Administrative Code

Virginia Administrative Code
7/3/2022

Chapter 317. Regulations for the Enforcement of the Noxious Weeds Law

2VAC5-317-10. Definitions.

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

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

"Business day" means a day that is not a Saturday, Sunday, or legal holiday, or a day on which state government offices are closed.

"Certificate" means a document issued or authorized by the commissioner indicating that a regulated article is not contaminated with a noxious weed.

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

"Committee" means the Noxious Weeds Advisory Committee established pursuant to 2VAC5-317-100.

"Compliance agreement" means a written agreement between a person engaged in handling, receiving, or moving regulated articles and the Virginia Department of Agriculture and Consumer Services or the U.S. Department of Agriculture, or both, wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this chapter.

"Consignee" means any person to whom any regulated article is shipped for handling, sale, resale, or any other purpose.

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

"Infested" or "infestation" means the presence of a listed noxious weed or the existence of circumstances that make it reasonable to believe that life stages of a listed noxious weed are 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 chapter.

"Listed noxious weed" means any plant listed in this chapter as either a Tier 1, Tier 2, or Tier 3 noxious weed.

"Move" means to ship, offer for shipment, receive for transportation, carry, or otherwise transport, move, or allow to be moved.

"Noxious weed" means the term as defined in § 3.2-800 of the Code of Virginia.

"Noxious Weeds Law" means the statute set forth in Chapter 8 (§ 3.2-800 et seq.) of Title 3.2 of the Code of Virginia.

"Permit" means a document issued by the commissioner to provide for movement of regulated articles to restricted destinations for limited handling, utilization, processing, or scientific purposes.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated article" means any listed noxious weed or any article carrying or capable of carrying a listed noxious weed.

"Tier 1 noxious weed" means any noxious weed that is not known to be present in the Commonwealth.

"Tier 2 noxious weed" means any noxious weed that is present in the Commonwealth and for which successful eradication or suppression is feasible.

"Tier 3 noxious weed" means any noxious weed (i) that is present in the Commonwealth, (ii) whose spread may be slowed by restrictions on its movement, and (iii) for which successful eradication or suppression is not feasible.

"Waybill" means a document containing the details of a shipment of goods.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017; Volume 36, Issue 22, eff. July 23, 2020.

2VAC5-317-20. Tier 1, Tier 2, and Tier 3 noxious weeds.

A. The following plants are hereby declared Tier 1 noxious weeds:

1. Salvinia molesta, Giant salvinia.

2. Solanum viarum, Tropical soda apple.

3. Heracleum mantegazzianum, Giant hogweed.

B. The following plants are hereby declared Tier 2 noxious weeds:

1. Imperata cylindrica, Cogon grass.

2. Lythrum salicaria, Purple loosestrife.

3. Ipomoea aquatica, Water spinach.

4. Vitex rotundifolia, Beach vitex.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

6. Corydalis incisa, Incised fumewort.

C. The following plants are hereby declared Tier 3 noxious weeds:

1. Ailanthus altissima, Tree of heaven.

2. Ampelopsis brevipedunculata, Porcelain berry.

3. Celastrus orbiculatus, Oriental bittersweet.

4. Hydrilla verticillata, Hydrilla.

5. Persicaria perfoliata, Mile-a-minute weed.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017; Volume 36, Issue 22, eff. July 23, 2020.

2VAC5-317-30. Conditions governing the movement of regulated articles.

The movement of a regulated article is prohibited unless accompanied by a valid certificate or permit.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017.

2VAC5-317-40. Issuance and cancellation of certificates and permits.

A. A certificate or a permit may be issued by the commissioner for the movement of a regulated article into, within, or out of the Commonwealth when the regulated article meets the following three conditions:

1. The regulated article is to be moved:

a. To a specified destination under conditions that specify the limited handling, utilization, processing, or treatment of the article when the commissioner determines that such movement will not result in the spread of the noxious weed; or

b. By a state or federal agency, or person authorized by the department, for experimental or scientific purposes;

2. The regulated article is to be moved in compliance with all additional conditions deemed necessary under the Noxious Weeds Law to prevent the spread of the noxious weed; and

3. The regulated article is eligible for movement under all other domestic plant quarantines and regulations applicable to the regulated article.

B. Any certificate or permit that has been issued or authorized may be withdrawn by the commissioner orally or in writing if the commissioner determines that the holder of the certificate or permit has not complied with all conditions for the use of the certificate or 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 permit holder as promptly as circumstances allow.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017.

2VAC5-317-50. Assembly and inspection of regulated articles.

A. Any person who desires to move a regulated article and who is required to have a permit for such movement shall apply for a permit as far in advance as practical but no fewer than five business days before the regulated article is to be moved.

B. The regulated article must be assembled at the place and in the manner the inspector designates as necessary to facilitate inspection and shall be safeguarded to prevent infestation.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017.

2VAC5-317-60. Attachment and disposition of certificates and permits.

A. A certificate or permit required for the movement of a regulated article into, within, or out of the Commonwealth must be attached at all times during the movement 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 permit to the consignee's copy of the waybill, provided the regulated article is sufficiently described on the certificate or permit and on the waybill to facilitate the identification of the regulated article.

B. The certificate or permit for the 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 permit must be retained by the sender of the regulated article at the place of shipment.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017.

2VAC5-317-70. Inspection and disposal of regulated articles.

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 in accordance with the provisions of the Noxious Weeds Law.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015.

2VAC5-317-80. Eradication and suppression activities for Tier 1 or Tier 2 noxious weeds.

The commissioner may conduct eradication or suppression activities to prevent the dissemination of a Tier 1 or Tier 2 noxious weed. Eradication or suppression activities may include the following: destruction, seizure, stop sale, stop delivery, treatment, or ordering the regulated article to be returned to its point of origin.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017.

2VAC5-317-90. Nonliability of the department.

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

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015.

2VAC5-317-100. Noxious Weeds Advisory Committee.

A. The commissioner shall establish a Noxious Weeds Advisory Committee for the purpose of assisting the department in the evaluation and risk-assessment of plants that may be declared noxious weeds in 2VAC5-317-20. The committee may also consider the delisting of plants that were previously declared noxious weeds.

B. The committee shall present recommendations to the commissioner regarding the listing or delisting of plants as noxious weeds. The committee shall consider the degree to which the plant is detrimental to crops; surface waters, including lakes; other desirable plants; livestock; land or other property; public health; the environment; and the economy. The committee's recommendation shall include an analysis of the current and potential in-state commercial viability of the specific plant species and the economic impact on industries affected by the designation of the plant as a noxious weed.

C. The commissioner shall convene a meeting of the committee at least once annually, and may convene additional meetings at his discretion. Department staff will coordinate the scheduling and logistics of the meetings, including the posting of meeting notices on the Virginia Regulatory Town Hall and the Commonwealth Calendar.

D. Committee members shall serve at the invitation of the commissioner. For every meeting of the committee, the commissioner shall invite representatives of Virginia's agricultural, horticultural, and environmental industries as well as representatives of Virginia's land grant universities and relevant executive branch agencies, to include:

1. A conservation representative or organization;

2. An agribusiness representative or organization;

3. A local government representative or organization;

4. Virginia Cooperative Extension;

5. Virginia Department of Conservation and Recreation;

6. Virginia Department of Forestry;

7. Virginia Department of Game and Inland Fisheries;

8. Virginia Department of Transportation;

9. A farming representative or organization;

10. A forage-based agriculture representative or organization;

11. A native plant conservation representative or organization;

12. A nursery and landscaping representative or organization;

13. Virginia Polytechnic Institute and State University;

14. Virginia State University;

15. A cooperative weed management area representative or organization; and

16. Virginia soil and water conservation districts.

E. The commissioner may invite representatives of local government agencies from localities where a plant of concern has been found or from localities that could be impacted by the declaration of a plant as a noxious weed. The commissioner may invite representatives of other organizations not listed in subsection D of this section that may have a direct interest in the declaration of a plant as a noxious weed.

F. Prior to each meeting of the committee, the commissioner or his designee shall make timely notification to committee members of any plant that the department is considering for possible listing or delisting as a noxious weed. The notification will include the scientific data and rationale for such listing or delisting. The commissioner or his designee shall survey committee members to determine if any member has identified a plant that should be considered for possible listing or delisting as a noxious weed. Any committee member who has identified a plant that should be considered for possible listing or delisting as a noxious weed shall provide department staff with relevant scientific data and the rationale to support the listing or delisting of the plant. The commissioner or his designee will distribute the scientific data and rationale to other committee members for their review and consideration prior to the meeting of the committee.

G. The committee, by majority vote of members, may develop and present to the commissioner a list of plants recommended for listing or delisting as noxious weeds.

H. The commissioner shall consider the recommendations of the committee in his preparation of the list of plants that he presents to the board for listing or delisting as noxious weeds.

I. If a regulatory action to list or delist a noxious weed is under way, the commissioner may delay the pursuit of a new regulatory action to list or delist a new noxious weed until the current action is completed.

Statutory Authority

§ 3.2-802 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 31, Issue 9, eff. January 29, 2015; amended, Virginia Register Volume 34, Issue 4, eff. November 30, 2017.

FORMS (2VAC5-317).

Noxious Weed Permit Application (eff. 6/2018)

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