proposal" to clarify the scope of persons and activities to which the regulation applies.

Issues: The primary advantage of the proposed regulation is that compliance with this regulation will result in consumers receiving information regarding invasive plants being planted on their property. This will increase awareness about invasive plants among the public and potentially reduce the negative impact that could result from the spread of invasive plants. The primary means by which this regulation will be enforced is through a complaint-based mechanism. The agency will conduct an inspection of the tradesperson's records to verify whether notification was given and received. The advantage of this approach to the agency and to the public is that it will not require tradespersons to be registered or routinely inspected by the agency, which saves time and money for both the agency and the public. Only companies that grow or sell nursery stock, which are not "tradespersons" under this proposed regulation, are required to be registered with the agency currently, so the agency is not able to calculate or estimate how many individuals will need to comply with this proposed regulation. The disadvantage to this approach is that the agency may not know whether a tradesperson is out of compliance with the regulation and may not have knowledge of all instances of violations of this regulation, making uniform enforcement difficult. There are no disadvantages to the public.

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 Resources (board) seeks to adopt a new regulation as required by Chapter 153 of the 2023 Acts of Assembly. The regulation would require tradespersons who are in involved with proposing or installing plants to provide a written notification to property owners for all plants proposed for installation that are included on the list of invasive plants established by the Department of Conservation and Recreation (DCR).

Background. Chapter 153 of the 2023 Acts of Assembly directed DCR to create a list of invasive plant species² no later than January 1, 2024, and directed the board to develop and adopt regulations requiring tradespersons involved with proposing or installing plants to provide written notification to property owners for all plants proposed for installation that are included on the list of invasive plants established in § 10.1-104.6:2 of the Code of Virginia.³ Accordingly, the proposed regulation would (i) define key terms, including invasive plant species, installation, and tradesperson;⁴ (ii) specify the intended recipient, the timing, and the contents of the required notification; and (iii) require tradespersons who propose and install plants to maintain a copy of the notification for two years, and to make such copies available for inspection by the Commissioner of the Virginia Department of Agriculture and Consumer Services (VDACS) upon request.

Estimated Benefits and Costs. VDACS reports that there are several commonly used landscape plants that are included on DCR's list and, when not properly managed, can be challenging or costly to control. Such plants could impact the property owner and, if allowed to grow uncontrolled, could impact neighboring properties as well. Invasive plants also have the potential to negatively impact native ecosystems by replacing native species of plants and reducing food sources and habitat for native wildlife. The proposed regulation would benefit property owners by informing them that certain plants being proposed or installed on their property are invasive. The required notification may further benefit property owners, neighboring landowners, as well as the native ecosystem if the owners decide not to install the invasive species and instead work with the tradesperson to use native plants or other alternatives. Tradespersons, defined as any person who, for compensation, proposes plants for installation, or installs plants, would incur some costs to (i) provide the written notification for each instance that they propose or install one or more plants on DCR's invasive species list and (ii) maintain a record of having provided the notification for at least two years. Under this definition, tradespersons would include landscape architects and landscape designers, who may propose certain plants but are likely to be subcontracted and may not directly interact with the property owner, as well as landscaping businesses, contract grounds maintenance crews, or other individuals who directly install plants. VDACS reports that such individuals are not currently required to be registered with the agency and may not be aware of the legislation and proposed regulation. Thus, both the level of compliance as well as the costs of compliance are difficult to estimate. VDACS intends to provide information about this regulation on its website and perform outreach. In addition, VDACS reports that the enforcement of this regulation will also be driven by reports of noncompliance, which they intend to investigate and, at least initially, remedy by educating the individuals involved on the requirements.

Businesses and Other Entities Affected. The proposed regulation would affect all individuals and entities who, for compensation, propose or install plants. Such tradespersons would include landscape architects, who are licensed by the Department of Professional and Occupational Regulation (DPOR); DPOR reports that there were 984 licensed landscape architects as of December 2024.⁵ In addition, as mentioned previously, landscape designers, landscaping businesses, contract ground maintenance crews, and other individuals who meet the definition of a tradesperson would also be affected by the proposed requirements to the extent that they propose or install plants that are on DCR's invasive species list. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ 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.⁷ The proposed regulation would include new requirements for individuals and businesses, for which they will likely incur some cost. However, the proposed requirements directly stem from the legislative mandate. Thus, an adverse impact from the regulatory proposal is not indicated.

Small Businesses⁸ Affected.⁹ The proposed amendments create new costs for tradespersons who propose or install plants on DCR's invasive species list. However, as mentioned previously, any such costs arise from the legislative mandate.

Types and Estimated Number of Small Businesses Affected. As mentioned previously, VDACS does not have an estimate on the total number of tradespersons that would be affected.

Costs and Other Effects. Tradespersons affected by the proposed requirements would incur costs relating to (i) providing the required notification and (ii) maintaining a record of notifications provided for two years.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals. For instance, VDACS could remove the recordkeeping requirement, since it is not directly mentioned in statute; however, this would make it impossible to determine noncompliance and would prevent enforcement of the statutory requirements.

Localities¹⁰ Affected.¹¹ The proposed regulation does not disproportionately affect particular localities or affect costs for local governments.

Projected Impact on Employment. The proposed regulation is unlikely to affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation could increase the value of private property to the extent that the newly required notification enables owners to either anticipate the risks of invasive plants to their property or neighboring properties and take measures to control them or else avoid installing them on the property altogether. The proposed regulation may also decrease real estate development costs to the extent that developers in receipt of a notification choose to avoid installing invasive species.

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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 See https://www.dcr.virginia.gov/natural-heritage/invsppdflist. See also https://www.invasivespeciesva.org/about-working-group.

³ See https://legacylis.virginia.gov/cgi-bin/legp604.exe?231+ful+CHAP0153.

⁴ The definition of invasive plant species would directly refer to the DCR list, which can be found at https://www.dcr.virginia.gov/natural-heritage/invsppdflist.

⁵ Source: https://www.dpor.virginia.gov/sites/default/files/Records and Documents/reg_pop.pdf.

⁶ Pursuant to § 2.2-4007.04 D of the Code of Virginia, 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.

⁷ 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.

⁸ 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.

⁹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 of the Code of Virginia 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.

¹⁰ 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.

¹¹ Section 2.2-4007.04 of the Code of Virginia defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

Pursuant to Chapter 153 of the 2023 Acts of Assembly, the proposed amendments (i) establish definitions for "tradesperson," "notification," and "proposal," along with other important terms that define who is responsible for notifying property owners and under what circumstances; (ii) require a tradesperson to notify a property owner in writing at the time the tradesperson proposes to install an invasive plant species or prior to the installation of an invasive plant species on the property; (iii) require specific information to be included on the notification; and (iv) require a tradesperson to maintain documentation of notifications for at least two years from the date a proposal is accepted or from the date of installation.

Chapter 455

Regulations for Tradespersons Installing Invasive Plant Species

2VAC5-455-10. Definitions.

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

"Installing" or "installation" means the placement, replacement, or otherwise planting of outdoor plants.

"Invasive plant species" means a plant species included on the Virginia Invasive Plant Species List, established pursuant to § 10.1-104.6:2 of the Code of Virginia and maintained by the Virginia Department of Conservation and Recreation.

"Notification" means a communication provided by a tradesperson at the time of delivery of a proposal that includes an invasive plant species or prior to the installation of any invasive plant species that is acknowledged in writing by the property owner, manager, custodian, or other person responsible for the property on which an invasive plant species is proposed to be installed or is installed.

"Proposal" means a written landscape design plan.

"Propose" means to provide a proposal to a property owner, manager, custodian, or other person responsible for a property.

"Tradesperson" means any person who, for compensation, proposes plants for installation or installs plants.

2VAC5-455-20. Notification requirements.

A. A tradesperson shall provide written notification to the property owner, manager, custodian, or other person responsible for the property when the tradesperson proposes for installation or installs an invasive plant species.

B. A tradesperson who is required to provide notification pursuant to subsection A of this section shall provide the notification (i) at the time that the tradesperson proposes an invasive plant species for installation or (ii) prior to the installation of an invasive plant species. However, if the tradesperson who proposes an invasive plant species also installs the proposed invasive plant species, notification is only required at the time that the tradesperson proposes the invasive plant species.

C. A notification shall:

1. List each invasive plant species proposed for installation or being installed, identify the species as invasive, and state the invasiveness rank of the species on the Virginia Invasive Plant Species List; and

2. State that general information on the characteristics and management of invasive plant species is available in Virginia Cooperative Extension's Exotic Invasive Plants publication.

2VAC5-455-30. Recordkeeping.

A. A tradesperson who proposes plants for installation shall maintain a copy of the notification provided to a property owner, manager, custodian, or other person responsible for the property for a period of not less than two years from the date on which a proposal is accepted.

B. A tradesperson who installs plants shall maintain a copy of the notification provided to a property owner, manager, custodian, or other person responsible for the property for a period of not less than two years from the date of the installation of an invasive plant species.

C. A tradesperson shall make notifications that the tradesperson provides pursuant to this chapter available for inspection by the Commissioner of Agriculture and Consumer Services upon request.