Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (adding 2VAC5-317-10 through 2VAC5-317-100).

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

Public Hearing Information:

July 29, 2013 - 2 p.m. - Virginia Horse Center, Anderson Coliseum, Mezzanine, 487 Maury River Road, Lexington, VA

Public Comment Deadline: September 13, 2013.

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

Basis: Section 3.2-109 of the Code of Virginia authorizes the board to adopt regulations in accordance with Title 3.2 of the Code of Virginia regarding agriculture, animal care, and food.

The department administers the provisions of the Noxious Weeds Law (§ 3.2-800 et seq. of the Code of Virginia). Section 3.2-802 of the Code of Virginia authorizes the board to establish regulations under which certain plants can be listed as noxious weeds. Moreover, the board may adopt regulations pertaining to regulated articles and conditions for their movement, under which the commissioner may proceed to conduct eradication or suppression activities to prevent the dissemination of noxious weeds in the Commonwealth. The board may also adopt regulations governing the movement of regulated articles entering the Commonwealth from other locations.

Purpose: The proposed regulation is necessary to protect the Commonwealth's agricultural and natural resources from the detrimental impact of noxious weeds. Listed noxious weeds are non-native exotic plants with very few or no natural predators or existing environmental conditions to control their rapid rate of growth. As a result, noxious weeds can grow rapidly and displace native plants. In addition, the habitat of wildlife can be altered as these plants invariably change the ecosystem by competing with and displacing native plants.

Eradication of noxious weeds may not be feasible once populations have become established and widespread. This regulation will allow the Commonwealth to conduct activities to prevent the establishment of listed noxious weeds in Virginia. As the establishment of a noxious weed can lead to significant economic losses due to associated eradication and control costs, this regulation will also assist in protecting the economic welfare of citizens.

Substance: The proposed regulation establishes two tiers of noxious weeds. The distinction between the two tiers of noxious weeds depends on whether eradication of the listed plants is likely. The regulation provides that the Commissioner of the Department of Agriculture and Consumer Services may conduct eradication or suppression activities to prevent the dissemination of a Tier 1 noxious weed. Tier 2 noxious weeds are those for which successful suppression is feasible, but for which eradication is unlikely.

Under the proposed regulation, the movement of a listed noxious weed or any article known to be infested with a noxious weed is prohibited, unless the Virginia Department of Agriculture and Consumer Services (VDACS) issues a certificate or permit for the movement of the noxious weed. The regulation also establishes conditions under which VDACS may issue a certificate or permit.

The regulation provides a list of eradication or suppression activities the commissioner may conduct to prevent the dissemination of a Tier 1 noxious weed.

The regulation establishes a Noxious Weeds Advisory Committee to advise the commissioner on those plants it recommends for declaration as noxious weeds or for delisting.

Issues: The primary advantage of the proposed regulation is the protection of the Commonwealth's agricultural and natural resources from the detrimental impact of noxious weeds. The proposed regulation poses no disadvantages to the public or the Commonwealth.

The agency anticipates implementing a science-based assessment of possible plants for listing as noxious weeds that will facilitate consensus among affected interest groups.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Regulation. The Virginia Department of Agriculture and Consumer Services (VDACS) proposes to promulgate new regulations to enforce the noxious weeds law passed by the General Assembly in 1970. In these regulations, VDACS will:

1. Create a definitions section for terms used throughout the regulation including a definition of noxious weed,

2. Establish two tiers of noxious weeds: Tier 1 weeds could likely be eradicated or suppressed, while Tier 2 weeds would be more likely to be suppressed rather than eradicated,

3. Prohibit the movement of a listed noxious weed, or any article known to be infested with a noxious weed, unless VDACS issues a permit for such movement,

4. Establish conditions that must be satisfied before VDACS would issue a permit for the movement of noxious weeds,

5. Mandate that the limited permit be applied for no fewer than five business days before the regulated article is to be moved,

6. Require that the regulated article be assembled in accordance with what the inspector deems necessary to facilitate inspection,

7. Establish requirements for the attachment of a certificate or permit to the article being moved. This would include a shippers retention requirement at the place of the shipment, and

8. Authorize VDACS inspectors to stop and inspect, and to seize, destroy, or otherwise dispose of, articles regulated under these proposed regulations. This authorization repeats powers that agents of the VDACS Commissioner more generally have been given by Code of Virginia § 3.2-805.

Result of Analysis. There is insufficient information to ascertain whether benefits will outweigh costs for this regulatory action.

Estimated Economic Impact. As allowed by § 3.2-802 of the Code of Virginia, the Virginia Department of Agriculture and Consumer Services (VDACS) proposes to promulgate new regulations to prevent plants on the noxious weeds list from taking hold through regulation of movement of such plants and eradication or suppression efforts. With these regulations, the Board proposes to set a list of plants that qualify as noxious weeds, prohibit the movement of listed plants into, out of or within the state without a permit issued by a VDACS inspector. The Board also proposes to set criteria for issuance of permits which include that the plants to be moved are packaged and handled in such a way that movement will not spread the plant, that any additional conditions that the inspector deems necessary to minimize the risk of spreading the plant are followed and that the plant is not subject to any other quarantines within the state.

VDACS reports that they do not charge fees for their inspection of noxious weeds and/or other items that may be infested by noxious weeds nor do they charge a fee for the permits that will be required to transport noxious weeds or "any article or means of conveyance known to be infested or determined by an inspector to present a risk of spreading a listed noxious weed". Entities would likely incur some costs for time spent applying for permits and facilitating inspections. VDACS further reports that, at this time, they do not have the power to fine entities that move regulated items without the required permit (although the Commissioner of VDACS or his designee may, according to § 3.2-805, "stop delivery, stop sale, seize, destroy, treat, or order returned to the point of origin, at the owner's expense, any noxious weed, article, or substance whatsoever, if transported or moved within the Commonwealth, or if existing on any premise, or brought into the Commonwealth from any place outside thereof, if such is found by him to be infested with any noxious weed"). Plants that are on the noxious weeds list that are being transported into the state would be inspected in the originating state by that state's Department of Agriculture, which may charge a fee for that service. Additionally, affected entities may incur costs associated with eradicating or suppressing noxious weeds found on their land and may incur loss of income if otherwise salable items, including agricultural products, are determined to be infested with, or at risk of spreading, a listed noxious weed. In this case, these items would not be able to be transported or sold so the owner of these items would lose the value that he would have otherwise gained from that sale. These costs may be weighed against the benefit of eradicating completely or controlling the spread of plants that have been deemed noxious weeds. As these are new regulations, there is insufficient information to measure the magnitude of costs and benefits for this proposed regulatory action.

Businesses and Entities Affected. VDACS believes that mainly landowners may be affected by these proposed regulations.

Localities Particularly Affected. No locality is likely to be particularly affected by these proposed regulations.

Projected Impact on Employment. There is currently insufficient information to project the impact that these proposed regulations may have on employment in the Commonwealth.

Effects on the Use and Value of Private Property. Individuals whose land is determined to be infested with a noxious weed may see the value of that land fall, at least temporarily, until eradication or suppression efforts can be undertaken.

Small Businesses: Costs and Other Effects. To the extent that these regulations lead to the quarantine of otherwise salable items that have been determined by VDACS to either be infested with a noxious weed or to present a risk of spreading a noxious weed, the individuals or businesses that own those items would likely lose their value.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There is likely no alternate method for meeting VDACS' goals that would further minimize costs.

Real Estate Development Costs. To the extent that undeveloped real estate is infested with a noxious weed, real estate development costs may increase because land owners would likely be responsible for the costs of eradication or suppression: VDACS might undertake eradication/suppression actions but the agency would decide on a case by case basis whether to do so. Owners of affected land would likely also incur implicit and explicit costs (costs for rental equipment sitting idle, for instance) associated with delays in their schedule for development.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Agriculture and Consumer Services concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed regulation seeks to eradicate, suppress, and prevent the dissemination of noxious weeds in the Commonwealth by (i) establishing a two-tier list of plants deemed by the Board of Agriculture and Consumer Services to be noxious weeds, (ii) prohibiting the movement of noxious weeds or articles capable of transporting noxious weeds into or within the Commonwealth, and (iii) identifying eradication activities for certain noxious weeds.

CHAPTER 317
REGULATIONS FOR THE ENFORCEMENT OF THE NOXIOUS WEEDS LAW

2VAC5-317-10. Definitions.

The following words and terms shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Business day" means a day that is not a Saturday, Sunday, or legal holiday, or a day on which state government offices are closed.

"Certificate" means a document issued by an inspector or by a person operating in accordance with a compliance agreement to allow the movement of regulated articles to any destination.

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

"Compliance agreement" means a written agreement between a person engaged in handling, receiving, or moving regulated articles and the Virginia Department of Agriculture and Consumer Services or the United States Department of Agriculture, or both, wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this chapter.

"Consignee" means any person to whom any regulated article is shipped for handling, sale, resale, or any other purpose.

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

"Infested" or "infestation" means the presence of a listed noxious weed or the existence of circumstances that make it reasonable to believe that life stages of a listed noxious weed are present.

"Inspector" means an employee of the Virginia Department of Agriculture and Consumer Services or other person authorized by the Commissioner of the Virginia Department of Agriculture and Consumer Services to enforce the provisions of this chapter.

"Limited permit" means a document issued by an inspector to allow the movement of regulated articles to a specific destination.

"Listed noxious weed" means any plant listed in this chapter as either a Tier 1 or Tier 2 noxious weed.

"Move," "moved," or "movement" means shipped, offered for shipment, received for transportation, transported, carried, or allowed to be moved, shipped, transported, or carried.

"Noxious weed" means the term as defined in § 3.2-800 of the Code of Virginia.

"Noxious Weeds Law" means the statute set forth in § 3.2-800 et seq. of the Code of Virginia.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated article" means any listed noxious weed or any article or means of conveyance known to be infested or determined by an inspector to present a risk of spreading a listed noxious weed.

"Tier 1 noxious weed" means any noxious weed that is not native to the Commonwealth that (i) has no known populations present in the Commonwealth or (ii) is not widely disseminated in the Commonwealth and for which successful eradication or suppression is likely.

"Tier 2 noxious weed" means any noxious weed that (i) is not native to the Commonwealth, (ii) is not widely disseminated in the Commonwealth, and (iii) for which successful suppression is feasible but eradication is unlikely.

"Waybill" means a document containing the details of a shipment of goods.

2VAC5-317-20. Tier 1 and Tier 2 noxious weeds.

A. The following plants are hereby declared Tier 1 noxious weeds:

1. Vitex rotundifolia, Beach vitex.

2. Salvinia molesta, Giant salvinia.

3. Solanum viarum, Tropical soda apple.

4. Heracleum mantegazzianum, Giant hogweed.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

B. The following plants are hereby declared Tier 2 noxious weeds:

1. Imperata cylindrica, Cogon grass. The cultivar Imperata cylindrica "Red Baron" (Japanese blood grass) is not subject to the provisions of this chapter.

2. Lythrum salicaria, Purple loosestrife.

3. Ipomoea aquatica, Water spinach.

2VAC5-317-30. Conditions governing the intrastate movement of regulated articles.

The movement of a regulated article is prohibited unless accompanied by a valid certificate or limited permit.

2VAC5-317-40. Issuance and cancellation of certificates and limited permits.

A. A certificate or a limited permit may be issued by an inspector for the movement of a regulated article into, within, or out of the Commonwealth when the regulated article meets the following three conditions:

1. The regulated article is to be moved:

a. Intrastate to a specified destination under conditions that specify the limited handling, utilization, processing, or treatment of the article when the inspector determines that such movement will not result in the spread of the noxious weed; or

b. By a state or federal agency, or person authorized by the department, for experimental or scientific purposes;

2. The regulated article is to be moved in compliance with all additional conditions deemed necessary under the Noxious Weeds Law to prevent the spread of the noxious weed; and

3. The regulated article is eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated article.

B. Any certificate or limited permit that has been issued or authorized may be withdrawn by the inspector orally or in writing if the inspector determines that the holder of the certificate or limited permit has not complied with all conditions for the use of the certificate or limited permit, or with any applicable compliance agreement. If the withdrawal is oral, the withdrawal and the reasons for the withdrawal shall be confirmed in writing and communicated to the certificate or limited permit holder as promptly as circumstances allow.

2VAC5-317-50. Assembly and inspection of regulated articles.

A. Any person who desires to move a regulated article and who is required to have a limited permit for such movement shall apply for a limited permit as far in advance as practical but no fewer than five business days before the regulated article is to be moved.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and shall be safeguarded to prevent infestation.

2VAC5-317-60. Attachment and disposition of certificates and limited permits.

A. A certificate or limited permit required for the movement of a regulated article into, within, or out of the Commonwealth must be attached at all times during the intrastate movement to the outside of the container that contains the regulated article or to the regulated article itself. The requirements of this section may also be met by attaching the certificate or limited permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or limited permit and on the waybill to facilitate the identification of the regulated article.

B. The certificate or limited permit for the intrastate movement of a regulated article must be furnished by the carrier to the consignee at the destination of the regulated article. A copy of the certificate or the limited permit must be retained by the sender of the regulated article at the place of shipment.

2VAC5-317-70. Inspection and disposal of regulated articles.

Upon presentation of official credentials, an inspector is authorized to stop and inspect and to seize, destroy, or otherwise dispose of or require disposal of regulated articles in accordance with the provisions of the Noxious Weeds Law.

2VAC5-317-80. Eradication and suppression activities for Tier 1 noxious weeds.

The commissioner may conduct eradication or suppression activities to prevent the dissemination of a Tier 1 noxious weed. Eradication or suppression activities may include, but are not limited to, the following: destruction, seizure, stop sale, stop delivery, treatment, or ordering the regulated article to be returned to its point of origin.

2VAC5-317-90. Nonliability of the department.

The department shall not be liable for costs incurred by third parties resulting from, or incidental to, inspections required under the provisions of this chapter.

2VAC5-317-100. Noxious Weeds Advisory Committee.

The commissioner shall convene an annual meeting of the Noxious Weeds Advisory Committee. The committee shall advise the commissioner on those plants that the commissioner, at his discretion, may present to the board for declaration or delisting as noxious weeds.