Title of Regulation: 1VAC20-50. Candidate Qualification (amending 1VAC20-50-20).

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

Effective Date: August 29, 2012.

On March 20, 2012, the Board of Elections amended this regulation relating to material omissions from candidate petitions. The final regulation was published July 16, 2012, Volume 28, Issue 23 of the Virginia Register (28:23 VA.R. 1700 July 16, 2012) with an effective date upon filing a notice of the United States Attorney General's preclearance with the Registrar of Regulations. The State Board of Elections hereby notices the United States Attorney General's approval of this regulation via a letter dated August 21, 2012, from T. Christian Herren, Jr., Chief, Voting Section, to Joshua N. Lief, Esq., Senior Assistant Attorney General, Office of Attorney General of Virginia. The effective date of this regulation is August 29, 2012. Copies are available online at http://townhall.virginia.gov/L/ViewBoard.cfm?BoardID=151, by calling toll-free 1-800-552-9745 or local (804) 864-8901, by sending a written request to FOIA Coordinator, 1100 Bank St., Richmond, VA 23219, or by email request to foia@sbe.virginia.gov.

Agency Contact: David Blackwood, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8930, or email david.blackwood@sbe.virginia.gov.

Title of Regulation: 1VAC20-60. Election Administration (amending 1VAC20-60-20).

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

Effective Date: August 29, 2012.

On March 20, 2012, the Board of Elections amended this regulation relating to material omissions from referendum petitions. The final regulation was published July 16, 2012, Volume 28, Issue 23 of the Virginia Register (28:23 VA.R. 1701 July 16, 2012) with an effective date upon filing a notice of the United States Attorney General's preclearance with the Registrar of Regulations. The State Board of Elections hereby notices the United States Attorney General's approval of this regulation via a letter dated August 21, 2012, from T. Christian Herren, Jr., Chief, Voting Section, to Joshua N. Lief, Esq., Senior Assistant Attorney General, Office of Attorney General of Virginia. The effective date of this regulation is August 29, 2012. Copies are available online at http://townhall.virginia.gov/L/ViewBoard.cfm?BoardID=151, by calling toll-free 1-800-552-9745 or local (804) 864-8901, by sending a written request to FOIA Coordinator, 1100 Bank St., Richmond, VA 23219, or by email request to foia@sbe.virginia.gov.

Agency Contact: David Blackwood, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8930, or email david.blackwood@sbe.virginia.gov.

Title of Regulation: 1VAC20-60. Election Administration (adding 1VAC20-60-60).

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

Effective Date: August 29, 2012.

Agency Contact: Myron McClees, Policy Analyst, State Board of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8949, FAX (804) 786-0760, or email myron.mcclees@sbe.virginia.gov.

Summary:

The amendment allows, but does not require, a general registrar or electoral board member to contact a provisional voter who failed to provide identification to remind the voter that his vote will not count unless he provides a copy of the required identification no later than noon on the Friday after election day.

1VAC20-60-60. Provisional votes.

The electoral board or general registrar may attempt to contact an individual who has voted a provisional ballot when required by § 24.2-643 of the Code of Virginia and remind the individual that he is permitted to provide a copy of a form of identification as specified in subsection B of § 24.2-643 of the Code of Virginia to arrive no later than noon on the Friday after election day. However, there shall be no requirement that the electoral board or general registrar contact such individual.

Title of Regulation: 1VAC20-70. Absentee Voting (amending 1VAC20-70-10).

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

Effective Date: August 24, 2012.

Agency Contact: Martha Brissette, Policy Analyst, State Board of Elections, 1100 Bank St., Richmond, VA 23219, telephone (800) 552-9745 ext: 8925, FAX (804) 786-0760, TTY (800) 260-3466, or email martha.brissette@sbe.virginia.gov.

Summary:

The amendment removes "temporary" from the definition of "Federal only ballot overseas voter."

1VAC20-70-10. Definitions.

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

"Application for an absentee ballot" means an application for an absentee ballot submitted on any form approved for that purpose according to federal and state laws. The term includes a Virginia Absentee Ballot Application (SBE-701), a Virginia Annual Absentee Ballot Application (SBE-703.1), and a Federal Post Card Application (SF-76A). A Federal Write-In Absentee Ballot (SF-186A) is an absentee ballot application only for the voted ballot being submitted and is not an application for future elections.

"Envelope B" means the envelope required by § 24.2-706 of the Code of Virginia which identifies the voter.

"Temporary federal "Federal only ballot overseas voter" means a United States citizen residing outside the United States indefinitely who has not provided his last date of residence in Virginia. The date the applicant has provided next to his affirmation will serve as his last date of residence.

Title of Regulation: 2VAC5-670. Rules and Regulations for Enforcement of the Virginia Pesticide Law (adding 2VAC5-670-10 through 2VAC5-670-220).

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

Effective Date: October 10, 2012.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-6559 ext: 1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Summary:

Chapters 803 and 835 of the 2012 Acts of Assembly abolished the Pesticide Control Board and transferred its duties and responsibilities to the Board of Agriculture and Consumer Services. The legislation was a result of a recommendation of Governor McDonnell's Commission on Government Reform and Restructuring. This regulatory action amends the Pesticide Control Board regulations by renumbering the regulations and placing them under the Virginia Department of Agriculture and Consumer Services in the Virginia Administrative Code.

CHAPTER 20 670
RULES AND REGULATIONS FOR ENFORCEMENT OF THE VIRGINIA PESTICIDE LAW

2VAC20-20-10. 2VAC5-670-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. Words used in singular form in this chapter include the plural, and vise versa, as appropriate.

"Active ingredient" means an ingredient which:

1. Is independently capable of:

a. Preventing, destroying, repelling, or mitigating insects, fungi, rodents, weeds, nematodes, or other pests; or

b. Altering through physiological action the behavior of ornamental or crop plants or their produce; or

c. Causing leaves or foliage to drop from a plant; or

d. Artificially accelerating the drying of plant tissue.

2. Is present in the product in an amount sufficient to be effective; and

3. Is not antagonistic to the activity of the principal active ingredients. The commissioner may require an ingredient to be designated as an active ingredient if, in his opinion, it sufficiently increases the effectiveness of the pesticide to warrant such action.

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

"Herbicide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any weed, including any algae or other aquatic weed.

"Law" means Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia, known as the Virginia Pesticide Control Act.

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

2VAC20-20-20. 2VAC5-670-20. Language to be used.

All statements, words, and other information required by the law or by this chapter to appear on the label or labeling of any pesticide shall be in the English language. However, in the case of articles intended solely for distribution to points outside the United States, the appropriate foreign language may be used.

2VAC20-20-30. 2VAC5-670-30. Label.

A. The name and address of the manufacturer shall appear on the label. If the registrant's name appears on the label and the registrant is not the manufacturer, or if the name of the person for whom the pesticide was manufactured appears on the label, it must be qualified by appropriate wording such as "Packed for . . .," "Distributed by.. .," or "Sold by...," to show that the name is not that of the manufacturer.

B. The name, brand, or trademark of the pesticide appearing on the label shall be that under which the pesticide is registered.

C. The net content declaration shall comply with the Weights and Measures Act of Virginia, Chapter 56 (§ 3.2-5600 et seq.) of Title 3.2 of the Code of Virginia and its regulations.

D. Directions for use are required for the protection of the public. The public includes not only users of pesticides, but also those who handle them or may be affected by their use, handling, or storage. Pesticides restricted by this chapter shall be registered only for their permitted uses, and the label shall have a prominent statement to the effect that the product is to be used only as directed. Directions for use are considered necessary in the case of most retail containers, with the following exceptions.

Directions may be omitted:

1. If the pesticide is to be used by manufacturers in their regular manufacturing processes, provided that the label clearly shows that the product is intended for use only in manufacturing processes, and bears an ingredient statement giving the name and percentage of each of the active ingredients.

2. If the pesticide is sold to distributors for dilution or mixing with carriers to prepare pesticides for sale to the public, provided that the label bears an ingredient statement giving the name and percentage of each of the active ingredients; and the pesticide is a well-known substance or mixture of substances; and there is readily available general knowledge of the composition, methods of use, and effectiveness of the product for pesticide purposes.

2VAC20-20-40. 2VAC5-670-40. Ingredient statement.

A. Location of ingredient statement. The ingredient statement shall appear on that part of the label displayed under customary conditions of purchase; except in cases where the commissioner determines that, due to the size or form of the container, a statement on that portion of the label is impractical, and permits the statement to appear on another side or panel of the label. When so permitted, the ingredient statement shall be in larger type and more prominent than would otherwise be required. The ingredient statement shall run parallel with other printed matter on the panel of the label on which it appears, and shall be on a clear contrasting background.

B. Names of ingredients. The well-known common name of the ingredient shall be given or, if the ingredient has no common name, the correct chemical name. If there is no common name and the chemical composition is unknown or complex, the commissioner may permit the use of a new or coined name which he finds to be appropriate for the information and protection of the user. If the use of a new or coined name is permitted, the commissioner may prescribe the terms under which it may be used. A trademark or trade name may not be used as the name of an ingredient, except when it has become a common name.

C. Percentages of ingredients. Percentages of ingredients shall be determined by weight, and the sum of the percentages of the ingredients shall be 100. Sliding scale forms of ingredient statements shall not be used.

D. Designation of ingredients. Active ingredients and inert ingredients shall be so designated, and the term "inert ingredient" shall appear in the same size type and be as prominent as the term "active ingredient".

2VAC20-20-50. 2VAC5-670-50. Pesticides highly toxic to humans.

A. Pesticides which fall within any of the following categories when tested on laboratory animals as specified in subdivisions 1, 2, or 3 of this subsection are highly toxic to humans or contain substances or quantities of substances highly toxic to humans within the meaning of the law. Such pesticides shall be referred to as pesticides highly toxic to humans. Upon application and after an opportunity for a hearing, the commissioner may exempt any pesticide from these requirements which is not highly toxic to humans:

1. Oral toxicity. A pesticide which has single dose LD50 of 50 milligrams or less per kilogram of body weight, when administered orally to both male and female rats which have been fasted for a period of 24 hours (or to other rodent or nonrodent species specified by the commissioner); or

2. Toxicity on inhalation. A pesticide which has an LC50 of 2,000 micrograms or less of dust or mist per liter of air or 200 parts per million or less by volume of a gas or vapor, when administered by continuous inhalation for one hour to both male and female rodent or nonrodent species specified by the commissioner, if he finds that it is reasonably foreseeable that such concentration will be encountered by humans; or

3. Toxicity by skin absorption. A pesticide which has an LD50 of 200 milligrams or less per kilogram of body weight, when administered by continuous contact for 24 hours with the bare skin of rabbits (or other rodent or nonrodent species specified by the commissioner).

B. Test on other species. Tests on other specified rodent or nonrodent species may be required by the commissioner whenever he finds that tests on other species are necessary to determine whether a pesticide is highly toxic to humans.

C. Terms LD50 and LC50. An LD50 as used in connection with oral toxicity and skin absorption toxicity tests is the dose, and LC50 as used in connection with inhalation tests is the concentration, which is expected to cause death within 14 days in 50% of the test animals so treated.

D. Toxicity based on human experience. If the commissioner finds, after an opportunity for hearing, that available data on human experience with any pesticide indicates a greater toxicity than found in the tests on animals, the human data shall take precedence; and if he finds that the protection of the public so requires, the commissioner shall declare such a pesticide to be highly toxic to humans for the purposes of this law and its regulations.

2VAC20-20-60. 2VAC5-670-60. Warning or caution statement.

A. Warning or caution statements which are necessary and, adequate to prevent injury to humans, useful vertebrate, and invertebrate animals, and useful vegetation, must appear on the label in a place sufficiently prominent to warn the user. They shall state clearly and in nontechnical language the particular hazard involved in the use of the pesticide (e.g., ingestion, skin absorption, inhalation, flammability, or explosion), and the precautions to be taken to avoid accident, injury, or damage.

B. The label of every pesticide shall bear warnings or cautions which are necessary for the protection of the public, including the statement, "Keep out of reach of children," and a signal word such as "DANGER," "WARNING," or "CAUTION," which the commissioner may prescribe, on the front panel or that part of the label displayed under customary conditions of purchase. However, the commissioner may permit reasonable variations in the placement of that part of the required warnings and cautions other than the statement "Keep out of reach of children" and the required signal word, if in his opinion such variations would not be injurious to the public. If a pesticide is marketed in channels of trade where the likelihood of contact with children is extremely remote, or if the nature of the product is such that it is likely to be used on infants or small children without causing injury under any reasonably foreseeable conditions, the commissioner may waive the requirements of the statement "Keep out of reach of children." The commissioner may permit a statement such as "Keep away from infants and small children" instead of the statement "Keep out of reach of children," if he determines that such a variation would not be injurious to the public.

C. The label of every pesticide which is highly toxic to humans shall bear the words "DANGER" and "POISON" in red on a contrasting background next to the skull and crossbones, and an antidote statement including directions to call a physician immediately, on the front panel or that part of the label displayed under customary conditions of purchase. However, the commissioner may permit reasonable variations in the placement of the antidote statement if some reference such as "See antidote statement on back panel" appears on the front panel near the word "POISON" and the skull and crossbones.

D. Warning or caution statements which comply with the requirements of the regulations for the enforcement of the Federal Insecticide, Fungicide and Rodenticide Act shall be considered in compliance with the requirements of this chapter.

2VAC20-20-70. 2VAC5-670-70. Registration.

A. Eligibility. Any manufacturer, packer, seller, distributor, or shipper of a pesticide is eligible as a registrant and may register the pesticide.

B. Procedure for registration. Application for registration should be made on the form provided. Application forms will be furnished upon request to the Virginia Department of Agriculture and Consumer Services, Office of Pesticide Services, Post Office Box 1163, Richmond, Virginia 23218. Application should be submitted as far in advance as possible, before the time registration is desired to take effect.

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

D. Responsibility of a registrant. The registrant is responsible for the accuracy and completeness of all information submitted in connection with his application for registration of a pesticide.

E. Changes in labeling or formula.

1. Changes in the labeling, or formula of a registered pesticide, shall be submitted in advance to the Office of Pesticide Management Services. The registrant shall describe the exact changes desired and the proposed effective date; and upon request, shall submit a description of tests which justify such changes.

2. After the effective date of a change in labeling or formula, the product shall be marketed only under the new label or formula, except that a reasonable time may be permitted by the commissioner to dispose of properly labeled stocks of old products.

F. Claims shall conform to registration. Claims made for a pesticide shall not differ in substance from representations made in connection with registration, including representations with respect to effectiveness, ingredients, directions for use, or pests against which the product is recommended.

2VAC20-20-80. 2VAC5-670-80. Coloration and discoloration.

A. Unless exempted by 2VAC20-20-130 2VAC5-670-130 of this chapter, the white pesticides hereinafter named shall be colored or discolored in compliance with this section. The hues, values, and chromas specified are those contained in the Munsell Book of Color, Munsell Color Company, Baltimore, Maryland.

B. Coloring agent. The coloring agent shall produce a uniformly colored product not subject to change in color beyond the minimum requirements specified in this chapter during ordinary conditions of marketing or storage. They must not cause the product to become ineffective, or cause damage when used as directed.

C. Arsenicals and barium fluosilicate. Standard lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, and barium fluosilicate shall be colored any hue except the yellow-reds and yellows, having a value of not more than eight and a chroma of not less than four, or shall be discolored to a neutral lightness value not over seven.

D. Sodium fluoride and sodium fluosilicate. Sodium fluoride and sodium fluosilicate shall be colored blue or green having a value of not more than eight and a chroma of not less than four, or shall be discolored to a neutral lightness value not over seven.

E. Exceptions. The commissioner, after the opportunity for a hearing, may permit other hues to be used for any particular purpose, if the prescribed hues are not feasible for the purpose, and if this action will not be injurious to the public.

2VAC20-20-90. 2VAC5-670-90. Misbranding; false or misleading statements.

Among representations in the labeling of a pesticide which render it misbranded are the following:

1. A false or misleading statement concerning the composition of the product.

2. A false or misleading statement concerning the effectiveness of the product as a pesticide or device.

3. A false or misleading statement about the value of the product for purposes other than as a pesticide or device.

4. A false or misleading comparison with other pesticides or devices.

5. A false or misleading representation as to the safety of the pesticide or of its ingredients, including a statement such as "nonpoisonous," "noninjurious," or "nonhazardous," unless the product is in fact safe from all conditions.

6. Any statement directly or indirectly implying that the pesticide or device is recommended or endorsed by any agency of this Commonwealth.

7. The name of a pesticide which contains two or more active ingredients, if it suggests the name of one or more but not all such ingredients, even though the names of the other ingredients are stated elsewhere in the labeling.

8. A true statement used in a way which would give a false or misleading impression to the purchaser.

2VAC20-20-100. 2VAC5-670-100. Enforcement.

A. Collection of samples. Samples of pesticides and devices shall be collected by a designated agent. An official representative sample shall be one which is taken by the commissioner or his duly authorized agent. An unbroken original package shall be taken as the official sample where the pesticide is packed in small bottles or small packages. Where the pesticide is packed in large containers, the official sample shall be a portion taken from one original package in a lot.

B. Examination of samples. Methods of sample examination shall be those adopted and published by the Association of Official Analytical Chemists, where applicable, and any other methods necessary to determine if the product complies with the law.

C. Notice of apparent violation.

1. If from an examination or analysis, a pesticide or device appears to be in violation of the law, a written notice shall be sent to the person against whom criminal proceedings are contemplated, giving him an opportunity to offer a written explanation. The notice shall state the manner in which the sample fails to meet the requirements of the law and this chapter.

2. In addition to his reply to the notice, any person may file, within 20 days of receipt of the notice, a written request for an opportunity to present an oral defense.

3. No notice or hearing shall be required prior to the seizure of any pesticide or device.

2VAC20-20-110. 2VAC5-670-110. Notice of judgment.

Publication of court judgments in cases heard under the criminal or seizure provision of the law shall be in the form of notices, circulars, or bulletins as directed by the commissioner.

2VAC20-20-120. 2VAC5-670-120. Products for experimental use.

A. Articles for which no permit is required.

1. A substance or mixture of substances being tested only to determine its value as a pesticide, or to determine its toxicity or other properties, and is not considered a pesticide within the meaning of § 3.2-3900 of the Code of Virginia.

2. A pesticide shipped or delivered for experimental use by or under the supervision of any federal or state agency authorized by law to conduct research in the field of economic poisons shall not be subject to the provisions of the law and this chapter.

B. Articles for which permit is required.

1. A pesticide shipped or delivered for experimental use by other qualified persons shall be exempt from the provisions of the law and of this chapter if a permit is obtained beforehand. Permits may be either, specific or general. A specific permit will be issued to cover a particular shipment on a specified date to a named person. A general permit will be issued to cover more than one shipment over a period of time to different persons.

2. If a pesticide is to be tested for a use which is likely to leave residue on or in food or feed, a permit for shipment or delivery will be issued only when:

a. The food or feed product will only be used as food or feed for laboratory or experimental animals, or

b. Convincing evidence is submitted by the applicant that the proposed use will not produce an amount of residue which would be hazardous to humans or animals.

3. All applications for permits covering shipments for experimental use shall include:

a. Name and address of the shipper and places from which the shipment will be made.

b. Proposed date of shipment or proposed shipping period, not to exceed one year.

c. A statement of the composition of material to be covered by the permit which should apply to a single material or group of closely allied formulations of the material.

d. A statement of the approximate quantity to be shipped.

e. A statement of the nature of the proposed experimental program, including the type of pests or organisms to be experimented with, the crops or animals for which the pesticide is to be used, the areas where the program will be conducted, and the results of previous tests, where necessary, to justify the quantity requested.

f. The percentage of the total quantity specified under subdivision 3 d of this subsection which will be supplied without charge to the user.

g. A statement that the pesticide is intended for experimental use only.

h. Proposed labeling, which must bear:

(1) The prominent statement "For experimental use only" on the container label and any accompanying circular or other labeling,

(2) A warning or caution statement which may be necessary and if complied with, adequate for the protection of those who may handle or be exposed to the experimental substance,

(3) The name and address of the applicant for the permit,

(4) The name or designation of the substance, and

(5) If the pesticide is to be sold, a statement of the names and percentages of the principal active ingredients in the product.

If the shipper submits a copy of the valid experimental permit and accepted labeling issued under the provisions of the Federal Insecticide, Fungicide and Rodenticide Act, the commissioner may exempt the shipper from submitting the data and information specified in subdivisions 3 e through h of this subsection.

4. The commissioner may limit the quantity of a pesticide covered by a permit if the available information on effectiveness, toxicity, or other hazards is not sufficient to justify the scope of the proposed experiment and he may impose other limitations in the permit for the protection of the public.

C. Cancellation of permits. Any permit for shipment for experimental use may be cancelled at any time for any violation of its terms.

2VAC20-20-130. 2VAC5-670-130. Exemption.

Any pesticide specified in 2VAC20-20-80 2VAC5-670-80 of this chapter which is intended solely for use by a textile manufacturer or commercial laundry, cleaner, or dyer as a mothproofing agent, or used in the manufacture or processing or rubber, glue or leather goods, which would not be suitable for such use if colored and which will not come into the hands of the public except when incorporated into a fabric and will not be present in these finished goods in sufficient quantities to cause injury to any person, shall be exempt from the requirements of 2VAC20-20-80 2VAC5-670-80.

2VAC20-20-140. 2VAC5-670-140. Declaration of pests.

In addition to those pests defined in Article 1 of the law, the commissioner hereby declares as pests the following forms of plant and animal life and viruses:

1. Mammals, including but not limited to dogs, cats, moles, bats, wild carnivores, armadillos, and deer;

2. Birds, including but not limited to starlings, English sparrows, crows, and blackbirds;

3. Fishes, including but not limited to the jawless fishes such as the sea lamprey, the cartilaginous fishes such as the sharks, and the bony fishes such as the carp;

4. Amphibians and reptiles, including but not limited to poisonous snakes;

5. Aquatic and terrestrial invertebrates, including but not limited to slugs, snails, and crayfish;

6. Roots and other plant parts growing where not wanted;

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

2VAC20-20-150. 2VAC5-670-150. Handling and storage.

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

2VAC20-20-160. 2VAC5-670-160. Disposal.

No person shall dispose of, discard, or store any pesticides or pesticide containers in a manner which may cause injury to humans, vegetation, crops, livestock, wildlife, pollinating insects, or pollute any water supply or waterway.

2VAC20-20-170. 2VAC5-670-170. Application and equipment.

A. No person shall apply, dispense, or use any pesticide in or through any equipment or application apparatus unless the equipment or apparatus is in sound mechanical condition and capable of satisfactory operation. All pesticide application equipment shall be properly equipped to dispense the proper amount of material. All pesticide mixing, storage, or holding tanks, whether on application equipment or not, shall be leakproof. All spray distribution systems shall be leakproof, and any pumps which these systems may have shall be capable of operating at sufficient pressure to assure a uniform and adequate rate of discharge.

B. All pesticide application equipment shall be equipped with cut-off valves and discharge orifices to enable the operator to pass over nontarget areas without contaminating them. All hoses, pumps, or other equipment used to fill pesticide handling, storage, or application equipment shall be fitted with an effective valve or device to prevent backflow into water supply systems, streams, lakes, other sources of water, or other materials. However, these backflow devices or valves are not required for separate water storage tanks used to fill agricultural pesticide application equipment by gravity systems when the fill spout, tube, or pipe is not allowed to contact or fall below the water level of the application equipment being filled, and no other possible means of establishing a backsiphon or backflow exists.

2VAC20-20-180. 2VAC5-670-180. Cancellation authority.

All pesticides which have been cancelled or suspended by the United States Government are subject to cancellation in Virginia. No registration shall be revoked or refused until the registrant has been given an opportunity for a hearing by the commissioner. Any appeal of cancellation at the federal level shall not affect cancellation proceedings with this Commonwealth.

2VAC20-20-190. 2VAC5-670-190. Restricted pesticides.

Unless otherwise specified, federally permitted uses of pesticides will be permitted in Virginia.

2VAC20-20-200. 2VAC5-670-200. Additional requirements for highly hazardous pesticides.

When the commissioner has evidence that the use of any highly hazardous pesticide will significantly affect the quality of the environment or the health and safety of individual users, nontarget species, or a geographic area, he shall, with the approval of the board, control the distribution, sale and use of the substance by employing one or more of the following regulatory procedures:

1. Registration of sellers and users;

2. Records and reports on quantities sold and used;

3. Sales and use permits;

4. Certification of compliance to approved label precautions; and

5. Approved supervision of use.

2VAC20-20-210. 2VAC5-670-210. Service container labeling.

Containers other than the original registrant's or manufacturer's containers used for the temporary storage or transportation of pesticide concentrates or end-use dilutions, shall bear abbreviated labeling as elaborated below:

PESTICIDE CONCENTRATE

A. If the pesticide to be temporarily stored or transported is a concentrate to be further diluted, the container shall bear a securely attached label with the following information:

1. Product name (brand names from product label);

2. EPA registration number (from product label);

3. Name and percentage of active ingredient(s) from the product label; and

4. Appropriate signal word; i.e., Poison, Danger, Warning, Caution (from product label).

B. The above labeling is required for concentrate service containers, regardless of container type, size, or capacity.

PESTICIDE END-USE DILUTIONS OR END-USE CONCENTRATES

A. If the pesticide to be temporarily stored or transported is to be applied without further dilution, the container shall bear a securely attached label with the following information:

1. Product name (brand name from product label) preceded by the word "Diluted" or "End-Use Concentrate";

2. EPA registration number from concentrate product label;

3. Name of active ingredient(s) and percentage(s) of end-use dilution; and

4. Appropriate signal word: i.e., Poison, Danger, Warning, Caution (from product label).

B. Abbreviated labeling is not required for the following:

1. End-use dilution containers not exceeding three gallons liquid or three pounds dry capacity, when such containers are used as application devices; i.e., hand-held sprayers, dusters, puffers, etc.

2. Containers used by farm supply dealers for the temporary storage or transportation of pesticide concentrate or end-use dilutions, provided that sales invoices or delivery tickets adequately identifying the pesticide(s) accompany each shipment or delivery.

3. On farm concentrate or end-use dilution containers or application equipment used for the temporary storage or transportation of such pesticides for agricultural use.

4. Aircraft-mounted containers used for temporary storage or transportation of concentrate or end-use dilution pesticides, provided that aircraft logs or other documents adequately identifying the pesticide(s) accompany the aircraft.

2VAC20-20-220. 2VAC5-670-220. Mixtures.

A. General sale. Regardless of type container mixtures of pesticides with fertilizers or with other pesticides, when offered for general sale to the public shall be registered prior to sale, distribution, or use. In addition, any pesticide/fertilizer mixture shall be registered or labeled as required by the Virginia Fertilizer Law. All bulk containers shall bear the registered pesticide product label and a copy of the label shall accompany each shipment or delivery.

B. Custom mixtures. Pesticides may be mixed with fertilizers or with other pesticides without label registration when the pesticide product is duly registered, and when such mixtures are not prohibited by the registered pesticide label.

C. When these mixtures are intended for the production of agricultural commodities, the person making the mixtures shall provide the following written or printed information to the applicator or customer:

1. Brand name(s) and EPA registration no.(s) of pesticide product(s);

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

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

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

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

FORMS (2VAC20-20) (2VAC5-670)

Application for Pesticide Product Registration Form, VDACS-07208 (rev. 09/06)

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

Title of Regulation: 2VAC5-675. Regulations Governing Pesticide Fees Charged by the Department of Agriculture and Consumer Services (adding 2VAC5-675-10 through 2VAC5-675-50).

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

Effective Date: October 10, 2012.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-6559 ext: 1308, FAX (804) 786-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Summary:

Chapters 803 and 835 of the 2012 Acts of Assembly abolished the Pesticide Control Board and transferred its duties and responsibilities to the Board of Agriculture and Consumer Services. This legislation was the result of a recommendation of Governor McDonnell's Commission on Government Reform and Restructuring. This regulatory action amends the Pesticide Control Board regulations by renumbering the regulations and placing them under the Virginia Department of Agriculture and Consumer Services in the Virginia Administrative Code.

CHAPTER 30 675
REGULATIONS GOVERNING PESTICIDE FEES CHARGED BY THE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Part I
Definitions

2VAC20-30-10. 2VAC5-675-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. All terms defined in Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia are hereby incorporated by reference in this chapter.

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

"Brand" means any word, name, symbol, device, or any combination thereof, which serves to distinguish a pesticide product manufactured, distributed, sold, or offered for sale by one person from that manufactured, distributed, sold, or offered for sale by any other person.

"COB" means close-of-business.

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

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

"Grade" means formulation of a pesticide, except that the addition of pigments solely for color shall not constitute a change in the formulation such as to constitute a new grade requiring registration.

"Limited quantities" means purchases, at cost, for resale, of less than $50,000 annually per outlet of products containing nonrestricted use pesticide active ingredients.

"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.

Part II
Fees

2VAC20-30-20. 2VAC5-675-20. Pesticide product registration fee; registration of new pesticide products; renewal of pesticide product registration.

A. Every pesticide product which is to be manufactured, distributed, sold, offered for sale, used or offered for use within the Commonwealth shall be registered with the commissioner. The fee for registering each brand shall be $160. If a brand has more than one grade, each grade shall be registered, not the brand at the registration fee then in effect. The registration for a new pesticide product shall be effective upon receipt by the Department of Agriculture and Consumer Services of the application form accompanied by the required registration fee.

B. All pesticide product registrations shall expire on December 31 of each year unless canceled or otherwise terminated for cause. A registration not canceled or otherwise terminated for cause will be renewed upon receipt of the annual registration fee as set forth in subsection A of this section accompanied by the application renewal form. A registration that has been canceled or otherwise terminated for cause prior to December 31 may be resubmitted as a new registration when the conditions resulting in the cancellation or termination have been resolved. The registration of each brand or grade shall be renewed with the commissioner prior to December 31 of each year. If the registration is not renewed prior to December 31 of each year, the commissioner shall assess a late fee of 20% that shall be added to the registration fee. The late fee shall apply to all renewal registrations submitted to the department any time during the 12-month period following the expiration of the registration. Registrants who permit a registration to lapse for more than one year shall thereafter register the product as a new product. The applicant shall pay the total fee prior to the issuance of the registration by the commissioner.

2VAC20-30-30. 2VAC5-675-30. Commercial applicator certificate fee.

Any person applying for a certificate as a commercial applicator shall pay to the department an initial nonrefundable certificate fee of $70 and a biennial nonrefundable renewal fee of $70 thereafter. All certificates shall expire at midnight on June 30 in the second year after issuance unless suspended or revoked for cause. All certificates not suspended or revoked for cause will be renewed upon receipt of the biennial renewal fee. If the applicator does not file an application for renewal of his certificate prior to COB June 30, the commissioner shall assess a late filing fee of 20% that shall be added to the renewal fee. The applicant shall pay the total fee prior to the commissioner's issuance of the renewal. However, if the certificate is not renewed within 60 days following the expiration of the certificate, then such certificate holder shall be required to take another examination. The fee for this reexamination or for any commercial applicator reexamination pursuant to subsection C of § 3.2-3930 of the Code of Virginia shall be $70 and shall be nonrefundable. Any person applying to add a category or subcategory to his certificate shall pay to the department a nonrefundable fee of $35. Federal, state, and local government employees certified to use, or supervise the use of, pesticides in government programs shall be exempt from any certification fees.

2VAC20-30-40. 2VAC5-675-40. Registered technician certificate fee.

Any person applying for a certificate as a registered technician shall pay to the department an initial nonrefundable certificate fee of $30 and a biennial nonrefundable renewal fee of $30 thereafter. All certificates shall expire at midnight on June 30 in the second year after issuance unless suspended or revoked for cause. A certificate not suspended or revoked for cause will be renewed upon receipt of the biennial renewal fee. If the application for renewal of any certificate is not filed prior to COB June 30, a late filing fee of 20% shall be assessed and added to the renewal fee and shall be paid by the applicant before the renewal shall be issued. If the certificate is not renewed within 60 days following the expiration of the certificate, then such certificate holder shall be required to take another examination. The fee for this reexamination pursuant to subsection C of § 3.2-3930 of the Code of Virginia shall be $30 and shall be nonrefundable. Federal, state and local government employees certified to use pesticides in government programs shall be exempt from any certification fees.

2VAC20-30-50. 2VAC5-675-50. Business license fee.

Any pesticide business that distributes, stores, sells, recommends for use, mixes, or applies pesticides shall pay a nonrefundable annual pesticide business licensing fee of $50 for each location or outlet that he or it operates. All business licenses will expire at midnight on March 3l of each year unless suspended or revoked for cause. If a business license is not suspended or revoked for cause, it will be renewed upon payment of the annual fee. If any person operating as a pesticide business fails to apply for renewal of a pesticide business license by COB March 31 the applicant, as a condition of renewal, shall pay a late license fee of 20% of the licensing fee in addition to that fee. Merchants of limited quantities of nonrestricted use pesticides including grocery stores, convenience stores, drug stores, veterinarians and other businesses who sell pesticides primarily for limited household use shall be exempt from the business license requirement.

FORMS (2VAC20-30) (2VAC5-675)

Application for Virginia Pesticide Business License to sell, distribute, store, apply, or recommend pesticides for use, VDACS—07209 (eff. 2/02).

Commercial Pesticide Applicator Certification Application/Eligibility Requirements for Commercial Applicator Certification, VDACS—07211 (eff. 11/01).

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination/Commercial Pesticide Applicator Categories, VDACS—07218 (eff. 11/01).

Application for New Pesticide Product Registration/Additional Information and Instructions, VDACS—07208, (rev. 10/03 .

Application for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator Categories, VDACS—07210 (eff. 07/00).

Pesticide Registered Technician Application/General Training Requirements for Registered Technicians, VDACS—07212 (eff. 11/01).

Application for New Pesticide Product Registration/Additional Information and Instructions, VDACS—07208 (rev. 7/12).

Application for Virginia Pesticide Business License to sell, distribute, store, apply, or recommend pesticides for use, VDACS—07209 (eff. 9/06).

Application for Reciprocal Pesticide Applicator Certificate/Commercial Pesticide Applicator Categories, VDACS—07210 (eff. 5/09).

Commercial Pesticide Applicator Certification Application/Eligibility Requirements for Commercial Applicator Certification, VDACS—07211 (rev. 7/12).

Pesticide Registered Technician Application/General Training Requirements for Registered Technicians, VDACS—07212 (eff. 1/09).

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination/Commercial Pesticide Applicator Categories, VDACS—07218 (eff. 1/09).

Title of Regulation: 2VAC5-680. Regulations Governing Licensing of Pesticide Businesses Operating Under Authority of the Virginia Pesticide Control Act (adding 2VAC5-680-10 through 2VAC5-680-110).

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

Effective Date: October 10, 2012.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-6559 ext: 1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Summary:

Chapters 803 and 835 of the 2012 Acts of Assembly abolished the Pesticide Control Board and transferred its duties and responsibilities to the Board of Agriculture and Consumer Services. The legislation was a result of a recommendation of Governor McDonnell's Commission on Government Reform and Restructuring. This regulatory action amends the Pesticide Control Board regulations by renumbering the regulations and placing them under the Virginia Department of Agriculture and Consumer Services in the Virginia Administrative Code.

CHAPTER 40 680
REGULATIONS GOVERNING LICENSING OF PESTICIDE BUSINESSES OPERATING UNDER AUTHORITY OF THE VIRGINIA PESTICIDE CONTROL ACT

Part I
Definitions

2VAC20-40-10. 2VAC5-680-10. Definition of terms.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. An asterisk following a definition denotes that the definition has been taken from § 3.2-100 or Article 1 (§ 3.2-3900 et seq.) of Chapter 39 of Title 3.2 of the Code of Virginia.

"Board" means the Pesticide Control Board of Agriculture and Consumer Services.*

"Bulk pesticide" means any registered pesticide concentrate which is transported or held in an individual container in undivided quantities of greater than 55 U.S. gallons liquid measure or greater than 100 pounds net dry weight.

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

"Commercial applicator" means any person who has completed the requirements for certification as determined by the board to use or supervise the use of any pesticide for any purpose or on any property other than as provided in the definition of private applicator.*

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

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

"EPA" means the United States Environmental Protection Agency.

"FIFRA" means the Federal Insecticide, Fungicide, and Rodenticide Act as amended, and herein incorporated by reference.

"Licensed" or "licensee" means those businesses which, upon meeting the requirements established by the Pesticide Control 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.*

"Limited quantities" means purchases, at cost, for resale, of less than $50,000 annually per outlet of products containing nonrestricted use pesticide active ingredients.

"Pest management consultant" means any person, who may or may not apply pesticides himself, who has obtained a business license in accordance with the requirements listed below, and who is authorized by this chapter to provide technical advice, supervision or aid, or recommendations for pesticide application commercially in Virginia.

"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 or bacteria, 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 in any substance defined in clauses (i) and (ii) of this definition.*

"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 for distribution 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 that produce agricultural products unless the owners or operators of such operations described in clauses (i), (ii), and (iii) of this definition 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.*

"Pesticide business location" means any fixed location of a pesticide business with either a telephone that is used to transact business or give advice, or where products, supplies or business mail is delivered. Residences of service technicians who are employed by a licensed pesticide business are exempt, if no business solicitation is conducted from that location.

"Private applicator" means an applicator who uses or supervises the use of any pesticide which 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.*

"Restricted use pesticide" or "pesticide classified for restricted use" means any pesticide classified as restricted by the Administrator of the United States Environmental Protection Agency.*

"Virginia Pesticide Control Act" or "Act" means Chapter 39 (§ 3.2-3900 et seq.) of Title 3.2 of the Code of Virginia.

Part II
Procedures for Obtaining a Business License

2VAC20-40-20. 2VAC5-680-20. General requirements for all pesticide businesses; exemptions.

A. Any person or business operating in Virginia, which, in exchange for compensation, sells, stores, distributes, mixes, applies or recommends for use pesticides, shall obtain a valid pesticide business license pursuant to this chapter. Each pesticide business location shall be licensed.

B. Exempted from the provisions of this chapter are the following:

1. Merchants of limited quantities of nonrestricted use pesticides who sell pesticides primarily intended for limited household use;

2. Federal, state and local governmental agencies;

3. Certified applicators not for hire; including those who use or supervise the use of pesticides as part of their job duties only on property owned or leased by themselves or their employer; and

4. Providers of janitorial, cleaning or sanitizing services if the providers use no pesticides other than sanitizers, disinfectants and germicides.

C. Application for a pesticide business license is made by submitting to the department (i) a completed application form and (ii) a check or money order in the amount of the annual business license fee established by the board.

D. Each applicant for a pesticide business license, or an employee designated by the applicant, shall demonstrate to the commissioner his knowledge of (i) pesticide laws and regulations; (ii) potential hazards of pesticides to man and the environment; and (iii) safe distribution, use, and disposal of pesticides by passing a written examination prior to his being issued a business license. If the applicant is already certified as a commercial applicator, he shall be exempt from the initial examination requirement.

E. All licensed pesticide businesses shall maintain written records pertaining to their operations, as required in this chapter.

F. All licensed pesticide business locations or outlets which sell restricted use pesticides, or distribute restricted use pesticides for purposes of selling, shall have a certified commercial applicator present who shall bear immediate responsibility for the correct and safe operation of the location or outlet. Each business shall notify the department of the name of the commercial applicator assigned to each location or outlet, and shall also notify the department within three business days of any change in the applicator assignments during the license period.

G. All licensed pesticide businesses that store, repack and distribute bulk pesticides shall meet the requirements established by the board for the storage, repackaging and distribution of bulk pesticides.

H. All pesticide business licenses shall expire at midnight on March 3l of each year. Licensees shall renew their licenses annually by application to the department and payment of the annual fee on or before close of business March 31. The department shall charge a 20% penalty in addition to the regular fee for renewal applications filed after March 31.

2VAC20-40-30. 2VAC5-680-30. Business licensing requirements for commercial applicators.

Any person mixing or applying any pesticide commercially in Virginia shall either (i) obtain a valid pesticide business license pursuant to 2VAC20-40-20 2VAC5-680-20 A, or (ii) be employed by a currently licensed pesticide business. The business license and fee shall not be considered a substitute for the commercial applicator certification and fee. Possession of a business license does not authorize the licensee to apply restricted use pesticides, nor does it allow a reduction of the fee necessary for an applicator's certification.

2VAC20-40-40. 2VAC5-680-40. Business licensing requirements for pest management consultants.

A. Any person or business which recommends any pesticide for use commercially in Virginia shall obtain a valid pesticide business license issued pursuant to 2VAC20-40-20 2VAC5-680-20 A. This provision shall exclude sales personnel of a licensed pesticide business, company training, technical and sales representatives certified in the demonstration pesticide applicator category, and governmental employees while performing in an official capacity.

B. The specialty categories for a pest management consultant shall conform to the commercial applicator categories established pursuant to the Act. The pest management consultant shall meet the requirements of the specific category or subcategory in which he is making recommendations for pesticide use prior to being issued a business license.

Part III
Recordkeeping

2VAC20-40-50. 2VAC5-680-50. General recordkeeping requirements.

A. Records covered in this chapter shall, upon written request, be made available for inspection by the commissioner or his designee during normal business hours. Records not readily available shall be submitted to the commissioner within 72 hours if so requested in writing. Records may be submitted electronically in a manner specified by VDACS, including, but not limited to, electronic mail or by completing any forms provided online by VDACS.

B. Persons possessing records covered in this part (2VAC20-40-50 2VAC5-680-50 et seq.) shall fully comply with the requirements contained in the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136 F) and regulations pursuant thereto.

C. Pesticide businesses shall maintain for a period of two years all records required by this chapter.

2VAC20-40-60. 2VAC5-680-60. Recordkeeping of restricted use pesticide sales by pesticide businesses.

A. Pesticide businesses that sell restricted use pesticides shall maintain a record of each restricted use pesticide sold. Each sales record shall contain the following:

1. Name, address, certified applicator number or business license number, and certificate or license expiration date of the person to whom the restricted use pesticide was sold or delivered;

2. Date of sale;

3. Brand or common product name;

4. EPA registration number; and

5. Quantity of pesticide sold or delivered.

B. The restricted use pesticide sales recordkeeping requirement may be satisfied by invoices, if (i) such invoices are kept separate from the licensee's other sales records, and (ii) the invoices contain the above information.

2VAC20-40-65. 2VAC5-680-65. Recordkeeping of pesticide applications by licensed pesticide businesses.

Licensed pesticide businesses shall maintain a record of each pesticide applied. This shall apply to both general use and restricted use pesticides. Each record shall contain the:

1. Name, address, and telephone number of customer and address or location, if different, of site of application;

2. Name and certification number (or certification number of the supervising certified applicator) of the person making the application;

3. Day, month and year of application;

4. Type of plants, crop, animals, or sites treated and principal pests to be controlled;

5. Acreage, area, or number of plants or animals treated;

6. Brand name or common product name;

7. EPA registration number;

8. Amount of pesticide concentrate and amount of diluent used, by weight or volume, in mixture applied; and

9. Type of application equipment used.

2VAC20-40-70. 2VAC5-680-70. Recordkeeping of pesticide applications by pesticide businesses.

Pesticide businesses shall maintain a record of each pesticide applied. This shall apply to both general use and restricted use pesticides. Each record shall contain the:

1. Name, address, and telephone number of customer and address or location, if different, of site of application;

2. Name and certification number (or certification number of the supervising certified applicator) of the person making the application;

3. Day, month and year of application;

4. Type of plants, crop, animals, or sites treated and principal pests to be controlled;

5. Acreage, area, or number of plants or animals treated;

6. Brand name or common product name;

7. EPA registration number;

8. Amount of pesticide concentrate and amount of diluent used, by weight or volume, in mixture applied; and

9. Type of application equipment used.

2VAC20-40-80. 2VAC5-680-80. Evidence of financial responsibility required of a licensed pesticide business.

A. Prior to being issued a pesticide business license, a business shall furnish evidence of financial responsibility, consisting of a liability insurance policy from a person authorized to do business in Virginia, or a certification thereof, protecting persons who may suffer legal damages as a result of the use of any pesticide by the applicant.

B. The liability insurance policy shall meet the following conditions:

1. The certificate of insurance shall include the name of the insurance company, policy number, insurance amount, type of coverage afforded, any exclusions relating to damage arising from the use of pesticides, and expiration date of the policy. The policy shall cover liability arising out of the handling, storage, application, use or misuse, or disposal of any pesticide; it shall also cover liability relating to completed operations.

2. The policy shall be in an amount specified in subsection C of this section.

3. The licensee shall forward a current certificate of insurance to the board at each insurance renewal date.

C. The amount of financial responsibility as provided for in this section shall be a minimum of $100,000 for property damage, and $100,000 for personal injury or death of one person; and $300,000 per occurrence. The licensee shall maintain at least the minimum coverage at all times during the license period, and shall notify the board at least 10 days prior to any reduction at the request of the licensee or cancellation of such financial responsibility by the insurer. If the deductible of an applicant for a business license is greater than $1,000, evidence of financial responsibility shall be furnished to the board to satisfy the difference between the applicant's deductible and the $1,000 deductible. This evidence may consist of a financial statement.

Part V
Revocation, Suspension or Denial of Business Licenses

2VAC20-40-90. 2VAC5-680-90. Revocation of a business license.

In addition to the violative acts listed under § 3.2-3940 A of the Code of Virginia, the following are grounds for revocation by the board of a business license:

1. Failure to (i) submit records to the commissioner upon written request; or (ii) to permit any person designated by the commissioner to have access to, and to copy such records of business transactions as may be essential to carrying out the purposes of the Act.

2. Operation of a pesticide business location or outlet without a certified commercial applicator assigned to the location or outlet as required by this chapter.

3. Interference with the commissioner or his duly authorized agents in carrying out the duties imposed by the Act.

4. Conduct by a licensee, as determined during the course of a hearing, which has or might have resulted at any time in substantial danger to, or in unreasonable adverse effects on, the public health, safety, or the environment.

5. Failure of a licensee to notify the department of any change in financial responsibility as specified in 2VAC20-40-80 2VAC5-680-80 C.

6. Multiple violations of the Act or regulations pursuant thereto within a three-year period.

2VAC20-40-100. 2VAC5-680-100. Summary suspension by commissioner.

A. The commissioner may suspend the pesticide business license of any person, without a hearing, simultaneously with the institution of proceedings for a hearing, if he finds there is a substantial danger to the public health, safety, or the environment that warrants this action. Situations that may warrant suspension include, but are not limited to, the following:

1. Operating a pesticide business or pesticide business outlet without a certified commercial applicator on site as required by this chapter, when absence of the applicator presents a substantial danger to the public health, safety, or the environment, as determined by the commissioner.

2. Refusal by a pesticide business, after receipt of a written request, to permit the commissioner or his agent access to and to copy records of business transactions, when such refusal presents a substantial danger to the public health, safety, or the environment, as determined by the commissioner.

B. The commissioner shall institute proceedings for a hearing pursuant to § 2.2-4020 of the Code of Virginia simultaneously with any summary suspension. Subject to any provision of procedure or chapter of the board for the processing of violations not inconsistent with this chapter:

1. The hearing shall be held within 60 days after the suspension; and

2. The hearing officer conducting the hearing shall have the authority to consider and address all matters relating to the summary suspension, including but not limited to the withdrawing, sustaining, or modifying thereof.

The commissioner or a conference officer appointed by the commissioner shall offer the person whose license has been summarily suspended (hereinafter "the respondent") an opportunity to appear in an informal conference, authorized by § 2.2-4019 of the Code of Virginia, to be held within three days after the summary suspension. The informal conference may consider, subject to any provision of the board for the processing of violations, all matters relating to the summary suspension, including but not limited to the withdrawal, sustaining, or modifying thereof. Nothing in this section authorizing consideration of matters by an informal conference shall be construed to deny a respondent's right to a hearing.

C. No person may operate a pesticide business at any time when his license is suspended.

2VAC20-40-110. 2VAC5-680-110. Denial of license by the commissioner.

A. The commissioner shall deny a business license to any applicant who does not submit all the information required on the license application form, or who does not fully comply with all requirements for licensing set forth in this chapter.

B. The commissioner may, after notice to a pesticide business applicant and after opportunity for hearing, deny a pesticide business license to an applicant who has violated the pesticide law or regulations of any state or competent authority so as to evidence a disregard for proper and safe pesticide use; or if his license has been denied, suspended, nullified, withdrawn, revoked, or otherwise terminated by any state or other competent authority.

C. Any applicant for a pesticide business license shall not engage in the activity for which he is requesting a license until the commissioner shall have issued it.

FORMS (2VAC20-40) (2VAC5-680)

Application for Virginia Pesticide Business License, Form VDACS-07209 (rev. 11/05).

Certificate of Insurance, Form VDACS-07214 (rev. 4/96).

Request to take the Virginia Pesticide Business License Examination (rev. 8/06).

Application for Virginia Pesticide Business License, Form VDACS-07209 (rev. 9/06).

Certificate of Insurance, Form VDACS-07214 (rev. 4/96).

Request to take the Virginia Pesticide Business License Examination (rev. 1/09)

Title of Regulation: 2VAC5-685. Regulations Governing Pesticide Applicator Certification Under Authority of Virginia Pesticide Control Act (adding 2VAC5-685-10 through 2VAC5-685-210).

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

Effective Date: October 10, 2012.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-6559 ext: 1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Summary:

Chapters 803 and 835 of the 2012 Acts of Assembly abolished the Pesticide Control Board and transferred its duties and responsibilities to the Board of Agriculture and Consumer Services. The legislation was a result of a recommendation of Governor McDonnell's Commission on Government Reform and Restructuring. This regulatory action amends the Pesticide Control Board regulations by renumbering the regulations and placing them under the Virginia Department of Agriculture and Consumer Services in the Virginia Administrative Code.

CHAPTER 51 685
REGULATIONS GOVERNING PESTICIDE APPLICATOR CERTIFICATION UNDER AUTHORITY OF VIRGINIA PESTICIDE CONTROL ACT

Part I
Definitions

2VAC20-51-10. 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 Pesticide Control 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 Pesticide Control 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 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 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 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 Pesticide Control 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 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 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.*

"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 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 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.**

2VAC20-51-20. 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).

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 reexamination must resubmit a completed application to the commissioner or his duly authorized agent and pay the nonrefundable applicator certification fee as determined by 2VAC20-30 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.

2VAC20-51-30. 2VAC5-685-30. Specific certification requirements for commercial applicators.

A. In addition to the general requirements listed in 2VAC20-51-20 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) desired.

Individuals seeking certification as commercial applicators must pay a fee as determined by 2VAC20-30 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. Aerial pesticide application applicants must meet the requirements of the Federal Aviation Agency, the Department of Aviation of the Commonwealth, and any other applicable federal or state laws or regulations to operate aerial equipment.

2VAC20-51-40. 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 2VAC20-51-80 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 certified under this waiver shall obtain certification in the categories of limited certificate or single product certification as described in 2VAC20-51-80 2VAC5-685-80.

2VAC20-51-50. 2VAC5-685-50. Certification procedures for registered technicians.

A. In addition to the general requirements listed in 2VAC20-51-20 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 Pesticide Control 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 2VAC20-51-20 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 may not apply pesticides commercially, even under direct on-site supervision, until they pass the examination.

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.

2VAC20-51-60. 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 2VAC20-51-20 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 commercial applicator. One 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 commercial applicator. One 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 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

2VAC20-51-70. 2VAC5-685-70. Categories for commercial applicator certification.

A. Commercial applicators must be certified in one or more of the following commercial applicator categories or subcategories:

1. Agricultural pest control.

a. Agricultural plant pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in production of agricultural crops, or on grasslands, or noncrop agricultural lands.

b. Agricultural animal pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides on agriculturally related animals.

c. Fumigation of soil and agricultural products. This subcategory is for commercial applicators who will be using or supervising the use of pesticides for soil fumigation in production of an agricultural commodity and the application of pesticides for fumigation of agricultural products. Certification in this subcategory requires concurrent certification in the agricultural plant pest control category.

d. Chemigation. This subcategory is for commercial applicators who will be using or supervising the use of pesticides through an irrigation system. Certification in this subcategory requires concurrent certification in the agricultural plant pest control category.

2. Forest pest control. This category is for commercial applicators who will be using or supervising the use of pesticides in forests, forest nurseries, and seed orchards.

3. Ornamental and turf pest control.

a. Ornamental pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in the maintenance and production of ornamental trees, shrubs, and flowers in and out-of-doors.

b. Turf pest control. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in the production and maintenance of turf, including, but not limited to, turf in golf courses, residential lawns, parks, and cemeteries.

4. Seed treatment (excluding fumigation). This category is for commercial applicators who will be using or supervising the use of pesticides on seeds.

5. Aquatic pest control.

a. Aquatic pest control - general. This subcategory is for commercial applicators who will be using or supervising the use of pesticides in or on standing or running water, for the express purpose of controlling pests. This excludes applicators engaged in public health related activities included in subdivision 8 of this subsection, public health pest control.

b. Marine antifoulant paints. This subcategory is for commercial applicators who will be using or supervising the use of marine antifoulant paints containing tributyltin or other restricted use pesticides.

6. Right-of-way pest control. This category is for commercial applicators who will be using or supervising the use of pesticides in the maintenance of public rights-of-way and in the maintenance of fence lines, structural perimeters or other similar areas.

7. Industrial, institutional, structural, and health-related pest control.

a. General pest control (excluding fumigation). This subcategory is for commercial applicators who will be using or supervising the use of pesticides to control household type pests, pests that inhabit or infest structures, stored products, and residential food preparation areas, and pests capable of infesting or contaminating foods and foodstuffs at any stage of processing facilities.

b. Wood-destroying pest control (excluding fumigation). This subcategory is for commercial applicators who will be using or supervising the use of pesticides to control organisms that destroy structures made of wood.

c. Fumigation. This subcategory is for commercial applicators who will be using or supervising the use of fumigant-type pesticides.

d. Vertebrate pest control (excluding structural invaders). This subcategory is for commercial applicators who will be using or supervising the use of pesticides to control vertebrate pest animals.

e. Sewer root pest control. This subcategory is for commercial applicators who use pesticides for sewer line root control.

8. Public health pest control. This category is for commercial applicators who will be using or supervising the use of pesticides for the management and control of pests having medical and public health significance.

9. Regulatory pest control. This category is for federal, state, and local governmental employee applicators who will be using or supervising the use of pesticides in the control of regulated pests.

10. Demonstration and research pest control. This category is for commercial applicators who will be demonstrating the proper use and techniques of application of pesticides (including classroom demonstration), or who will be supervising such demonstration. It also includes applicators who will be conducting pesticide research on greenhouse or field plots.

11. Aerial pesticide application. This category is for commercial applicators who will be using or supervising the use of any pesticide applied by fixed- or rotary-wing aircraft.

12. Wood preservation and wood product treatment. This category is for commercial applicators who will be using or supervising the use of pesticides at treating plants and sawmills for preservative treatment of wood and wood products.

13. Miscellaneous. This category is to be used to designate categories or subcategories of commercial applicators using specific pesticides or uses for which the U.S. EPA may mandate certification in order to allow for the pesticide or use.

B. A commercial applicator certified in one category and seeking initial certification in one or more additional categories shall meet the certification requirements of each of the new categories in which he desires certification.

2VAC20-51-80. 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.

Part IV
Knowledge Required for Certification of Pesticide Applicators

2VAC20-51-90. 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, 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 and drinking water contamination, and hazard to endangered species; and

7. Recognizing common pests and general pest biology.

2VAC20-51-100. 2VAC5-685-100. Specific knowledge required for the categories of commercial applicators.

Applicants for commercial applicator certification shall possess the skills and knowledge associated with the chosen category(s) as they pertain to those items listed in 2VAC20-51-90 2VAC5-685-90 B 1 through 6, including recognizing category specific pests and their biology as contained in the appropriate Virginia category specific training manual(s).

2VAC20-51-110. 2VAC5-685-110. Specific knowledge required for the categories of private applicators.

Applicants for private applicator certification shall possess the skills and knowledge associated with the chosen category(s) as they pertain to those items listed in 2VAC20-51-90 2VAC5-685-90 B 1 through 6, including recognizing category specific pests and their biology as contained in a Virginia category specific certification training manual(s).

2VAC20-51-120. 2VAC5-685-120. Specific knowledge required for registered technicians.

In addition to the skills and knowledge required in 2VAC20-51-90 2VAC5-685-90 B 1 through 6, the applicant shall obtain the required amount of on-the-job training as discussed in 2VAC20-51-50 2VAC5-685-50.

Part V
Renewal of Certification and Certificates

2VAC20-51-130. 2VAC5-685-130. Renewal of certification.

A. Any certified pesticide 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 must first attend board-approved recertification course(s) 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, 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 may accumulate up to four years of credit by attending board-approved recertification courses.

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

2VAC20-51-140. 2VAC5-685-140. Reexamination.

Reexamination or special examination will be required by the board of any commercial applicator or registered technician under the following circumstances:

1. Certificate has been suspended or revoked;

2. Significant technological advances have occurred in the category or subcategory for which the applicator or registered technician has been certified, requiring additional knowledge;

3. Additional standards established by the EPA require reexamination;

4. Commercial applicator or registered technician desires certification in an additional category; or

5. Regulations require reexamination.

Part VI
Suspension and Revocation of Certificates

2VAC20-51-150. 2VAC5-685-150. Summary suspension by commissioner.

A. The commissioner may summarily suspend the certificate of any person without a hearing if he finds there is any substantial danger, or threat of substantial danger, to the public health, safety, or environment which warrants the summary suspension. The commissioner shall schedule a hearing for a date not exceeding five working days after the date of the summary suspension.

B. No person whose certificate has been suspended may engage in the activity for which he had been certified.

2VAC20-51-160. 2VAC5-685-160. Revocation of certificate by the board.

A. The board may, after opportunity for a hearing, deny, suspend, revoke or modify a certificate upon any violation of any act set out in § 3.2-3940 B of the Code of Virginia.

B. If the board imposes a civil penalty upon a person and such civil penalty is not paid within 60 days thereof, the certificate of such person shall automatically be suspended until payment in full is made. If the person appeals the board's order imposing the civil penalty, then the person may forward the proposed amount of the civil penalty to the commissioner's office for placement in an interest-bearing trust account in the State Treasurer's office. Upon such an amount being held, the suspension shall not be imposed or shall be lifted, as the case may be. This provision relates only to a suspension caused by a failure to pay the civil penalty and does not affect any suspension or revocation of a certificate for any other reason.

Part VII
Reporting of Pesticide Accidents, Incidents, or Loss

2VAC20-51-170. 2VAC5-685-170. Reporting of pesticide accidents and incidents.

A. 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 shall contact the department for guidance to determine whether the discharged or spilled amount is a reportable quantity.

C. The applicator 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 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

2VAC20-51-180. 2VAC5-685-180. Issuance of a certificate on a reciprocal basis.

A. A person who is 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 § 3.1-249.57 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 14.1 (§ 3.1-249.27 et seq.) of Title 3.1 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.

2VAC20-51-190. 2VAC5-685-190. Reciprocal recertification.

Reciprocal recertification shall be granted to out-of-state applicators if they: (i) maintain certification in their home state; (ii) provide proof of current certification to the commissioner prior to the date of Virginia certification expiration; (iii) are currently certified in a state that grants reciprocal recertification to Virginia applicators in like categories; and (iv) have met all other Virginia requirements for recertification.

Part IX
Recordkeeping

2VAC20-51-200. 2VAC5-685-200. General recordkeeping requirements for commercial applicators not for hire and registered technicians not for hire.

A. Commercial applicators not for hire and registered technicians not for hire, being exempt from the pesticide business license requirement of the board and the recordkeeping requirements under this license, are required to maintain pesticide application records as prescribed in this chapter. These records shall be maintained by the commercial applicator not for hire and the registered technician not for hire for a period of two years.

B. Records governed by this regulation shall be made available for inspection by the commissioner, or his duly authorized agent, during normal business hours upon written request. Records not readily available shall be submitted to the commissioner within 72 hours, if so requested in writing.

C. Persons possessing records governed by this part shall fully comply with the requirements contained in 7 USC § 136f and regulations adopted pursuant thereto.

2VAC20-51-210. 2VAC5-685-210. Specific recordkeeping requirements for commercial applicators not for hire and registered technicians not for hire.

Commercial applicators not for hire and registered technicians not for hire shall maintain a record of each pesticide applied, containing the following:

1. Name of property owner, address or location, and, as applicable, phone number of the site of application;

2. Name and certification number (or certification number of the supervising certified applicator) of the person making the application;

3. Day, month, and year of application;

4. Type of plants, crops, animals, or sites treated and principal pests to be controlled;

5. Acreage, area, or number of plants or animals treated;

6. Brand name or common product name of pesticide used;

7. EPA registration number;

8. Amounts of pesticide concentrate and amount of diluent used, by weight or volume, in mixture applied; and

9. Type of application equipment used.

FORMS (2VAC20-51) (2VAC5-685)

Record of Required Additional Registered Technician Training (eff. 12/08).

Commercial Pesticide Applicator Certification Application - A, Form VDACS-07211 (eff. 11/01).

Pesticide Registered Technician Application Form VDACS-07212 (eff. 11/01).

Private Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination at Department of Motor Vehicles Customer Service Center (eff. 12/98).

Application for Reciprocal Pesticide Applicator Certificate, Form VDACS-07210 (eff. 7/00).

Power of Attorney (not dated).

Commercial Pesticide Applicator Request for Authorization to Take Pesticide Applicator Examination - B, Form VDACS-07218 (eff. 11/01).

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 (eff. 1/09).

Commercial Pesticide Applicator Certification Exam bubble answer sheet, 2003.

Private Pesticide Applicator Certification Exam bubble answer sheet, 2003.

Virginia Registered Technician Certification Examination Answer Sheet (eff. 2/98).

Not-For-Hire Virginia Registered Technician Certification Examination Answer Sheet (eff. 2/98)

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 (not dated).

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).

Title of Regulation: 2VAC20-11. Public Participation Guidelines (repealing 2VAC20-11-10 through 2VAC20-11-110).

Statutory Authority: §§ 2.2-4007.02 and 3.2-3906 of the Code of Virginia.

Effective Date: October 10, 2012.

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

Summary:

Chapters 803 and 835 of the 2012 Acts of Assembly abolished the Pesticide Control Board and transferred its duties to the Board of Agriculture and Consumer Services. This action repeals 20VAC20-11, which contains the board's public participation guidelines.

Title of Regulation: 3VAC5-70. Other Provisions (adding 3VAC5-70-240).

Statutory Authority: §§ 4.1-103, 4.1-111, and 4.1-227 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 10, 2012.

Effective Date: November 4, 2012.

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

Basis: Section 4.1-209.1 F of the Code of Virginia provides that "the Board shall develop regulations pursuant to which fulfillment warehouses may apply for approval to provide storage, packaging, and shipping services to holders of licenses issued pursuant to this section. Such regulations shall include provisions that require (i) the fulfillment warehouse to demonstrate that it is appropriately licensed for the services to be provided by the state in which its place of business is located, (ii) the Board-approved fulfillment warehouse to maintain such records and to submit to the Board such information as the Board may prescribe, and (iii) the fulfillment warehouse and each wine or beer shipper licensed under this section to whom services are provided to enter into a contract designating the fulfillment warehouse as the agent of the shipper for purposes of complying with the provisions of this section."

Section 4.1-209.1 G of the Code of Virginia provides that "the Board shall develop regulations pursuant to which marketing portals may apply for approval to provide marketing services to holders of licenses issued pursuant to this section. Such regulations shall include provisions that require (i) the marketing portal to demonstrate that it is appropriately organized as an agricultural cooperative association and licensed for the services to be provided by the state in which its place of business is located, (ii) the Board-approved marketing portal to maintain such records and to submit to the Board such information as the Board may prescribe, and (iii) the marketing portal and each wine or beer shipper licensed under this section to whom services are provided to enter into a contract designating the marketing portal as the agent of the shipper for purposes of complying with the provisions of this section."

Purpose: Since 2003, Virginia has allowed the direct shipment of limited quantities of wine and beer to consumers in the Commonwealth by licensed shippers. These shippers have indicated a desire to use third-party service providers to facilitate such sales and shipments to consumers. "Marketing portals" are third-party companies that solicit and accept orders for alcoholic beverages and accept and process payment for such orders. For example, a marketing portal might be a website that allows consumers to place orders for wine. The website operator forwards the order and payment to the winery, which ships the product to the consumer under its shipper's license. "Fulfillment warehouses" are third-party facilities that provide logistic services to producers. They warehouse the winery's product and provide picking, packing, and shipping services at the winery's direction. Amendments to §§ 4.1-209 and 4.1-209.1 of the Code of Virginia adopted by the 2010 General Assembly make such arrangements legal in Virginia and require this regulatory action. This regulation, coupled with the existing regulation of direct shippers, is necessary to protect the health, safety, and welfare of citizens, to ensure that only licensed shippers are shipping approved products on which the appropriate taxes have been paid.

Rationale for Using Fast-Track Process: This rulemaking is expected to be noncontroversial. It tracks the requirements of the statute, with minimal recordkeeping requirements. The provisions of the proposed regulation impose no more burden than the minimum required by the enabling legislation.

Substance: This action creates a new section providing the procedure for a marketing portal or fulfillment warehouse to apply for approval to provide services to a Virginia-licensed wine or beer shipper. An applicant for approval would be required to establish that it met the minimum statutory requirements. Approved fulfillment warehouses, which ship wine or beer on behalf of a licensed shipper, would be required to maintain records of shipping transactions.

Issues: There are no disadvantages to the public or the Commonwealth. The primary advantage to the public and to the agency is an orderly marketplace in which the legally drinking public is able to obtain the products it desires with reasonable certainty that products are genuine and that appropriate taxes have been paid.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Chapters 317 and 561 of the 2010 Acts of Assembly create fulfillment warehouse licenses which are licenses that authorize agricultural cooperative associations operating in the Commonwealth to solicit and receive orders, and pack or ship wine or beer. In addition, the bill permits the formation of marketing portals which would allow authorized agricultural cooperative associations to solicit and receive orders for wine or beer from individuals located in Virginia through the use of the internet. The marketing portals would function on behalf of wine or beer shipper licensees.

Pursuant to Chapters 317 and 561 of the 2010 Acts of Assembly the Alcoholic Beverage Control Board (Board) proposes to add a new section to these regulations, 3VAC5-70-240, providing the application process for marketing portals or fulfillment warehouses as defined in § 4.1-209.1 of the Code of Virginia to seek approval to provide services to holders of wine or beer shippers license. The new section will require marketing portals to demonstrate that they are appropriately organized as an agricultural cooperative. It will require both marketing portals and fulfillment warehouses to demonstrate that they are licensed by the state in which they are located to provide the intended services. Both will be required to enter into a written contract with the wine or beer shipper to which services are to be rendered, designating the marketing portal or fulfillment warehouse as the agent of the shipper for the purposes of complying with applicable regulations and statutes. Approved fulfillment warehouses will be required to maintain certain shipment records.

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

Estimated Economic Impact. Since 2003, Virginia has allowed the direct shipment of limited quantities of wine and beer to consumers in the Commonwealth by licensed shippers. These shippers have indicated a desire to use third-party service providers to facilitate such sales and shipments to consumers. "Marketing portals" are third-party companies which solicit and accept orders for alcoholic beverages and accept and process payment for such orders. For example, a marketing portal might be a website that allows consumers to place orders for wine. The website operator forwards the order and payment to the winery, which ships the product to the consumer under its shipper's license. "Fulfillment warehouses" are third-party facilities that provide logistic services to producers. They warehouse the winery's product, and provide picking, packing, and shipping services at the winery's direction. Amendments to §§ 4.1-209 and 4.1-209.1 of the Code of Virginia adopted by the 2010 General Assembly make such arrangements legal in Virginia, and require the board's proposed regulatory action. This regulation, coupled with the existing regulation of direct shippers, is necessary to protect the health, safety, and welfare of citizens, to ensure that only licensed shippers are shipping approved products on which the appropriate taxes have been paid.

The Department of Alcoholic Beverage Control (Department) is not aware of any current marketing portals in Virginia. Since prior to July 1, 2010 such activities have been illegal, and the Department has not been approached by any agricultural cooperative; though the Department has heard that Virginia wineries are considering setting up a cooperative, which might attempt to offer both marketing and warehouse services. The marketing portal would have to show proof of its status as an agricultural coop, since that status is statutorily required to qualify to conduct such business in Virginia, and the warehouse would have to maintain records of shipments (the marketing portal would not, since it never touches the wine). The other requirements would be the same. The use of fulfillment warehouses may allow manufacturers and retailers to reduce expenses by sharing logistical services. The use of marketing portals could increase sales for direct shippers of wine and beer.

Businesses and Entities Affected. The Department anticipates that Virginia wineries will likely set up a cooperative, which might attempt to offer both marketing and warehouse services. The Department is not currently aware of any other entities which are likely to seek fulfillment warehouse licenses.

Localities Particularly Affected. The proposed amendments could affect all localities, but may particularly affect localities with wineries.

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The use of fulfillment warehouses may allow manufacturers and retailers to reduce expenses by sharing logistical services. The use of marketing portals could increase sales for direct shippers of wine and beer.

Small Businesses: Costs and Other Effects. The proposed amendments will not increase costs for small businesses.

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

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

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

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

Summary:

This action promulgates a new section, 3VAC5-70-240, providing the application process for marketing portals or fulfillment warehouses, as defined in § 4.1-209.1 of the Code of Virginia, to seek approval to provide services to holders of wine or beer shippers licenses. The new section requires marketing portals to demonstrate that they are appropriately organized as an agricultural cooperative. Both marketing portals and fulfillment warehouses are required to demonstrate that they are licensed by the state in which they are located to provide the intended services. Both are required to enter into a written contract with the wine or beer shipper to which services are to be rendered, designating the marketing portal or fulfillment warehouse as the agent of the shipper for the purposes of complying with applicable regulations and statutes. Approved fulfillment warehouses will be required to maintain certain shipment records.

3VAC5-70-240. Marketing portal and fulfillment warehouse approval process.

A. Any holder of a wine or beer shipper's license wishing to use the services of a marketing portal or fulfillment warehouse, as defined in § 4.1-209.1 of the Code of Virginia, must use an approved marketing portal or fulfillment warehouse. Marketing portals or fulfillment warehouses licensed to perform such services by the state in which they are located may apply for approval to provide such services to holders of Virginia wine or beer shipper's licenses by letter to the Supervisor, Tax Management Section, Virginia Department of Alcoholic Beverage Control, requesting such approval. Each applicant shall submit as attachments copies of all licenses issued by the state in which its place of business is located that authorize the provision of the services to be provided. A marketing portal shall submit as attachments copies of documents showing that it is properly organized as an agricultural cooperative in the state where it is located. The board may refuse, suspend, or revoke approval if it shall have reasonable cause to believe that a marketing portal or fulfillment warehouse is not licensed to provide such services by its home state, that it has failed to comply with the regulations of the board, or that a cause exists with respect to the marketing portal or fulfillment warehouse that would authorize the board to refuse, suspend, or revoke a license pursuant to § 4.1-100 et seq. of Title 4.1 of the Code of Virginia. Before refusing, suspending, or revoking such approval, the board shall follow the same administrative procedures accorded an applicant or licensee under § 4.1-100 et seq. of Title 4.1 of the Code of Virginia and regulations of the board.

B. Any approved marketing portal or fulfillment warehouse shall, prior to performing services for a wine or beer shipper's licensee, enter into a written contract. The contract must designate the marketing portal or fulfillment warehouse as the agent of the shipper for the purposes of complying with the provisions of this regulation and §§ 4.1-209 and 4.1-209.1 of the Code of Virginia. A copy of each such contract shall be submitted by the marketing portal or fulfillment warehouse to the Supervisor, Tax Management Section, Virginia Department of Alcoholic Beverage Control, prior to the commencement of services.

C. Approved fulfillment warehouses shall maintain for two years complete and accurate records of all shipments made on behalf of Virginia wine or beer shippers, including for each shipment:

1. Number of containers shipped;

2. Volume of each container shipped;

3. Brand of each container shipped; and

4. Names and addresses of recipients.

The records required by this subsection shall be made available for inspection and copying by any member of the board or its special agents upon request.

Title of Regulation: 9VAC20-90. Solid Waste Management Permit Action Fees and Annual Fees.

Contact Information: Melissa Porterfield, Department of Environmental Quality, 629 East Main Street, Richmond, VA 23219, email melissa.porterfield@deq.virginia.gov.

FORMS (9VAC20-90)

Solid Waste Information and Assessment Program - Reporting Table, DEQ Form 50-25 (rev. 12/11).

Instructions for Completing Form DEQ 50-25 (rev. 12/11).

Solid Waste Annual Permit Fee Quarter Payment Form PF001 (rev. 7/11).

Solid Waste Annual Fee Quarter Payment Form PF001 (rev. 8/12).

Title of Regulation: 9VAC25-31. Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation.

Contact Information: Debra A. Miller, Policy Planning Specialist, Department of Environmental Quality, 629 East Main Street, Richmond, VA 23219, telephone (804) 698-4209, FAX (804) 698-4346, or email debra.miller@deq.virginia.gov.

FORMS (9VAC25-31)

VPDES Sewage Sludge Permit Application Form (rev. 2000).

VPDES Sewage Sludge Permit Application for Permit Reissuance (eff. 8/12).

Instructions for VPDES Sewage Sludge Permit Application Form (rev. 2000).

Application Form 1 - General Information, Consolidated Permits Program, EPA Form 3510-1 (rev. 8/90).

Virginia State Water Control Board Fish Farm Questionnaire (rev. 4/11).

Application Form 2A - NPDES Form 2A Application for Permit to Discharge Municipal Wastewater, EPA Form 3510-2A (eff. 1/99).

Form 2B NPDES, Applications for Permit to Discharge Wastewater Concentrated Animal Feeding Operations and Aquatic Animal Production Facilities, EPA Form 3510-2B (rev. 11/08).

Application Form 2C - Wastewater Discharge Information, Consolidated Permits Program, EPA Form 3510-2C (rev. 8/90).

Application Form 2D - New Sources and New Dischargers: Application for Permit to Discharge Process Wastewater, EPA Form 3510-2D (rev. 8/90).

Application Form 2E - Facilities Which Do Not Discharge Process Wastewater, EPA Form 3510-2E (rev. 8/90).

Form 2F NPDES, Application for Permit to Discharge Stormwater, Discharges Associated with Industrial Activity, EPA Form 3510-2F (rev. 1/92).

Local Government Ordinance Form (eff. 2000).

Local Government Certification Form for New Municipal Solid Waste Landfill Permits (eff. 2006).

Title of Regulation: 12VAC5-31. Virginia Emergency Medical Services Regulations (amending 12VAC5-31-10, 12VAC5-31-20, 12VAC5-31-50, 12VAC5-31-60, 12VAC5-31-80, 12VAC5-31-90, 12VAC5-31-100, 12VAC5-31-120, 12VAC5-31-160, 12VAC5-31-170, 12VAC5-31-180, 12VAC5-31-200 through 12VAC5-31-240, 12VAC5-31-290, 12VAC5-31-330, 12VAC5-31-370 through 12VAC5-31-400, 12VAC5-31-420, 12VAC5-31-430, 12VAC5-31-460, 12VAC5-31-480, 12VAC5-31-500 through 12VAC5-31-540, 12VAC5-31-560, 12VAC5-31-570, 12VAC5-31-590, 12VAC5-31-650, 12VAC5-31-700, 12VAC5-31-710, 12VAC5-31-750, 12VAC5-31-760, 12VAC5-31-770, 12VAC5-31-790, 12VAC5-31-800 through 12VAC5-31-830, 12VAC5-31-860 through 12VAC5-31-910, 12VAC5-31-950, 12VAC5-31-960, 12VAC5-31-1010, 12VAC5-31-1030, 12VAC5-31-1040, 12VAC5-31-1140, 12VAC5-31-1210, 12VAC5-31-1250, 12VAC5-31-1260, 12VAC5-31-1270, 12VAC5-31-1810 through 12VAC5-31-1860, 12VAC5-31-1880, 12VAC5-31-1890, 12VAC5-31-1950, 12VAC5-31-2330, 12VAC5-31-2570, 12VAC5-31-2740; adding 12VAC5-31-610, 12VAC5-31-875, 12VAC5-31-885, 12VAC5-31-940, 12VAC5-31-970, 12VAC5-31-1050, 12VAC5-31-1165, 12VAC5-31-1305 through 12VAC5-31-1615; repealing 12VAC5-31-840, 12VAC5-31-1060, 12VAC5-31-1280, 12VAC5-31-1290, 12VAC5-31-1300, 12VAC5-31-1310 through 12VAC5-31-1710).

Statutory Authority: § 32.1-111.4 of the Code of Virginia.

Effective Date: October 10, 2012.

Agency Contact: Michael Berg, Regulatory and Compliance Manager, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7615, or email michael.berg@vdh.virginia.gov.

Summary:

The provision of emergency medical services (EMS) is a dynamic process that continually changes due to advances in science, technology, legislation, federal mandates, evidence-based practices, and other factors. The proposed revisions incorporate changes in terminology, testing practices, enforcement, agency responsibilities, certification levels, reporting requirements, and training and EMS physician requirements. Additional proposed changes include adding civil penalties to the enforcement provisions, allowing localities to develop their own emergency response agency standards, requiring a National Crime Information Center background check on affiliated EMS personnel, increasing the required supply count of triage tags, and removing the prohibition on firearms, weapons, and explosives.

Changes from the proposed stage to the final stage of the regulation (i) incorporate changes in terminology to align with the National Scope of Practice terminology, the Code of Virginia, and new national levels of certification; (ii) combine two distinct instructional levels into one standard educational instructional level; (iv) add the ability to determine if an agency applicant is a benefit or has a direct impact on the delivery of EMS, and (iv) remove duplicative language.

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
General Provisions

Article 1
Definitions

12VAC5-31-10. Definitions.

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

"Abandonment" means the termination of a health care provider-patient relationship without assurance that an equal or higher level of care meeting the assessed needs of the patient's condition is present and available.

"Accreditation" means approval granted to an entity by the Office of Emergency Medical Services (EMS) after the institution has met specific requirements enabling the institution to conduct basic or advanced life support training and education programs. There are four levels of accreditation: interim, provisional, full, and probationary.

"Accreditation cycle" means the term or cycle at the conclusion of which accreditation expires unless a full self-study is performed. Accreditation cycles are typically quinquennial (five-year) but these terms may be shorter, triennial (three-year) or biennial (two-year), if the Office of EMS deems it necessary.

"Accreditation date" means the date of the accreditation decision that is awarded to an entity following its full site visit and review.

"Accreditation decision" means the conclusion reached about an entity status after evaluation of the results of the onsite survey, recommendations of the site review team, and any other relevant information such as documentation of compliance with standards, documentation of plans to correct deficiencies, or evidence of recent improvements.

"Accreditation denied" means an accreditation decision that results when an entity has been denied accreditation. This accreditation decision becomes effective only when all available appeal procedures have been exhausted.

"Acute" means a medical condition having a rapid onset and a short duration.

"Acute care hospital" means any hospital that provides emergency medical services on a 24-hour basis.

"Administrative Process Act" or "APA" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Advanced life support" or "ALS" means the application provision of care by EMS personnel of invasive and noninvasive medical procedures or the administration of medications that is authorized by the Office of Emergency Medical Services, or both who are certified as an Emergency Medical Technician (EMT) - Enhanced, Advanced EMT, [ EMT-Intermediate Intermediate, ] or [ EMT-Paramedic Paramedic ] or equivalent as approved by the Board of Health.

Advanced life support in the air medical environment is a mission generally defined as the transport of a patient who receives care during a transport that includes an invasive medical procedure or the administration of medications, including IV infusions, in addition to any noninvasive care that is authorized by the Office of EMS.

"Advanced life support certification course" means a training program that allows a student to become eligible for a new ALS certification level. Programs must meet the educational requirements established by the Office of EMS as defined by the respective advanced life support curriculum. Initial certification courses include:

1. Emergency Medical Technician-Enhanced;

2. Advanced EMT;

3. Advanced EMT to [ EMT Paramedic Intermediate ] Bridge;

2. 4. EMT-Enhanced to [ EMT-Intermediate Intermediate ] Bridge;

3. 5. [ Emergency Medical Technician-Intermediate Intermediate ];

4. 6. [ EMT-Intermediate Intermediate ] to [ EMT-Paramedic Paramedic ] Bridge;

5. 7. [ Emergency Medical Technician-Paramedic Paramedic ];

6. 8. Registered Nurse to [ EMT-Paramedic Paramedic ] Bridge; and

7. 9. Other programs approved by the Office of EMS.

"Advanced life support (ALS) coordinator" means a person who has met the criteria established by the Office of EMS to assume responsibility for conducting ALS training programs.

"Advanced life support transport" means the transportation of a patient who is receiving ALS level care.

"Affiliated" means a person who is employed by or a member of an EMS agency.

"Air medical specialist" means a person trained in the concept of flight physiology and the effects of flight on patients through documented completion of a program approved by the Office of EMS. This training must include but is not limited to aerodynamics, weather, communications, safety around aircraft/ambulances, scene safety, landing zone operations, flight physiology, equipment/aircraft familiarization, basic flight navigation, flight documentation, and survival training specific to service area.

"Ambulance" means (as defined by § 32.1-111.1 of the Code of Virginia) any vehicle, vessel or craft that holds a valid permit issued by the Office of EMS and that is specially constructed, equipped, maintained and operated, and intended to be used for emergency medical care and the transportation of patients who are sick, injured, wounded, or otherwise incapacitated or helpless. The word "ambulance" may not appear on any vehicle, vessel or aircraft that does not hold a valid EMS vehicle permit.

"Approved locking device" means a mechanism that prevents removal or opening of a medication drug kit by means other than securing the medication drug kit by the handle only.

"Assistant director" means the Assistant Director of the Office of Emergency Medical Services.

"Attendant-in-charge" or "AIC" means the certified or licensed person who is qualified and designated to be primarily responsible for the provision of emergency medical care.

"Attendant" means a certified or licensed person qualified to assist in the provision of emergency medical care.

"Basic life support" or "BLS" means the application provision of care by EMS personnel of invasive and noninvasive medical procedures or administration of medications that is authorized by the Office of EMS who are certified as First Responder, Emergency Medical Responder (EMR), or Emergency Medical Technician or equivalent as approved by the Board of Health.

Basic life support in the air medical environment means a mission generally defined as the transport of a patient who receives care during a transport that is commensurate with the scope of practice of an EMT. In the Commonwealth of Virginia care that is provided in the air medical environment must be assumed at a minimum by a Virginia certified [ EMT-Paramedic Paramedic ] who is a part of the regular air medical crew. (fixed wing excluded)

"BLS certification course" means a training program that allows a student to become eligible for a new BLS certification level. Programs must meet the educational requirements established by the Office of EMS as defined by the respective basic life support curriculum. Initial certification courses include:

1. EMS First Responder;

2. EMS First Responder Bridge to EMT;

3. Emergency Medical Responder;

4. Emergency Medical Responder Bridge to EMT;

3. 5. Emergency Medical Technician; and

4. 6. Other programs approved by the Office of EMS.

"Board" or "state board" means the State Board of Health.

"Bypass" means to transport a patient past a commonly used medical care facility to another hospital for accessing a more readily available or appropriate level of medical care.

[ "Candidate" means any person who is enrolled in or is taking a course leading toward initial certification. ]

"Candidate status" means the status awarded to a program that has made application to the Office of EMS for accreditation but that is not yet accredited.

"CDC" means the United States Centers for Disease Control and Prevention.

"Certification" means a credential issued by the Office of EMS for a specified period of time to a person who has successfully completed an approved training program.

"Certification candidate" means a person seeking EMS certification from the Office of EMS.

"Certification candidate status" means any candidate or provider who becomes eligible for certification testing but who has not yet taken the certification test using that eligibility.

"Certification examiner" means an individual designated by the Office of EMS to administer a state certification examination.

"Certification transfer" means the issuance of certification through reciprocity, legal recognition, challenge or equivalency based on prior training, certification or licensure.

"Chief executive officer" means the person authorized or designated by the agency or service as the highest in administrative rank or authority.

"Chief operations officer" means the person authorized or designated by the agency or service as the highest operational officer.

"Commercial mobile radio service" or "CMRS" as defined in §§ 3 (27) and 332 (d) of the Federal Telecommunications Act of 1996, 47 USC § 151 et seq., and the Omnibus Budget Reconciliation Act of 1993, Public Law 103-66, 107 USC § 312. It includes the term "wireless" and service provided by any wireless real time two-way voice communication device, including radio-telephone communications used in cellular telephone service or personal communications service (e.g., cellular telephone, 800/900 MHz Specialized Mobile Radio, Personal Communications Service, etc.).

"Commissioner" means the State Health Commissioner, the commissioner's duly authorized representative, or in the event of the commissioner's absence or a vacancy in the office of State Health Commissioner, the Acting Commissioner or Deputy Commissioner.

"Continuing education" or "CE" means an instructional program that enhances a particular area of knowledge or skills beyond compulsory or required initial training.

"Course" means a basic or advanced life support training program leading to certification or award of continuing education credit hours.

[ "Course coordinator" means the person identified on the course approval request as the coordinator who is responsible with the physician course director for all aspects of the program including but not limited to assuring adherence to the rules and regulations, office polices, and any contract components. ]

"Critical care" or "CC" in the air medical environment is a mission defined as an interfacility transport of a critically ill or injured patient whose condition warrants care commensurate with the scope of practice of a physician or registered nurse.

"Critical criteria" means an identified essential element of a state practical certification examination that must be properly performed to successfully pass the station.

"Defibrillation" means the discharge of an electrical current through a patient's heart for the purpose of restoring a perfusing cardiac rhythm. For the purpose of these regulations, defibrillation includes cardioversion.

"Defibrillator -- automated external" or "AED" means an automatic or semi-automatic device, or both, capable of rhythm analysis and defibrillation after electronically detecting the presence of ventricular fibrillation and ventricular tachycardia, approved by the United States Food and Drug Administration.

"Defibrillator -- combination unit" means a single device designed to incorporate all of the required capabilities of both an Automated External Defibrillator and a Manual Defibrillator.

"Defibrillator -- manual" means a monitor/defibrillator that has no capability for rhythm analysis and will charge and deliver a shock only at the command of the operator. For the purpose of compliance with these regulations, a manual defibrillator must be capable of synchronized cardioversion and noninvasive external pacing. A manual defibrillator must be approved by the United States Food and Drug Administration.

"Designated infection control officer" means a liaison between the medical facility treating the source patient and the exposed employee. This person has been formally trained for this position and is knowledgeable in proper post exposure medical follow up procedures and current regulations and laws governing disease transmission.

"Designated emergency response agency" means an EMS agency recognized by an ordinance or a resolution of the governing body of any county, city or town as an integral part of the official public safety program of the county, city or town with a responsibility for providing emergency medical response.

"Director" means the Director of the Office of Emergency Medical Services.

"Diversion" means a change in the normal or established pattern of patient transport at the direction of a medical care facility.

"Emergency medical services" or "EMS" means the services used in responding to an individual's perceived needs for immediate medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury including any or all of the services that could be described as first response, basic life support, advanced life support, neonatal life support, communications, training and medical control.

"EMS Advisory Board" means the Emergency Medical Services Advisory Board as appointed by the Governor.

"EMS education coordinator" means any EMS provider, registered nurse, physician assistant, doctor of osteopathic medicine, or doctor of medicine who possesses Virginia certification as an EMS education coordinator. Such certification does not confer authorization to practice EMS.

"Emergency medical services agency" or "EMS agency" means a person licensed by the Office of EMS to engage in the business, service, or regular activity, whether or not for profit, of transporting or rendering immediate medical care to persons who are sick, injured, or otherwise incapacitated.

"EMS agency status report" means a report submitted on forms specified by the Office of EMS that documents the operational capabilities of an EMS agency including data on personnel, vehicles and other related resources.

"Emergency medical services communications plan" or "EMS communications plan" means the state plan for the coordination of electronic telecommunications by EMS agencies as approved by the Office of EMS.

"Emergency medical services personnel" or "EMS personnel" means a person, affiliated with an EMS agency, responsible for the provision of emergency medical services including any or all persons who could be described as an attendant, attendant-in-charge, operator or operational medical director.

"Emergency medical services physician" or "EMS physician" means a physician who holds current endorsement from the Office of EMS and may serve as an EMS agency operational medical director or training program physician course director.

"Emergency medical services provider" or "EMS provider" means a person who holds a valid certification issued by the Office of EMS.

"Emergency medical services system" or "EMS system" means a system that provides for the arrangement of personnel, facilities, equipment, and other system components for the effective and coordinated delivery of emergency medical services in an appropriate geographical area that may be local, regional, state or national.

"Emergency medical services vehicle" or "EMS vehicle" means any vehicle, vessel, aircraft, or ambulance that holds a valid emergency medical services vehicle permit issued by the Office of EMS that is equipped, maintained or operated to provide emergency medical care or transportation of patients who are sick, injured, wounded, or otherwise incapacitated or helpless.

"Emergency medical services vehicle permit" means an authorization issued by the Office of EMS for any vehicle, vessel or aircraft meeting the standards and criteria established by regulation for emergency medical services vehicles.

"Emergency medical technician instructor" means an EMS provider who holds a valid certification issued by the Office of EMS to announce and coordinate BLS programs.

"Emergency operations plan" means the Commonwealth of Virginia Emergency Operations Plan.

"Emergency vehicle operator's course" or "EVOC" means an approved course of instruction for EMS vehicle operators that includes safe driving skills, knowledge of the state motor vehicle code affecting emergency vehicles, and driving skills necessary for operation of emergency vehicles during response to an incident or transport of a patient to a health care facility. This course must include classroom and driving range skill instruction. An approved course of instruction includes the course objectives as identified within the U.S. Department of Transportation Emergency Vehicle Operator curriculum or as approved by OEMS.

"Exam series" means a sequence of opportunities to complete a certification examination with any allowed retest.

"FAA" means the U.S. Federal Aviation Administration.

[ "FAR" means Federal Aviation Regulations. ]

"FCC" means the U.S. Federal Communications Commission.

"Financial Assistance Review Committee" or "FARC" means the committee appointed by the EMS Advisory Board to administer the Rescue Squad Assistance Fund.

"Full accreditation" means an accreditation decision awarded to an entity that demonstrates satisfactory compliance with applicable Virginia standards in all performance areas.

"Fund" means the Virginia Rescue Squad Assistance Fund.

"Grant administrator" means the Office of EMS personnel directly responsible for administration of the Rescue Squad Assistance Fund program.

"Institutional self study" means a document whereby training programs seeking accreditation answer questions about their program for the purpose of determining their level of preparation to conduct initial EMS training programs.

"Instructor" means the teacher for a specific class or lesson of an EMS training program.

"Instructor aide" means providers certified at or above the level of instruction.

"Interfacility transport" in the air medical environment means as a mission for whom an admitted patient (or patients) was transported from a hospital or care giving facility (clinic, nursing home, etc) to a receiving facility or airport.

"Interim accreditation" means an accreditation decision that results when a previously unaccredited EMS entity has been granted approval to operate one training program, for a period not to exceed 120 days, during which its application is being considered and before a provisional or full accreditation is issued, providing the following conditions are satisfied: (i) a complete application for accreditation is received by the Office of EMS and (ii) a complete institutional self study is submitted to the Office of EMS. Students attending a program with interim accreditation will not be eligible to sit for state testing until the entity achieves official notification of accreditation at the provisional or full level.

"Invasive procedure" means a medical procedure that involves entry into the living body, as by incision or by insertion of an instrument.

"License" means an authorization issued by the Office of EMS to provide emergency medical services in the state as an EMS agency.

"Local EMS resource" means a person recognized by the Office of EMS to perform specified functions for a designated geographic area. This person may be designated to perform one or more of the functions otherwise provided by regional EMS councils.

"Local EMS response plan" means a written document that details the primary service area [ , the unit mobilization interval ] and responding interval standards as approved by the local government, and the operational medical director and the Office of EMS.

"Local governing body" or "governing body" means members of the governing body of a city, county, or town in the Commonwealth who are elected to that position or their designee.

"Major medical emergency" means an emergency that cannot be managed through the use of locally available emergency medical resources and that requires implementation of special procedures to ensure the best outcome for the greatest number of patients as determined by the EMS provider in charge or incident commander on the scene. This event includes local emergencies declared by the locality's government and states of emergency declared by the Governor.

[ "Medic" means an EMS provider certified at the level of ] EMT-Cardiac [ Advanced EMT, EMT-Intermediate or EMT-Paramedic. ]

"Medical care facility" means (as defined by § 32.1-123 § 32.1-102.1 of the Code of Virginia) any institution, place, building or agency, whether licensed or required to be licensed by the board or the [ State ] Mental Health, Mental Retardation and Substance Abuse Services [ Board Department ] of Behavioral Health and Developmental Services, whether operated for profit or nonprofit and whether privately owned or privately operated or owned or operated by a local governmental unit, by or in which health services are furnished, conducted, operated or offered for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, whether medical or surgical.

"Medical community" means the physicians and allied healthcare specialists located and available within a definable geographic area.

"Medical control" means the direction and advice provided through a communications device (on-line) to on-site and in-transit EMS personnel from a designated medical care facility staffed by appropriate personnel and operating under physician supervision.

"Medical direction" means the direction and supervision of EMS personnel by the Operational Medical Director of the EMS agency with which he is affiliated.

"Medical emergency" means the sudden onset of a medical condition that manifests itself by symptoms of sufficient severity, including severe pain, that the absence of immediate medical attention could reasonably be expected by a prudent layperson who possesses an average knowledge of health and medicine to result in (i) serious jeopardy to the mental or physical health of the individual, (ii) danger of serious impairment of the individual's bodily functions, (iii) serious dysfunction of any of the individual's bodily organs, or (iv) in the case of a pregnant woman, serious jeopardy to the health of the fetus.

"Medical practitioner" means a physician, dentist, podiatrist, licensed nurse practitioner, licensed physician's assistant, or other person licensed, registered or otherwise permitted to distribute, dispense, prescribe and administer, or conduct research with respect to, a controlled substance in the course of professional practice or research in this Commonwealth.

"Medical protocol" means preestablished written physician authorized procedures or guidelines for medical care of a specified clinical situation based on patient presentation.

"Mutual aid agreement" means a written document specifying a formal understanding to lend aid to an EMS agency.

"Neonatal life support" means a sophisticated and specialized level of out-of-hospital and interfacility emergency and stabilizing care that includes basic and advanced life support functions for the newborn or infant patient.

"Neonatal" or "neonate" means, for the purpose of interfacility transportation, any infant who is deemed a newborn within a hospital, has not been discharged since the birthing process, and is currently receiving medical care under a physician.

"Nonprofit" means without the intention of financial gain, advantage, or benefit as defined by federal tax law.

"OSHA" means the U.S. Occupational Safety and Health Administration or Virginia Occupational Safety and Health, the state agency designated to perform its functions in Virginia.

"Office of EMS" means the Office of Emergency Medical Services within the Virginia Department of Health.

"Operational medical director" or "OMD" means an EMS physician, currently licensed to practice medicine or osteopathic medicine in the Commonwealth, who is formally recognized and responsible for providing medical direction, oversight and quality improvement to an EMS agency and personnel.

"Operator" means a person qualified and designated to drive or pilot a specified class of permitted EMS vehicle.

"Patient" means a person who needs immediate medical attention or transport, or both, whose physical or mental condition is such that he is in danger of loss of life or health impairment, or who may be incapacitated or helpless as a result of physical or mental condition or a person who requires medical attention during transport from one medical care facility to another.

"Person" means (as defined in the Code of Virginia) any person, firm, partnership, association, corporation, company, or group of individuals acting together for a common purpose or organization of any kind, including any government agency other than an agency of the United States government.

"Physician" means an individual who holds a valid, unrestricted license to practice medicine or osteopathy in the Commonwealth.

"Physician assistant" means an individual who holds a valid, unrestricted license to practice as a Physician Assistant in the Commonwealth.

"Physician course director" or "PCD" means an EMS physician who is responsible for the clinical aspects of emergency medical care training programs, including the clinical and field actions of enrolled students.

"Prehospital patient care report" or "PPCR" means a document used to summarize the facts and events of an EMS incident and includes, but is not limited to, the type of medical emergency or nature of the call, the response time, the treatment provided and other minimum data items as prescribed by the board. "PPCR" includes any supplements, addenda, or other related attachments that document patient information or care provided.

Prehospital patient data report" or "PPDR" means a document designed to be optically scanned that may be used to report to the Office of EMS, the minimum patient care data items as prescribed by the board.

"Prehospital scene" means, in the air medical environment, the direct response to the scene of incident or injury, such as a roadway, etc.

[ "Prescriber" means a practitioner who is authorized pursuant to §§ 54.1-3303 and 54.1-3408 of the Code of Virginia to issue a prescription. ]

"Primary retest status" means any candidate or provider who failed his primary certification attempt. Primary retest status expires 90 days after the primary test date.

"Primary service area" means the specific geographic area designated or prescribed by a locality (county, city or town) in which an EMS agency provides prehospital emergency medical care or transportation. This designated or prescribed geographic area served must include all locations for which the EMS agency is principally dispatched (i.e., first due response agency).

"Private Mobile Radio Service" or "PMRS" as defined in § 20.3 of the Federal Communications Commission's Rules, 47 CFR 20.3. (For purposes of this definition, PMRS includes "industrial" and "public safety" radio services authorized under Part 90 of the Federal Communications Commission's Rules, 47 CFR 90.1 et seq., with the exception of certain for-profit commercial paging services and 800/900 MHz Specialized Mobile Radio Services that are interconnected to the public switched telephone network and are therefore classified as CMRS.)

"Probationary status" means the Office of EMS will place an institution on publicly disclosed probation when it has not completed a timely, thorough, and credible root cause analysis and action plan of any sentinel event occurring there. When the entity completes an acceptable root cause analysis and develops an acceptable action plan, the Office of EMS will remove the probation designation from the entity's accreditation status.

"Program site accreditation" means the verification that a training program has demonstrated the ability to meet criteria established by the Office of EMS to conduct basic or advanced life support certification courses.

"Provisional accreditation" means an accreditation decision that results when a previously unaccredited entity has demonstrated satisfactory compliance with a subset of standards during a preliminary on-site evaluation. This decision remains in effect for a period not to exceed 365 days, until one of the other official accreditation decision categories is assigned based upon an a follow-up site visit against all applicable standards.

"Public safety answering point" or "PSAP" means a facility equipped and staffed on a 24-hour basis to receive requests for emergency medical assistance for one or more EMS agencies.

"Quality management program" or "QM" means the continuous study of and improvement of an EMS agency or system including the collection of data, the identification of deficiencies through continuous evaluation, the education of personnel and the establishment of goals, policies and programs that improve patient outcomes in EMS systems.

"Reaccreditation date" means the date of the reaccreditation decision that is awarded to an entity following a full site visit and review.

"Recertification" means the process used by certified EMS personnel to maintain their training certifications.

"Reentry" means the process by which EMS personnel may regain a training certification that has lapsed within the last two years.

"Reentry status" means any candidate or provider whose certification has lapsed within the last two years.

"Regional EMS council" means an organization designated by the board that is authorized to receive and disburse public funds in compliance with established performance standards and whose function is to plan, develop, maintain, expand and improve an efficient and effective regional emergency medical services system within a designated geographical area pursuant to § 32.1-111.11 of the Code of Virginia.

"Regional trauma triage plan" means a formal written plan developed by a regional EMS council or local EMS resource and approved by the commissioner that incorporates the region's geographic variations, trauma care capabilities and resources for the triage of trauma patients pursuant to § 32.1-111.3 of the Code of Virginia.

"Registered nurse" means an individual who holds a valid, unrestricted license to practice as a registered nurse in the Commonwealth a person who is licensed or holds a multistate privilege under the provisions of Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia to practice professional nursing.

"Regulated medical device" means equipment or other items that may only be purchased or possessed upon the approval of a physician and that the manufacture or sale of which is regulated by the U.S. Food and Drug Administration (FDA).

"Regulated waste" means liquid or semi-liquid blood or other potentially infectious materials; contaminated items that would release blood or other potentially infectious materials in a liquid or semi-liquid state if compressed; items that are caked with dried blood or potentially infectious materials and are capable of releasing these materials during handling; items dripping with liquid product; contaminated sharps; pathological and microbiological waste containing blood or other potentially infectious materials.

"Regulations" means (as defined in the Code of Virginia) any statement of general application, having the force of law, affecting the rights or conduct of any person, promulgated by an authorized board or agency.

"Rescue" means a service that may include the search for lost persons, gaining access to persons trapped, extrication of persons from potentially dangerous situations and the rendering of other assistance to such persons.

"Rescue vehicle" means a vehicle, vessel or aircraft that is maintained and operated to assist with the location and removal of victims from a hazardous or life-threatening situation to areas of safety or treatment.

"Responding interval time" means the elapsed time in minutes between the "dispatch" time and the "arrive scene" time (i.e., when the wheels of the EMS vehicle stop) time a call for emergency medical services is received by the PSAP until the appropriate emergency medical response unit arrives on the scene.

"Responding interval time standard" means a time standard in minutes for the responding interval, established by the EMS agency, the locality and OMD, in which the EMS agency will comply with 90% or greater reliability.

"Response obligation to locality" means a requirement of a designated emergency response agency to lend aid to all other designated emergency response agencies within the locality or localities in which the EMS agency is based.

"Revocation" means the permanent removal of an EMS agency license, vehicle permit, training certification, ALS coordinator endorsement, EMS education coordinator, EMS physician endorsement or any other designation issued by the Office of EMS.

"Safety apparel" means personal protective safety clothing that is intended to provide conspicuity during both daytime and nighttime usage and that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107–2010 publication entitled "American National Standard for High-Visibility Safety Apparel and Headwear."

"Secondary certification status" means any candidate or provider who is no longer in primary retest status.

"Secondary retest status" means any candidate or provider who failed their secondary certification attempt. Secondary retest status expires 90 days after the secondary test date.

"Sentinel event" means any significant occurrence, action, or change in the operational status of the entity from the time when it either applied for candidate status or was accredited. The change in status can be based on but not limited to one or all of the events indicated below:

Entering into an agreement of sale of an accredited entity or an accreditation candidate.

Entering into an agreement to purchase or otherwise directly or indirectly acquire an accredited entity or accreditation candidate.

Financial impairment of an accredited entity or candidate for accreditation, which affects its operational performance or entity control.

Insolvency or bankruptcy filing.

Change in ownership or control greater than 25%.

Disruption of service to student body.

Discontinuance of classes or business operations.

Failure to report a change in program personnel, location, change in training level or Committee on Accreditation of Educational Programs for the Emergency Medical Services Professions (CoAEMSP) accreditation status.

Failure to meet minimum examination scores as established by the Office of EMS.

Loss of CoAEMSP or [ CAAHEEP Commission on Accreditation of Allied Health Education Programs (CAAHEP) ] accreditation.

Company fine or fines of greater than $100,000 for regulatory violation, marketing or advertising practices, antitrust, or tax disputes.

"Special conditions" means a notation placed upon an EMS agency or registration, variance or exemption documents that modifies or restricts specific requirements of these regulations.

"Specialized air medical training" means a course of instruction and continuing education in the concept of flight physiology and the effects of flight on patients that has been approved by the Office of EMS. This training must include but is not limited to aerodynamics, weather, communications, safety around aircraft/ambulances, scene safety, landing zone operations, flight physiology, equipment/aircraft familiarization, basic flight navigation, flight documentation, and survival training specific to service area.

"Specialty care mission" in the air medical environment means the transport of a patient requiring specialty patient care by one or more medical professionals who are added to the regularly scheduled medical transport team.

"Specialty care provider" in the air medical environment means a provider of specialized medical care, to include but not limited to neonatal, pediatric, and perinatal.

"Standard of care" means the established approach to the provision of basic and advanced medical care that is considered appropriate, prudent and in the best interests of patients within a geographic area as derived by consensus among the physicians responsible for the delivery and oversight of that care. The standard of care is dynamic with changes reflective of knowledge gained by research and practice.

"Standard operating procedure" or "SOP" means preestablished written agency authorized procedures and guidelines for activities performed by affiliated EMS agency.

"Supplemented transport" means an interfacility transport for which the sending physician has determined that the medically necessary care and equipment needs of a critically injured or ill patient is beyond the scope of practice of the available EMS personnel of the EMS agency.

"Suspension" means the temporary removal of an EMS agency license, vehicle permit, training certification, ALS coordinator endorsement, EMS education coordinator, EMS physician endorsement or any other designation issued by the Office of EMS.

"Test site coordinator" means an individual designated by the Office of EMS to coordinate the logistics of a state certification examination site.

"Training officer" means an individual who is responsible for the maintenance and completion of agency personnel training records and who acts as a liaison between the agency, the operational medical director, and a participant in the agency and regional quality assurance process.

"Trauma center" means a specialized hospital facility distinguished by the immediate availability of specialized surgeons, physician specialists, anesthesiologists, nurses, and resuscitation and life support equipment on a 24-hour basis to care for severely injured patients or those at risk for severe injury. In Virginia, trauma centers are designated by the Virginia Department of Health as Level I, II or III.

"Trauma center designation" means the formal recognition by the board of a hospital as a provider of specialized services to meet the needs of the severely injured patient. This usually involves a contractual relationship based on adherence to standards.

"Triage" means the process of sorting patients to establish treatment and transportation priorities according to severity of injury and medical need.

"Unit mobilization interval" means the elapsed time (in minutes) between the "dispatched" time of the EMS agency and the "responding" time (the wheels of the EMS vehicle start moving).

"Unit mobilization interval standard" means a time standard (in minutes) for the unit mobilization interval, established by a designated emergency response agency, the locality and OMD, in which the EMS agency will comply.

"USDOT" means the United States Department of Transportation.

"Vehicle operating weight" means the combined weight of the vehicle, vessel or craft, a full complement of fuel, and all required and optional equipment and supplies.

"Virginia Statewide Trauma Registry" or "Trauma Registry" means a collection of data on patients who receive hospital care for certain types of injuries. The collection and analysis of such data is primarily intended to evaluate the quality of trauma care and outcomes in individual institutions and trauma systems. The secondary purpose is to provide useful information for the surveillance of injury morbidity and mortality.

"Wheelchair" means a chair with wheels specifically designed and approved for the vehicular transportation of a person in an upright, seated (Fowler's) position.

Article 2
Purpose and Applicability

12VAC5-31-20. Responsibility for regulations; application of regulations.

A. These regulations shall be administered by the following:

1. State Board of Health. The Board of Health has the responsibility to promulgate, amend, and repeal, as appropriate, regulations for the provision of emergency medical services per Article 2.1 (§ 32.1-111.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia.

2. State Health Commissioner. The commissioner, as executive officer of the board, will administer these regulations per § 32.1-16 of the Code of Virginia.

3. The Virginia Office of EMS. The director, assistant director and specified staff positions will have designee privileges for the purpose of enforcing these regulations.

4. Emergency Medical Services Advisory Board. The EMS Advisory Board has the responsibility to review and advise the board regarding EMS policies and programs.

B. These regulations have general application throughout Virginia to include:

1. No person may establish, operate, maintain, advertise or represent themselves, any service or any organization as an EMS agency or as EMS personnel without a valid license or certification, or in violation of the terms of a valid license or certification issued by the Office of EMS.

2. A person providing EMS to a patient received within Virginia [ and whether treated and released or ] transported to a location within Virginia must comply with these regulations unless exempted in these regulations.

12VAC5-31-50. Variances.

A. The Office of EMS commissioner is authorized to grant variances for any part or all of these regulations in accordance with the procedures set forth herein. A variance permits temporary specified exceptions to these regulations. An applicant, licensee, or permit or certificate holder may file a written request for a variance with the Office of EMS on specified forms. If the applicant, licensee, or permit or certificate holder is an EMS agency, the following additional requirements apply:

1. The written variance request shall be submitted for review and recommendations to the governing body or chief administrative officer of the jurisdiction in which the principal office of the EMS agency is located prior to submission to the Office of EMS.

2. An EMS agency operating in multiple jurisdictions will be required to notify all other jurisdictions in writing of conditions of approved variance requests.

3. Issuance of a variance does not obligate other jurisdictions to allow the conditions of such variance if they conflict with local ordinances or regulations.

4. Both the written request and the recommendation of the governing body or chief administrative officer shall be submitted together to the Office of EMS.

B. If the applicant for a variance is an affiliated provider who is certified or a candidate for certification, the following requirements shall apply:

1. The written variance request shall be submitted for review and recommendations to the operational medical director and the head of the agency with which the provider is affiliated.

2. Both the written request and the recommendation of the operational medical director and the agency head shall be submitted to the Office of EMS.

C. Those providers who are not affiliated with an EMS agency shall submit their variance request to the commissioner for consideration. The commissioner may request additional case-specific endorsements or supporting documentation as part of the application.

12VAC5-31-60. Issuance of a variance.

A request for a variance may be approved and issued by the Office of EMS commissioner provided all of the following conditions are met:

1. The information contained in the request is complete and correct;

2. The agency, service, vehicle or person concerned is licensed, permitted or certified by the Office of EMS;

3. The Office of EMS commissioner determines the need for such a variance is genuine, and extenuating circumstances exist;

4. The Office of EMS commissioner determines that issuance of such a variance would be in the public interest and would not present any risk to, or threaten or endanger the public health, safety or welfare;

5. If the request is made by an EMS agency, the Office of EMS commissioner will consider the recommendation of the governing body or chief administrative officer provided all of the above conditions are met;

6. If the request is made by an affiliated provider who is certified or a candidate for certification, the Office of EMS will consider the recommendation of the operational medical director and the agency head for which the provider is affiliated; and

7. The person making the request will be notified in writing of the approval and issuance within 30 days of receipt of the request unless the request is awaiting approval or disapproval of a license or certificate. In such case, notice will be given within 30 days of the issuance of the license or certificate.

12VAC5-31-80. Conditions of variance.

A variance shall be issued and remain valid with the following conditions:

1. A variance will be valid for a period not to exceed one year unless and until terminated by the Office of EMS commissioner; and

2. A variance is neither transferable nor renewable under any circumstances.

12VAC5-31-90. Termination of variance.

A. The Office of EMS commissioner may terminate a variance at any time based upon any of the following:

1. Violations of any of the conditions of the variance;

2. Falsification of any information;

3. Suspension or revocation of the license, permit or certificate affected; or

4. A determination by the Office of EMS to the commissioner that continuation of the variance would present a risk to or threaten or endanger the public health, safety or welfare.

B. The Office of EMS commissioner will notify the license, permit or certificate holder of the termination by certified mail to his last known address.

C. Termination of a variance will take effect immediately upon receipt of notification unless otherwise specified.

12VAC5-31-100. Denial of a variance.

A request for a variance will be denied by the Office of EMS commissioner if any of the conditions of 12VAC5-31-60 fail to be met.

12VAC5-31-120. Public notice of request for exemption.

Upon receipt of a request for an exemption, the Office of EMS will cause notice of such request to be published in a newspaper of general circulation in the area wherein the person making the request resides and in other major newspapers of general circulation in major regions of the Commonwealth. The cost of such public notice will be borne by the person making the request posted on the Office of EMS section of the Virginia Department of Health's website.

12VAC5-31-160. Conditions of exemption.

A. An exemption remains valid for an indefinite period of time unless and until terminated by the board or the Office of EMS commissioner, or unless an expiration date is specified.

B. An exemption is neither transferable nor renewable.

12VAC5-31-170. Termination of exemption.

A. The Office of EMS commissioner may terminate an exemption at any time based upon any of the following:

1. Violation of any of the conditions of the exemption;

2. Suspension or revocation of any licenses, permits or certificates involved; or

3. A determination by the Office of EMS commissioner that continuation of the exemption would present risk to, or threaten or endanger the public health, safety or welfare.

B. The Office of EMS commissioner will notify the person to whom the exemption was issued of the termination by certified mail to his last known address.

C. Termination of an exemption takes effect immediately upon receipt of notification unless otherwise specified.

12VAC5-31-180. Denial of an exemption.

A request for an exemption will be denied by the Office of EMS commissioner if any of the conditions of these regulations fail to be met.

Article 4
Enforcement Procedures

12VAC5-31-200. Right to enforcement.

A. The Office of EMS may use the enforcement procedures provided in this article when dealing with any deficiency or violation of these regulations or any action or procedure that varies from the intent of these regulations.

B. The Office of EMS may determine that a deficiency or violation of these regulations or any action or procedure that varies from the intent of these regulations occurred.

C. The enforcement procedures provided in this article are not mutually exclusive. The Office of EMS may invoke as many procedures as the situation may require.

D. The commissioner empowers the Office of EMS to enforce the provisions of these regulations.

E. An agency and all places of operation shall be subject to inspection by the Office of EMS for compliance with these regulations. The inspection may include any or all of the following:

1. All fixed places of operations, including all offices, stations, repair shops, or training facilities.

2. All applicable records maintained by the agency.

3. All EMS vehicles and required equipment used by the agency.

12VAC5-31-210. Enforcement actions.

An enforcement action must be delivered to the affected person and must specify information concerning the violations, the actions required to correct the violations and the specific date by which correction must be made as follows:

1. Warning: a verbal notification of an action or situation potentially in violation of these regulations.

2. Citation: a written notification for violations of these regulations.

3. Suspension: a written notification of the deactivation and removal of authorization issued under a license, permit, certification, endorsement or designation.

4. Civil penalty: The commissioner or designee may impose a civil penalty on an agency or entity that fails or refuses compliance with these regulations. Civil penalties may be assessed up to $1,000 per offense. Violations shall be single, different occurrence for each calendar day the violation occurs and remains uncorrected.

4. 5. Action of the commissioner: the commissioner may command a person operating in violation of these regulations or state law pursuant to the commissioner's authority under § 32.1-27 of the Code of Virginia and the Administrative Process Act to halt such operation or to comply with applicable law or regulation. A separate and distinct offense will be deemed to have been committed on each day during which any prohibited act continues after written notice to the offender.

5. 6. Criminal enforcement: the commissioner may elect to enforce any part of these regulations or any provision of Title 32.1 of the Code of Virginia by seeking to have criminal sanctions imposed. The violation of any of the provisions of these regulations constitutes a misdemeanor. A separate and distinct offense will be deemed to have been committed on each day during which any prohibited act continues after written notice by the commissioner to the offender.

12VAC5-31-220. Suspension of a license, permit, certificate, endorsement or designation.

A. The Office of EMS commissioner may suspend an EMS license, permit, certificate, endorsement or designation without a hearing, pending an investigation or revocation procedure.

1. Reasonable cause for suspension must exist before such action is taken by the Office of EMS commissioner. The decision must be based upon a review of evidence available to the Office of EMS commissioner.

2. The Office of EMS commissioner may suspend an agency or service license, vehicle permit, personnel certificate, endorsement or designation for failure to adhere to the standards set forth in these regulations.

3. An EMS agency license or registration may be suspended if the agency, service or any of its vehicles or personnel are found to be operating in a manner that presents a risk to, or threatens, or endangers the public health, safety or welfare.

4. An EMS vehicle permit may be suspended if the vehicle is found to be operated or maintained in a manner that presents a risk to, threatens, or endangers the public health, safety or welfare, or if the EMS agency license has been suspended.

5. EMS personnel may be suspended if found to be operating or performing in a manner that presents a risk to, or threatens, or endangers the public health, safety or welfare.

6. An EMS training certification may be suspended if the certificate holder is found to be operating or performing in a manner that presents a risk to, or threatens, or endangers the public health, safety or welfare.

B. Suspension of an EMS agency license shall result in the simultaneous and concurrent suspension of the vehicle permits.

C. The Office of EMS commissioner will notify the licensee, or permit or certificate holder of the suspension in person or by certified mail to his last known address.

D. A suspension takes effect immediately upon receipt of notification unless otherwise specified. A suspension remains in effect until the Office of EMS commissioner further acts upon the license, permit, certificate, endorsement or designation or until the order is overturned on appeal as specified in the Administrative Process Act.

E. The licensee, or permit or certificate holder shall abide by any notice of suspension and shall return all suspended licenses, permits and certificates to the Office of EMS within 10 days of receipt of notification.

F. The Office of EMS may invoke any procedure set forth in this part to enforce the suspension.

12VAC5-31-230. Revocation of a license, permit or certificate.

A. The Office of EMS commissioner may revoke an EMS license, permit, certificate, endorsement, or designation after a hearing or waiver thereof.

1. Reasonable cause for revocation must exist before such action by the Office of EMS commissioner.

2. The Office of EMS commissioner may revoke an EMS agency license, EMS vehicle permit, vehicle permit, certification, endorsement or designation for failure to adhere to the standards set forth in these regulations.

3. The Office of EMS commissioner may revoke an EMS agency license, an EMS vehicle permit, or EMS personnel certificate for violation of a correction order or for engaging in or aiding, abetting, causing, or permitting any act prohibited by these regulations.

4. The Office of EMS commissioner may revoke an EMS training certificate for failure to adhere to the standards as set forth in these regulations and the "Training Program Administration Manual" in effect for the level of instruction concerned, or for lack of competence at such level as evidenced by lack of basic knowledge or skill, or for incompetent or unwarranted acts inconsistent with the standards in effect for the level of certification concerned.

5. The Office of EMS commissioner may revoke an EMS agency license for violation of federal or state laws resulting in a civil monetary penalty.

B. Revocation of an EMS agency license shall result in the simultaneous and concurrent revocation of vehicle permits.

C. The Office of EMS commissioner will notify the holder of a license, certification, endorsement or designation of the intent to revoke by signed receipt in person or certified mail to his last known address.

D. The holder of a license, certification, endorsement or designation will have the right to a hearing.

1. If the holder of a license, certification, endorsement or designation desires to exercise his right to a hearing, he must notify the Office of EMS in writing of his intent within 10 days of receipt of notification. In such cases, a hearing must be conducted and a decision rendered in accordance with the Administrative Process Act.

2. Should the holder of a license, certification, endorsement or designation fail to file such notice, he will be deemed to have waived the right to a hearing. In such case, the Office of EMS commissioner may revoke the license or certificate.

E. A revocation takes effect immediately upon receipt of notification unless otherwise specified. A revocation order is permanent unless and until overturned on appeal.

F. The holder of a license, certification, endorsement or designation shall abide by any notice of revocation and shall return all revoked licenses, permits and certificates to the Office of EMS within 10 days of receipt of the notification of revocation.

G. The Office of EMS may invoke any procedures set forth in this part to enforce the revocation.

12VAC5-31-240. Correction order.

A. The Office of EMS may order the holder of a license, certification, endorsement or designation to correct a deficiency, cease any violations or comply with these regulations by issuing a written correction order as follows:

1. Correction orders may be issued in conjunction with any other enforcement action in response to individual violations or patterns of violations.

2. The Office of EMS will determine that a deficiency or violation exists before issuance of any correction order.

B. The Office of EMS will send a correction order to the licensee or permit or certificate holder by a signed receipt in person or certified mail to his last known address. Notification will include, but not be limited to, a description of the deficiency or violation to be corrected, and the period within which the deficiency or situation must be corrected, which shall not be less than 30 days from receipt of such order, unless an emergency has been declared by the Office of EMS.

C. A correction order takes effect upon receipt and remains in effect until the deficiency is corrected or until the license, permit, certificate, endorsement or designation is suspended, revoked, or allowed to expire or until the order is overturned or reversed.

D. Should the licensee or permit, certificate, endorsement or designation holder be unable to comply with the correction order by the prescribed date, he may submit a request for modification of the correction order with the Office of EMS. The Office of EMS will approve or disapprove the request for modification of the correction order within 10 days of receipt.

E. The licensee or permit, certificate, endorsement or designation holder shall correct the deficiency or situation within the period stated in the order.

1. The Office of EMS will determine whether the correction is made by the prescribed date.

2. Should the licensee or permit, certificate, endorsement or designation holder fail to make the correction within the time period cited in the order, the Office of EMS may invoke any of the other enforcement procedures set forth in this part.

12VAC5-31-290. Exclusions from these regulations.

A. Any person or privately owned vehicle not engaged in the business, service, or regular activity of providing medical care or transportation of persons who are sick, injured, wounded, or otherwise disabled.

B. Any person or vehicle rendering emergency medical services or medical transportation in the case of a major medical emergency when the EMS agencies, vehicles and personnel based in or near the location of such major emergency are insufficient to render services required.

C. EMS agencies, vehicles or personnel based outside of Virginia, except that any agency, vehicle or person responding from outside Virginia to an emergency within Virginia and providing emergency medical services to a patient within Virginia, whether or not the service includes transportation, shall comply with the provisions of these regulations.

D. An agency of the United States government providing emergency medical services in Virginia and any EMS vehicles operated by the agency.

E. Any vehicle owned by an EMS agency vehicle used exclusively for the provision of rescue services.

F. Any medical facility, but only with respect to the provision of emergency medical services within the facility.

G. Personnel employed by, or associated with, a medical facility who provides emergency medical services within the medical facility, but only with respect to the services provided therein.

H. Wheelchair interfacility transport services and wheelchair interfacility transport service vehicles that are engaged, whether or not for profit, in the business, service, or regular activity of and exclusively used for transporting wheelchair bound passengers between medical facilities in the Commonwealth when no ancillary medical care or oversight is necessary. However, such services and vehicles shall comply with Department of Medical Assistance Services regulations regarding the transportation of Medicaid recipients to covered services.

[ 12VAC5-31-330. Compliance with regulations.

A. A person shall comply with these regulations. The Office of EMS will publish the Virginia EMS Compliance Manual, a document that describes and provides guidance to EMS agencies, vehicles and personnel on how to comply with these regulations.

B. An EMS agency, including its EMS vehicles and EMS personnel, shall comply with these regulations, the applicable regulations of other state agencies, the Code of Virginia, and the United States Code. ]

12VAC5-31-370. Designated emergency response agency.

An EMS agency that responds to medical emergencies for its primary service area shall be a designated emergency response agency. A designated emergency response agency shall provide services within its primary service area as defined by the local EMS response plan.

12VAC5-31-380. EMS agency availability.

A. An EMS agency shall provide service within its primary service area on a 24-hour continuous basis as defined by the local EMS response plan.

B. Licensed EMS agencies that meet the criteria stated in 12VAC5-31-370 but that operate under special conditions, i.e., time of year, etc., must also meet the criteria outlined in 12VAC5-31-430 A 2 and C 4.

12VAC5-31-390. Destination/trauma triage Destination to specialty care hospitals.

An EMS agency shall participate in the regional Trauma Triage Plan follow specialty care hospital triage plans [ for trauma, stroke, and others as recognized by OEMS ] established in accordance with § 32.1-111.3 of the Code of Virginia. [ EMS agencies' OMD approved patient care protocols shall have a triage component consistent with Code of Virginia mandated state specialty care hospital triage plans. ]

12VAC5-31-400. Nondiscrimination.

An EMS agency may shall not discriminate due to a patient's race, gender, creed, color, national origin, location, medical condition or any other reason.

[ 12VAC5-31-420. Application for EMS agency license.

A. An applicant for EMS agency licensure shall file a written application specified by the Office of EMS.

B. The Office of EMS may use whatever means of investigation necessary to verify any or all information contained in the application.

C. An ordinance or resolution from the governing body of each locality where the agency maintains an office, stations an EMS vehicle for response within a locality or is a Designated Emergency Response Agency as required by § 15.2-955 of the Code of Virginia confirming approval. This ordinance or resolution must specify the geographic boundaries of the agency's primary service area within the locality.

D. The Office of EMS will determine whether an applicant or licensee is qualified for licensure based upon the following:

1. An applicant or licensee must meet the personnel requirements of these regulations.

2. If the applicant is a company or corporation, as defined in § 12.1-1 of the Code of Virginia, it must clearly disclose the identity of its owners, officers and directors.

3. An applicant or licensee must provide information on any previous record of performance in the provision of emergency medical service or any other related licensure, registration, certification or endorsement within or outside Virginia.

4. The applicant must submit a written agreement with the local governing body that states the applicant agency will assist in mutual aid requests from the local government if EMS personnel, vehicles, equipment, and other resources are available.

E. An applicant agency and all places of operation shall be subject to inspection by the Office of EMS for compliance with these regulations. The inspection may include any or all of the following:

1. All fixed places of operations, including all offices, stations, repair shops or training facilities.

2. All applicable records maintained by the applicant agency.

3. All EMS vehicles and required equipment used by the applicant agency. ]

12VAC5-31-430. Issuance of an EMS agency license.

A. An EMS agency license may be issued by the Office of EMS provided the following conditions are met:

1. All information contained in the application is complete and correct; and

2. The applicant is determined by the Office of EMS to be eligible for licensure in accordance with these regulations.

[ 3. The applicant is determined by the Office of EMS to provide emergency medical services to the citizens of the Commonwealth in accordance with this chapter. ]

B. The issuance of a license hereunder may not be construed to authorize any agency to operate any emergency medical services vehicle without a franchise or permit in any county or municipality which has enacted an ordinance pursuant to § 32.1-111.14 of the Code of Virginia making it unlawful to do so.

C. An EMS agency license may include the following information:

1. The name and address of the EMS agency;

2. The expiration date of the license;

3. The types of services for which the EMS agency is licensed; and

4. Any special conditions that may apply.

D. An EMS agency license will be issued and remain valid with the following conditions:

1. An EMS agency license is valid for a period of no longer than two years from the last day of the month of issuance unless and until revoked or suspended by the Office of EMS commissioner.

2. An EMS agency license is not transferable.

3. An EMS agency license issued by the Office of EMS remains the property of the Office of EMS and may not be altered or destroyed.

[ 12VAC5-31-460. Denial of an EMS agency license.

A. An application for a new EMS agency license or renewal of an EMS agency license may be denied by the Office of EMS if the applicant or agency does not comply with these regulations.

B. An application for a new agency license or renewal of an EMS agency license shall not be issued by the Office of EMS to any firm, corporation, agency, organization, or association that does not intend to provide emergency medical services as part of its operation to the citizens of the Commonwealth. ]

12VAC5-31-480. Termination of EMS agency licensure.

A. An EMS agency terminating service shall surrender the EMS agency license to the Office of EMS.

B. An EMS agency terminating service shall submit written notice to the Office of EMS at least 90 days in advance. Written notice of intent to terminate service must verify the following:

1. Notification of the applicable OMDs, regional EMS councils or local EMS resource agencies, PSAPs and governing bodies of each locality served.

2. Termination of all existing contracts for EMS services, Mutual Aid Agreements, or both.

3. Advertised notice of its intent to discontinue service has been published in a newspaper of general circulation in its service area and to be posted on the Office of EMS section of the Virginia Department of Health's website.

C. Within 30 days following the termination of service, the EMS agency shall provide written verification to the Office of EMS of the following:

1. The return of its EMS agency license and all associated vehicle permits to the Office of EMS.

2. The removal of all signage or insignia that advertise the availability of EMS to include but not be limited to facility and roadway signs, vehicle markings and uniform items.

3. The return of all medication drug kits that are part of a local or regional medication drug kit exchange program or provision for the proper disposition of medications drugs maintained under a Board of Pharmacy controlled substance registration.

4. The maintenance and secure storage of required agency records and prehospital patient care reports (PPCRs) for a minimum of five six years from the date of termination of service.

12VAC5-31-500. Place of operations.

A. An EMS agency shall maintain a fixed physical location. Any change in the address of this location requires the primary business location and any satellite location require notification to the Office of EMS before relocation of the office space.

B. Adequate, clean and enclosed storage space for linens, equipment and supplies shall be provided at each place of operation.

C. The following sanitation measures are required at each place of operation in accordance with standards established by the Centers for Disease Control and Prevention (CDC) established by the CDC and the Virginia occupational safety and health laws (Title 40.1-1 40.1 of the Code of Virginia):

1. All areas used for storage of equipment and supplies shall be kept neat, clean, and sanitary.

2. All soiled supplies and used disposable items shall be stored or disposed of in plastic bags, covered containers or compartments provided for this purpose. Regulated waste shall be stored in a red or orange bag or container clearly marked with a biohazard label.

12VAC5-31-510. Equipment and supplies.

A. An EMS agency shall hold the permit to an EMS vehicle or have a written agreement for the access to and use of an EMS vehicle. An EMS agency that does not use an EMS vehicle shall maintain the required equipment and supplies for a nontransport response vehicle.

B. Adequate stocks of supplies and linens shall be maintained as required for the classes of vehicles in service at each place of operations. An EMS agency shall maintain a supply of at least 75 25 triage tags of a design approved by the Office of EMS on each permitted EMS vehicle. These tags must be maintained in a location readily accessible by all agency personnel.

12VAC5-31-520. Storage and security of medications drugs and related supplies.

A. An area used for storage of medications drugs and administration devices and a medication drug kit used on an EMS vehicle shall comply with requirements established by the Virginia Board of Pharmacy and the applicable drug manufacturer's recommendations for climate-controlled storage.

B. Medications Drugs and medication drug kits shall be maintained within their expiration date at all times.

C. Medications Drugs and medication drug kits shall be removed from vehicles and stored in a properly maintained and locked secure area when the vehicle is not in use unless the ambient temperature of the vehicle's interior medication drug storage compartment is maintained within the climate requirements specified in this section.

D. An EMS agency shall notify the Office of EMS in writing of any diversion of (i.e., loss or theft) or tampering with any controlled substances, medication drug delivery devices, or other regulated medical devices from an agency facility or vehicle. Notification shall be made within 15 days of the discovery of the occurrence.

E. An EMS agency shall protect EMS vehicle contents from climate extremes.

12VAC5-31-530. Preparation and maintenance of records and reports.

An EMS agency is responsible for the preparation and maintenance of records that shall be available for inspection by the Office of EMS as follows:

1. Records and reports shall at all times be stored in a manner to ensure reasonable safety from water and fire damage and from unauthorized disclosure to persons other than those authorized by law.

2. EMS agency records shall be prepared and securely maintained at the principal place of operations or a secured storage facility for a period of not less than five years.

12VAC5-31-540. Personnel records.

A. An EMS agency shall have a current personnel record for each individual affiliated with the EMS agency. Each file shall contain documentation of certification (copy of EMS certification, healthcare provider license or EVOC, or both), training and qualifications for the positions held.

B. An EMS agency shall have a record for each individual affiliated with the EMS agency documenting the results of a criminal history background check conducted through the Central Criminal Records Exchange operated by and the National Crime Information Center via the Virginia State Police, a driving record transcript from the individual's state Department of Motor Vehicles office, and any documents required by the Code of Virginia, no more than 60 days prior to the individual's affiliation with the EMS agency.

12VAC5-31-560. Patient care records.

A. An original prehospital patient care report (PPCR) PPCR shall specifically identify by name the personnel who meet the staffing requirements of the EMS vehicle.

B. The PPCR shall include the name and identification number of all EMS Personnel on the EMS vehicle and the signature of the attendant-in-charge.

C. The required minimum data set shall be submitted on a schedule established by the Office of EMS as authorized in § 32.1-116.1 of the Code of Virginia. This requirement for data collection and submission shall not apply to patient care rendered during local emergencies declared by the locality's government and states of emergency declared by the Governor. During such an incident, an approved triage tag shall be used to document patient care provided unless a standard patient care report is completed.

12VAC5-31-570. EMS Agency Status Report.

A. An EMS agency must submit an "EMS Agency Status Report" to the Office of EMS within 30 days of a request or change in status of the following:

1. Chief executive officer.

2. Chief of operations.

3. 2. Training officer.

4. 3. Designated infection control officer.

5. Other information as required.

B. The EMS agency shall provide the leadership position held, to include title, term of office, mailing address, home and work telephone numbers and, other available electronic addresses for each individual, and other information as required.

12VAC5-31-590. Operational Medical Director requirement.

A. An EMS agency shall have a minimum of one operational medical director (OMD) who is a licensed physician holding endorsement as an EMS physician from the Office of EMS.

An EMS agency shall enter into a written agreement with an EMS physician to serve as OMD with the EMS agency. This agreement shall at a minimum specify the following responsibilities and authority:

1. This agreement must describe the process or procedure by which the OMD or EMS agency may discontinue the agreement with prior notification of the parties involved in accordance with these regulations pursuant to 12VAC5-31-1910.

2. This agreement must identify the specific responsibilities of each EMS physician if an EMS agency has multiple OMDs.

3. This agreement must specify that EMS agency personnel may only provide emergency medical care and participate in associated training programs while acting under with the authority authorization of the operational medical director's license director and within the scope of the EMS agency license in accordance with these regulations.

4. This agreement must provide for EMS agency personnel to have direct access to the agency OMD in regards to discussion of issues relating to provision of patient care, application of patient care protocols or operation of EMS equipment used by the EMS agency.

5. This agreement must ensure that the adequate indemnification exists or insurance coverage exists for:

a. Medical malpractice; and

b. Civil liability claims.

B. EMS agency and OMD conflict resolution.

1. In the event of an unresolved conflict between an EMS agency and its OMD, the issues involved shall be brought before the regional EMS council or local EMS resource's medical direction committee (or approved equivalent) for review and resolution.

2. When an EMS agency determines that the OMD presents an immediate significant risk to the public safety or health of citizens, the EMS agency shall attempt to resolve the issues in question. If an immediate risk remains unresolved, the EMS agency shall contact the Office of EMS for assistance.

C. Change of operational medical director.

1. An EMS agency choosing to secure the services of another OMD shall provide a minimum of 30 days advance written notice of intent to the current OMD and the Office of EMS.

2. An OMD choosing to resign shall provide the EMS agency and the Office of EMS with a minimum of 30 days written notice of such intent.

3. When extenuating circumstances require an immediate change of an EMS agency's OMD (e.g., death, critical illness, etc.), the Office of EMS shall be notified by the OMD within one business day so that a qualified replacement may be approved. In the event that the OMD is not capable of making this notification, the EMS agency shall be responsible for compliance with this requirement. Under these extenuating circumstances, the Office of EMS will make a determination whether the EMS agency will be allowed to continue its operations pending the approval of a permanent or temporary replacement OMD.

4. When temporary circumstances require a short-term change of an EMS agency's OMD for a period not expected to exceed one year (e.g., military commitment, unexpected clinical conflict, etc.), the Office of EMS shall be notified by the OMD within 15 days so that a qualified replacement may be approved.

5. The Office of EMS may delay implementation of a change in an EMS agency's OMD pending the completion of any investigation of an unresolved conflict or possible violation of these regulations or the Code of Virginia.

12VAC5-31-610. Designated emergency response agency standards.

A. A designated emergency response agency shall develop or participate in a written local EMS response plan that addresses the following items:

1. The designated emergency response agency shall develop and maintain, in coordination with their locality, a written plan to provide 24-hour coverage of the agency's primary service area with the available personnel to achieve the approved responding interval standard.

2. A designated emergency response agency shall conform to the local responding interval, or in the absence of a local standard the EMS agency shall develop a standard in conjunction with OMD and local government in the best interests of the patient and the community. The EMS agency shall use the response time standard to establish a time frame the EMS agency complies with on a 90% basis within its primary service area (i.e., a time frame in which the EMS agency can arrive at the scene of a medical emergency in 90% or greater of all calls).

a. If the designated emergency response agency finds it is unable to respond within the established unit mobilization interval standard, the call shall be referred to the closest available mutual aid EMS agency.

b. If the designated emergency response agency finds it is able to respond to the patient location sooner than the mutual aid EMS agency, the EMS agency shall notify the PSAP of its availability to respond.

c. If the designated emergency response agency is unable to respond (e.g., lack of operational response vehicle or available personnel), the EMS agency shall notify the PSAP.

d. If a designated emergency response agency determines in advance that it will be unable to respond for emergency service for a specified period of time, it shall notify its PSAP.

B. A designated emergency response agency shall have available for review a copy of the local EMS response plan that shall include the established EMS Responding Interval standards.

C. A designated emergency response agency shall document its compliance with the established EMS response capability, unit mobilization interval, and responding interval standards.

D. A designated emergency response agency shall document an annual review of exceptions to established EMS response capability and time interval standards. The results of this review shall be provided to the agency's operational medical director and local governing body.

[ 12VAC5-31-650. Temporary EMS vehicle permit.

A. A temporary EMS vehicle permit may be issued for a permanent replacement or additional EMS vehicle pending inspection. A temporary EMS vehicle permit will not be issued for a vehicle requesting a "reserved" permit.

B. An EMS agency shall file written application for a temporary permit on forms specified by the Office of EMS. Submission of this application requires the EMS agency to attest that the vehicle complies with these regulations.

C. The Office of EMS may verify any or all information contained in the application before issuance.

D. The procedure for issuance of a temporary EMS vehicle permit is as follows:

1. An EMS agency requesting a temporary permit shall submit a completed application for an EMS vehicle permit attesting that the vehicle complies with these regulations.

2. The Office of EMS may inspect an EMS vehicle issued a temporary permit at any time for compliance with these regulations and issuance of an EMS vehicle permit.

E. A temporary EMS vehicle permit may include but not be limited to the following information:

1. The name and address of the EMS agency.

2. The expiration date of the EMS vehicle permit.

3. The classification and type of the EMS vehicle.

4. The motor vehicle license plate number of the vehicle.

5. Any special conditions that may apply.

F. A temporary EMS vehicle permit will be issued and remain valid with the following conditions:

1. A temporary EMS vehicle permit is valid for 60 180 days from the end of the month issued.

2. A temporary EMS vehicle permit is not transferable.

3. A temporary EMS vehicle permit is not renewable.

4. A temporary EMS vehicle permit shall be affixed on the vehicle to be readily visible and in a location and manner specified by the Office of EMS. An EMS vehicle may not be operated without a properly displayed permit. ]

Article 3
Emergency Medical Services Vehicle Classifications and Requirements

12VAC5-31-700. EMS vehicle safety.

An EMS vehicle shall be maintained in good repair and safe operating condition and shall meet the same motor vehicle, vessel or aircraft safety requirements as apply to all vehicles, vessels or craft in Virginia:

1. Virginia motor vehicle safety inspection, FAA Airworthiness Permit or Coast Guard Safety Inspection or approved equivalent must be current.

2. Exterior surfaces of the vehicle including windows, mirrors, warning devices and lights shall be kept clean of dirt and debris.

3. Ground vehicle operating weight shall be no more than the manufacturer's gross vehicle weight (GVW) minus 700 pounds (316 kg).

4. Emergency operating privileges including the use of audible and visible emergency warning devices shall be exercised in compliance with the Code of Virginia and local motor vehicle ordinances.

5. Smoking [ Tobacco The ] use [ of any and all tobacco products ] is prohibited in [ an ] EMS transport [ vehicle vehicles ] at all times.

6. Possession of a firearm, weapon, or explosive or incendiary device on any EMS vehicle is prohibited, except:

a. A sworn law-enforcement officer authorized to carry a concealed weapon pursuant to § 18.2-308 of the Code of Virginia.

b. Any rescue line gun or other rescue device powered by an explosive charge carried on a nontransport response vehicle.

12VAC5-31-710. EMS vehicle occupant safety.

A. An occupant shall use mechanical restraints as required by the Code of Virginia. Stretcher patients shall be secured on the stretcher utilizing a minimum of three straps unless contraindicated by patient condition.

B. Equipment and supplies in the patient compartment shall be stored within a closed and latched compartment or fixed securely in place while not in use.

C. While the vehicle is in motion, equipment and supplies at or above the level of the patient's head while supine on the primary ambulance stretcher shall be secured in place to prevent movement.

12VAC5-31-750. EMS vehicle warning lights and devices.

An EMS vehicle shall have emergency warning lights and audible devices as approved by the Superintendent of Virginia State Police, Virginia Department of Game and Inland Fisheries or the Federal Aviation Administration (FAA) as applicable.

1. A Ground ground EMS vehicle shall have flashing or blinking lights installed to provide adequate visible warning from all four sides.

2. A Ground ground EMS vehicle shall have flashing or blinking red or red and white lights installed on or above the front bumper and below the bottom of the windshield.

3. An A ground EMS vehicle shall have an audible warning device installed to project sound forward from the front of the EMS vehicle.

12VAC5-31-760. EMS vehicle communications.

A. An EMS vehicle shall have fixed communications equipment that provides direct two-way voice communications capabilities between the EMS vehicle, other EMS vehicles of the same agency, and either the agency's base of operations (dispatch point) or a governmental public safety answering point (PSAP). This communication capability must be available within the agency's primary service area or within a 25-mile radius of its base of operations, whichever is greater. Service may be provided by private mobile radio service (PMRS) or by commercial mobile radio service (CMRS), but shall have direct and immediate communications via push-to-talk technology.

B. An ambulance transporting outside its primary service area shall have fixed or portable communications equipment that provides two-way voice communications capabilities between the EMS vehicle and either the agency's base of operations (dispatch point) or a governmental public safety answering point (PSAP) PSAP during the period of transport. Service may be provided by private mobile radio service (PMRS) or by commercial mobile radio service (CMRS). When operating outside the agency's primary service area or a 25-mile radius of its base of operations of routine responsibility or in areas where CMRS is not available, the requirement for direct and immediate communications via push-to-talk technology does not apply. This requirement does not apply in areas where CMRS is not available. If an agency is licensed as a DERA, it is required to have direct and immediate communications via push-to-talk technology for either the agency's base of operations, dispatch point, or PSAP for which the EMS agency vehicle is used for emergency response to the public in the jurisdiction where a memorandum of understanding or memorandum of agreement is in place or is contractually obligated to provide emergency response.

C. An ambulance or an advanced life support-equipped, nontransport response vehicle shall have communications equipment that provides two-way voice communications capabilities between the EMS vehicle's attendant-in-charge and the receiving medical facilities to which it regularly transports or a designated central medical control on one or more of the following frequencies:

155.340 MHz (statewide HEAR);

155.400 MHz (Tidewater HEAR);

155.280 MHZ (Inter-Hospital HEAR);

462.950/467.950 (MED 9 or CALL 1);

462.975/467.975 (MED 10 or CALL 2);

462.950-463.19375/467.950-468.19375 (UHF MED CHANNELS 1-103) 1-10); and

220 MHz, 700MHz, 800MHz, or 900MHz frequency and designated talkgroup or channel identified as part of an agency, jurisdictional, or regional communications plan for ambulance to hospital communications.

1. Patient care communications with medical facilities may not be conducted on the same frequencies or talkgroups as those used for dispatch and on-scene operations.

2. Before establishing direct push-to-talk communications with the receiving medical facility or central medical control, EMS vehicles may be required to dial an access code. Radios in ambulances or advanced life support-equipped, nontransport response vehicles must be programmed or equipped with encoding equipment necessary to activate tone-coded squelched radios at medical facilities to which they transport on a regular basis.

3. Nothing herein prohibits the use of CMRS for primary or secondary communications with medical facilities, provided that the requirements of this section are met.

D. Mutual aid interoperability. An EMS vehicle must have fixed communications equipment that provides direct two-way voice communications capabilities between the EMS vehicle and EMS vehicles of other EMS agencies within the jurisdiction and those EMS agencies with which it has mutual aid agreements. Service may be provided by private mobile radio service (PMRS) or by commercial mobile radio service (CMRS), but requires direct and immediate communications via push-to-talk technology. This requirement may be met by interoperability on a common radio frequency or talkgroup, or by fixed or interactive cross-patching under supervision of an agency dispatch center or governmental PSAP. The means of communications interoperability must be identified in any mutual aid agreements required by these regulations and must comply with the Virginia Interoperability Plan as defined by the Governor's Office of Commonwealth Preparedness.

E. Air ambulance interoperability. A nontransport EMS vehicle or ground ambulance must have fixed communications equipment that provides direct two-way voice communications capabilities between the EMS vehicle and air ambulances designated to serve its primary response area by the State Medevac Plan. An air ambulance must have fixed communications equipment that provides direct two-way voice communications capabilities between the air ambulance, other EMS vehicles in its primary response area, and public safety vehicles or personnel at landing zones on frequencies adopted in accordance with this section. Radio communications must be direct and immediate via push-to-talk technology. This requirement may be met by interoperability on a common radio frequency or talkgroup, or by fixed or interactive cross-patching under supervision of an agency dispatch center or governmental PSAP. The frequencies used for this purpose will be those set forth by an agreement among air ambulance providers and EMS agencies for a specific jurisdiction or region, and must be identified in agency, jurisdictional, or regional protocols for access and use of air ambulances. Any nontransport EMS vehicle or ground ambulance not participating in such an agreement must be capable of operating on VHF frequency 155.205 MHz (carrier squelch), which is designated as the Statewide EMS Mutual Aid Frequency. An air ambulance must be capable of operating on VHF frequency 155.205 MHz (carrier squelch) in addition to any other frequencies adopted for jurisdictional or regional interoperability.

F. FCC licensure. An EMS agency shall maintain appropriate FCC radio licensure for all radio equipment operated by the EMS agency. If the FCC radio license for any radio frequency utilized is held by another person, the EMS agency shall have written documentation on file of their assigned authority to operate on such frequencies.

G. In-vehicle communications. An ambulance shall have a means of voice communications (opening, intercom, or radio) between the patient compartment and operator's compartment.

[ 12VAC5-31-770. Ground EMS vehicle markings.

A. The vehicle body of a nontransport response vehicle, a ground ambulance or a neonatal ambulance must be marked with a reflective horizontal band permanently affixed to the sides and rear of the vehicle body. This horizontal reflective band must be of a material approved for exterior use, a minimum of four inches continuous in height.

B. The Star of Life emblem may appear on an EMS vehicle that conforms to the appropriate U.S. Department of Transportation specifications for the type and class of vehicle concerned. If used on any ground ambulance or neonatal ambulance, the emblem (14-inch size minimum) must appear on both sides of the EMS vehicle.

C. B. The following must appear in permanently affixed lettering that is a minimum of three inches in height and of a color that contrasts with the surrounding vehicle background. Lettering must comply with the restrictions and specifications listed in these regulations.

1. Nontransport response vehicle. The name of the EMS agency that the vehicle is permitted to shall appear on both sides of the vehicle body in reflective lettering.

Exception: A designated emergency response agency must have the approval of the Office of EMS for a vehicle to display an alternate name.

2. Ground ambulance:

a. The name of the EMS agency that the vehicle is permitted to must appear on both sides of the vehicle body in reflective lettering.

Exception: A designated emergency response agency must have the approval of the Office of EMS for a vehicle to display an alternate name.

b. The word "AMBULANCE" in reverse on the vehicle hood or bug deflector.

c. The word "AMBULANCE" on or above rear doors.

3. Neonatal Ambulance:

a. The name of the EMS agency to which the vehicle is permitted must appear on both sides of the vehicle body in reflective lettering.

b. "NEONATAL CARE UNIT" or other similar designation, approved by the Office of EMS, must appear on both sides of the vehicle body.

12VAC5-31-790. EMS vehicle letter restrictions and specifications.

A. The following specifications apply to an EMS vehicle: the EMS agency name must appear in lettering larger than any optional lettering on an EMS vehicle, other than "Ambulance," the unit identification number or any lettering on the roof. Optional lettering, logos or emblems may not appear on an EMS vehicle in a manner that interferes with the public's ability to readily identify the EMS agency to which the EMS vehicle is permitted.

1. Additional lettering, logos or emblems must not advertise or imply a specified patient care level (i.e., Advanced Life Support Unit) unless the EMS vehicle is so equipped at all times.

2. The terms "Paramedic" or "Paramedical" may only be used when the EMS vehicle is both equipped and staffed by a state certified EMT-Paramedic Paramedic at all times.

B. A nontransport response vehicle with a primary purpose as a fire apparatus or law-enforcement vehicle is not required to comply with the specifications for vehicle marking and lettering, provided the vehicle is appropriately marked and lettered to identify it as an authorized emergency vehicle.

C. An unmarked vehicle operated by an EMS agency is not eligible for issuance of an EMS vehicle permit except a vehicle used and operated by law-enforcement personnel. ]

12VAC5-31-800. Nontransport response vehicle specifications.

A. A vehicle maintained and operated for response to the location of a medical emergency to provide immediate medical care at the basic or advanced life support level (excluding patient transport) shall be permitted as a nontransport response vehicle unless specifically authorized under Part VI (12VAC5-31-2100 et seq.) of this chapter.

A nontransport response vehicle may not be used for the transportation of patients except in the case of a major medical emergency. In such an event, the circumstances of the call shall be documented.

B. A nontransport response vehicle must be constructed to provide sufficient space for safe storage of required equipment and supplies specified in these regulations.

A nontransport response vehicle used for the delivery of advanced life support must have a locking storage compartment or approved locking bracket for the security of medications drugs and medication drug kits. When not in use, medications drugs and medication drug kits must be kept locked in the required storage compartment or approved bracket at all times. The EMS agency shall maintain medications drugs and medication drug kits as specified in these regulations.

1. Sedan/zone car must have an approved locking device attached within the passenger compartment or trunk, inaccessible by the public.

2. Utility vehicle/van must have an approved locking device attached within the vehicle interior, inaccessible by the public.

3. Rescue vehicle/fire apparatus must have an approved locking device attached within the vehicle interior or a locked compartment, inaccessible by the public.

C. A nontransport response vehicle must have a motor vehicle safety inspection performed following completion of conversion and before applying for an EMS vehicle permit.

12VAC5-31-810. Ground ambulance specifications.

A. A vehicle maintained and operated for response to the location of a medical emergency to provide immediate medical care at the basic or advanced life support level and for the transportation of patients shall be permitted as a ground ambulance.

B. A ground ambulance must be commercially constructed and certified to comply with the current federal specification for the Star of Life ambulance (U.S. General Services Administration KKK-A-1822 standards) as of the date of vehicle construction, with exceptions as specified in these regulations.

C. A ground ambulance must be constructed to provide sufficient space for the safe storage of all required equipment and supplies. 1. A ground ambulance must have a locking interior storage compartment or approved locking bracket used for the secure storage of medications drugs and medication drug kits that is accessible from within the patient compartment. Medications Drugs and medication drug kits must be kept in a locked storage compartment or approved bracket at all times when not in use. The EMS agency must maintain medications drugs and medication drug kits as specified in these regulations.

2. Required equipment and supplies specified in these regulations, excluding those in 12VAC5-31-860 I, J and K, must be available for access and use from inside the patient compartment.

12VAC5-31-820. Advanced Life Support Equipment Package life support equipment package.

A. An EMS agency licensed to operate nontransport response vehicles or ground ambulances with ALS personnel shall maintain a minimum of one vehicle equipped with an ALS equipment package of the highest category licensed. ALS equipment packages consist of the following categories:

1. ALS – EMT-enhanced equipment package; and

2. ALS – EMT-intermediate/EMT-paramedic [ Advanced EMT/EMT-Intermediate/EMT-Paramedic Advanced-EMT/Intermediate/Paramedic ] equipment package.

B. ALS equipment packages shall consist of the equipment and supplies as specified in these regulations.

12VAC5-31-830. Neonatal ambulance specifications.

A. A vehicle maintained and operated exclusively for the transport of neonatal patients between medical facilities shall be permitted as a neonatal ambulance. A neonatal ambulance shall not be used for response to out-of-hospital medical emergencies.

B. A neonatal ambulance must be commercially constructed and certified to comply with the current U.S. General Services Administration KKK-A-1822 standards as of the date of vehicle construction.

C. A neonatal ambulance must be constructed to provide sufficient space for safe storage of required equipment and supplies specified in these regulations.

1. A neonatal ambulance must be equipped to transport two incubators using manufacturer-approved vehicle mounting devices.

2. A neonatal ambulance must have an installed auxiliary power unit that is capable of supplying a minimum of 1.5 Kw of 110VACelectric power. The auxiliary power unit must operate independent of the vehicle with starter and power controls located in the patient compartment.

3. A neonatal ambulance must have a locking interior storage compartment or approved locking bracket used for the secure storage of medications drugs and medication drug kits that is accessible from within the patient compartment. Medications Drugs and medication drug kits must be kept in a locked storage compartment or approved bracket at all times when not in use. The EMS agency must maintain medications drugs and medication drug kits as specified in these regulations.

4. Required equipment and supplies specified in these regulations must be available for access and use from inside the patient compartment.

12VAC5-31-840. Air ambulance specifications. (Repealed.)

A. An aircraft maintained and operated for response to the location of a medical emergency to provide immediate medical care at the basic or advanced life support level and for the transportation of patients shall be permitted as an air ambulance.

B. An air ambulance must be commercially constructed and certified to comply with the current U.S. Federal Aviation Administration standards as of the date of aircraft construction. An air ambulance must be constructed to provide sufficient space for safe storage of required equipment and supplies specified in these regulations.

C. Required equipment and supplies specified in these regulations, excluding those in 12VAC5-31-860 I and J, must be available for access and use from inside the patient compartment. A rotary wing air ambulance must be equipped with a 180-degree controllable searchlight of at least 400,000 candle power.