Title of Regulation: 1VAC30-105. Regulations Banning Concealed Firearms in Offices Owned or Occupied by Executive Branch Agencies (adding 1VAC30-105-10 through 1VAC30-105-80).

Statutory Authority: § 2.2-1102 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 21, 2016.

Agency Contact: Rhonda Bishton, Regulatory Coordinator, Department of General Services, 1100 Bank Street, Suite 420, Richmond, VA 23219, telephone (804) 786-3311, FAX (804) 371-8305, or email rhonda.bishton@dgs.virginia.gov.

Basis: Subsection B of § 2.2-1100 and subdivision A 1 of § 2.2-1102 of the Code of Virginia establish the Department of General Services (DGS) and allow the department to prescribe regulations. DGS has been directed by the Governor to issue these regulations in Executive Order (EO) 50 (2015).

Purpose: As stated in the EO, it is the Governor's desire to protect citizens and state employees from gun violence. The purpose of this regulation is to ban concealed firearms from offices owned, leased, or controlled by executive branch agencies. While state employees are already prohibited from carrying firearms through state personnel directives, this regulation will extend that prohibition to members of the public and other nonemployee individuals who may enter the premises.

Substance: Possession or carrying of any concealed firearm by any person is prohibited in and on state offices. Entry upon a state office in violation of this prohibition is expressly forbidden. This prohibition does not apply to law-enforcement officers, authorized security personnel, or military personnel when such individuals are authorized to carry a firearm in accordance with their duties and when they are carrying the firearm within that authority. It also does not apply to state employees where the employee's position requires carrying a concealed firearm.

Issues: Every day, over 60,000 Virginians report to work in state government buildings across the Commonwealth to provide services to their fellow Virginians. Citizens rely on open access to these facilities to address their personal and professional needs. Government facilities are essential to allowing citizens access to their government representatives. Allowing concealed carry in these facilities exposes our state employees and fellow citizens to unnecessary risk.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Executive Order 50 (2015), the Department of General Services (DGS) proposes to ban carrying of concealed weapons in executive branch buildings.

Estimated Economic Impact. On October 15, 2015, Governor McAuliffe signed Executive Order 50 (2015)¹ ordering the Director of DGS "to propose regulations banning carrying of concealed weapons in offices occupied by executive branch agencies, unless held by law enforcement, authorized security, or military personnel authorized to carry firearms in accordance with their duties." DGS promulgated an emergency regulation to implement this order on December 3, 2015, and it is currently scheduled to expire on June 2, 2017. The proposed regulation will make the emergency regulation permanent.

This regulation applies to buildings owned, leased, or controlled in whole or in part by or for an executive branch agency. It does not apply to open carry firearms in executive branch buildings as DGS has previously implemented the executive ban on those firearms through a guidance document. Pursuant to state personnel policy, state employees were already prohibited from possessing, brandishing, or using weapons on state premises. State institutions of higher education are exempt from this regulation so long as the institution has implemented its own policies or regulations governing firearms. State-owned or leased parking facilities, recreational lodges and cabins, employee housing, rest areas on interstate highways, and public hunting lands are not subject to this regulation.

According to DGS, there are approximately 11,000 buildings that fall under the purview of the proposed regulation. Some of the buildings are storage facilities but the remainder house many employees and some are visited by members of the public. Approximately 60,000 employees are estimated to be working in the buildings covered by this regulation;² however, the number of public visitors to affected buildings is not known.

According to the State Police, the numbers of resident and non-resident concealed carry permits in Virginia are 429,403 and 17,917, respectively.³ As of July 2015, Virginia's 18 year-old and older population is estimated to be 6,512,571.⁴ Thus, approximately seven percent of the adult population carries a concealed firearm in Virginia.⁵ Given these statistics, it would be reasonable to expect that about seven percent of visitors to executive branch buildings may be affected by the proposed regulation.

The intended goal of the proposed regulation is to reduce or prevent gun violence in executive branch buildings. Assessing the benefits versus costs of the proposed regulation essentially requires an assessment of the impact of the proposed ban. For example, whether the ban would prevent attempts to bring unauthorized concealed weapons into the state buildings by perpetrators would have to be estimated. Similarly, whether the ban would have an impact on the potential for an attack resulting from the presence of a firearm in a state building would have to be estimated, as well. To date, data on gun violence in government office buildings reflects statistically low incident rates given that many individuals pass in and out of state office buildings each day. Any estimate of the likelihood of an attack or its potential impact based on the small sample size of available data would be subject to great uncertainty. For example, even though we know that between 2000 and 2013, 11 active shooter incidents (not inclusive of all firearm incidents) occurred on non-military government properties (excluding schools) in the United States,⁶ estimating potential future incidents from that data would be subject to great uncertainty. In addition, there is no available data of past incidents of guns entering or being brandished within affected executive branch buildings in Virginia. Thus, any impact of the proposed ban cannot be ascertained due to lack of data.

Whether the proposed regulation introduces additional compliance costs also must be considered. The security for buildings owned directly by agencies is decided by the agency that owns the building. The security in executive branch buildings in Capitol Square is provided through a contract between the Division of Capitol Police and DGS. The security for space leased from the private sector is provided by the landlord. According to DGS, there has been no directive to require additional training for the security personnel or to purchase new equipment to enforce the regulation. The proposed regulation requires agencies to post signs in state buildings occupied or managed by them. According to Virginia Correctional Enterprises, $29,552 worth of signs have been purchased to date. These signs include information on the prohibition of both open and concealed carry weapons.

Businesses and Entities Affected. There are approximately 11,000 buildings used by executive branch agencies and approximately 60,000 employees working in those buildings. Currently, the numbers of resident and non-resident concealed carry permits in Virginia are 429,403 and 17,917, respectively.⁷ Given the available population and permit data, it would be reasonable to expect that about seven percent of visitors to executive branch buildings may be affected by the proposed regulation. However, there is no available data on the actual total number of private citizens or the number of private citizens with concealed carry permits visiting affected facilities.

Localities Particularly Affected. The proposed regulation applies statewide.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation does not affect small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed regulation does not have an adverse impact on small businesses.

Adverse Impacts:

Businesses. The proposed regulation does not have an adverse impact on businesses.

Localities. The proposed regulation does not adversely affect localities.

Other Entities. The proposed regulation prohibits concealed weapons from being carried into executive branch buildings. Based on comments submitted during the comment period following the Notice of Intended Regulatory Action for the permanent replacement regulation, many concealed carry permit holders perceive the ban as being adverse to their right to carry arms. However, since it is not known how many of these individuals would be directly impacted (e.g., wanting to enter a state building carrying their weapon), this potential adverse impact cannot be quantified as an adverse economic impact.

______________________________________________

¹ See http://governor.virginia.gov/media/4685/eo-50-on-gun-violence-final.pdf.

² Source: EO 50 (2015)

³ Chapter 47 of the 2016 Acts of Assembly amended the reciprocity requirements which may impact the number of non-resident permits in Virginia. See http://leg1.state.va.us/cgi-bin/legp504.exe?161+ful+CHAP0047.

⁴ Source: U.S. Census Bureau

⁵ 6.6 percent if non-resident permits are excluded and 6.9 percent with non-resident permits.

⁶ A Study of Active Shooter Incidents in the United States Between 2000 and 2013, U.S. Department of Justice, Federal Bureau of Investigation, September 16, 2013.

⁷ Chapter 47 of the 2016 Acts of Assembly amended the reciprocity requirements which may impact the number of non-resident permits in Virginia. See http://leg1.state.va.us/cgi-bin/legp504.exe?161+ful+CHAP0047.

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

Summary:

The proposed regulation prohibits concealed firearms in offices and workplace facilities under the ownership, lease, or control of an executive branch agency and includes a requirement for posting signs to this effect.

CHAPTER 105
REGULATIONS BANNING CONCEALED FIREARMS IN OFFICES OWNED OR OCCUPIED BY EXECUTIVE BRANCH AGENCIES

1VAC30-105-10. Purpose.

The purpose of this chapter is to ban the carrying of concealed firearms in offices occupied by executive branch agencies, with certain exceptions as set forth herein.

1VAC30-105-20. Applicability.

A. This chapter applies to all buildings owned, leased, or controlled in whole or in part by or for an executive branch agency. This chapter is intended to be consistent with the Virginia Department of Human Resource Management Policy 1.80 – Workplace Violence, which prohibits state employees from possessing, brandishing, or using a weapon that is not required by the employee's position while on state premises or engaged in state business.

B. This chapter applies to the concealed carrying of firearms; the Department of General Services has issued a guidance document elsewhere prohibiting the open carrying of firearms.

C. The prohibition against carrying a concealed firearm does not apply to law-enforcement officers, authorized security personnel, or military personnel when such individuals are authorized to carry a firearm in accordance with their duties and when they are carrying the firearm within that authority. It also does not apply to state employees where the employee's position requires carrying a concealed firearm.

D. This chapter does not apply to individuals who are on public hunting lands, are engaged in lawful hunting, and are in compliance with the Department of Game and Inland Fisheries hunting and trapping regulations found in 4VAC15, regarding allowable firearms and hunting license requirements.

1VAC30-105-30. Definitions.

"Authorized security personnel" means a natural person who is employed to (i) perform the functions of observation, detection, reporting, or notification of appropriate authorities or designated agents regarding persons or property on the premises he is assigned to protect; (ii) safeguard and protect persons and property; or (iii) deter theft, loss, or concealment of any tangible or intangible personal property on the premises he is assigned to protect.

"Concealed firearm" means a firearm hidden from common observation, including a firearm hidden when it is observable but is of such deceptive appearance as to disguise the firearm's true nature.

"Executive branch agency" means any administrative unit of state government in the executive branch, including any department, institution, commission, board, council, authority, or other body, however designated.

"Firearm" means any handgun, pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material.

"Law-enforcement officer" means the same as that term is defined in § 18.2-307.1 of the Code of Virginia. This shall also include retired law-enforcement officers certified pursuant to § 18.2-308.016 of the Code of Virginia.

"State office" means any building or portion of a building owned, leased, or controlled by or for an executive branch agency. This includes that portion of any building open to others and then used exclusively for functions or activities sponsored by an executive branch agency tenant or tenants while such functions are taking place. It shall not include parking facilities, lodges or cabins owned by the Commonwealth and used solely for the public for recreational activities, any buildings that serve as living quarters for Commonwealth employees, or any buildings at a rest area on an interstate highway.

1VAC30-105-40. Possession of firearms prohibited.

Possession or carrying of any concealed firearm by any person is prohibited in state offices. Entry upon a state office in violation of this prohibition is expressly forbidden. This prohibition does not apply to law-enforcement officers, authorized security personnel, or military personnel when such individuals are authorized to carry a firearm in accordance with their duties and when they are carrying the firearm within that authority. It also does not apply to state employees where the employee's position requires carrying a concealed firearm.

1VAC30-105-50. Required lease terms for state offices.

All leases entered into where an executive branch agency is the lessor shall contain a prohibition on concealed firearms consistent with this chapter. All leases entered into for the benefit of an executive branch agency shall contain this prohibition to indicate the lessor's acknowledgment. Exceptions may be allowed where approved in writing by the Governor or his designee.

1VAC30-105-60. Posting of signs.

A. Posting location. Signs shall be posted at all state offices indicating the prohibition against carrying concealed firearms. Where the entire premises are owned or occupied by an executive branch agency, signs shall be displayed at every entrance. Where only a portion of the premises are leased for an executive branch agency, the signs shall be displayed within the leased space. If an executive branch agency is using an office open to others, temporary signs shall be displayed at or near the entry to the office during the time the office is being used exclusively for Commonwealth sponsored functions or activities while such functions are taking place.

B. Size and design. Signs shall be of a size and design approved by the Department of General Services. Agencies shall be responsible for obtaining signage design from the Department of General Services and for posting of the signs.

1VAC30-105-70. Enforcement.

The occupying agency shall be responsible for enforcing this chapter.

1VAC30-105-80. Exemptions.

A. A state institution of higher education is exempt from this chapter if the institution has implemented its own policies or regulations governing firearms.

B. Members of the Virginia National Guard (the guard) who possess a valid concealed handgun permit shall be exempt from this chapter while at facilities owned by the guard or under contract or lease to the guard. This exemption may be withdrawn by the commanding officer of any member while such member is participating in any training or other exercises where the commanding officer determines that (i) such possession would interfere with the conduct of such training or other exercises, (ii) such possession may result in mission impairment, or (iii) the member is unfit to carry a handgun.

C. The Governor or his designee may otherwise grant exemptions from the requirements of this chapter. To qualify for an exemption, the applying executive branch agency must show that an alternative policy consistent with the Commonwealth's policy against firearms in state offices is appropriate.

Title of Regulation: 2VAC5-685. Regulations Governing Pesticide Applicator Certification under Authority of Virginia Pesticide Control Act (amending 2VAC5-685-10 through 2VAC5-685-60, 2VAC5-685-80, 2VAC5-685-90, 2VAC5-685-130, 2VAC5-685-170, 2VAC5-685-180; adding 2VAC5-685-65).

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

Effective Date: September 22, 2016.

Agency Contact: Liza Fleeson, Program Manager, Office of Pesticide Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 371-6559, FAX (804) 371-2283, TTY (800) 828-1120, or email liza.fleeson@vdacs.virginia.gov.

Summary:

The amendments update the regulation by (i) amending certain definitions; (ii) allowing an additional 90-day training after an individual fails his initial examination; (iii) revising the process by which persons who cannot read pesticide labels can be certified to apply restricted use pesticides on their own property; (iv) clarifying the on-the-job training requirements for prospective applicators; (v) establishing numeric identifiers for the existing categories of private applicator certification; (vi) prescribing the minimum educational requirements for certified commercial applicators and registered technicians taking board-approved recertification training programs; and (vii) clarifying the requirements for the issuance of a certificate pursuant to a reciprocal agreement with another state.

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.

Part I
Definitions

2VAC5-685-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. An asterisk or double asterisk following a definition indicates that the definition has been taken from the Virginia Pesticide Control Act, Article 1 (§ 3.2-3900 et seq.) or Article 4 (§ 3.2-3935 et seq.), respectively, of Chapter 39 of Title 3.2 of the Code of Virginia.

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

"Act" means the Virginia Pesticide Control Act (§ 3.2-3900 et seq. of the Code of Virginia).

"Agricultural commodity" means any plant or part thereof, or animal, or animal product, produced by a person, including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, nurserymen, wood treaters not for hire, or other comparable persons, primarily for sale, consumption, propagation, or other use by man or animals.*

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

"Board-approved training" means a course which includes, at a minimum, study and review of all the material contained in an edition used in Virginia of (i) a basic pesticide applicator certification training core manual and (ii) a certification training manual for each specific category pertaining to the type of pesticide application to be done.

"Certificate" means the document issued to a certified applicator or registered technician who has completed all the requirements of Article 3 (§ 3.2-3929 et seq.) of Chapter 39 of Title 3.2 of the Code of Virginia.

"Certification" or "certified" means the recognition granted by the Board of Agriculture and Consumer Services to an applicator upon satisfactory completion of board-approved requirements.*

"Chemigation" means the application of any pesticide through an irrigation system.

"Commercial applicator" means any applicator who has completed the requirements as determined by the board, including appropriate training and time in service, to apply for a certification, and who uses or supervises the use of any pesticide for any purpose or on any property, other than as provided in the definition of private applicator.*

"Commercial applicator not for hire" means any commercial applicator who uses or supervises the use of pesticides as part of his job duties only on property owned or leased by him or his employer. It also applies to governmental employees who use or supervise the use of pesticides, whether on property owned or leased by them or their employers or not, in the performance of their official duties.

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

"Competent person" means a person having the demonstrated ability to perform the task to which he is assigned.

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

"Drift" means the physical movement of pesticide through the air at the time of pesticide application or soon thereafter from the target site to any nontarget or off-target site. Pesticide drift will not include movement of pesticides to nontarget or off-target sites caused by erosion, migration, volatility, or windblown soil particles that occurs after application unless specifically addressed on the pesticide product label with respect to drift control requirements.

"EPA" means the United States Environmental Protection Agency.

"Fumigant" means any substance which that by itself or in combination with any other substance emits or liberates a gas or gases, fumes, or vapors that will destroy vermin, rodents, insects, and other pests, and are is usually lethal, poisonous, noxious, or dangerous to human life.

"Fungicide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any fungi or plant disease.*

"Herbicide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any weed.*

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

"Insecticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects which that may be present in any environment whatsoever.*

"Knowledge" means the possession and comprehension of pertinent facts, together with the ability to use them in dealing with specific problems and situations within the pesticide context.

"Label" means the written, printed, or graphic matter on, or attached to, the pesticide or device, or the immediate container thereof, and the outside container or wrapper of the retail package, if any, of the pesticide or device.*

"Labeling" means all labels and other written, printed, or graphic matter (i) upon the pesticide or device or any of its containers or wrappers, (ii) accompanying the pesticide or device at any time, or (iii) to which reference is made on the label or in literature accompanying the pesticide or device, except when accurate, nonmisleading reference is made to current official publications of the agricultural experiment station, the Virginia Polytechnic Institute and State University, the Department of Agriculture and Consumer Services, the State Board of Health, or similar federal institutions or other official agencies of the Commonwealth or other states when such states are authorized by law to conduct research in the field of pesticides.*

"Licensed" or "licensee" means those businesses which, when meeting the requirements established by the Board of Agriculture and Consumer Services, are issued a license to engage in the sale, storage, distribution, recommend the use, or application of pesticides in Virginia in exchange for compensation.*

"Marine antifoulant paint" means any compound, coating, paint or treatment applied or used for the purpose of controlling freshwater or marine fouling organisms on vessels.**

"Pesticide" means (i) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, fungi, bacteria, weeds, or other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the commissioner shall declare to be a pest; (ii) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; and (iii) any substance which is intended to become an active ingredient thereof.*

"Pesticide business" means any person engaged in the business of: distributing, applying or recommending the use of a product; or storing, selling, or offering for sale pesticides directly to the user. The term "pesticide business" does not include (i) wood treaters not for hire; (ii) seed treaters not for hire; (iii) operations which that produce agricultural products unless the owners or operators of such operations described in clauses (i), (ii), and (iii) are engaged in the business of selling or offering for sale pesticides, or distributing pesticides to persons outside of that agricultural producing operation in connection with commercial transactions; or (iv) businesses exempted by regulations adopted by the board.*

"Private applicator" means an applicator who uses or supervises the use of any pesticide which that is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by him or his employer or, if applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person.*

"Registered technician" means an individual who renders services similar to those of a certified commercial applicator, but who has not completed all the training or time in service requirements to be eligible for examination for certification as a commercial applicator and is limited to application of general use pesticides. However, if he applies restricted use pesticides he shall do so only under the direct supervision of a certified commercial applicator.* Every registered technician is certified in Category 60 regardless of the category or subcategory in which he is trained and applies pesticides.

"Registered technician not for hire" means any registered technician who uses or supervises the use of pesticides as part of his job duties only on property owned or leased by him or his employer. It also applies to governmental employees who use or supervise the use of pesticides, whether on property owned or leased by them or their employers or not, in the performance of their official duties.

"Repeat violation" means another violation following the first violation of the same provision of the Virginia Pesticide Control Act or the federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136 et seq.), or regulations adopted pursuant thereto, committed within a three-year period commencing with the date of official notification of the first violation of the provision.

"Restricted entry interval" means the time after the end of a pesticide application during which entry into the treated area is restricted.

"Restricted use pesticide" or "pesticide classified for restricted use" means any pesticide classified for restricted use by the administrator of the EPA under the provisions of 1947 (7 USC § 3(d)(1)(c)) of the federal Insecticide, Fungicide, and Rodenticide Act (as amended).

"Rodenticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating rodents or any other vertebrate animal which the commissioner shall declare to be a pest.*

"Tributyltin compounds" means any compound having three normal butyl groups attached to a tin atom and with or without an anion such as chloride, fluoride, or oxide.**

"Under the direct supervision of" means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified commercial applicator who is responsible for the actions of that person.*

"Under the direct on-site supervision of" means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified commercial applicator who is responsible for the actions of that person and is physically present on the property upon which the pesticide is being applied, and is in constant visual contact with the person applying the pesticide.

"Use" means the employment of a pesticide for the purposes of (i) preventing, destroying, repelling, or mitigating any pest or (ii) regulating plant growth, causing defoliation or desiccation of plants. The term "use" shall include application or mixing, and shall include handling or transfer of a pesticide after the manufacturer's original seal is broken. The term "use" shall also include any act with respect to a particular pesticide which is consistent with the label directions for that particular pesticide.*

"Vessel" means every description of watercraft, other than a seaplane, used or capable of being used as a means of transportation on the water, whether self-propelled or otherwise, and includes barges and tugs.**

[ Part II
Certification of Pesticide Applicators ]

2VAC5-685-20. General requirements for certification.

A. The following persons must be certified as pesticide applicators:

1. Commercial applicators;

2. Registered technicians; and

3. Private applicators.

B. Commercial applicators not for hire must be certified only when using any pesticide in the following areas except as noted in subsection C of this section:

1. Areas open to the general public at daycare facilities, educational institutions, health care facilities, and convalescent facilities;

2. Areas where open food is stored, processed, or sold; and

3. Recreational lands over five acres in size.

C. Employees of local, state, and federal governmental agencies who use or supervise the use of any pesticide on any area in the performance of their official duties must be certified as either commercial applicators not for hire or registered technicians, but they are exempt from any certification fees.

D. All persons desiring certification as pesticide applicators must:

1. Complete board-approved training appropriate for the desired classification;

2. Submit a completed application to the commissioner; and

3. Pass required examination(s) examination or examinations. a. Applicants who do not pass the examination on their first attempt are eligible to be reexamined for the same category 10 days from the date of the first examination.

b. Applicants who fail on the second or subsequent attempts must wait 30 days from the date of the last examination before being reexamined in the same category.

c. Applicants requesting and who request reexamination must resubmit a completed application to the commissioner or his duly authorized agent and pay the nonrefundable applicator certification fee as determined by 2VAC5-675, Rules and Regulations Governing the Pesticide Fees Charged by the Department of Agriculture and Consumer Services Under the Virginia Pesticide Control Act.

E. Persons with a history of repeat violations of federal or state pesticide laws or whose certification or pesticide business license has been revoked within the two-year period immediately prior to application are not eligible for certification. Such persons may appear before the board to show why they should be granted certification as outlined under provisions of § 3.2-3940 E of the Code of Virginia.

F. Applicants for certification cannot engage in the activity for which they are requesting certification, unless participating in supervised direct on-site training, until certification has been issued by the commissioner. Commercial applicators may not apply pesticides in any category or subcategory activity until they have passed the category-specific examination and obtained the appropriate certification.

G. A commercial or private applicator or registered technician may request a duplicate of the certification card if the applicator's or technician's card has been lost, stolen, mutilated or destroyed. The department shall issue a duplicate card to the applicator or technician upon payment of the costs of duplication.

2VAC5-685-30. Specific certification requirements for commercial applicators.

A. In addition to the general requirements listed in 2VAC5-685-20, applicants for commercial applicator certification shall meet the following requirements:

1. Certification as a registered technician, as well as employment as a registered technician for at least a year; or

2. One year of education, training, or experience in a pesticide related field which provides the equivalent practical knowledge of proper pesticide use required of a registered technician.

B. The application process for commercial applicators is as follows:

1. The application must be in writing to the commissioner; and

2. The application must contain:

a. Name;

b. Principal business address in the Commonwealth and elsewhere;

c. Qualifications and proposed operations; and

d. Classification(s) Classification or classifications desired.

Individuals seeking certification as commercial applicators must pay a fee as determined by 2VAC5-675, Rules and Regulations Governing the Pesticide Fees Charged by the Department of Agriculture and Consumer Services Under the Virginia Pesticide Control Act.

C. Applicants shall, within 90 days after submitting the application and paying the fee, report to an authorized testing location and take the required examinations.

D. Applicants who do not complete the certification process within two years of the date of passing the examinations must be reexamined.

E. Aerial pesticide application applicants must meet the requirements of the Federal Aviation Agency, the Virginia Department of Aviation of the Commonwealth, and any other applicable federal or state laws or regulations to operate aerial equipment.

2VAC5-685-40. Specific certification requirements for private applicators.

A. Each applicant for a private applicator's certificate shall apply to the commissioner and then report to an authorized testing location within 90 days and take an examination for each certification category, specified in 2VAC5-685-80, applicable to his operation. The application shall contain the applicant's name, address and classification desired for certification.

B. Persons who cannot read or understand labels shall not be certified as private applicators unless they demonstrate competence to apply restricted use pesticides on their own properties. After consulting the appropriate Virginia Cooperative Extension agent, a department pesticide investigator may recommend that the board grant a waiver of the literacy requirement. Persons seeking a waiver of the literacy requirements shall petition the board. Persons certified under this waiver shall obtain certification in the categories of limited certificate or single product certification as described in 2VAC5-685-80.

2VAC5-685-50. Certification procedures for registered technicians.

A. In addition to the general requirements listed in 2VAC5-685-20, individuals seeking certification as registered technicians must:

1. Receive on-the-job training in the proper application of pesticides under the direct on-site supervision of a certified commercial applicator for at least 20 hours during the six-month period prior to applying for certification;

2. Complete at least 20 hours of board-approved training;

3. Submit an application form with the fee established by regulations of the Board of Agriculture and Consumer Services; and

4. Take the examination within 90 days after an individual is hired or transferred into a position where duties and functions involve the commercial use of pesticides. Individuals not passing the examination on the first attempt must reapply, following the procedures outlined in 2VAC5-685-20 D 3, and retake the examination within 30 days after the first attempt. Individuals failing to take and pass the exam within 30 days of the initial exam [ within 90 days of the initial examination ] may not apply pesticides commercially, even under direct on-site supervision, until they pass the examination.

Individuals who have previously submitted an application form and either did not take the examination within 90 days [ after being hired or transferred into a position where duties and functions involve the commercial use of pesticides ] or did not pass [ the a subsequent ] examination [ within 90 days of the initial examination ] may not apply pesticides commercially, even under direct on-site supervision, until they reapply, following the procedures outlined in 2VAC5-685-20 and pass the examination.

Applicants who do not complete the certification process within two years of the date of passing the examination must be reexamined.

B. Before registered technicians begin working in any application category or subcategory that is different from the category in which they received their original training, they shall receive additional training from a commercial applicator in the following aspects of pesticide application as it relates to the proposed category or subcategory of work:

1. Pesticides to be used, including reading and understanding the label;

2. Application equipment and techniques;

3. Pests to be controlled;

4. Personal protective equipment and clothing; and

5. Environmental concerns, including storage and disposal of pesticides applied.

The commercial applicator providing training to a registered technician shall be certified in the category or subcategory for which he is providing the training and shall provide proof to the department of such training on forms provided by the department. Such forms must be received by the department within 10 calendar days of the completion of such training.

2VAC5-685-60. Persons exempt from certification.

The following persons are exempt from certification:

1. Persons conducting laboratory research involving restricted use pesticides;

2. Doctors of medicine or doctors of veterinary medicine applying pesticides as drugs or medication during the course of their practice, or to control pests in corpses;

3. Persons who use or supervise the use of nonrestricted use pesticides as part of their duties only on properties owned or leased by their employers, except those persons identified in 2VAC5-685-20 B;

4. Persons who provide janitorial or cleaning services using nonrestricted use sanitizers, disinfectants, and germicides;

5. Painters who apply restricted use marine antifoulant paint under the direct supervision of a certified commercial applicator. One certified commercial applicator shall be present for every eight painters;

6. Forestry applicators standing on the ground who apply general use herbicides for forest vegetation control and tree thinning under the direct on-site supervision of a certified commercial applicator. One certified commercial applicator shall be present for every eight forestry applicators and be within voice contact of and no more than 200 feet from such applicators;

7. Individuals engaged in the training required for certification while under the direct on-site supervision of a certified commercial applicator;

8. Employees of local, state, or federal governmental agencies who from time to time make incidental use of ready-to-use pesticides that are properly registered in Virginia. For purposes of this section, "incidental use" means the use of a pesticide on an occasional, isolated, site-specific basis in order to avoid immediate personal harm from stinging or biting insects. This exemption does not include regular, routine, or maintenance applications of pesticides or any use of restricted-use pesticides;

9. Individuals who apply pesticides for the survey for gypsy moth under the authority of the department; and

10. Individuals who apply pesticides for the survey for cotton boll weevil under the authority of the department.

[ Part III
Categories of Pesticide Applicator Certification

2VAC5-685-65. Category for registered technician certification.

An individual who successfully completes the requirements prescribed in 2VAC5-685-50 for registered technician certification will receive certification in Category 60, the category designation assigned to all registered technicians regardless of the category or subcategory in which he is trained and applies pesticides. ]

2VAC5-685-80. Categories for private applicator certification.

Private applicators who apply or supervise the application of restricted use pesticides shall be certified in one or more of the following categories:

1. Food, fiber, forestry products, and commodity production. Includes private applicators who use or supervise the use of restricted use pesticides: in the production of agricultural crops, including fumigation and chemigation; forestry products; on animals; in places where animals are confined; for the control of vertebrate pests of agricultural crops and livestock animals; in the production of agricultural commodities; and for the fumigation of agricultural products.

2. Ornamental production. Includes private applicators who use or supervise the use of restricted use pesticides to control pests: in tree nurseries; shrub nurseries; ornamental plant nurseries; flower nurseries; in greenhouses used for breeding and growing ornamental plants; in irrigation systems; and in ornamental production using fumigants.

3. Limited certificate--single product/single use. Includes private applicator applicants who are seeking authorization to apply a single restricted use pesticide for a single identified purpose. This category is intended for limited use under special or emergency circumstances as identified by the board on a case-by-case basis.

4. Single product certification. Includes private applicator applicants who are seeking authorization to apply a single identified restricted use product, or related restricted use products with the same active ingredient and with a similar formulation and use. This category is intended for limited use under special or emergency circumstances as identified by the board.

1. Category 86: Single product certification. Includes private applicator applicants who are seeking authorization to apply a single identified restricted use product or related restricted use products with the same active ingredient and with a similar formulation and use. This category is intended for limited use under special or emergency circumstances as identified by the board.

2. Category 87: Limited certificate - single product or single use. Includes private applicator applicants who are seeking authorization to apply a single restricted use pesticide for a single identified purpose. This category is intended for limited use under special or emergency circumstances as identified by the board on a case-by-case basis.

3. Category 90: Agricultural commodity production - food, fiber, and forestry products, and commodity production. Includes private applicators who use or supervise the use of restricted use pesticides (i) in the production of agricultural crops, including fumigation and chemigation; (ii) on forestry products; (iii) on animals; (iv) in places where animals are confined; (v) for the control of vertebrate pests of agricultural crops and livestock animals; (vi) in the production of agricultural commodities; and (vii) for the fumigation of agricultural products.

4. Category 91: Ornamental production. Includes private applicators who use or supervise the use of restricted use pesticides to control pests in (i) tree nurseries, (ii) shrub nurseries, (iii) ornamental plant nurseries, (iv) flower nurseries, (v) greenhouses used for breeding and growing ornamental plants, (vi) irrigation systems, and (vii) ornamental production using fumigants.

Part IV
Knowledge Required for Certification of Pesticide Applicators

2VAC5-685-90. Determination of general knowledge and qualifications for private and commercial applicators and registered technicians.

A. Applicants shall be tested on their knowledge and qualifications concerning the use and handling of pesticides. The examination will test the applicants' general knowledge required for all categories, and the additional knowledge specifically required for each category or subcategory in which an applicator desires to be certified.

B. All applicants for certification as private or commercial applicators or registered technicians shall demonstrate practical knowledge of the principles and practices of pest control and the safe use of pesticides, as contained in a basic pesticide applicator certification training core manual. Testing will be based on problems and situations in the following areas:

1. Federal and Commonwealth of Virginia pesticide laws and regulations;

2. Understanding and interpreting pesticide labels;

3. Handling of accidents and incidents;

4. Proper methods of storing, mixing/loading mixing, loading, transporting, handling, applying, and disposing of pesticides;

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

6. Potential adverse effects caused by the application of pesticides under various climatic or environmental conditions, such as drift from the target area, pesticide run-off, ground water groundwater and drinking water contamination, and hazard to endangered species; and

7. Recognizing common pests and general pest biology.

Part V
Renewal of Certification and Certificates

2VAC5-685-130. Renewal of certification.

A. Any certified pesticide private or commercial applicator or registered technician who desires to renew his certification shall do so biennially for the category or subcategory for which he is certified. All applicators A certified private or commercial applicator or registered technician must first attend board-approved recertification course(s) courses and submit proof of attendance at such courses, or be reexamined in basic pesticide safety and the categories desired for recertification. In addition to the above requirement in this subsection, commercial applicators and registered technicians shall also pay the biennial certificate fee and submit an application for renewal before the commissioner will renew their certification.

B. Certified applicators A certified commercial applicator or registered technician must complete a board-approved recertification course that, at a minimum, addresses the following topics:

1. Legal aspects including:

a. A reminder to follow label directions including those on use, storage, disposal, and transportation;

b. A review of possible consequences of violating the law;

c. A reminder that restricted use pesticides purchased under an applicator's certificate number must be for use by certified commercial applicators only;

d. A review of a certified commercial applicator's responsibilities in supervising the use of restricted use pesticides by noncertified applicators; and

e. A review of recordkeeping responsibilities of certified commercial applicators for restricted use pesticide applications; and

2. Category-related training including:

a. A review of general safety for the applicator, coworkers, and the public;

b. A review of the environmental aspects of pesticide use, including impact on nontarget organisms, wildlife, domestic animals, groundwater, etc.;

c. A review of application techniques, including equipment, calibration, and maintenance;

d. A review of hazards, both personal safety and environmental, unique to that specific category;

e. A review of pertinent information regarding new chemistry or new formulations available that would be of use to applicators certified in the category;

f. A review of integrated pest management programs applicable to the category; and

g. A review of pests specific to category, including in-depth training on identification and control of selected specific pests. This section may be tailored to local needs.

C. A certified private applicator must complete a board-approved recertification course that, at a minimum, addresses the following topics:

1. General safety;

2. Legal update; and

3. Pest management and application technology including:

a. A review of category-specific pest management and pesticide use patterns; and

b. A review of category-specific pesticide application and handling technology.

D. A certified private or commercial applicator or registered technician may accumulate up to four years of credit by attending board-approved recertification courses.

C. E. Upon expiration of certification, the applicator's certificate of a private applicator, commercial applicator, or registered technician shall become invalid. Any pesticide private applicator, commercial applicator, or registered technician who desires to renew his certification, but fails to do so within 60 days after its expiration, shall be reexamined.

Part VII
Reporting of Pesticide Accidents, Incidents, or Loss

2VAC5-685-170. Reporting of pesticide accidents and incidents.

A. Commercial Certified commercial or private applicators or registered technicians shall report any pesticide accident or incident in which they are involved that constitutes a threat to any person, to public health or safety, or to the environment, as a result of the use or presence of any pesticide. The accident or incident shall be reported whether or not a restricted use pesticide is involved.

B. When the accident or incident involves a discharge or spillage of a pesticide, the applicator certified commercial or private applicator or registered technician shall contact the department for guidance to determine whether the discharged or spilled amount is a reportable quantity.

C. The applicator certified commercial or private applicator or registered technician shall make the initial notification to the department's Office of Pesticide Services by telephone within a reasonable time, not to exceed 48 hours after the accident or incident occurrence, should circumstances prevent immediate notification. The applicator certified commercial or private applicator or registered technician shall prepare and submit a written report of the accident or incident to the Office of Pesticide Services within 10 working days after the initial notification. The report shall include the following:

1. Name of individuals involved in accident or incident;

2. Name of pesticide involved;

3. Quantity of pesticide spilled, and containment procedures;

4. Time, date, and location of accident or incident;

5. Mitigating actions taken; and

6. Name, (or description if unnamed), and location of bodies of water nearby where contamination of such bodies of water could reasonably be expected to occur due to natural or manmade actions.

Part VIII
Reciprocal Agreement

2VAC5-685-180. Issuance of a certificate on a reciprocal basis.

A. A person who is currently certified by another state or by a federal agency may make written application to the commissioner, or his duly authorized agent, for issuance of a certificate on a reciprocal basis without examination, in accordance with § 3.2-3934 of the Code of Virginia. Along with his written application, an applicant shall either (i) present an original certificate issued by the state of origin or issued by a federal agency or (ii) request that the state of origin or federal agency send an attested copy of the applicant's certification directly to the commissioner or his duly authorized agent.

The applicant shall either include a document granting power of attorney to a resident of Virginia to receive process or provide proof that the applicant has appointed a registered agent under the laws of the Commonwealth. Reciprocal certification shall not be granted based on reciprocal certification issued in another state.

B. Any certificate issued on a reciprocal basis may be suspended in the same manner and on the same grounds as a Virginia certificate pursuant to the provisions of Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia. A certificate issued on a reciprocal basis may also be suspended if the nonresident's original certificate or federal certification is suspended or revoked.

[ FORMS (2VAC5-685)

Commercial Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev. 07/12)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 5/13)

Commercial Pesticide Applicator Certification Application - A, Form VDACS-07211 (rev. 9/2016)

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination - B, Form VDACS-07218 (rev. 9/2016)

Commercial Pesticide Applicator Certification Exam bubble answer sheet, 2003

Private Pesticide Applicator Certification Exam bubble answer sheet, 2003

Private Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination at Department of Motor Vehicles Customer Service Center (eff. 1/09)

Power of Attorney (rev. 5/09)

Proof of Additional Category Specific Training for Registered Technicians (eff. 3/12)

Application for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (eff. 5/09)

Pesticide Registered Technician Application Form VDACS-07212 (eff. 1/09)

Power of Attorney (rev. 9/2016)

Proof of Additional Category Specific Training for Registered Technicians (rev. 8/2016)

Application for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (rev. 9/2016)

Pesticide Registered Technician Application Form - RT-A, Form VDACS-07212-A (rev. 9/2016)

Pesticide Registered Technician Request for Authorization to Take Pesticide Applicator Examination – RT-B, Form VDACS-07212-B (eff. 9/2016) ]

Title of Regulation: 6VAC20-230. Regulations Relating to Special Conservator of the Peace (amending 6VAC20-230-30, 6VAC20-230-90).

Statutory Authority: § 9.1-150.2 of the Code of Virginia.

Effective Date: September 22, 2016.

Agency Contact: Barbara Peterson-Wilson, Director of Policy and Legislative Affairs, Department of Criminal Justice Services, 1100 Bank Street, Richmond, VA 23219, telephone (804) 225-4503, FAX (804) 786-6344, or email barbara.peterson-wilson@dcjs.virginia.gov.

Summary:

The amendments (i) change the type of insurance under which special conservators of the peace must be covered; (ii) increase the amount of insurance required from $10,000 to $500,000; and (iii) pursuant to Chapters 766 and 772 of the 2015 Acts of Assembly, eliminate language allowing a special conservator of the peace to carry a surety bond instead of insurance.

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.

6VAC20-230-30. Initial registration application.

A. Individuals are required to be registered pursuant to § 19.2-13 of the Code of Virginia in the category of special conservator of the peace. Prior to the issuance of a registration, the applicant shall meet or exceed the requirements of registration and application submittal to the department as set forth in this section. Individuals who carry or have access to a firearm while on duty must have a valid registration with firearms verification. The court may limit or prohibit the carrying of weapons by any special conservator of the peace as defined in § 19.2-13 F G of the Code of Virginia.

B. Each person applying for registration shall meet the minimum requirements for eligibility as follows:

1. Be a minimum of 18 years of age;

2. Successfully complete all initial training requirements for special conservator of the peace, including firearms verification if applicable, requested pursuant to the entry-level training standards in 6VAC20-230-160; and

3. Be a United States citizen or legal resident alien of the United States.

C. Each person applying for registration shall file with the department:

1. A properly completed application provided by the department;

2. His mailing address on the application;

3. Fingerprint cards pursuant to 6VAC20-230-40;

4. The applicable, nonrefundable application fee;

5. A drug and alcohol test pursuant to 6VAC230-50 6VAC20-230-50; and

6. Pursuant to § 19.2-13 C D of the Code of Virginia, documentation verifying that the applicant has secured a surety bond or cash bond in the amount not to be less than $10,000 executed by a surety company authorized to do business in Virginia, or a certificate of insurance reflecting the department as a certificate holder, showing a policy of comprehensive general professional law-enforcement liability insurance with a minimum coverage of $10,000 $500,000 issued by an insurance company authorized to do business in Virginia.

D. Upon completion of the initial registration application requirements, the department may issue a temporary registration letter for not more than 120 days at a time while awaiting the results of the state and national fingerprint search provided the applicant has met the necessary conditions and requirements. This temporary registration letter shall be taken to the circuit court where seeking appointment for special conservator of the peace.

E. Each registration shall be issued to the individual named on the application and shall be valid only for use by that individual. No registration shall be assigned or otherwise transferred to another individual.

F. Each registered individual shall comply with all applicable administrative requirements and standards of conduct and shall not engage in any acts prohibited by applicable sections of the Code of Virginia and this chapter.

G. Once the individual has met the requirements and received a temporary registration letter, he shall petition the circuit court for appointment in the jurisdiction where the individual will be employed.

H. Meeting the requirements of registration allows an individual to be eligible for appointment. Registration does not guarantee appointment.

I. Upon completion of an appointment by a circuit court, the individual shall file with the department a copy of the court order granting appointment as a special conservator of the peace. A final registration letter will be issued by the department. This registration letter shall be submitted to a specified entity for a state-issued photo identification card.

6VAC20-230-90. Reinstatement.

A. Individuals who do not renew their registration on or before the expiration date may not work as a special conservator of the peace until reinstatement requirements have been met. Pursuant to the Code of Virginia, all such persons must currently be registered with the department as a special conservator of the peace.

B. A renewal application must be received by the department within 60 days following the expiration date of the registration in order to be reinstated by the department providing all renewal requirements have been met. The department shall not reinstate renewal applications received after the 60-day reinstatement period has expired. It is unlawful to operate without a valid registration during the reinstatement period. The department shall not reinstate a registration that has become null and void due to not maintaining required insurance or surety bond coverage. The department will notify the court when an individual has not met the registration renewal requirements with the department. Prior to reinstatement, the following shall be submitted to the department:

1. The appropriate renewal application and completion of renewal requirements including required training pursuant to this chapter; and

2. The applicable, nonrefundable reinstatement fee.

C. A registration shall be renewed or reinstated only when all renewal application requirements are received by the department. After the 60-day reinstatement period, an applicant shall meet all initial application requirements, including applicable training requirements.

D. Following submittal of all reinstatement requirements, the department will process and may approve any application for reinstatement pursuant to the renewal process for the application.

Titles of Regulations: 8VAC20-440. Regulations Governing the Employment of Professional Personnel (repealing 8VAC20-440-10 through 8VAC20-440-160).

8VAC20-441. Regulations Governing the Employment of Professional Personnel (adding 8VAC20-441-10 through 8VAC20-441-140).

Statutory Authority: §§ 22.1-16 and 22.1-302 of the Code of Virginia.

Public Hearing Information:

September 22, 2016 - 11 a.m. - James Monroe Building, 101 North 14th Street, 22nd Floor Conference Room, Richmond, Virginia 23219. The public hearing will begin immediately following adjournment of the Board of Education business meeting.

Public Comment Deadline: October 21, 2016.

Agency Contact: Patty S. Pitts, Assistant Superintendent, Division of Teacher Education and Licensure, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.

Basis: Section IV of Article VIII of the Constitution of Virginia grants the Board of Education authority for the general supervision of the public school system. Section 22.1-16 of the Code of Virginia authorizes the board to promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of Title 23 of the Code of Virginia.

Purpose: The regulations provide the requirements for contracts, probationary periods of teachers, assistant principals, and principals and evaluation criteria that protect school divisions and educators. The goals of the proposal are to provide clarity to the regulations and align the regulations with the Code of Virginia. The regulations do not affect public health, safety, or welfare.

Substance: The revisions include defining assistant principals; clarifying the definitions of teachers and supervisors; changing notification dates from April 15 to June 15; aligning evaluations with the Board of Education Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; defining the probationary terms for teachers; stipulating the evaluation period of teachers and principals; defining the standard 10-month contract; and clarifying that a temporarily employed teacher is not required to be licensed by the Board of Education.

Issues: The revisions to the Regulations Governing the Employment of Professional Personnel conform with statute, therefore the advantage is that the regulations provide clarity to the policies and procedures regarding contracts. The regulations do not pose any major disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes several amendments to the regulation in order to reflect changes in the Code of Virginia. Additionally, the Board proposes to repeal language on a uniform hiring process.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes.  There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. Changes to the Code of Virginia from Chapters 106 and 687 of the 2012 Acts of Assembly, and Chapters 588 and 650 of the 2013 Acts of Assembly, require amendments to this regulation in order to accurately reflect the law. These proposed changes to the regulation thus do not change requirements in effect. The proposed revisions include: 1) defining assistant principals, 2) clarifying the definitions of teachers and supervisors, 3) changing notification dates from April 15 to June 15, 4) aligning evaluations with the Board of Education Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents, 5) defining the probationary terms for teachers (at local option, a probationary term can be from three years to up to five years), 6) stipulating the evaluation period of teachers and principals, 7) defining the standard 10-month contract, and 8) clarifying that a temporarily employed teacher¹ is not required to be licensed by the Board of Education. Amending the regulation to reflect the Code of Virginia changes will be beneficial in that readers of the regulation will be better informed concerning the actual law in effect.

The current regulations include four sections on the "Uniform Hiring of Teachers." The first section states the following:

The goal for regulations for uniform hiring of teachers is to establish a calendar for hiring that is compatible with the dates budgets are completed by local governing bodies. The calendar dates, which are embodied in the three-phase employment process, establish minimum time frames to accommodate the local hiring process, offer local flexibility in including contract terms to cover unique needs and practices of the locality, and offer professional mobility for teachers.

The three other sections concern Phase One, Phase Two, and Phase Three, respectively, of the three phases of the uniform hiring process.

The Board proposes to repeal the four sections on the "Uniform Hiring of Teachers." The repeal of these sections would give local school divisions additional flexibility, particularly in the timing of hiring. The local school divisions could choose to coordinate with their respective local governments on timing with local budgets. The additional flexibility on the hiring calendar may result in less certainty about the timing of the hiring process for teachers; on the other hand the additional flexibility may be helpful for some teachers for whom the current state mandated schedule is not ideal.

Businesses and Entities Affected. The proposed amendments affect the 132 public school divisions in the Commonwealth, teachers, principals, and assistant principals.

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

Projected Impact on Employment. The proposed amendments are unlikely to affect the number of jobs in the Commonwealth. The proposal to repeal the sections on the uniform hiring process may affect how and when local school divisions choose to hire teachers.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments will not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments will not affect real estate development costs.

______________________________________

¹From Code of Virginia § 22.1-302: "A temporarily employed teacher, as used in this section, means (i) one who is employed to substitute for a contracted teacher for a temporary period of time during the contracted teacher's absence or (ii) one who is employed to fill a teacher vacancy for a period of time, but for no longer than 90 teaching days in such vacancy, unless otherwise approved by the Superintendent of Public Instruction on a case-by-case basis, during one school year."

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the requirements of the Administrative Process Act.

Summary:

The proposed regulatory action replaces the existing regulation numbered 8VAC20-440 with a new regulation numbered 8VAC20-441. Proposed amendments reflect changes in the Code of Virginia based on Chapters 106 and 687 of the 2012 Acts of Assembly and Chapters 588 and 650 of the 2013 Acts of Assembly. The proposed amendments include (i) defining assistant principals; (ii) clarifying the definitions of teachers and supervisors; (iii) changing notification dates from April 15 to June 15; (iv) aligning evaluations with the Board of Education Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; (v) defining the probationary terms for teachers, which, at local option, can be three years and up to five years; (vi) stipulating the evaluation period of teachers and principals; (vii) defining the standard 10-month contract; and (viii) clarifying that a temporarily employed teacher is not required to be licensed by the Board of Education. Additional amendments repeal the provisions on the uniform hiring of teachers.

CHAPTER 441
REGULATIONS GOVERNING THE EMPLOYMENT OF PROFESSIONAL PERSONNEL

8VAC20-441-10. Definitions.

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

"Annual contract" means a contract between a probationary teacher, assistant principal, principal, or supervisor and the local school board that sets forth the terms and conditions of employment for one school year.

"Assistant principal" means a person (i) who is regularly employed full time as an assistant principal and (ii) who holds a valid license issued by the Board of Education necessary to be an assistant principal.

"Board" means the Virginia Board of Education, which has general supervision of the public school system.

"Breach of contract" means, for the purpose of this chapter, a teacher failing to honor a contract for the current or next school year without formal release from that contract from the local school board. "Breach of contract" does not include dismissal for cause.

"Coaching contract" means a separate contract between the employee and the local school board that includes responsibilities for an athletic coaching assignment.

"Continuing contract" means a contract between a teacher, assistant principal, principal, or supervisor who has satisfied the probationary term of service and the local school board.

"Current employer" means the local school board with which the employee is currently under contract.

"Extracurricular activity sponsorship contract" means a separate contract between the employee and the local school board that includes responsibilities, for which a monetary supplement is received, for sponsorship of any student organizations, clubs, or groups, such as service clubs, academic clubs and teams, cheerleading squads, student publication and literary groups, and visual and performing arts organizations except those that are conducted in conjunction with regular classroom, curriculum, or instructional programs.

"Next school year" means the school year immediately following the current contract year.

"Principal" means a person (i) who is regularly employed full time as a principal and (ii) who holds a valid license issued by the Board of Education necessary to be a principal.

"Prospective employer" means the division in which application for employment is made.

"Supervisor" means a person (i) who is regularly employed full time in an instructional supervisory position as specified in this chapter and (ii) who is required by the board to hold a license prescribed in this chapter to be employed in that position. An instructional supervisory position has authority to direct or evaluate teachers, assistant principals, principals, or other instructional personnel.

"Teacher" means a person (i) who is regularly employed full time as a teacher, guidance counselor, or librarian and (ii) who holds a valid teaching license.

8VAC20-441-20. (Reserved.)

8VAC20-441-30. Contractual period defined.

The local school board shall define the length of the contract period for each employee. A standard 10-month contract for a teacher shall include 200 days, including:

1. 180 teaching days or 990 instructional hours (minimum required by law); and

2. Up to 20 days for activities such as teaching, participating in professional development, planning, evaluating, completing records and reports, participating on committees or in conferences, or such other activities as may be assigned or approved by the local school board.

8VAC20-441-40. Annual and continuing contract to be in writing.

Annual and continuing contracts with teachers, assistant principals, principals, and supervisors must be in writing. The local school board may utilize prototypes of contract forms provided by the board or may choose to develop its own contracts, but in so doing must ensure that the essential elements set forth in 8VAC20-441-140 are included.

8VAC20-441-50. Length of the probationary term for teacher.

A probationary term of full-time employment under an annual contract for at least three years and, at the option of the local school board, up to five consecutive years in the same school division is required before a teacher is issued a continuing contract. Once continuing contract status has been attained in a school division in the Commonwealth, another probationary period as a teacher need not be served in any other school division unless a probationary period not exceeding two years is made a part of the contract of employment.

8VAC20-441-60. Calculating term for first year of teaching.

For the purpose of calculating the years of service required to attain continuing contract status, at least 160 contractual teaching days during the school year shall be deemed the equivalent of one year in the first year of service by the teacher.

8VAC20-441-70. Probationary period for principal or supervisor.

A person employed as a principal, assistant principal, or supervisor, including a person who has previously achieved continuing contract status as a teacher, shall serve a probationary term of three consecutive years in such position in the same school division before acquiring continuing contract status as a principal, assistant principal, or supervisor.

8VAC20-441-80. Probationary period when employee separates from service.

If a teacher, principal, assistant principal, or supervisor separates from service during his probationary period and does not return to service in the same school division by the beginning of the year following the year of separation, such person shall be required to begin a new probationary period.

8VAC20-441-90. Effect of service outside the Virginia system.

Teaching service outside of the Virginia public school system shall not be counted as meeting in whole or in part the required probationary term.

8VAC20-441-100. Eligibility for continuing contract.

A. Only persons regularly employed full time by a school board who hold a valid license as teachers, assistant principals, principals, or supervisors shall be eligible for continuing contract status.

B. Any teacher hired on or after July 1, 2001, shall be required, as a condition of achieving continuing contract status, to have successfully completed training in instructional strategies and techniques for intervention for or remediation of students who fail or are at risk of failing the Standards of Learning assessments. Local school divisions shall be required to provide such training at no cost to teachers employed in their division. In the event a local school division fails to offer such training in a timely manner, no teacher will be denied continuing contract status for failure to obtain such training.

8VAC20-441-110. Continuing contract status when employee separates from service.

When a teacher has attained continuing contract status in a school division in the Commonwealth, and separates from and returns to teaching service in a school division in Virginia by the beginning of the third year, such teacher shall be required to serve a probationary period not to exceed two years if such probationary period is made part of the contract for employment. If a teacher who has attained continuing contract status separates from service and does not return to teaching in Virginia public schools by the beginning of the third year, such teacher shall be required to begin a new probationary period.

8VAC20-441-120. Contract to be separate and apart from annual or continuing contract.

The coaching contract or extracurricular activity sponsorship contract with a teacher shall be separate and apart from the teacher's annual or continuing contract, and termination of the coaching or extracurricular activity sponsorship contract shall not constitute cause for the termination of the annual or continuing contract.

For the purposes of this chapter, "extracurricular activity sponsorship" means an assignment for which a monetary supplement is received, requiring responsibility for any student organizations, clubs, or groups, such as service clubs, academic clubs and teams, cheerleading squads, student publication and literary groups, and visual and performing arts organizations except those that are conducted in conjunction with regular classroom, curriculum, or instructional programs.

8VAC20-441-130. Termination notice required.

The coaching contract or extracurricular activity sponsorship contract shall require the party intending to terminate the contract to give reasonable notice to the other party prior to the effective date of the termination.

8VAC20-441-140. Listing of essential contract elements.

A. The list of essential contract elements can be used by certain local school divisions who prefer to develop contracts specific to their circumstances or situations. This list of essential elements is provided as an alternative to the formal prototypes available.

B. Annual contracts. Any annual contract for professional personnel shall, to the maximum extent possible, be written in clear and concise language easily understood by all parties, and include, at a minimum, the following provisions:

1. A statement identifying the names and titles of the parties to the contract.

2. A statement of the licensure requirements for the position or options thereto.

3. A statement of the beginning date of service, the term, and the effective date of the contract.

4. A statement of the duties to be performed under the contract.

5. A statement of expectations of the employee with regard to compliance with local, state, or federal statutes, regulations and constitutional provisions.

6. A statement of the provisions concerning assignment, reassignment, termination, suspension, probation, or resignation of the employee, and mutual termination of the contract.

7. A statement of the penalties for the employee's failure to comply with the terms of the contract.

8. A statement identifying the school term.

9. A statement of the conditions under which the school term and/or contract may be extended.

10. A statement of the amount of compensation due the Employee and the method of payment.

11. A statement of special covenants mutually agreed upon by the employer and employee which form a basis for the contract.

C. Continuing contracts. Any continuing contract for professional personnel shall, to the maximum extent possible, be written in clear and concise language easily understood by all parties, and include, at a minimum the following provisions:

1. All of the provisions required for the annual contract.

2. A statement explaining the continuing nature of the contract.

D. Coaching and extracurricular. Any athletic coaching contract with school personnel shall, to the maximum extent possible, be written in clear and concise language easily understood by all parties, and include the following provisions:

1. A statement identifying the names and titles of the parties to the contract.

2. A statement of the duties to be performed under the contract.

3. A statement of the amount of compensation due the employee and the method of payment.

4. A statement of expectations of the employee with regard to compliance with local, state, or federal statutes, regulations and constitutional provisions.

5. A statement setting forth conditions for termination of the contract.

6. A statement identifying the limitations on the use of the experience toward length of service, substitution for teaching experience and rights in favor of the employee.

7. A statement of the beginning date of service, the term, and the effective date of the contract.

8. A statement of special covenants mutually agreed upon by the employer and employee that form a basis for the contract.

FORMS (8VAC20-441)

Annual Form - Contract with Professional Personnel

Continuing Form Contract with Professional Personnel

Athletic Coaching Contract with School Personnel

Extracurricular Activity Sponsorship Contract with School Personnel

Titles of Regulations: 8VAC20-440. Regulations Governing the Employment of Professional Personnel (repealing 8VAC20-440-10 through 8VAC20-440-160).

8VAC20-441. Regulations Governing the Employment of Professional Personnel (adding 8VAC20-441-10 through 8VAC20-441-140).

Statutory Authority: §§ 22.1-16 and 22.1-302 of the Code of Virginia.

Public Hearing Information:

September 22, 2016 - 11 a.m. - James Monroe Building, 101 North 14th Street, 22nd Floor Conference Room, Richmond, Virginia 23219. The public hearing will begin immediately following adjournment of the Board of Education business meeting.

Public Comment Deadline: October 21, 2016.

Agency Contact: Patty S. Pitts, Assistant Superintendent, Division of Teacher Education and Licensure, Department of Education, P.O. Box 2120, Richmond, VA 23218, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.

Basis: Section IV of Article VIII of the Constitution of Virginia grants the Board of Education authority for the general supervision of the public school system. Section 22.1-16 of the Code of Virginia authorizes the board to promulgate such regulations as may be necessary to carry out its powers and duties and the provisions of Title 23 of the Code of Virginia.

Purpose: The regulations provide the requirements for contracts, probationary periods of teachers, assistant principals, and principals and evaluation criteria that protect school divisions and educators. The goals of the proposal are to provide clarity to the regulations and align the regulations with the Code of Virginia. The regulations do not affect public health, safety, or welfare.

Substance: The revisions include defining assistant principals; clarifying the definitions of teachers and supervisors; changing notification dates from April 15 to June 15; aligning evaluations with the Board of Education Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; defining the probationary terms for teachers; stipulating the evaluation period of teachers and principals; defining the standard 10-month contract; and clarifying that a temporarily employed teacher is not required to be licensed by the Board of Education.

Issues: The revisions to the Regulations Governing the Employment of Professional Personnel conform with statute, therefore the advantage is that the regulations provide clarity to the policies and procedures regarding contracts. The regulations do not pose any major disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Education (Board) proposes several amendments to the regulation in order to reflect changes in the Code of Virginia. Additionally, the Board proposes to repeal language on a uniform hiring process.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes.  There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. Changes to the Code of Virginia from Chapters 106 and 687 of the 2012 Acts of Assembly, and Chapters 588 and 650 of the 2013 Acts of Assembly, require amendments to this regulation in order to accurately reflect the law. These proposed changes to the regulation thus do not change requirements in effect. The proposed revisions include: 1) defining assistant principals, 2) clarifying the definitions of teachers and supervisors, 3) changing notification dates from April 15 to June 15, 4) aligning evaluations with the Board of Education Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents, 5) defining the probationary terms for teachers (at local option, a probationary term can be from three years to up to five years), 6) stipulating the evaluation period of teachers and principals, 7) defining the standard 10-month contract, and 8) clarifying that a temporarily employed teacher¹ is not required to be licensed by the Board of Education. Amending the regulation to reflect the Code of Virginia changes will be beneficial in that readers of the regulation will be better informed concerning the actual law in effect.

The current regulations include four sections on the "Uniform Hiring of Teachers." The first section states the following:

The goal for regulations for uniform hiring of teachers is to establish a calendar for hiring that is compatible with the dates budgets are completed by local governing bodies. The calendar dates, which are embodied in the three-phase employment process, establish minimum time frames to accommodate the local hiring process, offer local flexibility in including contract terms to cover unique needs and practices of the locality, and offer professional mobility for teachers.

The three other sections concern Phase One, Phase Two, and Phase Three, respectively, of the three phases of the uniform hiring process.

The Board proposes to repeal the four sections on the "Uniform Hiring of Teachers." The repeal of these sections would give local school divisions additional flexibility, particularly in the timing of hiring. The local school divisions could choose to coordinate with their respective local governments on timing with local budgets. The additional flexibility on the hiring calendar may result in less certainty about the timing of the hiring process for teachers; on the other hand the additional flexibility may be helpful for some teachers for whom the current state mandated schedule is not ideal.

Businesses and Entities Affected. The proposed amendments affect the 132 public school divisions in the Commonwealth, teachers, principals, and assistant principals.

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

Projected Impact on Employment. The proposed amendments are unlikely to affect the number of jobs in the Commonwealth. The proposal to repeal the sections on the uniform hiring process may affect how and when local school divisions choose to hire teachers.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments will not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments will not affect real estate development costs.

______________________________________

¹From Code of Virginia § 22.1-302: "A temporarily employed teacher, as used in this section, means (i) one who is employed to substitute for a contracted teacher for a temporary period of time during the contracted teacher's absence or (ii) one who is employed to fill a teacher vacancy for a period of time, but for no longer than 90 teaching days in such vacancy, unless otherwise approved by the Superintendent of Public Instruction on a case-by-case basis, during one school year."

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget. The agency will continue to examine the economic and administrative impact of the regulations as they progress through the requirements of the Administrative Process Act.

Summary:

The proposed regulatory action replaces the existing regulation numbered 8VAC20-440 with a new regulation numbered 8VAC20-441. Proposed amendments reflect changes in the Code of Virginia based on Chapters 106 and 687 of the 2012 Acts of Assembly and Chapters 588 and 650 of the 2013 Acts of Assembly. The proposed amendments include (i) defining assistant principals; (ii) clarifying the definitions of teachers and supervisors; (iii) changing notification dates from April 15 to June 15; (iv) aligning evaluations with the Board of Education Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers, Principals, and Superintendents; (v) defining the probationary terms for teachers, which, at local option, can be three years and up to five years; (vi) stipulating the evaluation period of teachers and principals; (vii) defining the standard 10-month contract; and (viii) clarifying that a temporarily employed teacher is not required to be licensed by the Board of Education. Additional amendments repeal the provisions on the uniform hiring of teachers.

CHAPTER 441
REGULATIONS GOVERNING THE EMPLOYMENT OF PROFESSIONAL PERSONNEL

8VAC20-441-10. Definitions.

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

"Annual contract" means a contract between a probationary teacher, assistant principal, principal, or supervisor and the local school board that sets forth the terms and conditions of employment for one school year.

"Assistant principal" means a person (i) who is regularly employed full time as an assistant principal and (ii) who holds a valid license issued by the Board of Education necessary to be an assistant principal.

"Board" means the Virginia Board of Education, which has general supervision of the public school system.

"Breach of contract" means, for the purpose of this chapter, a teacher failing to honor a contract for the current or next school year without formal release from that contract from the local school board. "Breach of contract" does not include dismissal for cause.

"Coaching contract" means a separate contract between the employee and the local school board that includes responsibilities for an athletic coaching assignment.

"Continuing contract" means a contract between a teacher, assistant principal, principal, or supervisor who has satisfied the probationary term of service and the local school board.

"Current employer" means the local school board with which the employee is currently under contract.

"Extracurricular activity sponsorship contract" means a separate contract between the employee and the local school board that includes responsibilities, for which a monetary supplement is received, for sponsorship of any student organizations, clubs, or groups, such as service clubs, academic clubs and teams, cheerleading squads, student publication and literary groups, and visual and performing arts organizations except those that are conducted in conjunction with regular classroom, curriculum, or instructional programs.

"Next school year" means the school year immediately following the current contract year.

"Principal" means a person (i) who is regularly employed full time as a principal and (ii) who holds a valid license issued by the Board of Education necessary to be a principal.

"Prospective employer" means the division in which application for employment is made.

"Supervisor" means a person (i) who is regularly employed full time in an instructional supervisory position as specified in this chapter and (ii) who is required by the board to hold a license prescribed in this chapter to be employed in that position. An instructional supervisory position has authority to direct or evaluate teachers, assistant principals, principals, or other instructional personnel.

"Teacher" means a person (i) who is regularly employed full time as a teacher, guidance counselor, or librarian and (ii) who holds a valid teaching license.

8VAC20-441-20. (Reserved.)

8VAC20-441-30. Contractual period defined.

The local school board shall define the length of the contract period for each employee. A standard 10-month contract for a teacher shall include 200 days, including:

1. 180 teaching days or 990 instructional hours (minimum required by law); and

2. Up to 20 days for activities such as teaching, participating in professional development, planning, evaluating, completing records and reports, participating on committees or in conferences, or such other activities as may be assigned or approved by the local school board.

8VAC20-441-40. Annual and continuing contract to be in writing.

Annual and continuing contracts with teachers, assistant principals, principals, and supervisors must be in writing. The local school board may utilize prototypes of contract forms provided by the board or may choose to develop its own contracts, but in so doing must ensure that the essential elements set forth in 8VAC20-441-140 are included.

8VAC20-441-50. Length of the probationary term for teacher.

A probationary term of full-time employment under an annual contract for at least three years and, at the option of the local school board, up to five consecutive years in the same school division is required before a teacher is issued a continuing contract. Once continuing contract status has been attained in a school division in the Commonwealth, another probationary period as a teacher need not be served in any other school division unless a probationary period not exceeding two years is made a part of the contract of employment.

8VAC20-441-60. Calculating term for first year of teaching.

For the purpose of calculating the years of service required to attain continuing contract status, at least 160 contractual teaching days during the school year shall be deemed the equivalent of one year in the first year of service by the teacher.

8VAC20-441-70. Probationary period for principal or supervisor.

A person employed as a principal, assistant principal, or supervisor, including a person who has previously achieved continuing contract status as a teacher, shall serve a probationary term of three consecutive years in such position in the same school division before acquiring continuing contract status as a principal, assistant principal, or supervisor.

8VAC20-441-80. Probationary period when employee separates from service.

If a teacher, principal, assistant principal, or supervisor separates from service during his probationary period and does not return to service in the same school division by the beginning of the year following the year of separation, such person shall be required to begin a new probationary period.

8VAC20-441-90. Effect of service outside the Virginia system.

Teaching service outside of the Virginia public school system shall not be counted as meeting in whole or in part the required probationary term.

8VAC20-441-100. Eligibility for continuing contract.

A. Only persons regularly employed full time by a school board who hold a valid license as teachers, assistant principals, principals, or supervisors shall be eligible for continuing contract status.

B. Any teacher hired on or after July 1, 2001, shall be required, as a condition of achieving continuing contract status, to have successfully completed training in instructional strategies and techniques for intervention for or remediation of students who fail or are at risk of failing the Standards of Learning assessments. Local school divisions shall be required to provide such training at no cost to teachers employed in their division. In the event a local school division fails to offer such training in a timely manner, no teacher will be denied continuing contract status for failure to obtain such training.

8VAC20-441-110. Continuing contract status when employee separates from service.

When a teacher has attained continuing contract status in a school division in the Commonwealth, and separates from and returns to teaching service in a school division in Virginia by the beginning of the third year, such teacher shall be required to serve a probationary period not to exceed two years if such probationary period is made part of the contract for employment. If a teacher who has attained continuing contract status separates from service and does not return to teaching in Virginia public schools by the beginning of the third year, such teacher shall be required to begin a new probationary period.

8VAC20-441-120. Contract to be separate and apart from annual or continuing contract.

The coaching contract or extracurricular activity sponsorship contract with a teacher shall be separate and apart from the teacher's annual or continuing contract, and termination of the coaching or extracurricular activity sponsorship contract shall not constitute cause for the termination of the annual or continuing contract.

For the purposes of this chapter, "extracurricular activity sponsorship" means an assignment for which a monetary supplement is received, requiring responsibility for any student organizations, clubs, or groups, such as service clubs, academic clubs and teams, cheerleading squads, student publication and literary groups, and visual and performing arts organizations except those that are conducted in conjunction with regular classroom, curriculum, or instructional programs.

8VAC20-441-130. Termination notice required.

The coaching contract or extracurricular activity sponsorship contract shall require the party intending to terminate the contract to give reasonable notice to the other party prior to the effective date of the termination.

8VAC20-441-140. Listing of essential contract elements.

A. The list of essential contract elements can be used by certain local school divisions who prefer to develop contracts specific to their circumstances or situations. This list of essential elements is provided as an alternative to the formal prototypes available.

B. Annual contracts. Any annual contract for professional personnel shall, to the maximum extent possible, be written in clear and concise language easily understood by all parties, and include, at a minimum, the following provisions:

1. A statement identifying the names and titles of the parties to the contract.

2. A statement of the licensure requirements for the position or options thereto.

3. A statement of the beginning date of service, the term, and the effective date of the contract.

4. A statement of the duties to be performed under the contract.

5. A statement of expectations of the employee with regard to compliance with local, state, or federal statutes, regulations and constitutional provisions.

6. A statement of the provisions concerning assignment, reassignment, termination, suspension, probation, or resignation of the employee, and mutual termination of the contract.

7. A statement of the penalties for the employee's failure to comply with the terms of the contract.

8. A statement identifying the school term.

9. A statement of the conditions under which the school term and/or contract may be extended.

10. A statement of the amount of compensation due the Employee and the method of payment.

11. A statement of special covenants mutually agreed upon by the employer and employee which form a basis for the contract.

C. Continuing contracts. Any continuing contract for professional personnel shall, to the maximum extent possible, be written in clear and concise language easily understood by all parties, and include, at a minimum the following provisions:

1. All of the provisions required for the annual contract.

2. A statement explaining the continuing nature of the contract.

D. Coaching and extracurricular. Any athletic coaching contract with school personnel shall, to the maximum extent possible, be written in clear and concise language easily understood by all parties, and include the following provisions:

1. A statement identifying the names and titles of the parties to the contract.

2. A statement of the duties to be performed under the contract.

3. A statement of the amount of compensation due the employee and the method of payment.

4. A statement of expectations of the employee with regard to compliance with local, state, or federal statutes, regulations and constitutional provisions.

5. A statement setting forth conditions for termination of the contract.

6. A statement identifying the limitations on the use of the experience toward length of service, substitution for teaching experience and rights in favor of the employee.

7. A statement of the beginning date of service, the term, and the effective date of the contract.

8. A statement of special covenants mutually agreed upon by the employer and employee that form a basis for the contract.

FORMS (8VAC20-441)

Annual Form - Contract with Professional Personnel

Continuing Form Contract with Professional Personnel

Athletic Coaching Contract with School Personnel

Extracurricular Activity Sponsorship Contract with School Personnel

TITLE 9. ENVIRONMENT

STATE WATER CONTROL BOARD

Final Regulation

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-5, 9VAC25-260-50, 9VAC25-260-140, 9VAC25-260-155, 9VAC25-260-185, 9VAC25-260-187, 9VAC25-260-310, 9VAC25-260-390, 9VAC25-260-400, 9VAC25-260-410, 9VAC25-260-415, 9VAC25-260-440, 9VAC25-260-450, 9VAC25-260-460, 9VAC25-260-470, 9VAC25-260-510, 9VAC25-260-520, 9VAC25-260-530, 9VAC25-260-540).

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

Effective Date: Effective upon the filing of notice of approval by the U.S. Environmental Protection Agency with the Registrar of Regulations.

Agency Contact: David Whitehurst, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4121, FAX (804) 698-4032, TTY (804) 698-4021, or email david.whitehurst@deq.virginia.gov.

Summary:

The amendments include (i) increasing the stringency of lead criteria, (ii) reclassifying 20 waters from Class III (nontidal free flowing waters) to Class VII (swamp waters), (iii) adding site-specific maximum temperature criteria for four trout-stocked waters, and (iv) deleting the manganese criterion for public water supplies.

Changes since publication of the proposed regulation include correction of the aquatic life water quality criteria concentrations for lead in saltwater and removal from the final regulation of (i) the eight human health criteria parameters, (ii) the water quality criteria for ammonia to protect aquatic life in freshwater, and (iii) the designation for four Class VII swamp water designations.

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.

Part I
Surface Water Standards with General, Statewide Application

9VAC25-260-5. Definitions.

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

"Algicides" means chemical substances, most commonly copper-based, used as a treatment method to control algae growths.

"Board" means State Water Control Board.

"Chesapeake Bay and its tidal tributaries" means all tidally influenced waters of the Chesapeake Bay; western and eastern coastal embayments and tributaries; James, York, Rappahannock and Potomac Rivers and all their tidal tributaries to the end of tidal waters in each tributary (in larger rivers this is the fall line); and includes subdivisions 1, 2, 3, 4, 5, and 6 of 9VAC25-260-390, subdivisions 1, 1b, 1d, 1f and 1o of 9VAC25-260-410, subdivisions 5 and 5a of 9VAC25-260-415, subdivisions 1 and 1a of 9VAC25-260-440, subdivisions 2, 3, 3a, 3b and 3e of 9VAC25-260-520, and subdivision 1 of 9VAC25-260-530. This definition does not include free flowing sections of these waters.

"Criteria" means elements of the board's water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.  When criteria are met, water quality will generally protect the designated use.

"Department" or "DEQ" means the Virginia Department of Environmental Quality.

"Designated uses" means those uses specified in water quality standards for each water body waterbody or segment whether or not they are being attained.

"Drifting organisms" means planktonic organisms that are dependent on the current of the water for movement.

"Epilimnion" means the upper layer of nearly uniform temperature in a thermally stratified man-made lake or reservoir listed in 9VAC25-260-187 B.

"Existing uses" means those uses actually attained in the water body waterbody on or after November 28, 1975, whether or not they are included in the water quality standards.

"Lacustrine" means the zone within a lake or reservoir that corresponds to nonflowing lake-like conditions such as those near the dam. The other two zones within a reservoir are riverine (flowing, river-like conditions) and transitional (transition from river to lake conditions).

"Man-made lake or reservoir" means a constructed impoundment.

"Mixing zone" means a limited area or volume of water where initial dilution of a discharge takes place and where numeric water quality criteria can be exceeded but designated uses in the water body waterbody on the whole are maintained and lethality is prevented.

"Natural lake" means an impoundment that is natural in origin. There are two natural lakes in Virginia: Mountain Lake in Giles County and Lake Drummond located within the boundaries of Chesapeake and Suffolk in the Great Dismal Swamp.

"Passing organisms" means free swimming organisms that move with a mean velocity at least equal to the ambient current in any direction.

"Primary contact recreation" means any water-based form of recreation, the practice of which has a high probability for total body immersion or ingestion of water (examples include but are not limited to swimming, water skiing, canoeing and kayaking).

"Pycnocline" means the portion of the water column where density changes rapidly because of salinity and/or temperature. In an estuary the pycnocline is the zone separating deep, cooler more saline waters from the less saline, warmer surface waters. The upper and lower boundaries of a pycnocline are measured as a change in density per unit of depth that is greater than twice the change of the overall average for the total water column.

"Secondary contact recreation" means a water-based form of recreation, the practice of which has a low probability for total body immersion or ingestion of waters (examples include but are not limited to wading, boating and fishing).

"Swamp waters" means waters with naturally occurring low pH and low dissolved oxygen caused by: (i) low flow velocity that prevents mixing and reaeration of stagnant, shallow waters and (ii) decomposition of vegetation that lowers dissolved oxygen concentrations and causes tannic acids to color the water and lower the pH.

"Use attainability analysis" means a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological, and economic factors as described in 9VAC25-260-10 H.

"Water quality standards" means provisions of state or federal law which consist of a designated use or uses for the waters of the Commonwealth and water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water and serve the purposes of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia) and the federal Clean Water Act (33 USC § 1251 et seq.).

"Wetlands" means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

9VAC25-260-50. Numerical criteria for dissolved oxygen, pH, and maximum temperature.***

*This classification recognizes that the natural quality of these waters may fluctuate outside of the values for D.O. and pH set forth above as water quality criteria in Class I through VI waters. The natural quality of these waters is the water quality found or expected in the absence of human-induced pollution. Water quality standards will not be considered violated when conditions are determined by the board to be natural and not due to human-induced sources. The board may develop site specific criteria for Class VII waters that reflect the natural quality of the waterbody when the evidence is sufficient to demonstrate that the site specific criteria rather than narrative criterion will fully protect aquatic life uses. Virginia Pollutant Discharge Elimination System limitations in Class VII waters shall not cause significant changes to the naturally occurring dissolved oxygen and pH fluctuations in these waters.

**Maximum temperature will be the same as that for Classes I through VI waters as appropriate.

***The water quality criteria in this section do not apply below the lowest flow averaged (arithmetic mean) over a period of seven consecutive days that can be statistically expected to occur once every 10 climatic years (a climatic year begins April 1 and ends March 31). See 9VAC25-260-310 and 9VAC25-260-380 through 9VAC25-260-540 for site specific adjustments to these criteria.

****For a thermally stratified man-made lake or reservoir in Class III, IV, V or VI waters that are listed in 9VAC25-260-187, these dissolved oxygen and pH criteria apply only to the epilimnion of the water body waterbody. When these waters are not stratified, the dissolved oxygen and pH criteria apply throughout the water column.

9VAC25-260-140. Criteria for surface water.

A. Instream water quality conditions shall not be acutely¹ or chronically² toxic except as allowed in 9VAC25-260-20 B (mixing zones). The following are definitions of acute and chronic toxicity conditions:

"Acute toxicity" means an adverse effect that usually occurs shortly after exposure to a pollutant. Lethality to an organism is the usual measure of acute toxicity. Where death is not easily detected, immobilization is considered equivalent to death.

"Chronic toxicity" means an adverse effect that is irreversible or progressive or occurs because the rate of injury is greater than the rate of repair during prolonged exposure to a pollutant. This includes low level, long-term effects such as reduction in growth or reproduction.

B. The following table is a list of numerical water quality criteria for specific parameters.

¹One hour average concentration not to be exceeded more than once every 3 years on the average, unless otherwise noted.

²Four-day average concentration not to be exceeded more than once every 3 years on the average, unless otherwise noted.

³Criteria have been calculated to protect human health from toxic effects through drinking water and fish consumption, unless otherwise noted and apply in segments designated as PWS in 9VAC25-260-390-540 through 9VAC25-260-540.

⁴Criteria have been calculated to protect human health from toxic effects through fish consumption, unless otherwise noted and apply in all other surface waters not designated as PWS in 9VAC25-260-390-540 through 9VAC25-260-540.

⁵Acute and chronic saltwater and freshwater aquatic life criteria apply to the biologically available form of the metal and apply as a function of the pollutant's water effect ratio (WER) as defined in 9VAC25-260-140 F (WER X criterion). Metals measured as dissolved shall be considered to be biologically available, or, because local receiving water characteristics may otherwise affect the biological availability of the metal, the biologically available equivalent measurement of the metal can be further defined by determining a water effect ratio (WER) and multiplying the numerical value shown in 9VAC25-260-140 B by the WER. Refer to 9VAC25-260-140 F. Values displayed above in the table are examples and correspond to a WER of 1.0. Metals criteria have been adjusted to convert the total recoverable fraction to dissolved fraction using a conversion factor. Criteria that change with hardness have the conversion factor listed in the table above.

⁶The flows listed below are default design flows for calculating steady state waste load wasteload allocations unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

The following are defined for this section:

"1Q10" means the lowest flow averaged over a period of one 1 day which on a statistical basis can be expected to occur once every 10 climatic years.

"7Q10" means the lowest flow averaged over a period of seven 7 consecutive days that can be statistically expected to occur once every 10 climatic years.

"30Q5" means the lowest flow averaged over a period of 30 consecutive days that can be statistically expected to occur once every five 5 climatic years.

"30Q10" means the lowest flow averaged over a period of 30 consecutive days that can be statistically expected to occur once every 10 climatic years.

"Averaged" means an arithmetic mean.

"Climatic year" means a year beginning on April 1 and ending on March 31.

⁷The criteria listed in this table are two significant digits. For other criteria that are referenced to other sections of this regulation in this table, all numbers listed as criteria values are significant.

⁸The fish tissue criterion for methylmercury applies to a concentration of 0.30 mg/kg as wet weight in edible tissue for species of fish and/or and shellfish resident in a waterbody that are commonly eaten in the area and have commercial, recreational, or subsistence value.

C. Application of freshwater and saltwater numerical criteria. The numerical water quality criteria listed in subsection B of this section (excluding dissolved oxygen, pH, temperature) shall be applied according to the following classes of waters (see 9VAC25-260-50) and boundary designations:

The following describes the boundary designations for Class II, (estuarine, transition zone and tidal freshwater waters) by river basin:

1. Rappahannock Basin. Tidal freshwater is from the fall line of the Rappahannock River to the upstream boundary of the transition zone including all tidal tributaries that enter the tidal freshwater Rappahannock River.

Transition zone upstream boundary – N38° 4'56.59"/-W76° 58' 47.93" (430 feet east of Hutchinson Swamp) to N38° 5' 23.33"/-W76° 58' 24.39" (0.7 miles upstream of Peedee Creek).

Transition zone downstream boundary – N37° 58'45.80"/-W76° 55' 28.75" (1,000 feet downstream of Jenkins Landing) to N37° 59' 20.07/-W76° 53' 45.09" (0.33 miles upstream of Mulberry Point). All tidal waters that enter the transition zone are themselves transition zone waters.

Estuarine waters are from the downstream boundary of the transition zone to the mouth of the Rappahannock River (Buoy 6), including all tidal tributaries that enter the estuarine waters of the Rappahannock River.

2. York Basin. Tidal freshwater is from the fall line of the Mattaponi River at N37° 47' 20.03"/W77° 6' 15.16" (800 feet upstream of the Route 360 bridge in Aylett) to the upstream boundary of the Mattaponi River transition zone, and from the fall line of the Pamunkey River at N37° 41'22.64"/W77° 12' 50.83" (2,000 feet upstream of Totopotomy Creek) to the upstream boundary of the Pamunkey River transition zone, including all tidal tributaries that enter the tidal freshwaters of the Mattaponi and Pamunkey Rivers.

Mattaponni Mattaponi River transition zone upstream boundary – N37° 39' 29.65"/W76° 52' 53.29" (1,000 feet upstream of Mitchell Hill Creek) to N37° 39' 24.20"/W76° 52' 55.87" (across from Courthouse Landing).

Mattaponi River transition zone downstream boundary – N37° 32'19.76"/W76° 47' 29.41" (old Lord Delaware Bridge, west side) to N37°32' 13.25"/W76° 47' 10.30" (old Lord Delaware Bridge, east side).

Pamunkey River transition zone upstream boundary – N37° 32'36.63"/W76° 58' 29.88" (Cohoke Marsh, 0.9 miles upstream of Turkey Creek) to N37° 32' 36.51"/W76° 58' 36.48" (0.75 miles upstream of creek at Cook Landing).

Pamunkey River transition zone downstream boundary – N37° 31'57.90"/W76° 48' 38.22" (old Eltham Bridge, west side) to N37°32' 6.25"/W76° 48' 18.82" (old Eltham Bridge, east side).

All tidal tributaries that enter the transition zones of the Mattaponi and Pamunkey Rivers are themselves in the transition zone.

Estuarine waters are from the downstream boundary of the transition zones of the Mattaponi and Pamunkey Rivers to the mouth of the York River (Tue Marsh Light) including all tidal tributaries that enter the estuarine waters of the York River.

3. James Basin. Tidal Freshwater freshwater is from the fall line of the James River in the City of Richmond upstream of Mayo Bridge to the upstream boundary of the transition zone, including all tidal tributaries that enter the tidal freshwater James River.

James River transition zone upstream boundary – N37° 14'28.25"/W76° 56' 44.47" (at Tettington) to N37° 13' 38.56"/W76°56' 47.13" (0.3 miles downstream of Sloop Point).

Chickahominy River transition zone upstream boundary – N37°25' 44.79"/W77° 1' 41.76" (Holly Landing).

Transition zone downstream boundary – N37° 12' 7.23"/W76°37' 34.70" (near Carters Grove Home, 1.25 miles downstream of Grove Creek) to N37° 9' 17.23"/W76° 40' 13.45" (0.7 miles upstream of Hunnicutt Creek). All tidal waters that enter the transition zone are themselves transition zone waters.

Estuarine waters are from the downstream transition zone boundary to the mouth of the James River (Buoy 25) including all tidal tributaries that enter the estuarine waters of the James River.

4. Potomac Basin. Tidal Freshwater freshwater includes all tidal tributaries that enter the Potomac River from its fall line at the Chain Bridge (N38° 55' 46.28"/W77° 6' 59.23") to the upstream transition zone boundary near Quantico, Virginia.

Transition zone includes all tidal tributaries that enter the Potomac River from N38° 31' 27.05"/W77° 17' 7.06" (midway between Shipping Point and Quantico Pier) to N38° 23' 22.78"/W77° 1' 45.50" (one mile southeast of Mathias Point).

Estuarine waters includes all tidal tributaries that enter the Potomac River from the downstream transition zone boundary to the mouth of the Potomac River (Buoy 44B).

5. Chesapeake Bay, Atlantic Ocean, and small coastal basins. Estuarine waters include the Atlantic Ocean tidal tributaries, and the Chesapeake Bay and its small coastal basins from the Virginia state line to the mouth of the bay (a line from Cape Henry drawn through Buoys 3 and 8 to Fishermans Island), and its tidal tributaries, excluding the Potomac tributaries and those tributaries listed above in subdivisions 1 through 4 of this subsection.

6. Chowan River Basin. Tidal freshwater includes the Northwest River and its tidal tributaries from the Virginia-North Carolina state line to the free flowing portion, the Blackwater River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately state route 611 at river mile 20.90, the Nottoway River and its tidal tributaries from the Virginia-North Carolina state line to the end of tidal waters at approximately Route 674, and the North Landing River and its tidal tributaries from the Virginia-North Carolina state line to the Great Bridge Lock.

Transition zone includes Back Bay and its tributaries in the City of Virginia Beach to the Virginia-North Carolina state line.

D. Site-specific modifications to numerical water quality criteria.

1. The board may consider site-specific modifications to numerical water quality criteria in subsection B of this section where the applicant or permittee demonstrates that the alternate numerical water quality criteria are sufficient to protect all designated uses (see 9VAC25-260-10) of that particular surface water segment or body.

2. Any demonstration for site-specific human health criteria shall be restricted to a reevaluation of the bioconcentration or bioaccumulation properties of the pollutant. The exceptions to this restriction are for site-specific criteria for taste, odor, and aesthetic compounds noted by double asterisks in subsection B of this section and nitrates.

3. Procedures for promulgation and review of site-specific modifications to numerical water quality criteria resulting from subdivisions 1 and 2 of this subsection.

a. Proposals describing the details of the site-specific study shall be submitted to the board's staff for approval prior to commencing the study.

b. Any site-specific modification shall be promulgated as a regulation in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). All site-specific modifications shall be listed in 9VAC25-260-310 (Special standards and requirements).

E. Variances to water quality standards.

1. A variance from numeric criteria may be granted to a discharger if it can be demonstrated that one or more of the conditions in 9VAC25-260-10 H limit the attainment of one or more specific designated uses.

a. Variances shall apply only to the discharger to whom they are granted and shall be reevaluated and either continued, modified or revoked at the time of permit issuance. At that time the permittee shall make a showing that the conditions for granting the variance still apply.

b. Variances shall be described in the public notice published for the permit. The decision to approve a variance shall be subject to the public participation requirements of the Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation, 9VAC25-31 (Permit Regulation).

c. Variances shall not prevent the maintenance and protection of existing uses or exempt the discharger or regulated activity from compliance with other appropriate technology or water quality-based limits or best management practices.

d. Variances granted under this section shall not apply to new discharges.

e. Variances shall be submitted by the department's Division of Scientific Research or its successors to the U.S. Environmental Protection Agency for review and approval/ or disapproval.

f. A list of variances granted shall be maintained by the department's Division of Scientific Research or its successors.

2. None of the variances in this subsection shall apply to the halogen ban section (9VAC25-260-110) or temperature criteria in 9VAC25-260-50 if superseded by § 316(a) of the Clean Water Act requirements. No variances in this subsection shall apply to the criteria that are designed to protect human health from carcinogenic and noncarcinogenic toxic effects (subsection B of this section) with the exception of the metals, and the taste, odor, and aesthetic compounds noted by double asterisks and nitrates, listed in subsection B of this section.

F. Water effect ratio.

1. A water effects ratio (WER) shall be determined by measuring the effect of receiving water (as it is or will be affected by any discharges) on the bioavailability or toxicity of a metal by using standard test organisms and a metal to conduct toxicity tests simultaneously in receiving water and laboratory water. The ratio of toxicities of the metal(s) in the two waters is the WER (toxicity in receiving water divided by toxicity in laboratory water = equals WER). Once an acceptable WER for a metal is established, the numerical value for the metal in subsection B of this section is multiplied by the WER to produce an instream concentration that will protect designated uses. This instream concentration shall be utilized in permitting decisions.

2. The WER shall be assigned a value of 1.0 unless the applicant or permittee demonstrates to the department's satisfaction in a permit proceeding that another value is appropriate, or unless available data allow the department to compute a WER for the receiving waters. The applicant or permittee is responsible for proposing and conducting the study to develop a WER. The study may require multiple testing over several seasons. The applicant or permittee shall obtain the department's Division of Scientific Research or its successor approval of the study protocol and the final WER.

3. The Permit Regulation at 9VAC25-31-230 C requires that permit limits for metals be expressed as total recoverable measurements. To that end, the study used to establish the WER may be based on total recoverable measurements of the metals.

4. The Environmental Protection Agency views the WER in any particular case as a site-specific criterion. Therefore, the department's Division of Scientific Research or its successor shall submit the results of the study to the Environmental Protection Agency for review and approval/disapproval within 30 days of the receipt of certification from the state's Office of the Attorney General. Nonetheless, the The WER is established in a permit proceeding, shall be described in the public notice associated with the permit proceeding, and applies only to the applicant or permittee in that proceeding. The department's action to approve or disapprove a WER is a case decision, not an amendment to the present regulation.

The decision to approve or disapprove a WER shall be subject to the public participation requirements of the Permit Regulation, Part IV (9VAC25-31-260 et seq.). A list of final WERs will be maintained by the department's Division of Scientific Research or its successor.

5. A WER shall not be used for the freshwater and saltwater chronic mercury criteria or the freshwater acute and chronic selenium criteria.

G. Biotic Ligand Model for copper. On a case-by-case basis, EPA's 2007 copper criteria (EPA-822-F-07-001) biotic ligand model (BLM) for copper may be used to determine alternate copper criteria for freshwater sites. The BLM is a bioavailability model that uses receiving water characteristics to develop site-specific criteria. Site-specific data for 10 parameters are needed to use the BLM. These parameters are temperature, pH, dissolved organic carbon, calcium, magnesium, sodium, potassium, sulfate, chloride, and alkalinity. If sufficient data for these parameters are available, the BLM can be used to calculate alternate criteria values for the copper criteria. The BLM would be used instead of the hardness-based criteria and takes the place of the hardness adjustment and the WER. A WER will not be applicable with the BLM.

9VAC25-260-155. Ammonia surface water quality criteria.

[ D. E. ] The one-hour average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the acute criteria below:

To calculate total ammonia nitrogen acute criteria values in saltwater at different pH and temperature values than those listed in this subsection, use the following formulas:

Where I = molal ionic strength of water

S = Salinity ppt (g/kg)

The regression model used to relate I to pKa (negative log of the ionization constant) is

pKa = 9.245 + .138I 0.138(I)

pKa as defined by these equations is at 298 degrees Kelvin (25°C). T °Kelvin = °C + 273

To correct for other temperatures:

pKa^S_T = pKa^S₂₉₈ + .0324(298 - T °Kelvin) 0.0324(298 - T °Kelvin)

The unionized ammonia fraction (UIA) is given by:

The acute ammonia criterion in saltwater is given by:

Multiply the acute value by .822 0.822 to get the ammonia-N acute criterion.

[ E. F. ] The 30-day average concentration of total ammonia nitrogen (in mg N/L) in saltwater shall not exceed, more than once every three years on the average, the chronic criteria below:

To calculate total ammonia nitrogen chronic criteria values in saltwater at different pH and temperature values than those listed in this subsection, use the following formulas:

Where I = molal ionic strength of water

S = Salinity ppt (g/kg)

The regression model used to relate I to pKa (negative log of the ionization constant) is

pKa = 9.245 + .138I 0.138(I)

pKa as defined by these equations is at 298 degrees Kelvin (25°C). T °Kelvin = °C + 273

To correct for other temperatures:

pKa^S_T = pKa^S₂₉₈ + 0324(298 - T °Kelvin) 0.0324(298 - T °Kelvin)

The unionized ammonia fraction (UIA) is given by:

The chronic ammonia criterion in saltwater is given by:

Multiply the chronic value by .822 0.822 to get the ammonia-N chronic criterion.

¹The default design flow for calculating steady state wasteload allocations for the acute ammonia criterion for freshwater is the 1Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

²The default design flow for calculating steady state wasteload allocations for the chronic ammonia criterion for freshwater is the 30Q10 (see 9VAC25-260-140 B footnote 10) unless statistically valid methods are employed which demonstrate compliance with the duration and return frequency of the water quality criteria.

9VAC25-260-185. Criteria to protect designated uses from the impacts of nutrients and suspended sediment in the Chesapeake Bay and its tidal tributaries.

A. Dissolved oxygen. The dissolved oxygen criteria in the below table apply to all Chesapeake Bay waters according to their specified designated use and supersede the dissolved oxygen criteria in 9VAC25-260-50.

B. Submerged aquatic vegetation and water clarity. Attainment of the shallow-water submerged aquatic vegetation designated use shall be determined using any one of the following criteria:

C. Chlorophyll a.

D. Implementation.

1. Chesapeake Bay program segmentation scheme as described in Chesapeake Bay Program, 2004 Chesapeake Bay Program Analytical Segmentation Scheme-Revisions, Decisions and Rationales: 1983–2003, CBP/TRS 268/04, EPA 903-R-04-008, Chesapeake Bay Program, Annapolis, Maryland, and the Chesapeake Bay Program published 2005 addendum (CBP/TRS 278-06; EPA 903-R-05-004) is listed below and shall be used as the spatial assessment unit to determine attainment of the criteria in this section for each designated use.

2. The assessment period shall be the most recent three consecutive years. When three consecutive years of data are not available, a minimum of three years within the data assessment window shall be used.

3. Attainment of these criteria shall be assessed through comparison of the generated cumulative frequency distribution of the monitoring data to the applicable criteria reference curve for each designated use. If the monitoring data cumulative frequency curve is completely contained inside the reference curve, then the segment is in attainment of the designated use. The reference curves and procedures to be followed are published in the USEPA, Ambient Water Quality Criteria for Dissolved Oxygen, Water Clarity and Chlorophyll a for the Chesapeake Bay and Its Tidal Tributaries, EPA 903-R-03-002, April 2003 and the 2004 (EPA 903-R-03-002 October 2004) , 2007 (CBP/TRS 285-07, EPA 903-R-07-003), 2007 (CBP/TRS 288/07, EPA 903-R-07-005), 2008 (CBP/TRS 290-08, EPA 903-R-08-001), and 2010 (CBP/TRS 301-10, EPA 903-R-10-002) addenda. An exception to this requirement is in measuring attainment of the SAV and water clarity acres, which are compared directly to the criteria.

9VAC25-260-187. Criteria for man-made lakes and reservoirs to protect aquatic life and recreational designated uses from the impacts of nutrients.

A. The criteria in subsection B of this section apply to the man-made lakes and reservoirs listed in this section. Additional man-made lakes and reservoirs may be added as new reservoirs are constructed or monitoring data become available from outside groups or future agency monitoring.

B. Whether or not algicide treatments are used, the chlorophyll a criteria apply to all waters on the list. The total phosphorus criteria apply only if a specific man-made lake or reservoir received algicide treatment during the monitoring and assessment period of April 1 through October 31.

The 90th percentile of the chlorophyll a data collected at one meter or less within the lacustrine portion of the man-made lake or reservoir between April 1 and October 31 shall not exceed the chlorophyll a criterion for that water body waterbody in each of the two most recent monitoring years that chlorophyll a data are available. For a water body waterbody that received algicide treatment, the median of the total phosphorus data collected at one meter or less within the lacustrine portion of the man-made lake or reservoir between April 1 and October 31 shall not exceed the total phosphorus criterion in each of the two most recent monitoring years that total phosphorus data are available.

Monitoring data used for assessment shall be from sampling location(s) within the lacustrine portion where observations are evenly distributed over the seven months from April 1 through October 31 and are in locations that are representative, either individually or collectively, of the condition of the man-made lake or reservoir.