Title of Regulation: 2VAC5-670. Rules and Regulations for Enforcement of the Virginia Pesticide Law (adding 2VAC5-670-10 through 2VAC5-670-220).

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

Effective Date: October 10, 2012.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-6559 ext: 1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Summary:

Chapters 803 and 835 of the 2012 Acts of Assembly abolished the Pesticide Control Board and transferred its duties and responsibilities to the Board of Agriculture and Consumer Services. The legislation was a result of a recommendation of Governor McDonnell's Commission on Government Reform and Restructuring. This regulatory action amends the Pesticide Control Board regulations by renumbering the regulations and placing them under the Virginia Department of Agriculture and Consumer Services in the Virginia Administrative Code.

CHAPTER 20 670
RULES AND REGULATIONS FOR ENFORCEMENT OF THE VIRGINIA PESTICIDE LAW

2VAC20-20-10. 2VAC5-670-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. Words used in singular form in this chapter include the plural, and vise versa, as appropriate.

"Active ingredient" means an ingredient which:

1. Is independently capable of:

a. Preventing, destroying, repelling, or mitigating insects, fungi, rodents, weeds, nematodes, or other pests; or

b. Altering through physiological action the behavior of ornamental or crop plants or their produce; or

c. Causing leaves or foliage to drop from a plant; or

d. Artificially accelerating the drying of plant tissue.

2. Is present in the product in an amount sufficient to be effective; and

3. Is not antagonistic to the activity of the principal active ingredients. The commissioner may require an ingredient to be designated as an active ingredient if, in his opinion, it sufficiently increases the effectiveness of the pesticide to warrant such action.

"Commissioner" means the Commissioner of the Department of Agriculture and Consumer Services.

"Herbicide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any weed, including any algae or other aquatic weed.

"Law" means Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia, known as the Virginia Pesticide Control Act.

"Rodent" means any animal of the order Rodentia including, but not limited to, rats, mice, rabbits, gophers, prairie dogs, and squirrels.

2VAC20-20-20. 2VAC5-670-20. Language to be used.

All statements, words, and other information required by the law or by this chapter to appear on the label or labeling of any pesticide shall be in the English language. However, in the case of articles intended solely for distribution to points outside the United States, the appropriate foreign language may be used.

2VAC20-20-30. 2VAC5-670-30. Label.

A. The name and address of the manufacturer shall appear on the label. If the registrant's name appears on the label and the registrant is not the manufacturer, or if the name of the person for whom the pesticide was manufactured appears on the label, it must be qualified by appropriate wording such as "Packed for . . .," "Distributed by.. .," or "Sold by...," to show that the name is not that of the manufacturer.

B. The name, brand, or trademark of the pesticide appearing on the label shall be that under which the pesticide is registered.

C. The net content declaration shall comply with the Weights and Measures Act of Virginia, Chapter 56 (§ 3.2-5600 et seq.) of Title 3.2 of the Code of Virginia and its regulations.

D. Directions for use are required for the protection of the public. The public includes not only users of pesticides, but also those who handle them or may be affected by their use, handling, or storage. Pesticides restricted by this chapter shall be registered only for their permitted uses, and the label shall have a prominent statement to the effect that the product is to be used only as directed. Directions for use are considered necessary in the case of most retail containers, with the following exceptions.

Directions may be omitted:

1. If the pesticide is to be used by manufacturers in their regular manufacturing processes, provided that the label clearly shows that the product is intended for use only in manufacturing processes, and bears an ingredient statement giving the name and percentage of each of the active ingredients.

2. If the pesticide is sold to distributors for dilution or mixing with carriers to prepare pesticides for sale to the public, provided that the label bears an ingredient statement giving the name and percentage of each of the active ingredients; and the pesticide is a well-known substance or mixture of substances; and there is readily available general knowledge of the composition, methods of use, and effectiveness of the product for pesticide purposes.

2VAC20-20-40. 2VAC5-670-40. Ingredient statement.

A. Location of ingredient statement. The ingredient statement shall appear on that part of the label displayed under customary conditions of purchase; except in cases where the commissioner determines that, due to the size or form of the container, a statement on that portion of the label is impractical, and permits the statement to appear on another side or panel of the label. When so permitted, the ingredient statement shall be in larger type and more prominent than would otherwise be required. The ingredient statement shall run parallel with other printed matter on the panel of the label on which it appears, and shall be on a clear contrasting background.

B. Names of ingredients. The well-known common name of the ingredient shall be given or, if the ingredient has no common name, the correct chemical name. If there is no common name and the chemical composition is unknown or complex, the commissioner may permit the use of a new or coined name which he finds to be appropriate for the information and protection of the user. If the use of a new or coined name is permitted, the commissioner may prescribe the terms under which it may be used. A trademark or trade name may not be used as the name of an ingredient, except when it has become a common name.

C. Percentages of ingredients. Percentages of ingredients shall be determined by weight, and the sum of the percentages of the ingredients shall be 100. Sliding scale forms of ingredient statements shall not be used.

D. Designation of ingredients. Active ingredients and inert ingredients shall be so designated, and the term "inert ingredient" shall appear in the same size type and be as prominent as the term "active ingredient".

2VAC20-20-50. 2VAC5-670-50. Pesticides highly toxic to humans.

A. Pesticides which fall within any of the following categories when tested on laboratory animals as specified in subdivisions 1, 2, or 3 of this subsection are highly toxic to humans or contain substances or quantities of substances highly toxic to humans within the meaning of the law. Such pesticides shall be referred to as pesticides highly toxic to humans. Upon application and after an opportunity for a hearing, the commissioner may exempt any pesticide from these requirements which is not highly toxic to humans:

1. Oral toxicity. A pesticide which has single dose LD50 of 50 milligrams or less per kilogram of body weight, when administered orally to both male and female rats which have been fasted for a period of 24 hours (or to other rodent or nonrodent species specified by the commissioner); or

2. Toxicity on inhalation. A pesticide which has an LC50 of 2,000 micrograms or less of dust or mist per liter of air or 200 parts per million or less by volume of a gas or vapor, when administered by continuous inhalation for one hour to both male and female rodent or nonrodent species specified by the commissioner, if he finds that it is reasonably foreseeable that such concentration will be encountered by humans; or

3. Toxicity by skin absorption. A pesticide which has an LD50 of 200 milligrams or less per kilogram of body weight, when administered by continuous contact for 24 hours with the bare skin of rabbits (or other rodent or nonrodent species specified by the commissioner).

B. Test on other species. Tests on other specified rodent or nonrodent species may be required by the commissioner whenever he finds that tests on other species are necessary to determine whether a pesticide is highly toxic to humans.

C. Terms LD50 and LC50. An LD50 as used in connection with oral toxicity and skin absorption toxicity tests is the dose, and LC50 as used in connection with inhalation tests is the concentration, which is expected to cause death within 14 days in 50% of the test animals so treated.

D. Toxicity based on human experience. If the commissioner finds, after an opportunity for hearing, that available data on human experience with any pesticide indicates a greater toxicity than found in the tests on animals, the human data shall take precedence; and if he finds that the protection of the public so requires, the commissioner shall declare such a pesticide to be highly toxic to humans for the purposes of this law and its regulations.

2VAC20-20-60. 2VAC5-670-60. Warning or caution statement.

A. Warning or caution statements which are necessary and, adequate to prevent injury to humans, useful vertebrate, and invertebrate animals, and useful vegetation, must appear on the label in a place sufficiently prominent to warn the user. They shall state clearly and in nontechnical language the particular hazard involved in the use of the pesticide (e.g., ingestion, skin absorption, inhalation, flammability, or explosion), and the precautions to be taken to avoid accident, injury, or damage.

B. The label of every pesticide shall bear warnings or cautions which are necessary for the protection of the public, including the statement, "Keep out of reach of children," and a signal word such as "DANGER," "WARNING," or "CAUTION," which the commissioner may prescribe, on the front panel or that part of the label displayed under customary conditions of purchase. However, the commissioner may permit reasonable variations in the placement of that part of the required warnings and cautions other than the statement "Keep out of reach of children" and the required signal word, if in his opinion such variations would not be injurious to the public. If a pesticide is marketed in channels of trade where the likelihood of contact with children is extremely remote, or if the nature of the product is such that it is likely to be used on infants or small children without causing injury under any reasonably foreseeable conditions, the commissioner may waive the requirements of the statement "Keep out of reach of children." The commissioner may permit a statement such as "Keep away from infants and small children" instead of the statement "Keep out of reach of children," if he determines that such a variation would not be injurious to the public.

C. The label of every pesticide which is highly toxic to humans shall bear the words "DANGER" and "POISON" in red on a contrasting background next to the skull and crossbones, and an antidote statement including directions to call a physician immediately, on the front panel or that part of the label displayed under customary conditions of purchase. However, the commissioner may permit reasonable variations in the placement of the antidote statement if some reference such as "See antidote statement on back panel" appears on the front panel near the word "POISON" and the skull and crossbones.

D. Warning or caution statements which comply with the requirements of the regulations for the enforcement of the Federal Insecticide, Fungicide and Rodenticide Act shall be considered in compliance with the requirements of this chapter.

2VAC20-20-70. 2VAC5-670-70. Registration.

A. Eligibility. Any manufacturer, packer, seller, distributor, or shipper of a pesticide is eligible as a registrant and may register the pesticide.

B. Procedure for registration. Application for registration should be made on the form provided. Application forms will be furnished upon request to the Virginia Department of Agriculture and Consumer Services, Office of Pesticide Services, Post Office Box 1163, Richmond, Virginia 23218. Application should be submitted as far in advance as possible, before the time registration is desired to take effect.

C. Effective date of registration. Registration of a pesticide shall become effective on the date the certificate of registration is issued.

D. Responsibility of a registrant. The registrant is responsible for the accuracy and completeness of all information submitted in connection with his application for registration of a pesticide.

E. Changes in labeling or formula.

1. Changes in the labeling, or formula of a registered pesticide, shall be submitted in advance to the Office of Pesticide Management Services. The registrant shall describe the exact changes desired and the proposed effective date; and upon request, shall submit a description of tests which justify such changes.

2. After the effective date of a change in labeling or formula, the product shall be marketed only under the new label or formula, except that a reasonable time may be permitted by the commissioner to dispose of properly labeled stocks of old products.

F. Claims shall conform to registration. Claims made for a pesticide shall not differ in substance from representations made in connection with registration, including representations with respect to effectiveness, ingredients, directions for use, or pests against which the product is recommended.

2VAC20-20-80. 2VAC5-670-80. Coloration and discoloration.

A. Unless exempted by 2VAC20-20-130 2VAC5-670-130 of this chapter, the white pesticides hereinafter named shall be colored or discolored in compliance with this section. The hues, values, and chromas specified are those contained in the Munsell Book of Color, Munsell Color Company, Baltimore, Maryland.

B. Coloring agent. The coloring agent shall produce a uniformly colored product not subject to change in color beyond the minimum requirements specified in this chapter during ordinary conditions of marketing or storage. They must not cause the product to become ineffective, or cause damage when used as directed.

C. Arsenicals and barium fluosilicate. Standard lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, and barium fluosilicate shall be colored any hue except the yellow-reds and yellows, having a value of not more than eight and a chroma of not less than four, or shall be discolored to a neutral lightness value not over seven.

D. Sodium fluoride and sodium fluosilicate. Sodium fluoride and sodium fluosilicate shall be colored blue or green having a value of not more than eight and a chroma of not less than four, or shall be discolored to a neutral lightness value not over seven.

E. Exceptions. The commissioner, after the opportunity for a hearing, may permit other hues to be used for any particular purpose, if the prescribed hues are not feasible for the purpose, and if this action will not be injurious to the public.

2VAC20-20-90. 2VAC5-670-90. Misbranding; false or misleading statements.

Among representations in the labeling of a pesticide which render it misbranded are the following:

1. A false or misleading statement concerning the composition of the product.

2. A false or misleading statement concerning the effectiveness of the product as a pesticide or device.

3. A false or misleading statement about the value of the product for purposes other than as a pesticide or device.

4. A false or misleading comparison with other pesticides or devices.

5. A false or misleading representation as to the safety of the pesticide or of its ingredients, including a statement such as "nonpoisonous," "noninjurious," or "nonhazardous," unless the product is in fact safe from all conditions.

6. Any statement directly or indirectly implying that the pesticide or device is recommended or endorsed by any agency of this Commonwealth.

7. The name of a pesticide which contains two or more active ingredients, if it suggests the name of one or more but not all such ingredients, even though the names of the other ingredients are stated elsewhere in the labeling.

8. A true statement used in a way which would give a false or misleading impression to the purchaser.

2VAC20-20-100. 2VAC5-670-100. Enforcement.

A. Collection of samples. Samples of pesticides and devices shall be collected by a designated agent. An official representative sample shall be one which is taken by the commissioner or his duly authorized agent. An unbroken original package shall be taken as the official sample where the pesticide is packed in small bottles or small packages. Where the pesticide is packed in large containers, the official sample shall be a portion taken from one original package in a lot.

B. Examination of samples. Methods of sample examination shall be those adopted and published by the Association of Official Analytical Chemists, where applicable, and any other methods necessary to determine if the product complies with the law.

C. Notice of apparent violation.

1. If from an examination or analysis, a pesticide or device appears to be in violation of the law, a written notice shall be sent to the person against whom criminal proceedings are contemplated, giving him an opportunity to offer a written explanation. The notice shall state the manner in which the sample fails to meet the requirements of the law and this chapter.

2. In addition to his reply to the notice, any person may file, within 20 days of receipt of the notice, a written request for an opportunity to present an oral defense.

3. No notice or hearing shall be required prior to the seizure of any pesticide or device.

2VAC20-20-110. 2VAC5-670-110. Notice of judgment.

Publication of court judgments in cases heard under the criminal or seizure provision of the law shall be in the form of notices, circulars, or bulletins as directed by the commissioner.

2VAC20-20-120. 2VAC5-670-120. Products for experimental use.

A. Articles for which no permit is required.

1. A substance or mixture of substances being tested only to determine its value as a pesticide, or to determine its toxicity or other properties, and is not considered a pesticide within the meaning of § 3.2-3900 of the Code of Virginia.

2. A pesticide shipped or delivered for experimental use by or under the supervision of any federal or state agency authorized by law to conduct research in the field of economic poisons shall not be subject to the provisions of the law and this chapter.

B. Articles for which permit is required.

1. A pesticide shipped or delivered for experimental use by other qualified persons shall be exempt from the provisions of the law and of this chapter if a permit is obtained beforehand. Permits may be either, specific or general. A specific permit will be issued to cover a particular shipment on a specified date to a named person. A general permit will be issued to cover more than one shipment over a period of time to different persons.

2. If a pesticide is to be tested for a use which is likely to leave residue on or in food or feed, a permit for shipment or delivery will be issued only when:

a. The food or feed product will only be used as food or feed for laboratory or experimental animals, or

b. Convincing evidence is submitted by the applicant that the proposed use will not produce an amount of residue which would be hazardous to humans or animals.

3. All applications for permits covering shipments for experimental use shall include:

a. Name and address of the shipper and places from which the shipment will be made.

b. Proposed date of shipment or proposed shipping period, not to exceed one year.

c. A statement of the composition of material to be covered by the permit which should apply to a single material or group of closely allied formulations of the material.

d. A statement of the approximate quantity to be shipped.

e. A statement of the nature of the proposed experimental program, including the type of pests or organisms to be experimented with, the crops or animals for which the pesticide is to be used, the areas where the program will be conducted, and the results of previous tests, where necessary, to justify the quantity requested.

f. The percentage of the total quantity specified under subdivision 3 d of this subsection which will be supplied without charge to the user.

g. A statement that the pesticide is intended for experimental use only.

h. Proposed labeling, which must bear:

(1) The prominent statement "For experimental use only" on the container label and any accompanying circular or other labeling,

(2) A warning or caution statement which may be necessary and if complied with, adequate for the protection of those who may handle or be exposed to the experimental substance,

(3) The name and address of the applicant for the permit,

(4) The name or designation of the substance, and

(5) If the pesticide is to be sold, a statement of the names and percentages of the principal active ingredients in the product.

If the shipper submits a copy of the valid experimental permit and accepted labeling issued under the provisions of the Federal Insecticide, Fungicide and Rodenticide Act, the commissioner may exempt the shipper from submitting the data and information specified in subdivisions 3 e through h of this subsection.

4. The commissioner may limit the quantity of a pesticide covered by a permit if the available information on effectiveness, toxicity, or other hazards is not sufficient to justify the scope of the proposed experiment and he may impose other limitations in the permit for the protection of the public.

C. Cancellation of permits. Any permit for shipment for experimental use may be cancelled at any time for any violation of its terms.

2VAC20-20-130. 2VAC5-670-130. Exemption.

Any pesticide specified in 2VAC20-20-80 2VAC5-670-80 of this chapter which is intended solely for use by a textile manufacturer or commercial laundry, cleaner, or dyer as a mothproofing agent, or used in the manufacture or processing or rubber, glue or leather goods, which would not be suitable for such use if colored and which will not come into the hands of the public except when incorporated into a fabric and will not be present in these finished goods in sufficient quantities to cause injury to any person, shall be exempt from the requirements of 2VAC20-20-80 2VAC5-670-80.

2VAC20-20-140. 2VAC5-670-140. Declaration of pests.

In addition to those pests defined in Article 1 of the law, the commissioner hereby declares as pests the following forms of plant and animal life and viruses:

1. Mammals, including but not limited to dogs, cats, moles, bats, wild carnivores, armadillos, and deer;

2. Birds, including but not limited to starlings, English sparrows, crows, and blackbirds;

3. Fishes, including but not limited to the jawless fishes such as the sea lamprey, the cartilaginous fishes such as the sharks, and the bony fishes such as the carp;

4. Amphibians and reptiles, including but not limited to poisonous snakes;

5. Aquatic and terrestrial invertebrates, including but not limited to slugs, snails, and crayfish;

6. Roots and other plant parts growing where not wanted;

7. Viruses, other than those on or in humans or animals.

2VAC20-20-150. 2VAC5-670-150. Handling and storage.

No person shall handle, transport, store, display, or distribute pesticides in a manner which may endanger humans and the environment, or food, feed, or any other products that may be transported, stored, displayed, or distributed with the pesticides.

2VAC20-20-160. 2VAC5-670-160. Disposal.

No person shall dispose of, discard, or store any pesticides or pesticide containers in a manner which may cause injury to humans, vegetation, crops, livestock, wildlife, pollinating insects, or pollute any water supply or waterway.

2VAC20-20-170. 2VAC5-670-170. Application and equipment.

A. No person shall apply, dispense, or use any pesticide in or through any equipment or application apparatus unless the equipment or apparatus is in sound mechanical condition and capable of satisfactory operation. All pesticide application equipment shall be properly equipped to dispense the proper amount of material. All pesticide mixing, storage, or holding tanks, whether on application equipment or not, shall be leakproof. All spray distribution systems shall be leakproof, and any pumps which these systems may have shall be capable of operating at sufficient pressure to assure a uniform and adequate rate of discharge.

B. All pesticide application equipment shall be equipped with cut-off valves and discharge orifices to enable the operator to pass over nontarget areas without contaminating them. All hoses, pumps, or other equipment used to fill pesticide handling, storage, or application equipment shall be fitted with an effective valve or device to prevent backflow into water supply systems, streams, lakes, other sources of water, or other materials. However, these backflow devices or valves are not required for separate water storage tanks used to fill agricultural pesticide application equipment by gravity systems when the fill spout, tube, or pipe is not allowed to contact or fall below the water level of the application equipment being filled, and no other possible means of establishing a backsiphon or backflow exists.

2VAC20-20-180. 2VAC5-670-180. Cancellation authority.

All pesticides which have been cancelled or suspended by the United States Government are subject to cancellation in Virginia. No registration shall be revoked or refused until the registrant has been given an opportunity for a hearing by the commissioner. Any appeal of cancellation at the federal level shall not affect cancellation proceedings with this Commonwealth.

2VAC20-20-190. 2VAC5-670-190. Restricted pesticides.

Unless otherwise specified, federally permitted uses of pesticides will be permitted in Virginia.

2VAC20-20-200. 2VAC5-670-200. Additional requirements for highly hazardous pesticides.

When the commissioner has evidence that the use of any highly hazardous pesticide will significantly affect the quality of the environment or the health and safety of individual users, nontarget species, or a geographic area, he shall, with the approval of the board, control the distribution, sale and use of the substance by employing one or more of the following regulatory procedures:

1. Registration of sellers and users;

2. Records and reports on quantities sold and used;

3. Sales and use permits;

4. Certification of compliance to approved label precautions; and

5. Approved supervision of use.

2VAC20-20-210. 2VAC5-670-210. Service container labeling.

Containers other than the original registrant's or manufacturer's containers used for the temporary storage or transportation of pesticide concentrates or end-use dilutions, shall bear abbreviated labeling as elaborated below:

PESTICIDE CONCENTRATE

A. If the pesticide to be temporarily stored or transported is a concentrate to be further diluted, the container shall bear a securely attached label with the following information:

1. Product name (brand names from product label);

2. EPA registration number (from product label);

3. Name and percentage of active ingredient(s) from the product label; and

4. Appropriate signal word; i.e., Poison, Danger, Warning, Caution (from product label).

B. The above labeling is required for concentrate service containers, regardless of container type, size, or capacity.

PESTICIDE END-USE DILUTIONS OR END-USE CONCENTRATES

A. If the pesticide to be temporarily stored or transported is to be applied without further dilution, the container shall bear a securely attached label with the following information:

1. Product name (brand name from product label) preceded by the word "Diluted" or "End-Use Concentrate";

2. EPA registration number from concentrate product label;

3. Name of active ingredient(s) and percentage(s) of end-use dilution; and

4. Appropriate signal word: i.e., Poison, Danger, Warning, Caution (from product label).

B. Abbreviated labeling is not required for the following:

1. End-use dilution containers not exceeding three gallons liquid or three pounds dry capacity, when such containers are used as application devices; i.e., hand-held sprayers, dusters, puffers, etc.

2. Containers used by farm supply dealers for the temporary storage or transportation of pesticide concentrate or end-use dilutions, provided that sales invoices or delivery tickets adequately identifying the pesticide(s) accompany each shipment or delivery.

3. On farm concentrate or end-use dilution containers or application equipment used for the temporary storage or transportation of such pesticides for agricultural use.

4. Aircraft-mounted containers used for temporary storage or transportation of concentrate or end-use dilution pesticides, provided that aircraft logs or other documents adequately identifying the pesticide(s) accompany the aircraft.

2VAC20-20-220. 2VAC5-670-220. Mixtures.

A. General sale. Regardless of type container mixtures of pesticides with fertilizers or with other pesticides, when offered for general sale to the public shall be registered prior to sale, distribution, or use. In addition, any pesticide/fertilizer mixture shall be registered or labeled as required by the Virginia Fertilizer Law. All bulk containers shall bear the registered pesticide product label and a copy of the label shall accompany each shipment or delivery.

B. Custom mixtures. Pesticides may be mixed with fertilizers or with other pesticides without label registration when the pesticide product is duly registered, and when such mixtures are not prohibited by the registered pesticide label.

C. When these mixtures are intended for the production of agricultural commodities, the person making the mixtures shall provide the following written or printed information to the applicator or customer:

1. Brand name(s) and EPA registration no.(s) of pesticide product(s);

2. Percentage(s) by weight of active ingredient(s);

3. Directions for application, use, harvest limitations and cropping restrictions; and

4. Precautionary and warning statements sufficient to ensure proper, safe use, and disposal of the mixture.

D. The registered pesticide product label(s) will suffice. All such labeling shall be subject to approval by the commissioner.

FORMS (2VAC20-20) (2VAC5-670)

Application for Pesticide Product Registration Form, VDACS-07208 (rev. 09/06)

Application for New Pesticide Product Registration Form, VDACS 07208 (rev. 7/12).