Regulations, Vol. 36 Iss. 9 Dec 23, 2019

REGISTRAR'S NOTICE: The Board of Agriculture and Consumer Services is claiming an exemption from the Administrative Process Act in accordance with § 3.2-703 of the Code of Virginia, which exempts quarantine to prevent or retard the spread of a pest into, within, or from the Commonwealth.

Title of Regulation: 2VAC5-315. Virginia Imported Fire Ant Quarantine for Enforcement of the Virginia Pest Law (amending 2VAC5-315-50).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: December 11, 2019.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, TTY (800) 828-1120, or email david.gianino@vdacs.virginia.gov.

Background: Section 3.2-703 of the Code of Virginia authorizes the Commissioner of Agriculture and Consumer Services to extend or reduce areas currently regulated for plant pests. Expansion of the fire ant quarantine became necessary after surveys conducted by the Virginia Department of Agriculture and Consumer Services (VDACS) indicated that imported fire ant populations had become established in several Virginia localities and eradication was no longer feasible. Once established, the imported fire ant has the potential to spread to noninfested areas, either through natural means or through the movement of infested articles. The quarantine is intended to prevent the artificial spread of this pest. Under the terms of the quarantine, articles at risk for transporting imported fire ants are prohibited from moving out of the quarantined area unless certified as free of imported fire ants. Imported-fire-ant-free certification can be obtained through (i) inspections conducted by VDACS or (ii) compliance agreements between businesses and VDACS that stipulate steps businesses must take to ensure regulated articles transported out of the quarantine are free of imported fire ants.

Summary:

The amendments expand the Virginia Imported Fire Ant Quarantine to include Brunswick, Greensville, Isle of Wight, Mecklenburg, and Southampton Counties and the Cities of Emporia and Franklin.

2VAC5-315-50. Regulated areas.

The following areas in Virginia are quarantined for imported fire ant:

The entire counties of:

Brunswick

Greensville

Isle of Wight

James City

Mecklenburg

Southampton

York

The entire cities of:

Chesapeake

Emporia

Franklin

Hampton

Newport News

Norfolk

Poquoson

Portsmouth

Suffolk

Virginia Beach

Williamsburg

REGISTRAR'S NOTICE: The Board of Agriculture and Consumer Services is claiming an exemption from the Administrative Process Act in accordance with § 3.2-703 of the Code of Virginia, which exempts quarantine to prevent or retard the spread of a pest into, within, or from the Commonwealth.

Title of Regulation: 2VAC5-336. Regulations for Enforcement of the Virginia Tree and Crop Pests Law - Spotted Lanternfly Quarantine (adding 2VAC5-336-10 through 2VAC5-336-130).

Statutory Authority: § 3.2-703 of the Code of Virginia.

Effective Date: December 2, 2019.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, or email david.gianino@vdacs.virginia.gov.

Background: The Spotted Lanternfly is an invasive pest that feeds on more than 70 plant species, including grapes, pome and stone fruits, hops, and Ailanthus altissima (Tree of Heaven). The Spotted Lanternfly is a threat to Virginia's grape, apple, hops, and forestry industries and can be spread long distances by people who move articles containing Spotted Lanternfly egg masses, nymphs, or adults. If allowed to spread, this pest could impact Virginia's agricultural and forestry industries. The Spotted Lanternfly was initially detected in Winchester in January 2018 and has subsequently spread into Frederick County. The purpose of this new regulation is to help prevent the movement of Spotted Lanternfly to areas of the Commonwealth that are not infested. The Spotted Lanternfly Quarantine restricts the movement of those articles that have the ability to spread the Spotted Lanternfly from quarantined areas to nonquarantined areas of the Commonwealth.

Summary:

The new regulation (i) establishes regulated articles, which are articles that pose a risk for spreading the Spotted Lanternfly, and are subject to the provisions of the regulation; (ii) requires any person conducting business to obtain a permit from the Commissioner of Agriculture and Consumer Services prior to moving regulated articles out of a quarantined area; (iii) establishes that a person must complete agency-approved training to secure a permit and that a business must maintain applicable training records and ensure that regulated articles are inspected and free of Spotted Lanternfly prior to moving such articles from a regulated (quarantined) area to a nonquarantined area; and (iv) establishes the quarantined areas as the City of Winchester and the County of Frederick.

CHAPTER 336
REGULATIONS FOR ENFORCEMENT OF THE VIRGINIA TREE AND CROP PESTS LAW - SPOTTED LANTERNFLY QUARANTINE

2VAC5-336-10. Declaration of quarantine.

A quarantine is hereby established to restrict the movement of certain articles capable of transporting Spotted Lanternfly, Lycorma delicatula, unless such articles comply with the conditions specified in this chapter.

2VAC5-336-20. Purpose of quarantine.

The purpose of this quarantine is to help prevent the artificial spread of Spotted Lanternfly to uninfested areas of the Commonwealth by regulating the movement of articles that are capable of transporting the Spotted Lanternfly. The Spotted Lanternfly is a new pest to the United States and has become established in the Commonwealth. The Spotted Lanternfly has the potential to spread to uninfested areas by natural means or through the movement of infested articles.

The Spotted Lanternfly is not native to the Commonwealth or the United States and is a threat to forests, ornamental trees, orchards, and grapes. It is not yet widely prevalent or distributed within or throughout the Commonwealth. The Board of Agriculture and Consumer Services has determined that the Spotted Lanternfly is dangerous and destructive to the agriculture, horticulture, and forests of this Commonwealth.

2VAC5-336-30. Definitions.

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

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

"Commonwealth" means the Commonwealth of Virginia.

"Compliance agreement" means a written agreement between a person engaged in growing, handling, receiving, or moving regulated articles and the department, wherein the former agrees to comply with the requirements of the compliance agreement and comply with the provisions of this chapter.

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

"Infestation" means the presence of the Spotted Lanternfly or the existence of circumstances that make it reasonable to suspect that the Spotted Lanternfly is present.

"Inspection statement" means an official document provided by the department that must be completed and accompany regulated articles moving out of the regulated area.

"Inspector" means an employee of the department or other person authorized by the commissioner to enforce the provisions of this chapter.

"Moved," "move," or "movement" means shipped; offered for shipment; received for transportation; transported; carried; or allowed to be moved, shipped, transported, or carried.

"Permit" means a document issued by the commissioner to a person to allow the movement of regulated articles out of the regulated area under conditions specified within the permit.

"Person" means the term as defined in § 1-230 of the Code of Virginia, which includes any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Regulated area" means the localities listed in 2VAC5-336-50.

"Spotted Lanternfly" means the live insect, Lycorma delicatula, in any life stage.

"Training credentials" means documentation verifying successful completion of department-approved Spotted Lanternfly training.

"Virginia Tree and Crop Pests Law" means Chapter 7 (§ 3.2-700 et seq.) of Title 3.2 of the Code of Virginia.

2VAC5-336-40. Regulated articles.

A. Any life stage of the Spotted Lanternfly, Lycorma delicatula, is regulated under the provisions of this chapter.

B. The following articles, when such articles have been stored, packed, or handled in a manner that poses a risk of Spotted Lanternfly infestation, are regulated under the provisions of this chapter:

1. All plants or plant parts, including the following: live or dead trees; nursery stock; green lumber; firewood; logs; perennial plants; garden plants or produce; stumps; branches; mulch; or composted or uncomposted chips, bark, or yard waste.

2. Outdoor industrial or construction materials or equipment; concrete barriers or structures; stone, quarry material, ornamental stone, or concrete; or construction, landscaping, or remodeling waste.

3. Shipping containers, such as wood crates or boxes.

4. Outdoor household articles, including the following: recreational vehicles; lawn tractors or mowers; grills; grill or furniture covers; tarps; mobile homes; tile; stone; deck boards; or any equipment, trucks, or vehicles not stored indoors.

5. Any means of conveyance utilized for movement of an article listed in subdivisions 1 through 4 of this subsection; any vehicle; or any trailer, wagon, or other equipment attached thereto.

C. Any other article or means of conveyance that an inspector determines presents a risk of spreading Spotted Lanternfly is regulated under the provisions of this chapter.

2VAC5-336-50. Regulated areas.

The following areas in Virginia are quarantined for Spotted Lanternfly:

1. The entire County of Frederick.

2. The entire City of Winchester.

2VAC5-336-60. Conditions governing the intrastate movement of regulated articles by a person conducting business.

A. A person conducting business may move a regulated article from a regulated area to an unregulated area under the following conditions:

1. The person moving the regulated article has been issued a permit in accordance with 2VAC5-336-80;

2. The person has inspected the regulated article and found the regulated article to be free of all life stages of Spotted Lanternfly; and

3. The shipment of the regulated article is accompanied by a Spotted Lanternfly permit and completed inspection statement.

B. A person conducting business may move a regulated article solely within a regulated area after the person has inspected the regulated article and found it to be free of all life stages of the Spotted Lanternfly. A Spotted Lanternfly permit and completed inspection statement are not required for the movement of a regulated article within a regulated area.

C. From April 1 through December 31, a person conducting business may move a regulated article that originates in an unregulated area through a regulated area under the following conditions:

1. The shipment of the regulated article is accompanied by a waybill that indicates the point of origin of the regulated article;

2. The shipment of the regulated article moves directly through the regulated area without stopping, except for refueling or due to traffic conditions, or the regulated article has been stored, packed, or handled in a manner so as to not pose a risk of infestation; and

3. The regulated article has not been combined or commingled with other articles so as to lose its individual identity.

D. During January through March, a person conducting business may move a regulated article that originates in an unregulated area through a regulated area without restriction.

E. The commissioner may issue a permit to a person moving a regulated article from a regulated area to an unregulated area or from an unregulated area through a regulated area who does not meet the requirements of this chapter when the commissioner determines the movement poses no risk of spreading Spotted Lanternfly.

F. The department may enter into a compliance agreement with a person to allow the movement of regulated articles to states or countries that have additional shipping requirements and where the compliance agreement is needed to comply with such requirements.

2VAC5-336-70. Conditions governing the intrastate movement of regulated articles by a person not conducting business.

A. A person who is not conducting business may move the regulated article from a regulated area to an unregulated area under the following conditions:

1. The person has inspected the regulated article and found it to be free of all life stages of Spotted Lanternfly; and

2. The regulated article is accompanied by a completed inspection statement.

B. A person who is not conducting business may move the regulated article within a regulated area after the person has inspected the regulated article and found it to be free of all life stages of Spotted Lanternfly. A permit and completed inspection statement are not required for the movement of a regulated article within a regulated area.

2VAC5-336-80. Issuance and cancellation of permits.

A. A person conducting business that requires the movement of a regulated article from a regulated area must obtain a permit from the commissioner.

B. To obtain a permit, a person conducting business that requires the movement of a regulated article from a regulated area shall:

1. Successfully complete department-approved training regarding identification of Spotted Lanternfly and compliance with this quarantine;

2. Submit to the department:

a. A completed Spotted Lanternfly permit application on a form provided by the department; and

b. Training credentials indicating successful completion of department-approved training;

3. Agree to train employees who move a regulated article out of a regulated area regarding identification of Spotted Lanternfly and compliance with this chapter;

4. Agree that before a regulated article is transported out of a regulated area, the person will require the regulated article to be inspected by a person who has completed Spotted Lanternfly training to ensure such article is free of Spotted Lanternfly;

5. Ensure the regulated article is moved in compliance with any additional condition deemed necessary under the Virginia Tree and Crop Pests Law to prevent the artificial spread of Spotted Lanternfly; and

6. Ensure the regulated article is eligible for unrestricted movement under all other domestic plant quarantines and regulations applicable to the regulated article.

C. An inspector may withdraw a permit orally or in writing if the inspector determines that the holder of the permit has not complied with all conditions for the use of the permit. If the withdrawal is oral, the inspector shall confirm the withdrawal and the reasons for the withdrawal in writing and communicate such to the permit holder as promptly as circumstances allow.

2VAC5-336-90. Training requirements.

A. Any person responsible for moving a regulated article under a Spotted Lanternfly permit issued by the commissioner pursuant to 2VAC5-336-80 must successfully complete department-approved training.

B. The person training employees regarding the identification of Spotted Lanternfly and compliance with this quarantine shall have successfully completed department-approved training regarding the identification of Spotted Lanternfly and compliance with this chapter.

C. All training must be documented and training records made available to the department upon request. Training records must be maintained for all current employees and include employee name, date of training, and name of person conducting the training.

2VAC5-336-100. Inspection, treatment, and disposal of regulated articles and pests.

Upon presentation of official credentials, an inspector is authorized to stop and inspect and to seize, destroy, or otherwise dispose of or require treatment or disposal of a regulated article as provided in the Virginia Tree and Crop Pests Law.

2VAC5-336-110. Prohibited entry into Virginia.

A. The movement into Virginia of a regulated article from any area outside of the Commonwealth where a federal or state plant regulatory official has determined Spotted Lanternfly to be present is prohibited unless:

1. Prior written approval is issued by the commissioner; or

2. The regulated article is being moved under a Spotted Lanternfly permit issued by the state plant regulatory official of a state where Spotted Lanternfly is known to occur.

B. The movement into Virginia of a regulated article for research purposes is permissible with the commissioner's prior written approval.

2VAC5-336-120. Nonliability of the department.

The department shall not be liable for any costs incurred by third parties whose costs result from or are incidental to inspections required under the provisions of this chapter.

2VAC5-336-130. Repeal of this quarantine.

This quarantine may be repealed by the commissioner when the commissioner is satisfied that the need for this quarantine no longer exists. Such repeal shall take place upon the date specified by the commissioner in the order that repeals this chapter.

NOTICE: Forms used in administering the regulation have been filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

FORMS (2VAC5-336)

Inspection Statement for Businesses, OPIS-SLF-2 (eff. 5/2019)

Spotted Lanternfly Permit Application Form, OPIS-SLF-1 (eff. 5/2019)

REGISTRAR'S NOTICE: The Commissioner and Board of Agriculture and Consumer Services are claiming an exemption from the Administrative Process Act in accordance with § 2.2-4002 A 13 of the Code of Virginia, which excludes regulations promulgated pursuant to § 3.2-5121 of the Code of Virginia that conform, insofar as practicable, with those promulgated under the federal Food, Drug and Cosmetic Act (21 USC § 301 et seq.). The Department of Agriculture and Consumer Services will receive and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 2VAC5-600. Regulations Pertaining to Food for Human Consumption (amending 2VAC5-600-10).

Statutory Authority: §§ 3.2-5101 and 3.2-5121 of the Code of Virginia.

Effective Date: December 2, 2019.

Agency Contact: Ryan Davis, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-8910, FAX (804) 371-7792, TTY (800) 828-1120, or email ryan.davis@vdacs.virginia.gov.

Summary:

The amendments (i) adopt by reference specific Parts in Title 21 of the Code of Federal Regulations and in Title 40 of the Code of Federal Regulations that were adopted by the U.S. Food and Drug Administration, effective April 1, 2019, and (ii) remove forms that are not required by the regulation.

2VAC5-600-10. Adoption by reference.

A. Regulations from Title 21, Chapter 1, Subchapter A, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 21, Subchapter A of the Code of Federal Regulations (Rev. April 1, ~~2010)~~ 2019) as regulations applicable in the enforcement of the Virginia Food Act by reference:

Part 73, Listing of color additives exempt from certification, Subpart A - Foods.

Part 74, Listing of color additives subject to certification, Subpart A - Foods.

Part 81, General specifications and general restrictions for provisional color additives for use in foods, drugs and cosmetics.

Part 82, Listing of certified provisionally listed colors and specifications, Subpart B—Foods, Drugs and Cosmetics.

B. Regulations from Title 21, Chapter 1, Subchapter B, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 21, Subchapter B of the Code of Federal Regulations (Rev. April 1, ~~2010)~~ 2019) as regulations applicable in the enforcement of the Virginia Food Act by reference:

Part 100, General.

Part 101, Food labeling.

Part 102, Common or usual name for nonstandardized foods.

Part 104, Nutritional quality guidelines for foods.

Part 105, Foods for special dietary use.

Part 109, Unavoidable contaminants in food for human consumption and food-packaging material.

~~Part 110, Current good manufacturing practice in manufacturing, packing, or holding human food.~~

Part 111, Current good manufacturing practice in manufacturing, packaging, labeling, or holding operations for dietary supplements.

Part 113, Thermally processed low-acid foods packaged in hermetically sealed containers.

Part 114, Acidified foods.

Part 117, Current good manufacturing practice, hazard analysis, and risk-based preventive controls for human food.

Part 120, Hazard analysis and critical control point (HACCP) systems.

Part 123, Fish and fishery products.

Part 129, Processing and bottling of bottled drinking water.

Part 133, Cheeses and related cheese products.

Part 136, Bakery products.

Part 137, Cereal flours and related products.

Part 139, Macaroni and noodle products.

Part 145, Canned fruits.

Part 146, Canned fruit juices.

Part 150, Fruit butters, jellies, preserves, and related products.

Part 152, Fruit pies.

Part 155, Canned vegetables.

Part 156, Vegetable juices.

Part 158, Frozen vegetables.

Part 160, Eggs and egg products.

Part 161, Fish and shellfish.

Part 163, Cacao products.

Part 164, Tree nut and peanut products.

Part 165, Beverages.

Part 166, Margarine.

Part 168, Sweeteners and table sirups.

Part 169, Food dressings and flavorings.

§ 170.19, Pesticide chemicals in processed foods.

Part 172, Food additives permitted for direct addition to food for human consumption.

Part 173, Secondary direct food additives permitted in food for human consumption.

Part 174, Indirect food additives: General.

Part 175, Indirect food additives: Adhesives and components of coatings.

Part 176, Indirect food additives: Paper and paperboard components.

Part 177, Indirect food additives: Polymers.

Part 178, Indirect food additives: Adjuvants, production aids, and sanitizers.

Part 179, Irradiation in the production, processing and handling of food.

Part 180, Food additives permitted in food or in contact with food on an interim basis pending additional study, Subpart B—Specific requirements for certain food additives.

Part 181, Prior-sanctioned food ingredients.

Part 182, Substances generally recognized as safe.

Part 184, Direct food substances affirmed as generally recognized as safe.

Part 186, Indirect food substances affirmed as generally recognized as safe.

Part 189, Substances prohibited from use in human food.

C. Regulations from Title 21, Chapter 1, Subchapter L, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 21, Subchapter L of the Code of Federal Regulations (Rev. April 1, ~~2010)~~ 2019) as regulations applicable in the enforcement of the Virginia Food Act by reference:

§ 1240.61, Mandatory pasteurization for all milk and milk products in final package form intended for direct human consumption.

D. Regulations from Title 40, Chapter 1, Subchapter E, Code of Federal Regulations. The Board of Agriculture and Consumer Services hereby adopts the following provisions of Chapter 1 of Title 40, Subchapter E of the Code of Federal Regulations (Rev. ~~July 1, 2010)~~ April 1, 2019) as regulations applicable to the enforcement of the Virginia Food Act by reference:

Part 180, Tolerances and exemptions for pesticide chemical residues in food.

~~FORMS (2VAC5-600)~~

~~Inspection Report, Form VDACS (undated).~~

~~Sample Collection Report (undated).~~

~~FDA/State Contract Inspection Form 481 and Instructions (rev. 7/04).~~

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

Title of Regulation: 4VAC20-252. Pertaining to the Taking of Striped Bass (amending 4VAC20-252-140, 4VAC20-252-150).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: December 1, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments (i) establish the 2020 striped bass commercial quota for the Chesapeake Bay as 983,393 pounds and the 2020 striped bass commercial quota for the coastal area as 125,034 pounds and (ii) change the beginning of the 28-inch commercial maximum size limit in the Chesapeake Bay area to March 15.

4VAC20-252-140. Commercial seasons, areas, and size limits.

Except as may be adjusted pursuant to 4VAC20-252-150, the open commercial striped bass fishing seasons, areas, and applicable size limits shall be as follows:

1. In the Chesapeake area, the open commercial season shall be from January 16 through December 31, inclusive. The minimum size limit shall be 18 inches total length during the periods of January 16 through December 31. The maximum size limit shall be 28 inches from March 26 15 through June 15.

2. In the coastal area, the open commercial season shall be January 16 through December 31, inclusive, and the minimum size limit shall be 28 inches total length.

4VAC20-252-150. Individual commercial harvest quota.

A. The commercial harvest quota for the Chesapeake area shall be determined annually by the Marine Resources Commission. The total allowable level of all commercial harvest of striped bass from the Chesapeake Bay and its tributaries and the Potomac River tributaries of Virginia for all open seasons and for all legal gear shall be ~~1,064,997~~ 983,393 pounds of whole fish. At such time as the total commercial harvest of striped bass from the Chesapeake area is projected to reach ~~1,064,997~~ 983,393 pounds, and announced as such, it shall be unlawful for any person to land or possess striped bass caught for commercial purposes from the Chesapeake area.

B. The commercial harvest quota for the coastal area of Virginia shall be determined annually by the Marine Resources Commission. The total allowable level of all commercial harvest of striped bass from the coastal area for all open seasons and for all legal gear shall be ~~138,640~~ 125,034 pounds of whole fish. At such time as the total commercial harvest of striped bass from the coastal area is projected to reach ~~138,640~~ 125,034 pounds, and announced as such, it shall be unlawful for any person to land or possess striped bass caught for commercial purposes from the coastal area.

C. For the purposes of assigning ~~an individual's~~ tags to an individual for commercial harvests in the Chesapeake area as described in 4VAC20-252-160, the individual commercial harvest quota of striped bass in pounds shall be converted to an estimate in numbers of fish per individual harvest quota based on the average weight of striped bass harvested by the permitted individual during the previous fishing year. The number of striped bass tags issued to each individual will equal the estimated number of fish to be landed by that individual harvest quota, plus a number of striped bass tags equal to 10% of the total allotment determined for each individual.

D. For the purposes of assigning ~~an individual's~~ tags to an individual for commercial harvests in the coastal area of Virginia as described in 4VAC20-252-160, the individual commercial harvest quota of striped bass in pounds shall be converted to a quota in numbers of fish per individual commercial harvest quota, based on the reported average coastal area harvest weight of striped bass harvested by the permitted individual during the previous fishing year, except as described in subsection E of this section. The number of striped bass tags issued to each individual will equal the estimated number of fish to be landed by that individual harvest quota, plus a number of striped bass tags equal to 10% of the total allotment determined for each individual.

E. For any individual whose reported average coastal area harvest weight of striped bass in the previous fishing year was less than 12 pounds, a 12-pound minimum weight shall be used to convert that individual's harvest quota of striped bass, in pounds of fish, to harvest quota in number of fish.

Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

Title of Regulation: 4VAC20-910. Pertaining to Scup (Porgy) (amending 4VAC20-910-45).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: November 26, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendment decreases the landing limit per trip for the October 1 through December 31 commercial scup fishery to 27,000 pounds.

4VAC20-910-45. Possession limits and harvest quotas.

A. During the Winter I period January 1 through April 30 of each year, it shall be unlawful for any person to do any of the following:

1. Possess aboard any vessel in Virginia more than 50,000 pounds of scup;

2. Land in Virginia more than a total of 50,000 pounds of scup during each consecutive seven-day landing period, with the first seven-day period beginning on January 1; or

3. When it is projected and announced that 80% of the coastwide quota for the Winter I period has been attained, possess aboard any vessel or land in Virginia more than a total of 1,000 pounds of scup.

B. During the Winter II period October 1 through December 31 of each year, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than ~~28,500~~ 27,000 pounds of scup.

C. During the Summer period May 1 through September 30 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 14,296 pounds, and it shall be unlawful for any person to possess aboard any vessel in Virginia more than 5,000 pounds of scup.

D. For each of the time periods set forth in this section, the Marine Resources Commission will give timely notice to the industry of calculated poundage possession limits and quotas and any adjustments thereto. It shall be unlawful for any person to possess or to land any scup for commercial purposes after any winter period coastwide quota or summer period Virginia quota has been attained and announced as such.

E. It shall be unlawful for any buyer of seafood to receive any scup after any commercial harvest or landing quota has been attained and announced as such.

F. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig, or other recreational gear to possess more than 30 scup. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 30. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any scup taken after the possession limit has been reached shall be returned to the water immediately.

REGISTRAR'S NOTICE: The State Corporation Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Constitution is expressly granted any of the powers of a court of record.

Titles of Regulations: 14VAC5-100. Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms (repealing 14VAC5-100-10 through 14VAC5-100-80).

14VAC5-101. Rules Governing Life and Health Forms Filings (adding 14VAC5-101-10 through 14VAC5-101-120).

14VAC5-110. Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies (repealing 14VAC5-110-10 through 14VAC5-110-80).

Statutory Authority: §§ 12.1-13 and 38.2-223 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: Elsie Andy, Manager, Rates and Forms Section Life and Health Division, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9072, FAX (804) 371-9944, or email elsie.andy@scc.virginia.gov.

Summary:

This regulatory action establishes a new chapter, 14VAC5-101 (Rules Governing Life and Health Forms Filings), providing current filing practices and requirements for electronic filing to replace 14VAC5-100 (Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms) and 14VAC5-110 (Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies). The new chapter contains form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements, and provisions for out-of-state and multiple employer welfare arrangements filings. The action repeals 14VAC5-100 and 14VAC5-110, which are outdated and largely inapplicable. Revisions since publication of the proposed chapter include (i) clarifying the requirement for withdrawal of a form by another regulatory body, (ii) addressing a variability standard, and (iii) more clearly outlining the statutory requirements for out-of-state filings.

AT RICHMOND, DECEMBER 3, 2019

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. INS-2019-00088

Ex Parte: In the matter of Repealing and Adopting New
Rules Governing Forms Filing for Life and Accident
and Sickness Policies

ORDER REPEALING AND ADOPTING RULES

By Order to Take Notice ("Order") entered August 5, 2019, insurers and interested persons were ordered to take notice that subsequent to September 30, 2019, the State Corporation Commission ("Commission") would consider the entry of an order to repeal Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" set out at 14 VAC 5-100-10 through 14 VAC 5-100-80; repeal Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" set out at 14 VAC 5-110-10 through 14 VAC 5-110-80; and adopt a new chapter, Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings," which were recommended to be set out at 14 VAC 5-101-10 through 14 VAC 5-101-120 unless on or before September 30, 2019, any person objecting to the repeal and adoption of rules filed a request for a hearing with the Clerk of the Commission ("Clerk").

The Order also required insurers and interested persons to file their comments in support of or in opposition to the proposal to repeal and adopt new rules with the Clerk on or before September 30, 2019.

No request for a hearing was filed with the Clerk. Comments from the American Council of Life Insurers, Genworth and Principal Financial Group were timely filed with the Clerk. Comments from the Virginia Association of Health Plans were received by the Bureau of Insurance ("Bureau") but filed late with the Clerk. All comments were considered by the Bureau. The Bureau filed its Response to Comments on November 4, 2019.

The repeal of Chapters 100 and 110 is necessary because these Rules have become outdated and many provisions are no longer applicable. The proposed new Rules in Chapter 101 address current filing practices and requirements for electronic filing. These Rules specifically establish form and filing requirements, readability requirements, variability provisions, documentation and authorization requirements as well as provisions for out-of-state and multiple employer welfare arrangements, or MEWA, filings.

Based on the comments filed, the Bureau recommends amendments to Chapter 101, notably amendments to section 50 to clarify the requirement for withdrawal of a form by another regulatory body, section 80 to address a variability standard, and section 100 to more clearly outline the statutory requirements for out-of-state filings. Other technical amendments are also recommended.

NOW THE COMMISSION, having considered the proposal to repeal and adopt rules, the comments filed, the Bureau's Response, and the amendments recommended by the Bureau as a result of the comments, is of the opinion that the attached new rules should be adopted and Chapters 100 and 110 of the Virginia Administrative Code should be repealed, effective January 1, 2020.

Accordingly, IT IS ORDERED THAT:

(1) Chapter 100 of Title 14 of the Virginia Administrative Code entitled "Rules Governing the Submission for Approval of Life, Accident and Sickness, Annuity, Credit Life and Credit Accident Sickness Policy Forms" and Chapter 110 of Title 14 of the Virginia Administrative Code entitled "Rules and Regulations for Simplified and Readable Accident and Sickness Insurance Policies" are hereby REPEALED effective January 1, 2020.

(2) Chapter 101 of Title 14 of the Virginia Administrative Code entitled "Rules Governing Life and Health Forms Filings" set out at 14 VAC 5-101-10 through 14 VAC 5-101-120, which are attached hereto and made a part hereof, are hereby ADOPTED effective January 1, 2020.

(3) The Bureau shall provide notice of the repeal and adoption of rules to all insurers licensed in Virginia to write life insurance and annuity contracts, accident and sickness insurance, and viatical settlement policies as well as to all interested persons.

(4) The Commission's Division of Information Resources shall cause a copy of this Order, together with the amended Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(5) The Commission's Division of Information Resources shall make available this Order and the attached amendments to the Rules on the Commission's website: http://www.scc.virginia.gov/case.

(6) The Bureau shall file with the Clerk of the Commission an affidavit of compliance with the notice requirements of Ordering Paragraph (3) above.

(7) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 North 9th Street, 8th Floor, Richmond, Virginia 23219; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Bureau of Insurance in care of Deputy Commissioner Julie S. Blauvelt.

CHAPTER 101
RULES GOVERNING LIFE AND HEALTH FORMS FILINGS

14VAC5-101-10. Purpose.

A. The purpose of this chapter is to provide uniform standards for filing forms in accordance with §§ 38.2-316, 38.2-3725, and 38.2-6003 of the Code of Virginia and to establish rules to expedite the review and approval of all forms relating to life, accident and sickness, annuity, credit life, credit accident and sickness, viatical settlements, and legal services plans filed under Chapter 44 (§ 38.2-4400 et seq.) of Title 38.2 of the Code of Virginia that are delivered or issued for delivery in the Commonwealth of Virginia.

B. Any rate filing submitted to the commission that corresponds with a form subject to this chapter shall comply with the applicable filing requirements of this chapter.

C. Medicare supplement and long-term care marketing communications that are required to be filed with the commission pursuant to § 38.2-3609 of the Code of Virginia and 14VAC5-200-160 shall comply with the applicable filing requirements of this chapter.

D. Policyholder notification letters required to be filed with the commission pursuant to 14VAC5-200-75 D shall comply with the applicable filing requirements of this chapter.

14VAC5-101-20. Applicability and scope.

This chapter shall apply to all companies licensed in this Commonwealth to write the types of insurance covered by this chapter.

14VAC5-101-30. Definitions.

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

"Approval" means a disposition applied to a form indicating that it has been filed by a company, reviewed and approved by the commission, and that it may be used in this Commonwealth for the purpose with which it was approved.

"Commission" means the State Corporation Commission.

"Company" means any entity licensed in the Commonwealth to transact the business of insurance or viatical settlements.

"[ ~~Filed~~ File ] for use" means a disposition applied to a form that is required to be filed with the commission but does not require approval and may be used in this Commonwealth for the purpose with which it was filed.

"Filing description" means a cover letter or electronic summary of the contents of a form filing.

"Form" means a policy, rider, endorsement, amendment, application, enrollment form, certificate of insurance, evidence of coverage, group agreement, supplemental agreement, [ ~~rate,~~ ] or any other form required to be filed with or approved by the commission.

"Policy" means an insurance policy, contract, certificate, evidence of coverage, or other agreement of insurance and includes any attached rider or endorsement.

"SERFF" means the National Association of Insurance Commissioners System for Electronic Rate and Form Filing, or its successor.

14VAC5-101-40. Source of filing.

All filings shall be transmitted electronically through SERFF or submitted in writing to the commission. The filing shall be submitted by the company representative having forms filing responsibilities or by a third-party consulting or legal firm authorized by the company to file its forms. Proof of authorization for any third-party filing shall be included.

14VAC5-101-50. General filing requirements.

A. The commission may set filing deadlines as needed. Deadlines shall be strictly enforced.

B. A form is considered filed with the commission on the date the filing is received.

C. Each filing shall be accompanied by a filing description that shall include:

1. The type of insurance form, including a description of the form and the market for which the form is intended. Intentions to concentrate on a specialized market should be noted.

2. The form number of each form that is being filed.

3. An indication that the form is new, or if replacing, revising, or modifying a previously approved form, the exact changes that are intended.

4. An identification of any change in benefits and an indication of whether the change affects premium rates for the form.

5. An indication [ ~~when~~ if approval of ] a form submitted has been withdrawn by another regulatory body and the reasons for such a withdrawal.

D. Any form to be used in only the group or only the individual market shall be separately filed.

E. Except for an application or enrollment form, each filing shall pertain to only one type of insurance. Combinations of types of insurance in one filing are otherwise prohibited, unless specifically allowed by law.

F. Any form filed that is to be used with a previously approved form, including an application, shall identify the form number, approval date, and SERFF or state tracking number in the new filing.

G. Any amendment, endorsement, or rider that intends to revise a previously approved form shall be accompanied by the previously approved form filed as supporting documentation.

14VAC5-101-60. Form requirements.

The following requirements shall be met for each form submitted for review or approval:

1. The form number shall appear in the lower left-hand corner of the first page of each form. It shall consist of numbers, letters, or a combination of both. The form number shall distinguish the form from all other forms used by the company.

2. The full licensed name of the company, including the address of the home office, shall appear in prominent print at the top of the cover page of any policy, application, or enrollment form. Examples of prominent print include print that is in all capital letters, bold, enlarged font, contrasting color, underlined, or otherwise differentiated from the other type in the form. The full licensed name of the company shall appear in prominent print on all other forms.

3. A marketing name or logo also may be used on the form, provided that the marketing name or logo does not mislead as to the identity of the company.

4. The cover page of a policy also shall include the address of an office that will administer the policy if different from the home office, a company telephone number, and company website address.

5. Each form shall be submitted in the final form in which it is to be marketed or issued, sufficiently completed in "John Doe" fashion to indicate how it is intended to be used.

6. Each form that is to be used in an electronic version shall be filed in a format that matches the electronic version exactly.

14VAC5-101-70. Readability.

A. Each form submitted for review or approval shall be written in simplified language, logically and clearly arranged, printed in a legible format, and understandable to a person of average intelligence without special insurance knowledge or training.

B. A policy of more than three pages shall include a table of contents listing the principal sections and provisions and the pages on which they are found.

C. Defined words and terms shall be placed in a separate definition section that is clearly identified. A word or term that is used only in one section may be defined within that section.

D. A policy shall be divided into logically arranged sections with an appropriately named caption or heading for ease in locating desired content. Captions and headings shall be clearly set apart from the general text.

E. Any form submitted for review or approval shall be printed in at least 10-point type size.

F. Any policy shall achieve a minimum Flesch reading ease score of 50 or an equivalent score using another comparable test, unless otherwise specified by statute. The commission may approve an alternative to the Flesch reading ease score if it is determined to be comparable. The Flesch reading ease score shall be identified in the certificate of compliance for each policy.

G. A company may request an exception to the Flesch reading ease score. This request shall identify the specific reasons why the minimum standards have not been met and provide details of the policy's Flesch reading ease score test. The commission may except the policy if, in its sole discretion, it finds that a lower score: (i) will provide a more accurate reflection of the readability of the policy; (ii) is warranted by the nature of a particular policy or type or class of policies; or (iii) is caused by certain policy language that is drafted to conform to the requirements of any state or federal law, regulation, or agency interpretation.

14VAC5-101-80. Variability.

A. Use of variable bracketed information shall be limited. [ ~~Any form submission that contains variable bracketed language that is so extensive that it cannot reasonably be reviewed shall be disapproved~~ All variable information shall be clear, easily understood, and fully explain each use of the variable language ].

B. Administrative information, such as officer names, titles and signatures, contact information, or company logo may be presented as variable bracketed text.

C. Different types of benefits may be variable only for inclusion or exclusion within the form. The use of brackets within brackets is not permitted, except when variability is necessary to identify a period of time or other numeric value.

D. Each instance of variable text shall appear in brackets on a form and shall be separately and completely explained in detail in a Statement of Variability document. Each explanation of variability shall appear in the same order that it appears on the form.

E. Requests for revisions to a Statement of Variability contained in a previously approved filing shall be accomplished by notification in the original filing.

14VAC5-101-90. Multiple employer welfare arrangement (MEWA) filings.

Any multiple employer welfare arrangement (MEWA) that has registered with the commission as a licensed insurance company in accordance with 14VAC5-410-40 shall also meet the form and rate filing requirements of §§ 38.2-316 and 38.2-316.1 of the Code of Virginia.

14VAC5-101-100. Out-of-state filings.

A. Any company that wishes to deliver a certificate of insurance to any [ ~~resident of~~ person located in ] this Commonwealth in connection with a policy issued outside of Virginia shall [ file with the commission each form that will be delivered in Virginia. The company shall demonstrate: 1. Whether the state in which the policy was issued has substantially similar laws to Virginia as defined in subdivisions A 1 through A 3 of § 38.2-3319.1 or 38.2-3522.1 of the Code of Virginia as applicable; and 2. The indicate the ] type of group (i) as defined in § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable [ , ] or (ii) a nondefined or discretionary group to which the policy is issued.

[ B. 1. ] If the group is defined in accordance with § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable, the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth will comply with the provisions of § 38.2-3318.1 or 38.2-3521.1 of the Code of Virginia as applicable.

[ C. 2. ] If the group is nondefined or discretionary and the state of issue has substantially similar laws to Virginia [ in accordance with subsection B of this section ], the company shall file [ for use ] any form that will be delivered in Virginia along with documentation that substantiates that the issuing state's filing requirements have been met. In addition, a certification from the company is required indicating that the group insurance coverage marketed to residents of this Commonwealth complies with the requirements of [ ~~subdivisions E 1 through E 3 of~~ subsection B ] this section.

[ D. 3. ] If the group is nondefined or discretionary and the state of issue does not have substantially similar laws to Virginia, the company shall file for approval any form that will be delivered in this Commonwealth in accordance with § 38.2-316 of the Code of Virginia.

[ ~~E. Any policy issued outside of Virginia shall demonstrate~~ B. Laws of another state are substantially similar to Virginia if the commission finds ] that:

1. The policy is not contrary to Virginia's public policy and is in the best interest of the citizens of Virginia;

2. The issuance of the policy will result in economies of acquisition or administration; and

3. The benefits are reasonable in relation to the premiums charged.

14VAC5-101-110. Certificate of compliance.

Each form filing shall include a statement identical to the following that is signed by an officer of the company:

The Flesch reading ease score of the filed policy form is _________.

I represent that a review of the enclosed form has been conducted, and I certify that, to the best of my knowledge and belief, each form submitted is consistent and complies with the requirements of Title 38.2 of the Code of Virginia and the applicable rules and regulations. I understand that a failure to comply with these requirements will result in a disapproval of the filing.

_______________________________

Signature of Officer

_______________________________

Printed Name

_______________________________

Title

14VAC5-101-120. Severability.

If any provision of this chapter or its application to any person or circumstance is for any reason held to be invalid by a court, the remainder of this chapter and the application of the provisions to other persons or circumstances shall not be affected.