Title of Regulation: 2VAC5-440. Rules and Regulations for Enforcement of the Virginia Pest Law - Cotton Boll Weevil Quarantine (amending 2VAC5-440-10, 2VAC5-440-40, 2VAC5-440-50, 2VAC5-440-110).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: September 24, 2014.

Agency Contact: Andres Alvarez, Director, Division of Consumer Protection, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 225-3821, FAX (804) 371-7479, TTY (800) 828-1120, or email andres.alvarez@vdacs.virginia.gov.

Summary:

The amendments (i) clarify definitions and certain provisions, (ii) update the regulation to reflect the current operation of the Boll Weevil Eradication and Exclusion Program and the department's enforcement activities, and (iii) reduce the penalty for late payments and acreage underreporting.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

2VAC5-440-10. Definitions.

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

"Authorized inspector" means any person employed by a state or federal regulatory plant pest agency and trained to inspect for and identify boll weevil in any living stage.

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

"Boll weevil" means the live insect, "Anthonomus grandis grandis" Boheman, in any stage of development.

"Boll Weevil Eradication and Exclusion Program" or "program" means the program conducted by the Virginia Department of Agriculture and Consumer Services and the Southeastern Boll Weevil Eradication Foundation, Inc., to eradicate the boll weevil and subsequently prevent its reintroduction into areas where it has been eradicated.

"Certificate" means a document issued or authorized by an inspector to be issued under this chapter to allow the movement of regulated articles to any destination.

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

"Compliance agreement" means a written agreement between a grower, dealer, or mover of regulated articles, and the Virginia Department of Agriculture and Consumer Services, United States Department of Agriculture, or both, wherein the former agrees to comply with the requirements of the compliance agreement.

"Cotton" means parts and products of plants of the genus "Gossypium," before processing.

"Cottonseed" means cottonseed from which the lint has been removed.

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

"FSA" means the United States Department of Agriculture, Farm Service Agency.

"Gin trash" means all of the material produced during the cleaning and ginning of seed cotton, bollies, or snapped cotton, except for the lint, cottonseed, and gin waste.

"Grower" means a farm operator or producer, whether the owner of the land or not.

"Infestation" means the presence of the boll weevil, or the existence of circumstances that make it reasonable to believe that boll weevil is present.

"Inspector" means any employee of the Virginia Department of Agriculture and Consumer Services, or other person authorized by the commissioner to enforce the provisions of the quarantine and regulations.

"Limited permit" means a document issued by an inspector to allow the movement of noncertifiable regulated articles to a specified destination for limited handling, use, processing, or treatment.

"Lint" means all forms of raw ginned cotton, either baled or unbaled, except linters and waste.

"Moved (movement, move)" "Move," "moved," or "movement" means shipped; offered for shipment to a common carrier; received for transportation or transported by a common carrier; or carried, transported, moved, or allowed to be moved by any means.

"NASS" means the U.S. Department of Agriculture, National Agricultural Statistics Service.

"Person" means any individual, corporation, company, society, or association or other organized group.

"Regulated area" means any state or country in which the boll weevil is known to exist or areas where circumstances make it reasonable to believe that the boll weevil is present.

"Scientific permit" means a document issued by the Virginia Department of Agriculture and Consumer Services to authorize movement of regulated articles to a specified destination for scientific purposes.

"Seed cotton" means cotton as it comes from the field prior to ginning.

"Used cotton harvesting equipment" means equipment previously used to harvest, strip, transport or destroy cotton.

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

2VAC5-440-40. Requirements for program participation.

A. All cotton farm operators in Virginia are hereby required to participate in the eradication/exclusion program Boll Weevil Eradication and Exclusion Program. Participation shall include timely reporting of acreage and field locations, compliance with regulations, and payment of fees. Farm operators within the Commonwealth shall be notified through either the extension offices, the department, FSA, or newspapers of their program costs on a per acre basis on or before April 1 of each year. The department shall notify farm operators of their program costs on a per acre basis. The following procedures are required for participation in the program:

1. Completing a Cotton Acreage Reporting Form at Report cotton acreage and cotton field location or locations to the FSA office by July 1 of the current growing season for which participation is required. At this time the farm operator shall pay a nonrefundable fee in an amount sufficient to cover estimated program costs as determined by the commissioner. The commissioner shall set this fee following consultation with state, federal, and private organizations responsible for implementation and funding of boll weevil eradication/exclusion programs conducted in the Commonwealth. Such fee shall be based upon prior year's expenses and projected cotton acreage for the current growing season. Those farm operators not reporting their acreage by July 1 will not be considered as program participants and will be subject to a penalty. Any farm operator who does not report his cotton acreage and cotton field location or locations by July 1 will not be considered a program participant and may be subject to a penalty of 10% of the fee due for his unreported cotton acreage.

2. All fees shall be paid by the farm operator. A farm operator shall pay a nonrefundable fee in an amount sufficient to cover estimated program costs as determined by the commissioner. Fees shall be made payable to Treasurer of Virginia and collected by FSA and must be paid within 30 days of the invoice date. The commissioner shall set this fee following consultation with state, federal, and private organizations responsible for the implementation and funding of the Boll Weevil Eradication and Exclusion Program conducted in the Commonwealth.

3. Noncommercial cotton Cotton grown for noncommercial purposes shall not be planted in Virginia unless the grower applies for and receives an exemption to grow cotton from the commissioner. Applications, in writing, shall be made in writing to the Program Manager, Office of Plant and Pest Services, 1100 Bank Street, Room 703, Richmond, VA 23219 commissioner, stating the conditions under which the grower requests such exemption. The decision whether all or part of these requirements shall be exempted shall be based on the following:

a. Location of growing area;

b. Size of growing area;

c. Pest conditions in the growing area;

d. Accessibility of growing area;

e. Any stipulations set forth in a compliance agreement between the individual and the Department of Agriculture and Consumer Services department that are necessary for the effectuation of the program.

B. Farm operators A farm operator whose FSA measured acreage, as determined by FSA, exceeds the grower reported acreage that was reported by the farm operator by more than 10%, shall be assessed an additional $5.00 per acre a penalty of 10% of the fee due on that acreage in excess of the reported acreage.

C. A farm operator may apply for a waiver requesting delayed payment under conditions of financial hardship. Any farm operator applying for a waiver shall make application in writing to the Program Manager, Office of Plant and Pest Services, 1100 Bank Street, Richmond, VA 23219 commissioner stating the reason a waiver is necessary. This request must be accompanied by a financial statement from a state or federally chartered bank or lending agency supporting such request. The decision of whether to waive all or part of these additional assessments or payment dates shall be made by the program manager and notification given to the farm operator within two weeks after receipt of such application. The commissioner's decision whether to delay payment shall be based on, but not limited to, the following: (i) meteorological conditions, (ii) economic conditions, and (iii) any other uncontrollable destructive forces. If a waiver is granted, payment shall be due at the time the cotton is sold, or by December 1 within 30 days of the invoice date, whichever is sooner later.

D. Failure to pay all fees on or before July 1 within 30 days of the invoice date will result in a penalty of $5.00 per acre 10% of the total fee due. Failure by a farm operator to pay all program costs by August 1 within 30 days of the invoice date shall be a violation of The Virginia Cotton Boll Weevil Quarantine this chapter. If such farm operator fails to comply with these regulations this chapter, the Commissioner of Agriculture and Consumer Services commissioner, through his duly authorized agents, may proceed to trap all cotton acreage found in violation and initiate actions to recover all trapping program costs through established policies and procedures identified in the Virginia Debt Collection Act (§ 2.2-4800 et seq. of the Code of Virginia).

E. Acreage subject to emergency or hardship conditions after all the growers' share of the program have been paid and prior to the initiation of field operations may be considered for a refund. The refund amount will be determined by the actual program cost per acre up to the time of emergency or hardship.

F. E. The commissioner may purchase growing cotton when he deems it in the best interest of the program, provided that the funding necessary to purchase the cotton is available. Purchase price shall be based on the FSA farm established yield for the current year an average of the previous five years of cotton yield figures, as determined by NASS, for the locality in which the growing cotton that may be purchased by the commissioner is located.

G. F. If necessary to prevent boll weevil reinfestation of the Commonwealth, the farm operator, upon notification by the commissioner, shall completely destroy all cotton determined to threaten that the commissioner deems to pose a threat to the safety of Virginia's cotton industry. If such farm operator fails to comply with these regulations this chapter, the Commissioner of Agriculture and Consumer Services commissioner, through his duly authorized agents, shall proceed to destroy such cotton and shall compute the actual costs of labor and materials used, and the farm operator shall pay to the commissioner such assessed costs. No damage damages shall be awarded the grower of such cotton for entering thereon his cotton field and destroying any cotton when done by the order of the commissioner.

2VAC5-440-50. Conditions governing the issuance of certificates and permits to allow the movement of regulated articles.

A. Certificates shall be issued by an authorized inspector for movement of the regulated articles designated in 2VAC5-440-30 under any of the following conditions when:

1. In the judgment of the authorized inspector, they have not been exposed to boll weevil in any living stage.

2. They have been examined by the authorized inspector and found to be free of boll weevil in any living stage.

3. They have been treated to destroy boll weevil, under the observation of the authorized inspector, according to methods selected by him from procedures known to be effective under the conditions in which applied.

4. Grown, produced, stored, or handled in such manner that, in the judgment of the authorized inspector, no boll weevil would be transmitted.

B. Limited permit. Limited permits may be issued by an authorized inspector for the movement of noncertified regulated articles specified under 2VAC5-440-30 to specified destinations for limited handling, use, processing, or treatment, when he determines that no hazard of spread of the boll weevil exists.

C. Special permits. Special permits may be issued by the Virginia Department of Agriculture and Consumer Services department to allow the movement of boll weevil in any living stage and any other regulated articles for scientific purposes, under conditions prescribed in each specific case.

D. Compliance agreement. Compliance agreements for the movement of regulated articles may be issued by an authorized inspector. As a condition of receiving a certificate or limited permit for the movement of regulated articles, A compliance agreement may be issued to any person engaged in purchasing, assembling, exchanging, handling, processing, utilizing, treating, or moving such a regulated article may be required to sign a compliance agreement. The A compliance agreement shall stipulate that include the required safeguards against the establishment and spread of infestation will be maintained and will comply with the conditions governing the maintenance of identity, the handling, and the subsequent movement of such regulated articles, and the cleaning and treatment of means of conveyance and containers.

E. Use of certificates or permits with shipments. If a certificate or permit is required for the movement of regulated articles, the regulated articles are required to have a certificate or permit attached when offered for movement. If a certificate or permit is attached to the invoice or way-bill waybill, and the articles are adequately described on the certificate, the attachment of a certificate or limited permit to the regulated article will not be required. Certificates or permits attached to the invoice, way-bill waybill, or other shipping document, shall be given by the carrier to the consignee at the destination of the shipment, or to an inspector when requested.

F. Assembly of articles for inspection. Persons intending to move any regulated articles shall apply for inspection as far in advance as possible. They shall safeguard the articles from infestation. The articles shall be assembled at a place and in a manner designated by the inspector to facilitate inspection.

G. Disposition of certificates and permits. In all cases, certificates and permits shall be furnished by the carrier to the consignee at the destination of the shipment.

2VAC5-440-110. Determination of reasonableness of costs for services, products, or articles.

The commissioner, pursuant to § 3.2-711 of the Code of Virginia, may determine that costs for services, products, or articles that shall be paid by the persons affected when the commissioner determines that those services, products, or articles are beyond the reasonable scope of administering the law Virginia Tree and Crop Pests Law (§ 3.2-700 et seq. of the Code of Virginia).

FORMS (2VAC5-440)

Cotton Acreage Reporting Form (rev. 3/99).