Title of Regulation: 2VAC5-670. Rules and Regulations for Enforcement of the Virginia Pesticide Law (amending 2VAC5-670-10, 2VAC5-670-30, 2VAC5-670-40, 2VAC5-670-50, 2VAC5-670-60, 2VAC5-670-70, 2VAC5-670-80, 2VAC5-670-130, 2VAC5-670-140, 2VAC5-670-150, 2VAC5-670-160, 2VAC5-670-180, 2VAC5-670-220).

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

Effective Date: August 24, 2017.

Agency Contact: Liza Fleeson Trossbach, 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, TTY (800) 828-1120, or email liza.fleeson@vdacs.virginia.gov.

Summary:

The amendments update the regulation and align it with current agency practices and federal requirements by (i) changing the title and format to be consistent with other pesticide-related regulations; (ii) amending the language of the regulation to reflect the current agency policy regarding requirements for submission of pesticide labels; (iii) clarifying the registration requirements involving mixtures of pesticides and fertilizers, animal feed, animal remedies, or other pesticides; (iv) amending language to more closely align the regulation with the Virginia Pesticide Control Act; (v) removing duplicative registration requirements; (vi) amending and clarifying regulatory label requirements to more closely align with federal requirements; (vii) amending ingredient statement requirements for consistency throughout the regulation; and (viii) clarifying warning or caution statements to more closely align with federal requirements.

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

CHAPTER 670
RULES AND REGULATIONS FOR ENFORCEMENT GOVERNING PESTICIDE PRODUCT REGISTRATION, HANDLING, STORAGE, AND DISPOSAL UNDER AUTHORITY OF THE VIRGINIA PESTICIDE LAW CONTROL ACT

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 that:

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.

"Custom mixture" means a pesticide containing product that has been blended or mixed to a customer's specifications, usually a pesticide-fertilizer, pesticide-pesticide, pesticide-animal feed, or pesticide-animal remedy mixture, when:

1. The blend is prepared to the order of the customer and is not held in inventory by the blender;

2. The blend is to be used on the customer's property, including leased or rented property;

3. The pesticides used in the blend bear end-use labeling directions that do not prohibit use of the product in such a blend;

4. The blend is prepared from registered pesticides; and

5. The blend is delivered to the end-user along with a copy of the end-use labeling of each pesticide used in the blend and a statement specifying the composition of the mixture.

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

"Distributor" means a person or business, also referred to as a supplemental distributor or sub-registrant, that contracts with a basic federal registrant to produce a product that will be distributed and sold with labels bearing the distributor's own name and address instead of the name and address of the basic federal registrant.

"EPA" means the U.S. Environmental Protection Agency or any program thereof.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136 et seq.).

[ "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.

"Minimum risk pesticide" means pesticides that are described in 40 CFR 152.25(f), which addresses the exemptions for pesticides of a character not requiring FIFRA regulation, revised as of July 1, 2015. Minimum risk pesticides are exempted from federal registration requirements under 7 USC § 136 w(b).

"Producer" means a person who manufactures, prepares, compounds, propagates, or processes any pesticide, device, or active ingredient used in producing a pesticide. The dilution by an individual of formulated pesticides for his own use in accordance with the directions on registered labels shall not alone result in the department considering the individual a producer for the purposes of this chapter.

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

"Temporary storage" means the storage of a pesticide in a container other than the original container in which it was purchased.

2VAC5-670-30. Label.

A. The name and address of the manufacturer producer, registrant, or person for whom the product was produced 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. and must include:

1. The statement of use classification.

2. The statement, "It is a violation of federal law to use this product in a manner inconsistent with its labeling." if the product requires federal registration.

3. The site of application, for example the crops, animals, areas, or objects to be treated.

4. The target pest associated with each site.

5. The dosage rate associated with each site and pest.

6. The method of application, including instructions for dilution, if required, and type of application apparatus or equipment required.

7. The frequency and timing of applications necessary to obtain effective results without causing unreasonable adverse effects on the environment.

8. Specific directions concerning the storage, residue removal, and disposal of the pesticide and its container.

9. Any limitations or restrictions on use required to prevent unreasonable adverse effects.

E. 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 (i) the pesticide is sold to distributors a producer 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 (ii) the pesticide is a well-known substance or mixture of substances; and (iii) there is readily available general knowledge of the composition, methods of use, and effectiveness of the product for pesticide purposes.

2VAC5-670-40. Ingredient statement.

A. Location of ingredient statement. The ingredient statement shall appear on the front of the label or 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 font and be 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. Plant incorporated protectant products bearing an ingredient statement approved by the EPA are permitted to have ingredient statements where the sum of the percentages of the ingredients do not equal 100.

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 font and be as prominent as the term "active ingredient."

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

A. Pesticides which that fall within any of the following categories when tested on laboratory animals as specified in subdivisions subdivision 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 that is not highly toxic to humans:

1. Oral toxicity. A pesticide which that has single dose LD50 of 50 milligrams or less per kilogram of body weight, when administered orally to both male and female rats which that 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 that 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 that 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, that is expected to cause death within 14 days in 50% of the test animals so treated, and LC50, as used in connection with inhalation tests, is also the concentration, which that 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.

2VAC5-670-60. Warning or caution statement precautionary statements.

A. Warning or caution precautionary statements which that 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 precautionary statements that 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 precautionary statements 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.

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. Pesticides requiring registration. All products that require registration under FIFRA, as well as "minimum risk pesticides," are required to be registered annually with the department. All products requiring federal registration must have and maintain a valid federal registration to be registered in the Commonwealth.

B. C. Procedure for registration. Application for registration should be made on the a form provided by the department. 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 A completed application form should be submitted as far in advance as possible, before the time registration is desired to take effect and must be accompanied by:

1. The final container label and all associated labeling;

2. The material safety data sheet or safety data sheet; and

3. The fees required under 2VAC5-675-20.

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

D. E. 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. F. 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 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. G. 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.

2VAC5-670-80. Coloration and discoloration.

A. Unless exempted by 2VAC5-670-130 of this chapter, the white pesticides hereinafter named listed in subsections C and D of this section 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.

2VAC5-670-130. Exemption.

A. Any pesticide specified in 2VAC5-670-80 of this chapter which that 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 of rubber, glue, or leather goods, which that would not be suitable for such use if colored and which that 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 2VAC5-670-80.

B. The following products are exempt from the requirements of this chapter:

1. Substances described in 40 CFR 152.6, revised as of July 1, 2015, that are excluded from regulation by FIFRA.

2. Products described in 40 CFR 152.8, revised as of July 1, 2015, that are not pesticides because they are not for use against "pests."

3. Products described in 40 CFR 152.10, revised as of July 1, 2015, that are not pesticides because they are not intended for a pesticidal purpose.

4. Pesticides or classes of pesticides described in 40 CFR 152.20, revised as of July 1, 2015, that are regulated by a federal agency other than the EPA.

5. Treated articles or substances as described in 40 CFR 152.25(a), revised as of July 1, 2015. An article or substance treated with or containing a pesticide to protect the article or substance itself if the pesticide is registered with the EPA for such use.

6. Pheromones and pheromone traps as described in 40 CFR 152.25(b), revised as of July 1, 2015.

7. Preservatives and embalming fluids as described in 40 CFR 152.25(c), revised as of July 1, 2015.

8. Foods as described in 40 CFR 152.25(d), revised as of July 1, 2015.

9. Natural cedar as described in 40 CFR 152.25(e), revised as of July 1, 2015.

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; and

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

2VAC5-670-150. Handling and storage.

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

2VAC5-670-160. Disposal.

No person shall dispose of, discard, or store any pesticides or pesticide containers in a manner which that may cause injury to humans, vegetation, crops, livestock, wildlife, or pollinating insects, or pollute any water supply or waterway. Pesticides or pesticide containers must be disposed of in accordance with all local, state, and federal solid waste and hazardous waste laws and regulations.

2VAC5-670-180. Cancellation authority.

All pesticides which that have been cancelled canceled 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.

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. 1. All pesticide-fertilizer, pesticide-pesticide, pesticide-animal feed, and pesticide-animal remedy mixtures shall be registered under the requirements of the Virginia Pesticide Control Act (§ 3.2-3900 et seq. of the Code of Virginia) and this chapter prior to sale or distribution to or use by the public. All bulk containers shall bear the registered pesticide product label and a copy of the label shall accompany each shipment or delivery.

2. Any pesticide-fertilizer mixture shall be registered as required by the Virginia Fertilizer Law (§ 3.2-3600 et seq. of the Code of Virginia). Labeling must meet the requirements of the Virginia Pesticide Control Act, this chapter, and the Virginia Fertilizer Law.

3. Any pesticide-animal feed or pesticide-animal remedy mixtures shall be registered as required by the Virginia Commercial Feed Law (§ 3.2-4800 et seq. of the Code of Virginia) and the Animal Remedies Law (§ 3.2-4900 et seq. of the Code of Virginia). Labeling must meet the requirements of the Virginia Pesticide Control Act, this chapter, the Virginia Commercial Feed Law, and the Animal Remedies Law.

B. Custom mixtures. Pesticides may be mixed with fertilizers or with, other pesticides, or animal feed 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) name and EPA registration no.(s) number of pesticide product(s); product;

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

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

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

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

FORMS (2VAC5-670)

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

Application for New Pesticide Product Registration, VDACS 07208 (rev. 9/2014)