Title of Regulation: 4VAC15-20. Definitions and Miscellaneous: In General (amending 4VAC15-20-50, 4VAC15-20-65, 4VAC15-20-130; adding 4VAC15-20-240).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the Code of Virginia.

Effective Date: July 1, 2019.

Agency Contact: Aaron Proctor, Regulations Coordinator, Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-8341, or email aaron.proctor@dgif.virginia.gov.

Summary:

The amendments (i) update department headquarters references, (ii) prohibit use of drones for certain activities, and (iii) increase license fees.

4VAC15-20-50. Definitions; "wild animal," "native animal," "naturalized animal," "nonnative (exotic) animal," and "domestic animal."

A. In accordance with § 29.1-100 of the Code of Virginia, the following terms shall have the meanings ascribed to them by this section when used in regulations of the board:

"Native animal" means those species and subspecies of animals naturally occurring in Virginia, as included in the department's 2018 "List of Native and Naturalized Fauna of Virginia," with copies available in the Richmond headquarters and regional offices of the department.

"Naturalized animal" means those species and subspecies of animals not originally native to Virginia that have established wild, self-sustaining populations, as included in the department's 2018 "List of Native and Naturalized Fauna of Virginia," with copies available in the Richmond headquarters and regional offices of the department.

"Nonnative (exotic) animal" means those species and subspecies of animals not naturally occurring in Virginia, excluding domestic and naturalized species.

The following animals are defined as domestic animals:

Domestic dog (Canis familiaris), including wolf hybrids.

Domestic cat (Felis catus), including hybrids with wild felines.

Domestic horse (Equus caballus), including hybrids with Equus asinus.

Domestic ass, burro, and donkey (Equus asinus).

Domestic cattle (Bos taurus and Bos indicus).

Domestic sheep (Ovis aries) including hybrids with wild sheep.

Domestic goat (Capra hircus).

Domestic swine (Sus scrofa), including pot-bellied pig and excluding any swine that are wild or for which no claim of ownership can be made.

Llama (Lama glama).

Alpaca (Lama pacos).

Camels (Camelus bactrianus and Camelus dromedarius).

Domesticated races of hamsters (Mesocricetus spp.).

Domesticated races of mink (Mustela vison) where adults are heavier than 1.15 kilograms or their coat color can be distinguished from wild mink.

Domesticated races of guinea pigs (Cavia porcellus).

Domesticated races of gerbils (Meriones unguiculatus).

Domesticated races of chinchillas (Chinchilla laniger).

Domesticated races of rats (Rattus norvegicus and Rattus rattus).

Domesticated races of mice (Mus musculus).

Domesticated breeds of European rabbit (Oryctolagus cuniculus) recognized by the American Rabbit Breeders Association, Inc. and any lineage resulting from crossbreeding recognized breeds. A list of recognized rabbit breeds is available on the department's website.

Domesticated races of chickens (Gallus).

Domesticated races of turkeys (Meleagris gallopavo).

Domesticated races of ducks and geese distinguishable morphologically from wild birds.

Feral pigeons (Columba domestica and Columba livia) and domesticated races of pigeons.

Domesticated races of guinea fowl (Numida meleagris).

Domesticated races of peafowl (Pavo cristatus).

"Wild animal" means any member of the animal kingdom, except domestic animals, including without limitation any native, naturalized, or nonnative (exotic) mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod, or other invertebrate, and includes any hybrid of them, except as otherwise specified in regulations of the board, or part, product, egg, or offspring of them, or the dead body or parts of them.

B. Exception for red foxes and European rabbits. Domesticated red foxes (Vulpes vulpes) having coat colors distinguishable from wild red foxes and wild European rabbits possessed in captivity on July 1, 2017, may be maintained in captivity until the animal dies, but the animal may not be bred or sold without a permit from the department. Persons possessing domesticated red foxes or European rabbits without a permit from the department must declare such possession in writing to the department by January 1, 2018. This written declaration must include the number of individual animals in possession and date acquired, sex, estimated age, coloration, and a photograph of each fox or European rabbit. This written declaration shall (i) serve as a permit for possession only, (ii) is not transferable, and (iii) must be renewed every five years.

4VAC15-20-65. Hunting, trapping, and fishing license and permit fees.

In accordance with the authority of the board under subdivision 16 of § 29.1-103 of the Code of Virginia, the following fees are established for hunting, trapping, and fishing licenses and permits:

4VAC15-20-130. Endangered and threatened species; adoption of federal list; additional species enumerated.

A. The board hereby adopts the Federal Endangered and Threatened Species List, Endangered Species Act of December 28, 1973 (16 USC §§ 1531‑1543), as amended as of August 4, 2016 [ February 26, May 7 ], 2019, and declares all species listed thereon to be endangered or threatened species in the Commonwealth. Pursuant to subdivision 12 of § 29.1-103 of the Code of Virginia, the director of the department is hereby delegated authority to propose adoption of modifications and amendments to the Federal Endangered and Threatened Species List in accordance with the procedures of §§ 29.1-501 and 29.1-502 of the Code of Virginia.

B. In addition to the provisions of subsection A of this section, the following species are declared endangered or threatened in this Commonwealth, and are afforded the protection provided by Article 6 (§ 29.1-563 et seq.) of Chapter 5 of Title 29.1 of the Code of Virginia:

C. It shall be unlawful to take, transport, process, sell, or offer for sale within the Commonwealth any threatened or endangered species of fish or wildlife except as authorized by law.

D. The incidental take of certain species may occur in certain circumstances and with the implementation of certain conservation practices as described in this subsection:

4VAC15-20-240. Use of drones for certain activities prohibited.

A. Except as authorized by the director or the director's designee, it shall by unlawful at any time for any person to use a drone or unmanned aircraft:

1. To hunt, take, or kill a wild animal or to drive or herd any wild animal for the purpose of hunting, trapping, or killing.

2. To attempt to locate, surveil, aid, or assist in the hunting of any wild animal.

3. To harass any wild animal. For the purposes of this section, "harass" means any action that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns, which include breeding, feeding, or sheltering.

4. On department-owned lands, except that department employees and contractors or agents acting on behalf of the department may use drones or other unmanned aircraft when addressing human safety, law enforcement, management, or other needs approved by the department.

B. No part of this section shall be construed to restrict the use of drones or other unmanned aircraft for wildlife management activities conducted or authorized by the department; by [ United States government agency ] employees [ of the United States government or any of its agencies ] whose responsibility includes fisheries and wildlife management; or by county, city, or town animal control officers in the performance of their official duties [ related to public health concerns or problem wildlife ].

DOCUMENTS INCORPORATED BY REFERENCE (4VAC15-20)

List of Native and Naturalized Fauna of Virginia, 2018, Virginia Department of Game and Inland Fisheries

Federal Endangered and Threatened Animal Species as of August 4, 2016

[ Federal Endangered and Threatened Animal Species as of February 26, 2019

Federal Endangered and Threatened Animal Species as of May 7, 2019 ]

Title of Regulation: 4VAC15-90. Game: Deer (amending 4VAC15-90-10, 4VAC15-90-70, 4VAC15-90-80, 4VAC15-90-89, 4VAC15-90-90, 4VAC15-90-91, 4VAC15-90-293).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the Code of Virginia.

Effective Date: August 1, 2019.

Agency Contact: Aaron Proctor, Regulations Coordinator, Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-8341, or email aaron.proctor@dgif.virginia.gov.

Summary:

The amendments (i) adjust deer bag limits in localities across the Commonwealth and (ii) clarify prohibitions on feeding cervids and transporting cervid parts.

4VAC15-90-10. Open season; generally.

A. It shall be lawful to hunt deer in the following localities, including the cities and towns therein, during the following seasons, all dates inclusive.

B. Except as provided in subsection A of this section, east of the Blue Ridge Mountains deer may be hunted from the Saturday prior to the third Monday in November through the first Saturday in January, both dates inclusive, within the incorporated limits of any city or town that allows deer hunting.

C. Except as provided in subsection A of this section, west of the Blue Ridge Mountains deer may be hunted from the Saturday prior to the third Monday in November and for 14 consecutive days following within the incorporated limits of any city or town that allows deer hunting.

4VAC15-90-70. Archery hunting.

A. It shall be lawful to hunt deer during the early special archery season with archery equipment or a slingbow from the first Saturday in October through the Friday prior to the third Monday in November, both dates inclusive.

B. In addition to the season provided in subsection A of this section, it shall be lawful to hunt deer during the late special archery season with archery equipment or a slingbow:

1. From the Sunday following the close of the general firearms season on deer through the first Saturday in January, both dates inclusive, in (i) in all cities, towns, and counties west of the Blue Ridge Mountains (except Clarke County and on non-national forest lands in Frederick County); (ii) in the Counties (including the cities and towns within) of Amherst (west of Business U.S. 29 from the James River to its intersection with U.S. 29 just south of the Town of Amherst continuing north on U.S. 29 to the Tye River), Bedford, Franklin, Henry, Nelson (west of Route 151), and Patrick; (iii) on the Chester F. Phelps Wildlife Management Area; and (iv) on national forest lands in Frederick County.

2. From December 1 through the first Saturday in January, both dates inclusive, in the Cities of Chesapeake, Suffolk (east of the Dismal Swamp Line), and Virginia Beach.

C. Deer of either sex may be taken full season during the special archery seasons as provided in subsections A and B of this section (except on PALS (Public Access Lands) in Dickenson County where it shall be unlawful to take antlerless deer during the special archery seasons provided for in subsections A and B of this section).

D. It shall be unlawful to carry firearms while hunting with archery equipment during the special archery seasons, except that a muzzleloading gun, as defined in 4VAC15-90-80, may be in the possession of a properly licensed muzzleloading gun hunter when and where a special archery deer season overlaps a special muzzleloading deer season.

E. It shall be unlawful to use dogs when hunting with archery equipment during any special archery season, except that tracking dogs as described in § 29.1-516.1 of the Code of Virginia may be used.

F. It shall be lawful to hunt antlerless deer during the special urban archery season with archery equipment or a slingbow from the first Saturday in September through the Friday prior to the first Saturday in October, both dates inclusive, and from the Sunday following the first Saturday in January through the last Sunday in March, both dates inclusive, within the incorporated limits of any city or town in the Commonwealth (except on national forest and department-owned lands) and counties with a human population density of 300 persons per square mile or more (except on national forest and department-owned lands), provided that its governing body submits by certified letter to the department prior to April 1, its intent to participate in the special urban archery season. Any city, town, or county no longer participating in this season shall submit by certified letter to the department prior to April 1 notice of its intent not to participate in the special urban archery season. When consistent with the department's deer management objectives and subject to the director's approval, a participating county may exclude from this season a geographic area or areas by submitting a clear description of such area or areas in a certified letter to the department prior to April 1.

G. It shall be lawful to hunt antlerless deer during the special urban archery season with archery equipment or a slingbow during dates specified in subsection F of this section within the boundaries of any common interest community as defined in § 55-528 of the Code of Virginia provided that (i) the association submits by certified letter to the department prior to July 1 the association's request to participate in the special urban archery season and (ii) the department approves such request.

1. The special urban archery season will in no way supersede any local ordinance, any restriction in the association's governing documents, or the requirement to obtain a landowner's permission to hunt.

2. An association no longer participating in the special urban archery season shall submit notice of the association's intent not to participate in the special urban archery season. The association shall submit the certified letter to the department prior to July 1.

3. At its discretion, the department may suspend or revoke the special urban archery season in any association upon written notice to the association.

For the purposes of this subsection, "association" means the governing board or the authorized agent of the governing board of an association of property owners, condominium unit owners, or proprietary lessees.

G. H. It shall be lawful to hunt antlerless deer during the special antlerless archery season with archery equipment or a slingbow from the Monday following the last Sunday in March through the last Sunday in April, both dates inclusive, in the Counties of Arlington, Fairfax, Loudoun, and Prince William (including the cities and towns within).

4VAC15-90-80. Muzzleloading gun hunting.

A. It shall be lawful to hunt deer during the early special muzzleloading season with muzzleloading guns from the Saturday prior to the first Monday in November through the Friday prior to the third Monday in November, both dates inclusive, in all cities, towns, and counties where deer hunting with a rifle or muzzleloading gun is permitted, except in the cities Cities of Chesapeake, Suffolk (east of the Dismal Swamp Line), and Virginia Beach.

B. It shall be lawful to hunt deer during the late special muzzleloading season with muzzleloading guns starting 21 consecutive days immediately prior to and on the first Saturday in January:

1. In all cities, towns, and counties west of the Blue Ridge Mountains (except Clarke County and on non-national forest lands in Frederick County);

2. East of the Blue Ridge Mountains in the Counties (including the cities and towns within) of Amherst (west of Business U.S. 29 from the James River to its intersection with U.S. 29 just south of the Town of Amherst continuing north on U.S. 29 to the Tye River), Bedford, Franklin, Henry, Nelson (west of Route 151), and Patrick;

3. On national forest lands in Frederick County; and

4. In the Cities of Chesapeake, Suffolk (east of the Dismal Swamp Line), and Virginia Beach.

C. Deer of either sex may be taken during the entire early special muzzleloading season east of the Blue Ridge Mountains unless otherwise noted in this subsection:

1. Deer of either sex may be taken on the second Saturday only of the early special muzzleloading season on state forest lands, state park lands (except Occoneechee State Park), department-owned lands (except on [ Featherfin and ] Merrimac Farm Wildlife Management [ Area) Areas) ], and Philpott Reservoir.

2. Antlered bucks only—no either-sex deer hunting days during the early special muzzleloading season on national forest lands in Amherst, Bedford, and Nelson Counties.

D. Deer of either sex may be taken on the second Saturday only during the early special muzzleloading season west of the Blue Ridge Mountains unless otherwise noted in this subsection:.

1. Deer of either sex may be taken during the entire early special muzzleloading season in Clarke and Floyd Counties and on private lands in Botetourt, Carroll, Frederick, Grayson, Montgomery, Pulaski, Roanoke, Rockingham (east of Routes 613 and 731), Scott, Shenandoah, and Warren, and Wythe Counties.

2. Deer of either sex may be taken on the second Saturday and the last five days of the early muzzleloading season on private lands in Botetourt County.

3. 2. Antlered bucks only—no either-sex deer hunting days during the early special muzzleloading season in Buchanan, Dickenson, Lee, Russell, Tazewell, and Wise Counties and on national forest lands in Alleghany, Bland, Craig, Frederick, Giles, Grayson, Montgomery, Page, Pulaski, Rockingham, Scott, Shenandoah, and Warren Counties, and on national forest and department-owned lands in Augusta, Bath, Botetourt, Carroll, Highland (except Highland Wildlife Management Area), Roanoke, Rockbridge, Smyth, Washington, and Wythe Counties and on Channels State Forest, Grayson Highlands State Park, Hungry Mother State Park, and on private lands west of Routes 613 and 731 in Rockingham County.

E. Deer of either sex may be taken during the last six days of the late special muzzleloading season unless otherwise listed in this subsection:

1. Deer of either sex may be taken full season during the entire late special muzzleloading season in the Counties (including the cities and towns within) of Amherst (west of Business U.S. 29 from the James River to its intersection with U.S. 29 just south of the Town of Amherst continuing north on U.S. 29 to the Tye River, except on national forest lands), Bedford (except on national forest lands), Floyd, Franklin, Henry, Nelson (west of Route 151, except on national forest lands), and Patrick and on private lands in Botetourt, Carroll, Grayson, Montgomery, Pulaski, Roanoke, Rockingham (east of Routes 613 and 731), Shenandoah, and Warren, and Wythe Counties.

2. Deer of either sex may be taken the last day only during the late special muzzleloading season in Alleghany, Bath, Dickenson, Highland, Lee, Russell, Tazewell, and Wise Counties and on national forest lands in Amherst, Bedford, Bland, Craig, Frederick, Giles, Grayson, Montgomery, Nelson, Page, Pulaski, Rockingham, Scott, Shenandoah, and Warren Counties, and on national forest and department-owned lands in Augusta, Botetourt, Carroll, Roanoke, Rockbridge, Smyth, Washington, and Wythe Counties and on private lands west of Routes 613 and 731 in Rockingham County, Channels State Forest, and Grayson Highlands State Park, and Hungry Mother State Park.

3. Antlered bucks only—no either-sex deer hunting days during the late special muzzleloading season in Buchanan County.

F. Deer of either sex may be taken full season during the special muzzleloading seasons within the incorporated limits of any city or town in the Commonwealth that allows deer hunting except in the Cities of Chesapeake, Suffolk, and Virginia Beach.

G. It shall be unlawful to hunt deer with dogs during any special season for hunting with muzzleloading guns, except that tracking dogs as described in § 29.1-516.1 of the Code of Virginia may be used.

H. A muzzleloading gun, for the purpose of this section, means a single shot weapon, [ .45 caliber or larger, ] firing a single projectile or sabot (with a .35 caliber or larger projectile) of the same caliber [ where the propellant and projective are ] loaded from the muzzle of the weapon and propelled by at least 50 grains of black powder (or black powder equivalent or smokeless powder).

I. It shall be unlawful to have in immediate possession any firearm other than a muzzleloading gun while hunting with a muzzleloading gun in a special muzzleloading season.

4VAC15-90-89. Earn a buck (EAB).

For the purposes of this section, the term "license year" defines the period between July 1 and June 30 of the following year.

Albemarle County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Albemarle County prior to taking at least one antlerless deer on private lands in Albemarle County, and it shall be unlawful to take a third antlered deer on private lands in Albemarle County prior to taking at least two antlerless deer on private lands in Albemarle County.

Arlington County. During a license year, it shall be unlawful to take a second antlered deer in Arlington County prior to taking at least two antlerless deer in Arlington County, and it shall be unlawful to take a third antlered deer in Arlington County prior to taking at least three antlerless deer in Arlington County.

Bedford County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Bedford County prior to taking at least one antlerless deer on private lands in Bedford County, and it shall be unlawful to take a third antlered deer on private lands in Bedford County prior to taking at least two antlerless deer on private lands in Bedford County.

Clarke County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Clarke County prior to taking at least one two antlerless deer on private lands in Clarke County.

Culpeper County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Culpeper County prior to taking at least one antlerless deer on private lands in Culpeper County, and it shall be unlawful to take a third antlered deer on private lands in Culpeper County prior to taking at least two antlerless deer on private lands in Culpeper County.

Fairfax County. During a license year, it shall be unlawful to take a second antlered deer in Fairfax County prior to taking at least two antlerless deer in Fairfax County, and it shall be unlawful to take a third antlered deer in Fairfax County prior to taking at least three antlerless deer in Fairfax County.

Fauquier County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Fauquier County prior to taking at least one antlerless deer on private lands in Fauquier County, and it shall be unlawful to take a third antlered deer on private lands in Fauquier County prior to taking at least two antlerless deer on private lands in Fauquier County.

Floyd County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Floyd County prior to taking at least one antlerless deer on private lands in Floyd County.

Franklin County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Franklin County prior to taking at least one antlerless deer on private lands in Franklin County, and it shall be unlawful to take a third antlered deer on private lands in Franklin County prior to taking at least two antlerless deer on private lands in Franklin County.

Frederick County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Frederick County prior to taking at least one two antlerless deer on private lands in Frederick County.

Grayson County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Grayson County prior to taking at least one antlerless deer on private lands in Grayson County.

Hanover County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Hanover County prior to taking at least one antlerless deer on private lands in Hanover County, and it shall be unlawful to take a third antlered deer on private lands in Hanover County prior to taking at least two antlerless deer on private lands in Hanover County.

Henrico County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Henrico County prior to taking at least one antlerless deer on private lands in Henrico County, and it shall be unlawful to take a third antlered deer on private lands in Henrico County prior to taking at least two antlerless deer on private lands in Henrico County.

James City County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in James City County prior to taking at least one antlerless deer on private lands in James City County, and it shall be unlawful to take a third antlered deer on private lands in James City County prior to taking at least two antlerless deer on private lands in James City County.

Loudoun County. During a license year, it shall be unlawful to take a second antlered deer in Loudoun County prior to taking at least two antlerless deer in Loudoun County, and it shall be unlawful to take a third antlered deer in Loudoun County prior to taking at least three antlerless deer in Loudoun County.

Montgomery County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Montgomery County prior to taking at least one antlerless deer on private lands in Montgomery County.

Prince George County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Prince George County prior to taking at least one antlerless deer on private lands in Prince George County, and it shall be unlawful to take a third antlered deer on private lands in Prince George County prior to taking at least two antlerless deer on private lands in Prince George County.

Prince William County except on Department of Defense lands. During a license year, it shall be unlawful to take a second antlered deer in Prince William County (except on Department of Defense lands) prior to taking at least two antlerless deer in Prince William County (except on Department of Defense lands), and it shall be unlawful to take a third antlered deer in Prince William County (except on Department of Defense lands) prior to taking at least three antlerless deer in Prince William County (except on Department of Defense lands).

Pulaski County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Pulaski County prior to taking at least one antlerless deer on private lands in Pulaski County.

Rappahannock County. During a license year, it shall be unlawful to take a second antlered deer in Rappahannock County prior to taking at least one antlerless deer in Rappahannock County, and it shall be unlawful to take a third antlered deer in Rappahannock County prior to taking at least two antlerless deer in Rappahannock County.

Roanoke County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Roanoke County prior to taking at least one antlerless deer on private lands in Roanoke County.

Shenandoah County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Shenandoah County prior to taking at least one antlerless deer on private lands in Shenandoah County.

Warren County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in Warren County prior to taking at least one two antlerless deer on private lands in Warren County.

York County on private lands. During a license year, it shall be unlawful to take a second antlered deer on private lands in York County prior to taking at least one antlerless deer on private lands in York County, and it shall be unlawful to take a third antlered deer on private lands in York County prior to taking at least two antlerless deer on private lands in York County.

Cities and towns. During a license year in any town or city (except Chesapeake, Suffolk, and Virginia Beach) east of the Blue Ridge Mountains, it shall be unlawful to take a second antlered deer prior to taking at least one antlerless deer in that town or city, and it shall be unlawful to take a third antlered deer prior to taking at least two antlerless deer in that town or city. During a license year in any town or city west of the Blue Ridge Mountains, it shall be unlawful to take a second antlered deer prior to taking at least one antlerless deer in that town or city.

4VAC15-90-90. Bag limit, bonus deer permits [ , ] and special antlerless provision for youth hunters.

A. The bag limit for deer east of the Blue Ridge Mountains (except on national forest lands in Amherst, Bedford, and Nelson Counties) is two per day, six per license year, three of which must be antlerless unless otherwise noted in this subsection.

1. The daily bag limit for deer is unlimited in the Counties (including the cities and towns within) of Arlington, Fairfax, Loudoun, and Prince William.
2. Only one deer per day may be taken on national forest lands in Amherst, Bedford, and Nelson Counties.

3. Only one elk per day may be taken east of the Blue Ridge Mountains.

B. The bag limit for deer west of the Blue Ridge Mountains and on national forest lands in Amherst, Bedford, and Nelson Counties is one two per day, five per license year, three of which must be antlerless unless otherwise noted in this subsection.

1. The daily bag limit for deer is two per day on private lands in the Counties (including the cities and towns within) of Clarke, Frederick, Roanoke, Shenandoah, and Warren Only one deer per day may be taken on national forest, department-owned, and department-managed lands west of the Blue Ridge Mountains.

2. If a deer hunter kills two antlered bucks in a license year in Alleghany, Augusta, Bath, Highland, or Rockbridge, Rockingham, or Shenandoah County, at least one of the antlered bucks must have at least four antler points, one inch or longer, on one side of the antlers. This subdivision shall not apply to any county designated by the department within 25 miles of a confirmed detection of Chronic Wasting Disease.

3. Only one elk per day may be taken west of the Blue Ridge Mountains.

C. Except as noted in subsection E of this section, antlerless deer may be taken only during designated either-sex deer hunting days during the special archery seasons, special muzzleloading seasons, and the general firearms season.

D. Bonus deer permits shall be valid on private land in counties and cities where deer hunting is permitted (except Buchanan, Dickenson, and Wise Counties) during the special archery seasons, special muzzleloading seasons, and the general firearms season. Bonus deer permits shall be valid on public lands, including state parks, state forests, national wildlife refuges, military areas, etc., as authorized by the managing agency. Unless otherwise posted or authorized in writing for wildlife management areas by the department, or for national forest lands by the U.S. Forest Service, the use of bonus permits is prohibited on department-owned and national forest lands. Bonus deer permits shall be valid for antlerless deer only. Deer taken on bonus permits shall count against the daily bag limit but are in addition to the seasonal bag limit.

E. Deer hunters 15 years of age and under younger, including those exempt from purchasing a hunting license and holders of an apprentice hunting license, when in compliance with all applicable laws and license requirements, may take one antlerless deer per license year on days other than designated either-sex deer hunting days during the special muzzleloading seasons or the general firearms season in all counties that have at least one either-sex deer hunting day during the general firearms deer season.

4VAC15-90-91. General firearms season either-sex deer hunting days.

A. During the general firearms deer season, deer of either sex may be taken within:

Accomack County: full season.

Albemarle County: full season.

Alleghany County: the second Saturday and the last day.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Amelia County: the second and third Saturdays and the last 13 days.

-Amelia WMA: the second and third Saturdays and the last six days.

Amherst County (east of Business U.S. 29 from the James River to its intersection with U.S. 29 just south of the Town of Amherst continuing north on U.S. 29 to the Tye River): the second and third Saturdays and the last 29 days.

Amherst County (west of Business U.S. 29 from the James River to its intersection with U.S. 29 just south of the Town of Amherst continuing north on U.S. 29 to the Tye River): full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Appomattox County: the second and third Saturdays and the last six days.

-Appomattox-Buckingham State Forest: the second and third Saturdays.

-Featherfin WMA: [ the second and third Saturdays and the last 29 days full season ].

Arlington County: full season.

Augusta County: the second Saturday and the last six days full season.

-National forest and department-owned lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Bath County: the second Saturday and the last day.

-National forest and department-owned lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Bedford County: full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Bland County: the second Saturday and the last day.

-National forest lands: the second Saturday and the last day.

Botetourt County: full season.

-National forest and department-owned lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Brunswick County: the second and third Saturdays and the last six days.

Buchanan County: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Buckingham County: the second and third Saturdays and the last six days.

-Horsepen Lake WMA: the second and third Saturdays and the last six days.

-Appomattox-Buckingham State Forest: the second and third Saturdays.

-Featherfin WMA: [ the second and third Saturdays and the last 29 days full season ].

Campbell County (east of Norfolk Southern Railroad): the second and third Saturdays and the last 29 days.
Campbell County (west of Norfolk Southern Railroad): full season.

Caroline County: the second and third Saturdays and the last six days.

-Mattaponi WMA: the second and third Saturdays and the last six days.

Carroll County: full season.

-National forest and department-owned lands: the second Saturday and the last day.

Charles City County: the second and third Saturdays and the last 13 29 days.

-Chickahominy WMA: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Charlotte County: the second and third Saturdays and the last six days.

Chesapeake (City of): the second and third Saturdays and the last 13 days.

Chesterfield County: the second and third Saturdays and the last six days.

Clarke County: full season.

Craig County: full season.

-National forest and department-owned lands: the second Saturday and the last day.

Culpeper County: full season.

-Chester F. Phelps WMA: the second Saturday and the last day.

Cumberland County: the second and third Saturdays and the last 13 days.

-Cumberland State Forest: the second and third Saturdays.

Dickenson County: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Dinwiddie County: the second and third Saturdays and the last six days.

Essex County: the second and third Saturdays and the last six days.

Fairfax County: full season.

Fauquier County: full season.

-G. Richard Thompson WMA: the second Saturday and the last day.

-Chester F. Phelps WMA: the second Saturday and the last day.

Floyd County: full season.

Fluvanna County: second and third Saturdays and the last 13 days.

Franklin County: full season.

-Philpott Reservoir: the second Saturday and the last six days.

-Turkeycock Mountain WMA: the second Saturday and the last six days.

Frederick County: full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Giles County: full season.

-National forest lands: the second Saturday and the last day.

Gloucester County: the second and third Saturdays and the last six days.

Goochland County: the second and third Saturdays and the last 29 days.

Grayson County: full season.

-National forest lands and Grayson Highlands State Park: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Greene County: full season.

Greensville County: the second and third Saturdays and the last six days.

Halifax County: the second and third Saturdays and the last 13 days.

Hanover County: full season.

Henrico County: full season.

Henry County: the second and third Saturdays and the last 13 days.

-Fairystone Farms WMA, Fairystone State Park, and Philpott Reservoir: the second Saturday and the last six days.

-Turkeycock Mountain WMA: the second Saturday and the last six days.

Highland County: the second Saturday and the last day.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

-Department-owned lands: the second Saturday and the last day.

Isle of Wight County: full season.

-Ragged Island WMA: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

James City County: full season.

King and Queen County: the second and third Saturdays and the last six days.

King George County: the second and third Saturdays and the last 13 days.

King William County: the second and third Saturdays and the last six days.

Lancaster County: the second and third Saturdays and the last 13 days.

Lee County: the second Saturday and the last two days.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Loudoun County: full season.

Louisa County: the second and third Saturdays and the last 29 days.

Lunenburg County: the second and third Saturdays and the last six days.

Madison County: full season.

-Rapidan WMA: the second and third Saturdays and the last 29 days.

Mathews County: the second and third Saturdays and the last six days.

Mecklenburg County: the second and third Saturdays and the last six days.

-Dick Cross WMA: the second and third Saturdays and the last six days.

Middlesex County: the second and third Saturdays and the last six days.

Montgomery County: full season.

-National forest lands: the second Saturday and the last day.

Nelson County (east of Route 151): the second and third Saturdays and the last 29 days.

-James River WMA: the second Saturday and the last six days.

Nelson County (west of Route 151): full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

New Kent County: the second and third Saturdays and the last 13 29 days.

Northampton County: full season.

Northumberland County: the second and third Saturdays and the last 13 days.

Nottoway County: the second and third Saturdays and the last six days.

Orange County: full season.

Page County: the second Saturday and the last two six days.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Patrick County: the second and third Saturdays and the last 13 days.

-Fairystone Farms WMA, Fairystone State Park, and Philpott Reservoir: the second Saturday and the last six days.

Pittsylvania County (east of Norfolk Southern Railroad): the second and third Saturdays and the last 29 days.

-White Oak Mountain WMA: the second Saturday and the last day.

Pittsylvania County (west of Norfolk Southern Railroad): full season.

Powhatan County: the second and third Saturdays and the last 13 29 days.

-Powhatan WMA: the second and third Saturdays and the last 13 days.

Prince Edward County: the second and third Saturdays and the last six days.

-Briery Creek WMA: the second and third Saturdays and the last six days.

-Featherfin WMA: [ the second and third Saturdays and the last 29 days full season ].

-Prince Edward State Forest: the second and third Saturdays.

Prince George County: full season.

Prince William County: full season.

Pulaski County: full season.

-National forest lands: the second Saturday and the last day.

Rappahannock County: full season.

Richmond County: the second and third Saturdays and the last 13 days.

Roanoke County: full season.

-National forest and department-owned lands: antlered bucks only-no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Rockbridge County: the second Saturday and the last two days.

-National forest and department-owned lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Rockingham County: full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

-Private lands west of Routes 613 and 731: the last day.

Russell County: the second Saturday and the last two days.

-Clinch Mountain WMA, Hidden Valley WMA, -Department-owned lands and the Channels State Forest: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Scott County: the second Saturday and the last six days.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Shenandoah County: full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Smyth County: the second Saturday and the last six days full season.

-National forest lands, Clinch Mountain WMA, department-owned lands, and Hungry Mother State Park: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Southampton County: full season.

Spotsylvania County: the second and third Saturdays and the last 29 days.

Stafford County: full season.

Suffolk (east of the Dismal Swamp Line): the second and third Saturdays and the last 13 days.

Suffolk (west of the Dismal Swamp Line): full season.

Surry County: full season.

-Carlisle and Stewart Tracts of the Hog Island WMA: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Sussex County: full season.

-Big Woods WMA (including the Parkers Branch Tract) and Big Woods State Forest: the second and third Saturdays and the last six days.

Tazewell County: the second Saturday and the last two days.

-National forest and department-owned lands and Clinch Mountain WMA: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Virginia Beach (City of): the second and third Saturdays and the last 13 days.

Warren County: full season.

-National forest lands: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Washington County: the second Saturday and the last six days.

-National forest lands, department-owned lands, Clinch Mountain WMA, Hidden Valley WMA, and the Channels State Forest: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken the last day.

Westmoreland County: the second and third Saturdays and the last 13 days.

Wise County: antlered bucks only—no either-sex days. Only deer with antlers above the hairline may be taken.

Wythe County: full season.

-National forest and department-owned lands and Big Survey WMA: the second Saturday and the last day.

York County: full season.

B. Except as provided in the subsection A of this section, deer of either sex may be taken full season during the general firearms deer season within the incorporated limits of any city or town, state park, national wildlife refuge, or military installation that allows deer hunting or within any common interest community participating in the special urban archery season according to provisions of 4VAC15-90-70.

4VAC15-90-293. Unauthorized cervid parts, excretions, and carcass importation, movement, possession, and use.

A. For the purposes of this section and The following words or terms, when used in 4VAC15-40-285, this section, and 4VAC15-90-294, shall have the following meanings unless the context clearly indicates otherwise:

"Cervid" means any member of the deer family Cervidae, including but not limited to white-tailed deer, fallow deer, sika deer, elk, and reindeer.

"Import" means to transport a carcass or carcass parts, other than those outlined in subsection B of this section, into the Commonwealth in such a manner that the carcass or carcass parts are removed from their place of storage within a vehicle or other conveyance and placed or deposited within the Commonwealth. Deer harvested on properties that span the Commonwealth's boundary with an adjoining state shall not be considered imported.

B. No person shall import or possess any carcass or part of a carcass of any member of the family Cervidae (deer) originating from an enclosure intended to confine deer or elk or from any area designated by the department as a carcass-restriction zone outside of the Commonwealth, except that the following carcass parts may be imported and possessed:

1. Boned-out meat [ that is cut and wrapped ];

2. Quarters or other portions of meat with no part of the spinal column or skull attached;

3. Hides or capes with no skull attached;

4. Clean (no meat or tissue attached) skulls or skull plates with or without antlers attached;

5. Antlers (with no meat or tissue attached);

6. Upper canine teeth (buglers, whistlers, or ivories); and

7. Finished taxidermy products.

A legible label shall be affixed to packages or containers containing the allowed carcass parts bearing the following information: the species of animal, the state or province from where the animal originated, and the name and address of the person who either killed or owned the animal possesses the allowed parts in the Commonwealth.

C. Any person who imports into Virginia any deer carcass or parts described in subsection A of this section and is notified that the animal has tested positive for Chronic Wasting Disease must report the test results to the department within 72 hours of receiving the notification. In order to facilitate the proper disposal of any infected material, the department may take into possession any imported carcass or carcass part of an animal if the animal has tested positive for Chronic Wasting Disease.

D. No person shall transport any carcass or part of a carcass of any cervid out of any area designated by the department as a disease containment management area, except that the carcass parts enumerated in subsection B of this section may be transported, and carcasses or parts may be transported directly to locations designated by the department, provided that such carcasses or parts are transported without unnecessary delay and secured within a vehicle or vehicles during transit. Provisions of this section shall not apply to employees of the department or another government agency, or their designees, working in an official disease investigation or management capacity.

E. No person shall for the purposes of taking or attempting to take, attracting, or scouting any wild animal in Virginia possess or use any substance or material that contains or purports to contain any excretion collected from a cervid, including feces, urine, blood, gland oil, or other bodily fluid.

Title of Regulation: 4VAC15-240. Game: Turkey (amending 4VAC15-240-10, 4VAC15-240-20, 4VAC15-240-31, 4VAC15-240-51; adding 4VAC15-240-32).

Statutory Authority: §§ 29.1-103 and 29.1-501 of the Code of Virginia.

Effective Date: August 1, 2019.

Agency Contact: Aaron Proctor, Regulations Coordinator, Department of Game and Inland Fisheries, 7870 Villa Park Drive, Suite 400, Henrico, VA 23228, telephone (804) 367-8341, or email aaron.proctor@dgif.virginia.gov.

Summary:

The amendments adjust wild turkey seasons in localities across the Commonwealth.

4VAC15-240-10. Open season; generally.

Except as otherwise specifically provided in the sections appearing in this chapter, it shall be lawful to hunt turkeys from 14 days immediately before the Saturday prior to the last first Monday in October and for 13 days following November; on Thanksgiving Day and the day before; on the Monday nearest December 2 through the last Saturday in December, both dates inclusive; and on the second Saturday in January and for 14 days following.

4VAC15-240-20. Open season; certain counties and areas; Saturday prior to the last Monday in October and for 13 days following, and on Thanksgiving Day two-week season.

It shall be lawful to hunt turkeys on 14 days immediately before the Saturday prior to the last first Monday in October November and for 13 days following, and on Thanksgiving Day in the counties Counties of Albemarle, Alleghany, Augusta, Bath, Greene, Highland, Madison, Page, Orange, and Rockingham, and Warren.

4VAC15-240-31. Open season; certain counties and areas; Saturday prior to the last Monday in October and for 13 days following, on Thanksgiving Day, and on the Monday closest to December 2 and for 12 days following four-week season.

It shall be lawful to hunt turkeys on 14 days immediately before the Saturday prior to the last first Monday in October and for 13 days following November, on Thanksgiving Day and the day before, and on the Monday closest to December 2 and for 12 days following in the counties Counties of Accomack, Buchanan, Amelia, Charles City, Dinwiddie, Gloucester, Greensville, Isle of Wight, James City, King George, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland, Powhatan, Prince George, Richmond, Southampton, Surry, Sussex, Westmoreland, and York (except on Camp Peary), and the City of Suffolk.

4VAC15-240-32. [ Game: Turkey: open ] Open season; certain counties and areas; six-week season.

It shall be lawful to hunt turkeys 14 days immediately before the Saturday prior to the first Monday in November; on Thanksgiving Day and the day before; on the Monday nearest December 2 and for 12 days following, both dates inclusive; and on the second Saturday in January and for 14 days following in the Counties of Amherst, Appomattox, Brunswick, Buchanan, Buckingham, Campbell, Charlotte, Chesterfield, Cumberland, Floyd, Fluvanna, Frederick, Goochland, Halifax, Hanover, Henrico, Henry, Louisa, Lunenburg, Mecklenburg, Nottoway, Patrick, Pittsylvania, Prince Edward, Shenandoah, Spotsylvania, Tazewell, and Warren.

4VAC15-240-51. Youth and apprentice hunter fall turkey hunting weekend.

In counties, cities, and areas with a fall turkey season, hunters 15 years of age and under younger and holders of an apprentice hunting license may hunt turkey on the third second Saturday in October and the following calendar day when in compliance with applicable license requirements and when accompanied and directly supervised by an adult who has a valid Virginia hunting license on his person or is exempt from purchasing a hunting license. Adult hunters accompanying youth hunters or apprentice license holders on these days may assist with calling turkey but they shall not carry or discharge weapons. Youth and apprentice turkey hunters are limited on this weekend to one turkey per hunter.

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-140, 9VAC25-260-170).

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

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

Agency Contact: David Whitehurst, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4121, FAX (804) 698-4032, or email david.whitehurst@deq.virginia.gov.

Summary:

The amendments update Virginia's Water Quality Standards, including revising the bacteria criteria for human health protection in recreation waters, revising the cadmium criteria for the protection of freshwater and saltwater aquatic life, and updating 94 human health criteria parameters.

The proposed amendments to 9VAC25-260-155 to update the ammonia criteria for the protection of freshwater aquatic life as well as implementation issues and impacts to regulated dischargers were deferred by the board and are not part of this regulatory action.  

Following are the other substantive changes made since the proposed action was published:

• Changing the criteria value of butyl benzyl phthalate for "Public Water Supplies" and "All Other Surface Waters" to 1.0 ug/L to conform to the same carcinogenicity risk level (10-5) used for all other carcinogens.

• Changing 2-(2,4,5 Trichlorophenoxy) propionic acid (Silvex) for "Public Water Supplies" and "All Other Surface Waters" to 100 ug/L and 400 ug/L, respectively.

• Revising the bacteria standard so that it specifies a 90-day duration for assessment of both the geometric mean and the statistical threshold value.

• Adding language to cover the type and frequency of bacterial effluent monitoring at permitted discharges requiring disinfection and retaining the secondary contact recreation criteria language stricken at proposed.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

E. Variances to water quality standards.

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

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

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

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

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

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

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

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

F. Water effect ratio.

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

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

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

4. The WER is established in a permit proceeding, shall be described in the public notice associated with the permit proceeding, and applies only to the applicant or permittee in that proceeding. The department's action to approve or disapprove a WER is a case decision, not an amendment to the present regulation.

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

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

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

9VAC25-260-170. Bacteria; other recreational waters.

A. The following bacteria criteria [ (colony forming units (CFU)/100 ml) (counts/100ml) ] shall apply to protect primary contact recreational uses in surface waters, except waters identified in subsection B of this section:

[ In freshwater, ] E. coli bacteria shall not exceed a [ monthly ] geometric mean of 126 [ CFU/100 ml in freshwater counts/100ml ] and [ no more shall not have greater ] than [ a ] 10% [ excursion frequency ] of [ the samples in the assessment period shall exceed ] a statistical threshold value (STV) of 410 [ CFU/100 ml counts/100 ml, both in an assessment period of up to 90 days ].

[ In transition and saltwater, ] Enterococci bacteria shall not exceed a [ monthly ] geometric mean of 35 [ CFU/100 ml in transition and saltwater counts/100ml ] and [ no more shall not have greater ] than [ a ] 10% [ excursion frequency ] of [ the samples in the assessment period shall exceed ] a statistical threshold value (STV) of 130 [ CFU/100 ml counts/100ml, both in an assessment period of up to 90 days ].

1. See 9VAC25-260-140 C for boundary delineations for freshwater, transition and saltwater.

[ 2. ] Geometric means shall be calculated using all data collected during any calendar month with a minimum of four weekly samples. [ The Virginia Department of Health shall make determinations regarding beach advisories or closures. ]

3. If there are insufficient data to calculate monthly geometric means in freshwater, no more than 10% of the total samples in the assessment period shall exceed 235 E. coli CFU/100 ml.

4. If there are insufficient data to calculate monthly geometric means in transition and saltwater, no more than 10% of the total samples in the assessment period shall exceed enterococci 104 CFU/100 ml.

5. For beach advisories or closures, a single sample maximum of 235 E. coli CFU/100 ml in freshwater and a single sample maximum of 104 enterococci CFU/100 ml in saltwater and transition zones shall apply.

[ 2. In VPDES discharges to freshwater, bacteria in effluent requiring disinfection shall not exceed a monthly geometric mean of E. coli bacteria of 126 counts/100ml. Alternative performance standards may be established where an approved long term control plan establishes an alternative level of disinfection for a combined sewer system.

In VPDES discharges to transition and saltwater, bacteria in effluent requiring disinfection shall not exceed a monthly geometric mean of enterococci bacteria of 35 counts/100ml.

B. The following bacteria criteria per 100 ml (CFU/100 ml) of water shall apply:

E. coli bacteria shall not exceed a monthly geometric mean of 630 CFU/100 ml in freshwater.

Enterococci bacteria shall not exceed a monthly geometric mean of 175 CFU/100 ml in transition and saltwater.

1. See 9VAC25-260-140 C for boundary delineations for freshwater, transition and saltwater.

2. Geometric means shall be calculated using all data collected during any calendar month with a minimum of four weekly samples.

3. If there is insufficient data to calculate monthly geometric means in freshwater, no more than 10% of the total samples in the assessment period shall exceed 1173 E. coli CFU/100 ml.

4. If there is insufficient data to calculate monthly geometric means in transition and saltwater, no more than 10% of the total samples in the assessment period shall exceed 519 enterococci CFU/100 ml.

5. Where the existing water quality for bacteria is below the geometric mean criteria in a water body designated for secondary contact in subdivision 6 of this subsection that higher water quality will be maintained in accordance with 9VAC25-260-30 A 2.

6. Surface waters designated under this subsection are as follows:

a. (Reserved)

b. (Reserved)

c. (Reserved) ]

Title of Regulation: 11VAC10-50. Racing Officials (amending 11VAC10-50-10, 11VAC10-50-70).

Statutory Authority: § 59.1-369 of the Code of Virginia.

Effective Date: July 8, 2019.

Agency Contact: Kimberly Mackey, Regulatory Coordinator, Virginia Racing Commission, 5707 Huntsman Road, Suite 201-B, Richmond, VA 23250, telephone (804) 966-7406, or email kimberly.mackey@vrc.virginia.gov.

Summary:

The amendments (i) eliminate the "every five year" fingerprint requirement, giving the commission discretion to require fingerprints based on the type of permit and responsibilities of the individual applying for a racing official permit and (ii) allow for the use of microchips and digital tattoos to identify horses entering the paddock.

Part I
General

11VAC10-50-10. Generally.

No racing official shall participate in any horse racing subject to the jurisdiction of the commission or in the conduct of a race meeting or pari-mutuel wagering of the race meeting unless the person possesses a permit from the commission and complies with the provisions of the Act of the General Assembly creating Horse Racing and Pari-Mutuel Betting Chapter 29 (§ 59.1-364 et seq.) of Title 59.1 of the Code of Virginia and the regulations of the commission. Permits issued by the commission are not transferable.

A. Application for permit. A person desiring to obtain a permit as a racing official shall make an application for a permit on a form prescribed by the commission. The application shall be accompanied by a fee prescribed by the commission and shall include the cost of fingerprinting and a background investigation. The applicant shall be fingerprinted upon making his initial application in the Commonwealth and at least once every five years thereafter. However, the commission, in its discretion, may require fingerprints from any applicant or holder of a permit at any time. The application shall be verified by the oath or affirmation of the applicant. In addition, the applicant shall demonstrate that he:

1. Is of good moral character and reputation;

2. Is experienced in horse racing;

3. Is familiar with the duties the applicant is applying to do and with the regulations of the commission;

4. Possesses the mental and physical capacity to perform the duties of the position; and

5. An applicant whose vision is essential to the performance of his duties shall take and satisfactorily pass an optical examination every two years. The eye examination results must show natural or corrected 20-20 vision and an ability to distinguish colors correctly.

B. Fee schedule. Before submitting an application for a permit as a racing official, the applicant shall consult the fee schedule of the Virginia Racing Commission to ascertain the applicable fee, make out a check or money order payable to the Virginia Racing Commission or pay in cash the full amount of the fee, and submit the fee with the application.

C. Consideration by commission. The commission shall promptly consider an application and shall issue or deny the permit based on information in the application and all other information before it the commission, including any investigation it the commission deems appropriate. If an application is approved, the commission shall issue a permit, and the permit shall be valid for one year.

D. Denial of application. The commission shall deny the application, if it finds that the issuance of a permit to a person as a racing official would not be in the interests of the people of the Commonwealth, or the horse racing industry of the Commonwealth or would reflect adversely on the honesty and integrity of the horse racing industry in the Commonwealth. The commission shall also deny the application, if it finds that the applicant:

1. Has knowingly made a false statement of a material fact in the application, or has deliberately failed to disclose any information requested by the commission;

2. Is or has been guilty of any corrupt or fraudulent practice or conduct in connection with any horse race meeting in this or any other state;

3. Has knowingly failed to comply with the provisions of the Act Chapter 29 (§ 59.1-364 et seq.) of Title 59.1 of the Code of Virginia or the regulations of the commission;

4. Has had a permit to engage in activity related to horse racing denied for just cause, suspended, or revoked in any other jurisdiction, and such denial, suspension, or revocation is still in effect;

5. Is unqualified to perform the duties required for the permit sought; or

6. Has been convicted of a misdemeanor or felony involving unlawful conduct or wagering, fraudulent use of a credential, unlawful transmission of information, touting, bribery, administration or possession of drugs, or any felony considered by the commission to reflect adversely on the horse racing industry in the Commonwealth.

E. Denial is final. The denial of an application by a person as a racing official shall be final unless an appeal is made by the applicant under the provisions of these the regulations of the commission.

F. Prohibited activities for racing officials. No racing official or any assistant of a racing official, while serving at any race meeting licensed by the commission, shall engage in any of the following activities:

1. Participating in the sale, purchase, or ownership of any horse which that is racing at a meeting where the racing official is serving;

2. Being involved in any way in the purchase or sale of any contract on any jockey racing at the meeting;

3. Wagering at race meetings licensed by the commission;

4. Accepting any gratuity or payment, other than regular wages or salary, directly or indirectly; or

5. Engaging in any activity that would impair a racing official's judgment or to function in his assigned capacity.

G. Reporting violations. Every racing official, and any assistant, is are responsible to report immediately to the stewards every observed violation of these the regulations of the commission as well as all violations of state and federal laws during the race meeting.

H. Single appointment. No racing official may hold more than one official position, unless at the request of the licensee or on its own motion the commission determines that, the holding of more than one appointment would not subject the official to a conflict of his interests and duties in the two official positions.

I. Emergency appointment. Any racing official who desires to leave his position or is unable to fulfill his responsibilities must first obtain permission from the commission. The licensee shall promptly appoint a successor, subject to the issuance of the appropriate permit by the commission. In the event of an emergency and the licensee is unable to appoint a successor in time to permit the orderly conduct of racing, the stewards shall immediately appoint a temporary successor.

J. Notification of commission. The list of racing officials to be employed by the licensee shall be submitted to the commission no later than 30 days prior to the opening of the race meeting. The licensee shall be responsible for submitting an application for each racing official who has not been previously issued a permit by the commission no later than 60 days prior to the opening of the race meeting.

K. Fine, suspension, and revocation. A racing official may be fined, be suspended, or have his permit revoked at any time by the commission for incompetence, failure to follow or enforce the commission's regulations, or any conduct detrimental to horse racing. The disciplinary action of the commission shall be final unless the racing official appeals the action under the provisions of this chapter.

L. Attendance at proceedings. A racing official shall attend, when requested by the stewards or commission, any hearing, appeal, or proceeding where his testimony may be material in arriving at a determination of the matter.

M. Interference with other officials. A racing official shall not interfere with the deliberations or the decision-making of other racing officials.

11VAC10-50-70. Horse identifier.

The licensee shall appoint a qualified person to act as horse identifier for the race meeting. The horse identifier shall be responsible for the proper identification of all horses entered to race. Among the duties of the horse identifier are:

1. Accompanying the commission's or licensee's veterinarian upon request during the prerace examination of all horses entered to race so as to ascertain their identity;

2. Examining every horse entered to race in the paddock for sex, age, color, markings, lip-tattoo, digital tattoo, microchip, or freeze brand number and name for comparison with the information contained on the certificate of registration;

3. Using photographs, if they exist, as an aid in identifying horses entered to race, during the prerace examination and in the paddock prior to racing;

4. Notifying both the stewards and paddock judge of any doubts he has concerning the identity of any horse entered to race; and

5. Assisting the racing secretary in the safekeeping of certificates of registration, eligibility certificates, and racing permits, and the recording any information required to be entered on these documents.

FORMS (11VAC10-50)

Application for Participants (rev. 02/07).

Application for Participants (rev. 9/2018)

Title of Regulation: 11VAC10-80. Commission Veterinarian (amending 11VAC10-80-20, 11VAC10-80-40).

Statutory Authority: § 59.1-369 of the Code of Virginia.

Effective Date: July 8, 2019.

Agency Contact: Kimberly Mackey, Regulatory Coordinator, Virginia Racing Commission, 5707 Huntsman Road, Suite 201-B, Richmond, VA 23250, telephone (804) 966-7406, or email kimberly.mackey@vrc.virginia.gov.

Summary:

The amendments allow the commission veterinarian to administer furosemide and receive compensation for furosemide administration and endoscopic examinations.

11VAC10-80-20. Restrictions.

The commission veterinarian or his assistant veterinarians shall not be permitted to treat or prescribe for any horse within the enclosure or any horse that may be entered to race, except for furosemide administration as stipulated in 11VAC10-180-80. However, this shall not preclude the commission veterinarian or his assistant veterinarians from rendering care in an emergency situation. When emergency care is rendered, the veterinarian shall submit a written report to the commission.

11VAC10-80-40. Prohibitions.

No holder of a permit shall employ or pay compensation or any gratuity to any veterinarian, either directly or indirectly, with the exception of furosemide administration and endoscopic examinations, during the term of his employment with the commission.

Title of Regulation: 11VAC10-140. Flat Racing (amending 11VAC10-140-210).

Statutory Authority: § 59.1-369 of the Code of Virginia.

Effective Date: July 8, 2019.

Agency Contact: Kimberly Mackey, Regulatory Coordinator, Virginia Racing Commission, 5707 Huntsman Road, Suite 201-B, Richmond, VA 23250, telephone (804) 966-7406, or email kimberly.mackey@vrc.virginia.gov.

Summary:

The amendment clarifies that a rider in a steeplechase race can be charged with interference for something that occurs while the horses are under the starters orders.

11VAC10-140-210. Interference.

During a race, or while under the starters orders for a steeplechase race, no jockey shall (i) strike, strike at, or touch another jockey or another jockey's horse or equipment, or (ii) jostle another horse to interfere with that jockey or horse.

Title of Regulation: 11VAC10-180. Medication (amending 11VAC10-180-10, 11VAC10-180-35, 11VAC10-180-70, 11VAC10-180-75, 11VAC10-180-90, 11VAC10-180-100, 11VAC10-180-110).

Statutory Authority: § 59.1-369 of the Code of Virginia.

Effective Date: July 8, 2019.

Agency Contact: Kimberly Mackey, Regulatory Coordinator, Virginia Racing Commission, 5707 Huntsman Road, Suite 201-B, Richmond, VA 23250, telephone (804) 966-7406, or email kimberly.mackey@vrc.virginia.gov.

Summary:

The amendments update the regulations to reflect advances in technology in order to protect the welfare of the horses competing.

11VAC10-180-10. Definitions.

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

"Bleeder" means a horse that has been diagnosed as suffering from exercise-induced pulmonary hemorrhage based on external or endoscopic examination by a commission veterinarian or a practicing veterinarian who is a permit holder in the Commonwealth of Virginia or any other jurisdiction.

"Bleeder list" means a tabulation of all bleeders to be maintained by the stewards.

"Commission" means the Virginia Racing Commission.

"Controlled substance" means a drug, substance, or immediate precursor in Schedules I through VI of the Virginia Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia) or any substance included in the five classification schedules of the federal Uniform Controlled Substances Act (21 USC § 301 et seq.).

"Furosemide list" means a tabulation of horses permitted to use the medication of furosemide on race day by declaration to the stewards, in addition to horses on the bleeder list.

"Injectable substance" means a liquid or solid substance that may require the addition of a liquid via a needle and syringe to change it the substance from a solid into a liquid, contained in a vial that can be accessed and administered only via a needle and syringe.

"Licensed veterinarian" means a veterinarian who holds a valid license to practice veterinary medicine and surgery under the applicable laws of the jurisdiction in which such person's practice is principally conducted.

"Milkshaking" or "bicarbonate loading" means administering a bicarbonate or other alkalinizing substance to a horse that elevates the horse's total carbon dioxide level or pH level above those existing naturally in the untreated horse at normal physiological concentrations as determined by the commission, regardless of the means of administration.

"Permitted race day substances" means only substances approved by the commission that are (i) administered solely for the benefit and welfare of the horse, (ii) nonperformance altering, (iii) of no danger to riders/drivers riders or drivers, and (iv) unlikely to interfere with the detection of prohibited substances.

"Prescription substance" means any substance that is administered or dispensed or labeled for use by or on the order of a licensed veterinarian for the purpose of medical treatment of an animal patient when a bona fide doctor-patient relationship has been established.

"Primary laboratory" means a facility accredited by the Racing Medication and Testing Consortium and designated by the commission for the testing of test samples.

"Prohibited substance" means any drug, medication, or chemical foreign to the natural horse, whether natural or synthetic, or a metabolite or analog thereof, the use of which is not expressly permitted by the regulations of the commission.

"Race day" means the 24-hour period before post time for the race in which the horse is entered to start.

"Reference laboratory" means a facility accredited by the Racing Medication and Testing Consortium and designated by the commission for the testing of split samples.

"Ship-in meet" means a limited meet, generally one, two, or three consecutive days of racing, to which the preponderance of horses ship in to race, leave after racing, and do not remain for daily training.

"Substance" means any drug, medication, or chemical foreign to the natural horse or human being, whether natural or synthetic, or a metabolite or analog thereof.

"Test sample" means any sample of blood, urine, saliva, or tissue obtained from a horse or person for the purpose of laboratory testing for the presence of substances.

"Tubing" means the administration to a horse of any substance via a naso-gastric tube.

11VAC10-180-35. Prohibited practices.

A. No trainer shall allow a horse to appear in a race, qualifying race, or official timed workout, when the horse contains in its system any prohibited substance, as determined by testing of blood, saliva, or urine, or any other reasonable means.

B. No person shall administer any prohibited substance to a horse on race day. Furosemide is the only substance specifically permitted for use in approved horses on race day.

C. No veterinarian or permit holder shall, without good cause, possess or administer any substance to a horse stabled within the enclosure or at any facility under the jurisdiction of the commission if the substance:

1. Has not been approved by the U.S. Food and Drug Administration (FDA) for any use (human or animal), or by the U.S. Department of Agriculture's Center for Veterinary Biologics;

2. Is on the U.S. Drug Enforcement Agency's Schedule I or Schedule II of controlled substances as prepared by the Attorney General of the United States pursuant to 21 USC §§ 811 and 812;

3. May endanger the health and welfare of the horse or endanger the safety of the rider or driver, or may adversely affect the integrity of racing; or

4. Does not have a recognized laboratory analytical method to detect and confirm its administration.

D. No person, except a veterinarian holding a valid veterinarian's permit or an assistant under his the veterinarian's immediate supervision, shall have in his possession within the enclosure of a horse racing facility any prescription substance for animal use unless:

1. The person actually possesses, within the enclosure of the horse racing facility, documentary evidence that a prescription has been issued to him for the substance by a licensed veterinarian;

2. The prescription substance is labeled with a dosage for the horse or horses to be treated with the prescription substance; and

3. The horse or horses named in the prescription are then under the care and supervision of the permit holder and are then stabled within the enclosure of the horse racing facility.

E. The possession or administration of equine growth hormone, venoms, erythropoietin (Epogen), darbepoietin, oxyglobin, Hemopure, or any analogous substance that increases oxygen-carrying capacity of the blood is prohibited. Furthermore, should the analysis of a test sample detect the presence of antibodies of erythropoietin or darbepoietin or any analogous substance in the horse's blood that indicates a history of use of these substances, the horse shall be prohibited from racing and placed on the veterinarian's list until the horse tests negative for the presence of such antibodies.

F. The use of androgenic and anabolic steroids is prohibited in racing horses as stipulated in 11VAC10-180-75.

G. The use of an extracorporal extracorporeal shockwave therapy device or radial pulse wave therapy device is prohibited on the racetrack premises and at any site that falls under the jurisdiction of the Virginia Racing Commission unless:

1. The therapy device is registered with the commission veterinarian;

2. The therapy device is used by a veterinarian who is a permit holder; and

3. Each use of the therapy device is reported to the commission veterinarian on the treatment report.

Notwithstanding the provisions above in this subsection, whether on or off the premises, a shockwave therapy device or radial pulse wave therapy device shall not be used on a racehorse fewer than 10 days before the horse is to race or train at racing speed. For the purposes of this calculation, the day of treatment shall be considered day one.

H. Tubing of horses prohibited. The tubing or dosing of any horse for any reason on race day is prohibited, unless administered for medical emergency purposes by a licensed veterinarian in which case the horse shall be scratched. The practice of administration of any substance, via a tube or other method, into a horse's stomach on race day is considered a violation of this chapter.

1. Using or possessing the ingredients or the paraphernalia associated with forced feeding to a horse of any alkalinizing agent with or without a concentrated form of carbohydrate, or administering any substance by tubing or other method on race day shall be considered a violation of this chapter.

2. Under the provisions of this subsection, endoscopic examination by a licensed veterinarian shall not be considered a violation of this chapter.

I. Notwithstanding any other provision in this chapter, no substance of any kind may be administered to a horse within four hours, or three hours for a ship-in meet, of the scheduled post time for the race in which the horse is entered. To ensure uniform supervision and conformity to this regulation this chapter, the trainer shall have each horse programmed to race stabled in its assigned stall within the enclosure of the horse race facility no fewer than five hours, or four hours for a ship-in meet, prior to post time for the respective race.

J. Intra-articular injections prohibited. Injecting any substance or inserting a needle into a joint space is prohibited within seven days prior to the horse's race.

K. Peri-neural injections prohibited. Injecting a local anesthetic or other chemical agent adjacent to a nerve is prohibited within three days prior to the horse's race.

L. Hyperbaric oxygen chamber prohibited. Subjecting a horse to therapy utilizing a hyperbaric oxygen chamber is prohibited within four days prior to the horse's race.

11VAC10-180-70. Phenylbutazone, flunixin, and other NSAIDs nonsteroidal anti-inflammatory drugs.

A. Generally. By this regulation, the Virginia Racing Commission prohibits the The use of multiple NSAIDs nonsteroidal anti-inflammatory drugs in a horse on any given day (stacking) within 96 hours prior to the horse's race is prohibited. Despite this prohibition of stacking, this regulation chapter specifically permits the use of one of either the following: (i) phenylbutazone, (ii) flunixin, or (iii) ketoprofen, (iv) firocoxib, or (v) diclofenac in racehorses in the quantities provided for in this chapter.

B. Quantitative testing. Any horse to which phenylbutazone, flunixin, or ketoprofen has been administered shall be subject to testing at the direction of the commission veterinarian to determine the quantitative levels of phenylbutazone, flunixin, and ketoprofen, firocoxib, or diclofenac, or the presence of other substances that may be present.

C. Disciplinary actions. The stewards may take disciplinary actions for reports of quantitative testing by the primary testing laboratory for levels of (i) phenylbutazone quantified at levels above 2.0 micrograms per milliliter of serum or plasma, (ii) flunixin quantified at levels above 20 ng per milliliter of serum or plasma, or (iii) ketoprofen quantified at levels above 2.0 ng per milliliter of serum or plasma, (iv) firocoxib quantified at levels above 20 ng per milliliter in serum or plasma, and (v) diclofenac quantified at levels above 5.0 ng per milliliter in serum or plasma in horses following races, qualifying races, and official timed workouts for the stewards or commission veterinarian, and. The stewards may use the most recent revision of the Association of Racing Commissioners International (RCI) Uniform Classification Guidelines for Foreign Substances and the Multiple Violations Penalty System as a guide. The stewards, in their discretion, may impose other more stringent disciplinary actions against trainers or other permit holders who violate the provisions under which (i) phenylbutazone, (ii) flunixin, or (iii) ketoprofen, (iv) firocoxib, or (v) diclofenac is permitted by the commission.

11VAC10-180-75. Androgenic and anabolic steroids.

A. All androgenic and anabolic steroids, natural or synthetic, are prohibited in racing horses, except as provided in this section.

B. Residues of the major metabolite of stanozolol, nandrolone, boldenone, and testosterone at concentrations less than the thresholds indicated in this section are permitted in test samples collected from racing horses.

C. Concentrations of these substances identified in subsection B of this section shall not exceed the following threshold concentrations:

1. Stanozolol – 100 pg/ml in serum or plasma for all horses regardless of gender.

2. Boldenone – 100 pg/ml in serum or plasma for all horses regardless of gender.

3. Nandrolone.

a. 100 pg/ml in serum or plasma in geldings, fillies, and mares.

b. Male horses other than geldings will not be tested for nandrolone.

4. Testosterone.

a. 100 pg/ml in serum or plasma in geldings, fillies, and mares.

b. Male horses other than geldings will not be tested for testosterone.

D. The presence of more than one of the four substances identified in subsection B of this section at concentrations greater than the individual thresholds indicated in subsection C of this section or a combination of any two or more substances recognized as androgenic or anabolic is prohibited.

E. The gender of each horse must be so identified for test samples submitted to the laboratory.

F. Any horse administered an androgenic or anabolic steroid to assist in the recovery from illness or injury may be placed on the veterinarian's list in order to monitor the concentration of the drug in serum or plasma. After the concentration has fallen below the designated threshold, the horse is eligible to be removed from the list.

G. The stewards may take disciplinary actions for reports of quantitative testing by the primary testing laboratory indicating the presence of one or more androgenic or anabolic steroid at concentrations above the individual thresholds indicated in subsection C of this section and may use the most recent revision of the Association of Racing Commissioners International (RCI) Uniform Classification Guidelines for Foreign Substances and the Multiple Violations Penalty System as a guide.

11VAC10-180-90. Bicarbonate testing.

A. Generally. By this regulation, the Virginia Racing Commission prohibits the The feeding or administration to a horse on race day of any bicarbonate-containing substance or other alkalinizing substance that effectively alters the serum or plasma pH or concentration of bicarbonates or carbon dioxide in the horse is prohibited.

B. Test values. A serum or plasma total carbon dioxide level exceeding 37.0 millimoles per liter constitutes a positive test.

C. Testing procedure. The stewards or commission veterinarian may, at their discretion and at any time, order the collection of test samples from any horses horse present within the enclosure for determination of serum or plasma pH or concentration of bicarbonate, carbon dioxide, or electrolytes. Preracing testing or post-race testing may be done at a time and manner directed by the commission veterinarian. Whether prerace or post-race, the sample shall consist of at least two blood tubes taken from the horse to determine the serum or plasma total carbon dioxide concentration. If the chief racing chemist finds that the total carbon dioxide levels in the tubes sample exceed the standard test values of 37.0 millimoles per liter, then he shall inform the stewards commission veterinarian of the positive test results.

D. Split samples prohibited. The procedures for split sample testing shall not apply to bicarbonate testing procedures.

E. Disciplinary actions. The stewards shall, absent mitigating circumstances specifically noted in their findings, impose the following disciplinary action for violation of this section:

1. First offense: $2,500 fine and 90-day suspension; loss of purse.

2. Second offense: $5,000 fine and 180-day suspension; loss of purse.

3. Third offense: Revocation of license.

The stewards also may refer the case to the commission for further disciplinary action.

11VAC10-180-100. Collection of samples.

A. Test barn. Test samples shall be collected in the test barn under the supervision of the commission veterinarian or his designee. The commission veterinarian may, at his discretion, permit test samples to be collected in the horse's stall or any other location he the commission veterinarian deems appropriate. Under these circumstances, the commission veterinarian shall maintain a written record of his decision.

B. Horses to be tested. The stewards or commission veterinarian may, at any time, order the taking of test samples from any horse stabled within the enclosure of the horse racing facility, prior to racing or after racing including qualifying races and official timed workouts for the stewards or commission veterinarian. However, the stewards shall designate at least one horse from each race for the collection of test samples.

C. Collection procedure.

1. The trainer or a permit holder designated by the trainer shall accompany the horse to the test barn and witness the collection and splitting of the samples. The trainer or permit holder designated by the trainer shall cooperate with the commission veterinarian and the commission's veterinary technicians in the performance of their duties. The trainer or permit holder designated by the trainer must remain with the horse until the horse is released from the test barn.

2. Horses, from which samples are to be collected, shall be escorted, following the race, directly to the test barn by the commission's veterinary technicians, and the horses shall remain in the test barn until released by the commission veterinarian, his designee, or the test barn supervisor.

3. Stable equipment, other than common necessities for washing and cooling out a horse, is prohibited in the test barn. A practicing veterinarian may attend a horse in the test barn only in the presence of the commission veterinarian or the commission's veterinary technicians.

4. During the collection of test samples, the owner or trainer, or an assistant designated by the owner or trainer, shall be present and witness the collection of the test sample, the splitting of the sample, and sealing of containers. In the case of a claimed horse, the owner or trainer, or an assistant designated by the owner or trainer in whose name the horse started, shall be present to witness the collection of the test samples.

5. The test and split samples collected from a horse shall have identification tags affixed. One portion of the tag, bearing a printed identification number, shall remain with the sealed test and split samples, and the other portion of the tag bearing the same printed identification numbers shall be detached in the presence of the witness. The commission veterinarian or his designee shall on the detached portion of the tags identify the horse from which the test and split samples were collected, the race and date, and other information deemed appropriate. The detached portion of the tag shall be witnessed by the trainer or a permit holder designated by the trainer, and shall be retained by the commission veterinarian for safekeeping.

6. A horse's identity shall be confirmed by examining its lip-tattoo, number digital tattoo, microchip, or for a Standardbred, its freeze brand number. A horse that has not been lip-tattooed or a Standardbred that has not been freeze branded properly identified using any of these methods shall be reported immediately to the stewards.

7. If, after a horse remains for a reasonable time in the test barn, a test sample of urine cannot be collected from the horse, the commission veterinarian may, at his discretion, collect a test sample of blood or permit the horse to be returned to its barn where a test sample may be collected under the supervision of the commission veterinarian or the commission's veterinary technicians.

11VAC10-180-110. Laboratory findings and reports.

A. Primary testing laboratory. The commission shall designate a primary testing laboratory for the analysis of test samples collected under the supervision of the commission veterinarian. The commission shall designate a chief racing chemist within the primary testing laboratory who shall have the authority to report his findings to the executive secretary of the commission, the stewards, and the commission veterinarian.

B. Reference laboratories. The commission shall designate one or more laboratories, other than the primary testing laboratory, as references laboratories. These laboratories will conduct confirmatory analysis of split samples. Any reference laboratory must be willing to accept split samples for confirmatory testing. Any reference laboratory shall send results to both the person requesting the testing and the commission.

C. Chief racing chemist's responsibilities. The chief racing chemist shall be responsible for (i) safeguarding and analyzing the test samples delivered to the primary testing laboratory. It shall be the chief racing chemist's responsibility to maintain, (ii) proper maintenance of equipment, (iii) adequate staffing, and (iv) acceptable procedures to thoroughly and accurately analyze test samples submitted to the primary testing laboratory.

D. Reporting procedures. The chief racing chemist shall submit to the commission veterinarian a written report as to each test sample analyzed, indicating by identification tag number whether the test sample was negative or there was a chemical identification. All confirmed positive identifications shall be submitted to the executive secretary, the stewards, and the commission veterinarian.

E. Chemical identifications. If the chief racing chemist determines that there is present in the test sample a substance or metabolites of a substance foreign to the natural horse, except those specifically permitted by the regulations of the commission, he is present in the test sample, the chief racing chemist shall submit a report of chemical identification to the executive secretary of the commission, the stewards, and the commission veterinarian. In a report of chemical identification, the chief racing chemist shall submit evidence acceptable in the scientific community and admissible in court in support of his determination.

F. Review of chemical identifications. Upon receipt of a report of a chemical identification from the chief racing chemist, the stewards shall conduct a review of the chemical identification, which shall include, but not be limited to, the chief racing chemist and the commission veterinarian. During the review, the following procedures shall apply:

1. All references to the report of a chemical identification shall be only by the identification tag number of the sample collected from the horse;

2. The chief racing chemist shall submit his written report of the chemical identification and the evidence supporting his finding;

3. The commission veterinarian shall submit a written statement to the stewards including, but not limited to, the class of the substance, the concentration level detected in the sample, if determined, and its probable effect on a racehorse;

4. The stewards may ask questions at any time and request further documentation as they deem necessary;

5. After receiving the appropriate information on the identified substance, the stewards shall determine whether the chemical identification constitutes a violation of the regulations of the commission and whether it should be deemed a positive test result. In doing so, the stewards shall consider, among other things, the concentration level reported, its likely effect on the horse, and whether environmental contamination may have contributed to the test result;

6. In the event of a positive test result, the stewards shall notify the trainer and the owner of the horse of the right to send the split sample collected from the horse to one of the reference laboratories, designated by the commission, for confirmatory testing;

7. If the trainer or the owner elects to send the split sample to a reference laboratory, the stewards shall take no disciplinary action against any permit holder until the results from the reference laboratory are received, and the findings shall be a part of the record of any subsequent hearing; and

8. The chief racing chemist's report of a chemical identification, the commission veterinarian's written statement, the results of confirmatory testing, and any other documentation submitted to the stewards shall become part of the record of any subsequent proceedings; and

9. Should the split sample not be tested by the reference laboratory due to any reason out of the commission's control, then the stewards shall hear the case based on the results of the primary testing laboratory.

G. A horse from which a positive test sample was collected may be placed on the steward's list until the stewards have made a final determination in the matter. The horse shall not be immune from resulting disciplinary action by the stewards or the commission.

H. Frozen samples. Unconsumed portions of all test samples tested by the primary testing laboratory will shall be maintained in a frozen state until cleared by the chief racing chemist and permission for their disposal is obtained from the Senior Commonwealth Steward, the Equine Medical Director, or the Executive Secretary.

I. Split samples. The commission veterinarian or his designee shall determine a minimum test sample requirement for the primary testing laboratory. If the test sample collected is less than the minimum requirement, then the entire test sample shall be sent to the primary laboratory.

If the sample collected is greater than the minimum sample requirement but less than twice that amount, the portion of the test sample that is greater than the minimum test sample requirement shall be secured as the split sample.

If the test sample collected is greater than twice the minimum test sample requirement, a portion of the sample approximately equal to the test sample shipped to the primary testing laboratory shall be secured as the split sample.

J. Storage of split samples. Split samples shall be shipped to the testing laboratory with the primary samples. The testing laboratory shall maintain the split samples in a secure and frozen state and when requested by the commission, make the split samples available for further testing, in accordance with standard protocols for maintaining the chain of evidence. Split samples shall be so maintained at the testing laboratory until permission for their release and disposal is obtained from the Senior Commonwealth Steward, the Equine Medical Director, or the Executive Secretary.

K. Shipment of split samples. The trainer or owner of the horse having been notified of a positive test result may request that the split sample be shipped to one of the reference laboratories designated by the commission. The request must be made in writing and received by the commission not later than three business days after the trainer of the horse receives notification of the positive findings. The split sample shall be shipped to the requested reference laboratory by the testing laboratory. The owner, trainer, or designee shall travel to the storage facility of the testing laboratory to witness the removal, packaging, and shipping procedure unless he has waived this opportunity in writing. Failure of the trainer, owner, or designee to appear at the designated time and place, or otherwise attempting to interfere with the shipment of the split sample or payment of the costs, shall constitute a waiver of all rights to the testing of this split sample. The cost of shipment and additional testing shall be paid in a manner satisfactory to the commission by the permit holder requesting the testing of the split sample. Upon the expiration of this three-day period, the trainer or owner relinquishes his right to request a split sample.

TITLE 12. HEALTH

STATE BOARD OF HEALTH

Final Regulation

Title of Regulation: 12VAC5-195. Virginia WIC Program (amending 12VAC5-195-20, 12VAC5-195-30, 12VAC5-195-70, 12VAC5-195-80, 12VAC5-195-90, 12VAC5-195-110, 12VAC5-195-140, 12VAC5-195-180, 12VAC5-195-200, 12VAC5-195-210, 12VAC5-195-230, 12VAC5-195-240, 12VAC5-195-280, 12VAC5-195-300, 12VAC5-195-310, 12VAC5-195-320, 12VAC5-195-340, 12VAC5-195-350, 12VAC5-195-370, 12VAC5-195-390, 12VAC5-195-410, 12VAC5-195-450, 12VAC5-195-520, 12VAC5-195-540, 12VAC5-195-550, 12VAC5-195-560, 12VAC5-195-570, 12VAC5-195-580, 12VAC5-195-590, 12VAC5-195-600, 12VAC5-195-640, 12VAC5-195-670, 12VAC5-195-680; repealing 12VAC5-195-400).

Statutory Authority: § 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Effective Date: July 24, 2019.

Agency Contact: Robin Buskey, Policy Analyst, Office of Family Health Services, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7253, or email robin.buskey@vdh.virginia.gov.

Small Business Impact Review Report of Findings: This final regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The majority of amendments resulting from a periodic review of 12VAC5-195, Virginia WIC Program, update text because of the program's transition from paper food instruments to the electronic benefits transfer (EBT) cards. Other amendments update the regulation to reflect current WIC Program policies and guidelines, including that (i) lost food instruments, which are currently in the form of EBT cards, can be replaced more than once; (ii) the local agency has no involvement in the appeal process, which is completed at the state office; (iii) the records retention requirement is reduced to three years; (iv) the minimum two-year requirement for submitting prices is removed; (v) new retailers will be reassessed within six months after authorization; (vi) the duration period for use of a single uniform retailer agreement is changed; (vii) mandatory training is no longer required once annually but instead on an as required basis; and (viii) the process for identifying and analyzing high-risk retailers is conformed to federal regulation. Finally, technical and stylistic amendments improve consistency and clarity of the regulation.

12VAC5-195-20. Purpose.

A. The Virginia WIC Women, Infants and Children (WIC) Program serves women who are breastfeeding, pregnant, or have just given birth; infants less younger than one year old; and children less younger than five years old. WIC participants must be Virginia residents and meet the financial and nutritional requirements.

B. The Virginia WIC Program provides special supplemental foods to eligible participants through a retailer delivery system (7 CFR 246.12). Food benefits are issued by local agencies to eligible participants using food instruments (7 CFR 246.10). Participants redeem their food instruments at any authorized retailer or entity. The state agency enters into an agreement with authorized retailers (7 CFR 246.12). This agreement identifies the obligations, rights, and responsibilities of both the authorized retailers and the state agency. Retailers deposit these food instruments into their bank account. The state agency pays authorized retailers a reasonable dollar amount for the foods purchased, as listed on the deposited approved food instruments list (7 CFR 246.12).

C. The state agency shall promulgate policies, guidelines, manuals, and training resources to facilitate operations of the Virginia WIC Program in accordance with its contractual agreement with Food Nutrition Service (FNS) (7 CFR 246.3); the guidelines and instructions issued by FNS in policy letters; and management evaluations and, audits, and the WIC Program State Plan of Operations.

12VAC5-195-30. Definitions.

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

"Administrative review" means the procedure through which applicants and/or or retailers may appeal a state agency's administrative action, including program disqualification, denied authorization and other adverse actions.

"Agency representative" means staff from the state agency, a local agency, a contractor, or other designated individuals trained to conduct WIC functions and monitor retailers.

"Approved food list" or "WIC Approved Food List, April 1, 2018, Virginia Department of Health" means a brochure or method used by the WIC Program to communicate to eligible participants, retailers, local agencies, and other interested parties which authorized supplemental foods may be purchased using WIC food instruments. The approved food list is a guide and must be used with the printed food instrument, which may identify specific brands or additional products not stated on the approved food list that may be purchased by participants.

"Authorization" means the process by which the state agency assesses, selects and enters into an agreement with retailers that apply or subsequently reapply to be authorized.

"CAPP Manual" or "CAPP Manual, Volume No. 1 – Policies & Procedures, Section No. 20500 – Accounts Receivable, Cardinal, August 2018, Office of the Comptroller, Commonwealth of Virginia" means the Commonwealth's Accounting Policies and Procedures (CAPP) Manual, which provides guidelines, policies, procedures, and regulations to assist and govern state agencies to develop procedures to properly account for, report, manage, and collect receivables.

"Caretaker" means a person 18 years of age or older, unless approved at the discretion of a competent professional authority, designated by a parent or legal guardian to certify an infant/child infant or child, obtain and redeem food instruments and attend nutrition education. A caretaker may be any person who has detailed knowledge of the nutritional needs and eating habits of the infant/child infant or child. A parent or legal guardian may designate one caretaker per family ID number.

"Cash value food benefits" means a special food instrument that has been issued to eligible participants for a specific dollar amount that must be used to purchase fruits and vegetables. Unless stated otherwise, all references to food instruments include cash value food benefits, as well as food and formula food instruments.

"Civil monetary penalty" or "CMP" means an administrative fine offered to a retailer in lieu of disqualification if inadequate participant access exists as determined by the state agency.

"Direct deposit ACH" means a method used to reimburse retailers for certain types of processed food instruments (i.e., "Over FI Max"). A credit is made to the retailer's designated bank account and routing number using the automated clearinghouse (ACH) process.

"Enrollment" means the process all applicants and authorized retailers must complete in order for a retailer to be eligible to accept WIC food instruments.

"FNS" means the U.S. Department of Agriculture Food and Nutrition Services.

"Food instrument" means a voucher, check, electronic benefits transfer card (EBT), coupon, or other document that is used by a participant to obtain supplemental foods.

"Formula flyer" or "Virginia WIC Program, Infant Formula Flyer, February 2018, Virginia Department of Health" means a handout or method used by the state agency to communicate to eligible participants, retailers, local agencies, and other interested parties that formulas may be purchased at authorized retailers.

"Image replacement document" or "IRD" means a legal copy of a deposited food instrument that is created and transmitted by a retailer's depository bank to the WIC Program's backend processor for payment consideration.

"Informal settlement meeting" means a meeting held with an authorized retailer or applicant representative and the state WIC director whose purpose is to review and clarify outstanding WIC Program administrative issues.

"Legal guardian" means an individual who has been appointed by a court of law or the Department of Social Services, or by other legal means, to have primary, physical custody of a minor. A legal guardian shall be authorized to provide eligibility information for an applicant, consent to medical treatment of the applicant, and shall be held legally bound if sanctions are imposed.

"NTE" means not to exceed.

"Peer group" means a classification of applicants and authorized retailers into groups based on common characteristics or criteria that affect food prices for the purpose of applying appropriate competitive price criteria to retailers at authorization and limiting payments for foods at competitive pricing levels. A retailer's peer group is used to determine competitive pricing levels at initial authorization and establish the reimbursement maximums paid by the state agency.

"Post payment "Post-payment review" means an analysis of paid food instruments redeemed by authorized retailers in order to determine if pricing and redemption discrepancies exist. Based upon this analysis, a retailer claim against the retailer may be established by the state agency.

"Prepayment edit" means a price adjustment made to the reimbursement level given to retailers. This editing process can be either automated or a manual screening of deposited food instruments done by an independent banking contractor, prior to releasing payment to authorized retailers.

"Relatives" means spouses, parents, children, brothers, sisters, aunts, uncles, nephews, nieces, grandparents, and grandchildren.

"Retailer" means a vendor, retail store, commissary, or entity authorized by the Virginia WIC Program to accept WIC food instruments for the various types of foods listed on the approved food instruments list. The term "retailer" is equivalent to the term "vendor" used in federal regulations (7 CFR 246.12).

"Retailer agreement" or "Virginia WIC Program's Retailer Agreement, January 2019, Virginia Department of Health" means a written agreement that establishes the respective roles and responsibilities of the state agency and authorized retailers in complying with federal and state requirements.

"Retailer claim" means the state agency has determined an authorized retailer committed a violation of the retailer agreement that affects the payment status of one or several food instruments.

"Retailer manual" or "Retailer Manual for the Virginia WIC Program, April 1, 2018, Virginia Department of Health" means a series of written documents that communicate administrative procedures for the Virginia WIC Program that regulate both authorized retailers and applicants. The Retailer Manual retailer manual is part of the WIC Program State Plan that must be submitted and approved by USDA.

"Sanctions" mean a penalty or "Virginia WIC Program – Sanction Violation Schedule, May 1, 2017, Virginia Department of Health" means the schedule of penalties imposed by the state agency upon an authorized retailer for a specific violation outlined in the retailer manual or retailer agreement.

"State agency" means the Virginia Department of Health and the delegated authority to the Division of Community Nutrition, which has the administrative responsibility for managing the Virginia WIC Program.

"Termination" means the act of ending a retailer's WIC Program authorization for administrative reasons that include a change of ownership, closed retailer location, voluntary withdrawal, and noncompetitive prices.

"UPC" means Universal Product Code.

"USDA memo" or "USDA Memo – SFP 09-020 Clarification on Use of the WIC Acronym and Logo, January 9, 2009, United States Department of Agriculture, Food and Nutrition Service" means a memo drafted by the federal government to provide guidance to states on the use of the WIC program's acronym and logo.

"Unique participant" means the number of unduplicated individuals who have redeemed one or more food instruments at a retail store during a specific period.

"United States "U.S. Department of Agriculture" or "USDA" means the federal agency that provides funding for the WIC Program on behalf of Congress.

"Waiting list" means a list implemented by the state agency for individual participants when the maximum caseload is reached.

"WIC sales" means annual sales based on WIC redemption paid by the state agency to an authorized retailer.

Part II
Participant Requirements

12VAC5-195-70. Eligibility requirements.

A. Adjunctive financial eligibility requirements. Adjunctive, or automatic financial eligibility is determined pursuant to 7 CFR 246.7. Documentation is required as proof of participation in programs that qualify an applicant for adjunctive financial eligibility. The state agency also allows Family Access to Medical Insurance Security Plan (FAMIS) and a $2.00 co-pay level to be used in determining adjunctive financial eligibility.

B. Local agencies shall serve institutionalized applicants if they meet all eligibility requirements.

C. For determining income eligibility, local agency personnel shall use the applicant's current or annualized income, whichever is the best indication of circumstances.

D. In determining income eligibility, the state agency shall utilize all income exclusions listed in 7 CFR 246.7.

E. Applicants who are not adjunctively financially eligible shall have financial eligibility determined using income guidelines equaling the income guidelines established under § 9 of the National School Lunch Act for reduced price school meals per 7 CFR 246.7.

F. An applicant claiming multiple fetuses shall have the stated number used at the time of certification, but shall be required to provide written verification by a physician or nurse practitioner working under the supervision of a physician within 90 60 days of certification.

12VAC5-195-80. Proof of identification.

Applicants shall present proof of identification to obtain all WIC services and benefits. This includes but is not limited to certification and subsequent certification visits, food instrument issuance, special formula issuance, nutrition education, and VOC verification of certification transfers. The local agency shall only accept the following as proof of identification:

1. Valid Medicaid card/letter card or letter;

2. Social Security card;

3. Driver's license;

4. Birth certificate;

5. Marriage license;

6. Crib card for newborns;

7. Hospital card for newborns;

8. Military identification card or discharge papers (DD214);

9. Clinic/hospital Clinic or hospital record or ID;

10. TANF/welfare TANF or welfare photo ID;

11. Refugee settlement papers;

12. Immigration or Naturalization Record (e.g., green card);

13. Passport/visa; Passport or visa; and

14. School records (ID or report card, enrollment or health record); and

15. WIC ID folder for infants of WIC participants at initial certification only.

12VAC5-195-90. Proof of residency.

A. Applicants shall present proof of residency at initial certification and subsequent certification visits. Proof of residency shall be current and include the applicant's name. The local agency shall accept the following as proof of residency:

1. Utility bills;

2. Other business mail with a Virginia address;

3. Deed, mortgage, monthly mortgage statement, or residential rental/lease rental or lease agreement;

4. Valid Virginia drivers driver's license;

5. Valid Medicaid Card or positive, official Medicaid Verification; or

6. TANF/Welfare Photo TANF or welfare photo ID.

B. Proof of residency for military personnel shall be current and include the applicant's name. The local agency shall accept the following as proof of residency for military personnel:

1. A letter from the company commander on official letterhead;

2. Copy A copy of official Department of Defense orders with Virginia installation assignment; or

3. Leave A leave and earning statement (LES) listing Virginia as the service member's home of record.

12VAC5-195-110. Caretaker.

A. A parent or legal guardian may have the privilege, but not the right, to designate one caretaker per family ID number to certify an infant or child who may obtain and redeem food instruments and attend nutrition education. The caretaker assumes all of the rights and responsibilities of the parent or legal guardian who designates him. A caretaker shall be designated only when the local agency cannot accommodate the needs of the parent to attend the local agency to obtain WIC benefits. In the absence of a parent or legal guardian, a caregiver caretaker shall provide reasonable documentation of his status as a primary caregiver caretaker. Reasons supporting the designation of a caretaker shall be documented and become part of the participant's record. The authority to implement the caretaker policy will be granted individually to local agencies by the state WIC director. The parent is always encouraged to be the primary recipient of all WIC benefits.

B. A caretaker may be designated in two situations:

1. A parent or legal guardian's declaration of hardship; or

2. The caretaker providing reasonable documentation of his role in the absence of a parent or legal guardian.

C. Local agency personnel shall discuss the option of designating a caretaker if the participant, parent, or legal guardian declares hardship that prevents him from coming to the local agency during established regular and alternative hours due to:

1. Conflict of schedules due to work, school, or some other valid reason;

2. Lack of transportation; or

3. An infant or child residing with a family member or caretaker; or

4. The parent or legal guardian being sanctioned from the program.

D. The caretaker shall provide reasonable documentation to substantiate his relationship with the infant or child and his role as primary caretaker. Reasonable documentation may include:

1. Signed caretaker designation form, WIC-311, indicating the designation of caretaker that may be obtained prior to the first local agency visit;

2. Signed and witnessed letter from the legal guardian or parent designating a caretaker and reason for the legal guardian's or parent's inability to certify an infant or child, obtain and redeem food instruments, and attend nutrition education.; or

3. Documentation of the parent or legal guardian's enrollment, residence, or confinement in a hospital treatment program, shelter, penal institution, or other institution.

12VAC5-195-140. Food instruments.

A. Food instrument issuance. All food instruments shall be issued through the automated system only after eligibility has been documented and when the participant, parent or legal guardian, caretaker, or proxy is physically present at the local agency to pick up the food instrument have their food benefits loaded, except when there is a system outage or system failure. Failure by the participant, parent, legal guardian, caretaker, or proxy to attend the initial nutrition education appointment may result in reduced WIC benefits for that month.

B. Lost food instruments. Replacement of lost, valid, not redeemed food instruments shall only occur once within the entire duration of the participant, parent, caretaker, or legal guardian's receipt of WIC services, unless approval is obtained from the state agency. Lost food instruments shall only be replaced for one of the following situations:

1. A participant leaving home because of domestic violence;

2. A change in full legal custody, including when infants/children infants or children are removed from home and placed in foster care or parental custody is changed; or

3. An event out of the control of participant, such as a fire or natural disaster that is publicly documented.

C. Stolen food instruments. Food instruments reported as stolen shall only be replaced when a police report is provided that states that the valid, not redeemed, WIC food instruments were stolen. Stolen food instruments shall not be replaced without a police report, unless costs are associated with the police report and a waiver is granted by the state agency. Stolen food instruments shall only be replaced once within the entire duration of the participant, parent, caretaker, or legal guardian's receipt of WIC services, unless approval is obtained from the state agency.

D. Mailing WIC food instruments. Food instruments shall only be mailed with prior approval from the competent professional authority for individual participants if the participant has already received the required secondary nutrition education contact or if the participant will be able to receive nutrition education at the next visit within the certification period. Justification for mailing food instruments to individuals, families and groups includes:

1. Illness or disability resulting in the participant being physically unable to be present as documented by medical records;

2. Imminent childbirth as documented by medical records;

3. Distance to travel, especially in rural areas with a minimum 60-mile roundtrip travel distance between home and the local WIC clinic, as confirmed by the local WIC coordinator;

4. Other travel distance for participants with unique transportation challenges;

5. Computer failure at the local agency site;

6. Natural disasters;

7. Complete systemwide failure of automated system; and

8. Difficulty obtaining complete prescription for a special formula that has been approved by a local WIC coordinator.

Food instruments shall only be mailed for a three-month period. Requests beyond the three-month period shall require approval by the state agency.

12VAC5-195-180. Fair hearing.

A. The Virginia WIC Program is a federally administered program. The following fair hearing procedures are a federal process with which the state agency must comply. Pursuant to 7 CFR 246.9, the state agency shall provide a hearing procedure through which any individual may appeal a state or local agency action that results in a claim against the individual for repayment of the cash value of improperly issued benefits or results in the individual's denial of participation or disqualification from the program.

B. The local agency shall inform each individual in writing of the right to a fair hearing at the time of a claim against an individual for improperly issued benefits or at the time of participation denial or of disqualification from the program.

C. A fair hearing shall be requested within 60 days of the written notification date of program denial, termination of benefits, or claim against an individual for improperly issued benefits. The request shall be made in any clear expression to present the case to a higher authority.

D. Participants who appeal the termination of benefits within 15 days must continue to receive WIC benefits until the hearing officer reaches a decision, the participant becomes categorically ineligible, or the certification period expires, whichever comes first.

E. Applicants who are denied WIC benefits at the initial certification or because of the expiration of their certification may appeal the denial but shall not receive benefits while awaiting the hearing decision.

F. The local agency shall:

1. Accept a fair hearing request verbally or in writing;

2. Contact the applicant or participant to schedule a preliminary conference within 10 calendar days of the fair hearing request; and

3. Inform the applicant or participant that a fair hearing will be conducted if the issue is not resolved at a preliminary conference.

If the issue is resolved at the conference, the applicant or participant shall sign a statement indicating that a formal fair hearing is no longer requested. If the issue is not resolved at the conference, the local agency shall contact the state agency to schedule a fair hearing.

G. F. A fair hearing will be held within 21 days of the request, unless delayed pursuant to subsection I or J, or by mutual agreement of the parties.

H. G. The state agency shall provide 10 days advanced written notice of the date, time, and place of the hearing, which shall be held in the local agency at which the participant or applicant receives WIC Program services.

I. The participant or applicant must appear at the fair hearing in person, but may be accompanied by a representative such as a relative, friend, legal counsel, or other spokesperson. The applicant or participant must indicate whether or not they will be represented by an attorney when the fair hearing request is made. The applicant or participant must also provide the state agency with copies of any written information to be used during the hearing and names of witnesses that will be called at least five days prior to the scheduled fair hearing. Failure to notify the state agency of these items may result in a rescheduled date and time for the fair hearing or the exclusion of documents and witnesses from the fair hearing.

J. The participant or applicant will have one opportunity to reschedule the fair hearing's date or time. All requests to reschedule the meeting date or time must be submitted in writing at least 24 hours before the scheduled meeting date unless an emergency occurs, as determined at the discretion of the state WIC director or designee.

K. If the participant or applicant is more than 45 minutes late from the agreed upon hearing start time, then this will be considered a "no show" unless they can provide documentation the state WIC director determines justifies the participant's or applicant's tardiness or failure to appear. This outcome means that the participant or applicant has forfeited his rights to a fair hearing.

L. H. Pursuant to 7 CFR 246.9, the state or local agency shall provide the participant, applicant, or representative an opportunity to:

1. Examine, prior to and during the hearing, the documents and records presented to support the decision under appeal, which will be sent to the applicant or participant 10 days prior to the fair hearing;

2. Be assisted or represented by an attorney or other persons;

3. Bring witnesses;

4. Advance arguments without undue interference;

5. Question or refute any testimony or evidence, including an opportunity to confront and cross examine adverse witnesses; and

6. Submit evidence to establish all pertinent facts and circumstances in the case.

M. I. The hearing officer shall hear evidence and testimony and reach a decision. The state WIC director shall provide written notification of the hearing officer's decision to the applicant or participant and the district health director within 45 days of the date of the fair hearing request. Participants whose benefits were previously denied or discontinued may receive or reapply for WIC benefits upon receipt of a favorable decision by the hearing officer.

1. Applicants denied benefits may be enrolled upon receipt of a favorable decision.

2. Participants whose benefits were previously denied or discontinued may receive or reapply for WIC benefits upon receipt of a favorable decision by the hearing officer.

N. J. The local agency and state agency shall keep the results of the hearing on file for five three years.

12VAC5-195-200. Program abuse and sanctions.

A. The state agency determines program abuse and sanctions that may be issued to applicants and participants. When more than one abuse is involved at a time, the sanction shall be based on the more serious abuse.

B. If an abuse occurs more than 12 months after the last abuse, the local agency shall process the abuse as a first offense.

C. When more than three abuses in a 12-month period occur, the local agency shall issue a three-month temporary disqualification.

D. Program abuses and assigned sanctions are as follows: