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Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
Chapter 39. Pesticide Control
12/3/2020

Article 1. General Provisions.

§ 3.2-3900. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Active ingredient" means (in the case of a pesticide other than a plant regulator, defoliant, desiccant, or anti-desiccant) an ingredient that will prevent, destroy, repel, or mitigate insects, fungi, rodents, weeds, or other pests.

"Agricultural commodity" means any plant or part thereof, animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, nurserymen, wood treaters not for hire, or other comparable persons) primarily for sale, consumption, propagation, or other use by man or animals.

"Certificate" means the document issued to a certified applicator or registered technician who has completed all the requirements of Article 3.

"Certification" or "certified" means the recognition granted by the Board to an applicator who has completed all the requirements of Article 3.

"Certified applicator" means a person who: (i) has satisfactorily completed the Board requirements for certification as a commercial applicator, registered technician, or private applicator; and (ii) has been issued a valid certificate.

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

"Defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.

"Desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.

"Device" means any instrument or contrivance intended for: (i) trapping, destroying, repelling, or mitigating insects or rodents; or (ii) destroying, repelling, or mitigating fungi, bacteria, weeds or other pests as may be designated by the Commissioner. Device shall not include treated wood products, simple mechanical devices such as rattraps, or equipment used for the application of pesticide when sold separately.

"Fumigant" means any substance or mixture of substances that emits or liberates gases, fumes, or vapors capable of destroying vermin, rodents, insects, and other pests.

"Fungicide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any fungi or plant disease.

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

"Ingredient statement" or "guaranteed analysis statement" means a statement containing: (i) the name and percentage of each active ingredient; (ii) the total percentage of the inert ingredients; and (iii) if the pesticide contains arsenic in any form, the percentages of total and water soluble arsenic.

"Insect" means any small invertebrate animal generally having a segmented form and belonging to the class Insecta including beetles, bugs, and bees. For purposes of this act, the term insect shall also mean classes of arthropods whose members are usually wingless and have more than six legs including spiders, mites, ticks, centipedes, and wood lice.

"Insecticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects that may be present in any environment whatsoever.

"Label" means the written, printed or graphic matter on, or attached to, the pesticide or device, or the immediate container thereof, and the outside container or wrapper of the retail package, if any, of the pesticide or device.

"Labeling" means all labels and other written, printed, or graphic matter: (i) upon the pesticide or device or any of its containers or wrappers; (ii) accompanying the pesticide or device at any time; or (iii) referenced on the label or in literature accompanying the pesticide or device. Labeling shall not include current official publications of the agricultural experiment station, the Virginia Polytechnic Institute and State University, the Department, the State Board of Health, or similar federal or state institutions when accurate, nonmisleading reference is made to such official publications and such agencies are authorized by law to conduct research in the field of pesticides.

"Licensed" or "licensee" means a person issued a license by the Board to engage in the sale, storage, distribution, recommendation, or application of pesticides for compensation.

"Pest" means any deleterious organism that is: (i) any vertebrate animal other than man; (ii) any invertebrate animal excluding any internal parasite of living man or other living animals; (iii) any plant growing where not wanted, and any plant part such as a root; or (iv) any bacterium, virus, or other microorganisms (except for those on or in living man or other living animals and those on or in processed food or processed animal feed, beverages, drugs as defined by the Federal Food, Drug, and Cosmetic Act at 21 U.S.C. § 321 (g)(1), and cosmetics as defined by the Federal Food, Drug, and Cosmetic Act at 21 U.S.C. § 321 (i)). Any organism classified as endangered, threatened, or otherwise protected under federal or state laws shall not be deemed a pest for the purposes of this chapter.

"Pesticide" means: (i) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, fungi, bacteria, weeds, other forms of plant or animal life, bacterium, or viruses, except viruses on or in living man or other animals, which the Commissioner shall declare to be a pest; (ii) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant; and (iii) any substance intended to become an active ingredient in any substance defined in clause (i) and (ii).

"Pesticide business" means any person engaged in the business of: distributing, applying or recommending the use of a product; or storing, selling, or offering for sale pesticides directly to the user. The term "pesticide business" does not include: (i) wood treaters not for hire; (ii) seed treaters not for hire; (iii) operations that produce agricultural products, unless the owners or operators of such operations described in clauses (i), (ii), and (iii) are engaged in the business of selling or offering for sale pesticides, or distributing pesticides to persons outside of that agricultural producing operation in connection with commercial transactions; or (iv) businesses exempted by regulations adopted by the Board.

"Plant regulator" means any substance or mixture of substances, intended through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of ornamental or crop plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.

"Private applicator" means an individual who uses or supervises the use of any pesticide that is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented by him or his employer or, if applied without compensation other than trading of personal services between producers of agricultural commodities, on the property of another person.

"Registered technician" means an individual who has satisfactorily completed the Board requirements for certification to apply general use pesticides, and to apply restricted use pesticides while under the direct supervision of a certified commercial applicator. Registered technicians render services similar to those of a certified commercial applicator, but have not completed all the requirements to be eligible for certification as a commercial applicator.

"Registrant" means the person registering any pesticide pursuant to the provisions of this chapter.

"Restricted use pesticide" or "pesticide classified for restricted use" means any pesticide classified as restricted by the Administrator of the U.S. Environmental Protection Agency.

"Rodenticide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigating rodents or any other vertebrate animal declared by the Commissioner to be a pest.

"Serious violation" means a violation of this chapter or regulation adopted hereunder that results in a substantial probability of death or serious physical harm to persons, serious harm to property, or serious harm to the environment unless the person or licensee did not or could not with the exercise of reasonable diligence know of the violation.

"State special use" or "pesticide classified for restricted use in the Commonwealth" means any pesticide that is judged by the Board after special review to be so hazardous or injurious to persons, pollinating insects, animals, crops, wildlife, lands, or the environment (other than the pests it is intended to prevent, destroy, control, or mitigate) that additional restrictions on its sale, purpose, use, or possession are required.

"Under the direct supervision of" means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified applicator who is responsible for the actions of that person.

"Unreasonable adverse effects on the environment" means any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.

"Use" means the employment of a pesticide for the purposes of: (i) preventing, destroying, repelling, or mitigating any pest; or (ii) regulating plant growth, causing defoliation or desiccation of plants. The term "use" shall include applying, mixing, handling, or transferring a pesticide after the manufacturer's original seal is broken, and any act consistent with the label.

1989, c. 575, § 3.1-249.27; 1993, c. 773; 1995, c. 103; 2008, c. 860; 2012, cc. 803, 835.

§ 3.2-3901. Repealed.

Repealed by Acts 2012, cc. 803 and 835, cl. 32.

§ 3.2-3904. Powers and duties of the Board.

The Board shall have the following powers and duties:

1. Appoint advisory committees as necessary to implement this chapter;

2. Contract for research projects and establish priorities;

3. Consult with the Department of Environmental Quality regarding compliance with the applicable waste management regulations for the safe and proper disposal of pesticide concentrates, used pesticide containers, and unused pesticides;

4. Consult with the Virginia Department of Labor and Industry regarding compliance with the applicable standards and regulations needed to ensure safe working conditions for pest control and agricultural workers;

5. Consult with the Department of Wildlife Resources regarding standards for the protection of wildlife and fish and to further promote cooperation with respect to programs established by the Department of Wildlife Resources for the protection of endangered or threatened species;

6. Inform the citizens of the desirability and availability of nonchemical and less toxic alternatives to chemical pesticides and the benefits of the safe and proper use of pest control products while promoting the use of integrated pest management techniques and encouraging the development of nonchemical and less toxic alternatives to chemical pesticides;

7. Require that pesticides are adequately tested and are safe for use under local conditions;

8. Require that individuals who sell, store, or apply pesticides commercially are adequately trained and observe appropriate safety practices;

9. Cooperate, receive grants-in-aid, and enter into agreements with any federal, state, or local agency to promote the purposes of this chapter;

10. Consult with the Department of Health regarding compliance with public health standards;

11. Designate any pesticide as state special use or classified for restricted use; and

12. Restrict the distribution, possession, sale, or use of tributyltin compounds.

1987, c. 15, § 3.1-249.25; 1989, c. 575, §§ 3.1-249.29, 3.1-249.62; 1991, c. 333; 2005, c. 633; 2008, c. 860; 2020, c. 958.

§ 3.2-3905. Repealed.

Repealed by Acts 2012, cc. 803 and 835, cl. 32.

§ 3.2-3906. Board to adopt regulations.

The Board may adopt regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), including:

1. Licensing of businesses that manufacture, sell, store, recommend for use, mix, or apply pesticides;

2. Registration of pesticides for manufacture, distribution, sale, storage, or use;

3. Requiring reporting and record keeping related to licensing and registration;

4. Establishing training, testing and standards for certification of commercial applicators, registered technicians, and private applicators;

5. Revoking, suspending or denying licenses (business), registration (products), and certification or certificate (applicators or technicians);

6. Requiring licensees and certificate holders to inform the public when using pesticides in and around structures;

7. Establishing a fee structure for licensure, registration and certification to defray the costs of implementing this chapter;

8. Classifying or subclassifying certification or certificates to be issued under this chapter. Such classifications may include agricultural, forest, ornamental, aquatic, right-of-way or industrial, institutional, structural or health-related pest control;

9. Restricting or prohibiting the sale or use and disposal of any pesticide or pesticide container or residuals that: (i) undesirably persists in the environment or increases due to biological amplification or unreasonable adverse effects on the environment; or (ii) because of toxicity or inordinate hazard to man, animal, bird or plant may be contrary to the public interest; and

10. Other regulations necessary or convenient to carry out the purposes of this chapter.

1989, c. 575, §§ 3.1-249.30, 3.1-249.31; 1992, c. 114; 2008, c. 860.

§ 3.2-3907. Delegation of authority; exclusive authority to regulate.

The Board may delegate any authority vested in it under this chapter to the Commissioner or other employees of the Department. The Board shall have the exclusive authority to regulate pesticides in accordance with this chapter. The Board's authority to regulate pesticides under this chapter shall not be delegated to any locality.

1989, c. 575, § 3.1-249.33; 1992, c. 289; 2008, c. 860.

§ 3.2-3908. Protection of trade secrets and other information.

A. In submitting data required by this chapter, the applicant may: (i) clearly mark any portions that he believes are trade secrets or commercial or financial information; and (ii) submit such marked materials separately from other material.

B. The Commissioner shall not make public information that, in his judgment, contains or relates to trade secrets or commercial or financial information. The Commissioner may reveal information:

1. Relating to formulas of products to any consulting federal, state, or local agency at a public hearing or in findings of fact issued by the Commissioner or Board;

2. To any person in connection with a public proceeding under law or regulation if the Commissioner finds the information relevant to a determination that a pesticide, or any ingredient of a pesticide, causes unreasonable adverse effects on health or the environment;

3. To contractors with the Commonwealth and employees of such contractors if the Commissioner finds disclosure necessary and requires, as a condition to the disclosure of information, that the person receiving it take any security precautions as provided for by regulation;

4. Concerning production, distribution, sale, or inventories in connection with a public proceeding to determine whether a pesticide or any ingredient of a pesticide causes unreasonable adverse effects on health or the environment if the Commissioner determines that disclosure is necessary and in the public interest; and

5. Concerning the objectives, methodology, results, or significance of any test or experiment performed on or with a registered or previously registered pesticide or its separate ingredients, impurities, or degradation products; any information concerning the effects of such pesticide on any organism or the behavior of such pesticide in the environment including data on safety to fish and wildlife, humans and other mammals, plants, animals, and soil; and studies on persistence, translocation and fate in the environment, and metabolism. Information concerning: (i) manufacturing or quality control processes; (ii) the details of methods for testing, detecting, or measuring the quantity of any deliberately added inert ingredient; or (iii) the identity or percentage quantity of any deliberately added inert ingredient, shall not be revealed unless the Commissioner determines that disclosure is necessary to protect against an unreasonable risk of injury to health or the environment.

C. 1. The Commissioner shall notify the applicant or registrant in writing by certified mail if he proposes to release information that the applicant or registrant marked as confidential. The Commissioner shall not release such information for inspection until 30 days after receipt of the notice by the applicant or registrant. During this period, the applicant or registrant may institute an action in circuit court for a declaratory judgment as to whether such information is subject to protection.

2. The Commissioner shall notify the submitter by certified mail if he proposes to release information under subdivision B 4 or B 5. The Commissioner shall not release such information without the submitter's consent until 30 days after receipt of the notice by the submitter. The Commissioner may select alternative notice procedures and a shorter period of notice if he finds that disclosure is necessary to avoid or mitigate an imminent and substantial risk or injury to the public health. During such period the submitter may institute an action in circuit court to enjoin or limit the proposed disclosure. The court shall give expedited consideration to any such action. The court may enjoin disclosure, limit the disclosure, or limit the parties to whom disclosure shall be made to the extent that: (i) the proposed disclosure of information under subdivision B 4 is not required to protect against an unreasonable risk of injury to health or the environment; or (ii) the public interest in the disclosure of information in the public proceeding under subdivision B 5 does not outweigh the interests in preserving the confidentiality of the information.

D. The Commissioner shall not knowingly disclose information submitted by an applicant or registrant under this chapter to any employee or agent of any entity engaged in the production, sale, or distribution of pesticides in countries other than the United States or to any person who intends to deliver such data to any such entity unless the applicant or registrant has consented to disclosure. The Commissioner shall require an affirmation from any person who intends to inspect data that such person does not seek access to the data for purposes of delivering it or offering it for sale to any such business or entity or its agents or employees and will not purposefully deliver or negligently cause the data to be delivered to such business or entity or its agents or employees.

E. The Commissioner shall maintain records of the names of persons to whom data are disclosed under this section and the persons or organizations they represent and shall inform the applicant or registrant of the names and affiliation of such persons.

F. Any person, who, with intent to defraud, uses or reveals information relative to formulas of products acquired pursuant to this chapter is guilty of a Class 6 felony.

Code 1950, § 3-208.36; 1966, c. 702, § 3.1-238; 1975, c. 102; 1989, c. 575, § 3.1-249.68; 2008, c. 860.

§ 3.2-3909. Reports of pesticide accidents and incidents.

The Board shall by regulation require the reporting of significant pesticide accidents or incidents posing a threat to humans or the environment to appropriate governmental agencies. To the extent feasible, accident reporting requirements shall be consistent with similar reports required under other laws.

1975, c. 377, § 3.1-249.10; 1981, c. 260; 1989, c. 575, § 3.1-249.56; 2008, c. 860.

§ 3.2-3910. Complaints to Commissioner or the Board.

Any person may register a written complaint with the Commissioner or the Board relating to the sale, use, storage, handling, or disposal of any pesticide. The Commissioner or the Board shall institute an investigation of the alleged damage caused by such pesticide. The Commissioner may seek the advice of other state or federal agencies or institutions. When it is determined that a violation has occurred, the Commissioner shall proceed as provided in § 3.2-3946.

1989, c. 575, § 3.1-249.32; 2008, c. 860.

§ 3.2-3911. Damages resulting from pesticide use or application.

A. Any person claiming damages from the use or application of any pesticide classified for restricted use shall file with the Commissioner a written statement within 60 days after the date that damages occurred and, if a growing crop is alleged to have been damaged, prior to the time that 25 percent of the crop has been harvested. Such statement shall contain: (i) the name of the person allegedly responsible for the application of such pesticide; (ii) the name of the owner or lessee of the property where the crop is grown and the damage is alleged to have occurred; and (iii) the date of the alleged damage. Upon receipt of the statement, the Commissioner shall notify the certificate holder and the owner or lessee of the property or other person who may be charged with the responsibility of the damages claimed, and furnish copies of the statement as requested.

B. The Commissioner shall inspect damages where possible and make his findings available to the parties. The claimant shall permit the Commissioner, the certificate holder, and his representatives to observe within reasonable hours any plants, animals, or other property alleged to have been damaged. Failure of the claimant to permit such observation and examination of the damaged property shall relieve the Commissioner of responsibility to take further action with reference to that claim.

C. The filing of a statement or the failure to file a statement need not be alleged in any complaint filed in a court of law. The failure to file the statement shall not be considered a bar to the maintenance of any criminal or civil action.

1975, c. 377, § 3.1-249.10; 1981, c. 260; 1989, c. 575, § 3.1-249.56; 2008, c. 860.

§ 3.2-3912. Pesticide Control Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Pesticide Control Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All moneys levied and collected under the provisions of this chapter shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used by the Department solely for carrying out the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

1989, c. 575, § 3.1-249.34; 2008, c. 860.

§ 3.2-3913. Exclusion of medicinal and toilet preparations.

This chapter shall not apply to any preparation, drug, or chemical intended solely for medicinal use or for toilet purposes.

Code 1950, § 3-208.45; 1966, c. 702, § 3.1-247; 1989, c. 575, § 3.1-249.75; 2008, c. 860.