Title of Regulation: 2VAC5-320. Regulations for the Enforcement of the Endangered Plant and Insect Species Act (amending 2VAC5-320-10).

Statutory Authority: §§ 3.2-1002 and 3.2-1005 of the Code of Virginia.

Effective Date: December 18, 2013.

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

Summary:

The amendments (i) remove nestronia umbellula (nestronia) from the endangered species list; (ii) add boltonia montana (valley doll's-daisy), isoetes virginica (Virginia quillwort), and pseudanophthalmus thomasi (Thomas' cave beetle) to the endangered species list; and (iii) add clematis viticaulis (Millboro leatherflower) to the threatened species list.

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.

2VAC5-320-10. Listing of endangered and threatened plant and insect species.

A. The Board of Agriculture and Consumer Services hereby adopts the following regulation in order to protect designated plant and insect species that exist in this Commonwealth. All designated species are subject to all sections of the Virginia Endangered Plant and Insect Species Act (§ 3.2-1000 et seq. of the Code of Virginia).

B. The following plant and insect species are hereby declared an endangered species:

1. Boltonia montana, valley doll's-daisy.

1. 2. Cardamine micranthera, small-anthered bittercress.

2. 3. Carex juniperorum, juniper sedge.

3. 4. Corallorhiza bentley, Bentley's coralroot.

4. 5. Fimbristylis perpusilla, Harper's fimbristylis.

5. 6. Helenium virginicum, Virginia sneezeweed.

6. 7. Helonias bullata, swamp-pink.

7. 8. Ilex collina, long-stalked holly.

8. 9. Iliamna corei, Peter's mountain Mountain mallow.

10. Isoetes virginica, Virginia quillwort.

9. 11. Isotria medeoloides, small whorled pogonia.

10. 12. Neonympha mitchellii, Mitchell's satyr butterfly.

11. Nestronia umbellula, nestronia.

13. Pseudanophthalmus holsingeri, Holsinger's cave beetle.

14. Pseudanophthalmus thomasi, Thomas' cave beetle.

12. 15. Ptilimnium nodosum, harperella.

13. 16. Puto kosztarabi, Buffalo Mountain mealybug.

14. Pseudanophthalmus holsingeri, Holsinger's cave beetle.

15. 17. Scirpus ancistrochaetus, Northeastern bulrush.

16. 18. Sigara depressa, Virginia Piedmont water boatman.

17. 19. Spiraea virginiana, Virginia spiraea.

18. 20. Trifolium calcaricum, running glade clover.

C. The following plant and insect species are hereby declared a threatened species:

1. Aeschynomene virginica, sensitive-joint vetch.

2. Amaranthus pumilus, seabeach amaranth.

3. Arabis serotina, shale barren rock cress rockcress.

4. Cicindela dorsalis dorsalis, Northeastern beach tiger beetle.

5. Clematis viticaulis, Millboro leatherflower.

5. 6. Echinacea laevigata, smooth coneflower.

6. 7. Juncus caesariensis, New Jersey rush.

7. 8. Lycopodiella margueritiae, Northern prostrate clubmoss.

8. 9. Nuphar sagittifolia, narrow-leaved spatterdock.

9. 10. Platanthera leucophaea, Eastern prairie fringed orchid.

10. 11. Pyrgus wyandot, Appalachian grizzled skipper.

11. 12. Rhus michauxii, Michaux's sumac.

12. 13. Scirpus flaccidifolius, reclining bulrush.

Title of Regulation: 2VAC5-690. Regulations for Pesticide Containers and Containment under Authority of the Virginia Pesticide Control Act (adding 2VAC5-690-10 through 2VAC5-690-240).

Statutory Authority: § 3.2-3906 of the Code of Virginia; 40 CFR Part 165.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 18, 2013.

Effective Date: January 2, 2014.

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

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board that may adopt regulations in accordance with Title 3.2 of the Code of Virginia.

Section 3.2-3906 of the Code of Virginia authorizes the board to adopt regulations that are necessary to carry out the purposes of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia regarding pesticides. This authority is discretionary.

Purpose: Regulatory standards and requirements for pesticide containers, repackaging pesticides, and pesticide containment structures are essential to protect the environment from potential contamination resulting from accidental pesticide discharges. The enforcement of the current federal regulations utilizing the federal credentials issued to Virginia's pesticide investigators by the U.S. Environmental Protection Agency (EPA) is sufficient to demonstrate compliance with the federal rule. However, the promulgation of Virginia's own regulations would allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions, thereby benefiting the welfare of the regulants subject to the provisions of this regulation. The health, safety, and welfare of Virginians would not be adversely impacted because the proposed regulations are equivalent to those currently in place at the federal level. Moreover, the enforcement of a state pesticide container and containment regulation would be more cost effective because, under the proposed regulations, investigators would be able to perform container and containment inspections in conjunction with other inspection activities at all applicable sites.

Rationale for Using Fast-Track Process: Department staff expects the regulations will be noncontroversial because the requirements are identical to those of Part 165 of Title 40 of the Code of Federal Regulations, Pesticide Management and Disposal, with which industry is already expected to comply. Since the finalization of the federal regulations, the Department of Agriculture and Consumer Services has provided compliance assistance to the approximately 50 pesticide businesses that are required to comply with its provisions.

Substance: These regulations establish standards for (i) container design and residue removal for nonrefillable pesticide containers, (ii) container design for refillable pesticide containers, (iii) repackaging pesticide products into refillable containers, and (iv) pesticide containment structures. The regulations establish standards for both the registrant of a pesticide product and the refiller who repackages a pesticide product. The regulations also establish recordkeeping requirements.

Issues: The promulgation of Virginia's own regulations will allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. This additional flexibility and discretion will be an advantage to both regulants and the agency.

The regulations pose no disadvantages to the public or the Commonwealth as the regulations are equivalent to federal regulations that are currently in place.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Part 165 of Title 40 of the Code of Federal Regulations, Pesticide Management and Disposal, establishes standards for container design and residue removal in non-refillable pesticide containers, standards for container design in refillable pesticide containers, standards for repackaging pesticide products into refillable containers, and standards for pesticide containment structures. The Board of Agriculture and Consumer Services proposes to promulgate equivalent regulations.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. According to the Virginia Department of Agriculture and Consumer Services (Department), the enforcement of the current federal regulations utilizing the federal credentials issued to Virginia's pesticide investigators by the U.S. Environmental Protection Agency (EPA) is sufficient to demonstrate compliance with the federal rule. However, the promulgation of Virginia's own regulations would allow more flexibility and greater discretion in the enforcement of pesticide container and containment requirements based on Virginia's unique needs and conditions. The health, safety, and welfare of Virginians would not be adversely affected because the proposed regulations are equivalent to those currently in place at the federal level. Moreover, the enforcement of a state pesticide container and containment regulation would be more cost-effective since under the proposed regulations, investigators would be able to perform container and containment inspections in conjunction with other inspection activities at all applicable sites.

It is a violation of EPA policy for state investigators, during the same visit to any given facility, to conduct any type of pesticide inspection not related to the container and containment inspection being conducted under the investigator's federal credentials. With 50 regulated sites in Virginia that receive a state inspection and a container and containment inspection once a year, the proposed regulations would enable a reduction in duplicative travel that the Department anticipates will result in savings of approximately $20,000. Additionally, compliance actions under a state pesticide container and containment regulation will be processed more quickly and in accordance with Virginia-specific administrative processes and penalty matrix. The federal compliance process can be lengthy, often taking a year or longer to reach resolution.

Businesses and Entities Affected. Pesticide registrants, retailers, distributors, commercial applicators, custom blenders, and end-users may all be affected by the proposed regulations. The Department estimates that approximately 50 facilities will be required to comply with the proposed regulations, the vast majority of these facilities being small businesses.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The promulgation of these regulations will not significantly affect employment.

Effects on the Use and Value of Private Property. The promulgation of these regulations will not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The promulgation of these regulations will not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The promulgation of these regulations will not adversely affect small businesses.

Real Estate Development Costs. The promulgation of these regulations will not affect real estate development costs.

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

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

Summary:

The regulations establish standards for (i) container design and residue removal in nonrefillable pesticide containers, (ii) container design in refillable pesticide containers, (iii) repackaging pesticide products into refillable containers, and (iv) pesticide containment structures. The regulations also establish recordkeeping requirements. The regulations are equivalent to federal regulations located at 40 CFR Part 165, Pesticide Management and Disposal.

CHAPTER 690
REGULATIONS FOR PESTICIDE CONTAINERS AND CONTAINMENT UNDER AUTHORITY OF THE VIRGINIA PESTICIDE CONTROL ACT

2VAC5-690-10. Scope.

This chapter establishes standards and requirements for pesticide containers, repackaging pesticides, and pesticide containment structures.

2VAC5-690-20. Definitions.

Terms used in this chapter have the same meaning as in the Federal Insecticide, Fungicide, Rodenticide Act (7 USC § 136 et seq.) and 40 CFR Part 152. In addition, as used in this chapter, the following terms shall have the meanings set forth below.

"Agricultural pesticide" means any pesticide product labeled for use in or on a farm, forest, nursery, or greenhouse.

"Appurtenance" means any equipment or device that is used for the purpose of transferring a pesticide from a stationary pesticide container or to any refillable container, including but not limited to hoses, fittings, plumbing, valves, gauges, pumps, and metering devices.

"Capacity" means, as applied to containers, the rated capacity of the container.

"CFR" means the Code of Federal Regulations.

"Container" means any package, can, bottle, bag, barrel, drum, tank, or other containing-device (excluding any application tanks) used to enclose a pesticide. Containers that are used to sell or distribute a pesticide product and that also function in applying the product (such as spray bottles, aerosol cans, and containers that become part of a direct injection system) are considered to be containers for the purposes of this chapter.

"Containment pad" means any structure that is designed and constructed to intercept and contain pesticides, rinsates, and equipment washwater at a pesticide dispensing area.

"Containment structure" means either a secondary containment unit or a containment pad.

"Custom blending" means the service of mixing pesticides to a customer's specifications, usually a pesticide-fertilizer, pesticide-pesticide, or a pesticide-animal feed 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.

"Dilutable" means that the pesticide product's labeling allows or requires the pesticide product to be mixed with a liquid diluent prior to application or use.

"Dry pesticide" means any pesticide that is in solid form and that has not been combined with liquids; this includes formulations such as dusts, wettable powders, dry flowables, water-soluble powders, granules, and dry baits.

"EPA" means the U.S. Environmental Protection Agency.

"Establishment" means any site where a pesticidal product, active ingredient, or device is produced, regardless of whether such site is independently owned or operated, and regardless of whether such site is domestic and producing a pesticidal product for export only, or whether the site is foreign and producing any pesticidal product for import into the United States.

"Facility" means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person (or by any person who controls, who is controlled by, or who is under common control with such person).

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

"Nonrefillable container" means a container that is not a refillable container and that is designed and constructed for one-time use and is not intended to be filled again with a pesticide for sale or distribution. Reconditioned containers are considered to be nonrefillable containers.

"One-way valve" means a valve that is designed and constructed to allow virtually unrestricted flow in one direction and no flow in the opposite direction, thus allowing the withdrawal of material from, but not the introduction of material into, a container.

"Operator" means any person in control of, or having responsibility for, the daily operation of a facility at which a containment structure is located.

"Owner" means any person who owns a facility at which a containment structure is required.

"Pesticide compatible as applied to containers" means that the container construction materials will not chemically react with the formulation. A container is not compatible with the formulation if, for example, the formulation:

1. Is corrosive to the container;

2. Causes softening, premature aging, or embrittlement of the container;

3. Otherwise causes the container to weaken or to create the risk of discharge;

4. Reacts in a significant chemical, electrolytic, or galvanic manner with the container; or

5. Interacts in a way, such as the active ingredient permeating the container wall, that would cause the formulation to differ from its composition as described in the statement required in connection with its registration under § 3 of FIFRA (7 USC § 136a).

"Pesticide compatible as applied to containment" means that the containment construction materials are able to withstand anticipated exposure to stored or transferred substances without losing the capability to provide the required containment of the same or other substances within the containment area.

"Pesticide dispensing area" means an area in which pesticide is transferred out of or into a container.

"Portable pesticide container" means a refillable container that is not a stationary pesticide container.

"Produce" means to manufacture, prepare, propagate, compound, or process any pesticide, including any pesticide produced pursuant to § 5 of FIFRA (7 USC § 136c), and any active ingredient or device, or to package, repackage, label, relabel, or otherwise change the container of any pesticide or device.

"Producer" means any person, as defined by FIFRA, who produces any pesticide, active ingredient, or device (including packaging, repackaging, labeling, and relabeling).

"Refillable container" means a container that is intended to be filled with pesticide more than once for sale or distribution.

"Refiller" means a person who engages in the activity of repackaging pesticide product into refillable containers. This could include a registrant or a person operating under contract to a registrant.

"Refilling establishment" means an establishment where the activity of repackaging pesticide product into refillable containers occurs.

"Registrant" means the person registering any pesticide pursuant to the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

"Repackage" means to transfer a pesticide formulation from one container to another without a change in the composition of the formulation, the labeling content, or the product's EPA registration number for sale or distribution.

"Rinsate" means the liquid resulting from the rinsing of the interior of any equipment or container that has come in direct contact with any pesticide.

"Runoff" means any liquid leaving the target site, including water, pesticide rinsate, and pesticide diluents.

"Secondary containment unit" means any structure, including rigid diking, that is designed and constructed to intercept and contain pesticide spills and leaks and to prevent runoff and leaching from stationary pesticide containers.

"Stationary pesticide container" means a refillable container (i) that is fixed at a single facility or establishment or, if not fixed, remains at the facility or establishment for at least 30 consecutive days and (ii) that holds pesticide during the entire time.

"Suspension concentrate" means a stable suspension of solid particulate active ingredients in a liquid intended for dilution with water before use.

"Tamper-evident device" means a device that can be visually inspected to determine if a container has been opened.

"Transport vehicle" means a cargo-carrying vehicle such as an automobile, van, tractor, truck, semitrailer, tank car, or rail car used for the transportation of cargo by any mode.

"USDOT" means the U.S. Department of Transportation.

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

"Washwater" means the liquid resulting from the rinsing of the exterior of any equipment or containers that have or may have come in direct contact with any pesticide or system maintenance compound, such as oil or antifreeze.

Part II
Nonrefillable Container Standards: Container Design and Residue Removal

2VAC5-690-30. General provisions.

A. The regulations in Part II (2VAC5-690-30 et seq.) of this chapter establish design and construction requirements for nonrefillable containers used for the distribution or sale of some pesticide products.

B. A registrant who distributes or sells a pesticide product in nonrefillable containers must comply with the regulations in Part II of this chapter. A registrant whose pesticide product is subject to the regulations in Part II of this chapter as set out in 2VAC5-690-40 must distribute or sell the pesticide product in a nonrefillable container that meets the standards of these regulations.

2VAC5-690-40. Scope of pesticide products included.

A. The regulations in Part II (2VAC5-690-30 et seq.) of this chapter do not apply to manufacturing use products, as defined in 40 CFR 158.153(h).

B. The regulations in Part II of this chapter do not apply to plant-incorporated protectants, as defined in 40 CFR 174.3.

C. The regulations in Part II of this chapter do not apply to a pesticide product if it satisfies all of the following conditions:

1. The pesticide product meets one of the following two criteria:

a. The pesticide product is an antimicrobial pesticide as defined in § 2(mm) of FIFRA (7 USC § 136(mm)); or

b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).

2. The labeling of the pesticide product includes directions for use on a site in at least one of the following antimicrobial product use categories: food handling/storage establishments premises and equipment; commercial, institutional, and industrial premises and equipment; residential and public access premises; medical premises and equipment; human drinking water systems; materials preservatives; industrial processes and water systems; antifouling coatings; wood preservatives; or swimming pools.

3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.

4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part II of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection D of this section.

D. As established in 40 CFR 165.23(d), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part II of this chapter.

E. Except for manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt under subsection C of this section, all of the regulations in Part II of this chapter apply to a pesticide product if it satisfies at least one of the following criteria:

1. The pesticide product meets the criteria of Toxicity Category I as set out in 40 CFR 156.62.

2. The pesticide product meets the criteria of Toxicity Category II as set out in 40 CFR 156.62.

3. The pesticide product is classified for restricted use as set out in 40 CFR 152.160 through 40 CFR 152.175.

F. Except for manufacturing use products, plant-incorporated protectants, antimicrobial products that are exempt under subsection C of this section, and other pesticide products that are regulated under subsection E of this section, a pesticide product must be packaged in compliance with 49 CFR 173.24. If the pesticide product meets the definition of a hazardous material in 49 CFR 171.8, the USDOT requires it to be packaged according to 49 CFR Part 171 through 49 CFR Part 180.

2VAC5-690-50. Nonrefillable container standards.

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part II of this chapter as described in 2VAC5-690-40.

B. A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 49 CFR 173.5, 49 CFR 173.6, 49 CFR 173.24, 49 CFR 173.24a, 49 CFR 173.24b, 49 CFR 173.28, 49 CFR 173.155, 49 CFR 173.203, 49 CFR 173.213, 49 CFR 173.240(c), 49 CFR 173.240(d), 49 CFR 173.241(c), 49 CFR 173.241(d), 49 CFR Part 178, and 49 CFR Part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.

C. A registrant's nonrefillable containers must comply with the following standards if the registrant's pesticide product is a USDOT hazardous material as defined in 49 CFR 171.8:

1. The USDOT requires the pesticide product to be packaged according to 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B.

2. The pesticide product must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subdivision apply to the pesticide product as it is packaged for transportation in commerce.

D. Any nonrefillable container that is a rigid container with a capacity equal to or greater than three liters (0.79 gallons), is not an aerosol container or a pressurized container, and is used to distribute or sell a liquid agricultural pesticide must have at least one of the following standard closures:

1. Bung, two-inch pipe size (2.375 inches in diameter), external threading, 11.5 threads per inch, National Pipe Straight (NPS) standard;

2. Bung, two-inch pipe size (2.375 inches in diameter), external threading, five threads per inch, buttress threads;

3. Screw cap, 63 millimeters, at least one thread revolution at six threads per inch; or

4. Screw cap, 38 millimeters, at least one thread revolution at six threads per inch. The cap may fit on a separate rigid spout or on a flexible pull-out plastic spout.

E. Any nonrefillable container that has a capacity of five gallons (18.9 liters) or less; is not an aerosol container, a pressurized container, or a spray bottle; and holds a liquid pesticide must do both of the following:

1. Allow the contents of the nonrefillable container to pour in a continuous, coherent stream.

2. Allow the contents of the nonrefillable container to be poured with a minimum amount of dripping down the outside of the container.

F. Each nonrefillable container and pesticide formulation combination must meet the applicable residue removal standard of this section.

1. If the nonrefillable container is rigid and has a capacity less than or equal to five gallons (18.9 liters) for liquid formulations or 50 pounds (22.7 kilograms) for solid formulations and if the pesticide product's labeling allows or requires the pesticide product to be mixed with a liquid diluent prior to application (that is, if the pesticide is dilutable), each container/formulation combination must be capable of attaining at least 99.99% removal of each active ingredient when tested using the EPA test procedure "Rinsing Procedures for Dilutable Pesticide Products in Rigid Containers."

2. The test must be conducted only if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case-by-case basis.

3. For the rigid container/dilutable product standard in subdivision 1 of this subsection, percent removal represents the percent of the original concentration of the active ingredient in the pesticide product when compared to the concentration of that active ingredient in the fourth rinse. Percent removal is calculated by the formula: percent removal = [1.0 - RR] x 100.0, where RR = rinsate ratio = Active ingredient concentration in fourth rinsate/Original concentration of active ingredient in the product.

G. As established in 40 CFR 165.25(g) and 40 CFR 165.25(h), a registrant may obtain from EPA a waiver from or a modification to the nonrefillable container standards.

2VAC5-690-60. Reporting and recordkeeping.

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part II of this chapter as described in 2VAC5-690-40.

B. A registrant is not required to report to VDACS with information about the registrant's nonrefillable containers under the regulations in Part II of this chapter. A registrant should refer to the reporting standards in 40 CFR Part 159 to determine if information on container failures or other incidents involving pesticide containers must be reported to EPA under § 6(a)(2) of FIFRA (7 USC § 136d(a)(2)).

C. For each pesticide product that is subject to 2VAC5-690-50 and 2VAC5-690-60 and is distributed or sold in nonrefillable containers, the registrant must maintain the records listed in this section for as long as a nonrefillable container is used to distribute or sell the pesticide product and for three years afterwards. The registrant must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS. Registrants must keep the following records:

1. The name and EPA registration number of the pesticide product.

2. A description of the nonrefillable container or containers in which the pesticide product is distributed or sold.

3. At least one of the following records to document compliance with the requirement for closures in 2VAC5-690-50 D for each nonrefillable container used to distribute or sell the pesticide product that must comply with 2VAC5-690-50 D:

a. A letter or document from the container supplier that describes the closure.

b. A specification about the closure in the contract between the registrant or applicant and the container supplier.

c. A copy of EPA's approval of any nonstandard closure.

4. At least one of the following records pertaining to the container dispensing capability requirements in 2VAC5-690-50 E for each nonrefillable container used to distribute or sell the pesticide product that must comply with 2VAC5-690-50 E:

a. Test data or documentation demonstrating that the nonrefillable container meets the standards in 2VAC5-690-50 E when it contains the pesticide product.

b. Test data or documentation demonstrating that a different nonrefillable container meets the standards in 2VAC5-690-50 E when it contains the pesticide product or a different pesticide product and a written explanation of why such data or documentation demonstrates that the container meets the standards in 2VAC5-690-50 E for the pesticide product.

c. A copy of EPA's approval of a request for a waiver from the container dispensing requirement.

5. At least one of the following records pertaining to the nonrefillable container residue removal requirement in 2VAC5-690-50 F if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case-by-case basis:

a. Test data showing that the nonrefillable container and pesticide formulation meet the standard in 2VAC5-690-50 F.

b. Test data showing that a different nonrefillable container with the same or a different pesticide formulation meets the standard in 2VAC5-690-50 F, together with a written explanation of why such data demonstrate that the nonrefillable container and pesticide formulation meet the standard in 2VAC5-690-50 F.

c. A copy of EPA's approval of a request for a waiver from the residue removal standard requirement.

Part III
Refillable Container Standards: Container Design

2VAC5-690-70. General provisions.

A. The regulations in Part III (2VAC5-690-70 et seq.) of this chapter establish design and construction requirements for refillable containers used for the distribution or sale of some pesticide products.

B. The following persons must comply with the regulations in Part III of this chapter as follows:

1. A registrant must comply with all of the regulations in Part III of this chapter if the registrant distributes or sells a pesticide product in refillable containers. If the pesticide product is subject to the regulations in Part III of this chapter as set out in 2VAC5-690-80, the pesticide product must be distributed or sold in a refillable container that meets the standards of these regulations. This includes pesticide products that are repackaged according to Part IV (2VAC5-690-110 et seq.) of this chapter.

2. A refiller must comply with the regulations in 2VAC5-690-90 G for stationary pesticide containers if the refiller is not the registrant of the pesticide product. If the pesticide product is subject to the regulations in Part III of this chapter as set out in 2VAC5-690-80, the stationary pesticide containers used to distribute or sell the product must meet the standards of 2VAC5-690-90 G.

3. For a refiller of a pesticide product who is not a registrant of the pesticide product, 2VAC5-690-90 C provides an exemption from some of the requirements in 2VAC5-690-90 B.

2VAC5-690-80. Scope of pesticide products included.

A. The regulations in Part III (2VAC5-690-70 et seq.) of this chapter do not apply to manufacturing use products as defined in 40 CFR 158.153(h).

B. The regulations in Part III of this chapter do not apply to plant-incorporated protectants as defined in 40 CFR 174.3.

C. The regulations in Part III of this chapter do not apply to a pesticide product if it satisfies all of the following conditions:

1. The pesticide product meets one of the following two criteria:

a. The pesticide product is an antimicrobial pesticide as defined in § 2(mm) of FIFRA (7 USC § 136(mm)); or

b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime; and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).

2. The labeling of the pesticide product includes directions for use on a site in at least one of the following antimicrobial product use categories: food handling/storage establishments premises and equipment; commercial, institutional, and industrial premises and equipment; residential and public access premises; medical premises and equipment; human drinking water systems; materials preservatives; industrial processes and water systems; antifouling coatings; wood preservatives; or swimming pools.

3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.

4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part III of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection E of this section.

D. An antimicrobial swimming pool product that is not exempt by subsection A, B, or C of this section must comply with all of the regulations in Part III of this chapter except 2VAC5-690-90 E regarding marking and 2VAC5-690-90 F regarding openings. For the purposes of Part III of this chapter, an antimicrobial swimming pool product is a pesticide product that satisfies both of the following conditions:

1. The pesticide product is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime.

2. The labeling of the pesticide product includes directions for use on only a site or sites in the antimicrobial product use category of swimming pools.

E. As established in 40 CFR 165.43(e), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part III of this chapter.

F. The regulations in Part III of this chapter apply to all pesticide products other than manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt by subsection C of this section. Antimicrobial products covered under subsection D of this section are subject to the regulations indicated in subsection D of this section.

G. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part III of this chapter as described in subsections A through F of this section.

1. The regulations in Part III of this chapter do not apply to transport vehicles that contain pesticide in pesticide-holding tanks that are an integral part of the transport vehicle and that are the primary containment for the pesticide.

2. The regulations in Part III of this chapter do not apply to containers that hold pesticides that are gaseous at atmospheric temperature and pressure.

2VAC5-690-90. Refillable container standards.

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part III of this chapter as described in 2VAC5-690-80 A through F.

B. A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 49 CFR 173.5, 49 CFR 173.6, 49 CFR 173.24, 49 CFR 173.24a, 49 CFR 173.24b, 49 CFR 173.28, 49 CFR 173.155, 49 CFR 173.203, 49 CFR 173.213, 49 CFR 173.240(c), 49 CFR 173.240(d), 49 CFR 173.241(c), 49 CFR 173.241(d), 49 CFR Part 178, and 49 CFR Part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.

C. A refiller is not required to comply with 49 CFR 173.28(b)(2) for pesticide products that are not USDOT hazardous materials if the refillable container to be reused complies with the refillable container regulations in Part III (2VAC5-690-70 et seq.) of this chapter and the refilling is done in compliance with the repackaging regulations in Part IV (2VAC5-690-110) of this chapter.

D. A registrant's refillable containers must comply with the following standards if the registrant's pesticide product is a USDOT hazardous material as defined in 49 CFR 171.8:

1. The USDOT requires the pesticide product to be packaged according to 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B.

2. The pesticide product must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR Part 171 through 49 CFR Part 180 or, if subject to a special permit, according to the applicable requirements of 49 CFR Part 107 Subpart B. The requirements in this subsection apply to the pesticide product as it is packaged for transportation in commerce.

E. Each refillable container must be marked in a durable and clearly visible manner with a serial number or other identifying code that will distinguish the individual container from all other containers. Durable marking includes, but is not limited to, etching, embossing, ink jetting, stamping, heat stamping, mechanically attaching a plate, molding, and marking with durable ink. The serial number or other identifying code must be located on the outside part of the container except on a closure. Placement on the label or labeling is not sufficient unless the label is an integral, permanent part of or permanently stamped on the container.

F. For any refillable container that is a portable pesticide container, is designed to hold liquid pesticide formulations, and is not a cylinder that complies with the USDOT Hazardous Materials Regulations in 49 CFR Part 171 through 49 CFR Part 180, each opening of the container other than a vent must have a one-way valve, a tamper-evident device, or both. A one-way valve may be located in a device or system separate from the container if the device or system is the only reasonably foreseeable way to withdraw pesticide from the container. A vent must be designed to minimize the amount of material that could be introduced into the container through it.

G. If a stationary pesticide container designed to hold undivided quantities of pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide is located at the refilling establishment of a refiller operating under written contract to a registrant, the stationary pesticide container must meet the following standards:

1. Except during a civil emergency or any unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight, each stationary pesticide container (for liquid and dry pesticides) and its appurtenances must meet both of the following standards:

a. Each stationary pesticide container and its appurtenances must be resistant to extreme changes in temperature and constructed of materials that are adequately thick to not fail and that are resistant to corrosion, puncture, or cracking.

b. Each stationary pesticide container must be capable of withstanding all operating stresses, taking into account static heat, pressure buildup from pumps and compressors, and any other foreseeable mechanical stresses to which the container may be subjected in the course of operations.

2. Each stationary container of liquid pesticides must meet all of the following standards:

a. Each stationary container of liquid pesticides must be equipped with a vent or other device designed to relieve excess pressure, prevent losses by evaporation, and exclude precipitation.

b. External sight gauges, which are pesticide-containing hoses or tubes that run vertically along the exterior of the container from the top to the bottom, are prohibited on stationary containers of liquid pesticides.

c. Each connection on a stationary container of liquid pesticides that is below the normal liquid level must be equipped with a shutoff valve that is capable of being locked closed. A shutoff valve must be located within a secondary containment unit if one is required by Part V (2VAC5-690-160 et seq.) of this chapter.

H. As established in 40 CFR 165.45(g) and 40 CFR 165.45(h), a registrant may obtain from EPA a waiver from or a modification to some of the refillable container standards.

2VAC5-690-100. Reporting.

In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part III of this chapter as described in 2VAC5-690-80 A through F.

A registrant is not required to report to VDACS information about the refillable containers under the regulations in Part III (2VAC5-690-70 et seq.) of this chapter. A registrant should refer to the reporting standards in 40 CFR Part 159 to determine if information on container failures or other incidents involving pesticide containers must be reported to EPA under § 6(a)(2) of FIFRA (7 USC § 136d(a)(2)).

Part IV
Standards for Repackaging Pesticide Products into Refillable Containers

2VAC5-690-110. General provisions.

A. The regulations in Part IV (2VAC5-690-110 et seq.) of this chapter establish requirements for repackaging some pesticide products into refillable containers for distribution or sale.

B. The following persons must comply with the regulations in Part IV of this chapter:

1. A registrant who distributes or sells a pesticide product in refillable containers;

2. A registrant who distributes or sells pesticide products to a refiller that is not part of the registrant's company for repackaging into refillable containers; or

3. A refiller of a pesticide product that is not the registrant of the pesticide product.

Each pesticide product that is subject to the regulations in Part IV of this chapter as set out in 2VAC5-690-120 and that is distributed or sold in a refillable container must be distributed or sold in compliance with the standards of these regulations.

2VAC5-690-120. Scope of pesticide products included.

A. The regulations in Part IV (2VAC5-690-110 et seq.) of this chapter do not apply to manufacturing use products as defined in 40 CFR 158.153(h).

B. The regulations in Part IV of this chapter do not apply to plant-incorporated protectants as defined in 40 CFR 174.3.

C. The regulations in Part IV of this chapter do not apply to a pesticide product if it satisfies all of the following conditions:

1. The pesticide product meets one of the following two criteria:

a. The pesticide product is an antimicrobial pesticide as defined in § 2(mm) of FIFRA (7 USC § 136(mm)); or

b. The pesticide product (i) is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime; and (ii) in the intended use is subject to a tolerance under § 408 of the Federal Food, Drug, and Cosmetic Act (21 USC § 346a) or a food additive regulation under § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348).

2. The labeling of the pesticide product includes directions for use on a site in at least one of the following antimicrobial product use categories: food handling/storage establishments premises and equipment; commercial, institutional, and industrial premises and equipment; residential and public access premises; medical premises and equipment; human drinking water systems; materials preservatives; industrial processes and water systems; antifouling coatings; wood preservatives; or swimming pools.

3. The pesticide product is not a hazardous waste as set out in 40 CFR Part 261 when the pesticide product is intended to be disposed.

4. EPA has not specifically determined that the pesticide product must be subject to the regulations in Part IV of this chapter to prevent an unreasonable adverse effect on the environment according to the provisions of subsection F of this section.

D. For the purposes of Part IV of this chapter, an antimicrobial swimming pool product is a pesticide product that satisfies both of the following conditions:

1. The pesticide product is intended to disinfect, sanitize, reduce, or mitigate growth or development of microbiological organisms or protect inanimate objects, industrial processes or systems, surfaces, water, or other chemical substances from contamination, fouling, or deterioration caused by bacteria, viruses, fungi, protozoa, algae, or slime.

2. The labeling of the pesticide product includes directions for use on only a site or sites in the antimicrobial product use category of swimming pools.

E. An antimicrobial swimming pool product that is not exempt by subsection A, B, or C of this section must comply with all of the regulations in Part IV of this chapter except for the following requirements:

Requirement	Requirement for registrants who distribute or sell directly in refillable containers	Requirement for refillers who are not registrants
Recordkeeping specific to each instance of repackaging	2VAC5-690-130 J 2	2VAC5-690-150 K 2
Container inspection: criteria regarding a serial number or other identifying code	2VAC5-690-130 F 2	2VAC5-690-150 G 2
Container inspection: criteria regarding one-way valve or tamper-evident device	2VAC5-690-130 F 3	2VAC5-690-150 G 3
Cleaning requirement: criteria regarding one-way valve or tamper-evident device	2VAC5-690-130 G 1	2VAC5-690-150 H 1
Cleaning if the one-way valve or tamper-evident device is not intact	2VAC5-690-130 H	2VAC5-690-150 I

F. As established in 40 CFR 165.63(e), EPA may determine that an antimicrobial pesticide product otherwise exempted must be subject to the regulations in Part IV of this chapter.

G. The regulations in Part IV of this chapter apply to all pesticide products other than manufacturing use products, plant-incorporated protectants, and antimicrobial products that are exempt under subsection C of this section. Antimicrobial products covered under subsection E of this section are subject to the regulations indicated in that subsection.

H. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in subsections A through G of this section.

1. The regulations in Part IV of this chapter do not apply to transport vehicles that contain pesticide in pesticide-holding tanks that are an integral part of the transport vehicle and that are the primary containment for the pesticide.

2. Custom blending is not subject to the regulations in Part IV of this chapter.

3. The regulations in Part IV of this chapter do not apply to containers that hold pesticides that are gaseous at atmospheric temperature and pressure.

2VAC5-690-130. Registrants who distribute or sell pesticide products in refillable containers.

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in 2VAC5-690-120 A through G.

B. Any registrant who distributes or sells pesticide products in refillable containers and any registrant who conducts all of the repackaging for a pesticide product and does not distribute or sell the pesticide product to a refiller that is not part of the registrant's company for repackaging into refillable containers must comply with this section. Any registrant that repackages a product directly into refillable containers for sale or distribution and also sells or distributes other quantities of that product to an independent refiller for repackaging must meet the requirements in this section for those quantities the registrant distributes or sells directly and the requirements in 2VAC5-690-140 for those quantities that the registrant distributes or sells to an independent refiller.

C. A registrant is responsible for the pesticide product that the registrant distributes or sells in refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

D. For each pesticide product distributed or sold in refillable containers, the registrant must develop both of the following documents in writing.

1. The registrant must develop a refilling residue removal procedure that describes how to remove pesticide residue from a refillable container (portable or stationary pesticide container) before it is refilled.

a. The refilling residue removal procedure must be adequate to ensure that the composition of the pesticide product does not differ at the time of its distribution or sale from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

b. If the refilling residue removal procedure requires the use of a solvent other than the diluent used for applying the pesticide as specified on the labeling under "Directions for Use," or if there is no diluent used for application, the refilling residue removal procedure must describe how to manage any rinsate resulting from the procedure in accordance with applicable federal and state regulations.

2. The registrant must develop a description of acceptable refillable containers (portable or stationary pesticide containers) that can be used for distributing or selling that pesticide product.

a. An acceptable container is one that the registrant has determined meets the standards in Part III (2VAC5-690-70 et seq.) of this chapter and is compatible with the pesticide formulation intended to be distributed and sold using the refillable container.

b. The registrant must identify the containers by specifying the container materials of construction that are compatible with the pesticide formulation and specifying information necessary to confirm compliance with the refillable container requirements in Part III of this chapter.

E. A refiller at a registrant's establishment that repackages a pesticide product into refillable containers for distribution or sale must comply with all of the following provisions.

1. The establishment must be registered with EPA as a producing establishment as required by 40 CFR 167.20.

2. The refiller must not change the pesticide formulation unless the refiller has a registration for the new formulation.

3. The refiller must repackage a pesticide product only into a refillable container that is identified on the registrant's description of acceptable containers for that pesticide product.

4. The refiller may repackage any quantity of a pesticide product into a refillable container up to the rated capacity of the container. In addition, there are no general limits on the size of the refillable containers that the refiller can use.

5. The refiller must have all of the following items at the establishment before repackaging a pesticide product into any refillable container for distribution or sale:

a. The pesticide product's label and labeling;

b. The written refilling residue removal procedure for the pesticide product; and

c. The written description of acceptable containers for the pesticide product.

6. Before repackaging a pesticide product into any refillable container for distribution or sale, the refiller must identify the pesticide product previously contained in the refillable container to determine whether a residue removal procedure must be conducted in accordance with subsection G of this section. The refiller may identify the previous pesticide product by referring to the label or labeling.

7. The refiller must inspect each refillable container according to subsection F of this section.

8. The refiller must clean each refillable container according to subsection G or H of this section, if required by either subsection.

9. The refiller must ensure that each refillable container is properly labeled according to subsection I of this section.

10. The establishment must maintain records in accordance with subsection J of this section.

11. The establishment must maintain records as required by 40 CFR Part 169.

12. The establishment must report as required by 40 CFR Part 167.

F. Before repackaging a pesticide product into any refillable container, a refiller at a registrant's establishment must visually inspect the exterior and (if possible) the interior of the container and the exterior of appurtenances. The purpose of the inspection is to determine whether the container meets the necessary criteria with respect to continued container integrity, required markings, and openings. If the condition in subdivision 1 of this subsection exists, the container fails the inspection and must not be refilled unless the container is repaired, reconditioned, or remanufactured in compliance with the relevant USDOT requirement. If the condition in subdivision 2 or 3 of this subsection (or both) exists, the container fails the inspection and must not be refilled until the container meets the standards specified in Part III of this chapter. The conditions are:

1. The integrity of the container is compromised in at least one of the following ways:

a. The container shows signs of rupture or other damage that reduces its structural integrity;

b. The container has visible pitting, significant reduction in material thickness, metal fatigue, damaged threads or closures, or other significant defects;

c. The container has cracks, warpage, corrosion, or any other damage that might render it unsafe for transportation; or

d. There is damage to the fittings, valves, tamper-evident devices or other appurtenances that may cause failure of the container.

2. The container does not bear the markings required by 2VAC5-690-90 B through E, or such markings are not legible.

3. The container does not have an intact and functioning one-way valve or tamper-evident device on each opening other than a vent, if required.

G. A refiller at a registrant's establishment must clean each refillable container by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container, unless the conditions in subdivisions 1 and either 2 or 3 of this subsection are satisfied.

1. If required, each tamper-evident device and one-way valve is intact.

2. The refillable container is being refilled with the same pesticide product.

3. Both of the following conditions are satisfied:

a. The container previously held a pesticide product with a single active ingredient and is being used to repackage a pesticide product with the same single active ingredient.

b. There is no change that would cause the composition of the product being repackaged to differ from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a). Examples of unallowable changes include the active ingredient concentration increasing or decreasing beyond the limits established by the confidential statement of formula or a reaction or interaction between the pesticide product being repackaged and the residue remaining in the container.

H. As required in subsection G of this section, a refiller at a registrant's establishment must clean each refillable container that has a tamper-evident device that is not intact or one-way valve that is not intact by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container. In addition, other procedures may be necessary to assure that product integrity is maintained in such cases.

I. Before distributing or selling a pesticide product in a refillable container, a refiller must ensure that the label of the pesticide product is securely attached to the refillable container such that the label can reasonably be expected to remain affixed during the foreseeable conditions and period of use. The label and labeling must comply in all respects with the requirements of 40 CFR Part 156. In particular, the refiller must ensure that the net contents statement and EPA establishment number appear on the label.

J. Each establishment of a registrant that repackages a pesticide product into refillable containers for distribution or sale must maintain all of the records listed in this section in addition to the applicable records identified in 40 CFR Part 167 and 40 CFR Part 169. The establishment must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS.

1. For each pesticide product distributed or sold in refillable containers, both of the following records must be maintained for the current operating year and for three years afterwards:

a. The written refilling residue removal procedure for the pesticide product; and

b. The written description of acceptable containers for the pesticide product.

2. Each time a refiller at a registrant's establishment repackages a pesticide product into a refillable container and distributes or sells the product, the following records must be generated and maintained for at least three years after the date of repackaging:

a. The EPA registration number of the pesticide product distributed or sold in the refillable container;

b. The date of the repackaging; and

c. The serial number or other identifying code of the refillable container.

2VAC5-690-140. Registrants who distribute or sell pesticide products to refillers for repackaging.

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in 2VAC5-690-120 A through G.

B. A registrant who distributes or sells pesticide products to a refiller that is not part of the registrant's company for repackaging into refillable containers must comply with the standards in this section.

C. A registrant may allow a refiller to repackage the registrant's pesticide product into refillable containers and to distribute or sell such repackaged product under the registrant's existing registration if all of the following conditions are satisfied:

1. The repackaging results in no change to the pesticide formulation.

2. One of the following conditions regarding a registered refilling establishment is satisfied:

a. The pesticide product is repackaged at a refilling establishment registered with EPA as required by 40 CFR 167.20.

b. The pesticide product is repackaged by a refilling establishment registered with EPA as required by 40 CFR 167.20 at the site of a user who intends to use or apply the product.

3. The registrant has entered into a written contract with the refiller to repackage the pesticide product and to use the label of the registrant's pesticide product.

4. The pesticide product is repackaged only into refillable containers that meet the standards of Part III (2VAC5-690-70 et seq.) of this chapter.

5. The pesticide product is labeled with the product's label with no changes except the addition of an appropriate net contents statement and the refiller's EPA establishment number.

D. Repackaging a pesticide product for distribution or sale without either obtaining a registration or meeting all of the conditions in subsection C of this section is a violation of § 12 of FIFRA (7 USC § 136j). Both the registrant and the refiller that is repackaging the registrant's pesticide product under written contract with the registrant may be liable for violations pertaining to the repackaged product.

E. A registrant that allows a refiller to repackage the registrant's product as specified in subsection C of this section must provide the written contract referred to in subdivision C 3 of this section to the refiller before the registrant distributes or sells the pesticide product to the refiller.

F. A registrant is responsible for the pesticide product that the registrant distributes or sells to a refiller that is not part of the registrant's company for repackaging into refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

G. For each pesticide product distributed or sold in refillable containers, the registrant must develop both of the following documents in writing.

1. The registrant must develop a refilling residue removal procedure that describes how to remove pesticide residue from a refillable container (portable or stationary pesticide container) before it is refilled.

a. The refilling residue removal procedure must be adequate to ensure that the composition of the pesticide product does not differ at the time of its distribution or sale from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

b. If the refilling residue removal procedure requires the use of a solvent other than the diluent used for applying the pesticide as specified on the labeling under "Directions for Use," or if there is no diluents used for application, the refilling residue removal procedure must describe how to manage any rinsate resulting from the procedure in accordance with applicable federal and state regulations.

2. The registrant must develop a description of acceptable refillable containers (portable or stationary pesticide containers) that can be used for distributing or selling that pesticide product.

a. An acceptable container is one that the registrant has determined meets the standards Part III of this chapter and is compatible with the pesticide formulation intended to be distributed and sold using the refillable container.

b. The registrant must identify the containers by specifying the container materials of construction that are compatible with the pesticide formulation and specifying information necessary to confirm compliance with the refillable container requirements in Part III of this chapter.

H. A registrant must provide the refiller with all of the following information and documentation before or at the time of distribution or sale of the registrant's pesticide product to the refiller:

1. The registrant's written refilling residue removal procedure for the pesticide product;

2. The registrant's written description of acceptable containers for the pesticide product; and

3. The pesticide product's label and labeling.

I. A registrant must maintain all of the records listed in this section for the current operating year and for three years afterwards. A registrant must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS:

1. Each written contract entered into with a refiller for repackaging the registrant's pesticide product into refillable containers;

2. The registrant's written refilling residue removal procedure for the pesticide product; and

3. The registrant's written description of acceptable containers for the pesticide product.

2VAC5-690-150. Refillers who are not registrants.

A. In this section, the term "pesticide product" or "pesticide" refers only to a pesticide product or a pesticide that is subject to the regulations in Part IV of this chapter as described in 2VAC5-690-120 A through G.

B. A refiller of a pesticide product that is not the registrant of the pesticide product must comply with the standards in this section.

C. A registrant may allow a refiller to repackage the registrant's pesticide product into refillable containers and to distribute or sell such repackaged product under the registrant's existing registration if all of the following conditions are satisfied:

1. The repackaging results in no change to the pesticide formulation.

2. One of the following conditions regarding a registered refilling establishment is satisfied:

a. The pesticide product is repackaged at a refilling establishment registered with EPA as required by 40 CFR 167.20.

b. The pesticide product is repackaged by a refilling establishment registered with EPA as required by 40 CFR 167.20 at the site of a user who intends to use or apply the product.

3. The registrant has entered into a written contract with the refiller to repackage the pesticide product and to use the label of the registrant's pesticide product.

4. The pesticide product is repackaged only into refillable containers that meet the standards of Part III (2VAC5-690-70 et seq.) of this chapter.

5. The pesticide product is labeled with the product's label with no changes except the addition of an appropriate net contents statement and the refiller's EPA establishment number.

D. Repackaging a pesticide product for distribution or sale without either obtaining a registration or meeting all of the conditions in subsection C of this section is a violation of § 12 of FIFRA (7 USC § 136j). Both the refiller and the pesticide product's registrant may be liable for violations pertaining to the repackaged product.

E. A refiller is responsible for the pesticide product that the refiller distributes or sells in refillable containers not being adulterated or different from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a).

F. A refiller must comply with all of the following provisions.

1. The refiller's establishment must be registered with EPA as a producing establishment as required by 40 CFR 167.20.

2. The refiller must not change the pesticide formulation unless the refiller has a registration for the new formulation.

3. The refiller must repackage a pesticide product only into a refillable container that is identified on the description of acceptable containers for that pesticide product provided by the registrant.

4. The refiller may repackage any quantity of a pesticide product into a refillable container up to the rated capacity of the container. In addition, there are no general limits on the size of the refillable containers that the refiller can use.

5. The refiller must have all of the following items at the refiller's establishment before repackaging a pesticide product into any refillable container for distribution or sale:

a. The written contract referred to in subdivision C 3 of this section from the pesticide product's registrant;

b. The pesticide product's label and labeling;

c. The registrant's written refilling residue removal procedure for the pesticide product; and

d. The registrant's written description of acceptable containers for the pesticide product.

6. Before repackaging a pesticide product into any refillable container for distribution or sale, the refiller must identify the pesticide product previously contained in the refillable container to determine whether a residue removal procedure must be conducted in accordance with subsection H of this section. The refiller may identify the previous pesticide product by referring to the label or labeling.

7. The refiller must inspect each refillable container according to subsection G of this section.

8. The refiller must clean each refillable container according to subsection H or I of this section, if required by either subsection.

9. The refiller must ensure that each refillable container is properly labeled according to subsection J of this section.

10. The refiller must maintain records in accordance with subsection K of this section.

11. The refiller must maintain records as required by 40 CFR Part 169.

12. The refiller must report as required by 40 CFR Part 167.

13. The stationary pesticide containers at the refiller's establishment must meet the standards in 2VAC5-690-90 G.

14. The refiller may be required to comply with the containment standards in Part V (2VAC5-690-160 et seq.) of this chapter.

G. Before repackaging a pesticide product into any refillable container, a refiller must visually inspect the exterior and (if possible) the interior of the container and the exterior of appurtenances. The purpose of the inspection is to determine whether the container meets the necessary criteria with respect to continued container integrity, required markings, and openings. If the condition in subdivision 1 of this subsection exists, the container fails the inspection and must not be refilled unless the container is repaired, reconditioned, or remanufactured in compliance with the relevant USDOT requirement. If the condition in subdivision 2 or 3 of this subsection (or both) exists, the container fails the inspection and must not be refilled until the container meets the standards specified in Part III (2VAC5-690-70 et seq.) of this chapter. The conditions are the following:

1. The integrity of the container is compromised in at least one of the following ways:

a. The container shows signs of rupture or other damage that reduces its structural integrity;

b. The container has visible pitting, significant reduction in material thickness, metal fatigue, damaged threads or closures, or other significant defects;

c. The container has cracks, warpage, corrosion, or any other damage that might render it unsafe for transportation; or

d. There is damage to the fittings, valves, tamper-evident devices, or other appurtenances that may cause failure of the container.

2. The container does not bear the markings required by 2VAC5-690-90 B through E, or such markings are not legible.

3. The container does not have an intact and functioning one-way valve or tamper-evident device on each opening other than a vent, if required.

H. A refiller must clean each refillable container by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container, unless the conditions in subdivisions 1 and either 2 or 3 of this section are satisfied.

1. If required, each tamper-evident device and one-way valve is intact.

2. The refillable container is being refilled with the same pesticide product.

3. Both of the following conditions are satisfied.

a. The container previously held a pesticide product with a single active ingredient and is being used to repackage a pesticide product with the same single active ingredient.

b. There is no change that would cause the composition of the product being repackaged to differ from the composition described in its confidential statement of formula that is required under § 3 of FIFRA (7 USC § 136a). Examples of unallowable changes include the active ingredient concentration increasing or decreasing beyond the limits established by the confidential statement of formula or a reaction or interaction between the pesticide product being repackaged and the residue remaining in the container.

I. As required in subsection H of this section, a refiller must clean each refillable container that has a tamper-evident device that is not intact or one-way valve that is not intact by conducting the pesticide product's refilling residue removal procedure before repackaging the pesticide product into the refillable container. In addition, other procedures may be necessary to assure that product integrity is maintained in such cases.

J. Before distributing or selling a pesticide product in a refillable container, a refiller must ensure that the label of the pesticide product is securely attached to the refillable container such that the label can reasonably be expected to remain affixed during the foreseeable conditions and period of use. The label and labeling must comply in all respects with the requirements of 40 CFR Part 156. In particular, a refiller must ensure that the net contents statement and EPA establishment number appear on the label.

K. A refiller must maintain all of the records listed in this section in addition to the applicable records identified in 40 CFR Part 167 and 40 CFR Part 169. A refiller must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS.

1. For each pesticide product distributed or sold in refillable containers, all of the following records must be maintained for the current operating year and for three years after that:

a. The written contract from the pesticide product's registrant for the pesticide product;

b. The written refilling residue removal procedure for the pesticide product; and

c. The written description of acceptable containers for the pesticide product.

2. Each time a refiller repackages a pesticide product into a refillable container and distributes or sells the product, the following records must be generated and maintained for at least three years after the date of repackaging:

a. The EPA registration number of the pesticide product distributed or sold in the refillable container;

b. The date of the repackaging; and

c. The serial number or other identifying code of the refillable container.

Part V
Standards for Pesticide Containment Structures

2VAC5-690-160. General provisions.

A. The purpose of the containment regulations in Part V (2VAC5-690-160 et seq.) of this chapter is to protect human health and the environment from exposure to agricultural pesticides that may spill or leak from stationary pesticide containers. This protection is achieved by the construction of secondary containment units or pads at certain facilities handling agricultural pesticides. These regulations will also reduce waste generation associated with:

1. Storage and handling of large quantities of pesticide products.

2. Pesticide dispensing and container-refilling operations.

B. Any owner or operator of one of the following businesses who also has a stationary pesticide container or a pesticide dispensing (including container refilling) area must comply with the regulations in Part V of this chapter.

1. Refilling establishments who repackage agricultural pesticides and whose principal business is retail sale (i.e., more than 50% of total annual revenue comes from retail operations).

2. Custom blenders of agricultural pesticides.

3. Businesses that apply an agricultural pesticide for compensation (other than trading of personal services between agricultural producers).

2VAC5-690-170. Scope of stationary pesticide containers included.

A. A stationary pesticide container is a refillable container (i) that is fixed at a single facility or establishment or, if not fixed, remains at the facility or establishment for at least 30 consecutive days and (ii) that holds pesticide during the entire time.

B. Stationary pesticide containers designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide are subject to the regulations in Part V (2VAC5-690-160 et seq.) of this chapter and must have a secondary containment unit that complies with the provisions of Part V of this chapter unless any of the following conditions exists:

1. The container is empty, that is, all pesticide that can be removed by methods such as draining, pumping, or aspirating has been removed (whether or not the container has been rinsed or washed).

2. The container holds only pesticide rinsates or washwater and is labeled accordingly.

3. The container holds only pesticides that would be gaseous when released at atmospheric temperature and pressure.

4. The container is dedicated to nonpesticide use and is labeled accordingly.

2VAC5-690-180. Scope of pesticide dispensing areas included.

A. A pesticide dispensing area is subject to the containment regulations in Part V (2VAC5-690-160 et seq.) of this chapter and must have a containment pad that complies with the requirements of Part V of this chapter if any of the following activities occur:

1. Refillable containers of agricultural pesticide are emptied, cleaned, or rinsed.

2. Agricultural pesticides are dispensed from a stationary pesticide container designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide for any purpose, including refilling or emptying for cleaning. This applies when pesticide is dispensed from the container into any vessel, including but not limited to:

a. Refillable containers;

b. Service containers;

c. Transport vehicles; or

d. Application equipment.

3. Agricultural pesticides are dispensed from a transport vehicle for purposes of filling a refillable container.

4. Agricultural pesticides are dispensed from any other container for the purpose of refilling a refillable container for sale or distribution. Containment requirements do not apply if the agricultural pesticide is dispensed from such a container for use, application or purposes other than refilling for sale or distribution.

B. A pesticide dispensing area is exempt from the regulations in Part V of this chapter if any of the following conditions exist:

1. The only pesticides in the dispensing area would be gaseous when released at atmospheric temperature and pressure.

2. The only pesticide containers refilled or emptied within the dispensing area are stationary pesticide containers that are already protected by a secondary containment unit that complies with the provisions of Part V of this chapter.

3. The pesticide dispensing area is used solely for dispensing pesticide from a rail car that does not remain at a facility long enough to meet the definition of a stationary pesticide container, that is, 30 days.

2VAC5-690-190. Definition of new and existing structures.

A. A new containment structure is one whose installation began after November 16, 2006. Installation is considered to have begun if:

1. The owner or operator has obtained all federal, state, and local approvals or permits necessary to begin physical construction of the containment structure; and

2. The owner or operator has either begun a continuous onsite physical construction or installation program or has entered into contractual obligations. The contract must be such that it cannot be canceled or modified without substantial loss and must be for the physical construction or installation of the containment structure within a specific and reasonable time frame.

B. An existing containment structure is defined as one whose installation began on or before November 16, 2006.

2VAC5-690-200. Design and capacity requirements for new structures.

A. A new containment structure must comply with the following material specifications:

1. The containment structure must be constructed of steel, reinforced concrete, or other rigid material capable of withstanding the full hydrostatic head, load, and impact of any pesticides, precipitation, other substances, equipment, and appurtenances placed within the structure. The structure must be liquid-tight with cracks, seams, and joints appropriately sealed.

2. The structure must not be constructed of natural earthen material, unfired clay, or asphalt.

3. The containment structure must be made of materials compatible with the pesticides stored. Materials are deemed compatible if they are able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.

B. A new containment structure must comply with the following general design requirements:

1. The owner or operator must ensure that appurtenances and pesticide containers are protected against damage from operating personnel and moving equipment. Means of protection include, but are not limited to, supports to prevent sagging, flexible connections, the use of guard rails, barriers, and protective cages.

2. Appurtenances, discharge outlets, or gravity drains must not be configured through the base or wall of the containment structure, except for direct interconnections between adjacent containment structures that meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter. Appurtenances must be configured in such a way that spills or leaks are easy to see.

3. The containment structure must be constructed with sufficient freeboard to contain precipitation and prevent water and other liquids from seeping into or flowing onto it from adjacent land or structures.

4. Multiple stationary pesticide containers may be protected within a single secondary containment unit.

C. A new secondary containment unit for a stationary container of a liquid pesticide and a new containment pad in a pesticide dispensing area must comply with the following capacity requirements:

1. New secondary containment units for stationary containers of liquid pesticides, if protected from precipitation, must have a capacity of at least 100% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.

2. New secondary containment units for stationary containers of liquid pesticides, if exposed to or unprotected from precipitation, must have a capacity of at least 110% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.

3. New containment pads in pesticide dispensing areas that have a pesticide container or pesticide holding equipment with a volume of 750 gallons or greater must have a holding capacity of at least 750 gallons.

4. New containment pads in pesticide dispensing areas that do not have a pesticide container or pesticide holding equipment with a volume of at least 750 gallons must have a holding capacity of at least 100% of the volume of the largest pesticide container or pesticide-holding equipment used on the pad.

D. Each stationary container of liquid pesticides protected by a new secondary containment unit must be anchored or elevated to prevent flotation in the event that the secondary containment unit fills with liquid.

E. Each new containment pad in a pesticide dispensing area must:

1. Be designed and constructed to intercept leaks and spills of pesticides that may occur in the pesticide dispensing area;

2. Have enough surface area to extend completely beneath any container on it, with the exception of transport vehicles dispensing pesticide for sale or distribution to a stationary pesticide container. For such vehicles, the surface area of the containment pad must accommodate at least the portion of the vehicle where the delivery hose or device couples to the vehicle. This exception does not apply to transport vehicles that are used for prolonged storage or repeated onsite dispensing of pesticides;

3. Allow, in conjunction with its sump, for removal and recovery of spilled, leaked, or discharged material and rainfall, such as by a manually activated pump. Automatically activated pumps that lack automatic overflow cutoff switches for the receiving container are prohibited; and

4. Have its surface sloped toward an area where liquids can be collected for removal, such as a liquid-tight sump or a depression, in the case of a single-pour concrete pad.

F. A new secondary containment unit for a stationary container of a dry pesticide must comply with the following specific design requirements:

1. The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.

2. Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.

3. The storage area for stationary containers of dry pesticides must include a floor that extends completely beneath the pallets or raised concrete platforms on which the stationary containers of dry pesticides must be stored.

4. The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of six inches high that extends at least two feet beyond the perimeter of the container.

2VAC5-690-210. Design and capacity requirements for existing structures.

A. An existing containment structure must comply with the following material specifications:

1. The containment structure must be constructed of steel, reinforced concrete, or other rigid material capable of withstanding the full hydrostatic head, load, and impact of any pesticides, precipitation, other substances, equipment, and appurtenances placed within the structure. The structure must be liquid-tight with cracks, seams, and joints appropriately sealed.

2. The structure must not be constructed of natural earthen material, unfired clay, or asphalt.

3. The containment structure must be made of materials compatible with the pesticides stored. In this case, compatible means able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.

B. An existing containment structure must comply with the following general design requirements:

1. The owner or operator must ensure that appurtenances and pesticide containers are protected against damage from operating personnel and moving equipment. Means of protection include, but are not limited to, supports to prevent sagging, flexible connections, the use of guard rails, barriers, and protective cages.

2. All appurtenances, discharge outlets, and gravity drains through the base or wall of the containment structure must be sealed, except for direct interconnections between adjacent containment structures that meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter.

3. The containment structure must be constructed with sufficient freeboard to contain precipitation and prevent water and other liquids from seeping into or flowing onto it from adjacent land or structures.

4. Multiple stationary pesticide containers may be protected within a single secondary containment unit.

C. An existing secondary containment unit for a stationary container of liquid pesticides and an existing containment pad in a pesticide dispensing area must comply with the following capacity requirements:

1. Existing secondary containment units for stationary containers of liquid pesticides must have a capacity of at least 100% of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.

2. Existing containment pads in pesticide dispensing areas that have a pesticide container or pesticide-holding equipment with a volume of 750 gallons or greater must have a holding capacity of at least 750 gallons.

3. Existing containment pads in pesticide dispensing areas that do not have a pesticide container or pesticide-holding equipment with a volume of at least 750 gallons must have a holding capacity of at least 100% of the volume of the largest pesticide container or pesticide-holding equipment used on the pad.

D. Each stationary container of liquid pesticides protected by an existing secondary containment unit must be anchored or elevated to prevent flotation in the event that the secondary containment unit fills with liquid.

E. Each existing containment pad in a pesticide dispensing area must:

1. Be designed and constructed to intercept leaks and spills of pesticides that may occur in the pesticide dispensing area.

2. Have enough surface area to extend completely beneath any container on it, with the exception of transport vehicles dispensing pesticide for sale or distribution to a stationary pesticide container. For such vehicles, the surface area of the containment pad must accommodate at least the portion of the vehicle where the delivery hose or device couples to the vehicle. This exception does not apply to transport vehicles that are used for prolonged storage or repeated onsite dispensing of pesticides.

3. Allow, in conjunction with its sump, for removal and recovery of spilled, leaked, or discharged material and rainfall, such as by a manually activated pump. Automatically activated pumps that lack automatic overflow cutoff switches for the receiving container are prohibited.

F. An existing secondary containment unit for a stationary container of a dry pesticide must comply with the following specific design requirements:

1. The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.

2. Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.

3. The storage area for stationary containers of dry pesticides must include a floor that extends completely beneath the pallets or raised concrete platforms on which the stationary containers of dry pesticides must be stored.

4. The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of six inches high that extends at least two feet beyond the perimeter of the container.

2VAC5-690-220. Operational, inspection, and maintenance requirements for all new and existing containment structures.

A. The owner or operator of a new or existing pesticide containment structure must comply with the following operating procedures:

1. Manage the structure in a manner that prevents pesticides or materials containing pesticides from escaping from the containment structure (including, but not limited to, pesticide residues washed off the containment structure by rainfall or cleaning liquids used within the structure);

2. Ensure that pesticide spills and leaks on or in any containment structure are collected and recovered in a manner that ensures protection of human health and the environment (including surface water and groundwater) and maximum practicable recovery of the pesticide spilled or leaked. Cleanup must occur no later than the end of the day on which pesticides have been spilled or leaked except in circumstances where a reasonable delay would significantly reduce the likelihood or severity of adverse effects to human health or the environment;

3. Ensure that all materials resulting from spills and leaks and any materials containing pesticide residue are managed according to label instructions and applicable federal, state, and local laws and regulations;

4. Ensure that transfers of pesticides between containers or between containers and transport vehicles, are attended at all times; and

5. Ensure that each lockable valve on a stationary pesticide container, if it is required by 2VAC5-690-90 G, is closed and locked, or that the facility is locked, whenever the facility is unattended.

B. The owner or operator of a new or existing pesticide containment structure must comply with the following inspection and maintenance requirements:

1. Inspect each stationary pesticide container and its appurtenances and each containment structure at least monthly during periods when pesticides are being stored or dispensed on the containment structure. The inspection must include looking for visible signs of wetting, discoloration, blistering, bulging, corrosion, cracks or other signs of damage or leakage;

2. Initiate repair to any areas showing visible signs of damage and seal any cracks and gaps in the containment structure or appurtenances with material compatible with the pesticide being stored or dispensed no later than the end of the day on which damage is noticed and complete repairs within a time frame that is reasonable, taking into account factors such as the weather, and the availability of cleanup materials, trained staff, and equipment; and

3. Not store any additional pesticide on a containment structure if the structure fails to meet the requirements of Part V (2VAC5-690-160 et seq.) of this chapter until suitable repairs have been made.

2VAC5-690-230. Combining a containment pad and a secondary containment unit.

An owner or operator subject to the requirements of Part V (2VAC5-690-160 et seq.) of this chapter may combine containment pads and secondary containment units as an integrated system provided the requirements set out in Part V of this chapter for containment pads and secondary containment units in 2VAC5-690-200 A and B, 2VAC5-690-210 A and B, and 2VAC5-690-220, and, as applicable, 2VAC5-690-200 C through F and 2VAC5-690-210 C through F are satisfied separately.

2VAC5-690-240. Recordkeeping.

A. A facility owner or operator subject to the requirements of Part V (2VAC5-690-160 et seq.) of this chapter, must maintain the following records and must furnish these records for inspection and copying within 72 hours of request by an employee of VDACS:

B. Records of inspection and maintenance for each containment structure and for each stationary pesticide container and its appurtenances must be kept for three years and must include the following information:

1. Name of the person conducting the inspection or maintenance;

2. Date the inspection or maintenance was conducted;

3. Conditions noted; and

4. Specific maintenance performed.

C. Records for any nonstationary pesticide container designed to hold undivided quantities of agricultural pesticides equal to or greater than 500 gallons (1,890 liters) of liquid pesticide or equal to or greater than 4,000 pounds (1,818 kilograms) of dry pesticide that holds pesticide but is not protected by a secondary containment unit meeting these regulations must be kept for three years. Records on these nonstationary pesticide containers must include the time period that the container remains at the same location.

D. Records of the construction date of the containment structure must be kept for as long as the pesticide containment structure is in use, and for three years afterwards.

Title of Regulation: 3VAC5-20. Advertising (amending 3VAC5-20-30).

Statutory Authority: §§ 4.1-111 and 4.1-320 of the Code of Virginia.

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

This action carries out the mandate of Chapter 728 of the 2011 Acts of Assembly and Chapters 760 and 818 of the 2012 Acts of Assembly, which require the Alcoholic Beverage Control Board to promulgate regulations establishing reasonable time, place, and manner restrictions on outdoor advertising of alcoholic beverages. The amendments replace most of the existing language with four provisions that (i) prohibit the use of persons consuming alcohol, cartoon characters, or persons under the legal drinking age in outdoor alcoholic beverage advertising; (ii) prohibit alcoholic beverage advertising within 500 feet of religious institutions, schools, recreational facilities, or residences, with measurements as defined in the Code of Virginia; (iii) prohibit outdoor alcoholic beverage advertising on property zoned for agricultural or residential use or unzoned; and (iv) require that outdoor alcoholic beverage advertising comply with Virginia Department of Transportation laws and regulations. Other provisions prohibit manufacturers, importers, or wholesalers from providing outdoor advertising to retailers or engaging in cooperative advertising with retailers, and prohibit manufacturers or importers from requiring wholesalers to engage in outdoor advertising.

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.

3VAC5-20-30. Advertising; exterior.

Outdoor alcoholic beverage advertising shall comply with 3VAC5-20-10, and shall be limited to signs and is otherwise discretionary, except as follows:

1. Manufacturers and wholesalers, including wineries and farm wineries:

a. No more than one sign upon the licensed premises, no portion of which may be higher than 30 feet above ground level on a wholesaler's premises;

b. No more than two signs, which must be directional in nature, not farther than 1/2 mile from the licensed establishment limited in dimension to 64 square feet with advertising limited to brand names;

c. If the establishment is a winery also holding a retail off-premises winery license or is a farm winery, additional directional signs with advertising limited to trade names, brand names, the terms "farm winery" or "winery," and tour information, may be erected in accordance with state and local rules, regulations and ordinances; and

d. Only on vehicles and uniforms of persons employed exclusively in the business of a manufacturer or wholesaler, which shall include any antique vehicles bearing original or restored alcoholic beverage advertising used for promotional purposes. Additionally, any person whether licensed in this Commonwealth or not, may use and display antique vehicles bearing original or restored alcoholic beverage advertising.

2. Retailers, including mixed beverage licensees, other than carriers and clubs:

a. No more than two signs at the establishment and, in the case of establishments at intersections, three signs, the advertising on which, including symbols approved by the United States Department of Transportation relating to alcoholic beverages, shall be limited to 12 inches in height or width and not animated and, in the case of signs remote from the premises, subordinate to the main theme and substantially in conformance with the size and content of advertisements of other services offered at the establishment;

b. Signs may not include any reference to or depiction of "Happy Hour," or references or depictions of similar import, including references to "special" or "reduced" prices or similar terms when used as inducements to purchase or consume alcoholic beverages, except that, notwithstanding the provisions of 3VAC5-50-160 B 8, a retail licensee may post one two-dimensional sign not exceeding 17" x 22", attached to the exterior of the licensed premises, limited in content to the terms "Happy Hour" or "Drink Specials" and the time period within which alcoholic beverages are being sold at reduced prices; and

c. No advertising of alcoholic beverages may be displayed in exterior windows or within the interior of the retail establishment in such a manner that such advertising materials may be viewed from the exterior of the retail premises, except on table menus or newspaper tear sheets.

3. Manufacturers, wholesalers and retailers may engage in billboard advertising within stadia, coliseums or racetracks that are used primarily for professional or semiprofessional athletic or sporting events.

1. No outdoor alcoholic beverage advertising shall depict persons consuming alcoholic beverages, use cartoon characters in any way, or use persons who have not attained the minimum drinking age as models or actors.

2. No outdoor alcoholic beverage advertising shall be placed in violation of § 4.1-112.2 of the Code of Virginia.

3. No outdoor alcoholic beverage advertising shall be placed on property zoned exclusively for agricultural or residential uses, or on unzoned property.

4. All outdoor alcoholic beverage advertising must also comply with the provisions of Chapter 7 (§ 33.1-351 et seq.) of Title 33.1 of the Code of Virginia and the regulations of the Virginia Department of Transportation promulgated pursuant thereto.

5. No alcoholic beverage manufacturer, importer, or wholesale licensee may sell, rent, lend, buy for, or give to any retail licensee any outdoor alcoholic beverage advertising, any billboard placements for such advertising, or in any other way confer on any retail licensee anything of value that constitutes outdoor alcoholic beverage advertising.

6. No alcoholic beverage manufacturer, importer, or wholesale licensee may engage in cooperative advertising, as defined in 3VAC5-30-80, on behalf of any retail licensee.

7. No alcoholic beverage manufacturer or importer may require a wholesale licensee to place outdoor alcoholic beverage advertising or exercise control over the funds of a wholesale licensee for any purpose, including but not limited to the purchase of outdoor alcoholic beverage advertising.

Title of Regulation: 3VAC5-20. Advertising (amending 3VAC5-20-10, 3VAC5-20-60, 3VAC5-20-90, 3VAC5-20-100).

Statutory Authority: §§ 4.1-111 and 4.1-320 of the Code of Virginia.

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

The amendments (i) clarify existing language, (ii) allow combination packaging for beer and distilled spirits, and (iii) prohibit the distribution of novelty and specialty items bearing alcoholic beverage advertising to persons younger than 21 years of age.

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.

3VAC5-20-10. Advertising; generally; cooperative advertising; federal laws; cider; restrictions.

A. All alcoholic beverage advertising is permitted in this Commonwealth except that which is prohibited or otherwise limited or restricted by regulation of the board and such advertising shall not be blatant or obtrusive. Any editorial or other reading matter in any periodical, publication or newspaper for the publication of which no money or other valuable consideration is paid or promised, directly or indirectly, by or for the benefits of any permittee or licensee does not constitute advertising.

B. Advertising of cider, as defined in § 4.1-213 of the Code of Virginia, shall conform to the requirements for advertising beer.

C. The board may issue a permit authorizing a variance from any of its advertising regulations for good cause shown.

D. No advertising shall contain any statement, symbol, depiction or reference that:

1. Would tend to induce minors to drink, or would tend to induce persons to consume to excess;

2. Is obscene or is suggestive of any illegal activity;

3. Incorporates the use of any present or former athlete or athletic team or implies that the product enhances athletic prowess; except that, persons granted a license to sell wine or beer may display within their licensed premises point-of-sale advertising materials that incorporate the use of any present or former professional athlete or athletic team, provided that such advertising materials: (i) otherwise comply with the applicable regulations of the Federal Bureau of Alcohol, Tobacco and Firearms appropriate federal agency and (ii) do not depict any athlete consuming or about to consume alcohol prior to or while engaged in an athletic activity, do not depict an athlete consuming alcohol while the athlete is operating or about to operate a motor vehicle or other machinery, and do not imply that the alcoholic beverage so advertised enhances athletic prowess;

4. Is false or misleading in any material respect;

5. Implies or indicates, directly or indirectly, that the product is government endorsed by the use of flags, seals or other insignia or otherwise;

6. Makes any reference to the intoxicating effect of any alcoholic beverages;

7. Constitutes or contains a contest or sweepstakes where a purchase is required for participation; or

8. Constitutes or contains an offer to pay or provide anything of value conditioned on the purchase of alcoholic beverages, except for refund coupons and combination packaging for wine. Any such combination packaging shall be limited to packaging provided by the manufacturer that is designed to be delivered intact to the consumer.

E. The board shall not regulate advertising of nonalcoholic beer or nonalcoholic wine so long as (i) a reasonable person by common observation would conclude that the advertising clearly does not represent any advertisement for alcoholic beverages and (ii) the advertising prominently states that the product is nonalcoholic.

3VAC5-20-60. Advertising; novelties and specialties.

Distribution of novelty and specialty items, including wearing apparel, bearing alcoholic beverage advertising, shall be subject to the following limitations and conditions:

1. Items not in excess of $10 in wholesale value may be given away;

2. Manufacturers, importers, bottlers, brokers, wholesalers or their representatives may give licensed retailers items not in excess of $10 in wholesale value in quantities equal to the number of employees of the retail establishment present at the time the items are delivered. Thereafter, such employees may wear or display the items on the licensed premises. Neither manufacturers, importers, bottlers, brokers, wholesalers or their representatives may give such items to patrons on the premises of retail licensees; however, manufacturers or their authorized representatives other than wholesalers conducting tastings pursuant to the provisions of § 4.1-201.1 of the Code of Virginia may give no more than one such item to each consumer provided a sample of alcoholic beverages during the tasting event; and such items bearing moderation and responsible drinking messages may be displayed by the licensee and his employees on the licensed premises and given to patrons on such premises as long as any references to any alcoholic beverage manufacturer or its brands are subordinate in type size and quantity of text to such moderation message;

3. Items in excess of $10 in wholesale value may be donated by distilleries, wineries and breweries only to participants or entrants in connection with the sponsorship of conservation and environmental programs, professional, semi-professional or amateur athletic and sporting events subject to the limitations of 3VAC5-20-100, and for events of a charitable or cultural nature;

4. Items may be sold by mail upon request or over-the-counter at retail establishments customarily engaged in the sale of novelties and specialties, provided they are sold at the reasonable open market price in the localities where sold;

5. Wearing apparel shall be in adult sizes; and

6. Point-of-sale order blanks, relating to novelty and specialty items, may be provided by beer and wine wholesalers to retail licensees for use on their premises, if done for all retail licensees equally and after obtaining the consent, which may be a continuing consent, of each retailer or his representative. Wholesalers may not be involved in the redemption process.; and

7. Novelty and specialty items bearing alcoholic beverage advertising may not be distributed to persons younger than the legal drinking age.

3VAC5-20-90. Advertising; coupons.

A. "Normal retail price" shall mean the average retail price of the brand and size of the product in a given market, and not a reduced or discounted price.

B. Coupons may be advertised in accordance with the following conditions and restrictions:

1. Manufacturers or importers of spirits, wine, and beer may use only consumer mail-in refund, not instantly redeemable discount, coupons. The coupons may not exceed 50% of the normal retail price and may not be honored at a retail outlet or state government store but shall be mailed directly to the manufacturer or importer or its designated agent. Such agent may not be a wholesaler or retailer of alcoholic beverages. Consumer proof of purchase (such as a dated, retail specific receipt) is required for redemption of all consumer coupons. Coupons are permitted in the print media, via the Internet, by direct mail or electronic mail to consumers, or as part of, or attached to, the package. Beer and wine Manufacturers, importers, bottlers, brokers, wholesalers, and their representatives may provide coupon pads to retailers for use by retailers on their premises, if done for all retail licensees equally and after obtaining the consent, which may be a continuing consent, of each retailer or his representative. Wholesale licensees may attach refund coupons to the package if done for all retail licensees equally and after obtaining the consent, which may be a continuing consent, for each retailer or his representative.

2. Manufacturers or importers offering refund coupons on spirits and wine sold in state government stores shall notify the board at least 45 15 days in advance of the issuance of the coupons of its amount, its expiration date and the area of the Commonwealth in which it will be primarily used, if not used statewide.

3. Wholesale licensees are not permitted to offer coupons.

4. Retail licensees may offer coupons, including their own discount or refund coupons, on wine and beer sold for off-premises consumption only. Retail licensees may offer their own coupons in the print media, at the point-of-sale or by direct mail to consumers.

5. No retailer may be paid a fee by manufacturers or wholesalers of alcoholic beverages for display or use of coupons and the name of the retail establishment may not appear on any refund coupons offered by manufacturers. No manufacturer or wholesaler may furnish any coupons or materials regarding coupons to retailers which are customized or designed for discount or refund by the retailer.

6. Retail licensees or employees thereof may not receive refunds on coupons obtained from the packages before sale at retail.

7. No coupons may be honored for any individual below the legal age for purchase.

3VAC5-20-100. Advertising; sponsorship of public events; restrictions and conditions.

A. Generally. Alcoholic beverage advertising in connection with the sponsorship of public events shall be limited to sponsorship of conservation and environmental programs, professional, semi-professional, or amateur athletic and sporting events and events of a charitable or cultural nature by distilleries, wineries, and breweries, importers, and bottlers.

B. Restrictions and conditions.

1. Any sponsorship on a college, high school or younger age level is prohibited;

2. Cooperative advertising, as defined in 3VAC5-30-80, is prohibited;

3. [ Awards or contributions Contributions ] of alcoholic beverages are prohibited;

4. Advertising of alcoholic beverages shall conform in size and content to the other advertising concerning the event and advertising regarding charitable events shall place primary emphasis on the charitable fund raising nature of the event;

5. A charitable event is one held for the specific purpose of raising funds for a charitable organization which is exempt from federal and state taxes;

6. Advertising in connection with the sponsorship of an event may be only in the any media, including such as print media, the Internet or other electronic means, television, or radio; by direct mail or flyers to consumers; on programs, tickets, and schedules for the event,; on the inside of licensed or unlicensed retail establishments; and at the site of the event;

7. Advertising materials as defined in 3VAC5-30-60 G, table tents as defined in 3VAC5-30-60 H and canisters are permitted;

8. Prior written notice shall be submitted to the board describing the nature of the sponsorship and giving the date, time and place of it; and

9. Manufacturers may sponsor public events and wholesalers may only cosponsor charitable events.

Title of Regulation: 3VAC5-30. Tied-House (amending 3VAC5-30-10, 3VAC5-30-20, 3VAC5-30-30, 3VAC5-30-60, 3VAC5-30-70, 3VAC5-30-80; adding 3VAC5-30-90).

Statutory Authority: § 4.1-111 of the Code of Virginia.

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

The amendments (i) allow wine wholesalers to merchandise product on Sunday; (ii) transfer the prohibitions of price discrimination between wholesalers and retailers currently in 3VAC5-70 (Other Provisions) to 3VAC5-30 (Tied-House); and (iii) expand ordinary and commercial reasons for product return.

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.

3VAC5-30-10. Rotation and exchange of stocks of retailers by wholesalers; permitted and prohibited acts.

A. Permitted acts. For the purpose of maintaining the freshness of the stock and the integrity of the products sold by him, a wine wholesaler Manufacturers, importers, bottlers, brokers, or wholesalers [ , or their representatives, ] may perform, except on Sundays in jurisdictions where local ordinances restrict Sunday sales of alcoholic beverages, and a beer wholesaler may perform, except on Sundays in jurisdictions where local ordinances restrict Sunday sales of alcoholic beverages, the following services for a retailer upon consent, which may be a continuing consent, of the retailer:

1. Rotate, repack, and rearrange wine or beer alcoholic beverages in a display (shelves, coolers, cold boxes, and the like, and floor displays in a sales area);

2. Restock wine and beer alcoholic beverages;

3. Rotate, repack, rearrange, and add to his own stocks of wine or beer alcoholic beverages in a storeroom space assigned to him by the retailer;

4. Transfer wine and beer alcoholic beverages between storerooms, between displays, and between storerooms and displays; and

5. Create or build original displays using wine or beer products alcoholic beverages only.

B. Prohibited acts. A manufacturer, importer, bottler, broker, or wholesaler, or its representative, may not:

1. Alter or disturb in any way the merchandise sold by another manufacturer, importer, bottler, broker, or wholesaler, whether in a display, sales area, or storeroom except in the following cases:

a. When the products of one manufacturer, importer, bottler, broker, or wholesaler have been erroneously placed in the area previously assigned by the retailer to another manufacturer, importer, bottler, broker, or wholesaler; or

b. When a floor display area previously assigned by a retailer to one manufacturer, importer, bottler, broker, or wholesaler has been reassigned by the retailer to another manufacturer, importer, bottler, broker, or wholesaler;

2. Mark or affix retail prices to products other than those sold by the manufacturer, importer, bottler, broker, or wholesaler to the retailer; or

3. Sell or offer to sell alcoholic beverages to a retailer with the privilege of return, except for ordinary and usual commercial reasons as set forth below:

a. Products defective at the time of delivery may be replaced;

b. Products erroneously delivered may be replaced or money refunded;

c. Products that of which a manufacturer or importer discontinues nationally production or importation may be returned and money refunded if no lawful exchange under subdivision 3 g of this subsection is available and if prior written approval is provided by the board;

d. Resalable draft beer may be returned and money refunded;

e. Products in the possession of a retail licensee whose license is terminated by operation of law, voluntary surrender or order of the board may be returned and money refunded upon permit issued by the board;

f. Products which have been condemned and are not permitted to be sold in this Commonwealth may be replaced or money refunded upon permit issued by the board; or

g. Wine or beer Alcoholic beverages may be exchanged on an identical quantity and brand basis for quality control purposes. Where production of the product has been discontinued, the distributor may exchange the product for a product from the same [ supplier manufacturer ] on an identical quantity and comparable wholesale price basis. Any such exchange shall be documented by the word "exchange" on the proper invoice.

3VAC5-30-20. Restrictions upon employment; exceptions.

No retail licensee shall employ in any capacity in his licensed business any person engaged or employed in the manufacturing, bottling or wholesaling of alcoholic beverages; nor shall any licensed manufacturer, bottler or wholesaler employ in any capacity in his licensed business any person engaged or employed in the retailing of alcoholic beverages.

This section shall not apply to banquet licensees, farm winery licensees, or to off-premises winery licensees, nor shall this section apply in any situation in which the manufacturer, bottler, or wholesaler does not sell or otherwise furnish, directly or indirectly, alcoholic beverages or other merchandise to the retailer.

3VAC5-30-30. Certain transactions to be for cash; "cash" defined; checks and money orders; electronic fund transfers; records and reports by sellers; payments to the board.

A. Sales of wine or beer between wholesale and retail licensees of the board shall be for cash paid and collected at the time of or prior to delivery, except where payment is to be made by electronic fund transfer as hereinafter provided. Each invoice covering such a sale or any other sale shall be signed by the purchaser at the time of delivery and shall specify the manner of payment.

B. "Cash," as used in this section, shall include (i) legal tender of the United States, (ii) a money order issued by a duly licensed firm authorized to engage in such business in the Commonwealth [ , ] (iii) a valid check drawn upon a bank account in the name of the licensee or permittee or in the trade name of the licensee or permittee making the purchase, or (iv) an electronic fund transfer, initiated by a wholesaler pursuant to subsection D of this section, from a bank account in the name, or trade name, of the retail licensee making a purchase from a wholesaler or the board.

C. If a check, money order or electronic fund transfer is used, the following provisions apply:

1. If only alcoholic beverage merchandise is being sold, the amount of the checks, money orders or electronic fund transfers shall be no larger than the purchase price of the alcoholic beverages; and

2. If nonalcoholic merchandise is also sold to the retailer, the check, money order or electronic fund transfer may be in an amount no larger than the total purchase price of the alcoholic beverages and nonalcoholic beverage merchandise. If a separate invoice is used for the nonalcoholic merchandise, a copy of it shall be attached to the copies of the alcoholic beverage invoices which are retained in the records of the wholesaler and the retailer. If a single invoice is used for both the alcoholic beverages and nonalcoholic beverage merchandise, the alcoholic beverage items shall be separately identified and totaled.

D. If an electronic fund transfer is used for payment by a licensed retailer or a permittee for any purchase from a wholesaler or the board, the following provisions shall apply:

1. Prior to an electronic fund transfer, the retail licensee shall enter into a written agreement with the wholesaler specifying the terms and conditions for an electronic fund transfer in payment for the delivery of wine or beer to that retail licensee. The electronic fund transfer shall be initiated by the wholesaler no later than one business day after delivery and the wholesaler's account shall be credited by the retailer's bank no later than the following business day. The electronic fund transfer agreement shall incorporate the requirements of this subdivision, but this subdivision shall not preclude an agreement with more restrictive provisions. For purposes of this subdivision, the term "business day" shall mean a business day of the respective bank;

2. The wholesaler must generate an invoice covering the sale of wine or beer, and shall specify that payment is to be made by electronic fund transfer. Each invoice must be signed by the purchaser at the time of delivery; and

3. Nothing in this subsection shall be construed to require that any licensee must accept payment by electronic fund transfer.

E. Wholesalers shall maintain on their licensed premises records of all invalid checks received from retail licensees for the payment of wine or beer, as well as any stop payment order, insufficient fund report or any other incomplete electronic fund transfer reported by the retailer's bank in response to a wholesaler initiated electronic fund transfer from the retailer's bank account. Further, wholesalers shall report to the board any invalid checks or incomplete electronic fund transfer reports received in payment of wine or beer when either (i) any such invalid check or incomplete electronic fund transfer is not satisfied by the retailer within seven days after notice of the invalid check or a report of the incomplete electronic fund transfer is received by the wholesaler, or (ii) the wholesaler has received, whether satisfied or not, either more than one such invalid check from any single retail licensee or received more than one incomplete electronic fund transfer report from the bank of any single retail licensee, or any combination of the two, within a period of 180 days. Such reports shall be upon a form provided by the board and in accordance with the instructions set forth in such form.

F. Payments to the board for the following items shall be for cash, as defined in subsection B of this section:

1. State license taxes and application fees;

2. Purchases of alcoholic beverages from the board by mixed beverage licensees;

3. 2. Wine taxes and excise taxes on beer and wine coolers;

4. 3. Solicitors' permit fees and temporary permit fees;

5. 4. Registration and certification fees, and the markup or profit on cider, collected pursuant to these regulations;

6. 5. Civil penalties or charges and costs imposed on licensees and permittees by the board; and

7. 6. Forms provided to licensees and permittees at cost by the board.

3VAC5-30-60. Inducements to retailers; beer and wine tapping equipment; bottle or can openers; spirits back-bar pedestals; banquet licensees; paper, cardboard or plastic advertising materials; clip-ons and table tents; sanctions and penalties.

A. Any manufacturer, importer, bottler, broker, or wholesaler, or its representative, may sell, rent, lend, buy for, or give to any retailer, without regard to the value thereof, the following:

1. Draft beer [ or wine ] knobs, containing advertising matter which shall include the brand name and may further include only trademarks, housemarks and slogans and shall not include any illuminating devices or be otherwise adorned with mechanical devices which are not essential in the dispensing of draft beer [ or wine ]; and

2. Tapping equipment, defined as all the parts of the mechanical system required for dispensing draft beer in a normal manner from the carbon dioxide tank through the beer faucet, excluding the following:

a. The carbonic acid gas in containers, except that such gas may be sold only at the reasonable open market price in the locality where sold;

b. Gas pressure gauges (may be sold at cost);

c. Draft arms or standards;

d. Draft boxes; and

e. Refrigeration equipment or components thereof.

Further, a manufacturer, bottler or wholesaler may sell, rent or lend to any retailer, for use only by a purchaser of draft beer in kegs or barrels from such retailer, whatever tapping equipment may be necessary for the purchaser to extract such draft beer from its container.

B. Any manufacturer, importer, bottler, broker, or wholesaler [ , or their representatives, ] may sell to any retailer and install in the retailer's establishment tapping dispensing accessories such as [ (including but not limited to (such as ] standards, faucets, rods, vents, taps, tap standards, hoses, cold plates, washers, couplings, gas gauges, vent tongues, shanks, and check valves, if the tapping accessories are sold valves) and carbon dioxide (and other gases used in dispensing equipment) at a price not less than the cost of the industry member who initially purchased them, and if the price is collected within 30 days of the date of sale.

Wine tapping equipment shall not include the following:

1. Draft wine knobs, which may be given to a retailer;

2. Carbonic acid gas, nitrogen gas, or compressed air in containers, except that such gases may be sold in accordance with the reasonable open market prices in the locality where sold and if the price is collected within 30 days of the date of the sales; or

3. Mechanical refrigeration equipment.

C. Any beer tapping equipment may be converted for wine tapping by the beer wholesaler who originally placed the equipment on the premises of the retail licensee, provided that such beer wholesaler is also a wine wholesaler licensee. Moreover, at the time such equipment is converted for wine tapping, it shall be sold, or have previously been sold, to the retail licensee at a price not less than the initial purchase price paid by such wholesaler.

D. Any manufacturer, bottler or wholesaler of wine or beer may sell or give to any retailer, bottle or can openers upon which advertising matter regarding alcoholic beverages may appear, provided the wholesale value of any such openers given to a retailer by any individual manufacturer, bottler or wholesaler does not exceed $20. Openers in excess of $20 in wholesale value may be sold, provided the reasonable open market price is charged therefor.

E. Any manufacturer of spirits may sell, lend, buy for or give to any retail licensee, without regard to the value thereof, back-bar pedestals to be used on the retail premises and upon which advertising matter regarding spirits may appear.

F. Manufacturers of alcoholic beverages and their authorized vendors or wholesalers of wine or beer may sell at the reasonable wholesale price to banquet licensees glasses or paper or plastic cups upon which advertising matter regarding alcoholic beverages may appear.

G. Manufacturers, importers, bottlers, brokers, or wholesalers of alcoholic beverages, or their representatives, may not provide point-of-sale advertising for any alcoholic beverage or any nonalcoholic beer or nonalcoholic wine to retail licensees except in accordance with 3VAC5-30-80. Manufacturers, importers, bottlers, brokers, and wholesalers [ , or their representatives, ] may provide advertising materials to any retail licensee that have been customized for that retail licensee (including the name, logo, address, and website of the retail licensee) provided that such advertising materials must:

1. Comply with all other applicable regulations of the board;

2. Be for interior use only;

3. Contain references to the alcoholic beverage products or brands offered for sale by the manufacturer, bottler, or wholesaler providing such materials and to no other products; and

4. Be made available to all retail licensees.

H. Any manufacturer, importer, bottler, broker, or wholesaler of wine, beer, or spirits, or its representatives, may sell, lend, buy for, or give to any retail licensee clip-ons and table tents.

I. Any manufacturer, importer, bottler, broker, or wholesaler of alcoholic beverages [ , or their representatives, ] may clean and service, either free or for compensation, coils and other like equipment used in dispensing wine and beer alcoholic beverages, and may sell solutions or compounds for cleaning wine and beer alcoholic beverage glasses, provided the reasonable open market price is charged.

J. Any manufacturer, importer, bottler, or wholesaler of alcoholic beverages licensed in this Commonwealth may sell ice to retail licensees provided the reasonable open market price is charged.

K. Any licensee of the board, including any manufacturer, bottler, importer, broker as defined in § 4.1-216 A of the Code of Virginia, wholesaler, or retailer who violates, attempts to violate, solicits any person to violate or consents to any violation of this section shall be subject to the sanctions and penalties as provided in § 4.1-328 of the Code of Virginia.

3VAC5-30-70. Routine business entertainment; definition; permitted activities; conditions.

A. Nothing in this regulation chapter shall prohibit a wholesaler or, manufacturer, importer, or broker of alcoholic beverages licensed in the Commonwealth from providing a retail licensee "routine business entertainment" which is defined as those activities enumerated in subsection B of this section.

B. Permitted activities are:

1. Meals and beverages;

2. Concerts, theatre and arts entertainment;

3. Sports participation and entertainment;

4. Entertainment at charitable events; and

5. Private parties; and

6. Local transportation in order to attend one or more of the activities permitted by this subsection.

C. The following conditions apply:

1. Such routine business entertainment shall be provided without a corresponding obligation on the part of the retail licensee to purchase alcoholic beverages or to provide any other benefit to such wholesaler or manufacturer or to exclude from sale the products of any other wholesaler or manufacturer;

2. Wholesaler or manufacturer personnel shall accompany the personnel of the retail licensee during such business entertainment;

3. Except as is inherent in the definition of routine business entertainment as contained herein, nothing in this regulation shall be construed to authorize the providing of property or any other thing of value to retail licensees;

4. No more than $400 may be spent per 24-hour period on any employee of any retail licensee, including a self-employed sole proprietor, or, if the licensee is a partnership, or any partner or employee thereof, or if the licensee is a corporation, on any corporate officer, director, shareholder of 10% or more of the stock or other employee, such as a buyer. Expenditures attributable to the spouse of any such employee, partnership or stockholder, and the like, shall not be included within the foregoing restrictions;

5. No person enumerated in subdivision 4 of this subsection may be entertained more than six times by a wholesaler and six times by a manufacturer per calendar year;

6. Wholesale licensees and manufacturers shall keep complete and accurate records for a period of three years of all expenses incurred in the entertainment of retail licensees. These records shall indicate the date and amount of each expenditure, the type of entertainment activity and retail licensee entertained; and

7. This regulation section shall not apply to personal friends of manufacturers, importers, bottlers, brokers, or wholesalers as provided for in 3VAC5-70-100.

3VAC5-30-80. Advertising materials that may be provided to retailers by manufacturers, importers, bottlers, or wholesalers.

A. There shall be no cooperative advertising as between a producer, manufacturer, bottler, importer, or wholesaler and a retailer of alcoholic beverages, except as may be authorized by regulation pursuant to § 4.1-216 of the Code of Virginia. The term "cooperative advertising" shall mean the payment or credit, directly or indirectly, by any manufacturer, bottler, importer, or wholesaler whether licensed in this Commonwealth or not to a retailer for all or any portion of advertising done by the retailer.

B. Manufacturers or their authorized vendors as defined in § 4.1-216.1 of the Code of Virginia and wholesalers of alcoholic beverages may sell, lend, buy for, or give to retailers any nonilluminated advertising materials made of paper, cardboard, canvas, rubber, foam, or plastic, provided the advertising materials have a wholesale value of $40 or less per item. Advertising material referring to any brand or manufacturer of spirits may only be provided to mixed beverage licensees and may not be provided by beer and wine wholesalers, or their employees, unless they hold a spirits solicitor's permit.

C. Manufacturers, bottlers, or wholesalers may supply to retailers napkins, placemats, and coasters that contain (i) a reference to the name of a brand of nonalcoholic beer or nonalcoholic wine, or (ii) a message relating solely to and promoting moderation and responsible drinking, which message may contain the name, logo, and address of the sponsoring manufacturer, bottler, or wholesaler, provided such recognition is subordinate to the message.

D. Any manufacturer, including any vendor authorized by any such manufacturer, whether or not licensed in the Commonwealth, may sell service items bearing alcoholic brand references to on-premises retail licensees. Such retail licensee may display the service items on the premises of his licensed establishment. Each such retail licensee purchasing such service items shall retain a copy of the evidence of his payment to the manufacturer or authorized vendor for a period of not less than two years from the date of each sale of the service items. As used in this subdivision, "service items" means articles of tangible personal property normally used by the employees of on-premises licensees to serve alcoholic beverages to customers including, but not limited to, glasses, napkins, buckets, and coasters.

E. Beer and wine Alcoholic beverage "neckers," recipe booklets, brochures relating to the [ wine alcoholic beverage ] manufacturing process, vineyard, brewery, and distillery geography, and history of a wine an alcoholic beverage manufacturing area;, and point-of-sale entry blanks relating to contests and sweepstakes may be provided by beer and wine manufacturers, importers, bottlers, brokers, or wholesalers to retail licensees for use on retail premises, if such items are offered to all retail licensees equally, and the manufacturer, importer, bottler, broker, or wholesaler has obtained the consent, which may be a continuing consent, of each retailer or his representative. Wholesale licensees in the Commonwealth may not put entry blanks on the package. Solicitors holding permits under the provisions of 3VAC5-60-80 may provide point-of-sale entry blanks relating to contests and sweepstakes to mixed beverage licensees for use on the premises if such items are offered to all mixed beverage licensees equally, and the solicitor has obtained the consent, which may be a continuous consent, of each mixed beverage licensee or his representative.

F. Manufacturers, importers, bottlers, brokers, or wholesalers [ , or their representatives, ] may supply refund coupons, if they are supplied, displayed, and used in accordance with 3VAC5-20-90.

G. No manufacturer, bottler, wholesaler, or importer of alcoholic beverages, whether licensed in this Commonwealth or not, may directly or indirectly sell, rent, lend, buy for, or give to any retailer any advertising materials, decorations, or furnishings under any circumstances otherwise prohibited by law, nor may any retailer induce, attempt to induce, or consent to any such supplier of alcoholic beverages furnishing such retailer any such advertising.

H. Any advertising materials provided for herein, which may have been obtained by any retail licensee from any manufacturer, bottler, broker, importer, or wholesaler of alcoholic beverages, may be installed in the interior of the licensed establishment by any such manufacturer, bottler, or wholesaler industry member [ or their representatives ] using any normal and customary installation materials. With the consent of the retail licensee, which consent may be a continuing consent, manufacturers, importers, bottlers, brokers, or wholesalers, or their representatives, may mark or affix retail prices on these materials.

I. Every retail licensee who obtains any point-of-sale advertising shall keep a complete, accurate, and separate record of all such material obtained. Such records shall show (i) the name and address of the person from whom obtained; (ii) the date furnished; (iii) the item furnished; and (iv) the price charged therefore. All such records, invoices and accounts shall be kept by each such licensee at the place designated in the license for a period of two years and shall be available for inspection and copying by any member of the board or its special agents during reasonable hours.

3VAC5-30-90. Price discrimination; inducements.

A. No wholesale wine or beer licensee shall discriminate in price of alcoholic beverages between different retail purchasers except where the difference in price charged by such wholesale licensee is due to:

1. Acceptance or rejection by a retail purchaser of terms or conditions affecting a price offer, including a quantity discount, as long as such terms or conditions are offered on an equal basis to all retailers;

2. A bona fide difference in the cost of sale or delivery; [ or ]

3. [ The status of the purchaser as an on-premises or off-premises licensee; or

4. ] The wholesale licensee charging a lower price in good faith to meet an equally low price charged by a competing wholesale licensee on a brand and package of like grade and quality.

Where such difference in price charged to any such retail purchaser does occur, the board may ask for and the wholesale licensee shall furnish written substantiation for the price difference.

B. No person holding a license authorizing the sale of alcoholic beverages at retail shall knowingly induce or receive a discrimination in price prohibited by this section.

Title of Regulation: 3VAC5-50. Retail Operations (amending 3VAC5-50-110).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

The amendment establishes a $1,000 minimum monthly food sale requirement of oysters and other seafood for gourmet oyster house licensees. This action is required by Chapter 626 of the 2011 Acts of Assembly.

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

3VAC5-50-110. Definitions and qualifications for retail on-premises and on-premises and off-premises licenses generally; mixed beverage licensee requirements; exceptions; temporary licenses.

A. The following definitions shall apply to retail licensees and mixed beverage licensees where appropriate:

1. "Designated area." A room or area in which a licensee may exercise the privilege of his license, the location, equipment and facilities of which room or area have been approved by the board. The facilities shall be such that patrons may purchase food prepared on the premises for consumption on the premises at substantially all times that alcoholic beverages are offered for sale therein. The seating capacity of such room or area shall be included in determining eligibility qualifications for a mixed beverage restaurant.

2. "Dining car, buffet car or club car." A vehicle operated by a common carrier of passengers by rail, in interstate or intrastate commerce and in which food and refreshments are sold.

3. "Meals." In determining what constitutes a "meal" as the term is used in this section, the board may consider the following factors, among others:

a. The assortment of foods commonly offered for sale;

b. The method and extent of preparation and service required; and

c. The extent to which the food served would be considered a principal meal of the day as distinguished from a snack.

4. "Habitual sales." In determining what constitutes "habitual sales" of specific foods, the board may consider the following factors, among others:

a. The business hours observed as compared with similar type businesses;

b. The extent to which such food or other merchandise is regularly sold; and

c. Present and anticipated sales volume in such food or other merchandise.

5. "Sale" and "sell." The definition of "sale" and "sell" as defined in 3VAC5-70-90 shall apply to this section.

B. Wine and beer. Retail on-premises or on-premises and off-premises licenses may be granted to persons operating the following types of establishments provided that meals or other foods are regularly sold at substantially all hours that wine and beer are offered for sale and the total monthly food sales for consumption in dining areas and other designated areas on the premises are not less than those shown:

1. "Boat" (on premises only). A common carrier of passengers for which a certificate as a sight-seeing carrier by boat, or a special or charter party by boat has been issued by the State Corporation Commission, habitually serving food on the boat:

Monthly sales .........................................................$2,000

2. "Restaurant." A bona fide dining establishment habitually selling meals with entrees and other foods prepared on the premises:

Monthly sales .........................................................$2,000

3. "Hotel." Any duly licensed establishment, provided with special space and accommodation, where, in consideration of payment, meals with entrees and other food prepared on the premises and lodging are habitually furnished to persons and which has four or more bedrooms:

Monthly sales .........................................................$2,000

In regard to both restaurants and hotels, at least $1,000 of the required monthly sales must be in the form of meals with entrees.

4. "Gourmet Oyster House." Any duly licensed establishment, located on the premises of a commercial marina and permitted by the Department of Health to serve oysters and other fresh seafood for consumption on the premises, where the licensee also offers to the public events for the purpose of featuring oysters and other seafood products:

Monthly sales of oysters and other seafood…...$1,000

C. Beer. Retail on-premises or on-premises and off-premises licenses may be granted to persons operating the following types of establishments provided that food is regularly sold at substantially all hours that beer is offered for sale and the total monthly food sales for consumption in dining areas and other designated areas on the premises are not less than those shown:

1. "Boat" (on-premises only). See subdivision B 1:

Monthly sales .........................................................$2,000

2. "Restaurant." An establishment habitually selling food prepared on the premises:

Monthly sales .........................................................$2,000

3. "Hotel." See subdivision B 3;:

Monthly sales .........................................................$2,000

D. Mixed beverage licenses. The following shall apply to mixed beverage licenses where appropriate:

1. "Bona fide, full-service restaurant." An established place of business where meals with substantial entrees are habitually sold to persons and which has adequate facilities and sufficient employees for cooking, preparing and serving such meals for consumption at tables in dining areas on the premises. In determining the qualifications of such restaurant, the board may consider the assortment of entrees and other food sold. Such restaurants shall include establishments specializing in full course meals with a single substantial entree.

2. "Monetary sales requirements." The monthly sale of food prepared on the premises shall not be less than $4,000 of which at least $2,000 shall be in the form of meals with entrees.

3. "Dining area." A public room or area in which meals are regularly sold at substantially all hours that mixed beverages are offered for sale therein.

4. "Outside terraces or patios." An outside terrace or patio, the location, equipment and facilities of which have been approved by the board may be approved as a "dining area" or as a "designated area" in the discretion of the board. A location adjacent to a public sidewalk, street or alley will not be approved where direct access is permitted from such sidewalk, street or alley by more than one well-defined entrance therefrom. The seating capacity of an outside terrace or patio if used regularly by those operations which are seasonal in nature, shall be included in determining eligibility qualifications. For purposes of this subdivision, the term "seasonal operations" is defined as an establishment that voluntarily surrenders its license to the board for part of its license year.

5. "Tables and counters."

a. A "table" shall include any article of furniture, fixture or counter generally having a flat top surface supported by legs, a pedestal or a solid base, designed to accommodate the serving of food and refreshments (though such food and refreshments need not necessarily be served together), and to provide seating for customers. If any table is located between two-backed benches, commonly known as a booth, at least one end of the structure shall be open permitting an unobstructed view therein. In no event, shall the number of individual seats at free standing tables and in booths be less than the number of individual seats at counters.

b. This subdivision shall not be applicable to a room otherwise lawfully in use for private meetings and private parties limited in attendance to members and guests of a particular group.

E. The board may grant a license to an establishment not meeting the qualifying figures in this section, provided the establishment otherwise is qualified under the applicable provisions of the Code of Virginia and this section, if it affirmatively appears that there is a substantial public demand for such an establishment and that the public convenience will be promoted by the issuance of the license.

F. Notwithstanding the above, the board may issue a temporary license for any of the above retail operations. Such licenses may be issued only after application has been filed in accordance with § 4.1-230 of the Code of Virginia, and in cases where the sole objection to issuance of a license is that the establishment will not be qualified in terms of the sale of food or edible items. If a temporary license is issued, the board shall conduct an audit of the business after a reasonable period of operation not to exceed 180 days. Should the business be qualified, the license applied for may be issued. If the business is not qualified, the application will become the subject of a hearing if the applicant so desires. No further temporary license shall be issued to the applicant or to any other person with respect to the establishment for a period of one year from expiration and, once the application becomes the subject of a hearing, no temporary license may be issued.

Title of Regulation: 3VAC5-60. Manufacturers and Wholesalers Operations (amending 3VAC5-60-20, 3VAC5-60-50, 3VAC5-60-80; adding 3VAC5-60-25, 3VAC5-60-110).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

The amendments (i) allow required reports of sales to be filed monthly rather than weekly; (ii) allow up to two cases of wine to be peddled to retailers during a scheduled delivery of other wine products that were preordered by the retailers; (iii) add provisions governing situations in which a brewery may manufacture beer bearing the brand name of another pursuant to a contract brewing arrangement; (iv) allow electronic filing of required reports; (v) increase the size of spirits samples that may be given to mixed beverage licensees from 50 milliliters to 375 milliliters; and (vi) allow spirits manufacturers to rent booths, provide hospitality events, and pay for advertising in brochures made for conventions, trade association meetings, and similar gatherings.

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.

3VAC5-60-20. Wines; purchase orders generally; wholesale wine licensees.

A. Purchases of wine between the board, licensees or persons outside the Commonwealth shall be executed only on order forms prescribed by the board and provided at cost if supplied by the department.

B. Wholesale wine licensees shall comply with the following procedures:

1. Purchase orders. A copy of each purchase order for wine and a copy of any change in such order shall be forwarded to the board by the wholesale wine licensee at the time the order is placed or changed. Upon receipt of shipment, one copy of such purchase order shall be forwarded to the board by the licensee reflecting accurately the date received and any changes. In lieu of forwarding copies of purchase orders to the board, a wholesale licensee may submit a report to the board weekly monthly, in a format approved by the board, of all purchase orders for the previous week month. The report covering the last week of any calendar month must be submitted to the board on or before the 5th 15th day of the succeeding month.

2. Sales in the Commonwealth. Separate invoices shall be used for all nontaxed wine sales in the Commonwealth and a copy of each such invoice shall be furnished to the board upon completion of the sale. In lieu of forwarding copies of invoices to the board, a wholesale licensee may submit a report to the board weekly monthly, in a format approved by the board, of all invoices for the previous week month. The report covering the last week of any calendar month must be submitted to the board on or before the 5th 15th day of the succeeding month.

3. Out-of-state sales. Separate sales invoices shall be used for wine sold outside the Commonwealth and a copy of each such invoice shall be furnished to the board upon completion of the sale. In lieu of forwarding copies of invoices to the board, a wholesale licensee may submit a report to the board weekly monthly, in a format approved by the board, of all invoices for the previous week month. The report covering the last week of any calendar month must be submitted to the board on or before the 5th 15th day of the succeeding month.

4. Peddling. Wine shall not A maximum of two cases or 24 bottles of wine may be peddled to retail licensees during an invoiced delivery, provided that the wholesale wine licensee provides a revised purchase order indicating the additional wine peddled during the transaction.

5. Repossession. Repossession of wine sold to a retailer shall be accomplished on forms prescribed by the board and provided at cost if supplied by the board, and in compliance with the instructions on the forms.

6. Reports to the board. Each month wholesale wine licensees shall, on forms or an electronic system prescribed by the board and in accordance with the instructions set forth therein, report to the board the purchases and sales made during the preceding month, and the amount of state wine tax collected from retailers pursuant to §§ 4.1-234 and 4.1-235 of the Code of Virginia. Each wholesale wine licensee shall on forms or an electronic system prescribed by the board on a quarterly basis indicate the quantity of wine on hand at the close of business on the last day of the last month of the preceding quarter based on actual physical inventory by brands. Reports shall be accompanied by remittance for the amount of taxes collected, less any refunds, replacements or adjustments and shall be postmarked or submitted electronically no later than the fifteenth 15th of the month, or if the fifteenth 15th is not a business day, the next business day thereafter.

3VAC5-60-25. Winery, farm winery, and brewery licenses; reports.

On or before the 15th day of each month, each winery, farm winery, and brewery licensee shall, on forms or an electronic system prescribed by the board and in accordance with the instructions set forth therein, file a report with the board of sales made in the previous calendar month. Tax payment in accordance with § 4.1-234 or 4.1-236 of the Code of Virginia shall be made with the submission of this report.

3VAC5-60-50. Records required of distillers, fruit distillers, winery licensees and farm winery licensees; procedures for distilling for another; farm wineries.

A person holding a distiller's, fruit distiller's, winery or a farm winery license shall comply with the following procedures:

1. Records. Complete and accurate records shall be kept at the licensee's place of business for a period of two years, which records shall be available during reasonable hours for inspection by any member of the board or its special agents. Such records shall include the following information:

a. The amount in liters and alcoholic content of each type of alcoholic beverage manufactured during each calendar month;

b. The amount of alcoholic beverages on hand at the end of each calendar month;

c. Withdrawals of alcoholic beverages for sale to the board or licensees;

d. Withdrawals of alcoholic beverages for shipment outside of the Commonwealth showing:

(1) Name and address of consignee;

(2) Date of shipment; and

(3) Alcoholic content, brand name, type of beverage, size of container and quantity of shipment.

e. Purchases of cider or wine including:

(1) Date of purchase;

(2) Name and address of vendor;

(3) Amount of purchase in liters; and

(4) Amount of consideration paid.

f. A distiller or fruit distiller employed to distill any alcoholic beverage shall include in his records the name and address of his employer for such purpose, the amount of grain, fruit products or other substances delivered by such employer, the type, amount in liters and alcoholic content of alcoholic beverage distilled therefrom, the place where stored, and the date of the transaction.

2. Distillation for another. A distiller or fruit distiller manufacturing spirits for another person shall:

a. At all times during distillation keep segregated and identifiable the grain, fruit, fruit products or other substances furnished by the owner thereof;

b. Keep the alcoholic beverages distilled for such person segregated in containers bearing the date of distillation, the name of the owner, the amount in liters, and the type and alcoholic content of each container; and

c. Release the alcoholic beverages so distilled to the custody of the owner, or otherwise, only upon a written permit issued by the board.

3. Farm wineries. A farm winery shall keep complete, accurate and separate records of fresh fruits or other agricultural products grown or produced elsewhere and obtained for the purpose of manufacturing wine. At least 51% of the fresh fruits or agricultural products used by the farm winery to manufacture the wine shall be grown or produced on such farm. Each farm winery must comply with the provisions of § 4.1-219 of the Code of Virginia for its applicable class of winery license relating to production of fresh fruits or other agricultural products. As provided in § 4.1-219, the board, upon petition by the Department of Agriculture and Consumer Services, may grant a waiver from the production requirements.

3VAC5-60-80. Solicitation of mixed beverage licensees by representatives of manufacturers, etc., of spirits.

A. Generally. This section applies to the solicitation, directly or indirectly, of a mixed beverage licensee to sell or offer for sale spirits. Solicitation of a mixed beverage licensee for such purpose other than by a permittee of the board and in the manner authorized by this section shall be prohibited.

B. Permits.

1. No person shall solicit a mixed beverage licensee unless he has been issued a permit. To obtain a permit, a person shall:

a. Register with the board by filing an application on such forms as prescribed by the board;

b. Pay in advance a fee of $300, which is subject to proration on a quarterly basis, pursuant to § 4.1-230 E of the Code of Virginia;

c. Submit with the application a letter of authorization from the manufacturer, brand owner or its duly designated United States agent, of each specific brand or brands of spirits which the permittee is authorized to represent on behalf of the manufacturer or brand owner in the Commonwealth; and

d. Be an individual at least 21 years of age.

2. Each permit shall expire yearly on June 30, unless sooner suspended or revoked by the board.

3. A permit hereunder shall authorize the permittee to solicit or promote only the brand or brands of spirits for which the permittee has been issued written authorization to represent on behalf of the manufacturer, brand owner, or its duly designated United States agent and provided that a letter of authorization from the manufacturer or brand owner to the permittee specifying the brand or brands he is authorized to represent shall be on file with the board. Until written authorization or a letter of authorization, in a form authorized by the board, is received and filed with the board for a particular brand or brands of spirits, there shall be no solicitation or promotion of such product by the permittee. Further, no amendment, withdrawal or revocation, in whole or in part, of a letter of authorization on file with the board shall be effective as against the board until written notice thereof is received and filed with the board; and, until the board receives notice thereof, the permittee shall be deemed to be the authorized representative of the manufacturer or brand owner for the brand or brands specified on the most current authorization on file with the board.

C. Records. A permittee shall keep complete and accurate records of his solicitation of any mixed beverage licensee for a period of two years, reflecting all expenses incurred by him in connection with the solicitation of the sale of his employer's products and shall, upon request, furnish the board with a copy of such records.

D. Permitted activities. Solicitation by a permittee shall be limited to his authorized brand or brands, may include contact, meetings with, or programs for the benefit of mixed beverage licensees and employees thereof on the licensed premises, and in conjunction with solicitation, a permittee may:

1. Distribute directly or indirectly written educational material (one item per retailer and one item per employee, per visit) which may not be displayed on the licensed premises; distribute novelty and specialty items bearing spirits advertising not in excess of $10 in wholesale value (in quantities equal to the number of employees of the retail establishment present at the time the items are delivered); and provide film or video presentations of spirits which are essentially educational to licensees and their employees only, and not for display or viewing by customers;

2. Provide to a mixed beverage licensee sample servings from containers of spirits and furnish one, unopened, 50 milliliter sample container no larger than 375 milliliters of each brand being promoted by the permittee and not sold by the licensee; such containers and sample containers shall be purchased at a government store and bear the permittee's permit number and the word "sample" in reasonable sized lettering on the container or sample container label; further, the spirits container shall remain the property of the permittee and may not be left with the licensee and any 50 milliliter sample containers left with the licensee shall not be sold by the licensee;

3. Promote their authorized brands of spirits at conventions, trade association meetings, or similar gatherings of organizations, a majority of whose membership consists of mixed beverage licensees or spirits representatives for the benefit of their members and guests, and shall be limited as follows:

a. To sample servings from containers of spirits purchased from government stores when the spirits donated are intended for consumption during the gathering;

b. To displays of spirits in closed containers bearing the word "sample" in lettering of reasonable size and informational signs provided such merchandise is not sold or given away except as permitted in this section;

c. To distribution of informational brochures, pamphlets and the like, relating to spirits;

d. To distribution of novelty and specialty items bearing spirits advertising not in excess of $10 in wholesale value; and

e. To film or video presentations of spirits which are essentially educational;

f. To display at the event the brands being promoted by the permittee;

g. To rent display booth space if the rental fee is the same as paid by all exhibitors at the event;

h. To provide its own hospitality, which is independent from activities sponsored by the association or organization holding the event;

i. To purchase tickets to functions and pay registration fees if the payments or fees are the same as paid by all attendees, participants, or exhibitors at the event; and

j. To make payments for advertisements in programs or brochures issued by the association or organization holding the event if the total payments made for all such advertisements do not exceed $300 per year for any association or organization holding the event; or

4. Provide or offer to provide point-of-sale advertising material to licensees as provided in 3VAC5-20-20 or 3VAC5-30-80.

E. Prohibited activities. A permittee shall not:

1. Sell spirits to any licensee, solicit or receive orders for spirits from any licensee, provide or offer to provide cash discounts or cash rebates to any licensee, or to negotiate any contract or contract terms for the sale of spirits with a licensee;

2. Discount or offer to discount any merchandise or other alcoholic beverages as an inducement to sell or offer to sell spirits to licensees;

3. Provide or offer to provide gifts, entertainment or other forms of gratuity to licensees except that a permittee may provide a licensee "routine business entertainment," as defined in 3VAC5-30-70, subject to the same conditions and limitations that apply to wholesalers and manufacturers under that section;

4. Provide or offer to provide any equipment, furniture, fixtures, property or other thing of value to licensees except as permitted by this regulation;

5. Purchase or deliver spirits or other alcoholic beverages for or to licensees or provide any services as inducements to licensees, except that this provision shall not preclude the sale or delivery of wine or beer by a licensed wholesaler;

6. Be employed directly or indirectly in the manufacturing, bottling, importing or wholesaling of spirits and simultaneously be employed by a retail licensee;

7. Solicit licensees on any premises other than on their licensed premises or at conventions, trade association meetings or similar gatherings as permitted in subdivision D 3 of this section;

8. Solicit or promote any brand or brands of spirits without having on file with the board a letter from the manufacturer or brand owner authorizing the permittee to represent such brand or brands in the Commonwealth; or

9. Engage in solicitation of spirits other than as authorized by law.

F. Refusal, suspension or revocation of permits.

1. The board may refuse, suspend or revoke a permit if it shall have reasonable cause to believe that any cause exists which would justify the board in refusing to issue such person a license, or that such person has violated any provision of this section or committed any other act that would justify the board in suspending or revoking a license.

2. Before refusing, suspending or revoking such permit, the board shall follow the same administrative procedures accorded an applicant or licensee under Title 4.1 of the Code of Virginia and regulations of the board.

3VAC5-60-110. Contract brewing arrangements.

A licensed brewery may manufacture beer bearing the brand of another not under common control with the manufacturing brewery, and sell and deliver the beer so manufactured to the brand owner, provided that (i) the brand owner is appropriately licensed as a brewery or beer wholesaler; (ii) the manufacturing is pursuant to a written agreement between the parties; and (iii) complete records of all beer manufactured, sold, and delivered pursuant to the agreement are maintained by both parties.

[ FORMS (3VAC5-60)

Wholesale Wine Distributions' Bond - Corporate Form, #702-38.

Wholesale Wine Distributions' Bond - Individual or Partnership Form, #702-37.

Purchase Order, #703-34 (eff. 3/87).

Wholesaler's Summary of Wine Sales and Taxes, #703-40 (eff. 5/92).

Malt Beverage Wholesaler's Tax Report, #805-70.

Purchase Order, #703-34 (rev. 3/87)

Wholesale Wine Distributors' Bond - Individual or Partnership Form, #702-37

Wholesale Wine Distributors' Bond - Corporation Form, #702-38.

Wholesaler's Summary of Wine Sales and Taxes, #703-40 (rev. 7/00)

Virginia Farm Winery Monthly Report, #703-40A (rev. 10/12)

Malt Beverage Wholesaler's Tax Report, #805-70 (rev. 5/09)

Solicitor-Salesman Permit Application, #805-81 (rev. 5/08) ]

Title of Regulation: 3VAC5-70. Other Provisions (amending 3VAC5-70-90, 3VAC5-70-100, 3VAC5-70-150, 3VAC5-70-210, 3VAC5-70-220).

Statutory Authority: § 4.1-111 of the Code of Virginia (3VAC5-70-90, 3VAC5-70-100, 3VAC5-70-150, 3VAC5-70-220).

§§ 4.1-111 and 4.1-227 of the Code of Virginia (3VAC5-70-210).

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

The amendments (i) allow licensees to store records off site; (ii) allow banquet and special event licensees 90 days to file required reports; (iii) add importers, bottlers, brokers, and wholesalers to the list of licensees who are permitted to host events at and donate their products to conventions or educational events; (iv) clarify that each establishment is considered a separate licensee even in cases where one entity owns multiple establishments; and (v) allow licensees to file required monthly activity reports electronically.

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.

3VAC5-70-90. Records to be kept by licensees generally; additional requirements for certain retailers; "sale" and "sell" defined; gross receipts; reports.

A. All licensees shall keep complete, accurate and separate records at the licensee's place of business for a period of two years. The records shall be available for inspection and copying by any member of the board or its special agents during reasonable hours. Licensees may use microfilm, microfiche, disks, or other available technologies for the storage of their records, and may store them off site, provided the records so stored are readily subject to retrieval and made available for viewing on a screen or in hard copy by the board or its special agents at the licensed premises between the hours of 9 a.m. and 5 p.m. At any other time of day, if the licensee's records are not available for inspection, the licensee shall provide the records to a special agent of the board within 24 hours after a request is made to inspect the records.

The board and its special agents shall be allowed free access during reasonable hours to every place in the Commonwealth where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting all records, invoices and accounts therein.

"Reasonable hours" shall be deemed to include all business hours of operation and any other time at which there exists any indication of activity upon the licensed premises.

B. All licensed manufacturers, bottlers or wholesalers of alcoholic beverages shall keep a complete, accurate and separate record of all alcoholic beverages manufactured, bottled, purchased, sold or shipped by him. Such records shall show the quantities of all such alcoholic beverages manufactured, bottled, purchased, sold or shipped by him; the dates of all sales, purchases, deliveries or shipments; the names and addresses of all persons to or from whom such sales, purchases, deliveries or shipments are made; the quantities and kinds of alcoholic beverages sold and delivered or shipped and the prices charged therefor and the taxes applicable thereto, if any. Every manufacturer and wholesaler, at the time of delivering alcoholic beverages to any person, shall also prepare a duplicate invoice showing the date of delivery, the quantity and value of each delivery and the name of the purchaser to whom the delivery is made.

C. Every retail licensee shall keep complete, accurate and separate records, including invoices, of the purchases and sales of alcoholic beverages, food and other merchandise. The records of alcoholic beverages shall be kept separate and apart from other records and shall include all purchases thereof, the dates of such purchases, the kinds and quantities of alcoholic beverages purchased, the prices charged therefor and the names and addresses of the persons from whom purchased.

Additionally, each retail licensee shall keep accurate accounts of daily sales, showing quantities of alcoholic beverages, food, and other merchandising sold and the prices charged therefor.

D. In addition to the requirements of subsections A and C of this section, mixed beverage restaurant licensees shall keep records of all alcoholic beverages purchased for sale as mixed beverages and records of all mixed beverage sales. The following actions shall also be taken:

1. On delivery of a mixed beverage restaurant license by the board, the licensee shall furnish to the board or its special agents a complete and accurate inventory of all alcoholic beverages currently held in inventory on the premises by the licensee; and

2. Once a year, each licensee shall submit on prescribed forms to the board an annual review report. The report is due within 30 days after the end of the mixed beverage license year and shall include:

a. A complete and accurate inventory of all alcoholic beverages purchased for sale as mixed beverages and held in inventory at the close of business at the end of the annual review period;

b. An accounting of the annual purchases of food, nonalcoholic beverages and alcoholic beverages, including alcoholic beverages purchased for sale as mixed beverages, and miscellaneous items; and

c. An accounting of the monthly and annual sales of all merchandise specified in subdivision 2 b of this subsection.

E. The terms "sale" and "sell" shall include exchange, barter or traffic, or delivery made otherwise than gratuitously, by any means whatsoever, of mixed beverages and other alcoholic beverages, and of meals or food.

F. In determining "gross receipts from the sale of food" for the purposes of § 4.1-210 of the Code of Virginia, a licensee shall not include any receipts for food for which there was no sale, as defined in this section. Food which is available at an unwritten, non-separate charge to patrons or employees during Happy Hours, private social gatherings, promotional events, or at any other time, shall not be included in the gross receipts. Food shall include hors d'oeuvres.

If in conducting its review pursuant to § 4.1-114 of the Code of Virginia, the board determines that the licensee has failed or refused to keep complete and accurate records of the amounts of mixed beverages or other alcoholic beverages sold at regular prices, as well as at all various reduced and increased prices offered by the licensee, the board may calculate the number of mixed drinks and other alcoholic beverage drinks sold, as determined from purchase records, and presume that such sales were made at the highest posted menu prices for such merchandise.

G. Any changes in the officers, directors or shareholders owning 10% or more of the outstanding capital stock of a corporation shall be reported to the board within 30 days; provided, however, that corporations or their wholly owned subsidiaries whose corporate common stock is publicly traded and owned shall not be required to report changes in shareholders owning 10% or more of the outstanding capital stock.

H. All banquet and special event licensees in charge of public events shall report to the board the income and expenses associated with the public event on a form prescribed by the board when the licensee engages another person to organize, conduct or operate the event on behalf of the licensee. Reports shall be made within 30 90 days after the date of each event. "Public events" shall be deemed to include any event at which alcoholic beverages are sold to the general public and not only to personally invited guests.

All applicants for banquet or special event licenses shall indicate at the time of application whether the event is open to the public and whether another person has been or will be engaged to organize, conduct or operate the event on behalf of the licensee. If the applicant indicates that the event is open to the public and another person has been or will be engaged to organize, conduct or operate the event on behalf of the licensee, the applicant shall attach a copy of any contract between the applicant and such other person to the license application.

3VAC5-70-100. Gifts of alcoholic beverages generally; exceptions; wine and beer tastings; taxes and records.

A. Gifts of alcoholic beverages by a licensee to any other person are prohibited except as otherwise provided in this section or as provided in §§ 4.1-119 G, 4.1-201, 4.1-201.1, 4.1-205, 4.1-209, 4.1-325, and 4.1-325.2 of the Code of Virginia.

B. Gifts of alcoholic beverages may be made by licensees as follows:

1. Personal friends. Gifts may be made to personal friends as a matter of normal social intercourse when in no wise a shift or device to evade the provisions of this section.

2. Samples. A wholesaler may give a retail licensee a sample serving or a container not then sold by such licensee of wine or beer, which such wholesaler otherwise may sell to such retail licensee, provided that in a the case of containers, the container does not exceed 52 fluid ounces in size (1.5 liters if in a metric-sized container) and the label bears the word "Sample" in lettering of reasonable size. Such samples may not be sold. For good cause shown the board may authorize a larger sample container.

3. Hospitality rooms; conventions. A person licensed to manufacture wine or beer may The following activities are permitted:

a. Give A brewer or vintner may give samples of his products to visitors to his winery or brewery for consumption on premises only in a hospitality room approved by the board, provided the donees are persons to whom such products may be lawfully sold; and

b. Host A manufacturer, importer, bottler, broker, or wholesaler may host an event at conventions of national, regional or interstate associations or foundations organized and operated exclusively for religious, charitable, scientific, literary, civil affairs, educational or national purposes upon the premises occupied by such licensee, or upon property of the licensee contiguous to such premises, or in a development contiguous to such premises, owned and operated by the licensee or a wholly owned subsidiary.

4. Conventions; educational programs, including wine and beer alcoholic beverage tastings; research; licensee associations. Licensed manufacturers Manufacturers, importers, bottlers, brokers, and wholesalers may donate beer or wines alcoholic beverages to:

a. A convention, trade association or similar gathering, composed of licensees and their guests, when the alcoholic beverages donated are intended for consumption during the convention;

b. Retail licensees attending a bona fide educational program relating to the alcoholic beverages being given away;

c. Research departments of educational institutions, or alcoholic research centers, for the purpose of scientific research on alcoholism;

d. Licensed manufacturers and wholesalers may donate wine to official Official associations of wholesale wine licensees alcoholic beverage industry members when conducting a bona fide educational program concerning wine alcoholic beverages, with no promotion of a particular brand, for members and guests of particular groups, associations, or organizations.

5. Conditions. Exceptions authorized by subdivisions 3 b and 4 of this subsection are conditioned upon the following:

a. That prior written notice of the activity be submitted to the board describing it and giving the date, time and place of such; and

b. That the activity be conducted in a room or rooms set aside for that purpose and be adequately supervised.

C. Wine and beer wholesalers may participate in a wine or beer tasting sponsored by a gourmet shop licensee for its customers and may provide educational material, oral or written, pertaining thereto, as well as participate in the pouring of such wine or beer.

D. Any gift authorized by this section shall be subject to the taxes imposed on sales by Title 4.1 of the Code of Virginia, and complete and accurate records shall be maintained.

3VAC5-70-150. Wholesale alcoholic beverage sales; winery and brewery discounts, price-fixing; price increases; price discrimination; inducements.

A. No winery as defined in § 4.1-401 or brewery as defined in § 4.1-500 of the Code of Virginia shall require a wholesale licensee to discount the price at which the wholesaler shall sell any alcoholic beverage to persons holding licenses authorizing sale of such merchandise at retail. No winery, brewery, bottler or wine or beer importer shall in any other way fix or maintain the price at which a wholesaler shall sell any alcoholic beverage.

B. No winery as defined in § 4.1-401 or brewery as defined in § 4.1-500 of the Code of Virginia shall increase the price charged any person holding a wholesale license for alcoholic beverages except by written notice to the wholesaler signed by an authorized officer or agent of the winery, brewery, bottler or importer which shall contain the amount and effective date of the increase.

No increase shall take effect prior to 30 calendar days following the date on which the notice is postmarked; provided that the board may authorize such price increases to take effect with less than the aforesaid 30 calendar days' notice if a winery, brewery, bottler or importer so requests and demonstrates good cause therefor.

The provisions of this subsection shall not apply in any case where the importer required to provide notice of a price increase and the wholesaler to whom notice is to be provided are the same person.

C. No winery as defined in § 4.1-401 or brewery as defined in § 4.1-500 of the Code of Virginia shall discriminate in price of alcoholic beverages between different wholesale purchasers and no wholesale wine or beer licensee shall discriminate in price of alcoholic beverages between different retail purchasers except where the difference in price charged by such winery, or brewery or wholesale licensee is due to a bona fide difference in the cost of sale or delivery, or where a lower price was charged in good faith to meet an equally low price charged by a competing winery, or brewery or wholesaler on a brand and package of like grade and quality. Where such difference in price charged to any such wholesaler or retail purchaser does occur, the board may ask and the winery, or brewery or wholesaler shall furnish written substantiation for the price difference.

D. No person holding a license authorizing the sale of alcoholic beverages at wholesale or retail shall knowingly induce or receive a discrimination in price prohibited by subsection C of this section.

3VAC5-70-210. Schedule of penalties for first-offense violations.

A. Any licensee charged with any violation of board regulations or statutes listed below, if the licensee has no other pending charges and has not had any substantiated violations of regulation or statute within the three years immediately preceding the date of the violation, may enter a written waiver of hearing and (i) accept the period of license suspension set forth below for the violation, or (ii) pay the civil charge set forth below for the violation in lieu of suspension. In the case of a violation involving the sale of beer, wine, or mixed beverages to a person at least 18 but under 21 years of age, or to an intoxicated person, or allowing consumption of such beverages by such person, any retail licensee that can demonstrate that it provided alcohol seller/server training certified in advance by the board to the employee responsible for such violation within the 12 months immediately preceding the alleged violation may accept the lesser period of license suspension or pay the lesser civil charge listed below for the violation in lieu of suspension. Any notice of hearing served on a licensee for a violation covered by this section shall contain a notice of the licensee's options under this section. Any licensee who fails to notify the board of its intent to exercise one of the options provided for under this section within 20 days after the date of mailing of the notice of hearing shall be deemed to have waived the right to exercise such options and the case shall proceed to hearing. For good cause shown, the board may, in its discretion, allow a licensee to exercise the options provided for under this section beyond the 20-day period.

Title of Regulation: 3VAC5-70. Other Provisions (adding 3VAC5-70-95).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: December 18, 2013.

Agency Contact: W. Curtis Coleburn III, Chief Operating Officer, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4409, FAX (804) 213-4411, TTY (804) 213-4687, or email curtis.coleburn@abc.virginia.gov.

Summary:

Pursuant to Chapter 728 of the 2011 Acts of Assembly, the Alcoholic Beverage Control Board is amending its regulations so that a business that is licensed by the board may get a prorated refund of its licensure fee if the business is destroyed by an act of God.

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.

3VAC5-70-95. Proration of license tax for businesses destroyed by natural disaster.

The board shall make refunds of the state license tax paid pursuant to subsection A of § 4.1-231 of the Code of Virginia to licensees whose place of business designated in the license is destroyed by an act of God, including but not limited to fire, earthquake, hurricane, storm, or similar natural disaster or phenomenon, upon the following schedule:

If the destruction takes place within the first three months of the license year, 75% of the license tax shall be refunded. If the destruction takes place within the second three months of the license year, 50% of the license tax shall be refunded. If the destruction takes place within the third three months of the license year, 25% of the license tax shall be refunded. No refund shall be issued if the destruction takes place within the last three months of the license year.

Title of Regulation: 4VAC5-36. Standard Fees for Use of Department of Conservation and Recreation Facilities, Programs, and Services (amending 4VAC5-36-50, 4VAC5-36-90, 4VAC5-36-100, 4VAC5-36-110, 4VAC5-36-120, 4VAC5-36-130, 4VAC5-36-150, 4VAC5-36-200, 4VAC5-36-210).

Statutory Authority: § 10.1-104 of the Code of Virginia.

Effective Date: January 1, 2014.

Agency Contact: David C. Dowling, Policy and Planning Director, Department of Conservation and Recreation, 600 East Main Street, 24th Floor, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email david.dowling@dcr.virginia.gov.

Summary:

The amendments modify parking and launch fees (4VAC5-36-50), camping fees (4VAC5-36-90), cabin fees (4VAC5-36-100), picnic shelter and event tent fees (4VAC5-36-110), amphitheater and gazebo fees (4VAC5-36-120), boat storage fees (4VAC5-36-130), interpretive and educational tour and program fees (4VAC5-36-150), miscellaneous rental fees (4VAC5-36-200), and conference center and meeting facility fees (4VAC3-36-210).

The increases and changes to the standard rates and prices represent (i) revisions to maintain fair market value and demand for services, (ii) the addition of new facilities and offerings, (iii) updates to ensure consistency with the private sector, (iv) the deletion of fees that have become obsolete as there is no longer demand for a service, (v) revisions to reflect private concessionaires' new seasonal prices, (vi) reasonable increases to offset growing maintenance costs, and (vii) updates to ensure formatting consistency.