REGISTER INFORMATION PAGE
Vol. 28 Iss. 1 - September 12, 2011

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The Virginia Register OF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, and notices of public hearings on regulations.

ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS

An agency wishing to adopt, amend, or repeal regulations must first publish in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency’s response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.

Following publication of the proposal in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar no later than 15 days following the completion of the 60-day public comment period. The Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.

The Joint Commission on Administrative Rules (JCAR) or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor’s objection or suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds that changes made to the proposed regulation have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register.

The agency shall suspend the regulatory process for 30 days when it receives requests from 25 or more individuals to solicit additional public comment, unless the agency determines that the changes have minor or inconsequential impact.

A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.

A regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.

FAST-TRACK RULEMAKING PROCESS

Section 2.2-4012.1 of the Code of Virginia provides an exemption from certain provisions of the Administrative Process Act for agency regulations deemed by the Governor to be noncontroversial. To use this process, Governor's concurrence is required and advance notice must be provided to certain legislative committees. Fast-track regulations will become effective on the date noted in the regulatory action if no objections to using the process are filed in accordance with § 2.2-4012.1.

EMERGENCY REGULATIONS

Pursuant to § 2.2-4011 of the Code of Virginia, an agency, upon consultation with the Attorney General, and at the discretion of the Governor, may adopt emergency regulations that are necessitated by an emergency situation. An agency may also adopt an emergency regulation when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment. The emergency regulation becomes operative upon its adoption and filing with the Registrar of Regulations, unless a later date is specified. Emergency regulations are limited to no more than 12 months in duration; however, may be extended for six months under certain circumstances as provided for in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Register.

During the time the emergency status is in effect, the agency may proceed with the adoption of permanent regulations through the usual procedures. To begin promulgating the replacement regulation, the agency must (i) file the Notice of Intended Regulatory Action with the Registrar within 60 days of the effective date of the emergency regulation and (ii) file the proposed regulation with the Registrar within 180 days of the effective date of the emergency regulation. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.

STATEMENT

The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.

CITATION TO THE VIRGINIA REGISTER

The Virginia Register is cited by volume, issue, page number, and date. 26:20 VA.R. 2510-2515 June 7, 2010, refers to Volume 26, Issue 20, pages 2510 through 2515 of the Virginia Register issued on
June 7, 2010.

The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.

Members of the Virginia Code Commission: John S. Edwards, Chairman; Bill Janis, Vice Chairman; James M. LeMunyon; Ryan T. McDougle; Robert L. Calhoun; Frank S. Ferguson; E.M. Miller, Jr.; Thomas M. Moncure, Jr.; Wesley G. Russell, Jr.; Charles S. Sharp; Robert L. Tavenner; Patricia L. West; J. Jasen Eige or Jeffrey S. Palmore.

Staff of the Virginia Register: Jane D. Chaffin, Registrar of Regulations; June T. Chandler, Assistant Registrar.

PUBLICATION SCHEDULE AND DEADLINES
Vol. 28 Iss. 1 - September 12, 2011

September 2011 through August 2012

Volume: Issue	Material Submitted By Noon*	Will Be Published On
28:1	August 24, 2011	September 12, 2011
28:2	September 7, 2011	September 26, 2011
28:3	September 21, 2011	October 10, 2011
28:4	October 5, 2011	October 24, 2011
28:5	October 19, 2011	November 7, 2011
28:6	November 2, 2011	November 21, 2011
28:7	November 15, 2011 (Tuesday)	December 5, 2011
28:8	November 30, 2011	December 19, 2011
28:9	December 13, 2011 (Tuesday)	January 2, 2012
28:10	December 27, 2011 (Tuesday)	January 16, 2012
28:11	January 11, 2012	January 30, 2012
28:12	January 25, 2012	February 13, 2012
28:13	February 8, 2012	February 27, 2012
28:14	February 22, 2012	March 12, 2012
28:15	March 7, 2012	March 26, 2012
28:16	March 21, 2012	April 9, 2012
28:17	April 4, 2012	April 23, 2012
28:18	April 18, 2012	May 7, 2012
28:19	May 2, 2012	May 21, 2012
28:20	May 16, 2012	June 4, 2012
28:21	May 30, 2012	June 18, 2012
28:22	June 13, 2012	July 2, 2012
28:23	June 27, 2012	July 16, 2012
28:24	July 11, 2012	July 30, 2012
28:25	July 25, 2012	August 13, 2012
28:26	August 8, 2012	August 27, 2012

*Filing deadlines are Wednesdays unless otherwise specified.

PETITIONS FOR RULEMAKING
Vol. 28 Iss. 1 - September 12, 2011

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Agency Decision

Title of Regulation: 18VAC85-20. Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Chiropractic.

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Name of Petitioner: Dr. Kenneth Knox.

Nature of Petitioner's Request: To amend regulations to allow a chiropractor who has been practicing for five or more years in another state to be licensed if he has passed Parts I, II, and III of the board examination and has failed Part IV but has a score of 375 on the Special Purpose Examination for Chiropractic.

Agency Decision: Denied.

Statement of Reason for Decision: At its meeting on August 5, 2011, the board reiterated its determination to require passage of Part IV of the National Board of Chiropractic Examiners (NBCE) examination for any applicant who graduated after January 31, 1996. Passage of the clinical portion of the examination has been required for 15 years, and the board does not believe it is in the interest of public safety to lessen the examination requirement.

Agency Contact: Elaine J. Yeatts, Agency Regulatory Coordinator, Department of Health Professions, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4688, or email elaine.yeatts@dhp.virginia.gov.

VA.R. Doc. No. R11-44; Filed August 24, 2011, 12:21 p.m.

NOTICES OF INTENDED REGULATORY ACTION
Vol. 28 Iss. 1 - September 12, 2011

TITLE 9. ENVIRONMENT

Water Quality Standards

Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Water Control Board intends to consider amending 9VAC25-260, Water Quality Standards. The purpose of the proposed action is to consider amending site specific numeric chlorophyll criteria for the tidal James River. The intent of this rulemaking is to protect designated and beneficial uses of the tidal James River by amending or adopting regulations that are technically correct, reasonable, and necessary. These standards will be used in setting Virginia Pollutant Discharge Elimination System Permit limits and for evaluating the waters of the Commonwealth for inclusion in the Clean Water Act § 305(b) report and on the § 303(d) list. Amending the chlorophyll criteria for the tidal James River may result in amending that portion of the December 2010 Chesapeake Bay total maximum daily load allocations for nitrogen, phosphorus, and sediment in the James River basin. This rulemaking is warranted given the addition of new information related to algal communities and their relationship to designated and beneficial use. The goals of the new or amended regulation will be to ensure protection of designated and beneficial uses of the tidal James River through the best science and regulatory approaches.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 62.1-44.15 of the Code of Virginia; federal Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.

Public Comment Deadline: October 12, 2011.

Agency Contact: David C. Whitehurst, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4121, FAX (804) 698-4116, or email david.whitehurst@deq.virginia.gov.

VA.R. Doc. No. R12-2932; Filed August 23, 2011, 9:35 a.m.

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

Regulations Governing the Practice of Assisted Living Facility Administrators

Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Board of Long-Term Care Administrators intends to consider amending 18VAC95-30, Regulations Governing the Practice of Assisted Living Facility Administrators. The purpose of the proposed action is to comply with the second enactment of Chapter 609 of the 2011 Acts of Assembly. To implement the provisions of Chapter 609, the board will amend certain regulations for an administrator-in-training to ensure adequate oversight by the preceptor who is supervising the training of a person serving as the acting administrator for an assisted living facility. Regulations are intended to clarify that the acting administrator is in training, that the preceptor is responsible for appropriate oversight, and that survey visit reports for the facility become part of the administrator-in-training reports.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Public Comment Deadline: October 12, 2011.

Agency Contact: Lisa Russell Hahn, Executive Director, Board of Long-Term Care Administrators, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4595, FAX (804) 527-4413, or email ltc@dhp.virginia.gov.

VA.R. Doc. No. R12-2920; Filed August 22, 2011, 7:36 a.m.

REGULATIONS
Vol. 28 Iss. 1 - September 12, 2011

TITLE 1. ADMINISTRATION

STATE BOARD OF ELECTIONS

Reproposed Regulation

REGISTRAR'S NOTICE: The State Board of Elections is claiming an exemption from the Administrative Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which exempts agency action relating to the conduct of elections or eligibility to vote.

Title of Regulation: 1VAC20-70. Absentee Voting (adding 1VAC20-70-20).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Public Hearing Information: October 17, 2011 - 3 p.m. - State Capitol, House Room 2, Richmond, VA

Public Comment Deadline: October 12, 2011.

Agency Contact: Justin Riemer, Confidential Policy Advisor, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8904, or email justin.riemer@sbe.virginia.gov.

Background: On December 20, 2010 (27:8 VA.R. 733-734), the State Board of Elections published a regulation defining material omissions from absentee ballots with an effective date contingent upon preclearance approval by the U.S. Attorney General. This regulation did not become effective and a Notice of Withdrawal of that action was published in Volume 27, Issue 24 of the Virginia Register of Regulations on August 1, 2011. On July 6, 2011, the board approved proposing for public comment different language for a regulation defining material omissions from absentee ballots to replace board policy 2008-006, Substantial Compliance, which was also published in Volume 27, Issue 24 of the Virginia Register of Regulations on August 1, 2011. On August 16, 2011, the board received additional public comment and directed that a further public comment period be provided.

Summary:

This regulation details standards to assist local election officials in determining whether an absentee ballot may be counted by distinguishing what errors or omissions are always material and render the ballot invalid from those that are not material.

1VAC20-70-20. Material omissions from absentee ballots.

A. Pursuant to the requirements of § 24.2-706 of the Code of Virginia, a timely received absentee ballot contained in an Envelope B should not be rendered invalid if it contains an error or omission not material to its proper processing.

B. The following omissions are always material and any Envelope B containing such omissions should be rendered invalid if any of the following exists:

1. The voter did not include his full name in any order;

2. The voter did not include [ a his ] first name;

3. The voter did not include his last name;

4. The voter did not provide his house number, street name or rural route address, [ or ] city of residence [ ~~, or zip code~~ ];

5. The voter did not sign Envelope B;

6. The voter's witness did not sign Envelope B; [ or ]

7. The ballot is not sealed in Envelope B [ . ; or

8. The voter did not provide the date on which he signed Envelope B ].

C. The ballot should not be rendered invalid if on [ the ] Envelope B:

1. The voter included his full name in an order other than "last, first, middle";

2. The voter used his middle initial instead of his full middle name;

3. The voter used a derivative of his legal name as a first name (e.g., "Bob" instead of "Robert");

4. The voter did not provide his residential street identifier (Street, Drive, etc.); [ or ]

5. [ The voter did not provide a zip code; or

6. ] The voter omitted the year in the date [ on which he signed Envelope B ].

VA.R. Doc. No. R11-2923; Filed August 24, 2011, 11:53 a.m.

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Final Regulation

Title of Regulation: 2VAC5-405. Regulations for the Application of Fertilizer to Nonagricultural Lands (adding 2VAC5-405-10 through 2VAC5-405-110).

Statutory Authority: § 3.2-3602.1 of the Code of Virginia.

Effective Date: October 12, 2011.

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.

Summary:

Pursuant to Chapter 686 of the 2008 Acts of the Assembly, the regulations establish requirements for certification of fertilizer applicators. Specifically, the regulations establish: (i) the application process for becoming a certified fertilizer applicator; (ii) exemptions from the requirements of these regulations for certain categories of individuals; (iii) core areas of testing for certification applicants; (iv) the certification renewal process; (v) supervision requirements for noncertified individuals who apply fertilizer to nonagricultural lands; (vi) recordkeeping requirements for fertilizer applicators; and (vii) the $250 civil penalty that will be assessed to individuals who offer their services as certified fertilizer applicators without first obtaining board certification or who supervise the application of fertilizer to nonagricultural land when they have not been certified by the board.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

CHAPTER 405
REGULATIONS FOR THE APPLICATION OF FERTILIZER TO NONAGRICULTURAL LANDS

2VAC5-405-10. Definitions.

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

"Accident" means an unexpected, undesirable event involving the use of fertilizer or the presence of a fertilizer that adversely affects the environment.

"Agricultural activity" means any activity used in the production of [ ~~food and fiber~~ agricultural products ] for commercial purposes, including farming, feedlots, grazing livestock, poultry raising, dairy farming, and aquaculture activities.

"Agricultural products" means any livestock, aquacultural, poultry, horticultural, floricultural, viticultural, silvicultural, or other farm crops produced for commercial purposes.

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

"Board-approved training" means training offered by a state agency or private entity approved by the board that includes, at a minimum, study and review of course material pertaining to the application of fertilizer on nonagricultural land. Such training shall include testing and certification of the individual's successful completion of the training.

"Certificate" means the document issued to a fertilizer applicator upon satisfactory completion of board-approved training.

"Certification" means the recognition granted by the board to a fertilizer applicator upon satisfactory completion of board-approved training.

"Certified fertilizer applicator" means any individual who has successfully completed board-approved training.

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

"Contractor-applicator" means any person required to hold a permit to distribute or apply any fertilizer pursuant to § 3.2-3608 of the Code of Virginia.

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

"Distribute" means to import, consign, manufacture, produce, compound, mix, blend, or in any way alter the chemical or physical characteristics of a fertilizer, or to offer for sale, sell, barter, warehouse, or otherwise supply fertilizer in the Commonwealth.

"Fertilizer" means any substance containing one or more recognized plant nutrients that is used for its plant nutrient content and that is designed for use, or claimed to have value, in promoting plant growth. Fertilizer does not include unmanipulated animal and vegetable manures, marl, lime, limestone, and other products exempted by regulation.

"Incident" means a definite and separate occurrence or event involving the use of fertilizer or the presence of a fertilizer that adversely affects the environment.

"Individual applicator training" means training provided to individuals by a certified fertilizer applicator or training offered to individuals by any state agency or private entity approved by the board that includes, at a minimum, a study and review of fertilizer equipment calibration; handling of accidents involving fertilizer; proper methods of storing, mixing, loading, transporting, handling, applying, and disposing of fertilizer; and safety and health concerns related to fertilizer, including proper use of personal protective equipment.

"Label" means the display of all written, printed, or graphic matter upon the immediate container or a statement accompanying a fertilizer, including an invoice.

"Licensee" means the person who receives a license to distribute any fertilizer under the provisions of § 3.2-3606 of the Code of Virginia.

"Nonagricultural land" means land upon which no agricultural activities are conducted and from which no agricultural products are derived.

"Noncertified fertilizer applicator" means either a trained applicator or an untrained applicator, neither of whom has received certification as a certified fertilizer applicator.

"Trained applicator" means an individual who is not a certified fertilizer applicator but who has successfully completed individual applicator training.

"Under the direct on-site supervision of" means the act or process whereby the application of a fertilizer is made by an individual acting under the instructions and control of a certified fertilizer applicator who is responsible for the actions of that person and who is physically present on the land upon which the fertilizer is being applied.

"Untrained applicator" means an individual who is not seeking or has not successfully completed individual applicator training.

"Use of fertilizer" includes application or mixing and handling, transfer, or any act with respect to a particular fertilizer that is consistent with the label directions for that particular fertilizer.

2VAC5-405-20. General requirements.

A. The board authorizes the commissioner to approve all courses of training required in this regulation.

B. All licensees and contractor-applicators who apply fertilizer for commercial purposes to nonagricultural land shall:

1. Employ or retain the services of a certified fertilizer applicator.

2. Apply fertilizer at rates, times, and methods that are consistent with standards and criteria for nutrient management promulgated pursuant to § 10.1-104.2 of the Code of Virginia.

3. Ensure that fertilizer applications are conducted as prescribed by board-approved training or individual applicator training.

4. Comply with all applicable recordkeeping requirements in this regulation.

C. Certified fertilizer applicators may apply fertilizer to nonagricultural land for commercial purposes.

D. The following individuals may apply fertilizer to nonagricultural land for commercial purposes provided they are under the control and instruction of a certified fertilizer applicator who is responsible for the actions of those individuals:

1. Trained applicators. The certified fertilizer applicator does not need to be physically present on the land upon which trained applicators are applying fertilizer. Trained applicators are not authorized to supervise the application of fertilizer by untrained applicators.

2. Untrained applicators provided that they are under the direct on-site supervision of a certified fertilizer applicator.

3. Individuals engaged in training required for certification as a certified fertilizer applicator provided that the individuals are under the direct on-site supervision of a certified fertilizer applicator.

2VAC5-405-30. Qualifications for certification as a certified fertilizer applicator.

All persons desiring certification as certified fertilizer applicators shall successfully complete board-approved training.

2VAC5-405-40. Application process.

A. The application to become a certified fertilizer applicator shall be in writing to the commissioner on a form as specified and approved by the commissioner and shall contain:

1. Last name, first name, and middle initial of the applicant;

2. Mailing address; and

3. Documentation of successful completion of board-approved training.

B. Any individual desiring certification as a certified fertilizer applicator who has completed a comparable course of training not yet approved by the board may petition the commissioner to approve the course. The petition shall include verifiable documentation of successful course completion.

C. Any individual who is denied certification as a certified fertilizer applicator may appeal the decision to the board through an appeal process that is compliant with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). The procedure for appealing a decision shall be specified by the commissioner and shall be made available to the person denied certification.

D. Upon certification, a card will be issued to the certified fertilizer applicator, which will remain valid for four years from the date of issuance. A certified fertilizer applicator may request a duplicate of the certification card if the card has been lost, stolen, mutilated, or destroyed. The department shall issue a duplicate card to the certified fertilizer applicator upon payment of the costs of duplication.

2VAC5-405-50. Exemptions from certification.

The following individuals are exempt from certification:

1. Individuals conducting research in laboratories or field test plots involving fertilizers.

2. Individuals who use fertilizer or supervise the use of fertilizer as part of their duties only on nonagricultural land owned or leased by their employers.

3. Individuals holding turf and landscape certification from the Department of Conservation and Recreation as nutrient management planners.

2VAC5-405-60. General knowledge requirements for certified fertilizer applicators; continuing education.

A. All applicants for certification as a certified fertilizer applicator shall demonstrate practical knowledge of the principles and practices of the environmentally safe use of fertilizer.

B. Applicants shall be tested on their knowledge and qualifications concerning the use of fertilizer and the handling of fertilizer in the board-approved training. Testing will be based on problems and situations in the following core areas:

1. Proper nutrient management practices such as allowable rate of application for nutrients for various types of vegetation and determining quantity of product to apply based on nutrient analysis;

2. Timing of application during appropriate seasons for various types of vegetation and restrictions on intervals for reapplication;

3. Soil analysis techniques and interpretation of soil analysis results such as proper frequency and depth of sampling and determining appropriate rates of application based on soil analyses;

4. Equipment calibration techniques and procedures for liquid and dry fertilizer applicators and determination of size of application areas;

5. Understanding and interpreting fertilizer labels;

6. Proper handling and appropriate notification procedures of accidents and incidents;

7. Proper methods of storing, mixing, loading, transporting, handling, applying, and disposing of fertilizer;

8. Managing applications near impervious surfaces such as streets, driveways, sidewalks, or paved ditches, as well as near water bodies to avoid off-target applications;

9. Safety and health, including proper use of personal protective equipment; and

10. Recordkeeping requirements of this regulation.

C. Continuing education requirement. Certified fertilizer applicators shall complete a minimum of two hours of course work every two years on at least one of the following:

1. Proper nutrient management practices;

2. Timing of fertilizer application;

3. Soil analysis techniques and interpretation;

4. Equipment calibration;

5. Understanding and interpreting fertilizer labels; or

6. Management of fertilizer applications near impervious surfaces.

The courses may be offered by any state agency or private entity recognized by the board.

2VAC5-405-70. Renewal of certification.

A. Every certification shall be valid for a period of four years. Upon expiration of certification, the certified fertilizer applicator's certificate shall become invalid and the holder shall not be allowed to offer his services as a certified fertilizer applicator.

B. Any certified fertilizer applicator who desires to renew his certification shall submit an application for renewal. The application shall be in writing to the commissioner on a form as specified and approved by the commissioner and shall contain:

1. Last name, first name, and middle initial of the applicant;

2. Mailing address; and

3. Documentation of satisfactory compliance with the continuing education requirements in 2VAC5-405-60.

C. The application for certification renewal shall be submitted within the 60 days immediately prior to or the 60 days immediately following the expiration of the certification. Any certified fertilizer applicator who desires to renew his certification but fails to do so within this timeframe shall be subject to the application process requirements of 2VAC5-405-40. The 60 days following expiration of the certification is a grace period to allow certified fertilizer applicators to renew their certification. A certified fertilizer applicator whose certification has expired shall not offer his services as a certified fertilizer applicator during this 60-day grace period.

2VAC5-405-80. Qualifications for trained applicators.

All noncertified applicators desiring to apply fertilizer for commercial purposes on nonagricultural land while not under the direct on-site supervision of a certified fertilizer applicator shall successfully complete individual applicator training.

2VAC5-405-90. Recordkeeping requirements for trained applicators.

A. Licensees and contractor-applicators subject to this regulation shall maintain training records for each trained applicator employed by the licensee or contract-applicator.

B. The training record shall include (i) the name of the trained applicator; (ii) the name of the state agency or private entity approved by the board or the name and affiliation of the certified fertilizer applicator providing the training; (iii) the type of training received; and (iv) the date when the trained applicator successfully completed individual applicator training.

C. The training records shall be maintained for as long as the trained applicator continues to apply fertilizer on nonagricultural land on behalf of the licensee or contractor-applicator and for three years following separation and shall be available for inspection by the commissioner.

2VAC5-405-100. Recordkeeping requirements for the application of fertilizer.

Licensees and contractor-applicators shall maintain records of each application of fertilizer to nonagricultural land for at least three years following the application. These records shall be available for inspection by the commissioner. Each record shall contain the:

1. Name, mailing address, and telephone number of customer, as well as address of application site if different from customer's mailing address;

2. Name of the person making or supervising the application;

3. Day, month, and year of application;

4. Weather conditions at the start of the application;

5. Acreage, area, square footage, or plants treated;

6. Analysis of fertilizer applied;

7. Amount of fertilizer used, by weight or volume; and

8. Type of application equipment used.

2VAC5-405-110. Violations and penalties for noncompliance.

A. Any individual who offers his services as a certified fertilizer applicator or who supervises the application of any fertilizer on nonagricultural land without obtaining prior registration certification from the commissioner shall be assessed a penalty of $250.

B. Violations of the provisions of these regulations shall be handled in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. Any penalties assessed for violations of this regulation shall be handled in accordance with a board-approved administrative process.

D. In addition to any monetary penalties provided in this section, certified fertilizer applicators who violate any provision of this regulation may also be subject to the provisions of § 3.2-3621 of the Code of Virginia regarding the cancellation of certification.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name to access a form. The forms are also available through the agency contact or at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

[ FORMS (2VAC5-405)

Virginia Certified Fertilizer Applicator Application, Form CFA-101 (eff. 10/11).

Virginia Certified Fertilizer Applicator Renewal Application, Form CFA-102 (eff. 10/11). ]

VA.R. Doc. No. R09-1656; Filed August 24, 2011, 12:32 p.m.

TITLE 10. FINANCE AND FINANCIAL INSTITUTIONS

STATE CORPORATION COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The following amendments are exempt from the Virginia Administrative Process Act pursuant to § 2.2-4002 C of the Code of Virginia, which provides that minor changes to regulations published in the Virginia Administrative Code under the Virginia Register Act, Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia, made by the Virginia Code Commission pursuant to § 30-150, shall be exempt from the provisions of the Virginia Administrative Process Act.

Titles of Regulations: 10VAC5-10. Delegation of Certain Authority to the Commissioner of the Bureau of Financial Institutions (amending 10VAC5-10-10).

10VAC5-20. Banking and Savings Institutions (amending 10VAC5-20-20, 10VAC5-20-30, 10VAC5-20-40, 10VAC5-20-50).

10VAC5-22. Trust Company Regulations (amending 10VAC5-22-10, 10VAC5-22-50, 10VAC5-22-140).

10VAC5-30. Savings Institution Holding Companies (amending 10VAC5-30-10, 10VAC5-30-20).

10VAC5-40. Credit Unions (amending 10VAC5-40-10, 10VAC5-40-20, 10VAC5-40-30, 10VAC5-40-40, 10VAC5-40-60).

Statutory Authority: § 12.1-13 of the Code of Virginia.

Effective Date: September 1, 2011.

Agency Contact: Todd Rose, Senior Counsel, Office of General Counsel, State Corporation Commission, P.O. Box 640, Richmond, VA 23218, telephone (804) 371-9107, FAX (804) 371-9211, or email todd.rose@scc.virginia.gov.

Summary:

Several chapters of Title 10 of the Virginia Administrative Code pertaining to Finance and Financial Institutions have been updated to replace references to Title 6.1 of the Code of Virginia with references to Title 6.2 of the Code of Virginia to reflect the recodification of Title 6.1 of the Code of Virginia in the fall of 2010.

10VAC5-10-10. Powers delegated to Commissioner of Financial Institutions.

A. The State Corporation Commission has delegated to the Commissioner of Financial Institutions the authority to exercise its powers and to act for it in the following matters:

1. To grant or deny petitions relating to service by an individual as a director of more than one financial institution. (§ ~~6.1-2.7~~ 6.2-104 of the Code of Virginia.)

2. To grant a certificate of authority to a bank formed for the purpose of its being acquired under the provisions of Chapter 14 (§ 6.1-390 et seq.) of Title 6.1 of the Code of Virginia, or for the purpose of facilitating the consolidation of banks or the acquisition by merger of a bank pursuant to any provision of Title ~~6.1~~ 6.2 of the Code of Virginia. (§§ ~~6.1-13~~ 6.2-816 and ~~6.1-43~~ 6.2-822 of the Code of Virginia.)

3. To grant or deny authority to a bank, or to a trust subsidiary, to engage in the trust business or exercise trust powers. (§§ ~~6.1-16~~ 6.2-819, 6.2-1001, 6.2-1049, and ~~6.1-32.5~~ 6.2-1054 of the Code of Virginia.)

4. To approve an office of a trust subsidiary; to authorize a trust company to establish an additional office; to authorize a state bank or trust company to establish or acquire a trust office in another state; and to deny an application by a state bank to establish a branch or relocate an authorized office in Virginia. (§§ ~~6.1-32.6, 6.1-32.21, 6.1-32.33~~ 6.2-831, 6.2-1028, 6.2-1055, and ~~6.1-39.3~~ 6.2-1066 of the Code of Virginia.) To approve the establishment, acquisition, maintenance, and operation of branches of state banks in states other than Virginia. (§§ ~~6.1-44.3~~ 6.2-837 and ~~6.1-44.17~~ 6.2-850 of the Code of Virginia.)

5. To permit a state bank to operate or advertise a branch office under a name that is not identical to the bank's own name. (§ ~~6.1-41~~ 6.2-834 of the Code of Virginia.)

6. To object to an application or notice by an out-of-state trust institution or an out-of-state bank to establish or acquire a trust office or branch in Virginia, upon finding that the filing requirements and the conditions for approval prescribed by law are not fulfilled. (§§ ~~6.1-32.38 and 6.1-32.39; 6.1-44.6 and 6.1-44.7; 6.1-44.19~~ 6.2-840, 6.2-841, 6.2-852, 6.2-853, 6.2-1069, and ~~6.1-44.20~~ 6.2-1070 of the Code of Virginia.)

7. To grant approval for directors' meetings of a bank or trust company to be held less frequently than monthly. (§ ~~6.1-52~~ 6.2-866 of the Code of Virginia; 10VAC5-22-20.)

8. To grant approval for the investing of more than 50% of the aggregate amount of a bank's capital stock, surplus, and undivided profits in its bank building and premises; and to permit the payment of dividends while such investment exceeds 50% of capital, surplus, and undivided profits. (§ ~~6.1-57~~ 6.2-870 of the Code of Virginia.)

9. To consent to a bank's investment in more than one service corporation. (§ ~~6.1-58~~ 6.2-871 of the Code of Virginia.)

10. To give permission for the aggregate investment of more than 50% of a bank's capital stock and permanent surplus in the stock, securities, or obligations of controlled-subsidiary and bank service corporations. (§ ~~6.1-58.1~~ 6.2-885 of the Code of Virginia.)

11. To give written consent and approval for a bank to hold the possession of certain real estate for a longer period than 10 years. (Subdivision 4 of § ~~6.1-59~~ 6.2-872 of the Code of Virginia.)

12. To approve the issuance by a bank of capital notes and debentures, so that such notes and debentures may qualify as surplus for the purpose of calculating the legal lending limit of a bank. (§ ~~6.1-61~~ 6.2-875 of the Code of Virginia.)

13. To give written approval in advance for a bank or trust company to pledge its assets as security for certain temporary purposes. (§ ~~6.1-80~~ 6.2-890 of the Code of Virginia.)

14. To require any bank to prepare and submit such reports and material as he may deem necessary to protect and promote the public interest. (§ ~~6.1-93~~ 6.2-907 of the Code of Virginia.)

15. To approve the issuance of stock in a savings institution in exchange for property or services valued at an amount not less than the aggregate value of the shares issued. ~~(§§ 6.1-194.11 and 6.1-194.113~~ (§ 6.2-1117 of the Code of Virginia.)

16. To reduce temporarily the reserve requirements for a savings institution upon a finding that such reduction is in the best interest of the institution and its members. (§ ~~6.1-194.23~~ 6.2-1130 of the Code of Virginia.)

17. To grant a certificate of authority to a savings institution formed solely for the purpose of facilitating the merger or acquisition of savings institutions pursuant to any provision of Title ~~6.1~~ 6.2 of the Code of Virginia.

18. To grant or deny authority to a state association, a state savings bank or a foreign savings institution to establish a branch office, or other office or facility where deposits are accepted ~~(§§ 6.1-194.26 and 6.1-194.119~~ (§ 6.2-1133 of the Code of Virginia), or to change the location of a main or branch office. ~~(§§ 6.1-194.28 and 6.1-194.121~~ (§ 6.2-1135 of the Code of Virginia.)

19. To cause a special examination of a savings institution to be made. (§ ~~6.1-194.84:1~~ 6.2-1201 of the Code of Virginia.)

20. To grant or deny authority to a savings institution to exercise fiduciary powers. (§§ ~~6.1-195.77~~ 6.2-1081 et seq. and ~~6.1-194.138~~ 6.2-1099 of the Code of Virginia.)

21. To grant or deny approval to a credit union to maintain a service facility or office (other than a main office). (§ ~~6.1-225.20~~ 6.2-1326 of the Code of Virginia.)

22. To make such findings as are required by §§ ~~6.1-225.23~~ 6.2-1327 and ~~6.1-225.23:1~~ 6.2-1328 of the Code of Virginia relating to fields of membership of credit unions and the expansion of such fields of membership.

23. To approve the investment of credit union funds in certain stock, securities and other obligations. (Subdivision 8 of § ~~6.1-225.57~~ 6.2-1376 of the Code of Virginia.)

24. To grant or deny authority to an industrial loan association to relocate its office. (§ ~~6.1-233~~ 6.2-1408 of the Code of Virginia.)

25. To grant or deny licenses pursuant to Chapter 6 15 (§ ~~6.1-244~~ 6.2-1500 et seq.) of Title ~~6.1~~ 6.2 of the Code of Virginia. (§ ~~6.1-256.1~~ 6.2-1507 of the Code of Virginia.)

26. To grant or deny licenses to engage in the business of selling money orders or the business of money transmission, or both, and approve or disapprove acquisitions of ownership interests in licensees. (§§ ~~6.1-371~~ 6.2-1901, 6.2-1902, and ~~6.1-378.2~~ 6.2-1914 of the Code of Virginia.)

27. To grant or deny licenses to operate credit counseling agencies. (§ ~~6.1-363.7~~ 6.2-2005 of the Code of Virginia.)

28. To grant or deny permission to a credit counseling agency licensee to relocate an office or open an additional office and approve or disapprove acquisitions of ownership interests in licensees. (§§ ~~6.1-363.8~~ 6.2-2006 and ~~6.1-363.9~~ 6.2-2007 of the Code of Virginia.)

29. To grant or deny licenses to engage in business as a mortgage lender and/or mortgage broker, and prescribe conditions under which exclusive agents of licensees may act as mortgage brokers without a license and approve or disapprove individuals as qualified exclusive agents of licensees. (§§ ~~6.1-410~~ 6.2-1601 and ~~6.1-415~~ 6.2-1606 of the Code of Virginia.)

30. To grant or deny permission to a mortgage lender or mortgage broker licensee to relocate an office or open an additional office and approve or disapprove acquisitions of ownership interests in licensees. (§§ ~~6.1-416~~ 6.2-1607 and ~~6.1-416.1~~ 6.2-1608 of the Code of Virginia.)

31. To grant or deny licenses to engage in business as a mortgage loan originator, and set the amount of surety bond required for such licensure. (§§ ~~6.1-431.4~~ 6.2-1703 and ~~6.1-431.7~~ 6.2-1706 of the Code of Virginia.)

32. To enter into cooperative agreements with appropriate regulatory authorities for the examination of out-of-state bank holding companies and their subsidiaries and out-of-state savings institution holding companies and their subsidiaries and for the accomplishment of other duties imposed on the commission by Article 11 5 (§ ~~6.1-194.96~~ 6.2-1148 et seq.) of Chapter ~~3.01~~ 11 and by Chapter 15 7 (§ ~~6.1-398~~ 6.2-700 et seq.) of Title ~~6.1~~ 6.2 of the Code of Virginia.

33. To prescribe the form and content of all applications, documents, undertakings, papers, and information required to be submitted to the commission under Title ~~6.1~~ 6.2 of the Code of Virginia.

34. To make all investigations and examinations, give all notices, and shorten, waive, or extend any time period within which any action of the commission must or may be taken or performed under Title ~~6.1~~ 6.2 of the Code of Virginia.

B. In the performance of the duties hereby delegated to him, the commissioner shall have the power and authority to make all findings and determinations permitted or required by law.

C. The foregoing delegations of authority shall be effective until revoked by order of the commission. All actions taken by the Commissioner of Financial Institutions pursuant to the authority granted here are subject to review by the commission in accordance with the Rules of Practice and Procedure of the State Corporation Commission. Each delegation set forth in a numbered subdivision of subsection A of this section shall be severable from all others.

10VAC5-20-20. Reserves of Virginia banks.

The percentage of reserves to be maintained against deposits, as established in accordance with § ~~6.1-69~~ 6.2-889 of the Code of Virginia, shall be: 0.0% against demand deposits, and 0.0% against time deposits.

This chapter shall not relieve any bank from complying with all applicable federal laws and with Regulation D, "Reserve Requirements of Depository Institutions," of the Board of Governors of the Federal Reserve System.

10VAC5-20-30. Schedule prescribing annual fees paid for examination, supervision, and regulation of state-chartered banks and savings institutions.

Pursuant to the provisions of §§ ~~6.1-94, 6.1-194.85~~ 6.2-908 and ~~6.1-194.149~~ 6.2-1202 of the Code of Virginia, the State Corporation Commission hereby sets the following schedule of annual fees to be paid by state-chartered banks, savings institutions, and savings banks for their examination, supervision, and regulation:

SCHEDULE
Asset Interval		Fee
Assets Exceeding	But Not Exceeding	This Amount	Plus		Assets Exceeding
$0	$5 million	$6,900	0	x
5 million	25 million	6,900	.0004025	x	$5 million
25 million	100 million	14,950	.00023	x	25 million
100 million	200 million	32,200	.0001725	x	100 million
200 million	1 billion	49,450	.0001265	x	200 million
1 billion	5 billion	150,650	.0001035	x	1 billion
5 billion		564,650	.0000805	x	5 billion

The fee assessed using the above schedule shall be rounded down to the nearest whole dollar. The assessment shall be based on the institution's total assets as shown by its Report of Condition as of the close of business for the preceding calendar year.

A bank or savings institution which opens for business January 1 through June 30 shall be assessed a fee of $6,900 for that year.

A bank or savings institution which opens for business on or after July 1 shall be assessed a fee of $5,175 for that year.

10VAC5-20-40. State savings banks; corporate name and investment requirement.

Pursuant to § ~~6.1-194.141~~ 6.2-1192 of the Code of Virginia, a state savings bank shall not be required to have as a part of its corporate name the word "savings," regardless of §§ ~~6.1-112~~ 6.2-939, 6.2-1040, and ~~6.1-194.112~~ 6.2-1116 of the Code of Virginia. Further, a state savings bank shall be deemed in compliance with the investment in "real estate loans" requirement of § ~~6.1-194.62~~ 6.2-1179 if it meets the "qualified thrift lender test" set forth in 12 USC § 1468a(m)(1)(B).

10VAC5-20-50. Conversion of mutual to stock association.

A. Conversion authorized. As authorized by § ~~6.1-194.32~~ 6.2-1139 of the Code of Virginia, a state mutual savings and loan association may convert to a stock association in accordance with this section, the Virginia Non-Stock Corporation Act (§ 13.1-801 et seq. of the Code of Virginia), and regulations promulgated by the federal Office of Thrift Supervision (OTS) relating to mutual-to-stock conversions.

B. Application for conversion. Upon the affirmative vote of 2/3 of its board of directors, a state mutual association may file with the Bureau of Financial Institutions (bureau) an application to convert to a stock association. The application shall be accompanied by a filing fee of $1,000.00.

The application shall conform to OTS requirements as to its form and content. (A copy of the conversion application submitted to the OTS may be submitted.) In addition, the application shall include:

1. A certified copy of the minutes of the meeting at which the board of directors authorized the association's officers to apply for conversion.

2. The proposed amended articles of incorporation and bylaws of the stock association to be formed.

3. The proposed form of notice to members of the meeting at which conversion will be formally considered and voted upon, which notice shall include a clear statement to account holders that the stock to which they may subscribe will not be an insured investment.

4. A statement of the time and manner in which such notice will be provided.

C. Plan of conversion. In addition to complying with the requirements of OTS regulations, a plan of conversion shall be filed with the bureau that provides:

1. A statement of the business purposes to be accomplished by the conversion.

2. That the word "mutual" will not be in the name of the association after its conversion to stock form of ownership.

3. That no reduction in the association's reserves or net worth will result from the conversion.

D. Preliminary approval. The Commissioner of Financial Institutions (commissioner) shall review the application and, if (i) the application, plan of conversion, and articles of amendment comply with the requirements of state law and regulations, (ii) the proposed plan of conversion appears to be fair and equitable to members of the association, and (iii) there is an intention to retain FDIC insurance of deposit accounts, the commissioner shall issue preliminary approval of the conversion. Such preliminary approval shall be given subject to a concurring shareholder vote and to continued compliance with all applicable laws and regulations.

Prior to granting preliminary approval, the commissioner may require the applicant to submit such additional information as may be necessary for making a determination of fairness and may require that changes in the application be made where necessary to protect the interests of the applicant's members.

E. Special meeting of members. When it has received the commissioner's preliminary approval, the board of directors may call a special meeting of the members of the association for the purpose of considering and voting upon the conversion and the proposed amendments to the association's articles of incorporation. Written notice of such meeting shall conform to the applicable provisions of law and shall be mailed to each member entitled to vote on the matters to be taken up. The plan of conversion, or a summary of it, shall accompany the notice. Notice of the meeting may not be waived.

Conduct of the special meeting and voting on the proposed amendments to the articles of incorporation shall be governed by the applicable provisions of the Non-Stock Corporation Act. Voting rights of members shall be determined in accordance with § ~~6.1-194.17~~ 6.2-1124 of the Code of Virginia. The plan of conversion shall be approved in accordance with § 13.1-886 E D of the Code of Virginia, and a certified copy of the minutes of the special meeting shall be filed promptly with the bureau.

F. Formal approval; effective date of conversion. Upon receiving (i) evidence that the plan of conversion and the amended articles have been duly approved by the association's members, (ii) evidence that the accounts of the stock association will continue to be insured by the FDIC, and (iii) a copy of the amended articles of incorporation, as approved, the commissioner, when satisfied that all applicable laws and regulations have been complied with, shall issue formal approval authorizing the conversion. Thereafter, the effective date of the conversion shall be the date when the Clerk of the State Corporation Commission issues a certificate of amendment giving legal effect to the association's amended articles of incorporation.

G. Actions performed by the commissioner under this section shall be subject to review pursuant to the State Corporation Commission Rules of Practice and Procedure (5VAC5-20).

10VAC5-22-10. Definitions.

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

"Affiliate" means generally a person that directly or indirectly controls, is controlled by, or is under common control with another person. In addition, for purposes of ~~the Trust Company Act, Article 3.2~~ Article 1 (§ 6.2-1000 et seq.) and Article 2 (§ ~~6.1-32.11~~ 6.2-1013 et seq.) of Chapter 2 10 of Title ~~6.1~~ 6.2 of the Code of Virginia, a broker-dealer, investment advisor, or investment company is an affiliate of a trust company if a trust company holding company controls the trust company and owns, directly or indirectly, 5.0% or more of any class of the capital stock of the broker-dealer, investment advisor, or investment company.

"Affiliated trust company" means a trust company that is controlled by a trust company holding company. For purposes of ~~the Act~~ Articles 1 and 2 of Chapter 10 of Title 6.2 of the Code of Virginia, a trust company holding company or other person has control of a trust company or other legal entity if the person owns 25% or more of the voting stock of the trust company or entity; if, pursuant to the definition of control in the Bank Holding Company Act of 1956 (12 USC § 1841 et seq.), the person would be presumed to control the trust company or entity; or if the commission determines that the person exercises a controlling influence over the management and policies of the trust company or entity.

"Broker-dealer" means any person selling any type of security other than an interest or unit in a condominium as defined in subdivision (c) of § 55-79.2 of the Code of Virginia or cooperative housing corporation for the account of others or for his own account otherwise than with or through a broker-dealer or agent, but does not include a bank, a trust subsidiary formed under Article ~~3.1~~ 3 (§ ~~6.1-32.1~~ 6.2-1047 et seq.) of Chapter 2 10 of Title ~~6.1~~ 6.2 of the Code of Virginia, an issuer or an agent.

"Bureau" means the Bureau of Financial Institutions of the State Corporation Commission.

"Commission" means the State Corporation Commission.

"Trust company" means a corporation, including an affiliated trust company, authorized to engage in the trust business under ~~Article 3.2~~ Article 1 (§ 6.2-1000 et seq.) and Article 2 (§ ~~6.1-32.11~~ 6.2-1013 et seq.) of Chapter 2 10 of Title ~~6.1~~ 6.2 of the Code of Virginia with powers expressly restricted to the conduct of general trust business.

"Trust company holding company" means a corporation which owns, directly or indirectly, 5.0% or more of any class of capital stock of a broker-dealer, investment advisor, or investment company and which also controls a trust company.

10VAC5-22-50. Insurance required.

In addition to the surety bond required by § ~~6.1-32.17~~ 6.2-1016 of the Code of Virginia, a trust company shall maintain insurance coverage that, in kind and amount, provides adequate protection against the risks of the business. The coverage may be provided through the holding company of an affiliated trust company.

10VAC5-22-140. Purchases from affiliate prohibited; exceptions; terms.

Section ~~6.1-32.14:2~~ 6.2-1020 of the Code of Virginia provides that an affiliated trust company may not, during the underwriting period, purchase from an affiliated broker-dealer any security that is being underwritten by that broker-dealer.

Outside the scope of § ~~6.1-32.14:2~~ 6.2-1020 of the Code of Virginia, an affiliated trust company may not purchase any security or other property from an affiliate, except as authorized by a provision of a governing trust instrument or other controlling document, by a court, or in accordance with specific permission given by law (e.g., § 26-44.1 of the Code of Virginia). Any such purchase from an affiliate shall be made at arm's length and on terms no less stringent than those that would apply in a transaction with an unrelated third party.

10VAC5-30-10. Definitions.

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

"Company" means any corporation, partnership, trust, joint stock company, or similar organization.

"Control" means the ownership, control, or power to vote 25% percent or more of the voting shares of a state savings institution or other company, the ability to elect a majority of the directors of such an institution or company, or, as determined by the Commission on the basis of evidence, actual control of the management or policies of such an institution or company.

"Financial institution" means any bank, trust company, savings and loan association, industrial loan association, consumer finance company, or credit union. (§ ~~6.1-2.1~~ 6.2-100 of the Code of Virginia.)

"Person" means a company, association, joint venture, pool, syndicate, sole proprietorship, unincorporated association, individual or any other entity not specifically listed.

"Savings institution" means a savings and loan association, building and loan association, building association, or savings bank, whether organized as a capital stock corporation or a nonstock corporation, which is authorized by law to accept deposits and to hold itself out to the public as engaged in the savings institution business.

"Savings institution holding company" means any person that directly or indirectly, or acting in concert with one or more other companies or persons (including one or more subsidiaries or affiliates) controls one or more stock savings institutions, or that controls in any manner the election of a majority of the directors of such an institution.

"State savings institution" means a savings institution granted a certificate of authority pursuant to the laws of the Commonwealth. (The term is identical to "state association " as defined in § ~~6.1-194.2~~ 6.2-1100 of the Code of Virginia.)

"State savings institution holding company" means a savings institution holding company that controls one or more state savings institutions, but that is not a "regional savings institution holding company" as defined in § ~~6.1-194.96~~ 6.2-1148 of the Code of Virginia.

10VAC5-30-20. Scope.

This chapter governs acquisitions intra-state of control of state savings institutions and of state savings institution holding companies, and acquisitions by such holding companies. It governs the examination, supervision and regulation of state savings institution holding companies. This chapter does not apply to any inter-state acquisition authorized by Article 11 5 (§ ~~6.1-194.96~~ 6.2-1148 et seq. of the Code of Virginia) of Chapter ~~3.01~~ 11 of Title ~~6.1~~ 6.2, or to the reporting, examination, supervision, and regulation of any regional savings institution holding company resulting from such an inter-state transaction; such matters are governed entirely by Article 11 5 and by any regulation adopted pursuant thereto.

10VAC5-40-10. Surety bond amount required.

A. Every credit union incorporated and operating under the provisions of Chapter ~~4.01~~ 13 (§ ~~6.1-225.1~~ 6.2-1300 et seq.) of Title ~~6.1~~ 6.2 of the Code of Virginia shall obtain and keep in force a blanket surety bond upon all of its officials, committee members and employees in a surety company licensed to do business in Virginia in an amount of at least that shown in the following schedule based upon its total assets as shown by its latest statement of financial condition made to the Commission as of the end of each calendar year:

ASSETS	MINIMUM BOND
$0 to $10,000	Coverage equal to the credit union's assets.
$10,001 to $1,000,000	$10,000 for each $100,000 or fraction thereof.
$1,000,001 to $50,000,000	$100,000 plus $50,000 for each million or fraction over $1,000,000.
$50,000,001 to $295,000,000	$2,550,000 plus $10,000 for each million or fraction thereof over $50,000,000.
Over $295,000,000	$5,000,000

B. The maximum amount of deductibles allowed are based on the credit union's total assets. The following table sets out the maximum deductibles:

ASSETS	MINIMUM DEDUCTIBLE
$0 - $100,000	No deductibles allowed
$100,001 - $250,000	$1,000
$250,001 - $1,000,000	$2,000
Over $1,000,000	$2,000 plus 1/1000 of total assets up to a maximum deductible of $200,000

C. No bond obtained pursuant to this chapter may be canceled unless written notice thereof is given to the Commissioner of Financial Institutions at least 30 days prior to the effective date of such cancellation, and every such bond shall contain a provision to that effect.

10VAC5-40-20. Schedule prescribing annual fees paid for examination, supervision, and regulation of state chartered credit unions.

Pursuant to the requirement of § ~~6.1-225.5~~ 6.2-1310 of the Code of Virginia, state-chartered credit unions shall pay annual fees for their examination, supervision and regulation in accordance with the following schedule:

SCHEDULE
Total Assets	FEE
$25,000 or less	$4 per $1,000 but not less than $20
Over $25,000 through $100,000	$100 plus $1.75 per $1,000 for assets in excess of $25,000
Over $100,000 through $1,000,000	$231.25 plus $.75 per $1,000 for assets in excess of $100,000
Over $1,000,000 through $5,000,000	$906.25 plus $.60 per $1,000 for assets in excess of $1,000,000
Over $5,000,000 through $10,000,000	$3,306.25 plus $.30 per $1,000 for assets in excess of $5,000,000
Over $10,000,000	$4,806.25 plus $.20 per $1,000 of assets in excess of $10,000,000

(These fees are to be applied to even $1,000 units, with fractional parts of $1,000 dropped.)

The assessment shall be computed on the basis of the credit union's total assets as shown by its Report of Condition as of the close of business for the preceding year (December 31), as filed with the Bureau of Financial Institutions on or before the first day of February.

10VAC5-40-30. Regular reserve accounts.

Pursuant to § ~~6.1-225.3:1~~ 6.2-1377 of the Code of Virginia, a state credit union shall establish and maintain a regular reserve account in accordance with applicable provisions of Part 702 of the National Credit Union Administration Rules and Regulations, 12 CFR 702.1 through 702.403, regardless of ~~subdivisions 1, 2, and 3 of~~ § ~~6.1-225.58~~ 6.2-1377 of the Code of Virginia.

10VAC5-40-40. Serving underserved areas.

Any multiple-group state credit union shall have the power to amend its articles of incorporation or bylaws, pursuant to § ~~6.1-225.16~~ 6.2-1323 of the Code of Virginia, to expand its field of membership to include individuals and organizations in one or more underserved areas to the same extent, and subject to the same conditions, as is authorized for federal credit unions under 12 USC § 1759. The numerical limitations contained in § ~~6.1-225.23~~ 6.2-1327 B 2 and the provisions of § ~~6.1-225.23:1~~ 6.2-1328 of the Code of Virginia shall not apply to the exercise of this power.

10VAC5-40-60. Credit union service organizations (CUSOs).

A. 1. Except as otherwise provided in this section, a state-chartered credit union shall not, directly or indirectly, invest its funds or make loans pursuant to subdivision 10 of § ~~6.1-225.57~~ 6.2-1376 of the Code of Virginia.

2. Except as provided in subsection H of this section, a CUSO shall not, directly or indirectly, invest any of its funds in a corporation, limited liability company, partnership, association, trust, or other legal or commercial entity unless the state-chartered credit union or credit unions having an interest in the CUSO would be permitted to directly invest its funds in such entity and the state-chartered credit union or credit unions comply with the notice requirement in subsection B and the other provisions of this section.

3. CUSOs shall not, directly or indirectly, acquire control of another depository institution, nor invest in shares, stocks, or obligations of an insurance company, trade association, liquidity facility, or similar organization, corporation, or association.

B. 1. A state-chartered credit union shall give the Commissioner of Financial Institutions (commissioner) written notice of its investment in or loans to a CUSO.

2. A state-chartered credit union may invest up to 5.0% of its outstanding shares and reserves in a CUSO. However, a state-chartered credit union's total investments in all CUSOs shall not exceed, in the aggregate, 5.0% of its outstanding shares and reserves.

3. A state-chartered credit union may make loans to a CUSO provided that the amount of the loans, when combined with the credit union's total investments in and loans to all CUSOs, does not exceed, in the aggregate, 5.0% of its outstanding shares and reserves.

4. If the limits specified above are reached or exceeded because of the profitability of the CUSO and the related GAAP valuation of the investment under the equity method, without an additional cash outlay by the state-chartered credit union, divestiture is not required. A state-chartered credit union may continue to invest up to these limits without regard to the increase in the GAAP valuation resulting from a CUSO's profitability.

5. The 5.0% limits specified in this subsection may be exceeded with prior written approval from the commissioner.

C. 1. A state-chartered credit union may invest in or make loans to a CUSO only if the CUSO is or will be structured as a corporation, limited liability company, or limited partnership. A state-chartered credit union may only participate in a limited partnership as a limited partner.

2. A state-chartered credit union may invest in or make loans to a CUSO only if the CUSO primarily serves credit unions, its membership, or the membership of credit unions contracting with the CUSO.

3. A state-chartered credit union shall account for its investments in or loans to a CUSO in conformity with GAAP.

4. A state-chartered credit union shall obtain written agreements from a CUSO, prior to investing in or making loans to the CUSO, that the CUSO shall:

a. Account for all of its transactions in accordance with GAAP;

b. Prepare quarterly financial statements and obtain an annual financial statement audit of its financial statements by a licensed certified public accountant in accordance with generally accepted auditing standards. A wholly owned CUSO is not required to obtain a separate annual financial statement audit if it is included in the annual consolidated financial statement audit of the credit union that is its parent; and

c. Provide the Bureau of Financial Institutions (bureau) and its staff with complete access to any books and records of the CUSO and the ability to review CUSO internal controls, as deemed necessary by the bureau in carrying out its responsibilities under ~~the Virginia Credit Union Act (§ 6.1-225.1 et seq. of the Code of Virginia)~~ Chapter 13 (§ 6.2-1300 et seq.) of Title 6.2 of the Code of Virginia.

5. A CUSO shall comply with all applicable federal, state, and local laws and regulations.

D. 1. A state-chartered credit union and a CUSO shall be operated in a manner that demonstrates to the public the separate existence of the state-chartered credit union and the CUSO. Good business practices dictate that each shall operate so that:

a. Its respective business transactions, accounts, and records are not intermingled;

b. Each observes the formalities of its separate company procedures;

c. Each is adequately financed as a separate unit in light of normal obligations reasonably foreseeable in a business of its size and character;

d. Each is held out to the public as a separate enterprise;

e. The state-chartered credit union does not dominate the CUSO to the extent that the CUSO is treated as a department of the credit union; and

f. Unless the state-chartered credit union has guaranteed a loan obtained by the CUSO, all borrowings by the CUSO shall indicate that the state-chartered credit union is not liable.

2. If a CUSO in which a state-chartered credit union has an investment plans to change its structure, the credit union shall obtain prior, written legal advice that the CUSO shall remain established in a manner that will limit potential exposure of the credit union to no more than the loss of funds invested in or loaned to the CUSO. The legal advice shall address factors that have led courts to "pierce the corporate veil" such as inadequate capitalization, lack of separate corporate identity, common boards of directors and employees, control of one entity over another, and lack of separate books and records. The legal advice may be provided by independent legal counsel of either the investing state-chartered credit union or the CUSO.

E. The commissioner may at any time, based upon supervisory, legal, or safety and soundness considerations, prohibit or otherwise limit any CUSO activities or services.

F. A state-chartered credit union may only invest in or make loans to CUSOs that are or will be sufficiently bonded or insured for their specific operations.

G. A state-chartered credit union may only invest in or make loans to CUSOs that are or will be engaged in activities and services that are reasonably related to the operations of credit unions, including but not limited to the following:

1. Checking and currency services (i.e., check cashing, coin and currency services, money orders, savings bonds, travelers checks, and purchase and sale of U.S. Mint commemorative coin services);

2. Clerical, professional and management services (i.e., accounting services, courier services, credit analyses, facsimile transmissions, copying services, internal audits for credit unions, locator services, management and personnel training and support, marketing services, research services, and supervisory committee audits);

3. Business loan origination;

4. Consumer mortgage loan origination and processing;

5. Electronic transaction services (i.e., automated teller machine (ATM) services, credit card and debit card services, data processing, electronic fund transfer (EFT) services, electronic income tax filing, payment item processing, wire transfer services, and cyber financial services);

6. Financial counseling services (i.e., developing and administering Individual Retirement Accounts (IRAs), Keogh, deferred compensation, and other personnel benefit plans, estate planning, financial planning and counseling, income tax preparation, investment counseling, and retirement counseling);

7. Fixed asset services (i.e., management, development, sale, or lease of fixed assets, and sale, lease, or servicing of computer hardware or software);

8. Insurance brokerage or agency (i.e., agency for sale of insurance, provision of vehicle warranty programs, and provision of group purchasing programs);

9. Leasing personal property and real estate leasing of excess CUSO property;

10. Loan support services (i.e., debt collection services, loan processing, loan servicing, loan sales, and selling repossessed collateral);

11. Record retention, security and disaster recovery services (i.e., alarm-monitoring and other security services, disaster recovery services, microfilm, microfiche, optical and electronic imaging, CD-ROM data storage and retrieval services, provision of forms and supplies, and record retention and storage);

12. Securities brokerage services;

13. Shared credit union branch (service center) operations;

14. Student loan origination;

15. Travel agency services;

16. Trust and trust-related services (i.e., acting as administrator for prepaid legal service plans, acting as trustee, guardian, conservator, estate administrator, or in any other fiduciary capacity, and other trust services); and

17. Real estate brokerage services and real estate listing services.

H. In connection with providing a permissible service, a CUSO may invest in a non-CUSO service provider. The amount of the CUSO's investment is limited to the amount necessary to participate in the service provider, or a greater amount if necessary to receive a reduced price for goods or services.

I. In order for a state-chartered credit union to invest in or make loans to a CUSO that is or will be engaged in activities or services that are not enumerated in subsection G of this section, the state-chartered credit union shall obtain prior approval from the State Corporation Commission (commission). A request for commission approval of an activity or service that is not enumerated in subsection G of this section shall be submitted in writing to the commissioner and include a full explanation and complete documentation of the activity or service and how that activity or service is reasonably related to the operations of credit unions.

J. 1. If a state-chartered credit union has outstanding loans or investments in a CUSO, then the credit union's officials, senior management employees, and their immediate family members shall not receive, either directly or indirectly, any salary, commission, investment income, or other income or compensation from the CUSO or from any person being served through the CUSO. This provision does not prohibit the credit union's officials or senior management employees from assisting in the operation of a CUSO, provided the officials or senior management employees are not compensated by the CUSO. Furthermore, the CUSO may reimburse the state-chartered credit union for the services provided by such credit union officials and senior management employees only if the account receivable of the credit union due from the CUSO is paid in full at least every 120 days.

2. The prohibition contained in subdivision 1 of this subsection also applies to state-chartered credit union employees not otherwise covered if the employees are directly involved in dealing with the CUSO, unless the state-chartered credit union's board of directors determines that the credit union's employees' positions do not present a conflict of interest.

3. All transactions with business associates or family members of state-chartered credit union officials, senior management employees, or their immediate family members that are not specifically prohibited by subdivision 1 or 2 of this subsection shall be conducted at arm's length and in the interest of the state-chartered credit union.

K. 1. A state-chartered credit union's investments in CUSOs in existence prior to July 1, 2008, shall conform with this section no later than January 1, 2009, unless the commissioner grants prior written approval to continue the credit union's investments for a stated period.

2. A state-chartered credit union's loans to CUSOs in existence prior to July 1, 2008, shall conform with this section no later than January 1, 2009, unless (i) the commissioner grants prior written approval to continue the credit union's loans for a stated period, or (ii) under the terms of its loan agreement, the credit union cannot require accelerated repayment without breaching the agreement.

VA.R. Doc. No. R12-2558; Filed August 19, 2011, 3:10 p.m.