TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Final Regulation
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, and § 3.2-704 of the Code of Virginia, which provides that the
Board of Agriculture and Consumer Services shall prohibit the importation of
any regulated article from any locality of other states, territories, or
countries, into the Commonwealth.
Title of Regulation:
2VAC5-315. Virginia Imported Fire Ant Quarantine for Enforcement of the
Virginia Pest Law (adding 2VAC5-315-10, 2VAC5-315-20, 2VAC5-315-30,
2VAC5-315-40, 2VAC5-315-50, 2VAC5-315-60, 2VAC5-315-70, 2VAC5-315-80,
2VAC5-315-90, 2VAC5-315-100, 2VAC5-315-110, 2VAC5-315-120, 2VAC5-315-130).
Statutory Authority: §§ 3.2-703 and 3.2-704
of the Code of Virginia.
Effective Date: August 31, 2009.
Agency Contact: Frank Fulgham, Program
Manager, Department of Agriculture and Consumer Services, P.O. Box 1163,
Richmond, VA 23218, telephone (804) 786-0440, FAX (804) 371-7793, TTY (800)
828-1120, or email frank.fulgham@vdacs.virginia.gov.
Summary:
This action establishes
regulated areas under the Virginia Imported Fire Ant Quarantine due to the
detection of permanently established and naturally spreading colonies of
imported fire ants in the cities of Chesapeake, Hampton, Newport News, Norfolk,
Poquoson, Portsmouth, Suffolk, Virginia Beach, and Williamsburg, as well as the
counties of James City and York. The quarantine restricts the movement of
regulated articles from regulated localities to nonregulated localities. The
regulated articles, which include soil, plants with roots and soil attached,
grass sod, used farm equipment and soil-moving equipment, honey bee hives and
logs, pulpwood, and stumpwood with soil attached, as well as hay, straw, and
pine straw that has been stored on the ground, pose a significant risk of
transporting imported fire ants. These regulated articles may move freely
within the regulated areas. The state quarantine is necessary to prevent the
United States Department of Agriculture from imposing a federal quarantine
regulating the entire state of Virginia. It is currently anticipated that a
federal quarantine covering only Virginia's regulated localities will be
implemented to prevent the spread of this pest from Virginia to noninfested
states.
CHAPTER 315
VIRGINIA IMPORTED FIRE ANT QUARANTINE FOR ENFORCEMENT OF THE VIRGINIA PEST
LAW
2VAC5-315-10. Declaration of
quarantine.
A quarantine is hereby
established to restrict the movement of certain articles capable of
transporting the imported fire ant into unregulated areas of the state unless
such articles comply with the conditions specified herein.
2VAC5-315-20. Purpose of
quarantine.
The imported fire ant is an
introduced species that is notorious for its aggressive behavior, ferocious
sting, and the damage it causes to several agricultural commodities. The
imported fire ant has become established in portions of the Commonwealth, and
has the potential to spread to uninfested areas by natural means or through the
movement of infested articles. The purpose of this quarantine is to prevent the
artificial spread of the imported fire ant to uninfested areas of the state by
regulating the movement of those articles that pose a significant threat of
transporting the imported fire ant.
2VAC5-315-30. Definitions.
The following words and
terms shall have the following meanings unless the context clearly indicates
otherwise:
"Board" means the
Virginia Board of Agriculture and Consumer Services.
"Certificate"
means a document issued by an inspector or person operating in accordance with
a compliance agreement to allow the movement of regulated articles to any
destination.
"Commissioner"
means the Commissioner of the Virginia Department of Agriculture and Consumer
Services.
"Compliance
agreement" means a written agreement between a person engaged in growing,
handling, receiving, or moving regulated articles and the Virginia Department
of Agriculture and Consumer Services, the United States Department of
Agriculture, or both, wherein the former agrees to comply with the requirements
of the compliance agreement and comply with the provisions of this regulation.
"Department" means
the Virginia Department of Agriculture and Consumer Services.
"Imported fire
ant" means the live insect, in any life stage, known as the imported fire
ant, Solenopsis invicta Buren (commonly known as Red Imported Fire Ant)
and Solenopsis richteri Forel (commonly known as Black Imported Fire
Ant), and hybrids of these species.
"Infestation"
means the presence of the imported fire ant or the existence of circumstances
that make it reasonable to believe that the imported fire ant is present.
"Inspector" means
an employee of the Virginia Department of Agriculture and Consumer Services or
other person authorized by the Commissioner of the Virginia Department of
Agriculture and Consumer Services to enforce the provisions of this quarantine
or regulation.
"Limited permit"
or "permit" means a document issued by an inspector to allow the
movement of regulated articles to a specific destination.
"Moved,"
"move," or "movement" means shipped, offered for shipment,
received for transportation, transported, carried, or allowed to be moved,
shipped, transported, or carried.
"Noncompacted
soil" means soil that can be removed from an article by brisk brushing or
washing.
"Person" means the
term as defined in § 1-230 of the Code of Virginia.
"Regulated area"
means the locality or area listed in 2VAC5-315-50 of this quarantine.
"Soil" means, for
the purpose of this regulation, any nonliquid combination of organic or
inorganic material, or both, in which plants can grow.
"Soil-moving
equipment" means any equipment used for moving or transporting soil,
including, but not limited to, bulldozers, backhoes, dump trucks, or road
scrapers.
"Virginia Pest
Law" means the statute set forth in Chapter 7 (§ 3.2-700 et seq.) of Title
3.2 of the Code of Virginia.
2VAC5-315-40. Regulated
articles.
The following articles are
regulated under the provisions of this quarantine and shall not be moved out of
any regulated area in Virginia, except in compliance with the conditions
prescribed in this quarantine:
1. Any life stage of
imported fire ant.
2. Soil, except potting soil
that is shipped in original containers after commercial preparation, and soil
samples shipped to approved laboratories.
3. Plants with roots with
soil attached, or roots and rhizomes of plants with soil attached, except
plants maintained indoors in a home or office environment and not for sale.
4. Grass sod.
5. Used soil-moving
equipment unless free of all noncompacted soil.
6. Used farm equipment
unless free of all noncompacted soil.
7. Hay and straw, including
pine straw, that has been stored in direct contact with the ground.
8. Honey bee hives that have
been in direct contact with the ground, including hive stands containing soil.
9. Logs, pulpwood and stump
wood with soil attached.
10. Any other article or
means of conveyance when it is determined by an inspector that it presents a
risk of spread of the imported fire ant.
2VAC5-315-50. Regulated
areas.
The following areas in
Virginia are quarantined for imported fire ant:
The entire counties of:
James City
York
The entire cities of:
Chesapeake
Hampton
Newport News
Norfolk
Poquoson
Portsmouth
Suffolk
Virginia Beach
Williamsburg
2VAC5-315-60. Conditions
governing the intrastate movement of regulated articles.
A. Movement within regulated
areas - movement of a regulated article solely within the quarantined areas is
allowed without restriction.
B. Movement from regulated
areas to nonregulated areas - movement of a regulated article that originates
from within the quarantined areas to an area outside of the quarantined areas
is allowed only if the regulated article is accompanied by a certificate or
limited permit issued in accordance with 2VAC5-315-70 and attached in
accordance with 2VAC5-315-100.
C. Movement from
nonregulated areas through regulated areas - regulated articles that originate
outside of the quarantined areas may move through the quarantined areas under
the following conditions:
1. With a certificate or
limited permit issued in accordance with 2VAC5-315-70 and attached in
accordance with 2VAC5-315-100, or
2. Without a certificate or
limited permit if:
a. Accompanied by a waybill
that indicates the point of origin of the regulated article;
b. The regulated article is
moved directly through the regulated area without stopping, except for
refueling or due to traffic conditions; or has been stored, packed, or handled
at locations approved by an inspector as not posing a risk of infestation by
the imported fire ant; and
c. The regulated article has
not been combined or commingled with other articles so as to lose its
individual identity.
D. Movement from regulated
areas through nonregulated areas - regulated articles that originate from
within the quarantined areas may travel through the nonquarantined areas to a
destination that is quarantined under the following conditions:
1. With a certificate or
limited permit issued in accordance with 2VAC5-315-70 and attached in
accordance with 2VAC5-315-100, or
2. Without a certificate or
limited permit if:
a. Accompanied by a waybill
that indicates the point of origin of the regulated article;
b. The regulated article is
moved directly through the nonregulated area without stopping, except for
refueling or due to traffic conditions; or has been stored, packed, or handled
at locations approved by an inspector as not posing a risk of infestation by
the imported fire ant; and
c. The regulated article has
not been combined or commingled with other articles so as to lose its
individual identity.
2VAC5-315-70. Issuance and
cancellation of certificates and limited permits.
A. Certificates and limited
permits may be issued by an inspector for the movement of regulated articles to
any destination within Virginia when:
1. The regulated articles
have been examined by the inspector and found to be apparently free of the
imported fire ant;
2. The regulated articles
have been grown, produced, manufactured, stored, or handled in such a manner
that, in the judgment of the inspector, would prevent an infestation or destroy
all life stages of imported fire ant;
3. The regulated articles
are to be moved in compliance with any additional conditions deemed necessary
under the Virginia Pest Law to prevent the spread of the imported fire ant; and
4. The regulated articles
are eligible for unrestricted movement under all other domestic plant
quarantines and regulations applicable to the regulated articles.
B. Certificates may be
issued by any person operating under a compliance agreement for the movement of
regulated articles to any destination within Virginia when:
1. The regulated articles
have been examined by any person operating under a compliance agreement and
found to be apparently free of the imported fire ant;
2. The regulated articles
have been grown, produced, manufactured, stored, or handled in such a manner,
and following all requirements of the compliance agreement, that would prevent
an infestation or destroy all life stages of imported fire ant;
3. The regulated articles
are to be moved in compliance with any additional conditions deemed necessary
under the Virginia Pest Law to prevent the spread of the imported fire ant; and
4. The regulated articles
are eligible for unrestricted movement under all other domestic plant
quarantines and regulations applicable to the regulated articles.
C. Any certificate or
limited permit that has been issued or authorized may be withdrawn by the
inspector orally or in writing if the inspector determines that the holder of
the certificate or limited permit has not complied with all conditions for the
use of the certificate or limited permit or with any applicable compliance
agreement. If the withdrawal is oral, the withdrawal and the reasons for the
withdrawal shall be confirmed in writing and communicated to the certificate or
limited permit holder as promptly as circumstances allow.
2VAC5-315-80. Compliance
agreements and cancellation.
A. Any person engaged in
growing, handling, or moving regulated articles may enter into a compliance
agreement when an inspector determines that the person understands that
person's requirements and obligations under this quarantine. The agreement
shall stipulate safeguards that must be maintained against the establishment
and spread of imported fire ants and the conditions governing the movement of
regulated articles.
B. Any compliance agreement
may be canceled orally or in writing by an inspector whenever the inspector
finds that the person who has entered into the compliance agreement has failed
to comply with this quarantine. If the cancellation is oral, the cancellation
and the reasons for the cancellation shall be confirmed in writing and
communicated to the person who entered into such compliance agreement as
promptly as circumstances allow.
2VAC5-315-90. Assembly and
inspection of regulated articles.
A. Any person, other than a
person authorized to issue certificates under 2VAC5-315-70, who desires to move
a regulated article intrastate and is seeking a certificate or limited permit
shall apply for inspection of the regulated article as far in advance as
practical, but no less than five business days before the regulated articles
are to be moved.
B. The regulated articles
must be assembled at the place and in the manner the inspector designates as
necessary to facilitate inspection and shall be safeguarded from infestation.
2VAC5-315-100. Attachment
and disposition of certificates and limited permits.
A. During the intrastate
movement, a certificate or limited permit must be attached at all times to the
outside of the container that contains the regulated article or to the regulated
article itself. The requirements of this section may also be met by attaching
the certificate or limited permit to the consignee's copy of the waybill,
provided the regulated article is sufficiently described on the certificate or
limited permit and on the waybill to facilitate the identification of the
regulated article.
B. The certificate or the
limited permit for the intrastate movement of a regulated article must be
furnished by the carrier to the consignee at the destination of the regulated
article. A copy of the certificate or the limited permit must be retained by
the sender of the regulated article at the place of shipment.
2VAC5-315-110. Inspection
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 disposal of regulated
articles as provided in the Virginia Pest Law.
2VAC5-315-120. 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 the quarantine.
2VAC5-315-130. Revocation of
this regulation.
This regulation may be
revoked by the board when such party is satisfied that the need for this
quarantine no longer exists. Such revocation shall take place upon the date
specified by the board in the order that revokes this regulation.
VA.R. Doc. No. R09-2052;
Filed August 11, 2009, 2:07 p.m.