TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Agency Decision
Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law.
Statutory Authority: § 3.2-802 of the Code of Virginia.
Name of Petitioner: Dean Amel, Arlington County Urban Forestry Commission.
Nature of Petitioner's Request: Petitioner urges the Department of Agriculture and Consumer Services to include in 2VAC5-317 a more comprehensive list of nonnative invasive species based on the Department of Conservation and Recreation list of invasive alien plant species in our state. Species on this list currently not offered for sale should be banned from future sales; plants on this list that are currently for sale should be phased out from sale over time. If the Commonwealth of Virginia is unwilling to take such steps to control nonnative invasive species, then local jurisdictions should be permitted to undertake eradication and suppression efforts.
Agency Decision: Request denied.
Statement of Reason for Decision: The Board of Agriculture and Consumer Services denies the petitioner's request for rulemaking for the following reasons:
The Regulations for Enforcement of the Noxious Weeds Law, 2VAC5-317, was established pursuant to Virginia's Noxious Weeds Law (§ 3.2-800 et seq. of the Code of Virginia). The law defines the term "noxious weed" as "...any living plant, not widely disseminated, or part thereof, declared by the Board through regulations under this chapter, to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health or the economy." The vast majority of the invasive plant species on the Department of Conservation and Recreation's Virginia Invasive Plant Species List do not meet the statutory definition as noxious weeds, thus the board's denial of the petitioner's request.
The board also points out that the regulation already provides a mechanism, through the Noxious Weeds Advisory Committee, for the review and recommendation of candidate species for classification as Tier 1 or Tier 2 noxious weeds.
The Noxious Weeds Law does not include specific provisions that allow localities to ban the sale and distribution of plant species within their boundaries.
Agency Contact: Andres Alvarez, Director, Division of Consumer Protection, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 225-3821, or email andres.alvarez@vdacs.virginia.gov.
VA.R. Doc. No. R15-22; Filed June 3, 2015, 11:47 a.m.
Agency Decision
Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law.
Statutory Authority: § 3.2-802 of the Code of Virginia.
Name of Petitioner: Kurt Louis, Arlington County Parks and Natural Resources Division.
Nature of Petitioner's Request: Petitioner urges the Department of Agriculture and Consumer Services to reevaluate the criteria by which plants are classified as noxious weeds in 2VAC5-317 and incorporate the following changes into the regulation:
• Utilize the Virginia Department of Conservation and Recreation's (DCR) most current list of Invasive Alien Plant Species of Virginia as the basis for determining inclusion on the noxious weeds list. Using this well-researched, science-based, comprehensive list as the basis for state regulation will have a far greater impact at limiting the introduction, dissemination and spread of invasive plants.
• Any species classified as highly or moderately invasive in DCR's most recent "Invasive and Alien Plant Species of Virginia" list, that are not currently in commercial production in Virginia, should be placed on the Tier 1 List of Noxious Weeds.
• Listing as a "Tier 1 noxious weed" forbids sale and movement of certain invasive plants known to do extensive damage.
• Any species classified as highly or moderately invasive in DCR's most recent "Invasive and Alien Plant Species of Virginia" list, that are currently in commercial production in Virginia, should be placed on the Tier 2 List of Noxious Weeds for a defined number of years to allow growers a chance to start producing alternative plants for sale.
• Require labeling of commercially available noxious weeds during the time that they are still permitted to be sold on the Tier 2 List (as noted above). The label shall include a warning stating that the species are invasive and shall include a listing of noninvasive alternative plant species.
• Phase out any species listed on the DCR list as invasive from commercial sale. For trees, growers should be prohibited from starting new plants once listed. Trees currently in production would be allowed to be sold with a warning (see above), unless quarantined or restricted for other reasons. Other plants that are currently in production in Virginia may be continued to be sold for a defined number of years, unless quarantined or restricted for other reasons.
• Address whether successful eradication is likely/unlikely, and successful suppression is likely/feasible (as specified in definitions of Tier 1/Tier 2 Noxious Weeds in the regulation as currently proposed by VDACS) on a species-by-species basis, grouped as subcategories within Arlington's proposed definitions of Tier 1 and Tier 2 species (above).
• Permit local jurisdictions to create lists of invasive plant species to be banned from sale and distribution within their jurisdiction.
Agency Decision: Request denied.
Statement of Reason for Decision: The Board of Agriculture and Consumer Services denies the petitioner's request for rulemaking for the following reasons:
The Regulations for Enforcement of the Noxious Weeds Law, 2VAC5-317, was established pursuant to Virginia's Noxious Weeds Law (§ 3.2-800 et seq. of the Code of Virginia). The law defines the term "noxious weed" as "...any living plant, not widely disseminated, or part thereof, declared by the Board through regulations under this chapter, to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health or the economy." The vast majority of the invasive plant species on the Department of Conservation and Recreation's Virginia Invasive Plant Species List do not meet the statutory definition as noxious weeds, thus the board's denial of the petitioner's request.
The board also points out that the regulation already provides a mechanism, through the Noxious Weeds Advisory Committee, for the review and recommendation of candidate species for classification as Tier 1 or Tier 2 noxious weeds.
The Noxious Weeds Law does not include specific provisions that allow localities to ban the sale and distribution of plant species within their boundaries.
Agency Contact: Andres Alvarez, Director, Division of Consumer Protection, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 225-3821, or email andres.alvarez@vdacs.virginia.gov.
VA.R. Doc. No. R15-23; Filed June 3, 2015, 11:47 a.m.